DeMartinez v. DEA

Filed: May 5, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1156

(CA-93-55-A)

Katia Gutierrez De Martinez, et al,

Plaintiffs - Appellants,

versus

Drug Enforcement Administration, et al,

Defendants - Appellees.

O R D E R

The Court amends its opinion filed April 24, 1997, as

follows:

On page 5, first full paragraph, lines 6-9 -- The

sentence is changed to read: "Both parties agree that the scope-of-

employment question under the Westfall Act is one of law.

Accordingly, we review the district court's ultimate resolution of

the scope-of-employment question under a de novo standard."

On page 5, footnote 3 -- the note is changed to begin:

"As discussed infra at page 7-9, we review for clear error any

- 2 -

factual findings upon which the legal scope-of-employment deter-

mination rests. Moreover, this is a separate question . . . ."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KATIA GUTIERREZ DEMARTINEZ;

EDUARDO MARTINEZ PUCCINI; HENRY

MARTINEZ DEPAPAIANI,

Plaintiffs-Appellants,

v.

DRUG ENFORCEMENT ADMINISTRATION;

No. 96-1156

UNITED STATESOF AMERICA,

Defendants-Appellees,

and

DIRK A. LAMAGNO,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-93-55-A)

Argued: January 29, 1997

Decided: April 24, 1997

Before HAMILTON, WILLIAMS, and MICHAEL,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in

which Judge Hamilton and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Isidoro Rodriguez, LAW OFFICE OF ISIDORO RODRI-

GUEZ, Barranquilla, Colombia, for Appellants. Rachel Celia Ballow,

Assistant United States Attorney, Alexandria, Virginia, for Appellees.

ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria,

Virginia, for Appellees.

WILLIAMS, Circuit Judge:

Katia Gutierrez de Martinez, Eduardo Martinez Puccini, and Henny

Martinez de Papaiani (Appellants) appeal from the district court's

conclusion that Drug Enforcement Agency (DEA) Special Agent Dirk

A. Lamagno was acting within the scope of his federal employment

when his vehicle collided with that of Appellants. After reviewing the

scope-of-employment certification issued by the Attorney General's

designate on behalf of Lamagno, the district court dismissed

Lamagno, substituted the United States as the proper defendant, see

28 U.S.C.A. § 2679(d)(1) (West 1994), and dismissed the action

against the United States for lack of subject-matter jurisdiction, see

28 U.S.C.A. § 2680(k) (West 1994). Prior to this case, we have not

allowed review of scope-of-employment certifications, thus we must

first consider the appropriate standards under which this review is to

be conducted. Because we conclude that the district court followed

the correct review procedure and reached the right result, we affirm.

I.

After leaving a restaurant in Barranquilla, Colombia, on the eve-

ning of January 18, 1991, Lamagno was driving his government-

issued Ford Bronco when he collided with a car driven by Gutierrez

de Martinez. Gutierrez de Martinez and her passengers, Martinez Puc-

cini and Martinez de Papaiani, were injured. The undisputed facts are

that Lamagno had a female passenger; that the restaurant was only

two blocks from the hotel where Lamagno was staying; that the acci-

dent occurred more than 20 blocks from either the hotel or the restau-

rant; that at the time of the accident, Lamagno was driving in the

opposite direction from the hotel; and that Lamagno had been drink-

ing.

The parties differ, however, in explaining these facts. Lamagno

claims that he and Julia Bermann, an intelligence analyst with the

DEA, were attending a DEA office dinner where official business was

discussed. After the meeting and in accordance with DEA policy that

2

female agents not travel alone after dark, Lamagno was assigned to

escort Bermann to the hotel where both were staying. Lamagno and

Bermann assert that they became lost in the unfamiliar streets of Bar-

ranquilla. He further maintains that although he had been drinking, he

was not intoxicated at the time of the accident. Appellants, on the

other hand, claim that the restaurant was a "DEA hangout" and that

Lamagno drank alcohol there before leaving with"an unidentified

thin Hispanic looking woman with long black hair." (Appellant's Br.

at 4.) They also claim that Lamagno violated local traffic laws by

driving recklessly and by ignoring the right-of-way, that there was no

DEA policy requiring females to be accompanied after dark, and that

Lamagno's passenger was not a federal employee.

Based on these allegations, on January 16, 1993, Appellants filed

a common-law tort action, invoking diversity jurisdiction, in the Dis-

trict Court for the Eastern District of Virginia against Lamagno, the

DEA, and the United States.1 The United States Attorney for that dis-

trict issued a one paragraph scope-of-employment certification for

Lamagno on March 4, 1993, stating that Lamagno was acting within

the scope of his employment as a DEA agent when the accident

occurred. The district court, relying on Johnson v. Carter, 983 F.2d

1316 (4th Cir. 1993) (en banc), held that the certification was conclu-

sive and unreviewable. Accordingly, on March 5, 1993, the district

court dismissed Lamagno and substituted the United States in his

place. See 28 U.S.C.A. § 2679(d)(1) (West 1994). Thereafter, the dis-

trict court dismissed the United States for lack of subject-matter juris-

diction under the foreign claims exception to the Federal Tort Claims

Act (FTCA). See 28 U.S.C.A. § 2680(k) (West 1994).

This court, also relying on Johnson, agreed that the certification

was unreviewable and therefore affirmed. See Gutierrez de Martinez

v. Lamagno, 23 F.3d 402 (4th Cir. 1994) (per curiam) (unpublished).

Recognizing that the Circuits were split, the Supreme Court granted

certiorari, reversed, and remanded the case to this court for further

_________________________________________________________________

1 Appellants, prevented from filing suit in Colombia because of diplo-

matic immunity, also filed an administrative claim with the DEA on May

8, 1991. They sought relief under 21 U.S.C.A. § 904 (West 1994), which

provides a discretionary remedy for torts that arise from DEA operations

in a foreign country. This claim is still pending.

3

proceedings.2 See Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227,

2237 (1995). We remanded the case to the district court. When the

district court reopened the case, the United States Attorney for the

Eastern District of Virginia refiled the certification that Lamagno was

acting within the scope of his employment. Later, Appellants

requested limited discovery and an evidentiary hearing. The United

States submitted a memorandum in opposition, requesting an in cam-

era judicial determination of the challenge to the scope-of-

employment certification. Thereafter, the district court ordered the

parties to submit briefs, affidavits, and documentary evidence on the

issue of Lamagno's scope of employment. Appellants moved to file

a second amended complaint, and the United States filed a motion to

substitute itself for Lamagno, see 28 U.S.C.A. § 2679(d)(1), and to

dismiss the claim against the United States, see 28 U.S.C.A. §

2680(k).

After considering the parties' briefs and numerous submissions,

and after hearing argument by counsel for both parties, the district

court ruled that additional discovery would not develop any facts

material to the scope-of-employment question. The district court then

upheld the scope-of-employment certification, again substituted the

United States for Lamagno, and dismissed the action against the

United States. Appellants appeal only the scope-of-employment deci-

sion, conceding that an action against the United States is barred by

the foreign claims exception to the FTCA.

II.

In response to Westfall v. Erwin, 484 U.S. 292 (1988), which held

that federal employees could claim absolute immunity from state-law

tort actions only if their conduct was "within the outer perimeter of

an official's duties and . . . discretionary in nature," id. at 300, Con-

gress enacted the Federal Employees Liability Reform and Tort Com-

pensation Act of 1988, see Pub. L. No. 100-694, §§ 5-6, 102 Stat.

4564 (codified at 28 U.S.C.A. § 2679 (West 1994)) (commonly called

_________________________________________________________________

2 The Supreme Court left intact our dismissal of Appellants' "headquar-

ters" claim for negligence by the DEA and 42 U.S.C.A. § 1981 (West

1980) claim for discriminatory acts by the DEA. Therefore, these claims

are not at issue here.

4

the Westfall Act). In addition to rejecting the specific holding of

Westfall, the Westfall Act provided:

Upon certification by the Attorney General that the defen-

dant employee was acting within the scope of his office or

employment at the time of the incident out of which the

claim arose, any civil action or proceeding commenced

upon such claim in a United States district court shall be

deemed an action against the United States under the provi-

sions of this title and all references thereto, and the United

States shall be substituted as the party defendant.

28 U.S.C.A. § 2679(d)(1). By regulation, the United States Attorneys

are authorized to issue certifications on behalf of the Attorney Gen-

eral. See 28 C.F.R. § 15.3(a) (1996). As noted above, we have previ-

ously declined to review certifications issued under the Westfall Act.

See Johnson v. Carter, 983 F.2d 1316 (4th Cir. 1993) (en banc). How-

ever, in light of the Supreme Court's decision in Gutierrez de Marti-

nez v. Lamagno, 115 S. Ct. 2227 (1995), this position is no longer

tenable.

The fundamental question on appeal, then, is the propriety of the

district court's conclusion on remand that Lamagno was acting within

the scope of his employment at the time of the accident. Because we

have not previously allowed the review of scope-of-employment cer-

tifications, it is necessary to determine the correct standards to apply.

Both parties agree that the scope-of-employment question under the West-

fall Act is one of law. Accordingly, we review the district court's

ultimate resolution of the scope of employment questions under a de

novo standard.3 See Lawson v. United States, 103 F.3d 59, 60 (8th Cir.

1996) (stating that the appellate court "review[s] the scope-of-

employment determination de novo"); Aversa v. United States, 99

F.3d 1200, 1210 (1st Cir. 1996) (noting, in a Westfall Act case, that

"[w]e review the district court's scope of employment determination

_________________________________________________________________

3 As discussed infra at pages 7-9, we review for clear error any

factual findings upon which the legal scope-of-employment determination

rests. Moreover, this is a separate question from the standard under

which the certification itself is to be reviewed. Here, we note only

that review of the district court's scope-of-employment determination

is de novo; we consider the underlying question -- under what standard

the certification is reviewed in the first instance -- infra at pages

8-13.

5

de novo"); Coleman v. United States, 91 F.3d 820, 823 (6th Cir. 1996)

(stating that a scope-of-employment certification is "reviewable . . .

on the appellate level as a question of law under a de novo standard").

The Westfall Act, in conjunction with the FTCA, makes clear that

a plaintiff seeking relief against a federal employee is not entitled to

a jury trial on the scope-of-employment issue, even if the relevant

state law would provide a jury trial. See Brown v. Armstrong, 949

F.2d 1007, 1011-12 (8th Cir. 1991) (rejecting plaintiff's claim that a

jury trial was required on scope-of-employment question). Under the

Westfall Act, "[u]pon certification, any action or proceeding subject

to [28 U.S.C.A. § 2679(d)(1), (d)(2), or (d)(3)] shall proceed in the

same manner as any action against the United States filed pursuant to

section 1346(b) of this title and shall be subject to the limitations and

exceptions applicable to those actions." 28 U.S.C.A. § 2679(d)(4); see

also 28 U.S.C.A. § 1346(b) (West 1993). One of the "limitations and

exceptions" applicable to a suit under § 1346(b) is that "[a]ny action

against the United States under section 1346 shall be tried without a

jury." 28 U.S.C.A. § 2402 (West 1994). Because the possible liability

of the United States turns in principal part upon the resolution of the

scope-of-employment question, and because suits against the govern-

ment are not "suits at common law" as contemplated by the Seventh

Amendment, the denial of the right to a jury trial under the Westfall

Act, like the denial of a jury trial under the FTCA, does not offend

the Seventh Amendment. See U.S. Const. Amend. VII; see also

Salmon v. Schwarz, 948 F.2d 1131, 1142 (10th Cir. 1991) (observing

that "[t]he denial of a jury trial under the FTCA does not run afoul

of the Seventh Amendment"); cf. McElrath v. United States, 102 U.S.

426, 440 (1880) (suits against the government in the Court of Claims

are not "suits at common law" under the Seventh Amendment).

Therefore, the district court may resolve disputed issues of fact in

considering a challenge to a scope-of-employment certification. If the

district court does resolve disputed issues of fact, we review these fac-

tual findings for clear error. See Billings v. United States, 57 F.3d

797, 800 (9th Cir. 1995) (noting, in a Westfall Act case, that the court

"review[s] the relevant district court's findings of disputed fact for

clear error"); Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (explain-

ing that "[w]here facts relevant to [the scope-of-employment] inquiry

are in dispute, . . . we review the district court's factual findings for

clear error").

6

The remaining question, then, is the procedure by which the district

court is to review the Attorney General's certification.4 Courts that

have considered the issue, including those that allowed review of

scope-of-employment certifications before the Supreme Court's deci-

sion in this case, have fashioned a fairly uniform body of law govern-

ing review at the district court level. The Attorney General's

certification is conclusive unless challenged. See Billings, 57 F.3d at

800. When the certification is challenged, it serves as prima facie evi-

dence and shifts the burden to the plaintiff to prove, by a preponder-

ance of the evidence, that the defendant federal employee was acting

outside the scope of his employment. See Palmer v. Flaggman, 93

F.3d 196, 198-99 (5th Cir. 1996) (stating that "the burden of proof lies

with the plaintiff to show that the Attorney General's initial decision

was incorrect" (footnote omitted)); Coleman, 91 F.3d at 823 (stating

that "the Attorney General's certification provides prima facie evi-

dence that an employee's conduct is within the scope of employ-

ment"); Flohr v. Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996)

(stating that "the Attorney General's certification is prima facie evi-

dence that the employee acted within the scope of his employment");

Anthony v. Runyon, 76 F.3d 210, 213, 215 (8th Cir. 1996) (noting that

"Westfall certification acts as prima facie evidence that the defendants

were acting within the scope of their employment," and that after cer-

tification, "plaintiffs have the burden of coming forward with specific

evidence in rebuttal" (internal quotation marks omitted)); see also

Billings, 57 F.3d at 800 (holding that "[c]ertification by the Attorney

General is prima facie evidence that a federal employee was acting in

the scope of her employment"); Kimbro v. Velten, 30 F.3d 1501, 1509

(D.C. Cir. 1994) (explicitly agreeing with the Third Circuit's view

that a certification is "entitled to `prima facie' effect" and "obliges the

plaintiff to come forward after reasonable discovery with evidence

supporting his allegations both as to scope and as to the merits" (cita-

tions omitted)); Schrob v. Catterson, 967 F.2d 929, 935 (3d Cir. 1992)

_________________________________________________________________

4 Because Appellants filed the action in federal court on the basis of

diversity jurisdiction, this is not a case where removal is an issue. See 28

U.S.C.A. § 2679(d)(2) (West 1994). Moreover, because the Attorney

General's designate did in fact issue a scope-of-employment certifica-

tion, this case does not involve a petition by the defendant federal

employee for certification by the district court. See 28 U.S.C.A.

§ 2679(d)(3) (West 1994).

7

(explaining that the Attorney General's scope-of-employment "certifi-

cation, although subject to judicial review, is prima facie evidence

that the employee's challenged conduct was within the scope of

employment," and requiring that the plaintiff "come forward with spe-

cific facts rebutting the certification"); Hamrick v. Franklin, 931 F.2d

1209, 1211 (7th Cir. 1991) (holding that "the plaintiffs have the bur-

den of showing that the defendants' conduct was not within the scope

of employment"). In assessing whether the plaintiff has rebutted the

prima facie case, however, the district court should not defer to the

Attorney General's certification, but should instead review the ques-

tion de novo. See Palmer, 93 F.3d at 198-99 (stating that it gave "no

judicial deference to the Attorney General's findings"); Anthony, 76

F.3d at 213 (stating that "the district court must independently review

the case and determine whether the defendant was in fact acting

within the scope of his or her employment"); see also Kimbro, 30

F.3d at 1509 (noting that the certification has no"particular evidenti-

ary weight"); Schrob, 967 F.2d at 936 n.13 (explaining that deference

to the certification "is not justified, for the certification should be

reviewed de novo by the district court"); Meridian Int'l Logistics, Inc.

v. United States, 939 F.2d 740, 745 (9th Cir. 1991) (concluding, in

asking "what level of deference the district court should afford the

certification," that review of the certification is "de novo"); Hamrick,

931 F.2d at 1211 (holding that the district court should engage in a

"de novo review to determine whether the certification was proper");

S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1543 (11th Cir.

1990) (noting that "the Attorney General's scope certification does

not warrant judicial deference"), amended on other grounds, 924 F.2d

1555 (11th Cir. 1991); Nasuti v. Scannell, 906 F.2d 802, 813 (1st Cir.

1990) (holding that, for substitution purposes, the scope-of-

employment question must "be independently resolved by the court").5

_________________________________________________________________

5 We note that giving no deference to the scope-of-employment certifi-

cation for substitution purposes does not render the certification a nullity.

The certification "shall conclusively establish scope of office or employ-

ment for purposes of removal," see 28 U.S.C.A. § 2679(d)(2), thereby

ensuring that the scope-of-employment determination is made in a fed-

eral tribunal without burdening the defendant federal employee with a

jury trial. Moreover, the scope-of-employment certification places the

burden of proof on the plaintiff, thereby requiring the plaintiff to come

forward with evidence to prove that the defendant federal employee was

acting outside the scope of his employment. Therefore, the certification

is given effect, albeit a more limited one than we held prior to the

Supreme Court's decision in this case.

8

Finally, we recognize that immunity under the Westfall Act, like

other forms of absolute and qualified immunity, "is an immunity from

suit rather than a mere defense to liability." Mitchell v. Forsyth, 472

U.S. 511, 526 (1985) (discussing qualified immunity); see also

Jamison v. Wiley, 14 F.3d 222, 227 (4th Cir. 1994) (noting that the

Westfall Act gave "federal employees an absolute immunity from

common law tort actions that was functionally equivalent to -- if not

perfectly congruent with -- the immunity that they had enjoyed under

the common law"); Schrob, 967 F.2d at 935 (recognizing "Congress'

intent to `protect federal employees from the uncertain and intimidat-

ing task of defending suits that challenge conduct within the scope of

their employ'" (quoting Brown v. Armstrong, 949 F.2d 1007, 1011

(8th Cir. 1991))). Accordingly, in light of the recognized desirability

of quickly resolving the scope-of-employment issue, we agree with

those courts that have held that "the district court should ensure that

both the discovery and [any evidentiary hearings] are circumscribed

as narrowly as possible, although these are matters within its discre-

tion." Schrob, 967 F.2d at 936; see also Brown, 949 F.2d at 1012

("[C]hallenges to the Attorney General's certification must be

resolved before trial, as soon after the motion for substitution as prac-

ticable, even if an evidentiary hearing is needed to resolve relevant

fact disputes."). Therefore, the district court may allow (in its discre-

tion) limited discovery or conduct an evidentiary hearing, but should

not do so if the certification, the pleadings, the affidavits, and any

supporting documentary evidence do not reveal an issue of material

fact. It is for the district court to assess the sufficiency of the evidence

produced by the plaintiffs. Only if the district court concludes that

there is a genuine question of fact material to the scope-of-

employment issue should the federal employee be burdened with dis-

covery and an evidentiary hearing.

In short, the scope-of-employment certification is prima facie evi-

dence that the defendant federal employee acted within the scope of

his employment, thereby placing the burden on the plaintiff to prove

otherwise. If the plaintiff does not come forward with any evidence,

the certification is conclusive. Moreover, the plaintiff's submission

must be specific evidence or the forecast of specific evidence that

contradicts the Attorney General's certification decision, not mere

conclusory allegations and speculation. If the plaintiff's evidence is

sufficient to carry the burden of proof, the defendant federal

9

employee or the Government may come forward with evidence in

support of the certification. At this point, the district court may permit

(and limit) any needed discovery. Thereafter, the district court must

determine whether there are any genuine issues of fact material to the

scope-of-employment decision, and, if so, it may conduct an evidenti-

ary hearing to resolve these factual issues. Once any factual issues are

resolved, the district court should weigh the evidence on each side to

determine whether the certification should stand. During this process,

the district court should remain cognizant of the considerations

weighing against protracted litigation under the Westfall Act.

III.

We turn now to the application of these principles to the scope-of-

employment certification at hand. Appellants first argue that the dis-

trict court should have allowed discovery and an evidentiary hearing

before dismissing the action against Lamagno. In their view, addi-

tional discovery would have afforded them an opportunity to depose

Lamagno and Bermann, thereby exposing possible inconsistencies in

their stories. They do not point, however, to any specific evidence that

could be uncovered by further discovery beyond the speculative pos-

sibility of inconsistency.

We review the district court's discovery decisions for abuse of dis-

cretion. See Jamison v. Wiley, 14 F.3d 222, 236 (4th Cir. 1994) (hold-

ing that "the district court did not abuse its discretion in holding an

evidentiary hearing on the scope-of-employment issue"); Schrob v.

Catterson, 967 F.2d 929, 936 (3d Cir. 1992) (noting, in an action

under the Westfall Act, that pretrial discovery decisions "are matters

within [the trial court's] discretion"). Under this standard, we affirm

the district court's refusal to allow additional discovery and an evi-

dentiary hearing.

The district court, properly balancing "the need for a meaningful

review of the scope certification with the need to protect federal

employees from burdensome discovery," Schrob, 967 F.2d at 936,

concluded "that the material facts relating to the scope of employment

issue are not in dispute and that additional discovery would not

develop any additional facts" (J.A. at 89). The district court reached

this conclusion after reviewing numerous affidavits and after specifi-

10

cally asking Appellants to identify any material factual disputes.

Other courts, faced with similar circumstances, have refused to

require discovery and an evidentiary hearing. See Anthony v. Runyon,

76 F.3d 210, 214 (8th Cir. 1996) ("Although we have indicated that

it may be necessary for the court to conduct an evidentiary hearing

to resolve the scope-of-employment issue, a hearing is not required

in every case." (citations omitted)); Woods v. McGuire, 954 F.2d 388,

391 (6th Cir. 1992) (affirming, under abuse of discretion standard,

district court's refusal to allow further discovery before substitution

and dismissal); Forrest City Mach. Works, Inc. v. United States, 953

F.2d 1086, 1088 (8th Cir. 1992) (holding that, when plaintiffs present

no specific evidence contradicting the scope-of-employment certifica-

tion, discovery before dismissal is unnecessary). Because every fac-

tual issue pressed by Appellants is adequately addressed in

Lamagno's supporting affidavits, the district court rightly reviewed

the certification without allowing discovery or conducting an eviden-

tiary hearing.

IV.

The question remains: Did the district court properly conclude that

Lamagno was acting within the scope of his employment at the time

of the accident? In answering this question, we apply the law of the

state where the conduct occurred. See Jamison v. Wiley, 14 F.3d 222,

227 n.2 (4th Cir. 1994) (noting "that whether particular conduct was

`within the scope of employment' for purposes of Westfall Act immu-

nity was to be determined not by reference to a uniform body of fed-

eral common law, but by reference to the respondeat superior law of

the state in which the conduct occurred"); see also Aversa v. United

States, 99 F.3d 1200, 1209 (1st Cir. 1996) (collecting cases); cf.

Williams v. United States, 350 U.S. 857 (1955) (per curiam). Here,

although the conduct at issue took place in Colombia, the parties have

agreed to the application of the law of the forum state, Virginia.6

_________________________________________________________________

6 Lamagno acknowledges that "[t]his case presents a novel twist"

because of the choice-of-law issues. (Appellee's Br. at 9 n.7.) According

to Lamagno, this difficulty explains in part the foreign claims exception

to the FTCA. Here, the law governing the underlying tort is not in issue.

Accordingly, that choice-of-law issue need not be resolved -- the par-

ties' stipulation to Virginia law is only for purposes of the scope-of-

employment issue.

11

Under Virginia law, an employee acts within the scope of his

employment if:

(1)[The act] was expressly or impliedly directed by the

employer, or is naturally incident to the business, and (2)it

was performed, although mistakenly or ill-advisedly, with

the intent to further the employer's interest, or from some

impulse or emotion that was the natural consequence of an

attempt to do the employer's business, "and did not arise

wholly from some external, independent, and personal

motive on the part of the [employee] to do the act upon his

own account."

Kensington Assocs. v. West, 362 S.E.2d 900, 901 (Va. 1987) (quoting

Broaddus v. Standard Drug Co., 179 S.E.2d 497, 503-04 (Va. 1971))

(second alteration in original); see also Johnson v. Carter, 983 F.2d

1316, 1330 (4th Cir. 1993) (en banc) (noting that, under Virginia law,

the conduct "must be fairly and naturally incident to the employer's

business, be done while the employee was engaged in the employer's

business, and be done with a view to further the employer's inter-

ests"), overruled on other grounds by Gutierrez de Martinez v.

Lamagno, 115 S. Ct. 2227 (1995). For the most part, Virginia courts

take a fairly broad view of scope of employment, and hold that even

intentional torts may be within the scope of employment. See

Plummer v. Center Psychiatrists, Ltd., 476 S.E.2d 172, 174-75 (Va.

1996) (concluding that a psychiatrist who sexually assaulted a patient

may have acted within the scope of his employment); Commercial

Bus. Sys., Inc. v. BellSouth Servs., Inc., 453 S.E.2d 261, 266 (Va.

1995) (holding that "willful and malicious acts" that were "outrageous

and violative of [the] employer's rules" might nonetheless be within

the scope of employment). There are, however, limits. For example,

in Smith v. Landmark Communications, Inc., 431 S.E.2d 306 (Va.

1993), the court held that a paper carrier was acting outside the scope

of his employment while riding his bicycle from his home to the loca-

tion where he picked up the newspapers to be delivered. In the court's

view, "[t]he mere act of traveling to work was not a natural incident

of [the employer's] business and, thus, it did not place [the paper car-

rier's] actions within the scope of the employment relationship." Id.

at 308. Similarly, in Kensington Assocs., 362 S.E.2d at 903-04, the

court concluded that a security guard acted outside the scope of his

12

employment when he accidentally shot a co-worker during "horse-

play." The court found it significant that the employee "engaged in

horseplay in an attempt to scare [a co-worker] when he injured [the

plaintiff]. In addition, [the employee] had been drinking at the time,

which [the employer] strictly prohibited." Id. at 903.

Here, whether Lamagno had been attending an official dinner or

not, his act of accompanying Bermann to the hotel "was expressly or

impliedly directed by the employer," id. at 901, provided that there

was a DEA policy requiring that female agents be accompanied after

dark. On this point, Appellants argue only that the purported DEA

policy did not exist. Based on our review of the record, the proffered

evidence does not support this argument. Eli Madrid, who served as

the Resident Agent in Charge of the DEA Office in Barranquilla at

the time of the accident, submitted an affidavit stating that "[b]ecause

of the . . . high crime rate in Barranquilla, I had instituted a policy

wherein all female employees would be escorted at all times after

dark." (J.A. at 53.) Similarly, Calvin G. McFarland, who served as

Chairman of the DEA Board of Professional Conduct that investi-

gated Lamagno's accident, submitted an affidavit stating that "La-

magno was specifically requested to transport another DEA

employee, an Intelligence Analyst on temporary duty in Colombia, to

the hotel as well." (J.A. at 60.) Lamagno and Bermann corroborated

the existence of the disputed DEA policy in their own affidavits. On

the other hand, Appellants have presented no evidence to refute the

existence of this policy. At oral argument, counsel for Appellants

argued that the policy was "unlikely" because it was "sexist" and

"old-fashioned." Despite this speculation, we agree with the district

court that Appellants have failed to create a genuine issue of fact

material to the policy's existence. We therefore conclude, like the dis-

trict court, that Lamagno was acting pursuant to DEA policy when the

accident occurred, and that therefore his actions satisfy the first ele-

ment of the Kensington test.7

_________________________________________________________________

7 This case is readily distinguishable from Smith v. Landmark Commu-

nications, Inc., 431 S.E.2d 306 (Va. 1993). Smith held only that transpor-

tation to and from work is ordinarily outside the scope of employment.

Here, however, Lamagno claims that DEA policy required that female

agents be accompanied while traveling at night and that he was carrying

out this duty by escorting Bermann to her hotel. (J.A. at 49.) It is this

policy that places Lamagno's actions within the scope of his employ-

ment.

13

Appellants further argue that, because Lamagno was intoxicated,

his actions arose "wholly from some external, independent, and per-

sonal motive" on his part, see Kensington Assocs., 362 S.E.2d at 901,

and therefore could not have been within the scope of his employ-

ment. In other words, Appellants argue that even if Lamagno's

actions satisfy the first element of the Kensington test, they fail the

second. We conclude that the district court rightly rejected this argu-

ment. Appellants rely on two affidavits to argue that Lamagno was

intoxicated. We believe these affidavits are insufficient to raise a gen-

uine issue of material fact. In the first of these two affidavits, Teresa

de Rueda, who witnessed the accident, stated that Lamagno and Ber-

mann "showed signs of drunkenness (i.e. slow and unsteady move-

ments)." (J.A. at 25.) Similarly, in the second of these affidavits

Appellant Martinez de Papaiani claimed that he saw Lamagno after

the accident "with a strong breath of alcohol, and moving as [if] he

[were] drunk." (J.A. at 35.) On the other hand, Madrid stated in his

affidavit, "I spent well over an hour with S/A [Special Agent]

Lamagno at the scene of the accident. During that time, I spoke with

him at length and observed his actions. S/A Lamagno did not appear

to be under the influence of alcohol or impaired in any other way

when I observed him and spoke with him at the scene of the acci-

dent." (J.A. at 53-54.) Similarly, both Lamagno and Bermann denied

that they were intoxicated when the accident occurred. After review-

ing these affidavits, we agree with the district court that Appellants

failed to present evidence inconsistent with Lamagno's position and

failed to forecast the likelihood of discovering such evidence.

Because Lamagno had just been involved in a serious accident, it is

hardly surprising that his movements were "slow" and "unsteady."

Moreover, Lamagno admitted that he had been drinking at the restau-

rant. Therefore, the claim that his breath smelled of alcohol does not

contradict his version of events. Furthermore, the police accident

report, prepared after Colombia police interviewed witnesses at the

scene, makes no mention of alcohol playing a role in the accident.

Having concluded that the district court correctly found that Appel-

lants failed to present sufficient evidence to show that Lamagno was

intoxicated, we must consider whether, under Virginia law, the fact

that he had been drinking alcohol rendered his acts beyond the scope

of his employment. As noted above, the court in Kensington rejected

a claim of respondeat superior liability because, among other things,

14

the employee "had been drinking at the time, which [the employer]

strictly prohibited." 382 S.E.2d at 903. Kensington, however, does not

support Appellants' argument that drinking alcohol by itself is suffi-

cient to defeat the employment relationship. First, the employee's

consumption of alcohol was only one factor mentioned by the

Kensington court in concluding that the employee acted outside the

scope of his employment. The court found it more significant that the

employee "engaged in horseplay in an attempt to scare [a co-worker]

when he injured [the plaintiff]," and that "[n]either the `horseplay' nor

the resulting shooting was done to further Kensington's interests, but

arose wholly from an independent, external, and personal motive on

[the employee's] part to perform an act upon his own account." Id.

Therefore, this case differs from Kensington in that Lamagno was not

acting "wholly from an independent, external, and personal motive,"

but was instead attempting to further his employer's interests by

observing a DEA policy. Second, the Kensington court specifically

noted twice that the employer strictly prohibited drinking on the job.

See id. at 901 (noting that "drinking while on duty was prohibited by"

the employer); id. at 903 (stating that the employer "strictly prohib-

ited" drinking on duty). Here, the record is silent as to any DEA pol-

icy prohibiting employees from drinking while performing acts within

the scope of their employment.

We, therefore, conclude that Kensington does not mean that an

employee always acts outside the scope of his employment merely by

consuming alcohol. Moreover, after reviewing general Virginia

respondeat superior law, we are convinced that Virginia courts would

reject the argument that consumption of alcohol vitiates the employ-

ment relationship. As noted above, the Virginia courts generally take

a broad view of the employment relationship, and have held that even

intentional torts may be within the scope of employment. See

Plummer, 476 S.E.2d at 174-75; Commercial Bus. Sys., Inc., 453

S.E.2d at 266. It would be odd indeed to recognize that an intentional

sexual assault could be within the scope of employment, see

Plummer, 476 S.E.2d at 174-75, while also holding that the consump-

tion of alcohol rendered all subsequent acts necessarily outside the

scope of employment. We therefore conclude that, applying Virginia

law, drinking alcohol by itself does not remove the employee from the

scope of his employment.

15

There remain only Appellant's allegations that Lamagno was over

20 blocks away from his hotel and was accompanied by an unidenti-

fied Hispanic female. These allegations, however, cannot defeat

Lamagno's assertions that he was lost, that the unidentified female

was DEA Agent Bermann, and that his distance from the hotel was

due to his unfamiliarity with the area. Again, Appellants present no

evidence inconsistent with this version of events, and we agree with

the district court that "there is insufficient evidence on which to set

aside the United States Attorney's certification." (J.A. at 91.)

V.

In conclusion, we hold that a scope-of-employment certification

produced under the Westfall Act is prima facie evidence that the

defendant federal employee acted within the scope of his employ-

ment, and that it places the burden on the plaintiff to prove otherwise.

Appellants's allegations and assumptions are no basis upon which to

set aside the scope-of-employment certification, and the district court

did not err in denying Appellants' request for additional discovery

and an evidentiary hearing. Accordingly, we affirm the district court's

conclusion that Lamagno was acting within the scope of his employ-

ment when the accident occurred. The motion to substitute the United

States for Lamagno was properly granted.

AFFIRMED

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