# Amicus Curiae Brief — Gutierrez De Martinez v. Lamagno

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 417

## Text

JY

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 ............

A.

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

15

24

iv

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

Vv
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

vi

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

2

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

3

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.

4

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-

5

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.

6

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).

7

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.

8
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

9

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’”’).

10

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

11

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.

12

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.

13

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.

14

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.

15

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.

16

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

17

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

18

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

19

(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

20

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

21

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”).

22

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.

23

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).

24

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’).

25

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

26

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

27

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.

28

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).

29

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,

30

“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

31

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

32

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

33

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.

34

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

35

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,

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

January 27, 1995

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0600%3A09. Public record. Not legal advice.