# Opposition Brief — Osborn v. Haley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 225

## Text

j Supreme Court, U.S.
FILED

(5) MAR 3 1 2006

No. 05-593 : OFFICE OF THE CLERK

In The
Supreme Court of the Anited States

S

PAT OSBORN, PETITIONER,
v.

BARRY HALEY, ET AL.

6

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

¢

BRIEF IN OPPOSITION FOR RESPONDENTS,
GAYE VERDI f/k/a GAYE LUBER AND LAND
BETWEEN THE LAKES ASSOCIATION, INC.

e

C. THOMAS MILLER

Counsel of Record

J. DUNCAN PITCHFORD

WHITLOW, ROBERTS, HOUSTON &
STRAUB, PLLC

300 Broadway

Post Office Box 995

Paducah, KY 42002-0995

Telephone: (270) 443-4516

Counsel for Respondents,
Gaye Verdi fik/a Gaye Luber

and Land Between the Lakes
Association, Inc.

COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Attorney General may concede
hypothetically the plaintiff’s factual allegations, in certify-
ing that “the defendant employee was acting within the
scope of his office or employment at the time of the inci-
dent out of which the claim arose,” within the meaning of
the Federal Employees Liability Reform and Tort Compen-
sation Act of 1988 (Westfall Act), 28 U.S.C. § 2679(d).

..2. Whether the Westfall Act’s provision that the
“certification of the Attorney General shall conclusively
establish scope of office or employment for purposes of
removal” of the suit from state court, 28 U.S.C. § 2679(d)(2),
means that a district court must retain jurisdiction over the
removed suit, even if the court ultimately overturns the
Attorney General’s scope-of-employment certification and
declines to substitute the United States as the defendant.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Sup. Ct. R. 29(c), Respondent Land Be-
tween the Lakes Association, Inc., states that it is not the
subsidiary of any other corporate entity, nor does any
publicly held corporation own more than ten percent (10%)
of its stock.

iii

TABLE OF CONTENTS
Page
NN CITT tacinstnvnssitecccuinctilehcteanintinepnidinRhndneptadidiotinbemhbeaiid 1
iii caciniaintiicieh etinbisapneininbinhicgnciuiiineniiniiacisdeibiasiitenibis 1
Statutory Provisions Involved....................ccccceeeeeeeees 1
I Oe Ri isin viciieisnintticitebiiibaistannnntiianios 1

The United States has not conceded that its em-
ployee’s alleged conduct was outside the scope of
his employment if it occurred.....................00cceeeeeeees 1

I a 7

I. There is no “split” among the circuits regard-
ing the district court’s need to review the con-
text and characterization of hypothetically-
I I ccicttiicicicininibictpsitintstiniibiapinciiiiiniasiis 7

II. Since legal questions regarding scope of
employment remain, this is not an ideal case
through which to address any conflict between
Article III and the clear statutory language
making the Attorney General’s certification
conclusive for purposes of removal.................... 12

TE EAT NA SOTO PEND TON FC OS ae TL TE Oe Oe 15

iv

TABLE OF AUTHORITIES
Page
CASES:
Gutierrez de Martinez v. Lamagno, 515 U.S. 417

ET iomsarieahsndsiledinistenicnisasabiapaniin isdhaiteceicncenbiatiuintviadaiiaan 13, 14
Haddon v. United States, 68 F.3d 1420 (D.C. Cir.

SIPIIED ixis sictuinenctilececonenbsctaaieadilaiuiechiteinadisiidipaiaaabiaiiaebinlanetninins 13
McHugh v. Univ. of Vermont, 966 F.2d 67 (2nd Cir.

STE vesting desi detected dnapieiitinhesit 7, 8, 10, 11
Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990) .....10, 11, 13
Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005) .................. 11
Wood v. United States, 955 F.2d 1122 (1st Cir.

Pea atkdcchisnddedeipitadbletininidencetishinpaapiaeasicuibabibeasin 7, 8, 9, 10, 11
CONSTITUTION, STATUTES AND REGULATIONS:
aE ae MUU dicinliniinisssipeinipsepichgsdeliclapescestitniiepiiaiiiniiabalninpeilentbadins 1
I MI TE ITT ois cnclistaceinieadinieietiiaimntinncipinetindediciaialighiinadibeeinnn 2
ey a ID cess ceili cciscictictioniniinisiinsipaininliniaticwinutigilia 13, 14

Fe Ss 0p PO nttsonbtoincnidciudedemintntientsainmpoeesattientiiianmneniiie 1

1

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A at 1la-
lla) is reported at 422 F.3d 359 (6th Cir. 2005). The
memorandum and order of the district court denying the
motions for substitution and dismissal filed by the United
States (Pet. App. C and D at 17a-25a) and the opinion and
order denying reconsideration of that order (Pet. App. B at
12a-16a) are unreported.

¢

JURISDICTION

The judgment of the court of appeals was entered
September 8, 2005. The petition for a writ of certiorari was
filed November 7, 2005. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).

+

STATUTORY PROVISIONS INVOLVED

This matter involves interpretation of the Federal
Employees Liability Reform and Tort Compensation Act of
1988, also known as the Westfall Act, Pub. L. No. 100-694,
28 U.S.C. § 2679(d), the full text of which appears as App.
E to the Petition.

o

STATEMENT OF THE CASE

The United States has not conceded that its em-
ployee’s alleged conduct was outside the scope of
his employment if it occurred.

The Petition rests upon a mistaken premise, the
fallacy of which severely undercuts Petitioner’s reasons

2

why the Court should review this case. Petitioner asserts
that the United States conceded that its employee Barry
Haley’s alleged conduct was outside the scope of his
federal employment, so that the only question in dispute is
whether these allegations are true. See Pet. at 2, 3, 6, 10,
16, 18, 19. However, no such concession is found in the
district court record.

To the contrary, the United States specifically denied
the allegations that Haley acted outside the scope of his
employment. Compare App. A, Compl. at 7] 29, 34, and
41 with App. B, United States’ Answer at 7] 14 (denying
{ 29 of the Complaint), 16 (denying 7 34 of the Complaint),
and 19 (denying 941 of the Complaint). The Answer
contains no “concession” that Haley’s alleged acts would
have been outside the scope of his employment if they
occurred.

Instead, the Acting United States Attorney certified
that Barry Haley was acting within the scope of his
employment at the time of the conduct alleged in the
Complaint. See App. C, Certification. The Certification
contained no further explanation, and no concession that
Haley’s alleged actions would have been outside the scope
of his employment even if they had occurred. /d.

Accordingly, the United States moved to dismiss
Osborn’s Complaint, citing the Acting U.S. Attorney’s
Certification that Haley acted within the scope of his
employment, and the Petitioner’s need to exhaust her
administrative remedies under the Federal Tort Claims Act,
28 U.S.C. §§ 2671 et seg. before suing the United States. See
App. D, United States’ Mot. to Dismiss. Like the United
States’ Answer, the Motion contains no concession that

3

Haley’s alleged acts would have been outside the scope of
his employment if they occurred. See id.

Osborn responded to the Motion by arguing that the
following alleged facts showed that Haley acted outside
the scope of his employment: (1) the Complaint alleges
that Haley “induced, persuaded, or coerced «ie endant
Gaye Luber [now Verdi] to discharge plaintiff of her job
...”; (2) a Memorandum of Understanding between the
U.S. Forest Service and the Land Between the Lakes
Association, Inc. (“LBLA”) stated that Forest Service
employees would not participate in any LBLA decision
concerning “hiring or firing” LBLA employees; and (3)
Robert Kuenzli, a Department of Labor investigator,
stated in a letter that Petitioner was fired because Kuenzli
called Haley. See Petitioner’s Resp. to United States’ Mot.
to Dismiss at 4, and Exs. thereto. However, the same letter
described a meeting wherein Osborn drew a “big laugh” by
criticizing Haley in front of nearly 80 people, resulting in
her boss’s request that she apologize to Haley; all before
Kuenzli ever contacted Haley. App. E., Ex. C to Osborn’s
Resp. The letter also states that Osborn told Kuenzli that
her boss, Tamara Newkum, told her that Haley had
demanded she terminate Osborn for insubordination. /d.
Further, when Kuenzli asked Osborn what it was that
caused the insubordination, “she explained that it was the
comment she made at the staff meeting to Mr. Haley.” Jd.
Kuenzli’s own account indicates Osborn was fired because
of the comment made at the staff meeting, before Kuenzli’s
phone call; and that Osborn understood this.

In reply, the United States pointed out that the
Petitioner had never alleged any facts showing that Haley
acted outside the scope of his employment; rather, the
Complaint (at | 6) stated that Haley was “employed by the

4

Forest Service at all times related to the complaint.”
United States’ Reply at 3. The allegations that Haley
“wrongfully and maliciously induced, persuaded, or co-
erced defendant Gaye Luber to discharge plaintiff” were
merely conclusory, and presented no facts supporting the
allegation that Haley acted outside the scope of his em-
ployment; i.e., there were no specific facts or allegations
that Haley even attempted to affect Osborn’s employment.
Id. at 4. Nowhere in its Reply did the Government concede
that Haley's alleged acts were outside the scope of his
employment if they occurred. Instead, the Reply merely
pointed out the Petitioner’s failure to meet her burden of
proof on the question of scope; a burden which shifts to the
plaintiff once the Certification is filed. Jd., p.2 (citing
several circuit court rulings).

When the District Court then issued its Memorandum
and Order overruling the Certification, the court mistak-
enly concluded that

... the United States does not deny any of the
factual allegations contained in Ms. Osborn’s
complaint, i.e., that Mr. Haley talked with Ms.
Luber regarding Ms. Osborn’s complaint to the
Department of Labor. Instead, the United States
only disputes her legal conclusion that Mr. Haley
was acting in his individual capacity during the
relevant times.
Pet. App. D at 22a. In truth, the United States could not
have literally denied such a specific factual allegation,
because Osborn never made it. The United States did,
however, point out the absence of such a factual allegation,
and specifically denied Osborn’s conclusory allegation that
Haley induced her termination — in addition to denying
that Haley acted outside the scope of his employment.

5

App. A, United States’ Answer at J 19 (denying the allega-
tions in {41 of Osborn’s Complaint). Nonetheless, the
district court concluded that no evidentiary hearing was
needed, because there was no conflicting evidence as to a
material fact. See Pet. App. D at 22a.

In its Motion to Reconsider, the United States re-
minded the court that it had indeed vigorously contested
Petitioner’s allegations, and further attached affidavits
from the individual defendants stating that they had
never discussed Osborn’s Veteran’s Preference inquiry.
Thus, the United States was compelled to supplement the
record with specific, sworn statements refuting allegations
that the Petitioner never specifically made. In addition,
assuming “for the sake of argument only” that Haley and
Luber “interacted regarding plaintiff’s employment,” the
United States argued that Haley’s alleged conduct in
causing Osborn’s firing could be construed as furthering
his employer’s goal of “partnering with competent contract
employees in a healthy and productive work environment
... ” Id. Thus, if the previous record had left any doubt
that the United States was not conceding that Osborn’s
conclusory allegation that Haley caused her firing de-
scribed conduct outside the scope of his employment, this
Motion removed it.

In responding to the United States’ Motion to Recon-
sider, Osborn merely repeated her allegations that Verdi
met with her to discuss problems with her employment on
the same day that Haley was informed Osborn had filed a
complaint with the Department of Labor, and that she was
terminated by Verdi two days later. Again, she failed to
allege any contacts between Haley and Luber regarding
her employment.

6

Finally, in its order denying the United States’ Motion
to Reconsider, the district court accepted that it is “highly
unlikely,” in light of Haley’s affidavit, that Osborn could
develop proof demonstrating that Haley “interacted with
Verdi regarding Osborn’s employment.” Pet. App. B at 14a.
Nevertheless, the district court further explained that it
could not decide the basic question of whether the commu-
nication occurred at all, and could not consider the United
States’ alternative legal argument, i.e., the argument that
having Osborn fired could have benefited Haley’s employer
and been within the scope of his employment; as such
alternative arguments would contradict Haley’s declara-
tion under oath. Jd. Thus, having previously overruled the
Certification without a hearing because the United States
supposedly failed to deny the underlying “allegations,” the
district court later held that it must sustain its ruling
without a hearing because the United States did come
forward with proof refuting the underlying “allegations.”
Further, the district court simply declined to consider the
legal argument that a Forest Service representative could
conceivably act within the scope of his employment in
attempting to influence a contractor to provide cooperative
employees. Inherent in this rationale is the court’s conclu-
sion that Haley’s involvement in Osborn’s termination for
any reason, whether related to the Department of Labor
inquiry or otherwise, would have necessarily been outside
the scope of his employment as a matter of law.

In summary, the United States never conceded that
Petitioner’s conclusory allegations, or her implied but
never-stated underlying factual allegations, described
conduct outside the scope of Barry Haley’s employment.
Instead, the district court prevented the United States
from making the alternative legal argument that the

7

alleged conduct could have been within the scope of
employment assuming it had occurred.

It follows that this is not the “simple and stark” case
providing an “excellent vehicle” for review, as Petitioner
suggests. It is not a case in which the parties agree that
the defendant/employee’s alleged conduct was necessarily
outside the scope of his employment, under any version of
the facts which could be presented. Rather, this is a case in
which matters relevant to the characterization of the
federal employee’s alleged conduct have not yet been fully
heard.

¢

DISCUSSION

I. There is no “split” among the circuits regard-
ing the district court’s need to review the con-
text and characterization of hypothetically-
conceded conduct.

Petitioner relies on two cases to show there is a “split”
among the circuits on the Attorney General’s authority to
issue “incident-denying” certifications: Wood v. United
States, 995 F.2d 1122 (1st Cir. 1993); and McHugh v. Univ.
of Vermont, 966 F.2d 67, 74 (2nd Cir. 1992). However, both
involved allegations of sexual harassment, which is rarely,
if ever, considered to fall within the scope of employment,
and is certainly not the type of conduct intended for
immunity protection under the Federal Tort Claims Act.
Further, both courts carefully distinguished challenges to
the context or characterization of the defendant’s alleged
conduct, which go beyond simple denials.

In McHugh, the defendant was accused of repeatedly
joking about the plaintiff’s contracting AIDS, stating that

8

he hoped she’d be able to avoid infection over the summer
while he was away at camp; repeatedly suggesting that
she must be living with someone; providing his definition
of a secretary as a paid whore; and observing that it was
“a good day to watch Catholic babies burn.” McHugh, 966
F.2d at 68. The court ruled that the defendant’s alleged
conduct was outside the scope of his federal employment,
because “it can hardly be contended that Wheeler’s alleged
conduct furthered the business of the United States
government,” and because a Vermont trial court decision
had squarely held that sexual harassment of one employee
by another is outside the scope of employment under
Vermont law. Id. at 75.

McHugh did hold that the Government “may not deny
that acts were within the scope of employment by denying
that the acts occurred.” Jd. at 74. However, the court also
held:

The context of the alleged act that is relevant to
the scope of employment issue is a matter of fact
to be determined by the district court, however,
after an appropriate factual hearing. Whenever
scope of employment is disputed, substitution
should be made only if the court finds that the al-
leged acts were within the scope of employment.

Id. at 74-75 (emphasis added).

In Wood, the alleged sexual harassment amounted to
“assault and battery.” Wood, 995 F.2d at 1123. The court
noted that the House of Representatives’ Report of the Act
contains language suggesting that it does not allow an
immunity certificate simply to deny an alleged killing,
rape, assault, or some other “outrageous misconduct” that
occurs during working hours. Jd. at 1127. Further, in

9

Wood, the Government did not deny that the acts would
have fallen outside the scope of employment had they
occurred. Jd. at 1124. The court concluded that the Attor-
ney General’s certificate cannot deny the basic “incident”
charged, but that “the certificate need not accept the
plaintiff’s version of just Aow it occurred. Jd. at 1123
(emphasis in original). The court further explained that
the basic point of immunity doctrine is to provide a de-
fense for conduct that falls into certain categories, and
that the point of the certificate is to assert a characteriza-
tion of conduct, namely to claim that a hypothetically
conceded incident involved activity that was within the
scope of employment. See id. at 1124-25.

In response to the defendant’s concern that “Driver A”
who admits negligence would receive immunity while less
culpable “Driver B,” who denies that any accident oc-
curred, would not, the Wood court explained that “it could
be so only where Driver A can claim that the underlying
incident is job-related, while Driver B cannot make this
claim, even hypothetically for argument’s sake.” Id. at 1127
(emphasis added). Addressing the concern that a plaintiff
might transform a job-related tort into a non-job-related
tort simply by alleging an “off-duty” state of mind, or
alleging that a negligent action was carried out intention-
ally, the court stated:

Rather, we insist that the certificate assume
some kind of harm-causing incident, while leav-
ing the Attorney General free to dispute charac-
terization of the incident and _ subsidiary
immunity-related facts. The Second Circuit held
the same in McHugh. 966 F.2d at 74. Moreover,
we previously held that the Attorney General’s
certificate may contest a plaintiff’s incident-
describing and incident-characterizing facts and

10

that the court may resolve any such factual con-
flicts, relevant to immunity, prior to trial.

Id. at 1129.

The Wood court then gave a very important illustra-
tion of this distinction between denying factual allegations
and challenging their characterization if hypothetically
conceded, based on its earlier holding in Nasuti v. Scan-
nell, 906 F. 2d 802 (1st Cir. 1990). The court noted that in
Nasuti, the plaintiff had alleged that a federal employee
intentionally injured him by driving fast in order to jostle
him and throw him from side to side in the back of a truck.
The court explained: “We assumed that these factual
allegations, if true, would have placed Scannell’s actions
outside the ‘scope of his employment’... but, we held the
immunity certificate valid, pending a pre-trial evidentiary
hearing that would resolve the key immunity-related
factual dispute, namely whether Scannell intended to
harm Nasuti.” Wood, 995 F.2d at 1129 (citing Nasuti, 906
F.2d at 808) (emphasis added).

Remand of this case to the district court for a hearing
on the scope of employment issue is consistent with
McHugh and Wood. Unlike in those cases, the Petitioner
has not alleged conduct, such as sexual assault or rape,
which is clearly not entitled to the protection of immunity
if it occurred, and would clearly be beyond the scope of
employment under state law, under any version of events.
Instead, Osborn alleged torts which the district court
correctly ruled are not actionable if undertaken with a
“purpose to serve the employer.” Pet. App. D at 23a (citing
American Gen. Life & Accident Ins. Co. v. Hall, 74 S.W.3d
688, 692 (Ky. 2003)). Further, the United States articu-
lated motives that could have justified Haley’s alleged

11

attempt to influence Osborn’s employment as serving his
employer; and Osborn herself put forth documentation
that she was fired because she engaged in public ridicule
\ of a Forest Service official as a contractor’s employee,
pointedly undermining that official’s (Haley's) attempt to
address the quality of communications between the two
organizations. See App. E, Ex. C to Resp. This is hardly
analogous to a case in which the only matter in dispute is
whether rape, assault, or harassment either did or did not
occur.

Additionally, the instant matter does not involve a
situation in which the Government has merely denied the
factual “allegations.” Instead, the Government attempted
to put the Petitioner to her proof, and then argued that
even if Petitioner’s allegations that Haley interfered with
her employment were hypothetically true, Haley was
entitled to a hearing to determine his intent or motive.
Consistent with Wood and Nasuti, supra, Haley should
have been given the opportunity to contest Osborn’s
“incident-describing” and “incident-characterizing” allega-
tions, which were merely conclusory and did not even
allege specific conduct. Paraphrasing the language of
McHugh, supra, the district court should have considered
all facts and arguments relevant to the context of Haley’s
alleged conduct and Osborn’s termination, as Haley’s
alleged conduct was not necessarily inconsistent with a
legitimate business purpose.’

’ Indeed, under Kentucky law, even criminal] assault has been
deemed within the scope of employment, when intended to further the
employer's purpose. Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005).

12

Finally, Petitioner’s own Complaint supports the
argument that the claims against Haley described conduct
within the scope of his employment. Plaintiff accused
defendant Verdi of discharging her in violation of public
policy; conspiring to wrongfully discharge plaintiff; con-
spiring to interfere with plaintiff’s employment relation-
ship; and outrageous conduct; all alleged to have been
carried out in a “malicious, oppressive, and intentional
manner in order to injure and damage plaintiff.” See App.
A, Compl. In each instance, Osborn alleged that Verdi
acted within the scope of her employment as Executive
Director of the defendant LBLA while performing these
acts. Id., {J 24, 26, 37, 38, 44, 45, 52, 61, and 63. It ap-
pears plaintiff pled her claims cleverly, in hopes of keeping
Verdi’s employer in the lawsuit, while keeping Haley’s
employer out. A true “bright-line” case, such as one alleg-
ing rape or sexual assault, could not accommodate such
dual characterizations.

II. Since legal questions regarding scope of em-
ployment remain, this is not an ideal case
through which to address any conflict between
Article III and the clear statutory language
making the Attorney General’s certification
conclusive for purposes of removal.

The fact that legal issues remain relevant to scope of
employment also undermines Petitioner’s second argu-
ment. Petitioner alleges that this Court should review the
Sixth Circuit’s directive that the case must remain in
federal court, even if the district court determines after a
hearing that certification was improper. Specifically, Peti-
tioner acknowledges that in cases where the scope-of-
employment question is subject to judicial review, although

13

“there may no longer be a federal question once the federal
employee is re-substituted as defendant, ... there was a
non-frivolous federal question ... when the case was
removed to federal court.” Pet. at 15-16, citing Gutierrez de
Martinez v. Lamagno, 515 U.S. 417 (1995) at 435 (plural-
ity opinion). Thus, Petitioner continues, it can fairly be
argued further that such a case “raises a question of
substantive federal law at the very outset,” and therefore
“clearly arises under federal law, as that term is used in
Art. Il.” Pet. at 16 ((quoting Lamagno) (quoting Berlinden
B.V. v. Central Bank of Nigeria, 461 U.S.480, 493 (1983))).
Petitioner then attempts to contrast the present case as
one involving no dispute for the district court to resolve
other than whether the alleged incident did in fact occur.
Id. at 16. As demonstrated above, this is not correct, which
removes the Article III concerns Petitioner attempts to
raise. Under Petitioner’s own analysis, if this Court
concludes that a “colorable” federal question remains
regarding the scope of Haley’s employment, then this case
is not an “ideal vehicle” for the Court to examine the
constitutionality of the clear language of 28 U.S.C.
§ 2679(b)(2), which renders the Attorney General’s certifi-
cation conclusive for purposes of removal.

The split among the circuits on this question of
remand is grounded squarely in constitutional concerns.
Petitioner cites Nasuti v. Scannell, 906 F.2d 802, 814 (1st
Cir. 1990), and Haddon v. United States, 68 F.3d 1420,
1427 (D.C. Cir. 1995), for the proposition that a district
court cannot retain jurisdiction after concluding that the
defendant acted outside the scope of his employment. Both
courts cited constitutional concerns.

Further, Nasuti pre-dates the Supreme Court’s opin-
ion in Lamagno, supra, in which (as the United States

14

Response Brief points out) eight justices concluded that
the plain language of 28 U.S.C. § 2679(b)(2) precludes
remand to the state court if the federal district court
overturns the Attorney General’s certification. See 515
U.S. at 434, 440 (the dissent stating “there is nothing
equivocal about the Act’s provisions ... ”). Nevertheless,
the four-Justice dissent concluded that remand after
denial of substitution would exceed the Court’s Article III
jurisdiction. Jd. at 441. The four-Justice plurality con-
cluded that the Attorney General’s removal of the case on
his certification raises significant and substantive federal
questions at the outset, so that it is consistent with Article
III for the court to retain jurisdiction “once it has invested
time and resources on the initial scope-of-employment
contest.” Jd. at 436. Justice O’Conner declined to address
the Article III question because it was not presented in the
case before the Court. Jd. at 437.

In summary, the clarity of the statute’s language
prohibiting remand is not in dispute. The only “split”
among the Justices, the courts, and even these parties
regarding remand after denial of substitution, concerns
the applicability of Article III to such a procedure. These
parties further appear to agree that this is not an ideal
case for the Court to review the Article III question, if the
Court concludes that colorable federal questions remain to
be decided by the district court. Finally, the parties have
never briefed the merits of the Article III question in these
proceedings at any level, and accordingly the Sixth Circuit
did not directly address the subject in its Opinion.

«

15

CONCLUSION

For the reasons stated above, these Respondents
cannot agree with the United States that the Court should
review the Petitioner’s first issue, which posits an “inci-
dent-denying” certification, because this is not merely an
“incident-denying” case. Rather, this case involves the
district court’s failure to determine facts and hear legal
arguments relative to the characterization and effect of
the defendant’s alleged conduct, under Kentucky law

defining “scope of employment.”

These Respondents further contend the Court should
not review Petitioner’s second question either, because
retaining federal jurisdiction under these circumstances
would not raise unavoidable constitutional concerns.
Rather, the “ideal vehicle” for resolving such issues would
be a case of rape, assault, or harassment, not colorably
within the scope of employment under applicable state
law, so that no federal question would arguably be raised
from the outset. However, if the Court undertakes review
of the district court’s denial of substitution, then these
Respondents must reluctantly agree with the United
States that, for practical reasons, the Court should review
the issue of remand as well.

Respectfully submitted,

C. THOMAS MILLER
J. DUNCAN PITCHFORD
WHITLOW, ROBERTS, HOUSTON &
STRAUB, PLLC
March 2006

App. 1

APPENDIX A

COMMONWEALTH OF KENTUCKY
TRIGG CIRCUIT COURT
CIVIL ACTION NO. 03-CI-00119

Pat Osborn PLAINTIFF
v.

Barry Haley, individually DEFENDANTS
Gaye Luber
Land Between The Lakes Association, Inc.

(Filed Jun. 23, 2003)

Comes now the plaintiff, Pat Osborn, and for her com-
plaint herein states as follows:

PARTIES AND JURISDICTION

1. Plaintiff, Pat Osborn, is a resident of
Calloway County, Kentucky.

2. Defendant, Barry Haley, is believed to be a
resident of Marshall County, Kentucky.

3. Defendant, Gaye Luber, is a resident of Mar-
shall County, Kentucky.

4. Defendant, Land Between The Lakes Asso-
ciation, Inc. (hereinafter referred to as
“LBLA”) is a Kentucky corporation with its
principal place of business located in Trigg
County, Kentucky.

5. The acts of the defendants that are the basis
of this complaint occurred in Trigg County,
Kentucky. ~

10.

App. 2

At all times relevant to this complaint, de-
fendant Barry Haley was employed as Busi-
ness Manager by USDA Forest Service,
Land Between The Lakes National Recrea-
tion Area (LBL NRA, hereinafter referred to
as “U.S. Forest Service”), whose principal
place of business is located at 100 Van Mor-
gan Drive, Golden Pond, Trigg County, Ken-
tucky.

At all times relevant to this complaint, de-
fendant Gaye Luber was employed as Ex-
ecutive Director by defendant LBLA, whose
principal place of business is located at 345
Maintenance Road, Golden Pond, Trigg
County, Kentucky.

Plaintiff was employed as Volunteer Coordi-
nator by defendant LBLA from January
2001 until her discharge on June 19, 2002.
Plaintiff worked at defendant LBLA’s prin-
cipal place of business located at 345 Main-
tenance Road, Golden Pond, Trigg County,
Kentucky.

LBLA is a corporate contractor to the U:S.
Forest service. LBLA provides staff for gift
shops, visitor centers, and interpretive ar-
eas. LBLA receives more than one-half of its
income from the U.S. Forest Service.

On or near February 7, 2002, and again
upon re-advertisement of the position on or
near April 19, 2002, plaintiff applied for an
advertised position of Contract Specialist
Trainee with the U.S. Forest Service. The
chosen applicant would be trained out of the
U.S. Forest Service office located in Trigg
County, Kentucky.

11.

12.

13.

14.

15.

App. 3

On or near May 20, 2002, at a joint meeting
of U.S. Forest Service, LBLA, and Brown &
Root employees, defendant Barry Haley re-
vealed the name of the person he had se-
lected for the position of Contract Specialist
Trainee with the U.S. Forest Service. The
person Barry Haley selected was someone
other than the plaintiff.

Plaintiff is a veteran of the armed services,
having served on active duty in the United
States Air Force from 1975 until her honor-
able discharge in 1979. She also served re-
serve duty from 1981 until her retirement in
1999.

As an honorably discharged “5-Point Prefer-
ence-Eligible” veteran, plaintiff was entitled
to receive preference points when being con-
sidered for the Contract Specialist Trainee
position with the U.S. Forest Service.

On or near June 11, 2002, plaintiff filed a
written veterans’ preference inquiry with
the United States Department of Labor in
order to determine if she had received the
veterans’ preference points to which she was
entitled when being considered as an appli-
cant for the Contract Specialist Trainee po-
sition with the U.S. Forest Service.

On June 17, 2002, plaintiff was contacted by
telephone by Mr. Robert Kuenzli, an investi-
gator with the United States Department of
Labor, and interviewed regarding the writ-
ten veterans’ preference inquiry filed by the
plaintiff with the United States Department
of Labor.

App. 4

16. During plaintiff’s conversation with Mr.

17.

18.

Kuenzli on June 17, 2002, Mr. Kuenzli asked
plaintiff whom he could contact at the U.S.
Forest Service to determine if plaintiff had
received her veterans’ preference points
when being considered for the position.
Plaintiff told Mr. Kuenzli that defendant
Barry Haley should be contacted, and pro-
vided his phone number. Plaintiff also stated
to Mr. Kuenzli that if defendant Barry Haley
found out that plaintiff had filed a veterans’
preference inquiry with the U.S. Depart-
ment of Labor, there was a good chance de-
fendant Barry Haley would cause plaintiff to
lose her job.

On June 17, 2002, after his conversation
with plaintiff, Mr. Kuenzli contacted defen-
dant Barry Haley by telephone. While inves-
tigating the award of veterans’ preference
points to applicants in the hiring process for
the Contact Specialist Trainee, at defendant
Barry Haley’s insistence, Mr. Kuenzli ac-
knowledged that plaintiff had filed a written
veterans’ preference inquiry with the De-
partment of Labor.

On June 17, 2002, after Mr. Kuenzli dis-
closed to defendant Barry Haley that plain-
tiff had filed a written veterans’ preference
inquiry with the U.S. Department of Labor,
the Executive Director of defendant LBLA,
defendant Gaye Luber, summoned plaintiff
into her office at LBLA. Defendant Gaye
Luber proceeded to ask plaintiff to apologize
to defendant Barry Haley for “not being a
good Forest Service partner”.

App. 5

19. Plaintiff informed defendant Gaye Luber
that Plaintiff had spoken with Mr. Bob
Kuenzli of the U.S. Department of Labor
earlier that day (June 17, 2002), that plain-
tiff knew what defendant Gaye Luber
wanted plaintiff to apologize for, and that
plaintiff would not apologize to Barry Haley
for exercising plaintiff’s right to inquire as
to whether she was given consideration for
her veteran status.

20. On June 19, 2002, plaintiff was discharged
from her employment with LBLA by defen-
dant Gaye Luber. Plaintiff attempted to
telephone Mr. Kuenzli to report that she was
being fired for filing the veterans’ preference
inquiry, but was physically thwarted by de-
fendant Gaye Luber. Plaintiff was ordered to
empty her desk of personal belongings in the
presence of defendant Gaye Luber. Then
plaintiff was escorted from the LBLA prem-
ises by defendant Gaye Luber.

FIRST CAUSE OF ACTION
DISCHARGE OF PLAINTIFF IN VIOLATION OF
PUBLIC POLICY OF STATE OF KENTUCKY

21. Plaintiff incorporates by reference para-
graphs 1-20, inclusive, of this complaint as if
fully set forth here.

22. Plaintiff’s discharge from her employment
with LBLA by its Executive Director, defen-
dant Gaye Luber, was wrongful, in violation
of the public policy of the state of Kentucky.
Plaintiff's discharge by defendant Gaye
Luber, was in retaliation for plaintiff exercis-
ing her right to file a formal inquiry request

23.

24.

25.

26.

App. 6

with the U.S. Department of Labor inquir-
ing as to whether plaintiff was given credit
for her veteran status when being consid-
ered for the Contract Specialist Trainee po-
sition with the U.S. Forest Service.

As a direct, foreseeable, and proximate re-
sult of plaintiff’s wrongful discharge by de-
fendant Gaye Luber, plaintiff has lost and
will continue to lose income and benefits,
and has suffered and will continue to suffer
humiliation, embarrassment, mental and
emotional distress all to plaintiff’s damage,
in an amount in excess of the dollar amount
necessary to establish the jurisdiction of this
court.

As Executive Director of defendant LBLA,
defendant Gaye Luber was acting within the
scope of her employment duties with defen-
dant LBLA. Her tortious conduct is there-
fore imputable to defendant LBLA under the
doctrine of respondent superior, and defen-
dant LBLA is liable for the damages caused
to plaintiff by the conduct of defendant Gaye
Luber.

Because the acts taken toward plaintiff by
defendant Gaye Luber were carried out in a
malicious, oppressive, and intentional man-
ner in order to injure and damage plaintiff,
plaintiff requests the assessment of punitive
damages against defendant Gaye Luber in
an amount to punish and make an example
of defendant Gaye Luber.

Because the malicious, oppressive, and in-
tentional conduct of defendant Gaye Luber
was committed when acting within the scope

27.

28.

29.

30.

App. 7

of her employment as Executive Director of
defendant LBLA, her conduct is therefore
imputable to LBLA under the doctrine of re-
spondent superior, and plaintiff requests the
assessment of punitive damages against de-
fendant LBLA.

SECOND CAUSE OF ACTION
INTERFERENCE WITH
EMPLOYMENT RELATIONSHIP

Plaintiff incorporates by reference para-
graphs 1-26, inclusive, of this complaint as if
fully set forth here.

Defendant Barry Haley knew of the em-
ployment relationship between plaintiff and
defendant, LBLA.

On or near June 17, 2002, defendant Barry
Haley intentionally interfered with plain-
tiff’s employment relationship with defen-
dant LBLA. Plaintiff incurred the enmity of
defendant Barry Haley by filing a veterans’
preference inquiry with the U.S. Depart-
ment of Labor, thereby causing an investiga-
tion into Barry Haley’s hiring practices at
the U.S. Forest Service. Acting outside the
scope of his employment, defendant Barry
Haley wrongfully and maliciously induced,
persuaded, or coerced defendant Gaye Luber
to discharge plaintiff from her job with de-
fendant LBLA in retaliation for plaintiff fil-
ing a veterans’ preference inquiry.

As a direct foreseeable, and proximate result
of the conduct of defendant Barry Haley,
plaintiff has lost and will continue to lose
income and benefits, and has suffered and

App. 8

will continue to suffer humiliation, embar-
rassment, mental and emotional distress all
to the plaintiff's damage in an amount in
excess of the dollar amount necessary to es-
tablish the jurisdiction of this court.

31. Because the acts taken toward plaintiff by
defendant Barry Haley were carried out in a
malicious, oppressive, and intentional man-
ner in order to injure and damage plaintiff,
plaintiff requests the assessment of punitive
damages against defendant Barry Haley in
an amount to punish and make an example
of defendant Barry Haley.

THIRD CAUSE OF ACTION
CONSPIRACY TO WRONGFULLY
DISCHARGE PLAINTIFF

32. Plaintiff incorporates by reference para-
graphs 1-31, inclusive, of this complaint as if
fully set forth here.

33. Commencing on or near June 17, 2002, de-
fendant Barry Haley and defendant Gaye
Luber maliciously, without just cause, con-
spired to bring about plaintiff's discharge
from her employment with defendant LBLA
in retaliation for plaintiff filing a veterans
preference inquiry with the U.S. Depart-
ment of Labor.

34. In furtherance of the conspiracy:

a. On or near June 17, 2002, acting out-

side the scope of his employment, de-
fendant Barry Haley did wrongfully
and maliciously induce, persuade, or

35.

36.

37.

App. 9

coerce defendant Gaye Luber to dis-
charge plaintiff from employment with
defendant LBLA.

b. On or near June 19, 2002, acting in
concert with defendant Barry Haley, de-
fendant Gaye Luber discharged plain-
tiff from her job with defendant LBLA
in violation of the public policy of the
State of Kentucky.

As a direct, foreseeable, and proximate re-
sult of this conspiracy by defendants Barry
Haley and Gaye Luber, plaintiff has lost and
will continue to lose income and benefits,
has suffered and will continue to suffer hu-
miliation, embarrassment, mental and emo-
tional distress all to plaintiff's damage in an
amount in excess of the dollar amount nec-
essary to establish the jurisdiction of this
court.

Because the acts taken toward plaintiff by
defendants Barry Haley and Gaye Luber
were carried out in a malicious, oppressive,
and intentional manner in order to injure
and damage plaintiff, plaintiff requests the
assessment of punitive damages against de-
fendants Barry Haley and Gaye Luber in an
amount to punish and make an example of
defendants Barry Haley and Gaye Luber.

As Executive Director of defendant LBLA,
defendant Gaye Luber was acting within the
scope of her employment duties with defen-
dant LBLA. Her tortious conduct is therefore
imputable to defendant LBLA under the doc-
trine of respondent superior, and defendant
LBLA is liable to plaintiff for the damages

App. 10

caused to plaintiff by the conduct of defen-
dant Gaye Luber.

38. Because the malicious, oppressive and in-
tentional conduct of defendant Gaye Luber
was committed when acting within the scope
of her employment as Executive Director of
defendant LBLA, plaintiff requests the as-
sessment of punitive damages against de-
fendant LBLA under the doctrine of
respondent superior.

FOURTH CAUSE OF ACTION
CONSPIRACY TO INTERFERE WITH
PLAINTIFF’S EMPLOYMENT RELATIONSHIP

39. Plaintiff incorporates by reference para-
graphs 1-38, inclusive, of this complaint as if
fully set forth here.

40. On or near June 17, 2002, defendants Barry
Haley and Gaye Luber maliciously, without
just cause, conspired to interfere with plain-
tiff's employment relationship with LBLA
and bring about plaintiff's discharge.

41. In furtherance of the conspiracy defendant
Barry Haley, acting outside the scope of his
employment wrongfully and maliciously in-
duced, persuaded, or coerced defendant
Gaye Luber to discharge plaintiff from her
job with LBLA in retaliation for plaintiff fil-
ing a veterans’ preference inquiry. Acting in
concert with defendant Barry Haley, and in
furtherance of the conspiracy, defendant
Gaye Luber discharged plaintiff from her
employment with LBLA.

App. 11

42. As a direct, foreseeable, and proximate re-

43.

44.

45.

sult of this conspiracy by defendants Barry
Haley and Gaye Luber, plaintiff has lost and
will continue to lose income and benefits,
has suffered and will continue to suffer hu-
miliation, embarrassment, mental and emo-
tional distress all to plaintiff's damage in an
amount in excess of the dollar amount nec-
essary to establish the jurisdiction of this
court.

Because the acts taken toward plaintiff by
defendants Barry Haley and Gaye Luber
were carried out in a malicious, oppressive,
and intentional manner in order to injure
and damage plaintiff, plaintiff requests the
assessment of punitive damages against de-
fendants Barry Haley and Gaye Luber in an
amount to punish and make an example of
defendant’s [sic] Barry Haley and Gaye
Luber.

As Executive Director of defendant LBLA,
defendant Gaye Luber was acting within the
scope of her employment duties with defen-
dant LBLA. Her tortious conduct is there-
fore imputable to defendant LBLA under the
doctrine of respondent superior, and defen-
dant LBLA is liable to plaintiff for the dam-
ages caused to plaintiff by the conduct of
defendant Gaye Luber.

Because the malicious, oppressive and in-
tentional conduct of defendant Gaye Luber
was committed when acting within the scope
of her employment as Executive Director of
LBLA plaintiff requests that punitive dam-
ages be assessed against defendant LBLA
under the doctrine of respondent superior.

46.

47.

48.

49.

50.

51.

App. 12

FIFTH CAUSE OF ACTION
OUTRAGEOUS CONDUCT

Plaintiff incorporates by reference para-
graphs 1-45, inclusive, of this complaint as if
fully set forth here.

Defendants Barry Haley and Gaye Luber’s
conduct directed toward plaintiff as de-
scribed in this complaint was committed in
an intentional or reckless manner.

Defendants Barry Haley and Gaye Luber’s
conduct was outrageous and intolerable be-
cause it offended generally accepted stan-
dards of decency and morality.

The conduct of defendants Barry Haley and
Gaye Luber, as described in this complaint,
was malicious, oppressive and intended to
injure plaintiff.

The conduct of defendants Barry Haley and
Gaye Luber as described in this complaint
has caused plaintiff to suffer severe emo-
tional distress to plaintiff's damage in an
amount in excess of the dollar amount nec-
essary to establish the jurisdiction of this
court.

Because the acts taken toward plaintiff by
defendant’s [sic] Barry Haley and Gaye
Luber were carried out in a malicious, op-
pressive, and intentional manner in order to
injure and damage plaintiff, plaintiff re-
quests the assessment of punitive damages
against defendant’s [sic] Barry Haley and
Gaye Luber in an amount to punish and
make an example of these defendants.

App. 13

52. As Executive Director of defendant LBLA,

53.

defendant Gaye Luber was acting within the
scope of her employment duties with defen-
dant LBLA. Her tortious conduct is there-
fore imputable to defendant LBLA under the
doctrine of respondent superior, and defen-
dant LBLA is liable to plaintiff for the dam-
ages caused to plaintiff by the conduct of
defendant Gaye Luber.

Because the malicious, oppressive and in-
tentional conduct of defendant Gaye Luber
was committed when acting within the scope
of her employment as Executive Director of
LBLA, plaintiff requests that punitive dam-
ages be assessed against defendant LBLA
under the doctrine of respondent superior.

SIXTH CAUSE OF ACTION

CONSPIRACY - OUTRAGEOUS CONDUCT

54.

55.

Plaintiff incorporates by reference para-
graphs 1-53, inclusive, of this complaint as if
fully set forth here.

Acting in concert, defendants Barry Haley
and Gaye Luber directed their conduct, as
described in this complaint, toward plaintiff
in an intentional or reckless manner.

The conduct of defendants Barry Haley and
Gaye Luber, in causing plaintiff’s discharge
from her employment in retaliation for
plaintiff exercising her right to file a veter-
ans’ preference inquiry, was outrageous and
intolerable because it offended generally ac-
cepted standards of decency and morality.

57.

58.

59.

61.

App. 14

Defendants Barry Haley and Gaye Luber’s
conduct as described in this complaint was
malicious, oppressive and intended to injure
plaintiff.

The conduct of defendants Barry Haley and
Gaye Luber has caused plaintiff to suffer se-
vere emotional distress to plaintiff's damage
in an amount in excess of the dollar amount
necessary to establish the jurisdiction of this
court.

Because the acts taken toward plaintiff by
defendants Barry Haley and Gaye Luber
were carried out in a malicious, oppressive,
and intentional manner in order to injure
and damage plaintiff, plaintiff requests the
assessment of punitive damages against de-
fendant’s [sic] Barry Haley and Gaye Luber
in an amount to punish and make an exam-
ple of these defendants.

As Executive Director of defendant LBLA,
defendant Gaye Luber was acting within the
scope of her employment duties with defen-
dant LBLA. Her tortious conduct is there-
fore imputable to defendant LBLA under the
doctrine of respondent superior, and defen-
dant LBLA is liable to plaintiff for the dam-
ages caused to plaintiff by the conduct of
defendant Gaye Luber.

Because the malicious, oppressive and in-
tentional conduct of defendant Gaye Luber
was committed when acting within the scope
of her employment as Executive Director of
LBLA, plaintiff requests that punitive dam-
ages be assessed against defendant LBLA
under the doctrine of respondent superior.

App. 15

WHEREFORE, plaintiff requests judgment against
defendants Barry Haley, Gaye Luber, and LBLA, and each
of them, as requested above in this complaint, to wit:

1. For compensatory damages, including lost
wages, lost employee benefits, vacation
benefits, mental and emotional distress and
other special and general damages according
to proof.

2. For an award of punitive damages against
each of the defendants as requested above in
this complaint.

3. For an award of costs of suit incurred on all
causes of action.

4. For an award to plaintiff of such other and fur-
ther relief as this court deems just and proper.

Plaintiff hereby demands a trial by jury upon all the
issues in the above-entitled action.

/s/ Pat Osborn June 11, 2003
Pat Osborn Date
1474 Paschall Road

Murray, KY 42071
(270) 492-8256
PLAINTIFF, PRO SE

I hereby certify the foregoing to be a
true copy as filed in the Office of the
Trigg Circuit Clerk.

Witness my hand and seal this 30th

day of July 2003
Pam W. Perry, Clerk
Trigg Circuit/District Courts

By: [Ilegible] D.C.

App. 16

APPENDIX B

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE
PAT OSBORN PLAINTIFF
v. CIVIL ACTION NO. 5:03-CV-00192-R
BARRY HALEY, Individually
GAYE LUBER
LAND BETWEEN THE LAKES
ASSOCIATION, INC. DEFENDANTS

ANSWER

The United States of America, by counsel, states as
follows in response to plaintiff's complaint:

ANSWERS TO RED
PA O

Parties and Jurisdiction

1. The federal defendant is without knowledge or
information sufficient to form a belief as to the truth of the
allegations in paragraphs 1, 15, 16, 18, 19, and 20. To the
extent a response to any of said paragraphs is deemed
required, the allegations are denied.

2. The federal defendant admits the allegations in
paragraphs 2, 3, 6, 7, 8, 11, 12, 13 and 14.

3. With regard to paragraph 4, the federal defendant
admits that the Land Between the Lakes Association, Inc.
(“LBLA”) has its principal place of business in Trigg
County, Kentucky. The federal defendant is without
knowledge or information sufficient to form a belief as to

App. 17

whether LBLA is a Kentucky corporation. In its answer,
LBLA stated it is not a Kentucky corporation.

4. With regard to paragraph 5, the federal defendant
admits that plaintiff alleges that certain actions occurred
in Trigg County, Kentucky. The remainder of the allega-
tions in said paragraph are denied.

5. The federal defendant denies the allegations in
the first sentence of paragraph 9. The remainder of the
allegations in said paragraph are admitted.

6. The allegations in paragraph 10 are admitted,
except that the federal defendant denies that a position
was re-advertised.

7. The federal defendant admits the allegations in
the first sentence of paragraph 17. With respect to the
second sentence, the federal defendant admits that Mr.
Kuenzli advised that plaintiff filed a written veterans’
preference inquiry with the Department of Labor. All
remaining allegations in paragraph 17 are denied.

First Cause of Action

8. Paragraph 21 is a restatement of prior allegations,
which are answered above. To the extent a response is
deemed required, the allegations are again denied.

9. The federal defendant denies the allegations in
paragraphs 22, 23, and 26.

10. The federal defendant denies the allegations in
paragraph 24, except that it appears that defendant Luber
was acting within the scope of her employment when she
discharged plaintiff.

App. 18

11. The allegations in paragraph 25 constitute a
prayer for relief, to which no response is required. To the
extent a response is deemed required, the federal defen-
dant denies the allegations.

oO ause of Acti

12. Paragraph 27 is a restatement of prior allega-
tions, which are answered above. To the extent a response
is deemed required, the allegations are again denied.

13. The federal defendant denies the allegation in
paragraph 28 on the basis that “employment relationship”
is vague and ambiguous. The federal defendant admits
that it knew plaintiff was an employee of LBLA.

14. The federal defendant denies the allegations in
paragraphs 29, 30, and 31.

ause o tio

15. Paragraph 32 is a restatement of prior allega-
tions, which are answered above. To the extent a response
is deemed required, the allegations are again denied.

16. The federal defendant denies the allegations in
paragraphs 33, 34, 35, 36 and 37.

17. The allegations in paragraph 38 constitute a
prayer for relief, to which no response is required. To the
extent a response is deemed required, the federal defen-
dant denies the allegations.

App. 19

Fourth Cause of Action

18. Paragraph 39 is a restatement of prior allega-
tions, which are answered above. To the extent a response
is deemed required, the allegations are again denied.

19. The federal defendant denies the allegations in
paragraphs 40, 41, 42, 43, and 44.

20. The allegations in paragraph 45 constitute a
prayer for relief, to which no response is required. To the
extent a response is deemed required, the federal defen-
dant denies the allegations.

Fifth Cause of Action

21. Paragraph 46 is a restatement of prior allega-
tions, which ar answered above. To the extent a response
is deemed required, the allegations are again denied.

22. The federal defendant denies the allegations in
paragraphs 47, 48, 49, 50, 51, and 52.

23. The allegations in paragraph 53 constitute a
prayer for relief, to which no response is required. To the
extent a response is deemed required, the federal defen-
dant denies the allegations.

Sixth Cause of Action

24. Paragraph 54 is a restatement of prior allega-
tions, which are answered above. To the extent a response
is deemed required, the allegations are again denied.

25. The federal defendant denies the allegations in
paragraphs 55, 56, 57, 58, 59, and 60.

App. 20

26. The allegations in paragraph 61 constitute a
prayer for relief, to which no response is required. To the
extent a response is deemed required, the federal defen-
dant denies the allegations.

AFFIRMATIVE DEFENSES

1. The complaint fails to state in whole or in part a
claim upon which relief may be granted.

2. The court lacks jurisdiction because the alleged
causes of action do not arise under the Constitution, law or
treaties of the United States.

3. Plaintiff's claims are barred in whole or in part by
the applicable statutes of limitation.

4. The court lacks jurisdiction because plaintiff
failed to exhaust administrative remedies before filing

sult.

5. Service of process on the United States and its
employee Barry Haley is insufficient pursuant to Fed. R.
Civ. P. 4(i)(2)(A) and (B).

6. All or some of the claims against federal defen-
dant Barry Haley allege violations of state law to which
defendant Haley has absolute immunity, and accordingly
the United States must be substituted as the proper party
defendant as to said claims pursuant to 28 U.S.C.
§§ 2679(b)\(1) and 2679%d).

7. To the extent the claims against federal defendant
Barry Haley are determined to properly allege violations
of federal law or the Constitution of the Untied States,
federal defendant Barry Haley is entitled to qualified
immunity from said claims.

App. 21

8. The United States reserves the right to plead and
prove additional defenses and affirmative defenses as they
become known during discovery and litigation.

WHEREFORE, based on all of the foregoing, the
United States requests:

1. That plaintiff's complaint be DISMISSED;
2. That all costs be assessed against plaintiff; and

3. Such other relief as the Court deems just and
proper.
Respectfully submitted,

MARK L. MILLER
United States Attorney

/s/ W. Brady Miller
W. Brady Miller
Assistant U.S. Attorney
510 W. Broadway,
10th Floor
Louisville, KY 40202
(502) 582-5166

CERTI S

I hereby certify that a copy of the foregoing was
mailed this 19th day of November, 2003, to the following:

Pat Osborn, Plaintiff Pro Se
1474 Paschal] Road
Murray, Kentucky 42071

C. Thomas Miller, Esq.

Whitlow, Roberts, Houston & Straub
300 Broadway, P.O. Box 995
Paducah, Kentucky 42002

App. 22

/s/ W. Brady Miller

W. Brady Miller
Assistant U.S. Attorney

App. 23

APPENDIX C

UNITED STATES DISTRICT,COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

PAT OSBORN PLAINTIFF
v. CIVIL ACTION NO.

BARRY HALEY, INDIVIDUALLY

GAYE LUBER

LAND BETWEEN THE

LAKES ASSOCIATION, INC. DEFENDANTS

CERTIFICATION

I, Monica Wheatley, Acting United States Attorney,
Western District of Kentucky, acting pursuant to the
provisions of 28 U.S.C. § 2679(d)(2), and by virtue of the
authority vested in me by the Appendix to 28 C.F.R. § 15.3
(1990), hereby certify that the Office of the United States
Attorney has reviewed the available facts in this matter.
On the basis of the information now available to me with
respect to the allegations in the complaint, I find that the
named federal defendant, Barry Haley, was acting within
the scope of his employment with the U.S. Forest Service,
at the time of the conduct alleged in the complaint.

/s/ Monica Wheatley
MONICA WHEATLEY
Acting United States Attorney

Aug. 20, 2003
DATE

App. 24

APPENDIX D

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY

AT PADUCAH
PAT OSBORN PLAINTIFF
v. CIVIL ACTION NO. 5:03-CV-00192-R
BARRY HALEY, Individually

GAYE LUBER

LAND BETWEEN THE

LAKES ASSOCIATION, INC. DEFENDANTS

UNITED STATES’ MOTION TO DISMISS

The United States moves the court to dismiss the
above-styled case as against the federal defendant. In
support thereof, the United States submits the following
memorandum of law.

MEMORANDUM IN SUPPORT OF
UNITED STATES’ MOTION TO DISMISS

INTRODUCTION

Plaintiff filed a complaint in this court against defen-
dants Barry Haley, Gaye Luber and the Land Between the
Lakes Association, Inc. (“LBLA”), alleging various causes
of action related to her discharge from employment at
LBLA in June 2002. These causes of action include:
interference with employment relationship; conspiracy to
wrongfully discharge plaintiff; conspiracy to interfere with
employment relationship; outrageous conduct; and con-
spiracy to commit outrageous conduct. See Complaint,
causes of action two through six. All of the foregoing
causes of action naming Barry Haley purport to allege
state law torts.

App. 25

ARGUMENT
I. THE UNITED STATES IS THE PROPER DE-

FENDANT AS TO STATE LAW CLAIMS AGAINST
A FEDERAL EMPLOYEE.

Section 6 of the Federal Employees Liability Reform
and Tort Compensation Act provides that upon certifica-
tion by the Attorney General, or his designate, that a
federal employee was acting within the scope of his office
or employment at the time of the incident out of which a
state law claim arises, any civil action arising out of the
incident shall be deemed an action against the United
States, and the United States of America shall be substi-
tuted as sole defendant with respect to those claims. 28
U.S.C. § 2679(d)(1),(2).

As noted above, all of the causes of action plaintiff
claims against Forest Service employee Barry Haley sound
in tort under state law. Acting U.S. Attorney Monica
Wheatley has certified that Forest Service employee Barry
Haley acted within the scope of his employment at the
time of the conduct alleged in the complaint. The United
States has accordingly separately filed a Notice of Pro-
posed Substitution herein to substitute the United States
as defendant in this action in place of Forest Service
employee Barry Haley.

II. THE UNITED STATES IS IMMUNE FROM SUIT
EXCEPT AS IT CONSENTS TO BE SUED.

The United States, as sovereign, is immune from suit
except under those circumstances in which it consents to
be sued, and the terms of that consent define the court’s
jurisdiction to entertain the suit. United States v. Mitchell,
445 U.S. 535, 538 (1980); United States v. Sherwood, 312

App. 26

U.S. 584, 586 (1941); United States v. Dalm, 494 U.S. 596,
reh’g denied, 495 U.S. 941 (1990). Where no such consent
exists, a district court has no jurisdiction to entertain a
suit against the [United States.] Mitchell, 445 U.S. at 538.

In short, any waiver of sovereign immunity must be
strictly construed in favor of the United States. Library of
Congress v. Shaw 478 U.S. 310, 318 (1986); Ruckelshaus v.
Sierra Club, 463 U.S. 680, 685-686 (1983). The Supreme
Court has long held that “limitations and conditions upon
which the Government consents to be sued must be
strictly observed and exceptions thereto are not to be
implied.” Lehman v. Nakshian, 453 U.S. 156, 161, 101
S. Ct. 2698, 2702 (1981); Soriano v. United States, 352
U.S. 270, 276, 77 S. Ct. 269, 273 (1957); see also United
States v. Kubrick, 444 U.S. 111, 117-118, 100 S. Ct. 352,
357 (1979); Munro v. United States, 303 U.S. 36, 41, 58
S. Ct. 421, 423-424 (1938); Jaffee v. United States, 592 F.2d
712 (3rd Cir. 1979), cert. denied, 441 U.S. 961, 99 S. Ct.
2406 (1979); Bledsoe v. Department of Housing Urban
Development, 398 F. Supp. 315, 320 (E.D. Pa. 1975).

Thus, when an action is brought against the United
States as to which there has been no waiver of immunity,
or where the waiver granted has been conditioned by an
exception applicable to that action, the federal court has
no jurisdiction.

App. 27

Ill. BECAUSE PLAINTIFF FAILED TO EXHAUST
HER ADMINISTRATIVE REMEDIES UNDER
THE FEDERAL TORT CLAIMS ACT, THE
COURT HAS NO JURISDICTION OVER HER
TORT CLAIMS AGAINST THE UNITED
STATES.

The sole jurisdictional basis for a suit against the
United States sounding in tort is the Federal Tort Claims
Act, 28 U.S.C. § 2671 et seq. (“FTCA”). The FTCA is the
exclusive waiver of sovereign immunity for actions sound-
ing in state law tort against the United States, its agencies
and/or officers acting within their official capacity. Gibson
v. Matthews, 715 F. Supp. 181 (E.D. Ky. 1989), aff'd, 926
F.2d 532 (6th Cir. 1991). In order to maintain a lawsuit
against the United States under the FTCA, a plaintiff
must exhaust her administrative remedies before bringing
suit. 28 U.S.C. § 2675(a). Only when the claim has been
“finally denied by the agency in writing” or when there has
been a “failure ... to make final disposition of a claim
within six months after it is filed” may a plaintiff institute
an action in federal court. Jd.

Exhaustion of administrative remedies is a jurisdic-
tional prerequisite and cannot be waived. McAfee v. 5th
Circuit Judges, 884 F.2d 221 (5th Cir. 1989); Henderson v.
United States, 785 F.2d 121 (4th Cir. 1986); Jackson v.
United States, 730 F.2d 808 (D.C. Cir. 1984); Holloman uv.
Watt, 708 F.2d 1399 (10th Cir. 1983); Contemporary Mission,
Inc. v. U.S. Postal Service, 648 F.2d 97 (2nd Cir. 1981);
Garrett v. United States, 640 F.2d 24 (6th Cir. 1981); Allen v.
United States, 517 F.2d 1328 (6th Cir. 1975); Rallis v. M.P.W.
Stone, 821 F. Supp. 466 (E.D. Mich. 1993); Moody v. United
States, 585 F. Supp. 286 (E.D. Tenn. 1984), aff'd., 774 F.2d
150 (6th Cir. 1985); Chodos v. FB.J., 559 F. Supp. 69

App. 28

(S.D.N.Y. 1982) aff’d., 697 F.2d 289 (2nd Cir. 1982). The
Federal Tort Claims Act is a specific congressional excep-
tion to sovereign immunity allowing the government to be
sued for tortious acts committed by its employees. Suarez
v. United States, 22 F.3d 1064 (11th Cir. 1994). The cir-
cumstances of its waiver must be scrupulously observed
and may not be expanded by the courts. See, e.g., United
States v. Kubrick, supra.

Plaintiff filed no FTCA claim with the Forest Service.
Because plaintiff has not presented a claim to the agency,
the agency has not “finally denied” the claim, nor has it
failed to make final disposition of same. 28 U.S.C.
§ 2675(a). Thus, plaintiff has not exhausted her adminis-
trative remedies, and the Court has no jurisdiction over
her tort claims against the United States, and accordingly
should dismiss them.

CONCLUSION

Based upon all of the foregoing, the United States
respectfully requests that the court grant its motion to
dismiss the above-styled action.

Respectfully submitted,

DAVID L. HUBER
United States Attorney

/s/ W. Brady Miller
W. Brady Miller
Assistant U.S. Attorney
510 W. Broadway, 10th Floor
Louisville, KY 40202
(502) 582-5166

App. 29

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was
mailed this 9th day of January, 2004, to the following:

Pat Osborn, Plaintiff Pro Se
1474 Paschall Road
Murray, Kentucky 42071

C. Thomas Miller, Esq.

Whitlow, Roberts, Houston & Straub
300 Broadway, P.O. Box 995
Paducah, Kentucky 42002

/s/ W. Brady Miller
W. Brady Miller
Assistant U.S. Attorney

App. 30

APPENDIX E

U.S. Department Robert A. Kuenzli
of Labor Office of the Assistant Secretary
for Veterans Employment
and Training
320 Garrard Street [LOGO]

Covington, KY 41011
(859) 292-6666 Ext. 253

(859) 292-6708 Fax
E-mail: kuenzli-robert@dol.gov

June 24, 2002

RAVET William J. Bolls, Jr.

Veterans’ Employment and Training Service
U.S. Department of Labor

Sam Nunn Atlanta Federal Center

61 Forsyth Street, S.W., Room 6-T85
Atlanta, Georgia 30303

Re: Patricia Osborn
04-KY-2002-00003-VP

Dear RAVET Bolls:

This is a follow-up letter to our telephone conversation
concerning the termination of the above mentioned veteran
after I discussed the hiring procedures on Recruitment
Notice No.: R860-002-D-02 with the U.S. Department of
Agriculture (U.S. Forest Service) for a Contract Specialist
Trainee, with Mr. Barry Haley, Business Manager, at Land
Between the Lake Recreation Area.

Ms. Osborn worked for the Land Between The Lakes
Association (LBLA), which is a partner with the U.S.
Forest Service at Land Between The Lakes Recreation
Area, as a paid volunteer coordinator.

App. 31

‘Ms. Osborn is a 5-point preference veteran and with her
experience with Land Between The Lakes and her prefer-
ence she thought she would be a good chance to be selected
for the opening. She applied for the position and on May
20, 2002, she learned she was not selected during a staff
meeting with nearly 80 of her peers. Mr. Haley announced
at the meeting who was hired. Ms. Osborn was shocked
that she would learn that she was not hired in front of her
friends and peers without some type of prior notice.

After the announcement Mr. Haley asked if there was any
question and Ms. Osborn asked Mr. Haley if it would not
have been better to provide her with a letter or phone call
prior to announcing her non-selection in front of the whole
staff. She states that he agreed that it would have been
better.

Later during the staff meeting Mr. Haley was talking
about the lack of use for a card system that he designed for
employees to provide a Think Card to any employee that
they observe doing something incorrectly. This Think Card
is suppose to remind that employee not to make the same
mistake again. After the talk about the card system, Mr.
Haley again asked if there were any questions and Ms.
Osborn asked Mr. Haley if he had a Think Card, this
caused the group at the staff meeting to have a big laugh.

About a week after the staff meeting incident Ms. Osborn’s
boss, Ms. Tamara Newkum asked Ms. Osborn to apologize
to Mr. Haley for the comment he made at the staff meeting
and Ms. Osborn told her boss that she would not apologize
to Mr. Haley.

I spoke to Mr. Haley on Monday, June 17, to discuss the
position that they filled and was told that the number one
person on the cert accepted the position. He continued by

App. 32

saying that he would have his HR fax a copy of the cert to
my office.

After receiving the fax I called Ms. Osborn and explained
that it appeared that the posting was handled correctly.
Ms. Osborn asked that her complaint be closed.

Later Monday afternoon Ms. Osborn called to tell me that
she thinks she may be in trouble with her boss because
she received a call from Ms. Newkum telling her to cancel
the next days appointments and to meet with her in her
office the first thing in the morning.

Tuesday morning Ms. Osborn called me to say that she had
been fired and that her boss said that Mr. Haley had
demanded Ms. Newkum terminate her for insubordination.

I asked Ms. Osborn what it was that caused the insubor-
dination and she explained that it was the comment she
made at the staff meeting to Mr. Haley. Ms. Osborn said
that Ms. Newkum didn’t want to fire her but that she was
told do so.

Ms. Osborn told me later that her evaluations are always
raving and that she had never been in trouble. She said
that she didn’t even get any type of warning for the com-
ment that she maid [sic] in the staff meeting. I told Ms.
Osborn that I would make some phone calls and get back
with her.

Ms. Osborn told me in her initial complaint that Mr. Haley
runs the organization as he sees fit and that he procla.ms
himself to be “The Master” of hardball who will not be
intimidated. Another fact that may assist in this is that
Mr. Haley and Ms. Newkum are a [sic] item which is well
known at the recreation area. Is this how Mr. Haley forced
Ms. Newkum to terminate Ms. Osborn?

App. 33

There are a lot of unanswered questions here but there is
one sure fact, Ms. Osborn is single and out of work. The
reason is due to her claim with our agency to determine if
her veterans preference rights were violated. My phone
call to Mr. Haley caused Ms. Osborn to loose [sic] her job.
Now I need some assistance in correcting a situation that I
assisted in causing.

I have made numerous phone calls trying to find an
agency that might be able to assist Ms. Osborn in this
matter and everyone is telling me the same thing, that
they can not assist. The VEOA statute does not provide
any relief for retaliation and it appears that VETS’s hands
are tied in a matter such as this.

I know that Ms. Osborn can hire an attorney but keep in
mind that she is single and the position she held with
LBLA paid very little. Do you have any suggestions that
will asset [sic] in correcting this mis-justice?

Please let me know if you have any questions or concerns

regarding this situation. Thank you for your time and
consideration on this matter.

Sincerely,

Robert A. Kuenzli
Assistant Director

CC: File

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0230%3A04. Public record. Not legal advice.