Bowles v. United States

16-1375-cv(L)
Bowles v. O’Connell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of March, two thousand seventeen.
PRESENT: REENA RAGGI,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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BRIAN M. BOWLES,
Plaintiff-Appellee,
v. Nos. 16-1375-cv (L)
16-1402-cv (CON)
UNITED STATES OF AMERICA, ROSI O’CONNELL,
DENNIS O’CONNELL,
Defendants-Appellants.
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APPEARING FOR APPELLANT, EDWARD HIMMELFARB, Attorney,
UNITED STATES OF AMERICA: Appellate Staff, Civil Division, United States
Department of Justice, for Eric S. Miller,
United States Attorney for the District of
Vermont, Burlington, Vermont and Benjamin
C. Mizer, Principal Deputy Assistant Attorney
General, United States Department of Justice,
Washington, D.C.
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APPEARING FOR APPELLANTS, JOHN D. WILLEY, JR., Boylan Associates,
ROSI and DENNIS O’CONNELL: P.C., Springfield, Vermont.
APPEARING FOR APPELLEE: DAVID BOND, Strouse & Bond, PLLC,
Burlington, Vermont.
Appeal from an order of the United States District Court for the District of
Vermont (Christina Reiss, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order entered on February 29, 2016, is AFFIRMED in part and
REVERSED in part.
Defendants, the United States of America, Rosi O’Connell (“O’Connell”), and
Dennis O’Connell (collectively, “defendants”), appeal from so much of the district
court’s order as struck, in part, the United States Attorney General’s certification under
the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the
“Westfall Act”), Pub. L. No. 100–694, 102 Stat. 4563 (1988) (codified at 28 U.S.C.
§ 2671 et seq.) that O’Connell was acting within the scope of her employment by the
United States Postal Service (“USPS”) when she made allegedly defamatory statements
to third parties reporting that her former co-worker, plaintiff Brian M. Bowles, had
assaulted her.1 Bowles argues that we lack jurisdiction over this appeal, and that, in any
event, certification was not warranted as to any of O’Connell’s allegedly defamatory
1
The certification was made by the United States Attorney for the District of Vermont as
the Attorney General’s delegate. See Osborn v. Haley, 549 U.S. 225, 230–31 (2007).
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statements.2 We assume the parties’ familiarity with the facts and record of prior
proceedings, which we reference only as necessary to explain our decision to affirm in
part and reverse in part.
1. Appellate Jurisdiction
Under the Westfall Act, the United States may remove a state court civil case
against a federal employee to federal court and substitute itself as the proper party
defendant upon certification by the Attorney General that the employee was acting within
the scope of her employment at the time of the alleged claim. See 28 U.S.C. § 2679(d);
Osborn v. Haley, 549 U.S. 225, 233–34 (2007). The certification is subject to de novo
judicial review, and the district court may strike such certification to the extent it finds
that the defendant employee was not in fact acting within the scope of her employment.
See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995); McHugh v. Univ. of
Vt., 966 F.2d 67, 74–75 (2d Cir. 1992). Because decertification effectively denies the
employee Westfall Act immunity “not simply from liability, but from suit,” it is deemed a
“final decision” reviewable under the collateral-order doctrine. Osborn v. Haley, 549
U.S. at 238. Bowles does not dispute this proposition generally. He argues it is
inapplicable here, contending that the challenged order is intertwined with the merits
because false reporting was not within the scope of O’Connell’s employment, and the
statements’ falsity is at issue.
2
Bowles does not cross-appeal, but only defends the district court’s decision to strike
portions of the government’s certification.
3
The argument fails because, as Osborn instructs, on certification review, the scope
of employment inquiry addresses whether O’Connell’s allegedly defamatory statements
were made “on duty at the time and place of an ‘incident’ alleged in a complaint.” Id. at
247 (internal quotation marks omitted). The truth or falsity of the statements is not then
at issue. “Were it otherwise, a federal employee would be stripped of suit immunity not
by what the court finds, but by what the complaint alleges,” and it “would make scant
sense to read the Act as leaving an employee charged with an intentional tort to fend for
himself when he denies wrongdoing and asserts [that] he engaged only in proper behavior
occurring wholly within the scope of his office or employment.” Id. at 247–48 (internal
quotation marks and footnote omitted); see also id. at 250–51 (explaining that
government is not required to accept as true plaintiff’s allegations that defendant acted
“maliciously” or for purposes of “retaliation” in defending Westfall Act certification).
Whether certain of O’Connell’s statements were made in the scope of her employment
thus does not address the merits of the defamation claim, but the threshold question of
whether O’Connell—rather than the United States—need defend claims relating to those
statements.3 See id. at 238–39 (“By rejecting the Attorney General’s certification, the
district court subjects the employee to the burden of defending a suit . . . , a burden from
3
Bowles does not argue that interlocutory review is unwarranted insofar as claims
relating to some of O’Connell’s statements may proceed to trial, nor would such an
argument warrant any different conclusion. See New York State Nat’l Org. for Women
v. Pataki, 261 F.3d 156, 160 (2d Cir. 2001) (noting, in context of qualified immunity, that
partial denial of immunity qualifies as collateral order); see also Lyons v. Brown, 158
F.3d 605, 607 (1st Cir. 1998) (concluding, in Westfall Act case, that interlocutory appeal
lies “from a denial of immunity even if granting it would not resolve the entire case”).
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which the Westfall Act spares him.” (alterations and internal quotation marks omitted));
see also Wuterich v. Murtha, 562 F.3d 375, 381–83 (D.C. Cir. 2009) (deeming decision
denying Westfall Act certification pending discovery in defamation case subject to
review as collateral order).
We therefore conclude that the immunity determination is distinct from the merits
and that we possess appellate jurisdiction to review the district court’s order insofar as it
struck the scope-of-employment certification in part.
2. Scope-of-Employment Certification
The United States appeals from only so much of the district court’s decertification
order as pertained to O’Connell’s statements reporting (1) the alleged April 2012 assault
to a substitute postmaster, and (2) the October 2012 assault allegedly committed by
Bowles to postal supervisors and the police. The O’Connells join in this challenge and
further appeal decertification for statements (3) to non-supervisory co-workers regarding
the April 2012 incident, and (4) to a newspaper reporter regarding both incidents.
Bowles defends the decertification of all these statements by reiterating his argument that
false statements were outside the scope of O’Connell’s employment. We review the
district court’s legal conclusions regarding the denial of immunity de novo, and its factual
findings for clear error. See Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d
Cir. 2015) (federal sovereign immunity); Bello v. United States, 93 F. App’x 288, 289–90
(2d Cir. 2004) (Westfall Act immunity specifically).
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The Attorney General’s certification to the district court constitutes “prima facie
evidence that the employee was acting within the scope of his employment.” Wuterich
v. Murtha, 562 F.3d at 381 (internal quotation marks omitted). Thus, “[t]he United
States . . . must remain the federal defendant in the action unless and until the District
Court determines that the employee, in fact, and not simply as alleged by the plaintiff,
engaged in conduct beyond the scope of his employment.” Osborn v. Haley, 549 U.S. at
231 (emphasis in original). Whether the employee was in fact acting within the scope of
his or her employment for purposes of the Westfall Act is determined by reference to
“principles of respondeat superior of the state in which the alleged tort occurred.”
Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 2017) (internal quotation marks omitted); see
McHugh v. Univ. of Vt., 966 F.2d at 75. Vermont adopts the scope-of-employment
standard in the Restatement (Second) of Agency, see Doe v. Forrest, 176 Vt. 476, 483,
853 A.2d 48, 54 (2004), which recognizes employee conduct as within the scope of
employment only if,
(a) it is of the kind [the individual] is employed to perform;
(b) it occurs substantially within the authorized time and space limits [of the
employment];
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used . . . the use of force is not unexpectable by the
master.
Restatement (Second) of Agency § 228(1) (1958). While conduct must take place
within these parameters to be within the scope of employment, the employer need not
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“specifically authorize the precise action the [employee] took.” Sweet v. Roy, 173 Vt.
418, 431–32, 801 A.2d 694, 704 (2002).
a. Veracity of the Alleged Misstatements
Insofar as Bowles relies on his own allegations of falsity to argue that O’Connell’s
statements were outside the scope of her employment, we have already explained why
that disputed merits issue does not govern certification review. See Osborn v. Haley,
549 U.S. at 248–51; Wuterich v. Murtha, 562 F.3d at 384–87. To the extent Justice
Breyer took a different view, see Osborn v. Haley, 549 U.S. at 254 (Breyer, J., concurring
in part and dissenting in part) (“[W]here the incident, if it took place at all, must have
fallen outside the scope of employment, the Act does not permit certification.” (emphasis
in original)), it was not adopted by the Osborn majority, see id. at 248 (majority opinion)
(rejecting view that “employee charged with an intentional tort” should be left “to fend
for himself when he denies wrongdoing”); id. at 249–50 (stating that applicability of
Westfall Act should not be controlled by “the plaintiff’s allegations”), whose decision
controls here, see generally Balintulo v. Daimler AG, 727 F.3d 174, 190 (2d Cir. 2013)
(“Lower courts are . . . without authority to ‘reinterpret’ the [Supreme] Court’s binding
precedent . . . .”). In any event, Vermont does not deem conduct outside the scope of
employment simply because, if proved, it would constitute an intentional tort. See
Restatement (Second) of Agency § 231 (“An act may be within the scope of employment
although consciously criminal or tortious.”); accord Sweet v. Roy, 173 Vt. at 432, 801
A.2d at 704–05.
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Accordingly, this court, like the district court, declines to hold that Bowles’s
allegations of falsity remove O’Connell’s reports from the scope of her employment.
b. Statements to Postmaster Relief Regarding April 2012 Incident
The district court upheld the government’s certification insofar as O’Connell,
pursuant to USPS policy, reported the alleged April 2012 assault to her supervisors, but it
held certification unwarranted insofar as O’Connell also reported the assault to her
postmaster relief, whom the district court appears to have considered a non-supervisory
USPS employee.
We cannot agree. Bowles does not dispute that instances of co-worker violence
must be reported to supervisors, and the record indicates that the postmaster relief
performs the same supervisory duties as the postmaster in the latter’s absence.
Moreover, an individual reporting such an incident to the postmaster relief would be no
less “actuated . . . by a purpose to serve” her employer than one reporting the incident to
other supervisory employees. See Restatement (Second) of Agency § 228(2).
Accordingly, we reverse decertification as to O’Connell’s report to the postmaster relief.
c. Statements to Police Officers and Supervisors Regarding the October 2012
Incident
The district court deemed O’Connell’s reports of the October 2012 incident to be
outside the scope of her employment because the alleged assault occurred at her home
after work hours, and O’Connell characterized the incident as “not a postal issue.” J.A.
291. We conclude that decertification was unwarranted insofar as O’Connell reported
the incident to police and supervisors. USPS policy requires postal employees to report
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to such persons acts of violence by a co-worker, even if the co-worker has already been
terminated, and whether or not the incident occurs at work. The propriety of the
government’s scope certification thus turned on the time and place not of the alleged
assault but of her reports, see Restatement (Second) of Agency § 228(1)(b), and on
whether those reports to police officers and supervisors served the purpose of her
employer, see id. § 228(1)(c). O’Connell’s quoted statement is not a concession to the
contrary because, at the same time, she stated that “she felt she should let [her employer]
know since [the assault] may possibly involve the former [Highway Contract Routes]
driver who she had [workplace] problems with before.” J.A. 133. We therefore
reinstate the certification as to reports of the October 2012 incident to police and
supervisors.
d. Statements to Co-Workers Regarding April 2012 Incident
At the same time, we affirm decertification with regard to statements to
non-supervisory co-workers. The O’Connells cite no USPS policy requiring alleged
assaults by co-workers to be reported not only to supervisors but also to all other
co-workers. Nor do they provide any basis for O’Connell to think that Bowles posed a
threat of physical harm to persons other than herself.
e. Statements to Newspaper Reporter Regarding Both Incidents
We similarly affirm decertification as to statements regarding both alleged assaults
that O’Connell made to a newspaper reporter. While O’Connell, as postmaster, served
as USPS’s local media representative, she was specifically advised by her superiors not to
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speak to the media with respect to the assaults she attributed to Bowles. We therefore
identify no error in the district court’s conclusion that, in discussing the alleged assaults
with a newspaper reporter, O’Connell was acting in a personal capacity, and not serving
her employer’s interests.
3. Conclusion
We have considered the parties’ other arguments and conclude that they are
without merit. Accordingly, we AFFIRM the district court’s order insofar as it denied
Westfall Act certification and substitution as to O’Connell’s statements to
non-supervisory co-workers regarding the April 2012 incident and to a newspaper
reporter regarding both incidents, and we REVERSE that order insofar as it denied such
certification and substitution as to O’Connell’s statements to the postmaster relief
regarding the April 2012 incident, and her statements to police officers and supervisors
regarding the October 2012 incident. We REMAND for further proceedings consistent
with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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