Jason Laible v. Timothy Lanter

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0015p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JASON LAIBLE, Executor of the estates of Raymond

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Laible and Gayle Laible; STEVEN KLEIN; MARIBETH

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KLEIN,

│

Plaintiffs-Appellees, > No. 22-5496

│

│

v. │

│

TIMOTHY LANTER; BRETT THOMAS; DONALD SCALF, │

Defendants-Appellants, │

│

│

UNITED STATES OF AMERICA, │

Defendant-Appellee. │

┘

Appeal from the United States District Court for the Eastern District of Kentucky at Covington.

No. 2:21-cv-00102—David L. Bunning, District Judge.

Argued: March 8, 2023

Decided and Filed: January 23, 2024

Before: COLE, GIBBONS, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Aaron M. Herzig, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for

Appellants. Catherine Padhi, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Federal Appellee. ON BRIEF: Aaron M. Herzig, Spencer S. Cowan, TAFT,

STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellants. Catherine Padhi,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellee.

Jacqueline Greene, Alphonse Gerhardstein, M. Caroline Hyatt, Rebecca Salley, FRIEDMAN

GILBERT + GERHARDSTEIN, Cincinnati, Ohio for Appellee Laible. J. Stephen Smith, Roula

Allouch, GRAYDON HEAD & RITCHEY LLP, Ft. Mitchell, Kentucky, for the Klein

Appellees.

COLE, J., delivered the opinion of the court in which GIBBONS, J., joined. READLER,

J. (pp. 12–21), delivered a separate opinion concurring in part and dissenting in part.

No. 22-5496 Laible, et al. v. Lanter, et al. Page 2

_________________

OPINION

_________________

COLE, Circuit Judge. In August 2020, the federal Bureau of Alcohol, Tobacco,

Firearms, and Explosives (ATF) and the Cincinnati Police Department (CPD) participated in a

joint federal task force to arrest Mason Meyer. While fleeing from CPD officers, Meyer lost

control of his vehicle and crashed into a restaurant, killing Gayle and Raymond Laible and

severely injuring Steven and Maribeth Klein. The Laibles’ estate and the Kleins brought this

lawsuit alleging that three CPD officers were negligent in their execution of the high-speed car

chase.

The CPD defendants in this action—Sergeant Donald Scalf, Sergeant Timothy Lanter,

and Officer Brett Thomas—allege that they were federal employees immune from common-law

tort actions due to their participation in the federal task force to arrest Meyer. The district court

denied the officers’ motion for immunity under the Westfall Act, 28 U.S.C. §§ 2679(b)(1),

(d)(1), (d)(3). We reverse the district court’s denial of immunity for Scalf because he was a

federal employee acting within the scope of his employment during the chase. We affirm the

district court’s denial of immunity as to Lanter and Thomas because neither were federal

employees at the time of the incident.

I.

On August 7, 2020, a federal task force led by the ATF, with the assistance of CPD and

the Northern Kentucky Drug Strike Force (NKDSF), executed state warrants to apprehend

Mason Meyer in connection with a drug and gun trafficking investigation in Cincinnati, Ohio.

Donald Scalf, a CPD sergeant, had been deputized to the ATF since August 2015. Scalf was

assigned to surveil Meyer under the ATF’s operational plan for the arrest. On the day of the

incident, Meyer left his home driving a vehicle containing two other people and a suspected

illegal weapon. CPD was to “conduct a felony traffic stop,” which contemplated pursuit, per its

standard operating procedures should Meyer escape an attempted traffic stop. ATF Operational

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Plan, R. 58-1, PageID 445. CPD Sergeant Timothy Lanter attempted a traffic stop, but Meyer

sped off.

Lanter pursued and requested CPD Officer Brett Thomas’s assistance. Thomas

responded in a separate vehicle. Scalf supervised the pursuit via radio as a deputized ATF agent

and declared himself the Officer-in-Charge (OIC) pursuant to CPD policy. The ATF Resident in

Charge (RAC), Frank Occhipinti, assisted Scalf by using cell phone tracking data to confirm that

Meyer was in the vehicle. Shortly thereafter, radio communication shifted from a CPD/ATF

joint radio channel to a CPD-only channel.

The officers chased Meyer through parts of Cincinnati, with all three vehicles reaching

speeds over 100 miles per hour. Scalf authorized Lanter’s and Thomas’s continued pursuit of

Meyer across the bridge into Covington, Kentucky. Meyer and the CPD vehicles crossed into

oncoming lanes of traffic on the bridge and continued the chase through downtown Covington.

At one point, Lanter authorized Thomas to drive the wrong way down a one-way street without

obtaining clearance from Scalf.

The chase proceeded across another bridge into Newport, Kentucky. Meyer eventually

ran a red light, lost control of the vehicle, and crashed into the sidewalk patio of the restaurant

where Raymond and Gayle Laible were dining. The Laibles were directly hit by the vehicle, and

Steven and Maribeth Klein, who were walking by, were struck by debris and thrown several

yards onto the asphalt. Gayle died on the scene and Raymond was taken to the hospital where he

was later pronounced dead. The Kleins experienced multiple, severe injuries. Meyer was taken

into custody and charged with two counts of murder, and two counts of endangerment and

fleeing from the police.

The executor of the Laibles’ estate and the Kleins filed this lawsuit in August 2021 in

Campbell County Circuit Court. The lawsuit alleges personal injury, negligence, wrongful

death, and negligent supervision claims against Scalf, Lanter, Thomas, Meyer, and the City of

Cincinnati. The officers and City removed the case to federal court. The officers sought

certification of Westfall Act immunity from the United States, which limits liability against

federal officers for common-law tort actions committed while acting within the scope of their

No. 22-5496 Laible, et al. v. Lanter, et al. Page 4

employment, but the United States declined. The officers then filed a petition for the district

court to review the denial of certification. The district court denied the petition, concluding that

Scalf was not acting within the scope of his employment as an officer detailed to the ATF and

that Lanter and Thomas were not federal officers for purposes of the statute. The officers

appealed the district court’s decision.

II.

A.

In 1946, Congress passed the Federal Tort Claims Act (FTCA), “‘which waived the

sovereign immunity of the United States for certain torts committed by federal employees’ acting

within the scope of their employment.” Brownback v. King, 141 S.Ct. 740, 746 (2021) (quoting

FDIC v. Meyer, 510 U.S. 471, 475–76 (1994)). In 1988, however, Congress passed the Federal

Employees Liability Reform and Tort Compensation Act (Westfall Act). See Gutierrez de

Martinez v. Lamagno, 515 U.S. 417, 425–26 (1995). The act immunizes federal employees from

individual common-law tort claims that arise while the employee was acting within the scope of

their employment and substitutes the United States as the party defendant. 28 U.S.C.

§§ 2679(b)(1), (d)(1).

The act empowers the Attorney General to certify that an employee was acting within the

scope of federal employment at the time the harm occurred. Id. at (d)(1). If the Attorney

General declines to certify, “the employee may at any time before trial petition [a federal district]

court to find and certify that the employee was acting within the scope of his office or

employment.” Id. at (d)(3). Then, the district court must determine whether: (1) the employee

qualifies as a federal employee; and if so, (2) whether the challenged conduct fell within the

scope of federal employment. Id. at (b)(1).

We review a district court’s decision regarding Westfall Act immunity de novo. Sullivan

v. Shrimp, 324 F.3d 397, 399 (6th Cir. 2003). While Westfall Act certification is a legal

question, a district court must resolve disputed issues of fact necessary to its decision before

certifying any federal employee for Westfall Act immunity. Singleton v. United States, 277 F.3d

864, 870 (6th Cir. 2002) (overruled on other grounds).

No. 22-5496 Laible, et al. v. Lanter, et al. Page 5

We review findings of fact for clear error. Fed. R. Civ. P. 52(a)(6). In its denial of

immunity, however, the district court stated that no disputed facts material to the Westfall Act

question exist. Therefore, we review de novo the district court’s legal conclusions as well as its

application of the law to the facts on record. Dolan v. United States, 514 F.3d 587, 593 (6th Cir.

2008) (citing Singleton, 277 F.3d at 870).

B.

Individuals are employees of the federal government under the FTCA if they are:

(1) “officers or employees of any federal agency”; or (2) “persons acting on behalf of a federal

agency in an official capacity, temporarily or permanently in the service of the United States,

whether with or without compensation.” 28 U.S.C. § 2671. These two definitions are commonly

referred to as the federal employee clause and the official capacity clause, respectively. See

Talignani v. United States, 26 F.4th 379, 382 (7th Cir. 2022).

First, the federal employee clause defines “federal agency” as including “‘executive

departments, the judicial and legislative branches,’ and other governmental entities.” Does 1–10

v. Haaland, 973 F.3d 591, 597 (6th Cir. 2020) (quoting 28 U.S.C. § 2671). An individual

detailed to a federal agency is considered a federal employee for purposes of the FTCA. 5

U.S.C. § 3374(c)(2); see also Robertson v. Lucas, 753 F.3d 606, 613–14 n. 3 (6th Cir. 2014)

(state and local law enforcement detailed to DEA task force were federal employees for purposes

of the Westfall Act); Petty v. United States, 80 F. App’x 986, 989 (6th Cir. 2003) (local police

officer who was assigned to an FBI-operated task force was a federal employee for purposes of

the FTCA).

Scalf squarely meets the definition of federal employment as an officer deputized to the

ATF at the time of the incident. Scalf “carried an ATF badge, wore an ATF uniform, attended

ATF trainings, worked from an ATF field office, and received pay from the federal

government.” Mem. Op. & Order, R. 64, PageID 477.

The Laible estate and the Kleins argue, however, that Scalf could not have been a

deputized ATF officer on August 7, 2020 because he served longer than the statutorily permitted

length and there was no written memorialization of his deputized status. Specifically, the

No. 22-5496 Laible, et al. v. Lanter, et al. Page 6

applicable regulation requires that an employee deputized to a federal task force for four

continuous years, must make “at least a 12-month return to duty with the organization from

which the employee was originally assigned,” and the federal agency and deputized employee

must enter into a written agreement. See 5 C.F.R. §§ 334.104(c); see also id. at 106(a).

According to the record, Scalf was deputized to the ATF from August 2015 through December

2020—more than five years—and no written agreement was submitted to the court.

Because the district court did not hold an evidentiary hearing, the plaintiffs argue that

they were deprived of the opportunity to discover evidence on the validity of Scalf’s status as a

deputized ATF agent. The district court made no findings of fact as to this issue. The plaintiffs,

however, essentially challenge the district court’s interpretation of the record, warranting clear

error review.

Where there is evidence in the record to support the district court’s factual finding and

the finding was a reasonable construction of the evidence, no clear error has occurred. United

States v. Sands, 4 F.4th 417, 420 (6th Cir. 2021). Further, the decision to hold an evidentiary

hearing is within the discretion of the district court. Clark v. Warden, 934 F.3d 483, 497 (6th

Cir. 2019). Here, the district court determined that an evidentiary hearing was unnecessary and

relied on affidavits from Scalf and Occhipinti affirming Scalf’s status as a deputized ATF agent.

Because the record supports that Scalf was a federal employee detailed to the ATF at the time of

the incident, we are not “left with the definite and firm conviction that a mistake has been

committed.” United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (quoting United States

v. Charles, 138 F.3d 257, 262 (6th Cir. 1998)). Therefore, Scalf meets the definition of federal

employee under the federal employee clause.

There is no dispute that Lanter and Thomas were employed by CPD, and do not meet the

definition of federal employee under the federal employee clause. Therefore, they can only be

considered federal employees if they meet the requirements of the official capacity clause.

Under the official capacity clause, Lanter and Thomas can meet the definition of a federal

employee if they can prove that they “act[ed] on behalf of a federal agency in an official

capacity, temporarily or permanently in the service of the United States, whether with or without

No. 22-5496 Laible, et al. v. Lanter, et al. Page 7

compensation.” 28 U.S.C. § 2671. This court has yet to provide guidance on the official

capacity clause, and the Supreme Court has addressed the clause’s language on only one

occasion.

In Logue v. United States, the parents of a federal prisoner who hanged himself while in a

county jail brought suit against the United States pursuant to the FTCA for the wrongful death of

their son. 412 U.S. 521, 522 (1973). The plaintiffs argued that under the federal employee

clause, the county jail was a federal agency, and under the official capacity clause, the jail

employees were “acting on behalf” of the Federal Bureau of Prisons. Id. at 526. The Court

established that the critical factor in differentiating between federal employees and contractors

“is the authority of the principal to control the detailed physical performance of the contractor.”

Id. at 527–28. In other words, where the federal government exercises that level of control over

an individual, the definition of federal employee is met. See id.

The Court concluded that the county jail was a contractor over which the federal

government lacked any control, and contractors were explicitly exempted from immunity as non-

federal agencies pursuant to the federal employee clause of 28 U.S.C. § 2671. Id. at 528–30.

Turning to the official capacity clause, the Court acknowledged that the legislative history of the

“acting on behalf of” language within the clause was sparse but appeared “to cover special

situations such as the ‘dollar-a-year’ man who is in direct service of the Government without

pay, or an employee of another employer who is placed under direct supervision of a federal

agency pursuant to contract or other arrangement.” Id. at 530–01 (emphasis added); see also

Talignani, 26 F.4th at 386 (explaining that the official capacity clause was meant to extend

immunity to volunteers, special law enforcement, confidential informants, and any other

scenarios in which the individual was not a federal employee, nor federal contractor, but still

acted on behalf of the federal government in an official capacity). That said, the Court ultimately

ruled that the official capacity clause could not serve as an end-run around the ban on federal

contractors, and therefore, the jail employees were also not federal employees pursuant to the

official capacity clause. Logue, 412 U.S. at 531–32.

Logue’s “control” or “supervision” test was reinforced a few years later in United States

v. Orleans. 425 U.S. 807 (1976). There, the Supreme Court concluded that a community action

No. 22-5496 Laible, et al. v. Lanter, et al. Page 8

agency subject to substantial federal regulation was not a “federal agency” and its employees

were not federal employees because the federal government lacked the “power to supervise

the[ir] daily operation.” Id. at 817–19.

Although the Court articulated the Logue control test to distinguish contractors and

federal employees, it still controls here because the Court did not limit the test’s application to

government use of independent contractors. Further, even if the test is classified as dicta,

“[l]ower courts are obligated to follow Supreme Court dicta, particularly where there is not

substantial reason for disregarding it, such as age or subsequent statements undermining its

rationale.” In re Baker, 791 F.3d 677, 682 (6th Cir. 2015) (quoting Am. Civ. Liberties Union of

Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 447–48 (6th Cir. 2010)). Lanter and Thomas have

provided no such challenging authority.

The control test simply sets the threshold that an individual with some kind of

arrangement with the federal government must meet to be considered a federal employee for

purposes of the official capacity clause. Importantly, other circuits have applied the control test

when determining whether a defendant is a federal employee for purposes of the official capacity

clause. See e.g., Sisto v. United States, 8 F.4th 820, 830 (9th Cir. 2021) (acknowledging that “the

Supreme Court applies the ordinary ‘control test’ to [the official-capacity clause] of § 2671,” but

concluding that a doctor working on a Native American reservation hospital was a contractor and

not a federal employee); U.S. Tobacco Coop. Inc. v. Big South Wholesale of Virginia, LLC, 899

F.3d 236, 257 (4th Cir. 2018) (finding that evidence existed to support that confidential

informants were “sufficiently controlled by, and subject to the control of, the ATF . . . so as to be

found to be federal employees acting in an official capacity on behalf of the United States”); but

see Talignani, 26 F.4th at 384 n. 3 (explaining that Logue did not adopt an interpretation that

applied the control test to the official capacity clause, but limited its application to the federal

employee clause).

Under Logue’s control test, the district court correctly denied Westfall Act immunity for

Lanter and Thomas. Under the operational plan, Lanter and Thomas were never under direct

ATF supervision, so they were not “acting on behalf” of the ATF. Logue 412 U.S. at 531.

Lanter assisted in the chase because it was CPD’s responsibility, as part of the task force, to

No. 22-5496 Laible, et al. v. Lanter, et al. Page 9

effectuate a traffic stop when Meyer fled. See Petty, 80 F. App’x at 989 (concluding that Detroit

police officers assisting an FBI-task force in effectuating a search warrant were not federal

officers for purposes of the FTCA). The ATF did not suddenly gain control over Lanter’s

“detailed physical performance” during the car chase when Scalf declared himself OIC. Logue,

412 U.S. at 527–28. In fact, the ATF operational plan explicitly stated that any car chase would

be initiated by CPD officers and conducted pursuant to CPD policy. See ATF Operational Plan,

R. 58-1, PageID 445 (“Any vehicle pursuits will be initiated and monitored by CPD pursuit

policy. ATF will not initiate any pursuits . . . . CPD uniform vehicles will be advised and

directed to conduct a traffic stop following CPD policy, ATF will assist as needed.”). Any

involvement by Scalf or the ATF, once Lanter began pursuit, was for the purposes of assistance

only—not to control, direct, or supervise the chase. The fact that Scalf authorized Lanter to

cross into Kentucky does not diminish CPD’s control over the rules governing the chase.

Thomas was an additional step removed from ATF supervision as he only received

authorization to join the chase from Lanter. Thomas was at the CPD training facility, in CPD

uniform, when Lanter asked him to assist in the chase, and it is unclear whether Thomas knew

the ATF was even involved in Meyer’s apprehension. Finally, both Lanter and Thomas were

investigated for violations of CPD policy and disciplined by CPD. This is further evidence that

they acted not on behalf of a federal agency, but on behalf of CPD.

Given the joint nature of this task force and the potential danger posed by Meyer, CPD’s

stake in apprehending Meyer was of equal importance to the ATF’s motivations for involvement

in the operation.

***

Therefore, we affirm the district court’s denial of immunity to Lanter and Thomas as they

are not covered by the federal employee or official capacity clauses. Because Scalf is the only

officer who meets the definition of a federal employee, we limit the analysis of step two—

whether he was acting within the scope of his federal employment at the time of the incident—to

him.

No. 22-5496 Laible, et al. v. Lanter, et al. Page 10

C.

Whether an employee was acting within the scope of their federal employment under the

Westfall Act is governed by the agency law of the state in which the incident occurred.

28 U.S.C. § 1346(b)(1); see also Dolan v. United States, 514 F.3d 587, 593 (6th Cir. 2008).

Kentucky has adopted the Restatement (Third) of Agency to define the scope of employment.

Papa John’s Int’l., Inc. v. McCoy, 244 S.W.3d 44, 51 (Ky. 2008). An employee “acts within the

scope of employment when performing work assigned by the employer or engaging in a course

of conduct subject to the employer’s control.” Restatement (Third) of Agency § 7.07(2) (2006)

(emphasis added). According to the Kentucky courts, the analysis should focus on the purpose

or motive of the employee to determine whether they acted within the scope of their

employment. Papa John’s Int’l., Inc., 244 S.W.3d at 51. Torts committed to further the

employer’s business purpose in whole or in part, “however misguided,” are torts committed

within the scope of employment. Id. at 52 (internal quotation omitted).

The district court erred in concluding that Scalf acted outside the scope of his

employment as a deputized ATF agent when he oversaw Meyer’s car chase. First, Scalf was

assigned to surveil Meyer, and the ATF committed to assisting CPD “as needed” in effectuating

traffic stops. ATF Operational Plan, R. 58-1, PageID 445–46. Scalf did the work assigned to

him by the ATF when he surveilled Meyer from afar to assist Lanter and Thomas in effectuating

the traffic stop. That Scalf followed CPD procedures and used CPD radio channels when

overseeing the car chase does not change the fact that he conducted that activity within the scope

of the authority given to him by the ATF under the arrest plan. See Osborne v. Payne,

31 S.W.3d 911, 915 (Ky. 2000) (“[T]o be within the scope of [] employment, the conduct must

be of the same general nature as that authorized or incidental to the conduct authorized.”).

Meyer’s apprehension was just as much in furtherance of the ATF’s goals as it was of CPD’s

goals. Given Scalf’s unique understanding of CPD policies compared to the other ATF agents

involved, it suited the ATF’s purposes for him to act as the bridge between the ATF and CPD

prior to and during this operation.

Further, there is no evidence that Scalf was disciplined by either the ATF or CPD for the

manner in which the chase was conducted. While the ATF’s policies expressly prohibited high-

No. 22-5496 Laible, et al. v. Lanter, et al. Page 11

speed pursuits except in extraordinary circumstances such as “the threat of serious bodily injury

or death to an agent or other party,” such circumstances were present. ATF Operational Plan, R.

58-1, PageID 448. First, Meyer had a history of violence, including threatening to shoot law

enforcement officers and others, and pistol whipping and holding guns to the heads of people

who owed him money for drugs. Second, the day before the car chase CPD and NKDSF were

informed by a reliable source that Meyer had an inoperable tumor, causing a terminal illness. As

a result, Meyer had little concern for his life or the lives of others, and bragged about killing a

man, kidnapping individuals for outstanding drug debts, and intended to shoot at the police and

die before being jailed again. Given the potential danger Meyer posed, the ATF operational plan

expressly contemplated the possibility of pursuit. Scalf’s involvement in overseeing the pursuit

was therefore squarely within the scope of the work assigned to him by the ATF.

Finally, the ATF’s control over Scalf’s actions and its involvement in the chase did not

dissolve upon transfer of the chase to a CPD radio channel. The ATF was still in communication

with Scalf via police radio, and Occhipinti—the ATF agent in charge of the ATF’s portion of the

operation—surveilled the chase from afar. Occhipinti even broadcasted via the CPD-only radio

channel that Meyer was in fact in the vehicle the CPD officers were chasing.

Scalf was in the ATF’s service the day of the chase, and just because he performed some

duties associated with CPD’s role does not demand the legal conclusion that Scalf came under

CPD control. See Does 1–10, 973 F.3d at 598–602 (defining what actions were within the scope

of federal employment where defendants were first found to be federal employees). Because

Scalf’s motivations were meant to further the ATF’s mission, the ATF cannot now abandon its

responsibility for the alleged torts committed by Scalf within the scope of his employment.

Scalf meets the requirements for Westfall Act immunity and the United States must be

substituted for Scalf in this litigation.

III.

For the foregoing reasons, we affirm the denial of Westfall Act immunity as to Lanter

and Thomas and reverse the denial of Westfall Act immunity as to Scalf.

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_______________________________

CONCURRENCE / DISSENT

_______________________________

CHAD A. READLER, Circuit Judge, concurring in part and dissenting in part. Three

law enforcement officers took part in a joint federal-state operation to apprehend a suspect. But

the suspect proved difficult to detain, leading to a high-speed car chase. Tragically, the fugitive

crashed his vehicle into an outdoor dining area. Two bystanders were killed, and several others

were injured. Lawsuits followed.

In the Westfall Act, Congress authorized the United States to stand in the shoes of its

employees when these employees’ tortious acts committed within the scope and course of their

federal employment cause harm. Should the officers here be considered federal employees for

the purposes of the Westfall Act? The district court said no. I disagree with respect to one

officer and agree with the majority opinion’s decision to reverse that aspect of the district court’s

determination. As to the two remaining officers, I would remand the case for further

consideration.

I.

Mason Meyer was a wanted man. He was believed to be a prominent player in an arms-

and drug-trafficking organization, and he had an outstanding warrant for felony and

misdemeanor offenses. Despite their best efforts, however, officers with the Cincinnati Police

Department and the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives had been

unable to detain Meyer.

When a confidential informant gave ATF the address of a Cincinnati property where

Meyer was known to be staying, ATF seized the opportunity. The Bureau drew up an

operational plan to nab Meyer the next day. The plan foresaw ATF relying on the Cincinnati

Police Department’s assistance. Officers from both agencies would surveil the property,

preparing to apprehend Meyer once he left the premises. If he did so by car, the officers would

try to pin the vehicle. But if that tactic failed, pursuit was to be “initiated and monitored” in

accordance with Cincinnati Police Department policy. Per the Department’s standard operating

No. 22-5496 Laible, et al. v. Lanter, et al. Page 13

procedures, the Cincinnati officers were to “attempt to conduct a felony traffic stop” with K-9

assistance. ATF, for its part, was to remain available to “assist as needed.”

As part of the plan, officers Frank Occhipinti and Donald Scalf were assigned

surveillance duties. Occhipinti was the resident agent in charge of ATF’s Cincinnati Field Office

and the on-scene commander for the Meyer operation. Scalf was a Cincinnati Police sergeant

deputized to ATF for a five-year period, during which the operation took place. Scalf was fully

embedded within ATF. He bore an ATF uniform and credentials, used an ATF-issued cell phone

and email address, maintained an office inside the federal building in Cincinnati, was paid by the

federal government, and was supervised by ATF officers.

On the day of the operation, Occhipinti and Scalf took their positions to observe the

address provided by the tipster. That afternoon, Meyer appeared outside the residence,

displaying what appeared to be the contents of a rifle case. Shortly thereafter, a black car pulled

out of the property’s driveway and left. Due to an obstructed view, officers positioned at the

property were unable to determine whether Meyer was in the vehicle. Nonetheless, Cincinnati

Police Sergeant Timothy Lanter, stationed in his cruiser on a side street, began to follow the

vehicle. Before long, Occhipinti confirmed via GPS that Meyer’s cell phone signal was emitting

from the car. Occhipinti broadcast that confirmation over the Cincinnati Police’s primary radio

dispatch channel. At that point, according to Occhipinti, responsibility for the operation

“turn[ed] over” to the Cincinnati Police, a change marked by a “switch[]” in radio frequency to

the Cincinnati Police’s primary channel from one shared by ATF and Cincinnati Police.

Hearing that Meyer was in the black car, Lanter activated his lights. Meyer accelerated;

Lanter gave chase. Cincinnati Police K-9 Officer Brett Thomas, who had responded to a radioed

request for help from Lanter, joined in the pursuit. During the chase, each driver reached speeds

over 100 miles per hour.

As the others continued to trail Meyer, Scalf broadcast over the Cincinnati Police radio

channel that he was the officer in charge of the pursuit. When Meyer approached a bridge

spanning the Ohio River, Lanter radioed to Scalf for permission to cross the bridge into

Kentucky. Scalf granted authorization. As the three drivers entered Kentucky, Meyer lost

No. 22-5496 Laible, et al. v. Lanter, et al. Page 14

control of his car, jumping the curb onto a restaurant patio. His vehicle struck Gayle and

Raymond Laible. Gayle died instantly; Raymond, a short time later. Maribeth and Steven Klein,

walking nearby, were struck by debris from the collision and severely injured.

The Laible estate and the Kleins sued Scalf, Lanter, and Thomas in Kentucky state court

for injuries resulting from the chase. The officers removed the case to federal court. Next, they

moved for certification of their immunity under the Westfall Act, a statute that limits the liability

of federal officers for alleged common law torts committed in the line of duty. 28 U.S.C.

§ 2679(b)(1). The district court, however, denied the motion. This timely appeal followed.

II.

In the Westfall Act, Congress provided for absolute immunity from common law tort

suits for federal employees acting within the scope of their employment. 28 U.S.C. § 2679(b)(1).

To understand this statutory regime, consider the evolution of two genres of federal immunity,

sovereign and official. At the Founding, courts viewed the two through different lenses. For the

federal government, courts shared the “universally received opinion” that the government

enjoyed sovereign immunity from any suit to which it did not consent. Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 411–12 (1821). Federal officials, on the other hand, could be subjected to

common law tort suits if they injured others while performing their duties. See James E. Pfander

& Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government

Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1874–75 (2010) (“Early federal

practice thus relied on [various judicial writs] against federal officials, rather than against the

government itself . . . Successful trespass and assumpsit claims . . . resulted in the entry of a

judgment for money damages, payable by the officer.” (footnote omitted)).

Over the course of the 20th century, those two brands of federal immunity evolved

largely in opposite directions. Congress took the first step in that evolution in 1946, when it

passed the Federal Tort Claims Act, which waived sovereign immunity for many common law

claims. 28 U.S.C. §§ 1346(b)(1), 2674; Brownback v. King, 141 S. Ct. 740, 746 (2021); cf. Allen

v. United States, 83 F.4th 564, 566–67, 574 (6th Cir. 2023) (per curiam) (holding that the

government was entitled to sovereign immunity in spite of the FTCA’s general waiver because a

No. 22-5496 Laible, et al. v. Lanter, et al. Page 15

separate statute expressly asserted sovereign immunity). The FTCA makes the federal

government legally answerable, with certain exceptions, “in the same manner and to the same

extent as a private individual under like circumstances” for acts taken by its employees and

agents. 28 U.S.C. §§ 2674, 2680; Osborn v. Haley, 549 U.S. 225, 229–30 (2007). For suits

against federal officers, on the other hand, the federal courts moved the needle in the other

direction: they fashioned common law doctrines of immunity that shielded federal officers from

suit. See generally Barr v. Matteo, 360 U.S. 564 (1959); Gregory Sisk, Recovering the Tort

Remedy for Federal Official Wrongdoing, 96 Notre Dame L. Rev. 1789, 1796 (2021).

This equilibrium held for a time. But in the 1988 case of Westfall v. Erwin, the Supreme

Court pared back official immunity, holding that absolute immunity could attach only if the

challenged conduct was both within the scope of the officers’ duties and was discretionary. 484

U.S. 292, 297–98 (1988).

Reflective of a period of relatively rapid legislative activity, Congress responded that

same year to override Westfall. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 425

(1995). In the Westfall Act, an amendment to the FTCA named for the decision inspiring the

legislation, Congress immunized federal officers from individual liability for claims arising out

of any “negligent or wrongful act or omission,” so long as the act or omission took place while

the officer was “acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1).

Upon successful certification of that question, the officer is dismissed from the action, and the

United States is substituted as defendant in the officer’s place. Id. § 2679(d)(1)–(2).

Whether an officer was in fact acting in that capacity, Congress explained, may be

certified in one of two ways. Certain Department of Justice officials are empowered to confirm

immunity. See 28 C.F.R. § 15.4(c) (noting the supervisory role of “the Assistant Attorney

General in charge of the Civil Division”). Failing that, an officer may petition a federal court for

certification of Westfall Act immunity. 28 U.S.C. § 2679(d)(3); see Lamagno, 515 U.S. at 424–

25. A court, in turn, may override the executive’s withholding of immunity if two conditions are

met. U.S. Tobacco Coop., Inc. v. Big S. Wholesale of Va., 899 F.3d 236, 249 (4th Cir. 2018).

First, the officer must qualify as an “employee of the [federal] government,” as that term is

defined in the statute. 28 U.S.C. § 2679(b)(1); see also id. § 2671. If the officer proves as much,

No. 22-5496 Laible, et al. v. Lanter, et al. Page 16

his challenged actions must also fall within the scope of his federal employment. 28 U.S.C.

§ 2679(b)(1).

In making a Westfall Act certification decision, the district court should take full stock of

the facts at hand. The court must “identify and resolve” any disputed issues of fact regarding the

employee’s scope of employment. Fowler v. United States, 647 F.3d 1232, 1241 (10th Cir.

2011). Where disputed issues of fact arise, the district court “should hold such hearings as

appropriate (including an evidentiary hearing if necessary), and make the findings necessary” to

decide the certification question. Id. (quoting Arthur v. United States, 45 F.3d 292, 296 (9th Cir.

1995)); see also Kearns v. United States, 23 F.4th 807, 811–12 (8th Cir. 2022). A district court’s

decision denying Westfall Act certification and substitution is immediately appealable. Osborn,

549 U.S. at 238–39.

Here, all three officers sought certification from the Department of Justice. But

certification was denied. So they asked the district court to do what the government had not.

The district court, however, reached the same conclusion, and denied certification.

A. How do the three officers fare under the statutory framework set forth above? Begin

with Scalf, the most straightforward case of the three. I agree with the majority that he easily

meets the threshold federal employee requirement. Complementing the Westfall Act’s definition

of “[e]mployee of the government,” 28 U.S.C. § 2671, is a separate statutory provision stating

that any state or local government employee “on detail to a Federal agency” shall be considered a

federal employee for FTCA purposes. 5 U.S.C. § 3374(c)(2). This includes a local police

officer assigned to a task force led by a federal agency. See Petty v. United States, 80 F. App’x

986, 987, 989 (6th Cir. 2003) (Detroit police officer assigned to FBI-operated task force); see

also Ellis v. Ficano, 73 F.3d 361, at *2, *6 (6th Cir. 1995) (unpublished table decision) (noting

the district court’s conclusion that Wayne County police officers deputized to a DEA-led task

force satisfied § 3374(c)(2)’s “on detail” criterion). And that fairly describes Scalf, who,

according to his own sworn statement as well as one from Occhipinti, was undisputedly

deputized to the ATF. The evidence the district court credited about Scalf’s employment—an

ATF uniform, credentials, cell phone, email address, office, and paystub, in addition to direct

No. 22-5496 Laible, et al. v. Lanter, et al. Page 17

supervision by permanent ATF employees—makes that conclusion doubly clear. Simply put,

Scalf met the Westfall Act’s definition of a federal employee. See 28 U.S.C. § 2671.

Plaintiffs question whether Scalf was in fact deputized on the date of the Meyer

operation. For support, they point to two federal regulations, one requiring a written

formalization of deputy status and another limiting the permitted duration of continuous

deputization to four years. See 5 C.F.R. §§ 334.106, 334.104(c). According to plaintiffs, they

have been deprived of the opportunity to explore Scalf’s and the ATF’s compliance with these

regulations. But the district court believed there was sufficient evidence to determine that Scalf

was a federal employee. Plaintiffs’ challenges, therefore, amount to contentions that the district

court’s finding of facts was clearly erroneous.

I would not go so far. In deeming Scalf to be a federal employee, the district court

considered sworn statements from Scalf and Occhipinti indicating that Scalf was validly

deputized. The district court did not believe fuller exploration was necessary given the mere

supposition by plaintiffs that Scalf’s appointment theoretically was invalid. On balance, I am not

left with the “definite and firm conviction” that the district court erred. United States v. Wilson,

75 F.4th 633, 636 (6th Cir. 2023); Chesnut v. United States, 15 F.4th 436, 441 (6th Cir. 2021).

That leaves the second Westfall Act inquiry: was Scalf acting within the scope of his

federal duties when he oversaw Lanter’s and Thomas’s pursuit of Meyer? Kentucky law on

vicarious liability governs this inquiry. Does 1–10 v. Haaland, 973 F.3d 591, 599 (6th Cir.

2020) (“[W]hether the federal employee was acting within the scope of his or her employment[]

is governed by the agency law of the forum state.” (citation omitted)); see Papa John’s Int’l, Inc.

v. McCoy, 244 S.W.3d 44, 51 (Ky. 2008) (setting forth Kentucky’s scope of employment test).

Employing that legal regime, I would ask whether Scalf was “performing work assigned” by

ATF or “engaging in a course of conduct subject to” ATF’s control, as opposed to simply

undertaking “an independent course of conduct” through which he did not intend to further

ATF’s purpose. Papa John’s Int’l, 244 S.W.3d at 51 (quoting Restatement (Third) of Agency

§ 7.07 (2006)).

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To my mind, the facts before us compel the conclusion that Scalf was acting within the

scope of his employment as an ATF agent when he supervised the Meyer chase. As a starting

point, ATF assigned Scalf to its surveillance team in its operational plan. What is more,

Occhipinti, as ATF agent in charge, had the authority to supervise Scalf’s handling of the

chase—including to order him to call it off—even if Occhipinti did not exercise that power. In

these ways and others, Scalf’s conduct was “subject to” ATF control. Papa John’s Int’l, 244

S.W.3d at 51.

Some evidence, I acknowledge, muddies the waters. For one, the operational plan

assigned all traffic stops to Cincinnati Police (to ATF’s exclusion). For another, Scalf appears to

have invoked Cincinnati Police policy in directing the pursuit of Meyer. For purposes of the

Westfall Act, however, the scope of employment inquiry operates against the backdrop of the

threshold federal employee requirement. The district court’s findings suggest that Scalf was

exclusively in ATF’s service on the date of the operation. See Does 1–10, 973 F.3d at 598–602

(examining whether certain actions were within the scope of federal employment only after

determining that defendants were federal employees). With that understanding in mind, even if

Scalf behaved as the plan foresaw a Cincinnati Police officer acting, he was still wearing ATF

clothes (figuratively and, it appears, literally) when he did so. In other words, simply because

Scalf performed some duties associated with the Cincinnati Police’s role in the operational plan

does not mean that, as a legal matter, he traded his ATF hat in for a Cincinnati Police one.

B. Lanter and Thomas present a more difficult case. All agree that the two were

employed by the Cincinnati Police Department, and thus do not qualify as federal employees in

the conventional sense. But they are still entitled to Westfall Act immunity if they can show they

were “acting on behalf of a federal agency in an official capacity, temporarily or permanently in

the service of the United States, whether with or without compensation.” 28 U.S.C. § 2671.

This “official-capacity clause,” as the Seventh Circuit has named it, has so far gone unexplored

in our Court. Talignani v. United States, 26 F.4th 379, 382 (7th Cir. 2022). With the statutory

ground untilled in our local terrain, I would turn to traditional interpretive rules to understand

Congress’s textual command.

No. 22-5496 Laible, et al. v. Lanter, et al. Page 19

The “official-capacity clause” in fact amounts to three constitutive clauses—(1) “acting

on behalf of a federal agency in an official capacity,” (2) “temporarily or permanently in the

service of the United States,” (3) “whether with or without compensation.” Each contains

prepositional phrases that reveal something about the object of the clause. See United States v.

Cunningham, 630 F. App’x 873, 878 n.6 (10th Cir. 2015). Specifically, Congress modified

“acting on behalf of a federal agency” with the prepositional phrase “in an official capacity.”

And that phrase, in turn, is modified by the phrases “in the service of the United States” and

“with or without compensation.”

Begin with the first clause: “acting on behalf of a federal agency in an official capacity.”

At the time of the FTCA’s passage, “behalf,” when used in the prepositional phrase “on behalf

of,” meant “[o]n the side of, literally . . . [o]n the part of (another).” Behalf, Webster’s New

International Dictionary (2d ed. 1953). The second phrase, “in an official capacity,” cabins the

scope of the first. In other statutory contexts, “official capacity” is understood to encompass

“actions . . . that reasonably can be construed to be within the scope of [one’s] duties and

consistent with the general responsibilities and objectives of [one’s] position.” Wee Child Care

Ctr., Inc. v. Lumpkin, 680 F.3d 841, 848 (6th Cir. 2012) (quoting Sandcrest Outpatient Servs.,

P.A. v. Cumberland County Hosp. Sys., Inc., 853 F.2d 1139, 1145 (4th Cir. 1988)); see also

Official (adj.), Funk & Wagnalls New Standard Dictionary (1943 ed.) (defining official as

“[d]erived from the proper office or officer, or from the proper authority”). So, to act on behalf

of a federal agency in an official capacity requires more than merely supporting or aiding a

federal agency. Otherwise, the language “in an official capacity” would amount to mere

surplusage. In re Davis, 960 F.3d 346, 354–55 (6th Cir. 2020). In other words, “acting on

behalf of a federal agency in an official capacity” is something more formal, and must

encompass some authorized action.

The FTCA also requires that the individual in question act “in the service of the United

States” either in a temporary or permanent fashion. 28 U.S.C. § 2671. Although this phrase is

yet undefined in our case law, I glean an understanding from the word “service.” In the 20th

century, “service” was understood as performance of labor either “for the benefit of another” or

“at another’s command.” Service, Webster’s New International Dictionary (2d ed. 1953). These

No. 22-5496 Laible, et al. v. Lanter, et al. Page 20

definitions indicate that “in the service of” requires acting at the directive of the United States.

After all, if the phrase simply meant “performing labor to benefit,” that would be redundant with

the first clause, “acting on behalf of.” See Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001).

That leaves the last phrase in the provision (“with or without compensation”). It sets

forth one final instruction: that an individual’s “official capacity” status does not turn on whether

the individual is paid for the act.

Reading these three clauses together, under the “official-capacity clause,” an individual

must be performing duties on the side of the federal government, with authority derived from the

federal government, at federal directive.

This understanding is in accord with adjacent Supreme Court authority from the period

following the statute’s enactment. See Logue v. United States, 412 U.S. 521 (1973). Logue

concerned an FTCA suit filed against a county jail alleging that jail officials negligently

supervised a prisoner. Id. at 522–25. In making that claim, the plaintiffs argued that the jail

qualified as a “federal agency,” aiming to make the federal government liable for the purported

negligence of the jail’s employees. Id. at 525–26. Relevant to the Supreme Court’s assessment

was the federal government’s degree of control over the jail. “[T]he authority . . . to control . . .

detailed physical performance,” the Supreme Court explained, is a weighty consideration in

deciding whether an entity should be deemed a federal agency for FTCA purposes. Id. at 527–

28. Applying that standard, the Supreme Court held that the jail was more like a contractor than

a federal agency, and thereby satisfied the statute’s exemption of “contractors” from its

definition of “federal agency.” Id. at 527–30.

The district court concluded that Lanter and Thomas were not “supervised or directed by

the federal government.” That was believed to be the case, the district court reasoned, because

the two took direction from Scalf, who was deemed not to be acting within the scope of federal

employment. In my view, that conclusion deserves a second look.

To start, all here agree that, for today’s purposes, Scalf was a federal employee. Given

Scalf’s interactions with Lanter and Thomas, he arguably exercised federal authority over the

two, such that Lanter and Thomas could fairly be said to have “serv[ed]” the federal government

No. 22-5496 Laible, et al. v. Lanter, et al. Page 21

“in an official capacity.” 28 U.S.C. § 2671. For example, the district court found that Scalf

identified himself as the officer in charge of the pursuit of Meyer, and authorized Lanter and

Thomas to cross the Ohio River. From this factual tapestry, it seems that Scalf, in at least some

respects, directed the actions of Lanter and Thomas. Perhaps the two were also taking orders

from Cincinnati Police officers before or during the chase. Or it could be that they directed each

other in some meaningful way: the district court, for example, found that Lanter “initiated a

pursuit” of Meyer when he fled, later “direct[ing]” Thomas to join him. Likewise, the breadth of

the relevant statutory terms, read together with Logue, suggests that the “authority to directly

control” consideration is a sufficient, but not necessary, ingredient of federal employee status

under the official-capacity clause. See, e.g., U.S. Tobacco Coop., Inc., 899 F.3d at 250–52

(considering whether confidential informants could, in the absence of government direction, be

deemed federal employees under the official-capacity clause).

In light of these (and other) unanswered questions, I would remand for the district court

to address these factual issues in the first instance, taking account of the holding that Scalf falls

within the ambit of Westfall Act immunity. The district court would then need to address the

companion Westfall Act inquiry—whether Lanter and Thomas were acting within the scope of

any federal employment. 28 U.S.C. § 2679. That fact-specific analysis is work the district court

is well equipped to perform. See U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v.

Vill. at Lakeridge, LLC, 583 U.S. 387, 396 (2018) (describing district courts’ competence in

resolving factual issues).

For these reasons, I would reverse the judgment of the district court with respect to Scalf

and vacate and remand with respect to Lanter and Thomas.