-
USCA1 Opinion
April 30, 1993
[SYSTEMS NOTE: This appendix is only available through the
Clerk's Office in Boston.]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 91-1323
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
CHARLES D. OWENS,
Defendant, Appellant.
_____________________
No. 91-1324
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
____________________
ERRATA SHEET
Please make the following correction in the opinion in the
above case release on April 28, 1993:
The following two-page Appendix (Excepts from the Federal Tort
Claims Act, 28 U.S.C. 1346, et. seq.) should be affixed to the
end of the opinion.
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 91-1323
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
CHARLES D. OWENS,
Defendant, Appellant.
_____________________
No. 91-1324
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
__________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
Torruella, Selya, Cyr, Boudin, and Stahl, Circuit Judges.
______________
____________________
Mark W. Pennak, Attorney, Appellate Staff, Civil Division,
_______________
Department of Justice, with whom Stuart M. Gerson, Assistant
_________________
Attorney General, Wayne A. Budd, United States Attorney, and
_______________
Barbara L. Herwig, Attorney, Appellate Staff, Civil Division,
__________________
Department of Justice, were on brief for appellants.
Stuart DeBard for appellee.
_____________
____________________
April 28, 1993
____________________
OPINION EN BANC
____________________
BREYER, Chief Judge. The Westfall Act provides a
___________
federal employee with immunity from an ordinary tort suit if
__
the suit arises out of acts performed "within the scope of"
the defendant employee's "office or employment." The
immunity attaches when the Attorney General files with the
court a certificate stating that
the defendant employee was acting within
______
the scope of his office or employment at
__
the time of the incident out of which
________________________________________
the claim arose.
________________
28 U.S.C. 2679(d)(1) (emphasis added). Upon filing this
certificate, the Attorney General can remove the case to
federal court (if it started in state court), substitute the
United States as defendant, and, effectively, immunize the
employee from any personal liability. 28 U.S.C. 2679(d).
This appeal focuses on whether the Attorney
General may issue a Westfall Act certificate that simply
denies that any injury-causing action occurred. Suppose a
plaintiff claims that a federal employee committed acts
clearly outside the scope of employment, as here, where the
plaintiff has alleged sexual harassment amounting to
"assault and battery." Can the Attorney General certify
that there simply was no such event? To rephrase this
question using the statutory terms underlined above: Can the
certificate grant immunity simply by denying the occurrence
-4-
of any "incident out of which the claim arose?" Would such
a certificate fall within the scope of the immunity statute?
The legal question is important, for, where a
plaintiff alleges a serious intentional tort, say assault or
rape, and also presents enough evidence to survive a summary
judgment motion, the answer will affect the plaintiff's
right to a jury trial. A "yes" answer means that the
Attorney General and the trial judge (reviewing the
certificate) will decide whether or not the alleged assault
occurred. A "no" answer reserves the basic factual issues
for a jury, in effect, maintaining the plaintiff's Seventh
Amendment right to a trial by jury in "Suits at common law."
U.S. Const. amend. VII.
In our view, the answer is "no." This "no" answer
finds support in the statutory language, read together with
related provisions; the legislative history; the relevant
case law background; and direct precedent from other
circuits. We find nothing to suggest that Congress intended
a contrary result. We therefore conclude that the Westfall
Act certificate cannot deny the basic "incident" charged,
though (as we shall explain in Part III) the certificate
need not accept the plaintiff's version of just how it
___
-5-
occurred.
I
Background
__________
Theresa Wood, the plaintiff, worked as secretary
to the federal employee defendant, Charles Owens, an Army
Major. She filed a federal court complaint against the
United States and Major Owens. The complaint alleges that
in October 1987 Major Owens told Mrs. Wood that he wanted to
go to a hotel with her; that later in 1987 he called her
into his office, "grabbed her arm, pulled her toward him,
caressed her arm, took lint from her blouse and said, 'I
like you, I like you a lot and I want to be intimate with
you;'" that in January 1988, he told her that he "would like
to have a relationship together -- a sexual one;" and that
in February 1988 he told her that she was not right for the
job and would have to leave. Eventually, for reasons not
here relevant, the district court dismissed the complaint
insofar as it charged violations by the United States of
various specified provisions of federal and state law. The
complaint, however, also set forth state law claims of
assault and battery, and civil rights violations against
Major Owens. See Mass. Gen. L. ch. 12, 11I. The district
___
-6-
court did not dismiss these state law claims, over which it
retained diversity jurisdiction. 28 U.S.C. 1332.
The United States Attorney then filed (in what had
become a state law, diversity action) a Westfall Act
certificate. See 28 C.F.R. 15.3 (delegating Attorney
___
General's certification authority to the United States
Attorney). It said that Owens, "at all times referenced in
the . . . Complaint," was "acting within the scope of his
office as a commissioned officer of the Armed forces of the
United States." In an accompanying affidavit, Owens simply
denied Wood's factual allegations. He said,
I never spoke in a sexually suggestive
manner to plaintiff nor did I at any
time ever proposition or otherwise make
any sexual advances towards plaintiff.
The United States Attorney, denying that any relevant
incident had occurred, asked the court to substitute the
United States for Owens as defendant, 28 U.S.C.
2679(d)(1), and (because of federal preemption of state
civil rights law and a special law preserving sovereign
immunity for intentional torts) to dismiss the resulting
claims against the United States. See 42 U.S.C. 2000e-16;
___
28 U.S.C. 2680(h).
The district court would not permit the
substitution because it believed the Westfall Act
-7-
certificate was inadequate. It pointed out that the
complaint alleged facts, which (if true) showed Owens'
_______
actions fell outside his "scope of office or employment."
See 28 U.S.C. 2671 (defining "scope of office or
___
employment" to mean a military officer's "line of duty");
Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir. 1982)
____ _____________
("line of duty" is defined by the relevant state's law of
respondeat superior); Miller v. Federated Dep't Stores,
____________________ ______ ________________________
Inc., 364 Mass. 340, 348, 304 N.E.2d 573, 579 (1973)
____
(Massachusetts law of respondeat superior places intentional
___________________
tort outside line of duty, or scope of employment, unless
_______
committed to stop victim's interfering with employee's job
performance); Doe v. United States, 618 F. Supp. 503, 505-06
___ _____________
(D.S.C. 1984) (sexual harassment outside the line of duty),
aff'd, 769 F.2d 174 (4th Cir. 1985); Turner v. United
_____ ______ ______
States, 595 F. Supp. 708, 710 (W.D. La. 1984) (same). And,
______
the court added, the government did not deny that the acts
would have fallen outside the "scope of employment" had they
occurred.
On appeal, a panel of this court affirmed the
district court, for similar reasons. Sitting en banc, we,
too, affirm the district court's determination, but for
somewhat different reasons.
-8-
II
Denying the "Incident"
______________________
Congress did not directly consider the question
before us: whether or not the Attorney General's
certificate can simply deny that any "incident" occurred.
The statute's language, history, and precedent, however,
convince us that the certificate cannot deny the occurrence
of the basic incident charged.
A
The Statute Itself
__________________
1. The Provision's Language. The Westfall Act
_________________________
itself says that, to provide immunity, the Attorney General
must certify that the defendant employee was "acting within
______
the scope of his office or employment at the time of the
___________________
incident out of which the claim arose." 28 U.S.C.
________
2679(d)(1). The dissent reads these words as permitting
the Attorney General to obtain immunity for any alleged
___
working-hour tort simply by denying that anything unusual
occurred "at the time." But, it seems to us more natural to
___________
read these words as speaking of an action "at the time of
______ __
the incident," thus assuming some kind of "incident"
_____________
occurred.
After all, the basic point of immunity doctrine is
-9-
to provide government employees with a defense for conduct
that falls into certain categories. See, e.g., Barr v.
___ ____ ____
Matteo, 360 U.S. 564, 573-74 (1959); Mitchell v. Forsyth,
______ ________ _______
472 U.S. 511, 525 (1985); Harlow v. Fitzgerald, 457 U.S.
______ __________
800, 818 (1982). The doctrine normally comes into play, not
when the defendant denies the conduct charged, but when the
defendant asks a court to characterize the conduct. The
____________
point of the certificate is to assert such a
characterization, namely to claim that a (hypothetically
conceded) "incident" involved activity that was "within the
scope of employment."
2. The Statutory Scheme. The surrounding
______________________
statutory provisions support our natural reading of the
provision's language, for they reveal that Congress intended
the Westfall Act to immunize employees from claims of
wrongdoing of a particular type, not claims of wrongdoing at
____
a particular time. The "type" consists of the sort of
____
wrongdoing for which employers, typically, are vicariously
liable under principles of respondeat superior. The
_____________________
statutory scheme does not concern claimed wrongdoing that
falls outside respondeat superior's traditional bounds,
____________________
regardless of when the wrongdoing allegedly occurred.
____
The statutory scheme involves both the Federal
____
-10-
Tort Claims Act's waiver of sovereign immunity and the
Westfall Act's creation of employee immunity. The waiver
enables tort plaintiffs to bring against a special employer,
namely the federal government, the same kind of ordinary
___________________
tort action that plaintiffs often bring against private
_______
employers, namely an action claiming that an employee
wrongfully hurt the plaintiff and that the employer is
liable under the doctrine of respondeat superior. Section
____________________
1346(b) of the Federal Tort Claims Act, which is a general
waiver of sovereign immunity, seeks to permit just this type
of action. It says:
[T]he [federal] district courts . . .
shall have exclusive jurisdiction of
civil actions on claims against the
United States, for money damages, . . .
for injury . . . caused by the negligent
or wrongful act or omission of any
employee . . . while acting within the
________________________
scope of his office or employment, under
________________________________________
circumstances where the United States,
________________________________________
if a private person, would be liable to
________________________________________
the claimant in accordance with the law
____________
of the place where the act or omission
occurred.
28 U.S.C. 1346(b) (emphasis added). But see 28 U.S.C.
________
2680 (limiting the waiver in various ways).
The Westfall Act goes on to create a type of
respondeat superior immunity for federal employees that
____________________
roughly tracks the federal government's respondeat superior
___________________
-11-
liability. The Westfall Act sets forth a Basic Statement of
employee immunity which (edited to emphasize our point)
says,
[1] The remedy against the United States
provided by section [] 1346(b) . . .
_____________________
[2] for injury . . . arising or
resulting from the negligent or wrongful
act or omission of any employee . . .
while acting within the scope of his
________________________________________
office or employment
____________________
[3] is exclusive of any other civil
action . . . for money damages by reason
of the same subject matter against the
____________________________
employee whose act or omission gave rise
to the claim . . . .
28 U.S.C. 2679(b)(1) (emphasis added). Part 1 of this
statement cross-references Section 1346(b)'s waiver of
sovereign immunity. Part 2 uses language almost identical
to that in Section 1346(b). And, Part 3's operative words
granting immunity from actions seeking damages by reason of
the "same subject matter" would therefore seem to refer, in
a general way, to the respondeat superior circumstances
____________________
found in the kind of suit that Section 1346(b) describes.
The Westfall Act subsection now before us uses
similar language. It provides for substitution where the
Attorney General certifies that
the defendant employee was acting within
the scope of his office or employment at
the time of the incident out of which
-12-
the claim arose . . .
_________
28 U.S.C. 2679(d)(1) (emphasis added). The language
"acting within the scope of his office or employment" tracks
the language of Section 1346(b). The reference to "the
claim," appearing right after the Basic Statement, seems to
refer to the Basic Statement's kind of claim. And, as we
have said, the Basic Statement, in turn, refers to Section
1346(b), which creates liability if there is 1) an "injury"
2) "caused by" 3) an employee's "negligent or wrongful act
or omission," where 4) the employee acted "within the scope
of office or employment," and 5) "under circumstances" where
state law would make a private employer liable for an
employee's "act or omission."
The federal government's liability under the
Federal Tort Claims Act is not perfectly congruent with the
federal employee's immunity under the Westfall Act. The
sovereign immunity waiver contains exceptions and
limitations that the Westfall Act does not contain (but
outside of Section 1346(b)). See, e.g., United States v.
_______ ___ ____ _____________
Smith, 111 S. Ct. 1180, 1185 (1991) (exception for torts
_____
"arising in a foreign country," 28 U.S.C. 2680(k)); Kelly
_____
v. United States, 924 F.2d 355, 362 (1st Cir. 1991)
______________
("discretionary function" exception, 28 U.S.C. 2680(a));
-13-
Nasuti v. Scannell, 906 F.2d 802, 805, 806 (1st Cir. 1990)
______ ________
(limitation for co-employee plaintiff, 5 U.S.C. 8116(c),
and exception for assault and battery, 28 U.S.C. 2680(h));
Hamrick v. Franklin, 931 F.2d 1209, 1212 (7th Cir. 1991)
_______ ________
(exception for libel and interference with contract rights,
28 U.S.C. 2680(h)). And, the federal government may
escape liability under Section 1346(b), even if the employee
is immune, by asserting state or federal law defenses. 28
U.S.C. 2674. Nonetheless, the language of the basic
"government-liability-creating" and "employee-liability-
removing" provisions makes clear that both sets of
provisions involve the same basic kind of case, namely a
____
respondeat superior kind of case. And that fact is critical
___________________
here. Since Congress intended to limit grants of immunity
to job-related, respondeat superior, kinds of cases, there
____________________
is no reason to apply the Westfall Act in cases that
concededly do not involve any kind of potential respondeat
___ __________
superior liability. Nor, is there any reason to interpret
________
that Act as taking from the jury its traditional job of
deciding whether an egregious tort (well outside the "scope
of employment"), in fact, occurred.
There is, then, no reason to give the statute
before us other than its natural reading, a reading that
-14-
requires the Attorney General to assume (for immunity-
______
asserting purposes), not to deny, the occurrence of some
____
"incident" underlying the plaintiff's claim. The Attorney
General need not deny the incident to obtain the kind of
____
job-related immunity the statute seeks to bestow. And, the
Attorney General should not be able, by denying the
______
incident, to obtain employee immunity for a tort claim that
is not job-related, regardless of whether the Attorney
General believes the claim to be true or false.
3. Purpose. One can imagine why Congress
_______
decided to link employee immunity to respondeat superior
__________ ________
principles as described. Federal employee tort immunity has
a public, not a private, objective, namely the need for
public employees faithfully to discharge their duties. See
___
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949); Barr
________ ______ ____
v. Matteo, 360 U.S. 564, 571 (1959); Westfall v. Erwin, 484
______ ________ _____
U.S. 292, 296 (1988). It aims at avoiding "exposure" to
"personal liability" in order to prevent "a substantial
diminution in the vigor of Federal law enforcement and
implementation." H.R. Rep. No. 700, 100th Cong., 2d Sess.
3, reprinted in 1988 U.S.C.C.A.N. at 5947. The resulting
_____________
immunity reflects a balancing of judgments, on the one hand,
about the likelihood that potential tort liability will
-15-
adversely affect job performance and, on the other, about
the potential harm such immunity might cause potential tort
plaintiffs. That balance may differ as between cases
inside, and outside, the scope of employment. After all,
one might believe that employees often can change their job
performance to avoid, even unfounded, suits based on, say,
negligent performance of that job, but that they lack a
comparable ability to avoid, in a similar way, false charges
of an egregious tort (e.g., murder or assault). And, the
possible effect of such non-duty-related suits on job
performance might seem too uncertain, or too weak, a
justification for depriving a plaintiff of her right to a
jury trial in cases involving non-duty-related egregious
torts. Cf. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,
___ ____________________ ________
53 (1989) (Congress may substitute statutory non-jury trial
action for common law jury trial action where former "action
inheres in, or lies against, the Federal Government in its
sovereign capacity."). Hence, the statute, as enacted,
simply reflects different Congressional judgments in
different circumstances.
As the dissent suggests, pp. 31, 34, infra, our
_____
interpretation means that sometimes Driver A, who admits
negligence will receive immunity, while less culpable Driver
-16-
B, who denies the existence of any accident at all, would
not receive immunity. But, this could be so only where
Driver A can claim that the underlying incident is job-
related, while Driver B cannot make this claim, even
hypothetically, for argument's sake. This result does not
seem anomalous given immunity's job-related public purpose.
And, it is that public purpose, not relative culpability,
that controls the shape of the legal doctrine.
-17-
B
History
_______
The Westfall Act's history offers direct support
for our reading of the Act. First, the House of
Representatives Report suggests that Congress did not intend
the Westfall Act to confer immunity for tort claims outside
the respondeat superior context. It simply says that the
___________________
Act permits substitution of the United States for the
defendant employee
whenever the Attorney General determines
that the act or omission alleged to have
caused the claimant's injuries was
within the scope of the employee's
office or employment.
H.R. Rep. No. 700, 100th Cong., 2d Sess. 9, reprinted in
_____________
1988 U.S.C.C.A.N. at 5952. The Report thereby seems to
assume the Section 1346(b) elements of an act that caused an
injury.
Second, the Report says that the Act does not
permit substitution where the conduct alleged is
"egregious:"
[T]he United States will incur vicarious
liability only for . . . torts . . .
committed within the "scope of . . .
employment." If an employee is accused
of egregious misconduct, rather than
_____________________
mere negligence or poor judgment, then
the United States may not be substituted
as the defendant, and the individual
-18-
employee remains liable.
Id. at 5, 1988 U.S.C.C.A.N. at 5949 (emphasis added). This
___
language suggests that the Act does not allow an immunity
___
certificate simply to deny, say, an alleged killing, rape,
assault, or some other "egregious misconduct" that occurs
during working hours. It suggests that the Act requires the
certificate to explain, instead, why the alleged misconduct
was not so "egregious" as to place it outside the employee's
"scope of employment." The dissent's interpretation of the
Act is inconsistent with this statement in the Report.
Third, Congress intended the Westfall Act to
restore approximately the federal employee tort immunity
that existed prior to the Supreme Court case of Westfall v.
________
Erwin, 484 U.S. 292 (1988). See H.R. Rep. No. 700, 100th
_____ ___
Cong., 2d Sess. 3-4 (1988), reprinted in 1988 U.S.C.C.A.N.
_____________
5945, 5946-47. We have examined the pre-Westfall Act cases.
The leading immunity cases all involved "incidents" that
defendants conceded to have occurred. Gregoire v. Biddle,
________ ______
177 F.2d 579 (2d Cir. 1949); Barr v. Matteo, 360 U.S. 564
____ ______
(1959); Westfall v. Erwin, 484 U.S. 292 (1988). And, in
________ _____
every other case we have found, the parties conceded or
assumed for immunity-conferring purposes the occurrence of
some kind of harm-causing "act or omission." We could find
-19-
no contrary example of either an ordinary or a
__
"constitutional" tort case in which a claim of immunity
rested on a denial that any incident occurred. See Chagnon
___ _______
v. Bell, 642 F.2d 1248, 1256 (D.C. Cir. 1980) ("doctrine of
____
immunity assumes official error"), cert. denied, 453 U.S.
_______________________ _____________
911 (1981); Scheuer v. Rhodes, 416 U.S. 232, 242 (1974)
_______ ______
("Implicit in the idea that officials have some immunity . .
. is a recognition that they may err."); see also Heidelberg
________ __________
v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (distinguishing
______
the defense of "absolute immunity" from "failure to state a
claim"). Nothing in the Westfall Act's history suggests
that Congress wanted to change the pre-existing practice in
this respect.
Fourth, the Westfall Act changed "official
immunity" by overriding the Supreme Court's limitation of
the doctrine to "discretionary functions," 484 U.S. at 296-
97, and by extending to all federal employees a procedural
protection (the certification procedure) previously
available only to government drivers. 28 U.S.C. 2679(d)
(1982) (amended by the Westfall Act). The former purpose is
irrelevant here. The latter offers added support, for
Driver's Act immunity cases, like common law cases, turned
on whether the "incident" (essentially an auto accident)
-20-
fell within the "scope of employment," not on whether any
basic incident occurred. See, e.g., Henderson v. United
___ ____ _________ ______
States, 429 F.2d 588, 590 (10th Cir. 1970) (looking at "time
______
of the accident"). Moreover, those cases indicate that
Driver's Act "immunity," like Westfall Act "immunity," arose
in a respondeat superior context. See id.
___________________ ___ ___
We recognize that the Driver's Act tied employee
immunity to the government's Section 1346(b), respondeat
__________
superior liability more explicitly than does the Westfall
________
Act, for, in the context of removal, the Drivers Act said
that if the federal court finds (before trial) that the
plaintiff would have no Section 1346(b) remedy against the
United States, the "case shall be remanded to the State
court." 28 U.S.C. 2679(d) (1982). This language
indicates that the Driver's Act would not have protected
___
drivers against claims of "egregious torts," whether or not
they allegedly occurred during the driver's work hours. See
___
Henderson, 429 F.2d at 590 (state law respondeat superior
_________ ___________________
principles define "scope of employment); Miller v. Federated
______ _________
Dep't Stores, 364 Mass. at 348, 304 N.E.2d at 579
_____________
(intentional tort is normally outside scope of employment
unless committed to prevent victim interference with job
performance); McGowan v. Williams, 623 F.2d 1239, 1242 (7th
_______ ________
-21-
Cir. 1980) ("the federal driver" can be sued "in his
individual capacity" if he acted outside his scope of
employment). The Westfall Act, while copying much Driver's
Act language, leaves out this specific remand provision.
But it apparently does so for a reason not here relevant,
namely to make clear that the United States, after
substitution, can assert various defenses that may, or may
not, have been available to the employee. See 28 U.S.C.
___
2674; H.R. Rep. No. 700, 100th Cong., 2d Sess. 5, reprinted
_________
in 1988 U.S.C.C.A.N at 5948 ("ordinary tort defenses . . .
__
available to the United States"). We therefore do not see
how one could find much of significance in this difference.
C
Direct Precedent
________________
We have found one circuit court case and one
district court case directly on point. In McHugh v.
______
University of Vermont, 966 F.2d 67 (2d Cir. 1992), the
______________________
plaintiff claimed that a federal employee had sexually
harassed her. The Attorney General filed a Westfall Act
certificate. The Second Circuit overruled the certificate
because the Act does not permit the government to certify
that the alleged incident is "within the scope of
employment" simply "by denying that the acts occurred." Id.
___
-22-
at 74. It added (as do we, in Part III) that the Government
need not accept the plaintiff's version of the alleged
_______
incident, for it can argue that the "context of the alleged
acts" places them within the "scope of employment." Id.
___
The trial court, it explained, may hold a pre-trial
evidentiary hearing to resolve factual disputes relevant to
"context." Id. Our holding here essentially follows the
___
Second Circuit.
In Jackson v. United States, 751 F. Supp. 911 (D.
_______ _____________
Colo. 1990), the plaintiff alleged that the defendant, an
Army psychotherapist had engaged in sexual intercourse with
her during treatment. The district court held invalid a
Westfall Act certificate that simply denied that the alleged
event had taken place. See id. at 913.
___ ___
Language, context, history, and precedent lead to
the same general conclusions. 1) The immunity that the
Westfall Act confers upon federal employees arises in, and
is confined to, a certain context, namely the "respondeat
__________
superior" context, described roughly in Section 1346(b) of
________
the Federal Tort Claims Act. 2) To permit a Westfall Act
certificate simply to deny that anything occurred would
extend a form of this immunity well outside the "respondeat
__________
-23-
superior" context to "egregious" torts allegedly committed
________
at work. It would permit, to a significant degree, the
Attorney General and district judge (rather than the jury)
to decide whether allegations of such non-work-related torts
were true or false. 3) We therefore conclude that the
certificate cannot assert "immunity" simply by denying that
anything occurred. We read the statute to mean what its
words naturally say, namely that the Attorney General's
certificate must assume the existence of an "incident out of
which the claim arose."
III
What "Incident" Must the Certificate Assume?
___________________________________________
We are aware of one important question that we
have not yet asked or answered. Given our interpretation,
could a plaintiff, through artful pleading, transform a job-
related tort into a non-job-related tort simply by alleging,
say an "off-duty" state of mind (such as "malicious" intent)
or by alleging that a negligent action was carried out
intentionally? If so, will federal employees lose, in
practice, the job-related immunity that Congress clearly
intended the Westfall Act to provide?
Consider, for example, an accident victim who
might normally file a suit charging negligence. Suppose
-24-
that such a victim also claimed that the defendant employee
acted with a state of mind that, under traditional
respondeat superior doctrine, would place the action outside
___________________
the "scope of employment," say, an "intentional" or
"deliberate" state of mind. See Miller v. Federated Dep't
___ ______ _______________
Stores, 364 Mass. at 348, 304 N.E.2d at 579 (intentional
______
tort is normally outside "scope of employment" unless
committed to prevent victim interference with job
performance). Or, suppose that the victim alleged detailed
facts indicating that, at the time, the employee was on a
"frolic of his own." Weiner v. Mairs, 234 Mass. 156, 158,
______ _____
125 N.E. 149, 150 (1919). To force the Attorney General to
accept all such facts as valid might often prevent her from
removing the case from state court, from substituting the
United States as defendant, and from freeing the employee
from the burden of the lawsuit.
This problem, however, does not require an
interpretation that would permit the Attorney General to
deny the basic "incident." Rather, we can (and do) insist
that the certificate assume some kind of harm-causing
____________________________
incident, while leaving the Attorney General free to dispute
________
characterizations of the incident and subsidiary immunity-
related facts. The Second Circuit held precisely the same
-25-
in McHugh. 966 F.2d at 74. Moreover, we previously held
______
that the Attorney General's certificate may contest a
plaintiff's incident-describing and incident-characterizing
facts and that the court may resolve any such factual
conflicts, relevant to immunity, prior to trial. In Nasuti
______
v. Scannell, 906 F.2d 802 (1st Cir. 1990), the plaintiff,
________
injured while riding in the back of a government truck
driven by federal employee Scannell, sued Scannell, claiming
that Scannell had intentionally injured him by driving fast,
_____________
thereby jostling him, and throwing him from side to side,
"in spite of" Nasuti's "entreaties" to stop. We assumed
that these factual allegations, if true, would have placed
Scannell's actions outside the "scope of his employment."
See Miller, 364 Mass. at 348, 304 N.E.2d at 579 (intentional
___ ______
torts normally outside "scope of employment"). But, we held
the immunity certificate valid, pending a pre-trial
evidentiary hearing that would resolve the key immunity-
related factual dispute, namely whether Scannell intended to
________
harm Nasuti. See id. at 808. The Attorney General's
___ ___
certificate in Nasuti did not deny the existence of a harm-
______
causing incident. It denied related descriptions and
characterizations of that incident. By way of contrast the
certificate before us denies the existence of any harm-
-26-
causing incident at all.
We recognize an obvious problem with the line that
we, like the Second Circuit, have tried to draw. How clear
is the line? Will we later have to answer questions in
particular factual circumstances about the difference
between denying facts that amount to a "characterization" or
"description" and denying that any harm-causing incident
occurred at all? Compare Unwin v. Campbell, 863 F.2d 124,
_______ _____ ________
133 (1st Cir. 1988) (extent of defendant's participation in
incident is part of qualified immunity inquiry) with Domegan
____ _______
v. Fair, 859 F.2d 1059, 1065 (1st Cir. 1988) (denial of
____
causation is not part of immunity inquiry) and Bonitz v.
___ ______
Fair, 804 F.2d 164, 167 (1st Cir. 1986) (same), overruled on
____ ____________
other grounds, Unwin v. Campbell, 863 F.2d at 132. We
______________ _____ ________
concede this kind of administrative problem would likely not
arise were we to read the statute either 1) as permitting
the certificate to deny the "incident" in its entirety, or
2) as insisting that the certificate accept the plaintiff's
alleged account as totally valid. But, we nonetheless
believe the problem is the least potential evil. The
administrative problem is not insuperable. Cases that raise
this kind of issue seem rare. Moreover, we have already
pointed out the more serious harm that would accompany
-27-
either of the other choices, namely unduly expanding, or
constricting, the practical scope of the immunity that
Congress intended to confer. And, we cannot find in this
administrative consideration justification for imposing a
major restraint upon the plaintiff's right to a jury trial.
Consequently, we believe that our "middle ground" adheres
more faithfully to the statute itself.
-28-
IV
Other Matters
_____________
We add two final, unrelated points. First, after
oral argument in this case the Fourth Circuit decided
Johnson v. Carter, No. 90-3077 (4th Cir., Jan. 15, 1993), in
_______ ______
which it held that courts cannot review the validity of
Westfall Act certificates. Id. at 7. We previously have
___
held to the contrary. Kelly v. United States, 924 F.2d at
_____ _____________
357; Nasuti, 906 F.2d at 812. The Government has asked us
______
not to assess our previous holding in respect to
reviewability. And, we shall not do so.
Second, the Government originally appealed a
totally separate issue, whether or not federal law preempted
certain of Wood's state law claims. The panel refused to
consider that aspect of the appeal on the ground that an
interlocutory appeal did not lie from the district court's
decision of that question. See Zayas-Green v. Casaine, 906
___ ___________ _______
F.2d 18, 22 (1st Cir. 1990). We have accepted the panel's
decision on that matter in this en banc proceeding. Hence,
we have not decided the preemption issue on the merits. The
Government remains free to raise the issue on appeal from a
final judgment.
-29-
Applying our basic determination of the law to the
case before us, we find that the Government here,
impermissibly, has rested its certificate simply upon a
denial that any "incident" took place. We do not see how it
could characterize the incidents at issue in a way that
would bring them within defendant's "line of duty," and it
has not tried to do so. We consequently believe that the
district court's decision denying substitution and dismissal
was correct, and that decision is
Affirmed.
________
-30-
COFFIN, Senior Circuit Judge, SELYA and BOUDIN, Circuit
____________________ _______
Judges, dissenting.1 In this case a federal employee
______
charged with an intentional tort said that the alleged
incidents never occurred, and the Attorney General issued a
"scope of employment" certificate under the Westfall Act, 28
U.S.C. 2679, accepting the employee's version of events.
In our view, the Attorney General's scope of employment
certificate must be respected unless and until set aside by
the district court; and the certificate can be set aside only
if the judge determines--in this case, after an evidentiary
_____
hearing to decide whether the incidents occurred--that the
employee engaged in improper conduct outside the scope of his
employment.
I.
In the Westfall Act, Congress told the Attorney General
to determine whether to certify that a federal employee,
against whom a civil suit has been filed, was acting "within
the scope of his office or employment at the time of the
incident out of which the claim arose . . . ." 28 U.S.C.
2679(d)(1), (2). Where this certificate issues, the statute
directs that the case, if initially brought in state court,
shall be removed to federal court and in any event that "the
United States shall be substituted as the party defendant."
____________________
1This opinion represents the work, as well as the views,
of all three judges so we have signed it jointly.
-28-
28
Id. The statute makes the certificate "conclusive" so far
__
as it is used to remove a case to federal court. Id.
__
2679(d)(2). The statute does not address, and thereby leaves
open, the possibility that where the Attorney General grants
a certificate, it may be reviewed so far as it substitutes
the United States for the employee.
On February 8, 1990, the U.S. Attorney for
Massachusetts, who is delegated authority to issue such
certificates, 28 C.F.R. 15.3, issued a Westfall Act
certificate in this case affirming that Owens at all times
referenced in the complaint was "acting with the scope of his
office . . . ." The United States then substituted itself
for Owens. Needless to say, the government has never claimed
that the incidents, if they occurred as Wood alleged, would
be behavior within the scope of Owens' duties. Rather, the
certificate amounts to an assertion that Owens was at all
times acting within the scope of his employment because, in
_______
the Attorney General's view, the incidents did not occur as
alleged by Wood.
Accordingly, we now face a situation in which the
Attorney General's delegate has issued a certificate and the
plaintiff has sought to set it aside. One option--that of
simply assuming the certificate to be true (and the
complaint's allegations false)--we reject. This court has
held that the grant of a scope certificate is reviewable as
-29-
29
to substitution because any other reading could foreclose the
plaintiff's claim without a judicial determination. Nasuti
______
v. Scannell, 906 F.2d 802 (1st Cir. 1990).2 The government,
________
after initially resisting such district court review, has now
accepted its necessity.
We are equally confident that the opposite alternative
must be rejected: the district court cannot proceed merely by
assuming the complaint's allegations to be true and the
certificate false. Such an assumption would give the
plaintiff complete control over the certification process and
permit the certificate to be nullified without any judicial
finding. The statute permits a certificate where "the
defendant employee was acting within the scope of his office
or employment at the time of the incident . . . ." In our
view, this language speaks not to what plaintiff or defendant
may allege but rather to the actual events and their
______
connection to the employee's office or employment.
Finally, to us it is of no moment that the statute
refers to "the incident out of which the claim arose." It is
an accident of language--a reflection of the most common
case--that the statute posits a "happening." In this case
the Attorney General concluded, as evidenced by the
certificate, that the events claimed by plaintiff did not
____________________
2That is so, for example, where the Westfall Act
mandates substitution but the tort is one for which the
United States has not waived its sovereign immunity.
-30-
30
occur, at least in the form alleged by Wood. But it is not
difficult to find here a set of "incidents" or occurrences
conceded by everyone: Owens did have a supervisory
relationship with Wood, met and talked with her on various
occasions and danced with her at an official function. What
is disputed is precisely what was said and done on these
occasions, much as a government driver and a private
plaintiff might give two quite different versions of an
accident.
Indeed, we think the Westfall Act would apply even if
there were less of an "incident" than is indisputably present
____
in this case. For example, surely the statute applies with
the same force whether a postal service driver says that he
did not hit the plaintiff's car or that he did so but was not
at fault. "Incident," in other words, must encompass the
possibility that something did not happen as well as the
possibility that it did.
Against this background, we confront a single question:
should the judge or the jury make the initial determination
as to what did or did not occur and its relationship to
Owens' office or employment? The case is peculiar only
because the same issue happens to be common both to the
validity of the certificate and to the merits of the
controversy between plaintiff and defendant. If Owens
molested Wood, the certificate is invalid and he is liable;
___
-31-
31
if it never happened and he maintained a proper supervisor-
employee relationship, then his behavior toward Wood was
within the scope of his employment and he has no liability.
___
II.
Although the question of who should decide is not free
from doubt, we believe that the Attorney General's
certificate cannot be set aside unless and until the district
judge concludes that Wood's version of events is correct and
therefore that Owens could not have been acting within the
scope of his employment. This course appears to us to be the
one most consistent with statutory language, with Congress'
policy, with Supreme Court and other precedent, and with
sound administration of the statute. Each of these points is
addressed in turn.
We start with the statute's language, as proper
interpretation requires. See Landreth Timber Co. v.
___ ____________________
Landreth, 471 U.S. 681, 685 (1985). The Westfall Act
________
operates automatically, upon the filing of a certificate, to
remove the case and to substitute the United States for the
employee. The statute provides that "upon certification,
[the] action . . . shall proceed" against the United States,
28 U.S.C. 2679(d)(4). The certificate, in other words, is
an official act with legal consequences unless and until it
is set aside. The official act is reviewable, by
implication, but it is operative until found invalid,
-32-
32
protected by the same presumption of validity that ordinarily
attaches to official action. See Citizens to Preserve
___ ______________________
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); United
_________________ _____ ______
States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15
______ __________________________
(1926).
The certificate filed by the Attorney General in this
case is not facially invalid. As we have noted, there is
nothing in the statute that requires the Attorney General or
the court to accept the plaintiff's version of events as true
without scrutiny (and such a requirement would be
sufficiently odd that a court could not lightly infer it).
Nor is there anything that prevents a certificate from
issuing where the "incident" charged in the complaint did not
occur and the defendant engaged only in proper behavior
occurring wholly within the scope of his office or
employment. In sum, so far as the statute is concerned, this
_______
is a proper certificate, unless and until a factual finding
in Wood's favor undermines the premise of the certificate.
It is even clearer that the congressional policies
underlying the statute support the government's position. At
present, Owens is not presumed to be a molester; he is a
military officer who has been accused of making improper
advances to an employee whom he supervised in the course of
his official duties. To issue his certificate, the Attorney
General must have concluded that in this case the advances
-33-
33
were not made. Where the Attorney General has issued a
scope certificate, Congress intended to spare employees not
only from liability for misconduct related to their official
duties but also from the burden and expense of defending such
____
suits.3
In other words, the Westfall Act is not a simple
immunity statute saying that certain misconduct is protected
against liability and leaving the employee to assert that
immunity in litigation. Rather, by its precise terms and its
underlying policy, the statute meant to lift the case into a
federal forum and relieve the employee from the cost and
effort of defending the case if the Attorney General issues
__
the certificate.4 A certificate having issued in this case,
surely Owens should not be deprived of the advantage of
having the government defend the case, a protection that a
negligent postal employee would gain as a matter of course.
Turning to precedent, the Supreme Court has not yet
____________________
3The Supreme Court has been equally concerned, in
fashioning immunity doctrine, with "the general costs of
subjecting officials to the risks of trial--distraction of
officials from their governmental duties, inhibition of
discretionary action, and deterrence of able people from
public service." Harlow v. Fitzgerald, 457 U.S. 800, 816
______ __________
(1982).
4The statute directs "substitution" of the United States
for the defendant immediately upon issuance of the
certificate, it removes the case if pending in state court,
and it gives the defendant who is denied a certificate an
immediate right to challenge this decision before the judge.
28 U.S.C. 2679(d)(1), (2), (3). See also H.R. Rep. No.
___ ____
700, 100th Cong., 2d Sess. 2 (1988).
-34-
34
addressed the issue in this case, but it has spoken recently
and emphatically about the procedures for resolving immunity
questions. The single thread that runs through these recent
decisions is that immunity-related issues should be decided
________________________________________________
by the judge and at the earliest opportunity.5 It is, as
_______________________________________________
the Supreme Court has said, not only immunity from ultimate
liability after trial but also immunity from the burden of
going to trial at all that matters. Mitchell v. Forsyth, 472
________ _______
U.S. 511, 526 (1985). If the certificate in this case is
invalidated without a factual finding, Owens will face the
burden of going to trial even though the evidentiary hearing
might show that at all times he conducted himself properly
and within the scope of his office.
As for circuit court precedent relating to the Westfall
Act itself, our own Nasuti decision directly supports the
______
view that "where the facts underlying the scope certificate
are disputed, . . . the matter [must] be independently
resolved by the court . . . ." 906 F.2d at 813. Although a
panel decision is not binding on an en banc court, we
__ ____
continue to find the reasoning in Nasuti persuasive and do
______
____________________
5See, e.g., Hunter v. Bryant, 112 S. Ct. 534, 537 (1991)
___ ____ ______ ______
("Immunity ordinarily should be decided by the court long
before trial."); Siegert v. Gilley, 111 S. Ct. 1789, 1793-94
_______ ______
(1991) (same); Anderson v. Creighton, 483 U.S. 635, 646 n.6
________ _________
(1987) ("qualified immunity questions should be resolved at
the earliest possible stage"); Mitchell v. Forsyth, 472 U.S.
________ _______
511, 526 (1985) (same); Davis v. Scherer, 468 U.S. 183, 195
_____ _______
(1984) (same); Harlow v. Fitzgerald, 457 U.S. 800, 818
______ __________
(1982)(same).
-35-
35
not think the case distinguishable from this one. Other
circuits, in accord with Nasuti, have held or assumed that
______
the district judge may resolve facts that arise in the course
of a challenge to a certificate. See, e.g., Schrob v.
___ ___ ______
Catterson, 967 F.2d 929, 936 (3d Cir. 1992); Brown v.
_________ _____
Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991).
_________
The only circuit "precedent" to the contrary is a very
brief statement in McHugh v. University of Vermont, 966 F.2d
______ ______________________
67 (2d Cir. 1992). With respect, this statement is buried at
the end of a long opinion addressed to different issues and
may well be qualified by the sentence that immediately
follows. Id. at 74. It is by no means clear that the court
__
thought it was deciding the issue presented in this case, and
it certainly gave no reasons for deciding it one way or the
other, which strongly reinforces the inference that it did
not intend to decide the issue at all.
Finally, while this is the least weighty of reasons, we
think that the reading urged by the government is the one
most consistent with sound administration of the statute. It
seems quite likely that the evidentiary hearing before the
district judge would be an efficient course: if Owens'
version of events were accepted after the hearing, that
finding would sustain the certificate and (by collateral
estoppel) dispose of Wood's claim on the merits at the same
time. If instead Wood's version were accepted, then we think
-36-
36
Owens would similarly be bound by the result; he would be
resubstituted as a defendant, and the case would proceed
before a jury on other unadjudicated issues, such as the
issue of damages.6
By contrast, under the majority's approach, district
courts--and ultimately this court--will continue to engage in
difficult, time-wasting controversies (like this one) about
precisely which facts pertaining to the scope of employment
____________
issue are for the district judge and which are for the jury.
Hair splitting distinctions and anomalous results will
multiply.7 If Congress commanded this course, then it
should be obeyed. But there is no reason to inflict these
hardships upon ourselves and the judicial process when
Congress' statute and its policy both look in the opposite
direction.
III.
____________________
6If the employee is content to have the government
substitute itself for him to defend his conduct, then we
think that his interests and the government's are
sufficiently aligned for collateral estoppel to operate
against him. See Montana v. United States, 440 U.S. 147, 154
___ _______ _____________
(1979) (one who assists in the prosecution or defense of an
action in aid of some interest of his own is bound);
Restatement (Second) of Judgments 39.
7For example, suppose Wood said she had been offensively
touched but Owens said he touched her only accidentally as he
was handing her a stack of correspondence. If the Attorney
General then granted a certificate, there would be an
"incident" and a clear scope of employment issue. Presumably
the certificate could not be set aside without a district
court factual finding. Why this case should follow a
different procedural course is hard to understand.
-37-
37
The arguments against the resolution we propose
should be faced head on. The main adverse consequence,
perhaps the only practical argument against our reading, is
that it deprives the plaintiff of trial by jury on an issue
that goes to the heart of the merits, as well as to the
validity of the certificate. That common issue, turning
directly on credibility in this case, may be well suited for
jury resolution. This is not a small objection; the right to
jury trial as at common law is preserved by the Seventh
Amendment itself. While the Seventh Amendment ex proprio
__________
vigore does not apply in this case, courts are protective of
______
jury trial, e.g., Pernell v. Southall Realty, 416 U.S. 363
____ _______ _______________
(1974), and do not lightly read an ambiguous statute to cut
off the opportunity of a litigant to obtain a jury.8
Yet under the Westfall Act the inevitable and deliberate
effect of what Congress has done is to supplant the jury for
__
all cases within the ken of that statute, including cases
where the scope question goes to the heart of the merits. In
the ordinary tort claim arising when a government driver
negligently runs into another car, jury trial is precisely
what is lost to a plaintiff when the government is
substituted for the employee. Because claims against the
____________________
8The Seventh Amendment does not apply because there is
no constitutional right to a trial by jury against the United
States. See Lehman v. Nakshian, 453 U.S. 156, 160 (1981).
___ ______ ________
Through the statute and the certificate, Congress has made
this suit at present one against the United States.
-38-
38
United States are not normally subject to jury trial, 28
U.S.C. 2402, neither the plaintiff's claim of negligence
nor the question of damages is submitted to a jury. A case
of "deliberate" harm, such as might arise if a prison guard
or an FBI agent were sued for assault, could equally result
in a bench trial on the merits. See 28 U.S.C. 2680(h).
___
Policy concerns would be quite different if the Attorney
General's certificate were allowed to preclude any judicial
adjudication of Wood's claim. However, the government has
abandoned its earlier position (which we rejected in Nasuti)
______
that its certificate is conclusive and now disowns a recent
circuit decision that reaches such a result, Johnson v.
_______
Carter, 983 F.2d 1316 (4th Cir. 1993). Under our reading of
______
the statute, the plaintiff simply gets an adjudication on one
issue by the trial judge instead of a jury, with adequate
discovery and full opportunity to present and cross-examine
witnesses, which is the way that plaintiffs normally proceed
against the government. And given that substitution has
occurred, this is a case against the government unless and
__
until the certificate is set aside.
With respect, the more technical arguments of the
majority seem to us unpersuasive. In framing the Westfall
Act, Congress no doubt had in mind the classic case in which
"the wrongdoing" (if it occurred) was the type for which the
government would be responsible under respondeat superior
__________ ________
-39-
39
doctrine. But a claim of perfect symmetry between the
certifiable conduct (under the Westfall Act) and government
liability (under the Federal Tort Claims Act) is refuted, and
definitively so, by United States v. Smith, 111 S. Ct. 1180
______________ _____
(1991). Smith held that the Westfall Act immunizes the
_____
employee for conduct within the scope of employment even if
_______
there is no remedy against the United States. Id. at 1185.
__
Accord, H. Rep. No. 700, supra, p. 6.
______ _____
Similarly, it seems to us beside the point that Congress
plainly did not intend to grant immunity to employees who act
egregiously. Owens has not been found to have molested
_____
anyone; he is charged with misconduct, just as a postal
_______
employee might be accused of negligent driving or an FBI
agent of assault during the arrest of a suspect. If Owens is
found by the district judge to have engaged in harassment, he
will not have immunity and will be personally liable. Until
that happens, the certificate affords him the procedural
advantages of government substitution and representation.
The majority also relies upon the House Report on the
Westfall Act, which states that "[i]f an employee is accused
of egregious misconduct, rather than negligence or poor
judgment, then the United States may not be substituted as
the defendant, and the individual employee remains liable."
H. Rep. No. 700, supra, p. 5. There is no hint that Congress
_____
meant to place any weight on the word "accused." From the
-40-
40
prior and succeeding sentences, it appears that the House
Report was simply assuring readers that the United States
would not take on the burden of paying for the egregious
torts of employees plainly committed outside the scope of
employment. See id. That result will be achieved whether
___ ___
the judge or jury makes the initial determination of what
happened.
Finally, the majority's broadest but we think least
persuasive argument is its intimation that Congress would be
dismayed to discover that its statute applied to Owens.
Certainly Congress would be shocked if harassment were held
to be covered by official immunity, but no one is suggesting
that it is. Congress could not be shocked to discover that
its statute might apply where intentional harm was charged,
since intentional harm clearly is covered in some cases.9
The reality is that Congress in this case, as with many
statutes, probably did not think one way or the other about
unusual applications, and it is an illusion to think that one
knows just what Congress would have thought if it had faced
the precise issue in this case.
In such cases, the court's job is not to speculate about
____________________
9Notably, the Federal Tort Claims Act itself waives the
government's sovereign immunity for claims of assault,
battery and false imprisonment by law enforcement officers.
28 U.S.C. 2679(h). It must be undisputed that an
individual FBI agent, if sued for assault during an arrest,
could obtain a valid Westfall Act certificate.
-41-
41
legislative intent that never existed. Rather, our task is
to piece out the statutory edifice as best we can, "giv[ing]
coherence to what Congress has done within the bounds imposed
by a fair reading of [the] legislation." Achilli v. United
_______ ______
States, 353 U.S. 373, 379 (1957). And if Congress is
______
displeased when it sees how its general language and purpose
have been fitted to the case, it is always open to Congress
to refine its statute.
Having stated our view as to what the statute requires, we
want to make clear that the charge made by Wood against Owens
is a very serious one involving--if the allegations are true-
-multiple abuses of Owens' position as a government official
as well as continuing sexual harassment. Nothing in this
opinion should suggest that Wood's version of events is
unsubstantial or implausible. We simply do not know: The
Attorney General's certificate may be well founded or it may
rest on a faulty factual premise. Our concern is simply to
have the validity of the certificate and the correctness of
its premise determined swiftly and at the outset, in
accordance with Congress' statutory plan.
For the reasons stated, we would vacate the order of the
district court and remand the case for an evidentiary hearing
to determine whether Owens, in his conduct vis a vis Wood,
acted solely within the scope of his office or employment.
-42-
42
Document Info
Docket Number： 91-1323
Filed Date： 4/30/1993
Precedential Status： Precedential
Modified Date： 3/3/2016