Amicus Curiae Brief — Gutierrez De Martinez v. Lamagno

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No. 94-167

In THE

Supreme Court of the United States

OCTOBER TERM, 1994

KATIA GUTIERREZ DE MARTINEZ, et al.,

Petitioners,

Vv.

Dirk A. LAMAGNO, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF MICHAEL K. KELLOGG

AS AMICUS CURIAE SUPPORTING

THE JUDGMENT BELOW

MICHAEL K. KELLOGG

(Amicus Curiae, invited by Court,

per order of November 15, 1994)

KELLOGG, HUBER, HANSEN & Topp

1300 I Street, N.W.

Suite 500 East

Washington, D.C. 20005

(202) 326-7902

_ ee

Me BEST AVAILABLE COPY |

QUESTION PRESENTED

Whether the Attorney General’s certification under the

Westfall Act, 28 U.S.C. § 2679(d), that a government

employee was acting within the scope of employment re-

quires that the United States be substituted for the em-

ployee as the defendant in a civil action.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ......................-ccscessesssesesseeeseese

TABLE OF AUTHORITIES ........................c-ceccsossssecsssee

INTEREST OF AMICUS CURIAE .................0-.c.0ccse--0-0

STATUTORY PROVISIONS INVOLVED .........000.....

INTRODUCTION AND SUMMARY OF ARGUMENT...

III asteaccsiesinsntethtecmmestecemnnnepensennnsecenssnssscscasnssctncssess

THE ATTORNEY GENERAL’S CERTIFICATION

UNDER 28 U.S.C. § 2679(d), THAT A GOVERN-

MENT EMPLOYEE WAS ACTING WITHIN THE

SCOPE OF EMPLOYMENT, REQUIRES THAT

THE UNITED STATES BE SUBSTITUTED FOR

THE EMPLOYEE AS THE DEFENDANT ............

The Language and Structure of the Westfall

Act Preclude District Courts from Second-

Guessing the Attorney General’s Certification...

The History of the Westfall Act Confirms that

District Courts May Not Second-Guess the At-

torney General’s Certification ................................

The United States’ Reading of the Westfall Act

Ignores Basic Principles of Agency Law That

Congress Showed No Intent to Override ............

. The United States’ Reading of the Westfall Act

Creates Serious Administrative Problems and

Undermines the Policy Objectives of the Act .......

E. The United States’ Reading of the Westfall Act

Creates an Article III Problem ................ eaiteetions

EE EEE

TABLE OF AUTHORITIES

Cases: Page

Aliota v. Graham, 984 F.2d 1350 (3d Cir.), cert.

S: | fe |, xe 29

Associated General Contractors of California, Inc.

v. California State Council of Carpenters, 459

2 Fe ee ee 12

Aviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989) ... 4,10,

25, 29

Barr v. Mateo, 360 U.S. 564 (1959) —............. 27

Block v. Community Nutrition Inst., 467 U.S. 340

SIE siistesiriccidiatetinnidteipaiciaesineteihaamtiaiaaetieniataaiinaiiaatinniititedl 5, 8,12

Brown v. Armstrong, 949 F.2d 1007 (8th Cir

See enna erate mane Leena a 26

FEC v. NRA Political Victory Fund, 63 U.S.L.W.

RA En 22

Garcia v. United States, 469 U.S. 70 (1984) —......... 18

Hamrick v. Franklin, 931 F.2d 1209 (7th Cir.),

cert. denied, 112 S. Ct. 200 (1991)... 13

Johnson v. Carter, 983 F.2d 1316 (4th Cir.), cert.

denied, 114 S. Ct. 57 (1998) .......................--.--- 4, 9, 25, 27

Kimbro v. Velten, 30 F.3d 1501 (D.C. Cir. 1994) ..25, 29, 34

Laughlin v. Prudential Ins. Co., 882 F.2d 187 (5th

I, iad iceland ee caetceneeiliaaas 22

McHugh v. University of Vermont, 966 F.2d 67

Eee 24, 27

Melo v. Hafer, 912 F.2d 628 (3d Cir. 1990), aff'd

on other grounds, 502 U.S. 21 (1991) ................ 30

Melo v. Hafer, 13 F.3d 736 (3d Cir. 1994) ............ 26, 27

Meridian Int'l Logistics, Inc. v. United States, 939

F.2d at 740 (9th Cir. 1991) .........2......-----cc--ccec---e-- 13, 27

Mesa v. California, 489 U.S. 121 (1989) ............ 30, 31, 34

Mitchell v. Carlson, 896 F.2d 128 (5th Cir. 1990) .. 33

Morris v. Gressette, 482 U.S. 491 (1977) _............... x

Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439

(D.C. Cir. 1988), cert. denied, 488 U.S. 1010

Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990) ....passim

Novick v. Gouldsberry, 173 F.2d 496 (9th Cir.

TED ctneecsncieeineneteiteienienensiinnientiidhieiiibimeeemean 20

Osborn v. Bank of the United States, 22 U.S. (9

Wee GD cnecncrnsnnnntennnnssnenateniciseies 7,31

TABLE OF AUTHORITIES—Continued

Cases: Page

S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538

(11th Cir. 1990), cert. denied, 112 S. Ct. 62

oon rere 13, 26, 34

Schilling v. Rogers, 363 U.S. 666 (1960) —............. 8

Schrob v. Catterson, 967 F.2d 929 (3d Cir. 1992).. 13, 26

Smith v. Sperling, 354 U.S. 91 (1957) 000... 31, 32

Southern Ry. v. Seaboard Allied Milling Corp., 442

EEE ea enn &

Sowell v. American Cyanamid Co., 888 F.2d 802

I aceite 23

Switchmen’s Union of N. Am. v. National Media-

tion Bd., 320 U.S. 297 (1948) ............................... 8,12

United Mine Workers v. Gibbs, 383 U.S. 715

STITT icirincns seeceaeeete pare caheelamliiadiecenininiaaneieine italiani 32

United States v. Monsanto, 491 US. 600 (1989)... 4,9

United States v. Smith, 111 S. Ct. 1180 (1991)... 6 12,

13, 23

Verlinden B.V. v. Central Bank, 461 U.S. 480

EE eer eee ater nao 30, 31

Westfall v. Erwin, 484 U.S. 292 (1988) 0.000000... 3

Williams v. United States, 350 U.S. 857 (1955)...... 30

Wood v. United States, 995 F.2d 1122 (1st Cir.

ERIS RE ae 6, 25, 27

Constitutional Provisions, Statutes, and Rules:

EE passim

EN 32

ee a Te 34

RESTLESS een Caen Cer ee 23

Controlled Substances Act, § 709, 21 U.S.C. § 904.. 24

Federal Drivers Act, Pub. L. No. 87-258, 75 Stat.

539 (1961) (codified at 28 U.S.C. § 2679(d)

CES wenn ween eee passim

Federal Employees Liability Reform and Tort

Compensation Act of 1988, Pub. L. No. 100-694,

I eel passim

§ 6, 102 Stat. 4564, 28 U.S.C. § 2679(d) _........ passim

Fed. R. Civ. P. 19(a) ............... Si sieaeeidiaiiiaitenialatiidblleae te 10, 11

ee 10, 11

TABLE OF -AUTHORITIES—Continued

Legislative Materials: Page

H.R. 4358, 100th Cong., 2d Sess. (1988)... 18

H.R. Rep. No. 700, 100th Cong., 2d Sess. (1988) .... passim

Legislation to Amend the Federal Tort Claims Act:

Hearing on H.R. 4858, H.R. 3872, and H.R. 3083

Before the Subcomm. on Administrative Law

and Governmental Relations of the House Comm.

on the Judiciary, 100th Cong., 2d Sess. (1988).. 18, 19

Other Materials:

5 F. Harper, F. James, Jr., & O. Gray, The Law of

Torts (2d ed. 1986) ........................ 21

American Heritage Dictionary (2d ed. 1985) ..........

Black’s Law Dictionary (6th ed. 1990) ..........0..........

Random House Unabridged Dictionary (2d ed.

I Roe cle

Webster's Ninth Collegiate Dictionary (1987)........

Restatement (Second) of Agency § 219 (1958) ........

§ 359c (1958)... .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-167

KATIA GUTIERREZ DE MARTINEZ, et al.,

- Petitioners,

Dirk A. LAMAGNO, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF MICHAEL K. KELLOGG

AS AMICUS CURIAE SUPPORTING

THE JUDGMENT BELOW

INTEREST OF AMICUS CURIAE

On November 15, 1994, this Court invited Michael K.

Kellogg to brief and argue this case, as amicus curiae,

in support of the judgment below.

STATUTORY PROVISIONS INVOLVED

The Federal Employees Liability Reform and Tort

Compensation Act of 1988 (commonly known as the West-

fall Act), Pub. L. No. 100-694, §6, 102 Stat. 4564,

States in relevant part:

(1) Upon certification by the Attorney General

that the defendant employee was acting within the

scope of his office or employment at the time of the

incident out of which the claim arose, any civil ac-

tion or proceeding commenced upon such claim in

a United States district court shall be deemed an

action against the United States under the provisions

of this title and all references thereto, and the United

States shall be substituted as the party defendant.

(2) Upon certification by the Attorney General

that the defendant employee was acting within the

scope of his office or employment at the time of the

incident out of which the claim arose, any civil action

or proceeding commenced upon such claim in a State

court shall be removed without bond at any time be-

fore trial by the Attorney General to the district court

of the United States for the district and division em-

bracing the place in which the action or proceeding is

pending. Such action or proceeding shall be deemed

to be an action or proceeding brought against the

United States under the provisions of this title and

all references thereto, and the United States shall be

substituted as the party defendant. This certification

of the Attorney General shall conclusively establish

scope of office or employment for purposes of removal.

(3) In the event that the Attorney General has

refused to certify scope of office or employment under

this section, the employee may at any time before

trial petition the court to find and certify that the

employee was acting within the scope of his office or

employment. Upon such certification by the court,

such action or proceeding shall be deemed to be an

action or proceeding brought against the United

States under the provisions of this title and all ref-

erences thereto, and the United States shall be sub-

Stituted as the party defendant. A copy of the pe-

tition shall be served upon the United States in ac-

cordance with the provisions of Rule 4(d)(4) of the

Federal Rules of Civil Procedure. In the event the

petition is filed in a civil action or proceeding pend-

ing in a State court, the action or proceeding may

be removed without bond by the Attorney General

to the district court of the United States for the dis-

trict and division embracing the place in which it is

pending. If, in considering the petition, the district

court determines that the:employee was not acting

within the scope of his office or employment, the

action or proceeding shall be remanded to the State

court.

(4) Upon certification, any action or proceeding

subject to paragraph (1), (2), or (3) shall pro-

ceed 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. § 2679(d)(1)-(4).

INTRODUCTION AND SUMMARY OF ARGUMENT

In Westfall v. Erwin, 484 U.S. 292 (1988), this Court

held that federal employees do not enjoy automatic im-

munity from state-law tort suits for conduct within the

scope of their office or employment. Congress responded

by enacting the so-called Westfall Act, Pub. L. No. 100-

694, 102 Stat. 4563. Under the Westfall Act, the Fed-

eral Tort Claims Act (FTCA), 28 U.S.C. 8§ 1346(b),

1402(b), 2401(b), 2671-2680 (1988 & Supp. 1993), is

the exclusive remedy for injuries caused by the torts of

federal employees acting within the scope of their em-

ployment. Upon certification by the Attorney General

that an employee was acting within the scope of his em-

ployment with respect to the actions in question, the origi-

nal defendant is dismissed from the suit, the United States

is substituted as the defendant, and the suit proceeds

against the government under the FTCA.

The question in this case is whether the Attorney Gen-

eral’s certification as to scope of employment is review-

able in district court. May a district court, notwithstand-

ing certification, conclude that the employee was acting

outside the scope of his employment and, therefore, de-

cline to substitute the United States as the defendant?

That question must be answered in the negative.

A. The language and structure of the Westfall Act

preclude such review. The Westfall Act states that when

a case is brought against a federal employee in state

court, “[u]pon certification by the Attorney General that

the defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose,” the case “shall be removed” to

federal court. In the district court, “[s]uch action or pro-

ceeding shall be deemed to be an action or proceeding

brought against the United States . . . and the United

States shall be substituted as the party defendant.” 28

U.S.C. § 2679(d)(2) (emphasis added).

Congress’s use of the word “shall” eliminates any discre-

tion: “Congress could not have chosen stronger words

to express its intent that [the specified action] be manda-

tory.” United States v. Monsanto, 491 U.S. 600, 607

(1989). “By the plain language of 28 U.S.C. § 2679

(d),” therefore, “no discretion is given to the district

court.” Johnson vy. Carter, 983 F.2d 1316, 1319 (4th Cir.)

(en banc), cert. denied, 114 S. Ct. 57 (1993). Accord

Aviles v. Lutz, 887 F.2d 1046, 1049 (10th Cir. 1989)

(“The mandatory language of subsection (d) does not

permit [courts] to challenge the attorney general’s certifi-

cation.”’).

The Westfall Act permits the district court to make

a determination as to scope of employment only in a

single instance: where the Attorney General “has refused

to certify scope of office or employment.” 28 U.S.C.

§ 2679(d)(3). In that case, the defendant employee may

“petition the court to find and certify that the employee

was acting within the scope of his office or employment.”

Ibid. But the Westfall Act makes no provision for ju-

dicial review at the behest of the plaintiff, if the Attorney

General does certify. This “detailed mechanism for ju-

dicial consideration of particular issues at the behest of

particular persons” reinforces that the statute precludes

“judicial review of those issues at the behest of other per-

sons.” Block v. Community Nutrition Inst., 467 U.S. 340,

349 (1984).

B. The legislative history of the Westfall Act confirms

that district courts may not second-guess the Attorney

General’s certification. The now-superseded Federal Driv-

ers Act, Pub. L. No. 87-258, 75 Stat. 539 (1961) (codi-

fied at 28 U.S.C. § 2679(d) (1982)), which the United

States acknowledges “served as the model for the West-

fall Act” (U.S. Br. at 20), expressly permitted district

court review of the Attorney General’s certification. The

fact that Congress omitted this language from the West-

fall Act, and replaced it with language mandating sub-

stitution of the United States for the employee, under-

scores that there is no judicial review of the certification

decision. That is also the clear implication of the House

Report that accompanied the Westfall Act, which states

that the new Act will “require the United States to be

substituted for a Federal employee as the sole defendant

in a civil lawsuit whenever the Attorney General deter-

mines that the act or omission alleged to have caused the

claimant’s injuries was within the scope of the employee’s

office or employment.” H.R. Rep. No. 700, 100th Cong.,

2d Sess. 9 (1988) (emphasis added).

C. The non-reviewability of the certification decision

is consistent with basic principles of agency law. Under

the common law of agency, an employer can become liable

for the acts of an employee by conceding that those acts

are within the scope of employment. The court does not

look behind such an admission to determine whether the

admission should have been made (i.e., whether the em-

ployee was actually acting within the scope of his employ-

ment). The certification process is akin to an admission

by the United States that the employee was acting within

the scope of his employment. The admission is binding

upon the United States and causes the United States to be

substituted as defendant in the suit.

In some instances, after the defendant employee drops

out of the case, the United States will be able to dismiss

the suit based on a retained immunity under the FTCA.

See United States v. Smith, 111 S. Ct. 1180, 1185 (1991)

(the Westfall Act “makes the FTCA the exclusive mode

of recovery for the tort of a Government employee even

when the FTCA itself precludes Government liability”).

The lower court decisions permitting judges to second-

guess the Attorney General’s certification are, at bottom,

simply an attempt to avoid the implications of this statu-

tory scheme. They ignore a basic principle of agency

law—the binding nature of an employer’s admission as to

scope of employment—so as to evade the retained im-

munities of the United States as employer.

D. The United States’ reading of the statute also causes

practical problems that undermine the policies of Congress.

It invites plaintiffs, through “artful pleading,” to “trans-

form a job-related tort into a non-job-related tort simply

by alleging, say an ‘off-duty’ state of mind (such as ‘ma-

licious’ intent) or by alleging that a negligent action was

carried out intentionally.” Wood v. United States, 995

F.2d 1122, 1129 (1st Cir. 1993).

In such circumstances, a determination on the merits

is effectively required before the immunity question can

be resolved. In order to prove that he is entitled to im-

munity, because he was acting within the scope of his

employment, the employee has to prove that he did not

discriminate or harass or commit battery or slander (all

torts that arguably cannot fall within the employee’s scope

of employment). Lower courts that accept the United

States’ reading of the statute have accordingly developed

elaborate procedures to deal with the scope of employ-

ment issue. These mini-trials on the merits—with the

consequent concerns about ultimate liability—defeat the

Westfall Act’s basic objective of avoiding “protracted per-

sonal tort litigation for the entire Federal workforce.”

See Westfall Act § 2(a)(5).

E. Finally, judicial review of the certification decision

would raise a serious Constitutional problem. Under the

United States’ reading of the statute, certification is con-

clusive with respect to removal but not with respect to

substitution. Thus, when a case is removed to federal

court pursuant to Section 2679(d)(2), a federal court

may determine that, notwithstanding certification, the de-

fendant was acting outside the scope of his employment

and therefore decline to substitute the United States as

defendant. But then, even if there is no diversity and no

federal question in the case, the court will be powerless

to remand the action to state court. See 28 U.S.C. § 2679

(d)(2) (certification “shall conclusively establish scope

of office or employment for purposes of removal”).

The Article III basis for granting such jurisdiction is

questionable, unless this Court adopts a theory of “pro-

tective jurisdiction,” or ratifies a broad reading of Osborn

v. Bank of the United States, 22 U.S. (9 Wheat.) 738

(1924). Moreover, even if the statute, as interpreted by

the United States, could scrape by under Article [1]—even

if the Court decides that the Attorney General’s certifica-

tion alone (invalid though it may be) confers subject

matter jurisdiction on the court—there is no reason to

believe that Congress wanted to push the constitutional

envelope so far. It would be unprecedented for Con-

gress to compel a district court to retain jurisdiction over

a purely state law case, simply because, at the outset

of the case, the validity of the Attorney General’s cer-

tification had to be determined.

The Court should accordingly decline the United

States’ invitation to twist the language, structure, history,

and underlying policies of the statute, and to trample

on basic principles of agency law, all in order to reach

a result that itself would raise serious constitutional

concerns.

ARGUMENT

THE ATTORNEY GENERAL’S CERTIFICATION UN-

DER 28 U.S.C. § 2679(d), THAT A GOVERNMENT EM-

PLOYEE WAS ACTING WITHIN THE SCOPE OF

EMPLOYMENT, REQUIRES THAT THE UNITED

STATES BE SUBSTITUTED FOR THE EMPLOYEE

AS THE DEFENDANT.

A. The Language and Structure of the Westfall Act Pre-

clude District Courts from Second-Guessing the Attor-

ney General’s Certification.

The United States, in its brief, relies heavily on a

general presumption in favor of judicial review of execu-

tive action. See U.S. Br. at 16. But, aside from its strik-

ing inapplicability in this particular context (see sections

C & D, infra), “(t]he presumption favoring judicial review

. is just that—a presumption. This presumption, like

all presumptions used in interpreting statutes, may be

overcome by specific language” in the statute in question

and “by inferences of intent drawn from the statutory

scheme as a whole.” Block v. Community Nutrition Inst.,

467 U.S. at 349. See also, e.g., Southern Ry. v. Sea-

board Allied Milling Corp., 442 U.S. 444, 454-63 (1979);

Schilling v. Rogers, 363 U.S. 666, 670-77 (1960); Morris

v. Gressette, 432 U.S. 491 (1977): Switchmen’s Union

of N. Am. v. National Mediation Bd., 320 U.S. 297

(1943). Indeed, it is only “where substantial doubt about

the congressional intent exists,” based on the language and

structure of the statute, that “the general presumption

favoring judicial review . . . is controlling.” Block, 467

U.S. at 349.

Here, there can be no doubt about congressional in-

tent if words are given their normal meaning. The West-

fall Act states that, “[u]pon certification by the Attorney

General that the defendant employce was acting within the

scope of his office or employment at the time of the inci-

dent out of which the claim arose, any civil action or pro-

ceeding commenced upon such claim in a United States

district court shall be deemed an action against the United

States .. . and the United States shal! be substituted as the

narty defendant.” 28 U.S.C. § 2679(d)(1) (emphasis

added). This mandatory language is repeated in subsec-

tion (d)(2) concerning removal of cases brought against

employees in state court: upon certification by the Attor-

ney General, the case “shall be removed,” the action “shall

be deemed” to be against the United States, and the

United States “shall be substituted” as the party defend-

ant. 28 U.S.C. § 2679(d)(2). See also 28 U.S.C. § 2679

(d)(4) (“Upon certification, any action or proceeding

subject to paragraph (1), (2), or (3) shall proceed in

the same manner as any action against the United States” )

(emphasis added).

There is no wiggle room here. As this Court has ex-

plained. where the word “shall” appears in a statutory

directive, “Congress could not have chosen stronger words

to express its intent that [the specified action] be manda-

tory.” United States v. Monsanto, 491 U.S. at 607.

Black's Law Dictionary describes the term “shall” as “a

word of command, . . . which must be given a compulsory

meaning; as denoting obligation. The word in ordinary

usage means ‘must’ and is inconsistent with a concept of

discretion.” Black’s Law Dictionary 1375 (6th ed. 1990).

Indeed, “[i]t has the invariable significance of excluding

the idea of discretion.” Jbid. Other sources are to the

same effect.’

“By the plain language of 28 U.S.C. § 2679(d),” there-

fore, “no discretion is given to the district court.” Johnson

v. Carter, 983 F.2d at 1319. Once certification has oc-

curred, substitution shall follow inexorably. “The man-

1 See, e.g., Random House Unabridged Dictionary 1757-58 (2d

ed. 1993) (“Shall . .. (3) (in laws, directives, etc.) must; is

or are obliged to”); American Heritage Dictionary 1125 (2d cd.

1985) (“Shall ...c. Command ...d. A directive or requirement.’’) ;

Webster’s Ninth Collegiate Dictionary 1081 (1987) (“Shall ...

b—used in laws, regulations, or directives to express what is man-

datory’”’).

datory language of subsection (d) does not permit [courts]

to challenge the attorney general’s certification.” Aviles

v. Lutz, 887 F.2d at 1049.

The United States tries to finesse the word “shall” in a

way that merely reinforces it. The United States (Br. at

15) points out that “[t]he judicial rules governing joinder

of parties are commonly phrased in mandatory terms.”

For example, Federal Rule of Civil Procedure 19(a) states

that persons “shall be joined” if certain conditions are

met, and Rule 24(a) states that “anyone shall be per-

mitted to intervene” if certain other conditions are met.

Despite the use of the word “shall” in each instance, the

United States explains, “[p]arties are nevertheless entitled

to challenge joinder on the ground that the legal and

factual predicates for adding new parties have not been

satisfied, and the federal district courts are responsible

for resolving those questions.” Br. at 15.

But the same is true here. The “legal and factual pred-

icate” for substitution of the United States is certification.

A plaintiff can certainly challenge substitution on the

grounds that the Attorney General did not certify, and the

federal district courts are responsible for resolving that

question, just as they are responsible under Federal Rule

of Civil Procedure 19(a) for determining whether the

conditions for mandatory joinder have been met and under

Rule 24(a) for determining whether the conditions for

intervention of right have been met.

In each instance, the statute or rule itself describes the

precise conditions which, if found to exist, mandate a cer-

tain result. Under Rule 19(a) there are certain express

conditions which, if found to exist, require joinder.*

2 Rule 19(a) provides:

Persons to be Joined if Feasible. A person who is subject

to service of process and whose jcinder will not deprive the

court of jurisdiction over the subject matter of the action shall

be joined as a party in the action if (1) in the person’s ab-

sence complete relief cannot be accorded among those already

Under Rule 24(a), there are certain express conditions

which, if found to exist, require the court to permit inter-

vention.*

Here, the only condition precedent to substitution of

the United States enumerated in the statute is “certifica-

tion.” The statute does not state that “if the defendant em-

ployee was acting within the scope of his office or em-

ployment at the time of the incident out of which the

claim arose,” the United States shall be substituted as

defendant. If that were the case, then the district court

would be responsible for resolving that question, and the

reliance of the United States on Rules 19(a) and 24(a)

would make some sense. But the Westfall Act looks only

to the Attorney General’s certification. Whether certifica-

tion has occurred is the only event the district court is

charged with determining.

parties, or (2) the person claims an interest relating to the

subject of the action and is so situated that the disposition

of the action in the person’s absence may (i) as a practical

matter impair or impede the person’s ability to protect that

interest or (ii) leave any of the persons already parties sub-

ject to a substantial risk of incurring double, multiple, or

otherwise inconsistent obligations by reason of the claimed

interest. If the person has not been so joined, the court shall

order that the person be made a party. If the person should

join as a plaintiff but refuses to do so, the person may be made

a defendant, or, in a proper case, an involuntary plaintiff. If

the joined party objects to venue and joinder of that party

would render the venue of the action improper, that party

shall be dismissed from the action.

* Rule 24(a) provides:

Intervention of Right. Upon timely application anyone shall

be permitted to intervene in an action: (1) when a statute

of the United States confers an unconditional right to inter-

vene; or (2) when the applicant claims an interest relating to

the property or transaction which is the subject of the action

and the applicant is so situated that the disposition of the

action may as a practical matter impair or impede the appli-

cant’s ability to protect that interest, unless the applicant’s

interest is adequately represented by existing parties.

This natural reading of Section 2679(d) is also con-

sistent with the structure of the Westfall Act. The Act

permits the district court to make a determination as to

scope of employment only in a single instance: where the

Attorney General “has refused to certify scope of office

or employment.” 28 U.S.C. § 2679(d)(3). In that case,

the defendant employee may “petition the court to find

and certify that the emp'oyee was acting within the scope

of his office or employment.” /bid. But the Westfall Act

makes no provision for judicial review at the behest of

the plaintiff, if the Attoriey General does certify.

As this Court has noted, “when a statute provides a

detailed mechanism for judicial consideration of particular

issues at the behest of particular persons [here, the de-

fendant employees], judicial review of those issues at the

behest of other persons [such as the plaintiffs] may be

found to be impliedly precluded.” Block, 467 U.S. at

349.* See also Switchmen’s Union of N. Am. v. National

Mediation Bd., 320 U.S. at 300-01; cf. Associated General

Contractors of California, Inc. v. California State Coun-

cil of Carpenters, 459 U.S. 519, 542 (1983). Or, as the

United States (Br. at 20) so aptly explains, “‘it is gen-

erally presumed that Congress acts intentionally and pur-

posely,” when it ‘includes particular language in one sec-

tion of a statute but omits it in another.’ City of Chicago

v. Environmental Defense Fund, 114 S. Ct. 1588, 1593

(1994).”

Consistent with these principles, this Court appears to

have previously read the statute as precluding review of

the Attorney General’s certification. See United States v.

Smith, 111 S. Ct. 1180 (1991). The precise question at

issue here was not presented in Smith. But, in discussing

certification, the Court referred to “the required substitu-

4 Here, of course, the Court does not have to rely on implied

preclusion. While Section 2679(d)(3) expressly provides for ju-

dicial review at the behest of the defendant, Sections 2679(d) (1)

and (d)(2), by their mandatory language, expressly preclude ju-

dicial review in other circumstances.

tion of the United States as the defendant,” id. at 1185

(emphasis added), and contrasted that with the situation

in which the Attorney General declines to certify. “Once

certification occurs,” the Court explained, “the action

‘shall be deemed an action against the United States

[under the FTCA] and the United States shall be sub-

stituted as the party defendant.’ Where the Attorney Gen-

eral refuses to seek certification, the Act permits the em-

ployee to seek a judicial determination that he was acting

within the scope of his employment.” /d. at 1184 n.5

(citations omitted ).

Indeed, letting a district court determine scope of em-

ployment even when the Attorney General does certify

would render the certification process of (d)(1) and

(d)(2) largely superfluous. The federal employee will

always prefer to be replaced as defendant by the United

States and therefore can always be expected to petition

the Court for a ruling on scope of employment under

(d)(3) if he or she has a colorable argument. If the fact

of certification under (d)(1) or (d)(2) does not have

conclusive effect on the question of scope of employment

—if the district court can make its own determination on

this issue, notwithstanding the Attorney General’s certifi-

cation—then all that is necessary to trigger the Court's

determination is a petition under (d)(3). Certification

under (d)(1) or (d)(2) becomes an empty formality.®

5 The United States has argued in lower courts that the Attor-

ney General’s certification, although not conclusive, still warrants

“substantial deference” and that the plaintiff, therefore, bears a

heavy burden of proving that the defendant was acting outside

the scope of her employment. See, e.g., Brief of the United States

at 22, SJ. & W. Ranch, Inc. v. Lehtinen (11th Cir. 1990) (No.

89-5990). But there is no apparent basis in the statute for such

deference, and all the lower courts considering that argument have

rejected it. See Schrob v. Catterson, 967 F.2d 929, 936 n.13 (3d

Cir. 1992); Meridian Int'l Logistics, Inc. v. United States, 939

F.2d 740, 745 (9th Cir. 1991) ; Hamrick v. Franklin, 931 F.2d 1209,

1211 (7th Cir.), cert. denied, 112 S. Ct. 200 (1991); SJ. & W.

Ranch v. Lehtinen, 913 F.2d 1538, 1543 (llth Cir. 1990), cert.

The United States attempts to bolster its position by

pointing to the fact that Congress “explicitly precluded

judicial review of the certification decision with respect

to removal” of cases from state courts. Br. at 20 (citing

28 U.S.C. § 2679(d)(2) (“This certification of the At-

torney General shall conclusively establish scope of office

or employment for purposes of removal”)). Since “Con-

gress did not state . . . that the Attorney General's cer-

tification would also ‘conclusively’ establish the scope of

office or employment for purposes of substitution,” the

United States argues (Br. at 20), it is “natural to con-

clude that Congress intended . . . that the courts would

continue to have authority to review scope-of-employment

certifications for purposes of substitution.”

But, of course, Congress did—through use of the man-

datory word “shall”—state that the Attorney General’s

certification would conclusively establish scope of employ-

ment for purposes of substitution. The fact that Congress

added additional words to reinforce that point in the

context of removal does not alter the evident meaning of

the language used concerning substitution. To the con-

trary, it reinforces it. Removal—because it concerns the

jurisdiction of the court—is most likely to spark de novo

judicial review, notwithstanding the plain language of the

statute. See, e.g., Nasuti v. Scannell, 906 F.2d 802, 808

(Ist Cir. 1990) (citing “the district court’s normal power

to determine . . . the court’s own subject-matter jurisdic-

tion” as a reason for disregarding the language of the

Westfall Act). In that context, where a court would

otherwise be most likely to second-guess the Attorney

General’s determination, the statute underscores that re-

view is not appropriate.

denied, 112 S. Ct. 62 (1991); Nasuti v. Scannel, 906 F.2d 802, 808

(ist Cir. 1990). Once the United States abandons its mooring in

the mandatory language of the statute, the Attorney General’s

certification is simply cast adrift, with no further relevance to the

ultimate question of scope of employment.

Beyond this, the United States’ attempt to bifurcate

removal and substitution——whereby certification is con-

clusive for purposes of the one, but not of the other—is

contrary to the logical framework of the statute. Under

Section 2679(d)(3), which permits the defendant em-

ployee to petition for a finding by the Court as to scope

of employment when the Attorney General declines to

certify, the United States may (if the case is in state

court) remove it to district court for a determination of

scope of employment. “If, in considering the petition,”

the statute goes on to state, “the district court determines

that the employee was not acting within the scope of his

office or employment, the action or proceeding shall be

remanded to the State court.” 28 U.S.C. § 2679(d)(3)

(emphasis added). In other words, Congress intended

removal and substitution to go together. There is no indi-

cation that Congress wanted purely state law claims, with-

out any diversity, based on actions outside the scope of

employment, in cases in which the United States is not

substituted as defendant, to be heard in federal court.

Certification must be conclusive as to both removal and

substitution, or neither. Since, as the United States cor-

rectly concedes (see pp. 33-34, infra), it must be con-

clusive as to removal, then it must be so with respect to

substitution as well.

B. The History of the Westfall Act Confirms that District

Courts May Not Second-Guess the Attorney General’s

Certification.

The nature of the current statutory scheme is high-

lighted by its difference from the now-superseded Federal

Drivers Act, Pub. L. No. 87-258, 75 Stat. 539 (1961)

(codified at 28 U.S.C. § 2679(d) (1982)), which the

United States acknowledges “served as the model for the

Westfall Act.” Br. at 19.° The Federal Drivers Act made

* For the convenience of the Court, the Federal Drivers Act is

reprinted in full as an Appendix to this brief.

the FTCA the exclusive remedy for injuries “resulting

from the operation by any employee of the Government

of any motor vehicle while acting within the scope of his

office or employment.” 28 U.S.C. § 2679(b) (1982).

The Federal Drivers Act, like the Westfall Act, provided

for certification of scope of employment by the Attorney

General and stated that, upon such certification in a

State court action, the action “shall be removed” to fed-

eral district court and “the proceedings deemed a tort

action brought against the United States” under the

FTCA. 28 U.S.C. § 2679(d) (1982). In other words,

upon certification two consequences followed: removal

of the case to federal court and substitution of the United

States as defendant.

The United States notes (Br. at 19) that “district

courts routinely resolved challenges to the Attorney Gen-

eral’s certifications under the Federal Drivers Act when

determining whether the case was properly removed and

the United States was properly substituted as the defend-

ant.” The United States suggests (id. at 20) that “[iJf

Congress had intended to depart from that established

practice . .. and make the Attorney General’s scope-of-

employment certifications [under the Westfall Act] con-

clusive on the courts, one would expect that it would have

done so explicitly.”

What the United States rather surprisingly fails to men-

tion, however, is that the Federal Drivers Act itself ex-

pressly provided that the Attorney General's certification

was reviewable, both for purposes of substitution and for

purposes of removal. See 28 U.S.C. § 2679(d) (1982):

Should a United States district court determine on a

hearing on a motion to remand held before a trial on

the merits that the case so removed is one in which

a remedy by suit within the meaning of subsection

(b) of this section is not available against the United

States [i.e., it is not a case “resulting from the opera-

tion by any employee of the Government of any

motor vehicle while acting within the scope of his of-

fice or employment” (28 U.S.C. § 2679(b) (1982) )],

the case shall be remanded to the State court.

The fact that Congress omitted this language from the

Westfall Act, and replaced it with language precluding

judicial review, underscores what the plain language of

the Westfall Act indicates: that there is no judicial review

of the certification decision, with respect either to substitu-

tion or to removal. See Muscogee (Creek) Nation v.

Hodel, 851 F.2d 1439, 1444 (D.C. Cir. 1988) (“Where

the words of a later statute differ from those of a previous

one on the same or related subject, the Congress must

have intended them to have a different meaning.” ), cert.

denied, 488 U.S. 1010 (1989).

Under the Federal Driver’s Act, substitution and re-

moval were treated alike: if the certification was rejected

by the district court then the United States was not sub-

stituted as a defendant and the case was remanded to state

court. Under a proper reading of the Westfall Act, sub-

stitution and removal are also treated alike: certification

is conclusive with respect to both. That is certainly the

clear implication of the House Report that accompanied

the Westfall Act. The Report notes:

Section 6 would amend section 2679(d) of title 28

to require the United States to be substituted for a

Federal employee as the sole defendant in a civil

lawsuit whenever the Attorney General determines

that the act or omission alleged to have caused the

claimant’s injuries was within the scope of the em-

ployee’s office or employment. Once made, this de-

termination also would require that any case filed in

State court be removed to a Federal district court.

H.R. Rep. No. 700, 100th Cong., 2d Sess. 9 (1988)

(emphasis added). There is no indication in the Report

that, contrary to this mandatory language, the certifica-

tion decision is reviewable. Nor, certainly, is there any

indication that Congress intended to bifurcate the issues

of substitution and removal: the same language is used

with respect to both. The only time that review of the

scope-of-employment issue is mentioned is where “the At-

torney General refuses to certify that an employee was

acting within the scope of his office or employment.”

Ibid. In that instance, “the employee is authorized to

petition the Court for a ruling on this determination.”

Ibid. There is no comparable reference to review at the

behest of a plaintiff when the Attorney General does cer-

tify. Any member of Congress reading the report, like

any member of Congress reading the statute, would con-

clude that no such review is permitted.

The United States claims that some snippets from the

legislative hearings indicate a congressional “understand-

ing” that the Attorney General’s certification would be

reviewable for purposes of substitution. U.S. Br. at 21

n.6. But the statements of one Congressman and one

witness, buried in a 278 page hearing transcript, hardly

rise to the level of a congressional “understanding.”

Moreover, the United States is simply wrong in stating

that “[nJothing in the legislative history contradicts that

understanding.” [bid.

Aside from the fact that a House Report lays greater

claim to reflect congressional understanding than isolated

statements in the legislative hearings, a more complete

perusal of the hearings themselves is enough to disturb

the United States’ attempted “gestalt judgment as to what

Congress probably intended.” Garcia v. United States,

469 U.S. 70, 78 (1984). As originally drafted, the Act

did not contain Section 2679(d)(3), which permits an

employee to petition the Court for a ruling on scope of

employment whenever the Attorney General declines to

certify. See H.R. 4358, reprinted in Legislation to Amend

the Federal Tort Claims Act: Hearing on H.R. 4358,

H.R. 3872, and H.R. 3083 Before the Subcomm. on Ad-

ministrative Law and Governmental Relations of the

House Comm. on the Judiciary, 100th Cong., 2d Sess. 2

(1988) (“Hearing”). Lois G. Williams, Director of Liti-

gation of the National Treasury Employees Union, ob-

jected to the Act precisely because the Attorney General’s

certification decision was not subject to review. “The

Attorney General’s certification under the Federal Drivers

Act is,” Ms. Williams testified, “at least in some degree,

reviewable by a court... . The proposed legislation, how-

ever, purports to remove any review.” Hearing at 184.

Ms. Williams expressed concern, on behalf of federal em-

ployees, that “if the Attorney General has sole discretion

over the scope of duty questions, the appearance of con-

flict of interest is unavoidable in many cases. The repre-

sentative of the government that will be liable for dam-

ages, should a case be proved, is empowered to decide

whether the government or the employee will defend the

suit, and perhaps who will pay the damages.” /bid.

In the colloquy that followed Ms. Williams’ statement,

Representative Barney Frank, the Chairman of the House

subcommittee considering the legislation, expressed sym-

pathy with Ms. Williams’ concerns about employee de-

fendants. He also indicated that he thought plaintiffs

should “have the right to go into court and say, baloney,

it was not within the scope of employment... .” Hearing

at 197 (remarks of Mr. Frank). Chairman Frank then

went on to say:

Clearly we want this issue [of scope of employment]

to be fairly litigated . . . . I think there would be

agreement that that is the way we would want to

go... . [I]}f all of you would feel free to propose

on that suggestion we will try to work it out.

The way the subcommittee “work[ed] it out,” was by

adding Section 2679(d)(3), which allows the defendant

employee to challenge a failure to certify. H.R. Rep. No.

700 at 9. No comparable provision was added to permit

the plaintiff to challenge the certification. Thus, whatever

assumptions Chairman Frank might have expressed about

“the way [the subcommittee] would want to go,” the way

they went, and the way Congress as a whole went, was

against any judicial review at the behest of the plaintiff

in cases in which the Attorney General does certify scope

of employment.

In short, the legislative history relied upon by the

United States actually undermines the Government’s posi-

tion. Certainly, that history is not enough to override

the language and structure of the statute.

C. The United States’ Reading of the Westfall Act Ignores

Basic Principles of Agency Law That Congress Showed

No Intent to Override.

In the final analysis, without language or history to

sustain it, the force of the United States’ position reduces

to a single sentence: “The proposition that a plaintiff

cannot obtain judicial review of the Attorney General’s

scope-of-employment certification under the Westfall Act

might,” the United States claims, “ ‘excite some surprise.’ ”

Br. at 17 (quoting United States v. Nourse, 34 U.S. (9

Pet.) 8, 28-29 (1835)). In other words, the question of

scope of employment is important to litigants and one

would, therefore, expect the courts to be the final arbiters

of that issue. U.S. Br. at 17-18. But, even if it were

consistent with the statute, that expectation would be

wholly out of place in this context because it ignores basic

principles of agency law.

Under the common law of agency, an employer can

become liable for the acts of an employee by conceding

that those acts are within the scope of employment. Re-

statement (Second) of Agency §219 (1958). This is

true even when the acts in question are torts. Novick v.

Gouldsberry, 173 F.2d 496, 502-03 (9th Cir. 1949).

Ordinarily, of course, employers try to disavow that

their employees were acting within the scope of employ-

ment at the time of an accident. The plaintiff, by contrast,

seeking the deepest pocket around, argues that the em-

ployee was acting within the scope of employment. The

ee ees

court then decides the question. See 5 F. Harper, F.

James, Jr., & O. Gray, The Law of Torts 1-60 (2d ed.

1986). If, however, the employer concedes scope of em-

ployment or otherwise ratifies the employee’s actions, there

is nothing for the court to decide. Such an “admission” or

“ratification” is a “speech act” that intrinsically carries cer-

tain consequences, such as potential liability for the torts of

the employee. A court might determine that the speech

act did not occur (i.e., that the employer did not really

admit scope of employment), but assuming that a valid

admission has been made, the court does not look behind

it to determine whether the admission should have been

made (i.e., whether the employee was actually acting

within the scope of his employment).

It is reasonable to think that Congress would have

wanted the same basic principle to apply here. As the

United States acknowledges (Br. at 5), “[t]he FTCA

incorporates principles similar to the common law doctrine

of respondeat superior, which allows a plaintiff to sue a

private employer for torts committed by employees act-

ing within the scope of their employment.” * The certifica-

tion process is akin to an admission by the United States

that the employee was acting within the scope of his em-

ployment. The admission is binding upon the United

States and causes the United States to be substituted as

defendant in the suit. The district court can determine

whether the certification actually occurred, but it cannot

look behind the process to determine whether it should

have occurred. If there is a valid certification, if the

United States makes this critical admission as to scope

7See also Westfall Act, §2(a)(2) (noting that the United

States is “responsible to injured persons for the common law

torts of its employees in the same manner in which the common law

historically has recognized the respansibility of an employer for

torts committed by its employees within the scope of their em-

ployment”).

of employment, then the United States must be substituted

as defendant in the case.*

Ordinarily, under the common law, the employee does

not get off the hook simply because the employer admits

scope of employment. The plaintiff can proceed against

both the employer and the employee, who are jointly and

severally liable. Laughlin v. Prudential Ins. Co., 882 F.2d

187, 191 (Sth Cir. 1989); Restatement (Second) of

Agency §§ 343, 359c (1958). But that is exactly the

Situation that the Westfall Act was designed to change.

See Westfall Act, § 2(a)(5)-(6) (“This erosion of im-

munity of Federal employees [created by the Westfall

decision} has created an immediate crisis involving the

prospect of personal liability and the threat of protracted

personal tort litigation for the entire federal workforce.

The prospect of such liability will seriously undermine

the morale and well being of federal employees, impede

the ability of agencies to carry out their missions, and

diminish the vitality of the Federal Tort Claims Act as

the proper remedy for Federal employee torts.”). Under

the Westfall Act, whenever the United States admits scope

of employment (through certification), the employee

drops out of the case.

8 The Court dealt with these basic principles of agency law

quite recently in FEC v. NRA Political Victory Fund, 63 U.S.L.W.

4027 (U.S. Dec. 6, 1994). In that case, a federal agency filed a

petition for certiorari without authorization from the Solicitor

General. The Solicitor General, while acknowledging that the

agency had no authority to file the petition, attempted to ratify

the filing after the fact. This Court explained that the propriety

of the petition “is at least presumptively governed by principles of

agency law and in particular the doctrine of ratification.” Jd.

at 4030. The Court concluded that the Solicitor General did have

authority to ratify the ultra vires act of the agency, but held

that, because the time for filing a petition had passed before the

Solicitor General ratified the act, the ratification was invalid. The

Court certainly did not suggest that the merits of the Solicitor

General’s decision to authorize the petition would somehow be

subject to review, if timely made.

The complicating factor under the Westfall Act is that,

after substitution, the United States is not always subject

to suit. In the normal FTCA case, of course, the United

States’ admission as to scope of employment is as much

against interest as any employer’s admission. But the

United States has retained a number of immunities, such

as for discretionary functions, for torts committed outside

the United States, and for claims of libel, tortious inter-

ference with contracts, assault and battery, false imprison-

ment, and other enumerated categories. 28 U.S.C.

§ 2680. Thus, in some instances, after the defendant

employee drops out of the case, the United States will be

able to dismiss the suit based on a retained immunity

under the FTCA.

Congress recognized this somewhat harsh consequence

of substitution but still decided to immunize the employee.

See Smith, 111 S. Ct. at 1185 (the Westfall Act “makes

the FTCA the exclusive mode of recovery for the tort of a

Government employee even when the FTCA itself pre-

cludes Government liability”). Suing the United States,

Congress noted, has certain advantages, notwithstanding

the retained immunities.

From the perspective of a person injured by the official

conduct of a Federal employee, the ability to sue the

United States under the FTCA generally has distinct

advantages over a suit against the individual Federal

employee. The FTCA has an established administra-

tive claims procedure through which many claims

can be expeditiously resolved without costly litigation.

And, perhaps most important the United States Gov-

ernment will be able to pay any judgment that is

awarded, while an individual Federal enrployee may

be “judgment-proof.”

H.R. Rep. No. 700 at 4. See generally Sowell v. Ameri-

can Cyanamid Co., 888 F.2d 802, 805 (11th Cir. 1989).

The burden of this benefit is that sometimes the plaintiff

will not be able to proceed with his suit at all.”

At bottom, the various lower court decisions permitting

judges to second-guess the Attorney General’s certification

are an attempt to avoid the implications of this statutory

scheme. Because “[s]ubstitution of the United States as

the defendant . . . not only immunizes the governmental

employee but also may deprive the plaintiff of important

procedural and substantive rights under state law,”

McHugh v. University of Vermont, 966 F.2d 67, 71 (2d

Cir. 1992), these courts have concluded that the plaintiff

should be able to obtain a judicial ruling on scope of

employment. But such review refuses to give the admission

of the employer as to scope of employment its usual force

and effect. It ignores a basic principle of agency law—

the binding nature of an employer’s ratification of the ac-

tions of an employee—so as to evade the retained immu-

nities of the United States as employer.

D. The United States’ Reading of the Westfall Act Cre-

ates Serious Administrative Problems and Undermines

the Policy Objectives of the Act.

In Smith, the Ninth Circuit had attempted to make the

validity of a substitution turn on the immunities available

to the government defendant. If the United States was

immune it could not be substituted for the employee de-

fendant. If the United States was not immune, it could

be substituted. This Court rejected that approach.

Some courts of appeals are now attempting to reach

the same result through the back door by ruling, first,

that certification is reviewable and, then, that many of the

®In fact, however, there will often be an administrative remedy

(as there is in this case) that the plaintiff will be able to pursue,

notwithstanding the dismissal of the suit against the United States.

See 21 U.S.C. § 904 (authorizing the settlement of tort claims

that “arise in a foreign country in connection with the operations

of the [DEA] abroad’).

torts for which the United States has retained an immunity

—generally, intentional torts—are, ipso facto, not within

the scope of employment. See, e.g., Nasuti, 906 F.2d at

810 (assault and battery); Wood v. United States, 995

F.2d 1122, 1126 (1st Cir. 1993) (sexual harassment).

“Although the tort and agency laws of the states vary,

generally an intentional tort is regarded as falling outside

the scope of employment—at least if the employee’s con-

duct ‘is different in kind from that authorized ... or too

little activated by a purpose to serve [the employer].’”

Kimbro v. Velten, 30 F.3d 1501, 1505 (D.C. Cir. 1994)

(quoting Restatement of Agency (Second) §228

(1958)).

Thus, in order to escape the framework of the Westfall

Act, and the implications of this Court’s holding in Smith,

plaintiffs simply need to allege torts that, because of their

intrinsic nature, arguably cannot fall within the employee’s

scope of employment. See, e.g., Nasuti v. Scannel, supra

(claim of negligent driving transmuted into alleged assault

and battery); Johnson v. Carter, supra (disputed disci-

plinary action becomes claim for libel, slander, and in-

tentional infliction of emotional distress); Aviles v. Lutz,

supra (failure to promote becomes claim for defamation

and tortious interference with employment rights).

“{S]uch an approach,” the D.C. Circuit has noted, “puts

a premium on skillful pleading and is quite unfair to the

employee defendant.” Kimbro v. Velten, 30 F.3d at 1509.

See also Wood v. United States, 995 F.2d at 1129 (plain-

tiff may “through artful pleading, transform a job-related

tort into a non-job-related tort simply by alleging, say an

‘off-duty’ state of mind (such as ‘malicious’ intent) or by

alleging that a negligent action was carried out intention-

ally”).

Such an approach also effectively requires a determina-

tion on the merits before the immunity question can be

resolved. “[T]he scope question and the merits in these

sorts of cases often overlap—sometimes exactly.” Kimbro

v. Velten, 30 F.3d at 1505. In order to prove that he is

entitled to immunity, because he was acting within the

scope of his employment, the employee has to prove that

he did not discriminate or harass or commit battery or

slander.

The lower courts that accept the United States’ reading

of the statute have accordingly developed elaborate and

protracted procedural mechanisms for dealing with the

scope of employment issue. As one court has explained,

“{cjoncluding that judicial review is appropriate raises

subsidiary but highly significant issues .. . such as when

the scope-of-employment determination should be made

(before or at trial); who should make it (court or jury);

and whether any deference should be paid to the Attorney

General's certification.” Brown v. Armstrong, 949 F.2d

1007, 1011 (8th Cir. 1991). There is general agreement

only on the last of these questions. The Attorney Gen-

eral’s certification decision is reviewed de novo, without

any deference. See n.5, supra. On the other questions, the

courts are all over the map. One court has identified no

fewer than four possible approaches to “resolving the

issues presented when a plaintiff challenges the certifica-

tion.” Melo v. Hafer, 13 F.3d 736, 743 (3d Cir. 1994).

The most commonly used of these approaches require

discovery, followed by an evidentiary hearing. See, e¢.g.,

Schrob v. Catterson, 967 F.2d 929, 936 (3d Cir. 1992)

(“if there is a genuine issue of fact material to the scope

of employment question, the district court should permit

discovery and conduct a hearing”); S.J. & W. Ranch, Inc.

v. Lehtinen, 913 F.2d 1538, 1544 (11th Cir. 1990)

(“On remand the district court should conduct a de novo

hearing on whether defendant Lehtinen’s conduct occurred

within the scope of his employment and permit the plain-

tiff full recovery on the scope question.”) (internal foot-

note omitted), cert. denied, 112 S. Ct. 62 (1991). More-

over, “[i]f the court, in the course of determining the sub-

stitution issue, necessarily finds facts that are part of the

plaintiff's case on the merits, the defendant may be

estopped from disputing those facts at trial,” Melo v.

Hafer, 13 F.3d at 748 n.8, thus effectively forcing the de-

fendant to stand trial on the ultimate issue of liability

before immunity can be determined.”

Such a mini-trial on the merits—with all the consequent

concerns about ultimate liability—defeats the Westfall

Act’s basic objective of avoiding “protracted personal tort

litigation for the entire Federal workforce.” See Westfall

Act § 2(a)(5). See also Barr v. Mateo, 360 U.S. 564,

571 (1959) (the point of immunity is to avoid “suits

which would consume time and energies which would

otherwise be devoted to governmental service”). In pass-

ing the Westfall Act, Congress stressed the need for an

“early resolution of the case” against the employee and

the dangers of making immunity turn on a protracted

“fact-based determination.” H.R. Rep. No. 700 at 3. The

United States’ reading of the statute ignores these con-

cerns. Granting conclusive effect to the Attorney Gen-

eral’s certification, by contrast, allows the United States

itself to determine the circumstances in which its em-

ployees’ actions warrant immunity and, thereby, to pre-

termit any further proceedings against those employees.

Petitioners (Br. at 39) attempt to identify various con-

stitutional problems with permitting the Attorney Gen-

1% Under another approach identified in Melo, 13 F.3d at 743,

the court must “accept all of the factual allegations of the com-

plaint as true and, after discovery and an evidentiary hearing

where appropriate, determine any disputes of law or fact relevant

to whether the defendant’s conduct as alleged by the plaintiff is

within the scope of the defendant’s employment.” Yet another,

intermediate approach adopted by the court in Wood, 995 F.2d at

1129, accepts the plaintiff's allegation that “some kind of harm-

causing incident” occurred, but allows the defendant to dispute

the plaintiff's “ ‘characterization’ or ‘description’” of that inci-

dent. On these approaches, the defendant is not even entitled to

dispute the core allegations of the plaintiff’s complaint at the im-

munity stage, lest the plaintiff be stripped of his right to a jury

trial. Jbid. In other words, immunity is completely subordinated

to liability. As long as the complaint is artfully drawn, the de-

fendant must stand trial and submit his fate to a jury.

eral’s certification to be conclusive. Some lower courts

are likewise sure that there is a problem, though pre-

cisely what that problem is is a matter of debate. Some

see the issue as one of due process,"’ others as separa-

tion of powers,” still others equal protection; ” one court

has even suggested a taking."

Significantly, the United States does not advance any

of these arguments. To the contrary, the United States

has expressly and quite properly rejected them elsewhere.

“{S}tatutes calling for substitution of the United States

for private defendants have routinely been upheld against

constitutional challenge,” the United States has noted,

and “[t}here is no apparent reason why entrusting the

determination of one factual predicate to such substitution

to an Executive Branch official, as opposed to the courts,

should raise issues of constitutional proportion.” Brief

for Appellee the United States at 20 n.ll, SJ. & W.

Ranch vy. Lehtinen, No. 89-5990 (11th Cir. Feb. 5,

1990). Accord Johnson v. Carter, 983 F.2d at 1320

n.7. It is difficult to see any constitutional problem in

requiring a district court to give the ordinary, common

law force and effect to an employer’s admission as to

scope of employment. It is equally difficult to see such

a problem in respecting the retained immunities of the

United States.

11 See, e.g., Meridian, 939 F.2d at 744 (“leaving the final deter-

mination of scope to the Attorney General would allow an inter-

ested party to control a dispositive issue and would present pos-

sible due process implications”).

12 See, e.g., Nasuti, 906 F.2d at 813 (“there might be a separa-

tion of powers question if the statute were read to leave the Attor-

ney General as the sole judge of an issue determinative of the

jurisdiction of the federal court’).

13 See, e.g., McHugh v. University of Vermont, 966 F.2d at 74

(there is no valid reason “to give federal employees who are sued

a judicial hearing on the scope of employment, as the Westfall Act

explicitly does, while denying it to those who have sued them”).

4 See McHugh, 966 F.2d at 74 (tort claim is species of property).

E. The United States’ Reading of the Westfall Act Cre-

ates an Article III Problem.

In contrast to the constitutional spectres raised by peti-

tioners and by some lower courts, the United States’

reading of the Westfall Act does raise a potentially serious

Article III problem. As already noted, under the United

States’ reading of the statute, certification is conclusive

with respect to removal but not with respect to substitu-

tion. Thus, when a case is removed to federal court pur-

suant to Section 2679(d)(2), a federal court may deter-

mine that, notwithstanding certification, the defendant was

acting outside the scope of his employment and there-

fore decline to substitute the United States as defendant.

But then, even if there is no diversity and no federal

question in the case, the court will still be powerless to

remand the action to state court. See U.S. Br. at 20

(citing Aliota v. Graham, 984 F.2d 1350, 1356 (3d Cir.

1993) (once a suit is removed under Section 2679(d) (2),

the district court has exclusive jurisdiction and “has no

authority to remand the case on the ground that the At-

torney General’s certification was erroneous”), cert. de-

nied, 114 S. Ct. 68 (1993)).

Section 2679(d)(2), under the United States’ reading,

must therefore be treated as a naked grant of subject mat-

ter jurisdiction for all suits against federal employees

where the Attorney General has issued a certification, not-

withstanding a court finding that the certification is invalid.

Accord Aliota v. Graham, 984 F.2d at 1357 (“subject

matter jurisdiction is conclusively established upon the

Attorney General’s certification” ).

The Article III basis for granting such jurisdiction in

cases involving purely state law claims, without any diver-

sity, based on actions outside the scope of federal employ-

ment, is questionable. See Kimbro v. Velten, 30 F.3d at

1510 n.6 (“A determination that the employee’s conduct

was outside the scope of employment might strip the dis-

trict court of Article III jurisdiction since whatever issues

are left are state only.”). As this Court has explained,

“pure jurisdictional statutes which seek ‘to do nothing

more than grant jurisdiction over a particular class of

cases’ cannot support Art. III ‘arising under’ jurisdiction.”

Mesa v. California, 489 U.S. 121, 136 (1989) (quoting

Verlinden B.V. v. Central Bank, 461 U.S. 480, 496

(1983)).

The Third Circuit suggested that the statute, as con-

strued by the United States, passes Article III muster

because it “give[s] the government an unchallengeable

right to have a federal forum for tort suits brought against

its employees.” Melo v. Hafer, 912 F.2d 628, 641 (3d

Cir. 1990), aff'd on other grounds, 502 U.S. 21 (1991).

But this Court has expressly declined to approve any such

theory of “protective jurisdiction,” based on a “generalized

congressional interest in protecting federal officers from

state court interference.” Mesa v. California, 489 U.S.

at 137. Rather, the Court has indicated that the under-

lying suit must itself “raise[] questions of substantive fed-

eral law.” Verlinden B.V. v. Central Bank, 461 U.S. at

493."

15 Such a theory is also inconsistent with Section 2679(d) (3),

which requires a remand to state court in cases in which a federal

court declines to substitute the United States as defendant upon

the petition of the federal employee.

16 1t is not sufficient for Article III purposes that the threshold

substitution issue could be characterized as a question of federal

law insofar as the standard for substitution (scope of employ-

ment) is set forth in a federal statute. As an initial matter, the

district court will in fact be applying state law to determine scope

of employment. Williams v. United States, 350 U.S. 857 (1955).

More fundamentally, a federal statute creating subject matter

jurisdiction for a certain class of cases will always set forth the

criteria for identifying those cases. If the fact that the criteria

are established by federal law were itself sufficient to establish

a federal question for purposes of Article III, then Article III's

limitation would be meaningless. The relevant question is whether

the class of cases itself satisfies Article III (i.e., whether the cases

raise substantive questions of federal law), not whether the criteria

for identifying those cases are set forth in a federal statute. See

Mesa, supra (threshold determination of whether the official is

Article III jurisdiction could be sustained, even under

the United States’ reading of the statute, if the Court rati-

fies a broad reading of Osborn v. Bank of the United

States, 22 U.S. (9 Wheat.) 738 (1924). As this Court

recently noted, “Osborn . . . reflects a broad conception of

‘arising under’ jurisdiction, according to which Congress

may confer on the federal courts jurisdiction over any case

or controversy that might call for the application of fed-

eral law.” Verlinden, 461 U.S. at 492 (emphasis added).

Here, if the Attorney General’s certification decision is

sustained, then the case will call for the application of

federal law (i.e., it will be a suit against the United States

under the FTCA). Thus, all cases in which certification

has occurred “might” end up calling for the application of

federal law because the certification “might” be upheld.

But this Court has twice declined to reaffirm the sweep

ing language of Osborn. See Verlinden, 461 U.S. at 492;

Mesa v. California, 489 U.S. at 137. It would have to do

so here, if it adopts the United States’ reading of the stat-

ute. For, even though there might be a federal question

in every certification case, in those cases removed from

state court in which the district court rejects the Attorney

General’s certification, the underlying case or controversy

will not, in fact, call for any application of federal law.

And that fact will be clear, at the outset of the case, once

the threshold issue of the propriety of the substitution is

resolved.”

acting “under color of office” not sufficient to establish jurisdiction

in those cases in which official does not raise a federal defense).

17Once subject matter jurisdiction is properly established in

federal court, that jurisdiction is not defeated by subsequent

events. For example, if the plaintiff and defendant are diverse at

the outset of the case, the fact that the plaintiff moves into the

defendant’s state after the case is commenced does not defeat juris-

diction. Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957).

One could argue that, when a case is removed to federal court

pursuant to 28 U.S.C. § 2679(d) (2), the United States is at least

conditionally substituted as a party and that jurisdiction, having

Moreover, even if the statute, as interpreted by the

United States, could scrape by under Article I[I—even if

the Court decides that the Attorney General’s certification

alone (invalid though it may be) provides “substance

sufficient to confer subject matter jurisdiction on the

court,” United Mine Workers v. Gibbs, 383 U.S. 715, 725

(1966)—there is no reason to believe that Congress

wanted to push the constitutional envelope so far. Or-

dinarily, pendent jurisdiction is discretionary for a fed-

eral court, and the discretion is exercised hesitantly. See

id. at 726 (“Certainly, if the federal claims are dismissed

before trial, even though not insubstantial in a jurisdic-

tional sense, the state claims should be dismissed as

well.”).** It would be unprecedented for Congress to

“vest[ed]” at that time, “cannot be ousted by” the district court’s

subsequent overturning of the certification and resubstitution of

the original defendant. Jbid. (quoting Mollan v. Torrance, 22 U.S.

(9 Wheat.) 546, 547 (1824)). The problem with that argument

is that, if the certification decision is reviewable, it makes very

little sense to think of the United States as having been substi-

tuted as defendant until the district court upholds the certification.

If, in Smith v. Sperling, the Court had determined that the parties

had not been diverse even at the outset, the case would have been

dismissed. Jurisdiction would never have vested. Here, too, if

substitution is denied because the certification is invalid, then

jurisdiction was never properly established in the first place.

The situation is analogous to a removal under 28 U.S.C. § 1442

(a)(1) in which the district court determines that no federal

defense is presented and must, therefore, remand the case to state

court. The mere allegation that the defencant employee was act-

ing “under color of federal law” is not sufficient to establish ju-

risdiction for Article III purposes. So too, here, the mere allega-

tion that the defendant employee was acting “within the scope of

his employment” is not sufficient to establish Article III jurisdiction

unless certification is treated as conclusive. As long as certification

is reviewable, the United States is not substituted as defendant,

and the jurisdiction of the court does not vest, until the court

itself determines scope of employment.

18 Even the analogy with pendent jurisdiction is a weak one, since

under Section 2679(d) (2) there are not two claims, one federal and

one state, with the former falling by the wayside, and the latter

ee ee ee o

Anni et

compel a district court to retain jurisdiction over a purely

State law case, simply because, at the outset of the case,

the validity of the Attorney General's certification had

to be determined.

Under a natural reading of the statute, by contrast, no

Article III difficulties are raised. “An action against a

federal employee who has been certified as acting in the

scope of her employment must proceed exclusively against

the United States under the FTCA.” Mitchell v. Carlson,

896 F.2d 128, 134 (Sth Cir. 1990). In that instance,

subject matter jurisdiction is clear—the case becomes “a

claim under the FTCA.” 7d. at 136. It is only if, contrary

to the plain language, certification is not conclusive for

purposes of substitution, that an Article III problem arises.

Some courts have tried to escape this Article III prob-

lem by holding that the Attorney General’s certification is

not even conclusive for purposes of federal court jurisdic-

tion. See, e.g., Nasuti v. Scannell, 906 F.2d at 808. This

approach flies straight in the face of Section 2679(d)(2),

which states that certification “shall conclusively establish

scope of office or employment for purposes of removal.”

If certification is “conclusive” only until a federal court

disagrees, then words have lost all meaning.

In Nasuti, the court tried to finesse the language of the

statute by distinguishing between removal and remand.

“While Congress provided that the Attorney General’s

certification conclusively establishes scope of employment

for removal purposes,” the Court explained (id. at 813),

“that conclusive effect lasts only until the court speaks

on the specific scope issue,” in which case, if it finds the

certification improper, it will remand the case to state

court. Under the First Circuit’s view, the only point of the

“conclusive” language of Section 2679(d) (2) -is to ensure

surviving. There is only one claim, and (under the United States’

reading of the statute) the district court has to determine at

the outset: is it a federal claim or only a state one? For the Court

to decide the latter and yet be compelled to retain the case bears

no resemblance to any statutory scheme with which we are familiar.

that “the federal defendant’s scope status is resolved by a

federal, not a state tribunal.” Ibid. Accord, SJ. & W.

Ranch, Inc., 913 F.2d at 1544.

But any such “construction—distinguishing removal

from remand—is,” as the D.C. Circuit has noted, “quite

unconvincing.” Kimbro v. Velten, 30 F.3d at 1510 n.6.

Federal courts always provide the forum to determine their

own jurisdiction. Every removal petition is “conclusive”

in the sense that it guarantees that the choice of forum “is

resolved by a federal, not a state tribunal” (Nasuti v.

Scannell, 906 F.2d at 813). See 28 U.S.C. § 1446 (per-

mitting defendant in state court suit to file removal peti-

tion in federal district court and requiring district court to

determine propriety of removal petition). Federal courts

always provide the forum for determining the propriety of

removal. Congress must, therefore, have meant more than

that by stating that certification will “conclusively” estab-

lish scope of employment for purposes of removal. What

Congress must have meant is what the words plainly state:

that the certification is non-reviewable; that the case, once

removed, cannot be remanded to state court.

At the very least, therefore, it is clear (as the United

States concedes) that “certification” conclusively estab-

lishes a federal forum for the entire case. This Court,

then, cannot escape the Article III issue if it accepts the

United States’ position that certification is not conclusive

for purposes of substitution.

In Mesa, this Court declined to adopt a perfectly plausi-

ble reading of a statute urged by the United States because

it raised serious Article III questions. Mesa at 137 (citing

Califano v. Yamasaki, 442 U.S. 682, 693 (1979) (“[I]f

‘a construction of the statute is fairly possible by which

[a serious doubt of constitutionality] may be avoided,’

Crowell v. Benson, 285 U.S. 22, 62 (1932), a court

should adopt that construction”)). Certainly, then, the

Court should decline the United States’ invitation here

unnecessarily to distort the language of the statute, to

twist its structure, to ignore its history and its underlying

policies, and to trample on basic principles of agency law,

all in order to reach a result that itself raises serious con-

stitutional concerns.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,