Petitioners Brief — Osborn v. Haley

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PAT OSBORN

Petitioner

BARRY HALEY; GAYE LUBER; AND

LAND BETWEEN THE LAKES ASSOCIATION, INC.

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

ERIC GRANT

ANDREA M. MILLER Counsel of Record

NAGELEY, MEREDITH & MILLER, INC. ATTORNEY AT LAW

Suite 100 Suite 100

8001 Folsom Boulevard 8001 Folsom Boulevard

Sacramento, CA 95826 Sacramento, CA 95826

(916) 386-8282 (916) 388-0833

Counsel for Petitioner

QUESTIONS PRESENTED

When a federal employee is sued in a civil action in a

state court, the Westfall Act, 28 U.S.C. § 2679(dX2), auth-

orizes the Attorney General to remove the action to federal

district court—and seek to substitute the United States as

the party defendant in place of the employee—by certifying

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 petition presented the follow-

ing two questions about the Act:

1. Whether the Westfall Act authorizes the Attorney

General to certify that the employee was acting within the

scope of his office or employment at the time of the incident

solely by denying that such incident occurred at all.

2. Whether the Westfall Act forbids a district court

to remand an action to state court upon concluding that the

Attorney General’s purported certification was not author-

ized by the Act.

In granting the petition, the Court directed the parties

to brief and argue the following additional question:

3. Whether the court of appeals had jurisdiction to

review the district court’s remand order, notwithstanding

28 U.S.C. § 1447(d).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........ccccceccccccees i

pF te Fi, er ee iv

GT cic cccccccvecccccescnsessceseges 1

JURISDICTION ..... hecedesantesvecesencesoenasys 1

STATUTES INVOLVED 2... cc cccccccsccccccccccoses 1

STATEMENT OF THE CASE ...........2seceeeceees 2

SUMMARY OF ARGUMENT .............00cceeeeees 8

GEE hen oe ccwdecvicccneicdkcnuncéccescccex 10

I. Under the Plain Terms of 28 U.S.C. § 1447(d),

the Court of Appeals Lacked Jurisdiction to

Review the District Court’s Remand Order ....... 10

A. The Thermtron Exception Does Not Apply .... 13

B. The Waco Exception Does Not Apply ........ 16

The Westfall Act Simply Does Not Authorize

the Attorney General to Issue an “Incident-

IE, CIEE a's caccacecnccecctcqunsn 18

A. The Specific Language of 28 U.S.C.

SRP dks ck cagiclicinlaecas cesucveds 22

B. The Statutory Scheme of the Westfall

Act the and Federal Tort Claims Act ........ 23

C. The History of the Westfall Act ............. 27

D. The Nature and Operation of Official

PI Evin ok cp edndecsesindsctcucvcuses 28

iii

TABLE OF CONTENTS—Continued

III. Where Removal Is Based upon a Certification

Not Authorized by the Westfall Act, the Case

Must Be Remanded to State Court .............. 34

A. Removal Based upon an Unauthorized

Certification Is Improper and Obliges a

Remand under the Terms of § 1447(c) ....... 34

B. Nothing in the Westfall Act Overcomes

the Statutory Obligation to Remand ......... 37

PEE 5000 beth eauns sécvunddisccédbcieriee 41

APPENDIX

de DUDE uns s Kdveccccdcdbennctcétnbcsanen la

TABLE OF AUTHORITIES

Page

Cases

Aliota v. Graham,

984 F.2d 1350 (3d Cir.),

cert. denied, 510 U.S. 817 (1993) ....... 14-16, 18, 37

Allstate Insurance Co. v. Quick,

254 F. Supp. 2d 706 (S.D. Ohio 2002) ............. 5

Arizona v. Manypenny,

Se GEE vc cs ntnagsccercvestackiciws 41

Berr v. Matteo,

NEED vc.cwecstaddedcuinécenvases 28

Behrens v. Pelletier,

Se ee PEE. ncccoscececsccsiscecsscase 29

Borneman v. United States,

213 F.3d 819 (4th Cir. 2000),

cert. denied, 631 U.S. 1070 (2001) ......... 15-17, 37

Briscoe v. Bell,

SL GEE. 6 ccccdsanscccncetoecedeans 15

Burford v. Sun Oil Co.,

PEE Diccwdhavesdecksiandasdeve 14

Burlington Industries, Inc. v. Ellerth,

es PGE Faced Wacnbeedvcresvececone 26

Carnegie-Mellon University v. Cohill,

OED 8 hdc cdGewes voce ticnoscusea 14

Caterpillar Inc. v. Lewis,

EEE vib a'k sco Uacnecwsoesnerses 35-36

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .............5- 15-16

Cook v. Wikler,

320 F.3d 431 (3d Cir. 2003) ..........--...-- 13, 37

-—— SEE cote c Sala

TABLE OF AUTHORITIES—Continued

Crawford-El v. Britton,

523 U.S. 574(1998) ......cccccccscvccevees 31, 40

Dolson v. Village of Washingtonville,

382 F. Supp. 2d 598 (S.D.N.Y. 2005) ...........-.. 30

Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006) ...........-2-005- 16

Elliott v. Thomas,

937 F.2d 338 (7th Cir. 1991), cert.

denied, 502 U.S. 1074, 1121 (1992) .............. 30

Flechsig v. United States,

991 F.2d 300 (6th Cir. 1993) ......... eee eeeeees 4

Garcia v. United States,

88 F.3d 318 (5th Cir. 1996) .............02 ce ees 37

Gomez v. Toledo,

ED, 3. 666 ob oe he eeb be heb 6 6-60 31

Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949),

cert. denied, 339 U.S. 949 (1950) ..........-4005- 28

Gutierrez de Martinez v. Drug

Enforcement Administration,

111 F.3d 1148 (4th Cir. 1997),

cert. denied, 522 U.S. 931 (1997) ............+--- 25

Gutierrez de Martinez v. Lamagno,

Es vevedebeddebees bey se passim

Hare v. City of Corinth,

135 F.3d 320 (5th Cir. 1998) ............20e0ee: 29

Heuton v. Anderson,

Ge BED cccccecvcccicvtccece 33

Hunter v. Bryant,

PE 564 copcbudbb as nessebes on ae 29

TABLE OF AUTHORITIES—Continued

Page

International Primate Protection League v.

Administrators of Tulane Educational

Fund, 500 U.S. 72 (1991) ............005- 12, 35-36

Jefferson County v. Acker,

BF TD GED cv ccccccccccccccccesceccecs 40

Johnson v. Jones,

SE ED occcccctcccdctscuce cues 29-31

Kensington Associates ». West,

362 S.E.2d 900 (Va. 1987) ... 22... cee cece eeeee 25

Kimbro v. Velten,

30 F.3d 1501 (D.C. Cir. 1994),

cert. denied, 515 U.S. 1145 (1995) .... 7, 16, 20, 32-33

Kircher v. Putnam Funds Trust,

126 S. Ct. 2145 (2006) .............--- 10-11, 13-18

McHugh v. University of Vermont, :

966 F.2d 67 (2d Cir. 1992) .... 2... . ce eee eee eeee 21

Melo v. Hafer,

13 F.3d 736 (8d Cir. 1994) ............ 20, 24, 28, 33

Mesa v. California,

SE DEED aucddsccucncdédosevecune 40-41

Mitchell v. Carlson,

896 F.2d 128 (5th Cir. 1990) ................ 16-17

Mitchell v. Forsyth,

Ge SEED ce eccccctevicccccecentc 29-31

Quackenbush v. Allstate Insurance Co.,

Sey Ge WEED SK dda cocveccdocceuccotecee 13

Richardson v. McKnight,

521 U.S. 399 (1987)... 2... cc cece eee eee ee eees 29

Vii

TABLE OF AUTHORITIES—Continued

Page

Saucier v. Katz,

Be GED coccnccccccececvecccvccucs 31

Stephenson v. Doe,

332 F.3d 68 (2d Cir. 2003) ...........-2- ee eeeee 30

Thermtron Products, Inc. v. Hermansdorfer,

423 US. 386 (1976) .... 2... cc eeceees 10, 13-14, 16

Things Remembered, Inc. v. Petrarca,

Ss PEED cvincovceccosecececs 11, 14, 18

United States v. Rice,

SC ED «.< cee ebeeuscdebedcesyeegs 10

United States v. Smith,

SPEED. weececedceusececesseces 23, 29

Verlinden B.V. v. Central Bank of Nigeria,

Se ED ca cwcacccicweseetisceces 33, 39

Waco v. United States Fidelity & Guaranty

es ED PED 6 a kb sé ccd pcassiavecs 16-18

Westfall v. Erwin,

EE dis ous obsbeoegeseed eet 27-28

Williams v. United States,

i cde ttiekbeieaehees ines nes 4

Willingham v. Morgan,

onde ka eg cdeboceeioudas 40

Wisconsin Department of Corrections v.

Schacht, 524 U.S. 381 (1998) ................ 35-37

Wood v. United States,

995 F.2d 1122 (1st Cir. 1993)............... passim

Wyatt v. Cole,

BOO Es BOGEN ccc cccecccesvccesesecseses 29

TABLE OF AUTHORITIES—Continued

Page

Statutes and Regulation

iii sob i5cs rea tkcdeneteies 11

PNG dcccpesunciecanecdktceccieeceuess 18

PEED Vacctcccécccddcceesacwasccnweets 1

BEE céindducttddicuwanevestaéeeuehaseosahes 30

DUE icuckeccupeckheenseeencecnaceeeepeeems 4

DEGREE eiccvcceccdscoveciscvcdcesccesdeeeses 11

DEED Sec ccevac scdseee ees 6é6eeb Cates 16, 36, 40

DEED Sossccesececenbecechdsocoenssenss passim

DEE 506506000 s6bebeosssssuds susp egevededs 3

DGD ingbonavatéccesesdesecuéegesssees passim

SEED (svi didcansdesbaeve bueuakerses oaseeses 26

Federal Courts Improvement Act of 1996,

Pub. L. No. 104-317, 110 Stat. 3487 ............. 36

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

PR PEED coebbsesubvcdssdseddccccsocci 28

Federal Employees Liability Reform and Tort

Compensation Act of 1988 (“Westfall Act”),

Pub. L. No. 100-694, 102 Stat. 4563 ........... 1, 28

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),

DE So6obsesbbers ccbacdbotbucaveseeuses 1

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Cir-

cuit (Pet. App. la-11a) is reported at 422 F.3d 359. The two

opinions of the District Court for the Western District of

Kentucky (Pet. App. 12a-16a, 19a-25a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 8, 2005. The petition for a writ of certiorari was

filed on November 7, 2005; it was granted on May 15, 2006.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

1. This case involves the general remand statute, 28

U.S.C. § 1447, which provides in relevant part:

of any defect other than lack of subject matter

jurisdiction must be made within 30 days after

the filing of the notice of removal under section

1446(a). If at any time before final judgment it

appears that the district court lacks subject mat-

ter jurisdiction, the case shal] be remanded. .. .

(d) An order remanding a case to the State

court from which it was removed is not review-

able on appeal or otherwise, except that an order

remanding a case to the State court from which it

was removed pursuant to section 1443 of this title

shall be reviewable by appeal or otherwise.

2. This case also involves a part of the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, for-

mally called the Federal Employees Liability Reform and

Tort Compensation Act of 1988, Pub. L. No. 100-694, 102

Stat. 4563, but commonly known and cited as the “Westfall

Act” (Pet. App. 26a-30a). The immediately pertinent part

of that Act, codified at 28 U.S.C. § 2679(d)(2), provides:

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 shal] be removed without

bond at any time before trial] by the Attorney Gen-

eral to the district court of the United States for

the district and division embracing the place in

which the action or proceeding is pending. Such

action or proceeding shal] be deemed to be an ac-

tion 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 certifi-

cation of the Attorney General shall conclusively

establish scope of office or employment for pur-

poses of removal.

Section 2679 is reproduced in whole in the Appendix hereto

(App. la-3a).

STATEMENT OF THE CASE

1. Ona narrow peninsula in western Kentucky, be-

tween Lake Barkley to the east and Kentucky Lake to the

west, sits the Land Between the Lakes National Recreation

Area (“LBL”) operated by the U.S. Forest Service. At al] re-

levant times, respondent Barry Haley was a Forest Service

employee at LBL; respondent Gaye Luber was the executive

director of respondent Land Between the Lakes Association,

Inc. (“LBLA”), a private contractor that provided the Forest

Service with staff for gift shops, visitor centers, and inter-

pretive areas at LBL. Until petitioner was terminated in

the events that gave rise to this case, she was an employee

of LBLA. See generally Pet. App. 3a, 20a-21a.

Be ea ee

2. Petitioner sued Luber and LBLA in Trigg County

(Kentucky) Circuit Court, alleging that she was discharged

from her job in violation of public policy. See Pet. App. 21a;

cf. Brief in Opposition for Respondents [Luber and LBLA]

(“Luber BIO”) App. 1-15 (reproducing complaint). In that

action, petitioner also sued Haley for wrongfully interfering

with her employment relationship with LBLA, alleging that

“Haley influenced LBLA .. . to fire her after she had a run-

in with Haley.” Pet. App. 3a. As so alleged, Haley’s conduct

violated “policies [that] prohibited Forest Service employees

like Haley from ‘participat[ing] in any LBLA decision con-

cerning the relationship of the LBLA to the Forest Service,

including but not limited to . . . hiring or firing LBLA em-

ployees.”” Id. (alterations in original). Indeed, as the court

of appeals recognized, the Government (which is represent-

ing Haley) has “conceded that if Haley induced [petitioner’s]

firing, he acted outside the scope of his employment.” Jd.

(emphasis added); accord Brief for Respondent Barry Haley

at 14 n.5 (petition stage) (quoting the acknowledgment in

the Government’s brief in the court of appeals that “if Haley

did cause [LBLA| to fire [petitioner], he acted outside the

scope of his employment”).

Despite this concession, the Attorney General—acting

via the local United States A.ttorney, see 28 C.F.R. § 15.4(a)

—issued a “certification that Haley had been acting within

the scope of his employment at the time of the incident giv-

ing rise to [petitioner’s] allegations.” Pet. App. 3a (empha-

sis added); cf. Luber BIO App. 23 (reproducing certificate).

Based on that certification, and invoking the Westfall Act,

28 U.S.C. § 2679, the Government removed the state-court

action to the District Court for the Western District of Ken-

tucky. See Pet. App. 3a. In that coyg, and again invoking

the Act, the Government moved to substitute itself as a de-

fendant in Haley’s place and, thereafter, to dismiss the case

on the ground that petitioner had failed to exhaust her ad-

ministrative remedies as required by the FTCA, 28 U.S.C.

§ 2675(a). See Pet. App. 3a, 19a.

3. As the district court then understood it, the Gov-

ernment’s motion required the court to “review the United

States’s certification that the alleged torts occurred within

the scope of Mr. Haley’s employment.” Pet. App. 21a. Act-

ing on the understanding that “the United States does not

deny any of the factual allegations contained in [petition-

er’s} complaint,” Pet. App. 22a, the court proceeded to apply

the relevant law to the undisputed facts.’ The court’s con-

clusion: petitioner “has adequately alleged conduct on Mr.

Haley’s part that, if proven, would give rise to tort claims

under Kentucky state law and that fall outside the scope

of his employment with the United States Forest Service.”

Pet. App. 24a. Therefore, “Mr. Haley’s alleged actions oc-

curred outside the scope of his employment with the United

States Forest Service,” and so “the United States’s certifi-

cation is inappropriate and its motion to dismiss should be

denied.” Id.

Having decided that “the United States is not a proper

party to this case,” the district court then set about to “de-

termine whether or not it has [subject matter] jurisdiction.”

Id. Observing that the “Sixth Circuit has not spoken to this

issue and the authority among other circuits is split,” the

court agreed with a coordinate court in its circuit that “28

U.S.C. § 2679(d)(2) does not bar this Court from remanding

an intentional tort action against a federal employee after

* Under Sixth Circuit precedent, the relevant law was the law of

Kentucky. See, e.g., Flechsig v. United States, 991 F.2d 300, 302

(6th Cir. 1993) (agreeing that “the determination of whether an

employee of the United States acted within her scope of employ-

ment is a matter of state law”), cited in Pet. App. 21a. This appar-

ently uniform rule among the courts of appeals derives from the

text of the FTCA, see 28 U.S.C. § 1346(b1) (referring to “the neg-

ligent or wrongful act or omission of any employee of the Govern-

ment while acting within the scope of his office or employment”

and to “the law of the place where the act or omission occurred”),

and from this Court’s terse decision in Williams v. United States,

350 U.S. ~ thew tn tener aaah age hs -“aamaaaaa

by the California doctrine of respondeat superior.”).

et ee

it has been determined that the employee was not acting

within the scope of her employment.” Jd. (quoting Allstate

Insurance Co. v. Quick, 254 F. Supp. 2d 706, 729 (S.D. Ohio !

2002)). To the contrary, “remand is authorized by the gen-

eral remand statute, [28 U.S.C.) § 1447(c), which states, in

part: Tf at any time before final judgment it appears that

the district court iacks subject matter jurisdiction, the case

shall be remanded.’” Pet. App. 24a-25a (quoting Allstate,

254 F. Supp. 2d at 725, in turn quoting § 1447(c)). Because

the United States was not a party, because the action pre-

sented no federal question, and because the remaining pri-

vate parties were all citizens of Kentucky, the court ruled

that it had “no jurisdiction over this case and [so] it must be

remanded to the Trigg County [Kentucky] Circuit Court.”

Pet. App. 25a. The district court simultaneously issued an

order that “this case is REMANDED to Trigg County Circuit

Court.” Pet. App. 17a.

4. The Government promptly filed a motion for re-

consideration. Cf. J.A. 40-54 (reproducing motion, includ-

ing its exhibits). The motion argued that the court’s order

was based on a critical mistake: while the court apparently

believed that the Government “did not deny [petitioner’s]

factual allegations,” it was actually the case that the Gov-

ernment, “as evidenced by the answer it filed herein and by

the attached Declarations, vigorously contests [petitioner's]

allegations.” J.A. 41. Indeed, the Government adamantly

asserted that “Barry Haley has done nothing which can be

construed to fall outside the scope of his employment.” Id.

But this assertion had an interesting twist. The gra-

vamen of the motion was not that Haley’s conduct actually

fell “within” the scope of his employment, it was that Haley

had actually “done nothing.” Indeed, the Government re-

lied heavily on a declaration by Haley stating “that he had

no advance knowledge of the termination of [petitioner's]

employment at LBLA, that he did not advise Gaye Luber

regarding the matter, and that he did not attempt to influ-

ence her independent decision to fire [petitioner].” J.A. 44

vee

(citing J.A. 52, J 6).? As the court of appeals understood it,

the Government’s motion to reconsider basically “conceded

that if Haley induced [petitioner’s] firing, he acted outside

the scope of his employment,” but it adamantly “denied...

that Haley interfered with Osborn’s continued employment”

at all. Pet. App. 3a.

5. Inrulingon the Government’s motion, the district

court recognized that the legal] terrain had shifted consider-

ably. Rather than a certification that required the court to

decide whether petitioner had “adequately alleged conduct

on Mr. Haley’s part that, if proven, would . . . fall outside

the scope of his [federal] employment,” Pet. App. 24a, the

court now confronted a “Westfall Act certification[] based

on an argument that no harm-causing incident ever took

place,” Pet. App. 14a; accord Pet. App. 2a (recognizing that

in this action, the Attorney General had issued “a Westfall

Act certification that denie({d] the occurrence of any injury-

causing event”). As the court of appeals later observed, the

district court regarded that certification as demanding “a

decision on the merits of [petitioner’s] claim, i.e., whether

the alleged harm-causing incident occurred at all,” rather

than “whether the content of the communications between

LBLA and Haley was within his scope of [his] employment.”

Pet. App. 3a-4a.

How to deal with such a certification? Observing that

“[tJhere is a dispute among the circuits[,] which the Sixth

* Haley stated categorically: “I had no advance knowledge of the

termination of [petitioner’s) employment with [LBLAJ. I did not

advise Gaye Luber regarding the matter, nor did I attempt to in-

fluence her independent decision to fire [petitioner].” J.A. 52, 16.

Interestingly, Luber’s contemporaneously filed declaration did

not contain a similarly categorical statement. Rather, Luber de-

clared: “At the time I terminated [petitioner], I had not discussed

this issue {i.e., petitioner’s “veteran's status”] with Barry Haley,

[petitioner], or anyone else, and did not know it existed.” J.A. 53,

{ 4 (emphasis added). Indeed, Luber’s declaration pointedly did

not specify her reason for terminating petitioner.

. 7

Circuit has not yet addressed,” Pet. App. 14a, the district

court looked first to the en banc decision of the First Circuit

in Wood v. United States, 995 F.2d 1122 (1st Cir. 1993). In

Wood, the court had “reviewed federal employee immunity

from common law torts, the Westfall Act’s text, and its leg-

islative history, and found that ‘the [Attorney General’s cer-

tification] cannot deny the occurrence of the basic incident

charged.” Pet. App. 14a (quoting 995 F.2d at 1124). Thus,

as perceived by the district court, Wood refused to “permit{)

‘a Westfall Act certificate simply to deny that anything oc-

curred.’” Id. (quoting 995 F.2d at 1128). On the other side,

of the dispute, the “D.C. Circuit rejected the First Circuit's

analysis in Wood . . . and concluded that the district courts

must, if necessary, resolve the merits of the underlying dis-

pute,” namely, “whether or not the harm-causing incident

took place.” Pet. App. 15a (citing Kimbro v. Velten, 30 F.3d

1501, 1508-10 (D.C. Cir. 1994), cert. denied, 515 U.S. 1145

(1995)).

The district court decided that “the Wood majority has

the better of the interpretive dispute surrounding Westfall

Act certifications.” Pet. App. 16a. Thus, it concurred with

the First Circuit that the Attorney General “cannot” issue

an incident-denying certification, i.e., such a certification is

not “permittl{ed].” Pet. App. 15a; cf: Pet. App. 4a (observing

that the district court concluded that “it lacked authority to

decide the scope question,” as transformed by the incident-

denying certification into a merits question). Therefore, the

district court denied the Government’s motion to reconsider

and confirmed its decision to remand the case to the state

courts. See Pet. App. 16a (“The United States’s motion to

stay remand of the case is DENIED AS MOOT.”).

6. The Government appealed to the Court of Appeals

for the Sixth Circuit. That court’s opinion began by stating

that the court confronted two issues in the appeal: (1) “the

procedural ramifications attendant to a Westfall Act cer-

tification that denies the occurrence of any injury-causing

event”; and (2) “the jurisdictional consequences of a denial

of substitution under the Act.” Pet. App. 2a: Despite the

seemingly categorical language of 28 U.S.C. § 1447(d), the

court of ~ »peals did not consider whether it had jurisdiction

to review tie district court’s “order remanding [the] case to

the State court from which it was removed.”

As to the first issue, the Sixth Circuit “join[ed] the ma-

jority of the circuits . . . in holding that where the Attorney

General's certification is based on a different understanding

of the facts than is reflected in the complaint, including a

denial of the harm-causing incident, the district court must

resolve the factual dispute.” Pet. App. 8a (citation omitted).

Accordingly, the district court was directed to “resolve the

factual disputes underlying the scope [of Haley’s employ-

ment], including whether the alleged incident occurred” at

all. Pet. App. lla.

As to the second issue, the Sixth Circuit “agree[d] with

the majority view that the clear language of the [Westfall]

Act forecloses remand” to state court. Pet. App. 10a. Thus,

“le)ven if the district court finds that Haley acted outside

the scope of his employment, it must nonetheless retain jur-

isdiction over this case.” Pet. App. lla.

7. Petitioner timely filed a petition for writ of certio-

rari, presenting two questions regarding the Westfall Act.

In granting the petition, the Court directed the parties also

to brief and argue the question “[w)hether the court of ap-

peals had jurisdiction to review the district court’s remand

order, notwithstanding 28 U.S.C. § 1447(d).” Supra p. i.

SUMMARY OF ARGUMENT

1. Under the terms of § 1447(d)—namely, an “order

remanding a case to the State court from which it was re-

moved is not reviewable on appeal! or otherwise”—the court

of appeals lacked jurisdiction to review the district court’s

remand order. The statute applies to cases removed under

specialized removal provisions like § 2679(d)(2), and it ap-

plies even (or especially) where a remand order “might be

deemed erroneous.” The Thermtron exception to § 1447(d)

is inapplicable, because the order here was based expressly

(and in substance) on “lack of subject matter jurisdiction,”

one of the grounds enumerated in § 1447(c). The Waco ex-

ception is likewise inapplicable, because the order reviewed

by the court below is undoubtedly a remand order that can-

not be “disaggregated” from any antecedent decision.

2. Onche merits, the Westfall Act does not authorize

the Attorney General to issue an “incident-denying” certifi-

cation. In denying any “incident” (and so denying that the

defendant employee was “acting”), such a certification is in-

consistent with the text of § 2679(d). By dispensing with a

true scope-of-employment inquiry—the sole issue on which

Congress wanted employee immunity to turn—an incident-

denying certification also contravenes the statutory scheme

of the Westfall Act, especially as that scheme is examined

in light of the Act’s history. Because such a certification en-

tails a purely factbound judicial inquiry that raises no ques-

tions of federal law, it cannot be reconciled with the nature

and operation of official immunity as revealed in numerous

decisions of this Court. For the same reason, interpreting

the Westfall Act to permit incident-denying certifications

poses a serious risk of transgressing the limits on federal

jurisdiction imposed by Article III of the Constitution.

3. Where removal is based upon a certification not

authorized by the Westfall Act, the case must be remanded

to state court. If the Attorney General lacks authority to

issue an incident-denying certification, then he also lacks

authority to remove a case based on that certification. Such

a removal is “improper,” and it obliges a remand under the

terms of § 1447(c). This obligation is not overcome by lan-

guage in the Act whereby a certification shall “conclusively

establish scope of office or employment for purposes of re-

moval,” § 2679(d)(2), for an incident-denying certification is

simply not a certification comprehended by that provision.

Therefore, the judgment of the court of appeals should

be vacated for lack of jurisdiction. Alternatively, that judg-

ment should be reversed on the merits.

ARGUMENT

We address first the jurisdictional question posed by

the Court. We then proceed, in the alternative, to the two

merits questions presented by the petition.

lL. Under the Plain Terms of 28 U.S.C. § 1447(d),

the Court of Appeals Lacked Jurisdiction to

Review the District Court’s Remand Order.

As this Court recently explained in Kircher v. Putnam

Funds Trust, Congress has for more than a century “limited

the power of federal appellate courts to review orders re-

manding cases removed by defendants from state to federal

court.” 126 S. Ct. 2145, 2152 (2006) (citing United States v.

Rice, 327 U.S. 742, 748-52 (1946); Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336, 346-48 (1976)). That limi-

tation now appears at 28 U.S.C. § 1447(d), which provides

(with an exception for certain civil rights cases) that “[a]n

order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise.”

As further explained in Kircher, the apparently cate-

gorical language of § 1447(d) is not actually so. This Court

in Thermtron “held that the bar of § 1447(d) applies only to

remands based on the grounds specified in § 1447(c), that

is, a defect in removal procedure or lack of subject matter

jurisdiction.” Kircher, 126 S. Ct. at 2153. Nonetheless, the

“Thermtron exception” to the bar of § 1447(d) is exceedingly

narrow: the Court has “relentlessly repeated that ‘any re-

mand order issued on the grounds specified in § 1447(c) [is

immunized from all forms of appellate review], whether or

not that order might be deemed erroneous by an appellate

court.’” /d. (alteration in original) (quoting Thermtron, 423

US. at 351). Consequently, if a district judge “purports to

remand a case on the ground that it was removed ‘improvi-

dently and without jurisdiction,’ his order is not subject to

challenge in the court of appeals.” Id. (quoting Thermtron,

423 U.S. at 343 (in turn quoting 1976 edition of § 1447(c))).

Kircher repeated another established precept, namely,

the “bar of § 1447(d) applies equally to cases removed under

the general removal statute, § 1441, and to those removed

under other provisions.” Id. (citing Things Remembered,

Inc. v. Petrarca, 516 U.S. 124, 128 (1995)). In Kircher, the

“other provision” was 15 U.S.C. § 77p(c), part of the Private

Securities Litigation Reform Act of 1995. Here, of course, it

is 28 U.S.C. § 2679(d)(2), part of the Westfall Act.

Given these precepts, what the Court said in Kircher

may fairly be said in the present case: “Ostensibly, then,

§ 1447(d) stands in the way of reviewing the District Court’s

order[] of remand in the present case[].” 126 S. Ct. at 2153.

In the first place, “[tJhe District Court said that it was re-

manding for lack of jurisdiction, an unreviewable ground.”

Id.; see also Pet. App. 25a (“[T]his Court has no jurisdiction

over this case and it must be remanded to the Trigg County

Circuit Court.” (emphasis added)); Pet. App. 4a (observing

that the district court, “concluding that it lacked jurisdic-

tion, remanded the action to state court” (emphasis added)).

To say the same thing, the remand order was “issued on the

grounds specified in § 1447(c),” and thus it is “immunized

from all forms of appellate review.” Kircher, 126 S. Ct. at

2153; see also Pet. App. 24a (agreeing with another district

court that a “remand is authorized by the general remand

statute, [28 U.S.C.] § 1447(c)”).

Moreover, “even if it is permissible to look beyond the

[district] court’s own label, the [remand order is] unmistak-

ably premised on the view that removal jurisdiction under

[the governing statute] is limited to cases” of which this is

not one. Kircher, 126 S. Ct. at 2153. As recounted above

(pp. 6-7), the district court’s “view” of removal jurisdiction

under the Westfall Act came straight from the interpreta-

tion of the statute advanced by the en banc First Circuit in

Wood v. United States, 995 F.2d 1122 (1st Cir. 1993). That

is, having taken account of the “dispute among the circuits

... about how courts should deal with Westfall Act certifica-

tions based on an argument that no harm-causing incident

ever took place,” Pet. App. 14a, the district court concluded

in its order denying the Government’s motion to reconsider

that “the Wood majority has the better of the interpretive

dispute surrounding Westfall Act certifications,” Pet. App.

15a.

As set out in detail in the following Part II (pp. 18-34),

the view advanced by the Wood majority is that the Attor-

ney Generai’s certification under the Westfall Act “cannot

deny the occurrence of the basic incident charged.” Wood,

995 F.2d at 1124, quoted in Pet. App. 14a. Thus, Wood an-

swered “no” to the question “whether the Attorney General

may issue a Westfall Act certificate that simply denies that

any injury-causing action occurred.” Jd. at 1123. Because

the district court perceived the certification in the present

case as denying that any “harm-causing incident ever took

place,” Pet. App. 14a, the remand order was unmistakably

based on the court’s conclusion that the Attorney General

had tried to do exactly what he was not “permitt[ed]” to do,

Pet. App. 15a. To use a formulation from one of this Court’s

opinions regarding removal jurisdiction, the district court

concluded (rightly or wrongly, it remains to be determined)

that the Attorney General “lacked authority” to issue the

incident-denying certification regarding respondent Haley

and, consequently, to remove this action against Haley to

federal court. International Primate Protection League v.

Administrators of Tulane Educational Fund, 500 U.S. 72,

87 (1991) (“IPPL”).

In these circumstances, the basis for remand is fairly

characterized as a “lack[ of) subject matter jurisdiction” as

that term is used in § 1447(c). As JPPL concluded: “Since

the district court had no original jurisdiction over this case,

... a finding that removal was improper [for lack of auth-

ority to remove] deprives that court of subject matter juris-

diction and obliges a remand under the terms of § 1447(c).”

500 U.S. at 87 (emphasis added). Alternatively, the basis

for remand is fairly characterized as a “defect other than

lack of subject matter jurisdiction” within the meaning of

§ 1447(c). The Third Circuit has observed that Congress’s

1996 amendment of § 1447 “plainly effect[ed] a broadening

of the scope of § 1447(c)—expanding its application to not

just procedural defects, but any defects”—so that “the plain

language of the amended statute now applies broadly to in-

clude all removals that are not authorized by law.” Cook v.

Wikler, 320 F.3d 431, 434-35 (3d Cir. 2003). Accordingly, if

the district court “remanded this case to state court based

upon [a] belief that the removal! was ‘not authorized by law’

... Such a ‘defect’ would fall within the ‘basis’ of § 1447(c)

for which Congress has authorized remands to state court.”

Id. at 439.

But it really does not matter which characterization is

superior. In either event, the basis for remand in this case

was one of “the grounds specified in § 1447(c).” Kircher, 126

S. Ct. at 2153. In sum, “the result here is the same whether

we look near or far”: the remand order is “immunized from

all forms of appellate review.” Jd. at 2153 & n.9.

Although the court of appeals below did not consider

its own jurisdiction in light of § 1447(d), other courts of ap-

peals have decided that orders remanding cases removed

under the Westfall Act are indeed reviewable notwithstand-

ing the bar of § 1447(d). Those decisions are grounded in

two “exceptions” to that bar, which we confront in turn.

A. The Thermtron Exception Does Not Apply.

As recounted above, Thermtron “held that the bar of

§ 1447(d) applies only to remands based on the grounds spe-

cified in § 1447(c).” Kircher, 126 S. Ct. at 2153. Therefore,

it may be said that the bar itself contains an “exception” for

remand orders based on other grounds. This Court has con-

sciously invoked the exception only twice in three decades.

In Thermtron itself, the Court “approved appellate review

of a remand expressly based on the District Court’s crowded

docket.” Id. More recently, in Quackenbush v. Allstate In-

surance Co., 517 U.S. 706, 710-12 (1996), the Court under-

took to review a remand order “based on abstention under

Burford v. Sun Oil Co., 319 U.S. 315 (1943).” Kircher, 126

S. Ct. at 2153.°

The Third and Fourth Circuits have relied on this ex-

ception to justify review of orders remanding cases removed

under the Westfall Act. Deciding that “§ 1447(c) must be

read together with § 2679(d)(2),” the Third Circuit reasoned

that because the latter provision “expresses Congress’s in-

tent that subject matter jurisdiction is conclusively estab-

lished upon the Attorney General’s certification, . . . there

is no jurisdictional question to be resolved by the district

court” in a Westfall Act case. Aliota v. Graham, 984 F.2d

1350, 1357 (3d Cir.), cert. denied, 510 U.S. 817 (1993). For

this reason, a court that has remanded such a case has by

definition “remanded a properly removed case on grounds

that [it] had no authority to consider,” and so appellate re-

view is “not barred by § 1447(d).” Id. (quoting Thermtron,

423 U.S. at 351). Likewise invoking Thermtron, the Fourth

Circuit adopted the same reasoning: “Because § 2679(d)(2)

‘conclusively’ vests federal jurisdiction over a suit against a

federal employee who[m) the Attorney General has certified

‘was acting within the scope of his office or employment,’ a

district court has no authority to remand a case removed

pursuant to that section, and the bar of § 1447(d) does not

preclude [appellate courts] from reviewing [such] a remand

* Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988), is arg-

uably another instance, if only a sub silentio one. There, without

mentioning § 1447(d)—save to note that the court of appeals had

dismissed the appeal in favor of a petition for mandamus on the

basis that the statute “bars appeals from remands to state courts

with a single exception not applicable to this case,” id. at 617 n.4

—the Court reviewed an order “remand[ing) a properly removed

case to state court when all federal-law claims in the action ha[d]

been eliminated and only pendent state-law claims remain(ed).”

Id. at 345. Cf. Things Remembered, 516 U.S. at 130 (Kennedy, J.,

ing) (observing that CoAill “did not find it necessary to de-

cide whether [§ 1447(d)] would bar review of a remand on [speci-

fied) grounds, for [this Court] affirmed the denial of mandamus by

the Court of Appeals”).

-— —_—""

order ....” Borneman v. United States, 213 F.3d 819, 826

(4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).

With due respect to these courts of appeals, this logic

does not hold up. In the first place, for an appellate court

to say that “subject matter jurisdiction is conclusively es-

tablished upon the Attorney General's certification” under

the Westfall Act, Aliota, 984 F.2d at 1357, or to say (what

amounts to the same thing) that such certification “conclu-

sively establishes removal jurisdiction in the federal court,”

Borneman, 213 F.3d at 826, is self-evidently to say some-

thing about jurisdiction, particularly removal jurisdiction.

But having an unreviewable say about its own jurisdiction

on removal is precisely what § 1447(d) grants to a district

court that enters a remand order. As Kircher put it, where

such an order “is based on one of the [grounds enumerated

in 28 U.S.C. § 1447(c)]”"—which grounds expressly include

that “the district court lacks subject matter jurisdiction”—

“review is unavailable no matter how plain the legal error

in ordering the remand.” 126 S. Ct. at 2154 (alteration in

original) (quoting Briscoe v. Bell, 432 U.S. 404, 413-14n.13

(1977)). As the Third Circuit acknowledged (but chose not

to heed), if there were an exception to the bar of § 1447(d)

such that “anytime the district court misinterprets a juris-

dictional statute [appellate courts} have authority to review

the remand decision,” the “exception would obviously swal-

low the rule.” Aliota, 984 F.2d at 1357.

It does not add anything to say, as both the Third and

Fourth Circuits did, that a district court has “no authority”

te remand a case removed under the Westfall Act. Aliota,

984 F.2d at 1356; Borneman, 213 F.3d at 826. Even if that

proposition were true—and petitioner vigorously disputes

its truth, see infra Part III (pp. 34-41}—it would provide no

basis for distinguishing cases removed under the Westfall

Act from cases removed under any other statute. Doubtless

it can be said that a district court has “no authority” to re-

mand any properly removed case in disregard of Congress’s

grant of removal jurisdiction over that case. Cf. Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (“[Courts] have

no more right to decline the exercise of jurisdiction which is

given, than to usurp that which is not given.”).

But for purposes of § 1447(d), the pertinent question

is not whether a district court had authority to remand the

case; it is whether the court of appeals had authority to re-

view the district court’s remand order. Not only are these

two questions analytically distinct, the answer to the latter

does not depend on the answer to the former. As Kircher

“relentlessly repeated” yet again, the bar of § 1447(d) oper-

ates “whether or not [the remand] order might be deemed

erroneous by an appellate court.” 126 S. Ct. at 2153 (quot-

ing Thermtron, 423 U.S. at 351). Because that bar “applies

equally to cases removed under the general removal statute

... and to those removed under other provisions,” id.; see

also, e.g., Durham v. Lockheed Martin Corp., 445 F.3d 1247,

1250 & n.1 (9th Cir. 2006) (ruling that § 1447(d) barred re-

view of order remanding a case removed under § 1442(a)(1),

the federal officer removal statute), the Thermtron excep-

tion does not apply here even if the district court's order of

remand “might be deemed” contrary to § 2679(d)(2).

B. The Waco Exception Does Not Apply.

In justifying their review of orders remanding actions

removed under the Westfall Act, the Third and Fourth Cir-

cuits also relied on this Court’s decision in Waco v. United

States Fidelity & Guaranty Co., 293 U.S. 140 (1934). See

Aliota, 984 F.2d at 1353; Borneman, 213 F.3d at 825. In so

doing, these courts followed the lead of the Fifth Circuit in

Mitchell v. Carlson, 896 F.2d 128, 132 (5th Cir. 1990); see

also Kimbro, 30 F.3d at 1503 (relying on Waco, Aliota, and

Mitchell in a Westfall Act case). As before, Kircher supplies

the framework for evaluating this alleged exception to the

governing statutory bar: “Without passing on the continued

vitality of [the Waco] case in light of § 1447(d), we note that

on its own terms it is distinguishable.” 126 S. Ct. at 2156

n.13.

First, “[t}he order appealed in Waco was not a remand

order; the order here is.” Jd.; see also Pet. App. 17a (“IT IS

ORDERED that ... this case is REMANDED to Trigg Coun-

ty Circuit Court”). The Sixth Circuit obviously thought it

was reviewing a remand order. See Pet. App. 8a (“Defend-

ants additionally argue that . . . the district court. . . erred

in remanding the case to state court.”); Pet. App. 10a (“We

agree with the majority view that the clear language of the

[Westfall] Act forecloses remand. We thus also agree with

Defendants that the district court lacked authority to re-

mand the action.”). Waco acknowledged that such an order

“‘cannot [be] affect[ed]’ notwithstanding any reversal of a

separate order.” Kircher, 126 S. Ct. at 2156 n.13 (quoting

Waco, 293 U.S. at 143).

Second, and in any event, there is no “separate” order

here; as in Kircher, the “remand order here cannot be dis-

aggregated as the Waco orders could.” Jd. To be sure, the

cited decisions of the courts of appeals say otherwise. Thus,

the Fifth Circuit relied on Waco in finding “appellate juris-

diction to review the portion of the district court’s . . . order,

separable from the remand portion, that vacated its previ-

ous order substituting the United States for [the employee]

and resubstituted [the employee] as defendant.” Mitchell,

896 F.2d at 132 (emphasis added). So did the Fourth Cir-

cuit in distinguishing the remand order from “antecedent

rulings rejecting the United States’ certification and its sub-

stitution as the defendant.” Borneman, 213 F.3d at 824.

The distinction proffered by these courts—between an

“antecedent” order rejecting the Attorney General's certifi-

cation (and thereby rejecting the attempted substitution of

the United States for the employee) and a subsequent, sep-

arable remand order—does not hold up in the present case.

As explained in detail above (pp. 11-12), the district court in

the end did not reject the Attorney General’s certification

because the court thought it “erroneous” (in the sense that

respondent Haley had acted outside rather than within the

scope of his employment). No, the court ultimately rejected

) 5

the certification here because the court decided, following

the lead of the First Circuit in Wood v. United States, that

the Attorney General lacked authority to issue an incident-

denying certification or (to say the same thing) that such a

certification was not authorized by law. In these circum-

stances, the district court’s rejection of the certification (and

consequent substitution) and the court’s decision to remand

were “inextricably linked” to one another. Aliota, 984 F.2d

at 1353. In other words, the two “cannot be disaggregated,”

making Waco distinguishable, whatever the decision’s con-

tinuing vitality. Kircher, 126 S. Ct. at 2156 n.13.*

For all these reasons, 28 U.S.C. § 1447(d) deprived the

court of appeals of jurisdiction to review the district court’s

remand order. Consequently, the judgment of the court of

appeals should be vacated for lack of jurisdiction, and the

judgment of the district court remanding this case to Trigg

County Circuit Court should be reinstated.

Il. The Westfall Act Simply Does Not Authorize

the Attorney General to Issue an “Incident-

Denying” Certification.

In the proceedings below, the Government “conceded

that if Haley induced [petitioner’s) f-ing, he acted outside

the scope of his employment.” Pet. App. 3a. At the same

time, however, the Government “denied . . . that Haley in-

terfered with [petitioner's] continued employment.” Jd. In

particular, the Government argued in its motion for recon-

* For the sake of completeness, we note that “the force of the bar

lof § 1447(d)) is not subject to any statutory exception that might

cover this case.” Kircher, 126 S. Ct. at 2153. Any such exception

is necessarily grounded in a “‘clear statutory command” whereby

Congress can be said to have “expressly made 28 U.S.C. § 1447(d)

inapplicable to particular remand orders.” Jd. n.8 (quoting Things

Remembered, 515 U.S. at 128); of, e.g., 25 U.S.C. § 487(d) (“Pro-

vided, That the United States shall have the right to appeal from

any order of remand in the case.”), cited in Kircher, 126 S. Ct. at

2153 n.8. No clear and express command of this kind appears in

the Westfall Act.

sideration in the district court that Haley declared under

oath “that he had no advance knowledge of the termination

of [petitioner's] employment at LBLA, that he did not ad-

vise Gaye Luber regarding the matter, and that he did not

attempt to influence her independent decision to fire [peti-

tioner].” J.A. 44. In truth, therefore, the Attorney General

issued what the court of appeals called a “Westfall Act cer-

tification that denie[d] the occurrence of any injury-causing

event,” Pet. App. 2a, or more tersely, an “incident-denying”

certification, Pet. App. 5a.°

What exactly does this mean? As the court of appeals

noted, “the Attorney General’s scope-of-employment certi-

fication may be judicially reviewed—a plaintiff may chal-

lenge the scope certification and expect resolution of that

issue by the district court.” Pet. App. 4a (citing Gutierrez de

Martinez v. Lamagno, 515 U.S. 417, 420 (1995)). Where, as

here, “the Attorney General’s scope certification amounts to

a denial that any wrongdoing occurred,” id., the resulting

adjudication by the district court would necessarily consist

of “deciding whether the employee committed the wrong the

plaintiff alleges,” Pet. App. 5a. In other words, it would “re-

quir[e} a decision on the merits of [petitioner's] claim, i.e.,

whether the alleged harm-causing incident occurred at all.”

Pet. App. 3a-4a; accord Pet. App. 11a (remanding to district

court to resolve “whether the alleged incident occurred”).

Other courts of appeals share the Sixth Circuit’s un-

derstanding of incident-denying certifications. Thus, the

D.C. Circuit has described a class of Westfall Act cases in

* The district court likewise recognized that the Attorney General

had certified that “no harm-causing incident ever took place.” Pet.

App. 14a. In Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 421

(1995), the “certification, as is customary, stated no reasons for

the U.S. Attorney’s scope-of-employment determination.” Here,

the certification is similarly conclusory. See Luber BIO App. 23.

Consequently, the “incident-denying” character of the certification

does not appear on the face of the document; that character was

revealed in the crucible of litigation in the district court.

ee oe

oC ee

which the Government, “faced with an allegation of an in-

tentional tort on the part of its employee, ifit concludes that

the tort did not take place, will understandably assert that

the employee was acting within his or her scope of office or

employment... and deny the tort occurred.” Kimbro, 30

F.3d at 1505. In such a case, “the scope question and the

merits often overlap—sometimes exactly,” id.—such that “to

resolve the disputed factual issue” is “really [to resolve) the

whole case.” Id. at 1507; see also id. at 1508 (deciding that

the Westfall Act contemplates judicial review “of the under-

lying merits” regardless of “what the certification actually

says—i.e., whether it denies or recharacterizes the plain-

tiffs allegations of the employee defendant’s conduct”). The

Third Circuit has held that the Attorney General may issue

a certification in “cases in which the plaintiff alleges con-

duct which is beyond the scope of the defendant’s employ-

ment, but which the Attorney General determines did not

occur.” Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994). In

such cases, “the district court will resolve all issues of fact

or law relevant to that issue,” id., which will necessarily in-

clude “find[ing] facts that are part of the plaintiff's case on

the merits,” id. at 748 n.8.

As explained below, however, the Westfall Act does not

authorize the Attorney General to issue certifications of the

type here described. This is not to argue that the certifica-

tion in this case was “wrong” in the sense that Haley really

did interfere with petitioner’s employment at LBLA. (As

will become evident, petitioner means to prove that point to

a jury of her peers in Trigg County Circuit Court.) Rather,

it is to argue that in issuing an incident-denying certifica-

tion (in this case and others), the Attorney General has at-

tempted to do something the Westfall Act categorically does

not permit him to do. As the First Circuit put the point in

agreeing with the Second Circuit, “the Act does not permit

the government to certify that the alleged incident is ‘with-

in the scope of employment’ simply ‘by denying that the acts

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

1993) (en banc) (quoting McHugh v. University of Vermont,

966 F.2d 67, 74 (2d Cir. 1992)).®

Then-Chief Judge Breyer framed the issue in Wood:

This appeal focuses on whether the Attorney

General may issue a Westfall Act certificate that

simply denies that any injury-causing action oc-

curred. Suppose a plaintiff claims that a federal

employee committed acts clearly outside the scope

of employment .... Can the Attorney General

certify that there simply was no such event? To

rephrase this question using the statutory terms

[from 28 U.S.C. § 2679(d)(1), (2)]: Can the certi-

ficate grant immunity simply by denying the oc-

currence of any “incident out of which the claim

arose?” Would such a certificate fall within the

scope of the immunity statute?

995 F.2d at 1124. Wood held that “the answer is ‘no.’” Id.

That answer is correct—and it is compelled by the specific

language of § 2679(d), the statutory scheme of the Westfall

Act and Federal Tort Claims Act, the history of the Westfall

Act, the nature and operation of official immunity, and the

Article III problem that a contrary answer would raise.

* As an action commenced in federal court, Wood was governed by

paragraph (1) of § 2679(d); as actions commenced in state court,

McHugh was, and the present case is, governed by paragraph (2)

of that subsection. For present purposes, the relevant portions of

the respective paragraphs are virtually identical:

Upon certification by the Attorney General that the de-

fendant 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 . . . shal] be deemed [to be] an action [or proceed-

ing 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.

The bracketed text appears only in paragraph (2).

ee ee

A. The Specific Language of 28 U.S.C. § 2679(d).

As Wood observed, the “Westfall Act itself says that, to

provide immunity, the Attorney General must certify 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.’” 995 F.2d at 1124 (quoting § 2679(d)(1),

(2)). It is quite “natural to read these words as speaking of

an action ‘at the time of the incident,’ thus assuming some

kind of ‘incident’ occurred.” Id. By definition, however, an

incident-denying certification controverts this statutory as-

sumption.

The words of the statute also assume that the defend-

ant employee was “acting”—and permit the Attorney Gen-

eral (subject to review in the district court) to characterize

that action as “within the scope of [the employee’s] office or

employment.” But an incident-denying certification contro-

verts the assumption of employee action and (as elaborated

in the following section) actually dispenses with the “scope”

issue altogether.

In the present case, for example, the Government as-

serted that Haley “has done nothing which can be construed

to fall outside the scope of his employment,” J.A. 41, and

that he “never acted outside the scope of his employment,”

J.A. 45. Although these assertions make reference to “scope

of employment,” that reference is a diversion: the Govern-

ment’s essential point was that Haley had “done nothing”

and had “never acted” vis-a-vis petitioner. Thus, the Gov-

ernment reasoned: “If, as Mr. Haley and Ms. (Luber] both

have stated, they had no communication regarding [peti-

tioner’s] veterans preference inquiry or her firing [that is, if

Haley did nothing], then Haley cannot possibly have acted

outside the scope of his employment.” J.A. 46.

Therefore, in denying that any “incident” occurred, and

in denying that the defendant employee was ever “acting”

vis-a-vis the plaintiff, an incident-denying certification is

inconsistent with the text of § 2679(d).

B. The Statutory Scheme of the Westfall Act and

the Federal Tort Claims Act.

In Lamagno, the Court crystallized the relevant stat-

utory scheme: “The certification, removal, and substitution

provisions of the Westfall Act, 28 U.S.C. §§ 2679(d\1)-(3),

work together to assure that, when scope of employment

is in controversy, that matter, key to the application of the

FTCA, may be resolved in federal court.” 515 U.S. at 430-

31 (footnote omitted and emphasis added). The scope of em-

ployment is the “critical . . . inquiry” or “key question,” id.

at 426, 430, precisely because “‘[s]cope of employment’ sets

the line.” Jd. at 423. If a federal employee “is inside that

line, he is not subject to [civil] suit; if he is outside the line,

he is personally answerable.” Id. (construing § 2679(b)(1)).

That is, the Westfall Act establishes “absolute immunity for

Government employees .. . for torts committed by [them] in

the scope of their employment”—and not otherwise. United

States v. Smith, 499 U.S. 160, 163 (1991) (emphasis added).

Thus, “the significance of the scope-of-employment inquiry”

is that Congress “wanted the employee’s personal immunity

to turn on that question alone.” Lamagno, 515 U.S. at 426.

1. An incident-denying certification, and the atten-

dant review of such a certification in court, would have the

employee’s personal immunity turn on “whether the alleged

harm-causing incident occurred at all,” Pet. App. 3a-4a (em-

phasis added), rather than whether such incident occurred

“within the scope of his office or employment,” § 2679(d)(2)

(emphasis added). Here, the Sixth Circuit would have the

district court decide whether “Haley influenced LBLA...

to fire [petitioner] after she had a run-in with Haley.” Pet.

App. 3a. No “scope” inquiry is even contemplated, the Gov-

ernment having “conceded that if Haley induced [petition-

er’s) firing, he acted outside the scope of his employment.”

Id. Likewise, in Melo, the Third Circuit remanded the case

for the district court to decide whether in fact the defendant

federal employee “had turned over a list of suspected job-

buyers within the Auditor General’s Office in order to assist

Barbara Hafer in her political campaign for Auditor Gen-

eral.” 13 F.3d at 741. Again, no “scope” inquiry was even

contemplated, for the defendant employee conceded that he

“would not have been acting within the scope of his employ-

ment if” he had done such a thing. Jd.

These cases illustrate that an incident-denying certifi-

cation simply does not pose the question on which Congress

wanted personal immunity alone to turn. That is, the ju-

dicial inquiry generated by such a certification is not truly

a scope-of-employment inquiry; it is an “inquiry into merits

facts.” Id. at 746. As so revealed, an incident-denying cer-

tification distorts the above-described statutory scheme of

the Westfall Act at the most basic level.

2. Tobe sure, some judges have conflated these two

types of inquiry, or treated the latter as comprehending the

former. See, e.g., id. at 747 (contemplating that “findings

necessary to a determination of the scope of employment is-

sue” would include a “determination as to whether [the em-

ployee} supplied Hafer . .. with information concerning the

plaintiffs”); Wood, 995 F.2d at 1134 (Coffin, Selya, and Bou-

din, JJ., dissenting) (envisioning a unitary “determination

as to what did or did not occur and its relationship to [the

defendant’s] office or employment”). But the distinction be-

tween a true scope-of-employment inquiry and the funda-

mentally different inquiry entailed by an incident-denying

certification emerges clearly when one examines the appli-

cable law, i.e., state agency law. See supra note 1 (p. 4).

For example, under Kentucky law as perceived by the

district court, a court “must ask four questions to determine

whether or not {an employee] acted within the scope of his

employment”; those questions concern the typicality, loca-

tion, timing, purpose, and foreseeability of the employee’s

“conduct” or “actions.” Pet. App. 23a. It should be apparent

that evaluating the various characteristics of an employee’s

actions is decidedly not the same as determining whether

those actions were undertaken at all. Yet the Government

devoted its motion to reconsider not to the legal question

whether, under Kentucky law, Haley was acting “within the

scope of his office or employment at the time of the incident

out of which the claim arose,” § 2679(d)(2) (emphasis add-

ed), but instead to the purely factual question whether the

incident occurred at all.’

Under Virginia law as applied by the Fourth Circuit

on remand from this Court in Lamagno, a particular act is

within the scope of employment if (1) the act “was expressly

or impliedly directed by the employer, or is naturally inci-

dent to the business,” and (2) it “was performed, although

mistakenly or ill-advisedly, with the intent to further the

employer's interest.” Gutierrez de Martinez v. Drug Enforce-

ment Administration, 111 F.3d 1148, 1156 (4th Cir.) (quot-

ing Kensington Associates v. West, 362 S.E.2d 900, 901 (Va.

1987)), cert. denied, 522 U.S. 931 (1997). Again, it should be

apparent that evaluating whether an act was “directed by

the employer, or is naturally incident to the business,” and

” See J.A. 41 (“[TJhe United States, as evidenced by the answer it

filed herein and by the attached Declarations, vigorously contests

plaintiffs allegations.”); J.A. 42 (arguing that it “denied each and

every factual allegation by plaintiff against Barry Haley”); J.A. 43-

45 (arguing numerous factual points based on the attached dec-

larations of Haley and Luber); J.A. 46 (arguing that “Plaintiff has

put forward no facts sufficient to contest” the Attorney General’s

certification); J.A. 48 (arguing that its answer “and the additional

evidence submitted herewith demonstrate that the United States

contests the allegations and that an issue of fact exists”).

To be sure, the Government devoted one paragraph to specu-

lating that limited discovery could “reveal evidence supporting an

argument that, even if [petitioner’s] allegations are true, [Haley’s}

alleged conduct falls within the relevant Kentucky law on scope

lof employment).” J.A. 47. The district court rejected this line of

argument, refusing to credit “factual arguments made in the al-

ternative when one version is made under oath subiect to perjury,

i.e., Mr. Haley’s declaration, and the other version merely suggest-

ed.” Pet. App. 14a. As documented above (p. 3), the Government

abandoned this line of argument in the court of appeals.

whether an act was performed “with the intent to further

the employer’s interest,” is an inquiry very different in kind

from determining whether the act was performed at all.*

3. Anincident-denying certification also distorts the

statutory scheme in relation to substitution. The Court has

explained that “[w]hen the Attorney General has granted

certification’—and that certification is upheld on judicial

review—“the United States will be substituted as the party

defendant” both in cases originally filed in federal court and

in those removed from state court. Lamagno, 515 U.S. at

431-32. “Ordinarily,” such a substitution will “occasion no

contest,” for although it “relieves the employee of responsi-

bility, plaintiffs will confront instead a financially reliable

defendant.” Jd. at 422. To be sure, in some cases (including

Lamagno) “substitution of the United States would cause

the demise of the action.” Jd. But this demise results not

from certification and substitution per se but instead from

the rule that, upon substitution, “the action ‘shall proceed

in the same manner as any action against the United States

... and shall be subject to the limitations and exceptions

applicable te those actions.’” Jd. (quoting § 2679(d)(4)); ef.

id. (observing that the plaintiffs’ “claims ‘arose in a foreign

country,’ FTCA, 28 U.S.C. § 2680(k), and thus fell within an

exception to the FTCA’s waiver of . . . sovereign immunity”).

Yet the substitution that takes place when an incident-

denying certification is upheld—i.e., when the district court

determines that the alleged harm-causing incident did not

occur at all—is categorically an idle act. The Government

need not even bother to assert the “limitations and excep-

tions” of the FTCA, because the case will already have been

* In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), a

Title VII case, the Court conducted a scope-of-employment inquiry

and ultimately concluded that “(t]he general rule is that sexual

harassment by a supervisor is not conduct within the scope of em-

ployment.” /d. at 757. The inquiry pointedly did not determine

whether such harassment had occurred in the pending case, but

proceeded “assum|[ing) discrimination can be proved.” Id. at 754.

decided against the plaintiff on the merits. See, e.g., Pet.

App. 15a (recognizing that to determine “whether or not the

harm-causing incident took place” is to “resolve the merits

of the underlying dispute”). It makes no sense to permit the

kind of certification that will, if upheld, always result in the

action’s being dismissed rather than its proceeding against

the Government as the party defendant. As Wood reasoned:

“Since Congress intended to limit grants of immunity to job-

related, respondeat superior, kinds of cases, there is no rea-

son to apply the Westfall Act in cases that concededly do not

involve any kind of potential respondeat superior liability.”

995 F.2d at 1126 (emphasis added).

In sum, by dispensing with a true scope-of-employment

inquiry and by creating a class of cases in which substitu-

tion would be an idle act, an incident-denying certification

contravenes the statutory scheme of the Westfall Act and

the Federal Tort Claims Act.

C. The History of the Westfall Act.

As this Court has observed, when “Congress wrote the

Westfall Act, . . . the legislators had one purpose firmly in

mind,” namely, “to override Westfall v. Erwin, 484 U.S. 292

(1988).” Lamagno, 515 U.S. at 425. Westfall had held that

in order “to gain immunity from suit for a common-law tort,

a federal employee would have to show (1) that he was act-

ing within the scope of his employment, and (2) that he was

performing a discretionary function.” Jd. at 425-26 (citing

Westfall, 484 U.S. at 299). In the wake of that ruling, “Con-

gress reacted quickly to delete the ‘discretionary function’

requirement, finding it an unwarranted judicial imposition.”

Id. at 426. But Congress did not give federal employees an

overriding, blanket immunity from all civil actions. Rather,

Congress concentrated on “the scope-of-employment inquiry

—that is, it wanted the employee’s personal immunity to

turn on that question alone.” Jd. As the Act itself declares,

its purpose is “to protect Federal employees from personal

liability for common law torts committed within the scope of

their employment, while providing persons injured by the

common law torts of Federal employees with an appropriate

remedy against the United States.” Westfall Act, § 2(b), 102

Stat. at 4564, reproduced in Pet. App. 27a.

In this light of this history, Wood “examined the pre-

Westfall Act cases” and found that the “leading immunity

cases all involved ‘incidents’ that defendants conceded to

have occurred.” 995 F.2d at 1127 (citing Westfall itself; Barr

v. Matteo, 300 U.S. 564 (1959); and Gregoire v. Biddle, 177

F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950)).

Moreover, “in every other case [the court] found, the parties

conceded or assumed for immunity-conferring purposes the

occurrence of some kind of harm-causing ‘act or omission,”

and the court “could find no contrary example of either an

ordinary or a ‘constitutional’ tort case in which a claim of

immunity rested on a denial that any incident occurred.” .

Id.; cf. Melo, 13 F.3d at 745 (noting that “in the pre-Westfall

era, [the defendant employee] was not entitled to have the

judge resolve any material disputes of fact presented by the

summary judgment record”). Given the statute’s important

but narrow focus—“delet[ing] the ‘discretionary function’ re-

quirement” imposed by the Westfall decision, Lamagno, 515

U.S. at 426—Wood correctly concluded that nothing in the

Act’s history “suggests that Congress wanted to change the

pre-existing practice” by permitting immunity to rest on a

denial that any incident occurred. 995 F.2d at 1127."

D. The Nature and Operation of Official Immunity.

It is evident from the foregoing that the Westfall Act

creates a species of official immunity, specifically “absolute

* Wood also observed that cases arising under the Westfall Act's

predecessor—the Federal Drivers Act, Pub. L. No. 87-258, § 1, 75

Stat. 539, 539 (1966) (formerly codified at 28 U.S.C. § 2679(d))—

likewise “turned on whether the ‘incident’ (essentially an auto ac-

cident) fell within the ‘scope of employment,’ not on whether any

basic incident occurred.” 995 F.2d at 1128. While noting the dif-

ferences between the two statutes, Lamagno relied on the Drivers

Act as an aid to construing the Westfal! Act. See 515 U.S. at 425.

ee en ae ee

immunity for Government employees .. . for torts commit-

ted by [those] employees in the scope of their employment.”

United States v. Smith, 499 U.S. at 163. The Government

has previously argued that this absolute immunity “closely

resembles the qualified immunity from constitutional torts

addressed in” Hunter v. Bryant, 502 U.S. 224 (1991), and

many other decisions. Proof Brief for Defendant-Appellee

Barry Haley at 16; see also id. (referring to “the closely re-

lated area of qualified immunity in suits for constitutional

torts”). The Government’s point is a sound one, especially

given this Court’s holding that “qualified immunity shares

[an] essential attribute of absolute immunity”—that each is

“in fact an entitlement not to stand trial under certain cir-

cumstances.” Mitchell v. Forsyth, 472 U.S. 511, 525 (1985).

In this light, it is worthwhile to consider the pending

question through the lens of this Court’s rich jurisprudence

of official immunity, both absolute and qualified. In three

respects, that jurisprudence buttresses the conclusion that

the Westfall Act does not authorize the Attorney General to

issue an incident-denying certification.

1. Mitchel! taught that “a claim of immunity is con-

ceptually distinct from the merits of the plaintiff's claim.”

Id. at 527, quoted in Johnson v. Jones, 515 U.S. 304, 314

(1995); accord, e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992)

(distinguishing “immunity from suit” from “a mere defense

to liability”); Behrens v. Pelletier, 516 U.S. 299, 306 (1996)

(observing that immunity is an entitlement that is “distinct

from the merits”); Richardson v. McKnight, 521 U.S. 399,

403 (1997) (pointing out that “a distincti n exists between

an ‘immunity from suit’ and other kinds of legal defenses”).

As the Fifth Circuit has recognized, the import of this con-

ceptual distinction is that “[a] public official who attacks a

plaintiff's ability to prove her case is not raising a qualified

immunity defense.” Hare v. City of Corinth, 135 F.3d 320,

- 328 (5th Cir. 1998) (emphasis added). In the same vein, the

Seventh Circuit has recognized that “the immunity defense

is unavailable” regarding “whether the defendants did the

deeds alleged.” Elliott v. Thomas, 937 F.2d 338, 341 (7th

Cir. 1991), cert. denied, 502 U.S. 1074, 1121 (1992).

As documented above, however, attacking a plaintiff's

ability to prove her case is precisely the function (indeed,

the only function) of an incident-denying certification. See

supra pp. 19-20. Moreover, because it raises the question —_

(indeed, only the question) whether the defendants did the

deeds alleged, an incident-denying certification simply does

not raise an immunity defense.

2. Mitchell also established that “a district court’s

denial] of a claim of qualified immunity, to the extent that

it turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment.” 472 U.S. at 530. The Court

returned to this issue in Johnson v. Jones, considering “the

appealability of a portion of a district court’s summary judg-

ment order that, though entered in a ‘qualified immunity’

case, determines only a question of ‘evidence sufficiency,’

i.e., which facts a party may, or may not, be able to prove at

trial.” 515 U.S. at 313. The Court unanimously ruled that

this kind of order is not appealable. The Court’s first rea-

son for this ruling goes to the nature of the immunity de-

termination: “a qualified immunity ruling... is... a legal

issue that can be decided with reference only to undisputed

facts and in isolation from the remaining issues of the case.”

Id. (alterations in Johnson) (quoting Mitchell, 472 U.S. at

I + ere eee

° See also, e.g., Stephenson v. Doe, 332 F.3d 68, 78 (2d Cir. 2003)

(distinguishing between “the question of whether the plaintiffs

constitutional rights were violated” and “the question of whether

the officer was entitled to qualified immunity”); Dolson v. Village

of Washingtonville, 382 F. Supp. 2d 598, 601-02 (S.D.N.Y. 2005)

(*A defendant's assertion that the plaintiffs constitutional rights

were not violated, or that [plaintiff's] version of events is wrong,

does not go to the question of whether the officer was entitled to

qualified immunity. ... If plaintiff's version of the facts is wrong

and defendant's is correct, then the defendant will prevail, not be-

cause of qualified immunity, but because he did nothing wrong.”).

530 n.10). Accordingly, “an appellate court reviewing the

denial of the defendant’s claim of immunity need not con-

sider the correctness of the plaintiff's version of the facts.”

Id. (quoting Mitchell, 472 U.S. at 528).

By contrast, an incident-denying certification necessar-

ily requires the district court tu “resolve the factual dispute’

about the merits of the plaintiff's claims in order to grant

or deny the protection of the Westfall Act. Pet. App. 8a; see

also Proof Brief for Defendant-Appellant Barry Haley at 22

(contending that “the district court had to address”—at the

immunity stage (and without discovery)—“whether Haley

committed the acts alleged in the complaint”). Such a re-

quirement cannot be squared with Mitchell’s and Johnson’s

precepts that immunity is “a legal issue that can be decided

with reference only to undisputed facts” and that the court

considering immunity “need not consider the correctness of

the plaintiff's version of the facts.”

3. This Court returned to the relationship between

an immunity defense and the merits of the plaintiff's claim

in Crawford-El v. Britton, 523 U.S. 574 (1998). The Court

distinguished between the “plaintiffs showing of improper

intent (a pure issue of fact)” and “the separate qualified im-

munity question whether the official’s alleged conduct vio-

lated clearly established Jaw, which is an ‘essentially legal

question.’” Id. at 589 (quoting Mitchell, 472 U.S. at 526).

Moreover, the Court observed that it “has never indicated

that qualified immunity is relevant to the existence of the

plaintiff's cause of action.” Id. (quoting Gomez v. Toledo,

446 U.S. 635, 640 (1980)). The Court also reiterated that in

order to resolve an immunity defense, a district court “must

determine whether, assuming the truth of the plaintiffs al-

legations, the official’s conduct violated clearly established

law.” Id. at 598 (emphasis added); accord, e.g., Saucier v.

Katz, 533 U.S. 194, 201 (2001) (ruling that a “court required

to rule upon the qualified immunity issue must consider”

the facts “in the light most favorable to the party asserting

the injury”).

By definition, an incident-denying certification takes

just the opposite tack. Rather than assuming the truth of

the plaintiffs allegations—and asserting that the alleged

conduct occurred within the defendant employee’s scope of

employment—such a certification necessarily denies the al-

legations. Moreover, when the matter reaches the district

court, an incident-denying certification steers the judicial

inquiry toward the “pure issue(s] of fact” that underlie the

plaintiff's claim and away from the “essentially legal ques-

tion[s}” that are the hallmark of immunity defenses. See,

e.g., Kimbro, 30 F.3d at 1502 (forcing the district court to

decide between (1) the plaintiff's allegation that the defend-

ant “without provocation . . . viciously struck [her] on the

right arm,” and (2) the employee's “sworn declaration claim-

ing that she did not recall ever touching” the plaintiff).

The Westfall Act creates a species of official immunity

for federal employees. Yet an incident-denying certification

cannot be squared with the nature and operation of official

immunity as explicated by this Court.

E. The Article III Problem.

In Lamagno, a four-Justice plurality confronted what

the amicus curiae called “a potentially serious Article II

problem.” 515 U.S. at 434. The amicus argued that if the

Attorney General’s certification is rejected on judicial re-

view, and if there is no diversity of citizenship among the

parties, “then the federal court will be left with a case with-

out a federal question to support the court’s subject-matter

jurisdiction.” Id. at 434-35. The plurality denied the grav-

ity of the alleged problem, reasoning as follows:

" As Wood recognized, the judicial factfinding resulting from an

incident-denying certification “impos[es] a major restraint upon

the plaintiff's right to a jury trial.” 995 F.2d at 1130. By contrast,

the structure and history of the Westfall Act give us no reason to

conclude that Congress intended to “takle) from the jury its tradi-

tional job of deciding whether an egregious tort (well outside the

‘scope of employment’), in fact, occurred.” Jd. at 1126.

Whether the [defendant] employee was acting

within the scope of his federal employment is a

significant federal question—and the Westfall Act

was designed to assure that this question could be

aired in a federal forum. Because a case under

the Westfall Act thus “raises [a] question of sub-

stantive federal law at the very outset,” it “clearly

‘arises under’ federal law, as that term is used in

Art. III.”

Id. at 435 (citation omitted) (quoting Verlinden B.V. v. Cen-

tral Bank of Nigeria, 461 U.S. 480, 493 (1983)).

Of course, judicial review of the Attorney General’s

certification cannot raise a “question of substantive federal

law” if it raises no question of Jaw at all. Yet an incident-

denying certification necessarily entails a purely factbound

determination by the district court. We have already given

some examples. See Pet. App. 3a (whether Haley influenced

LBLA to fire petitioner); Melo, 13 F.3d at 747 (whether the

defendant supplied a candidate with information about the

plaintiffs); Kimbro, 30 F.3d at 1502 (whether the defendant

assaulted the plaintiff). Other such factbound determina-

tions are easily supplied. See, e.g., Wood, 995 F.2d at 1124

(whether defendant “spoke in a sexually suggestive manner

to plaintiff” and whether he did “proposition or otherwise

make any sexual advances towards plaintiff”); Heuton v.

Anderson, 75 F.3d 357, 359 (8th Cir. 1996) (whether defend-

ant “posted a picture depicting [one plaintiff] as a momma

pig and the other plaintiffs as suckling piglets”).

It is difficult to see how any of these factual issues is a

“nonfrivolous federal question” or a “question of substantive

federal law” as those terms were used by the Lamagno plu-

rality. 515 U.S. at 435. Accordingly, an incident-denying

certification in a case (like this one) where there is no other

basis for federal jurisdiction does indeed raise the Article

III probiem. See also id. at 437 (O’Connor, J., concurring)

(finding a “difficult question of federal jurisdiction”); id. at

441 (Souter, J., dissenting) (finding a “serious problem” that

“approach(es] the limit [of Article III ‘Arising Under’ juris-

diction], if it does not cross the line”). Reading the Westfall

Act—in accord with the text of § 2679(d), the Act’s history

and structure, and the jurisprudence of official immunity—

not to authorize the Attorney General to issue an incident-

denying certification avoids this problem.

For these reasons, the Attorney General lacks author-

ity under the Westfall Act to issue an incident-denying cer-

tification like the one he issued in this case.

Ill. Where Removal Is Based upon a Certification

Not Authorized by the Westfall Act, the Case

Must Be Remanded to State Court.

If the certification issued in this case is not authorized

by the Westfall Act, what is the consequence? As explained

below, the consequence is straightforward: the case must

be remanded to state court. This result is compelled by the

general remand statute, 28 U.S.C. § 1447(c), and nothing in

the Westfall Act itself requires otherwise.

A. Removal Based upon an Unauthorized

Certification Is Improper and Obliges a

Remand under the Terms of § 1447(c).

1. In Lamagno, the Court generally described the

removal provision of the Westfall Act: “When the Attorney

General has granted certification, if... the case was initi-

ated by the tort plaintiff in state court, the Attorney Gen-

eral is to remove it to the federal court, where, as in a case

that originated in the federal forum, the United States will

be substituted as the party defendant.” 515 U.S. at 431-32

(citing § 2679(d)(2)). The specific statutory language pro-

viding for removal is as follows:

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

ee eee

any time before trial by the Attorney General to

the district court of the United States for the dis-

trict and division embracing the place in which

the action or proceeding is pending.

§ 2679(d)(2) (emphasis added).

We think it obvious that the emphasized language spe-

cifies a particular kind or type of certification upon which

removal must be based. That is, the statute does not auth-

orize removal based upon, for example, a certification by the

Attorney General that the defendant employee was acting in

good faith, or a certification by the Attorney General that

the plaintiff's claim is without merit. Again, only a certifica-

tion 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 will satisfy the statutory prerequisite

for removal under the Westfall Act of a state-court civil ac-

tion against that employee.

As the preceding Part II has demonstrated, however,

an incident-denying certification is anything but the certifi-

cation described in § 2679(d)(2). To conclude that the West-

fali Act does not authorize the Attorney General to issue an

incident-denying certification is necessarily to conclude that

such a certification is not what the Act comprehends when

it refers to (we quote again) a “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.” § 2679(d)(1), (2); cf: Part ILA

supra (p. 22) (showing that “an incident-denying certifica-

tion is inconsistent with the text of § 2679(d)”). Therefore,

a removal based upon an incident-denying certification is a

removal that is simply not authorized by the Westfall Act.

To say the same thing using terms from this Court’s opin-

ions, such a removal is “improper,” JPPL, 500 U.S. at 77, 78

n.4, 87; “unwarranted,” Caterpillar Inc. v. Lewis, 519 U.S.

61, 77 (1996); or (echoing § 1447(c)’s use of the word defect)

“defective,” Wisconsin Department of Corrections v. Schacht,

524 U.S. 381, 392 (1998).

2. How does a federal court respond to such a remov-

al? To answer that question, we must return to 28 U.S.C.

§ 1447(c), which encompasses both “removals that are defec-

tive because of lack of subject matter jurisdiction and re-

movals that are defective for some other reason.” Wisconsin

Department of Corrections, 524 U.S. at 392. The former cat-

egory is distinctive in that a jurisdictional defect compels a

remand “at any time before final judgment,” § 1447(c), but

in every case the expected “outcome of an unwarranted re-

moval” is a “swift and nonreviewable remand order” at the

start. Caterpillar Inc., 519 U.S. at 77 (citing § 1447(c), (d)).

More succinctly: “If removal was improper, the case must

be remanded to state court.” JPPL, 500 U.S. at 78 n.4.

IPPL is illustrative. The principal issue in that case

was whether 28 U.S.C. § 1442(a)(1), as it then read, permit-

ted federal agencies (like federal officers) to remove cases.

See 500 U.S. at 79. The Court had “little trouble concluding

that the statutory language excludes agencies from the re-

moval power.” Id.; but cf. Federal Courts Improvement Act

of 1996, Pub. L. No. 104-317, § 206(a), 110 Stat. 3487, 3850

(amending the statute to include agencies). The Court then

confronted the question of remand:

Having concluded that [the federal agency]

lacked authority to remove petitioners’ suit to

federal court, we must determine whether the

case should be remanded to state court. Section

1447(c) of Title 28 provides that, “if at any time

before final judgment it appears that the district

court lacks subject matter jurisdiction [over a case

removed from state court], the case shall be re-

manded.” Since the district court had no original

jurisdiction over this case, a finding that removal

was improper deprives that court of subject mat-

ter jurisdiction and obliges a remand under the

terms of § 1447(c).

500 U.S. at 87 (alteration in original and citation omitted).

peer: ans

Applying these precepts to the present case is straight-

forward. As previously demonstrated, the Attorney General

“lacked authority” to remove petitioner’s lawsuit to federal

court. Moreover, the district court “had no original juris-

diction over this case” because petitioner has asserted only

tort claims under Kentucky law, see Pet. App. 24a, and all

of the parties are citizens of Kentucky, see Pet. App. 25a.

Accordingly, the conclusion that “removal was improper de-

prives [the district] court of subject matter jurisdiction and

obliges a remand under the terms of § 1447(c).”™

It remains to examine whether anything in the West-

fall Act overcomes this obligation.

B. Nothing in the Westfall Act Overcomes

the Statutory Obligation to Remand.

In the court below, respondents argued that “even if

the district court correctly denied the United States’ motion

to substitute, it erred in remanding the case to state court.”

Pet. App. 8a. The court of appeals agreed with respondents

and “with the majority view that the clear language of the

[Westfall] Act forecloses remand,” so that “the district court

lacked authority to remand the [present] action.” Pet. App.

10a. The “clear language” on which the court relied is the

final sentence of § 2679(d)(2): “This certification of the At-

torney General shall conclusively establish scope of office or

employment for purposes of removal” (emphasis added). In

earlier reaching the same conclusion as the court below, the

Third, Fourth, and Fifth Circuits relied on the same stat-

utory provision, particularly the same adverb. See Aliota,

984 F.2d at 1356; Borneman, 213 F.3d at 825-26; Garcia v.

United States, 88 F.3d 318, 323-25 (5th Cir. 1996).

* As discussed above (pp. 12-13), the mandated result is the same

even if the improper removal falls into the category of “removals

that are defective for some other reason” than lack of subject mat-

ter jurisdiction. Wisconsin Department of Corrections, 524 U'S. at

392. Section 1447(c) “now applies broadly to include all removals

that are not authorized by law.” Cook, 320 F.3d at 434-35.

With respect to certifications that are authorized by

the Westfall Act and thus satisfy the statutory prerequisite

for removal, this interpretation of § 2679(d)(2)’s final sen-

tence is eminently reasonable. It gives effect to the adverb

conclusively, and it “foreclose[s] needless shuttling of a case

from one court to another.” Lamagno, 515 U.S. at 433 n.10.

As explained below, however, this interpretation is plainly

wrong with respect to an incident-denying certification.

1. Consider the text itself. Precisely what is it that

“conclusively establish{es} scope of office or employment for

purposes of removal”? The subject of the sentence is “This

certification of the Attorney General.” And “This certifica-

tion,” of course, is that oft-quoted certification specified in

the first sentence of § 2679(d)(2), namely the “certification

by the Attorney General that the defendant employee was

acting within the scope of his office or employment.” Yet as

demonstrated repeatedly, and most recently in Part III.A.1

above (p. 35), an incident-denying certification is anything

but the certification described in § 2679(dX2). Accordingly,

an incident-denying certification cannot establish anything

for purposes of removal, much less establish it conclusively.

Moreover, an incident-denying certification cannot be

said to establish “scope of office or employment.” As docu-

mented in Part II.B above (pp. 23-26), such a certification

actually dispenses with a true scope-of-employment inquiry

in favor of an inquiry solely into merits facts. Although the

former implicates federal law (and so serves as a basis for

removal jurisdiction), the latter does not. For both of these

reasons, the final sentence of § 2679(d)(2) does not foreclose

remand of a case (like the present one) improperly removed

on the basis of an incident-denying certification.”

“ That the term “conclusively” does not override every other con-

sideration should not be surprising. Would an otherwise proper

Westfall Act certification foreclose remand if the Attorney General

relied on it to remove a criminal case, a case commenced in tribal

court, or a case in which trial had already begun? We think not.

2. Constitutional considerations affirm this conclu-

sion. Although Lamagno itself was a case originally filed in

federal court under the diversity jurisdiction, a four-Justice

plurality (in Part IV of its opinion) nevertheless considered

the propriety of “[tJreating the Attorney General's certifica-

tion as conclusive for purposes of removal.” 515 U.S. at 434.

The plurality found it “reasonable and proper for the federal

forum to proceed beyond the federal question to final judg-

ment once it has invested time and resources on the initial

scope-of-employment contest.” Id. at 436. The four dissent-

ing Justices, on the other hand, found “a serious problem

... in requiring a federal district court, after rejecting the

Attorney General’s certification, to retain jurisdiction over

a claim that does not implicate federal law in any way.” Id.

at 441 (Souter, J., dissenting). That is, retaining jurisdic-

tion in these circumstances “invite[d] a difficult and wholly

unnecessary constitutional adjudication about the limits of

Article II jurisdiction.” Jd. at 443-44.

We have previously quoted the plurality’s response to

the constitutional problem raised by the dissent. See supra

p. 33. That response makes sense in the context of a certi-

fication that properly invokes the Act and properly removes

the case to federal court, where a true scope-of-employment

question is subject to judicial review and determination. In

such a case, it is reasonable to say that while “[t]here may

no longer be a federal question once the federal employee

is resubstituted as defendant, .. . there was a nonfrivolous

federal question ... when the case was removed to federal

court.” Lamagno, 515 U.S. at 436 (plurality opinion). It is

also reasonable to say that such a case “raises [a] question

of substantive federal law at the very outset,” and it there-

fore “clearly ‘arises under’ federal law, as that term is used

in Art. III.” Id. (quoting Verlinden B.V., 461 U.S. at 493).

But consider a case where (as here) removal is based

upon an incident-denying certification. The only dispute for

the district court to resolve is “whether the alleged incident

occurred,” Pet. App. 11a, which is necessarily a “pure issue

of fact,” Crawford-El, 523 U.S. at 589; see also supra p. 33

(cataloging factbound determinations entailed by incident-

denying certifications). Again, it is difficult to see how any

of these factual issues is a “nonfrivolous federal question” or

a “question of substantive federal law” as those terms were

used by the Lamagno plurality. 515 U.S. at 435. Accord-

ingly, unless this case and others of its kind are remanded

to state court, Westfall Act litigation will “cross the line” of

Article III jurisdiction, as the Lamagno dissent warned. Cf.

Mesa v. California, 489 U.S. 121, 137 (1989) (“Adopting the

Government’s view would eliminate the substantive Art. ITI

foundation of [the statute] and unnecessarily present grave

constitutional problems.”).

3. Finally, we think the construction of § 2679(d)(2)

proffered here is supported by an analogy to the federal of-

ficer removal statute, 28 U.S.C. § 1442(a). As the Court re-

iterated in Jefferson County v. Acker, 527 U.S. 423 (1999),

in order to qualify for removal under § 1442(a), the federal

officer must “raise a colorable federal defense.” Id. at 431

(citing Mesa, 489 U.S. at 139). In enforcing this mandate,

the Court does “not require the officer virtually to ‘win his

case before he can have it removed.’” Jd. (quoting Willing-

ham v. Morgan, 395 U.S. 402, 407 (1969)). For example, in

Jefferson County itself, the Court opined that the officers’

intergovernmental tax immunity “argument, although we

ultimately reject it, presents a colorable federal defense,”

id., and thus the Court held that “the case was properly re-

moved under the federal officer removal! statute,” id. at 427

(emphasis added). In Mesa, by contrast, the removing de-

fendants “raise|d] no colorable claim of federal immunity or

other federal defense,” and the Court therefore affirmed a

judgment remanding the defendants’ cases to state court.

489 US. at 124.

The Attorney General's certification under § 2679(d)(2)

that the defendant employee was acting within the scope of

his employment is fairly analogized to the assertion of a col-

orable federal defense under § 1442(a). That certification,

peers acs

like the federa] defense, need not be “right”—ir se sense ;

of being resolved in the federal defendant’s faver 1 judicial

review—to make removal “proper.” Indeed, such a certifi-

cation would be “conclusive[] . . . for purposes of removal,”

§ 2679(d)(2), in the same way that assertion of a colorable

federal defense is conclusive for those purposes. See, e.g.,

Arizona v. Manypenny, 451 U.S. 232, 241-42 (1981) (noting

that removal under § 1442(a) contemplates that all issues,

federal and state, will be resolved in the federal forum). On

the other hand, just like a federal defense that is not even

colorable, a certification that is not authorized by the West-

fall Act—to wit, an incident-denying certification—cannot

sustain a removal. As in Mesa, such an action must be re-

manded to state court.

For these reasons, a removal based upon an incident-

denying certification is improper and obliges a remand to

state court under § 1447(c), and nothing in the Westfall Act

overcomes that obligation. Therefore, remand of this case

is not foreclosed; it is compelled.

CONCLUSION

The judgment of the court of appeals should be vacated

for lack of jurisdiction. Alternatively, that judgment should

be reversed on the merits. In either event, the judgment of

the district court remanding this action to the Trigg County

(Kentucky) Circuit Court should be reinstated.

Respectfully submitted.

ERIC GRANT

ANDREA M. MILLER Counsel of Record

NAGELEY, MEREDITH & MILLER, INC. ATTORNEY AT LAW

Suite 100 Suite 100

8001 Folsom Boulevard 8001 Folsom Boulevard

Sacramento, CA 95826 Sacramento, CA 95826

(916) 386-8282 (916) 388-0833

Counsel for Petitioner

July 2006

APPENDIX

28 U.S.C. § 2672

Sec. 2679. Exclusiveness of remedy

(a) The authority of any federal agency to sue and be

sued in its own name shall not be construed to authorize

suits against such federal agency on claims which are cog-

nizable under section 1346(b) of this title, and the remedies

provided by this title in such cases shall be exclusive.

(b)(1) The remedy against the United States provided

by sections 1346(b) and 2672 of this title for injury or loss

of property, or personal injury or death arising or resulting

from the negligent or wrongful act or omission of any em-

ployee of the Government while acting within the scope of

his office or employment is exclusive of any other civil ac-

tion or proceeding for money damages by reason of the same

subject matter against the employee whose act or omission

gave rise to the claim or against the estate of such employ-

ee. Any other civil action or proceeding for money damages

arising out of or relating to the same subject matter against

the employee or the employee’s estate is precluded without

regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a civil ac-

tion against an employee of the Government—

(A) which is brought for a violation of the Constitution

of the United States, or

(B) which is brought for a violation of a statute of the

United States under which such action against an individ-

ual is otherwise authorized.

or proceeding brought in any court against any employee of

the Government or his estate for any such damage or injury.

The employee against whom such civil action or proceeding

is brought shall deliver within such time after date of ser-

vice or knowledge of service as determined by the Attorney

General, all process served upon him or an attested true

copy thereof to his immediate superior or to whomever was

designated by the head of his department to receive such

papers and such person shall promptly furnish copies of the

pleadings and process therein to the United States attorney

for the district embracing the place wherein the proceeding

is brought, to the Attorney General, and to the head of his

employing Federal agency.

(d)\(1) Upon certification by the Attorney General that

the defendant employee was acting within the scope of his

office or employment at the time of the incident out of which

the claim arose, any civil action or proceeding commenced

upon such claim in a United States district court shall be

deemed an action against the United States under the provi-

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

States shall be substituted as the party defendant.

(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 before trial by the Attorney General to the dis-

trict court of the United States for the district and division

embracing 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 de-

fendant. This certification of the Attorney General shall

conclusively establish scope of office or employment for pur-

poses 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 references there-

to, and the United States shall be substituted as the party

defendant. A copy of the petition shall be served upon the

United States in accordance 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 pending in

a State court, the action or proceeding may be removed

without bond by the Attorney General to the district court

of the United States for the district and division embracing

the place in which it is pending. If, in considering the pe-

tition, 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 proceed in the same man-

ner 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.

(5) Whenever an action or proceeding in which the

United States is substituted as the party defendant under

this subsection is dismissed for failure first to present a

claim pursuant to section 2675(a) of this title, such a claim

shall be deemed to be timely presented under section

2401(b) of this title if—

(A) the claim would have been timely had it been filed

on the date the underlying civil action was commenced, and

(B) the claim is presented to the appropriate Federal

agency within 60 days after dismissal of the civil action.

(e) The Attorney General may compromise or settle

any claim asserted in such civil action or proceeding in the

manner provided in section 2677, and with the same effect.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.