Respondents Brief — Osborn v. Haley

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Supren.ec Cour

10 maa

No. 05-593 SEP ~ |] 2.98

) OFFICE OF The CLERK

In The in

Supreme Court of the Anited States

Us 7

PAT OSBORN,

Petitioner,

BARRY HALEY, ET AL.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR RESPONDENTS,

GAYE VERDI f/k/a GAYE LUBER AND

LAND BETWEEN THE LAKES ASSOCIATION, INC.

C. THOMAS MILLER

Counsel of Record

J. DUNCAN PITCHFORD

RICHARD C. ROBERTS

WHITLOW, ROBERTS,

Houston & STRAUB, PLLC

300 Broadway

Post Office Box 995

Paducah, KY 42002-0995

Telephone: (270) 443-4516

Counsel for Respondents,

Gaye Verdi ffk/a Gaye Luber

and Land Between the

Lakes Association, Inc.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether a federal employee is entitled to have the

district court determine the truth of the plaintiff’s contro-

verted allegations before denying immunity to the em-

ployee based solely on the nature of the conduct or tort

alleged, once the Attorney General has certified 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,” under the Federal Employees

Liability Reform and Tort Compensation Act of 1988

(Westfall Act), 28 U.S.C. § 2679(d).

2. Whether the Westfall Act’s provision that the

“certification of the Attorney General shall conclusively

establish scope of office or employment for purposes of

removal” of the suit from state court, 28 U.S.C. § 2679(d)(2),

means that a district court must retain jurisdiction over

the removed suit, even if the court ultimately overturns

the Attorney General’s scope-of-employment certification

and declines to substitute the United States as the defen-

dant.

3. Whether the court of appeals had jurisdiction to

review the district court’s remand order, notwithstanding

28 U.S.C. § 1447(d).

LIST OF PARTIES

The parties to the proceeding in the court whose

judgment is under review are Pat Osborn, Barry Haley,

Gaye Verdi, f/k/a as Gaye Luber (hereinafter “Verdi”), and

Land Between the Lakes Association, Inc. (hereinafter

“LBLA”).

Pursuant to Sup. Ct. R. 29.6, Respondent Land

Between the Lakes Association, Inc., states that it is not

the subsidiary of any other corporate entity, and no pub-

licly held corporation owns more than ten percent (10%) of

its stock.

ill

TABLE OF CONTENTS

Page

TRACT ELT Ie TORT ATT i

A ae NI sites ddasteticiapieelsoecsiectiniblisibgcciciadiaibineabtclnd Bindi ii

Statutory Provisions Involved.....................:cceseeeeeeees 1

I Ee Cr i iisiesencssinctininbinetannnidipinesacinticedie 1

Summary of Argument i spnihenduceiicihdiitpalidelendnintancnbitipeiicids 9

IO cicsiticsiebnssntnininndienininidieniiiaciensnsiuntiiidinaimengiabiptinn 15

I. The District Court Should Have Determined

the Truth of the Plaintiff’s Controverted Allega-

tions Before Deciding Haley's Immunity............ 15

A. Congress made no exception to the Westfall

Act for so-called “incident-denying” certifi-

SD cicisnciccccctiniocinnnagtiigainanpeauatininubainiinctiate 15

B. Interpreting the Act to exclude the under-

lying facts from judicial review would un-

fairly deny immunity to falsely-accused

federal employees .................ccccsseeeeeeeeeeeeee 17

C. Lamagno’s reasoning that judicial review

is indispensable before a final determi-

nation of the immunity question should

apply equally to defendants and plain-

SEUIY isndistineisncisiicncilnlindacnneecdtipebabdeadomiehiithdbeminnen 18

D. The Court’s prior holdings suggest that

judicial review in immunity cases may

include factual determinations ................ 20

TABLE OF CONTENTS -— Continued

Page

E. Section 2679(d)(3) allows judicial deter-

mination of the underlying facts when

the Attorney General has refused to cer-

tify the employee was within the scope of

employment, and it would be illogical to

omit such determination when the At-

torney General has so certified ................ 23

F. The analogous federal officer removal

statute does not require the defendant to

admit the plaintiff’s allegations to secure

I sisncchntitannsasectbiciniciepesnensinauibuboienens 25

G. Under the Civil Rules, federal defen-

dants are entitled to simultaneously

deny the plaintiff’s allegations and chal-

lenge their characterization as beyond

the scope of employment.......................... 26

II. Congress’ Prohibition of Remand Following

Certification is Consistent with Article III..... 31

A. Congress clearly precluded remand by

making the Attorney General’s certifica-

tion conclusive only for purposes of re-

Be isniesinthnisdnapecilninscibbanaincheisdileidesaisnabseanene 31

B. Congress did not violate Article III by

prohibiting remand, since the Attorney

General’s certification raises the signifi-

cant federal question of immunity from

ee iictahinscisdtetitnincntnddcnbsinnsievuinsivininas 32

C. Questions of law and fact relevant to Ha-

ley’s immunity created federal jurisdic-

tion over this case from the outset........... 34

TABLE OF CONTENTS - Continued

Page

D. Federal jurisdiction was also present

from the outset under the federal officer

I I sc indsccsinuiianaaidahidninesetiah

III. The Court of Appeals Had Jurisdiction to

Review the District Court’s Decisions ............

A. The court of appeals enjoyed jurisdiction

to review the order of resubstitution un-

der the doctrines established by this

Court in Cohen and Wacod................0..0se0+

The district court’s resubstitution or-

der is reviewable under the collateral

order doctrine announced in Cohen,

as a ruling denying governmental

SIT <ccccrccvecensentesuiincinpeieneneneeneens

Will v. Hallock permits review of the

resubstitution order, as a ruling de-

nying governmental immunity............

The order of resubstitution was re-

viewable as a separate, precedent or-

SP CE TOI... cncessecncosctessseaininansababen

Kircher permits review of the resub-

stitution order under Waco, because

the order did not resolve the entire

I i cissontitcteieshinsictinmassibdicdaiiamedaidaininiiid

B. Section 1447(d) presents no bar to review

of the remand order ...............::sssceeseeeeseees

Section 1447(d) bars review only of re-

mand orders invoking grounds within

the district court’s authority to con-

sider under Section 1447(c)................+5

TABLE OF CONTENTS -— Continued

Page

2. Section 2679(d)(2) barred the District

Court from directing remand in this

action, and accordingly there were no

grounds it had authority to consider

ESE ne rae 45

SESE SEES Ee OCS EEO 49

vii

TABLE OF AUTHORITIES

Page

CASES:

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

denied, 510 U.S. 817 (19938)..............:c0cceeeeee 32, 41, 42, 46

Am. Gen. Life & Accid. Ins. Co. v. Hall, 74 S.W.3d

I Ce rctentadenenceieennetinasnepanemcumiatenenninninimanenits 29

Anderson v. Creighton, 483 U.S. 635 (1987)...............000044 22

Areskog v. United States, 396 F.Supp. 834 (D.

as Tihs eietiisticeschisticnincitsiciintitilsiacinatsinadtiitnliapibiteliabil 26, 29

Barr v. Matteo, 360 U.S. 564 (1959)... ceeeeeeeeee 29

Behrens v. Pelletier, 516 U.S. 299 (1996) ......................00 37

Billings v. United States, 57 F.3d 797 (9th Cir.

Se inessaissiabnsesteiiebamienetaditmi altace ati al ais 5

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971).................... 38

Borneman v. United States, 213 F.3d 819 (4th Cir.

2000), cert. denied, 531 U.S. 1070 (2001).................. 4,31

Burford v. Sun Oil Co., 319 U.S. 315 (19438)............00ccc00 45

Cary v. Curtis, 44 U.S. (3 How.) 236 (1845)................0..04. 47

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

aire ineciesestnseiiteinintasiiuiatinnidenitaitahiasinaeteiasesaiinnieindimaaas 36, 37, 38, 39

Coleman v. United States, 91 F.3d 820 (6th Cir.

SU cic ciitinaiaiiaalalialltila teaca 38, 41

Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000)................ 38

Day v. Massachusetts Air National Guard, 167 F.3d

ey Be acterncniitentisnrinsiietictitetbinietnbcietteitiahhia estan 4

Digital Equip. Corp. v. Desktop Direct, Inc., 511

eee: CI GE enedtcecsnsnniitentaininnntaninenictnteiniinticaienbasialiatii 37

TABLE OF AUTHORITIES — Continued

Page

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

ES city Se es Ee ED ccincttecctnintaninsiinieneveicinnsinas 47

Flohr v. Mackoujak, 84 F.3d 386 (11th Cir. 1996)... 5, 38, 41

Garcia v. United States, 88 F.3d 318 (5th Cir. 1996)........ 32

Gilbar v. United States, 108 F. Supp. 2d 812 (S.D.

Ohio 1999), aff’d, 229 F.3d 1151 (unpublished

table opinion), 2000 WL 1206538 (6th Cir. 2000)........... 5

Green v. Hall, 8 F.3d GOS (9th Cir. 1993), cert.

I Ga es Ce ii tcatinincntncntatscvitnnisninsuitaneie 24

Gutierrez de Martinez v. Lamagno, 515 U.S. 417

Genel ciiniticciininpiichiinanpacaptinabigniniigpsnicatigncimatninnninacntiil passim

Gutierrez de Martinez v. Drug Enforcement Admin.,

111 F.3d 1148 (4th Cir. 1997), cert. denied, 522

ee eee Ga irscntresnengncesigstunescctasimeeninintenttenntennannpsice 21

Haddon v. United States, 68 F.3d 1420 (D.C. Cir.

STII iclessiniciclandaiedaaiesneniacibltenipdliaediiabdiatsitiiatiacitineitellinciiminiainateeits 32

Hanna v. Naegele, 72 F.3d 137 (unpublished table

opinion), 1995 WL 723597 (10th Cir. 1995) .................. 41

Harlow v. Fitzgerald, 457 U.S. 800 (1982)....................04. 22

Heuton v. Anderson, 75 F.3d 357 (8th Cir. 1996).............. 23

Int'l Primate Protection League v. Admins. of Tulane

Educ. Fund, 500 U.S. 72 (1991) ...........ccccsscssccsssseereeees 48

Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994)..............000 42

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

denied, 515 U.S. 1145 (1995)............cccceceseees 5, 23, 38, 42

Kircher v. Putnam Funds Trust, 547 U.S. __, 126

a Se, Se ED ieinctpcncicthiinterrecinniatintsstanteccmansiadiangl passim

Lyons v. Brown, 158 F.3d 605 (1st Cir. 1998).............. 24, 38

TABLE OF AUTHORITIES - Continued

Page

Maryland v. Soper, 270 U.S. 9 (1926) .........ccccecceeeeseeeeeees 36

Mathis v. Henderson, 243 F.3d 446 (8th Cir. 2001) .......... 38

McHugh v. Univ. of Vt., 966 F.2d 67 (2d Cir. 1992) .... 27, 28

Melo v. Hafer, 13 F.3d 736 (3d Cir. 1994).......... 5, 22, 23, 38

Mitchell v. Carlson, 896 F.2d 128 (5th Cir. 1990)....... 42, 43

Mitchell v. Forsyth, 472 U.S. 511 (1985)............... 22, 23, 37

Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990)... 28, 29, 32

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ...........ccccccceeeeeees 37

Palmer v. Flaggman, 93 F.3d 196 (5th Cir. 1996)............... 5

Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005) .................. 29

Pelletier v. Fed. Home Loan Bank of San Francisco,

968 F.2d 865 (Sth Cir. 1902) .............cceccrccccssscercoseseeeseees 38

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)........ 45

Rodriguez v. Sarabyn, 129 F.3d 760 (5th Cir. 1997)......... 38

Richman v. Straley, 48 F.3d 1139 (10th Cir. 1995)............. 5

Snodgrass v. Jones, 957 F.2d 482 (7th Cir. 1992)............. 24

Taboas v. Mlynczak, 149 F.3d 576 (7th Cir. 1998).............. 4

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

I cepcanicatsintitcsctnimenectontintntvereemasntinesesnencevatil passim

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

Soiree icncckiihciiateshcndiitcbesseiansiiidastalelagiciintinaininaienpiinintiabiaitinedijietins 14, 47

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

ere eithenccnitinsentnncicccibnintattadssitninitticiapammbtediatibiieapeiigailigent 33

Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.

aE nviintetrnincisteaiisiinieiindinbanguenatnbipenintnabinnintnnittedtapnteinen 33

TABLE OF AUTHORITIES — Continued

Page

City of Waco v. U.S. Fid. & Guar. Co., 293 U.S. 140

Soe e ecoensdiscinetcsinbesipsipentindininsbiidelgeninnetinitithindnnscisiaiéd passim

Wang v. United States, 947 F.2d 1400 (9th Cir.

Sane cikentctactuiestichienititinatiagicnmpanitapieinierbstitianintenenjulimensininiaitiennitit 24

Westfall v. Erwin, 484 U.S. 292 (1988) ............ 10, 11, 18, 22

Will v. Hallock, 546 U.S. ___, 126 S. Ct. 952

STN alissccnschsisiaetintenrhinesnestindicianiatnhimniehidiiinaleiae 37, 38, 39, 40

Willingham v. Morgan, 395 U.S. 402 (1969)......... 25, 26, 36

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

EEE ase er Lae 23, 27, 28, 29, 30

Woodruff v. Covington, 389 F.3d 1117 (10th Cir.

TEE ciibesncionsiaieahcteaptebintimatdiesinitiinianpainebiindiadiGhainmmiiniiiliinitions 37

STATUTES AND REGULATIONS:

SP te Teton dcpcgstcisendebcndiacinincediintenaanatinntininpdideianianitas 1,2

Sa SEIT TTI siccinssnriiectccstosinincsciaksinesinbpeiittedenindlestiaiioiiniadamaniacids 1,2

I SAI icc tcletsictinactinuicitincrinintncnindniatnbaitinertnntadiaensatieds 43

BP Es UP Wi initnnseniesvnninsinstcitninepntniennacienntinipibecdnibaineibinnal 42

ee ate ei isrciecsneceicocshcioniveiectheiinicieaneiniicsicivineiniatanibadiabaaiaainelnila 42

ae SEINE cencinctscncinstinahiinitiptatnienctpnabinnnccinsinniettineitinbinedaialls 36

Ne Se cecinnccvensicitinntnnninnitedcaninimaianit 1, 2, 25, 26, 36

SERIE: UP IIIEET tinitikendissedntninneinineepininnsntinguasdainendeacininaianiill passim

Ss Tt certesnnpitnndeionenentnerenteaanivnipeneintaidinnaeisdiiin 3

BD WED. © UO cescccesevescccssesestrensccnsessescosevensesnansnestesnontiness 38

TABLE OF AUTHORITIES — Continued

Page

Sees: Ai ate ineatentredeteninrnmncensepnntaunaictnenianiiabaeutitaitl passim

Be Tae TO OS icieiteiecncnsccecsteicitantccicitns tutilntensiamaiigtinnaniitie 43

ek: GE Sie Ce cccttciicereiinctiiindeninidntatinaiitniitiminiatibintmvein 27

Federal Employees Liability Reform and Tort

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

A CD ncicushdniticictinedebniissatninessninteiaiianiitunpiinneiaTlbieets 40

OTHER:

Brief For Respondent Dirk A. Lamagno, Gutierrez

de Martinez v. Lamagno, 515 U.S. 417 (1995)

(No. 94-167), 1995 WL 39038... cece cecceeeeeeseeeeeeeeenees 21

H.R. Rep. No. 100-700 (1988) reprinted in 1988

Seema Ds: CPU icinidnuegietetnsciindatsinineiainiemiaheien 18, 22

H.R. Rep. No. 104-799, at 2 (1996), reprinted in.

Be CARNE. GUID snscnicscostniccestaseseonncstanssentcinccsonns 46

14C Charles Alan Wright and Arthur R. Miller,

Federal Practice & Procedure § 3727 (3d ed.

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STATUTORY PROVISIONS INVOLVED

This matter involves interpretation of the Federal

Employees Liability Reform and Tort Compensation Act of

1988, also known as the Westfall Act, 28 U.S.C. § 2679(d),

the full text of which appears as App. A hereto; the general

remand statute, 28 U.S.C. § 1447, attached as App. B

hereto; and the federal officer removal statute, 28 U.S.C.

§ 1442, attached as App. C. 28 C.F.R. §§ 15.3 and 15.4 are

also referenced herein and attached as App. D.

STATEMENT OF THE CASE

Petitioner Osborn contends Respondent LBLA termi-

nated her employment because she filed an inquiry with

the United States Department of Labor to determine

whether a separate entity, the nearby U.S. Forest Service

office, had considered her “veterans’ preference points”

before rejecting her application for federal employment.

(Compl., App. A to Verdi’s Br. in Opp’n 1-5.) Osborn sued

LBLA and its Executive Director, Respondent Verdi, in

state court for common law wrongful discharge and related

torts, and sued Respondent Haley, the Forest Service’s

Business Manager, for interfering with Osborn’s employ-

ment relationship with LBLA. (/d. 1-15.) Petitioner asserts

that the United States, after removing the case to federal

court, conceded that its employee Barry Haley’s alleged

conduct was outside the scope of his federal employment,

so that the only question in dispute was whether these

allegations were true. This seriously misconstrues the

district court record as it applies to the issues before this

Court.

The United States’ Notice of Removal pointed out that

Osborn alleged: (1) that she was a Volunteer Coordinator

employed by LBLA, a contractor to the U.S. Forest Ser-

vice; (2) that she was terminated for “not being a good

Forest Service partner;” and (3) that Haley was employed

as Business Manager for the Forest Service “at all times

relevant” to her complaint. (Notice of Removal, R. 1; see

Compl., App. A to Verdi’s Br. in Opp’n 2, 4.) The Acting

U.S. Attorney (by her authority delegated from the Attor-

ney General under the Westfall Act)’ had certified that the

named federal defendant was acting within the scope of

employment at the time of the alleged conduct. (Certifica-

tion, App. C to Verdi’s Br. in Opp’n 23.) Accordingly, the

United States asserted the defense of immunity on Haley’s

behalf and requested removal to federal court under the

federal officer removal statute, 28 U.S.C. § 1442, as well as

the Westfall Act, 28 U.S.C. § 2679. (Notice of Removal, R.

1.)

In its Answer, the United States specifically denied

the allegations that Haley acted outside the scope of his

employment. (Compare Compl. {{ 29, 34, 41, App. A to

Verdi’s Br. in Opp’n 7, 8, 10, with U.S.’s Answer 7] 14

(denying { 29 of the Complaint), 16 (denying 7 34 of the

Complaint), 19 (denying { 41 of the Complaint), App. B to

Verdi’s Br. in Opp’n 18-19.) The U.S. Attorney’s Certifica-

tion contained no further explanation and no concession

that Haley’s alleged actions would have been outside the

* Congress authorized the Attorney General to make such certifica-

tions. 28 U.S.C. §§ 2679(dX1) and (2). The Attorney General has

delegated this authority by regulation to United States Attorneys, who

make certification decisions in consultation with the Department of

Justice. See 28 C.F.R. §§ 15.3, 15.4 (2005).

scope of his employment even if they had occurred. (Certi-

fication, App. C to Verdi’s Br. in Opp’n 23.) The United

States then filed a Notice of Proposed Substitution seeking

to substitute the Government as defendant (Notice of

Proposed Substitution, R. 11), and moved to dismiss

Osborn’s Complaint, citing her need to exhaust adminis-

trative remedies under the Federal Tort Claims Act, 28

U.S.C. §§ 2671 et seg., before proceeding against the

United States. (See U.S.’s Mot. to Dismiss, App. D to

Verdi’s Br. in Opp’n 24-29.) Like the United States’ An-

swer, the Motion contains no concession that Haley's

alleged acts would have been outside the scope of his

employment if they occurred. (See id.)

Osborn responded to the Motion by arguing that the

following alleged facts demonstrated Haley acted outside

the scope of his employment: (1) the Complaint alleges

that Haley “induced, persuaded, or coerced defendant

Gaye Luber [now Verdi] to discharge plaintiff of her job

...”; (2) a Memorandum of Understanding between the

U.S. Forest Service and the LBLA stated that Forest

Service employees would not participate in any LBLA

decision concerning “hiring or firing” LBLA employees;

and (3) Robert Kuenzli, a Department of Labor investiga-

tor, stated in a letter that Petitioner was fired because

Kuenzli called Haley. (See Pl.’s Resp. to U.S.’s Mot. to

Dismiss, J.A. 17-20.) However, in addition to presenting

double hearsay, the same letter described a meeting

wherein Osborn drew a “big laugh” by criticizing Haley in

the workplace in front of nearly 80 people, resulting in her

boss’s request that she apologize to Haley; all before Kuen-

zli ever contacted Haley. (Ex. C to Pl.’s Resp. to U.S.’s Mot.

to Dismiss, App. E to Verdi’s Br. in Opp’n 30-33.) The letter

also stated that Osborn told Kuenzli that her boss, Tamara

Newkum, said that Haley had demanded she terminate

Osborn for insubordination. (/d.) Further, when Kuenzli

asked Osborn what caused the insubordination, “she

explained that it was the comment she made at the staff

meeting to Mr. Haley.” (/d.) Thus, Kuenzli’s own account

indicates Osborn’s termination resulted from the comment

made at the staff meeting — before Kuenzli’s phone call —

and that Osborn understood this.

In reply, the United States pointed out that the

Petitioner never alleged any facts showing that Haley

acted outside the scope of his employment; rather, the

Complaint (at J 6) stated that Haley was “employed by the

Forest Service at all times related to the complaint.”

(U.S.’s Reply to Pl.’s Resp. to U.S.’s Mot. to Dismiss, J.A.

35, 37.) The allegations that Haley “wrongfully and mali-

ciously induced, persuaded, or coerced defendant Gaye

Luber [now Verdi] to discharge plaintiff” were merely

conclusory, the Government argued, and presented no

facts supporting the contention that Haley acted outside

the scope of his employment; i.e., there were no specific

allegations that Haley even attempted to affect Osborn’s

employment. (/d., J.A. 38.) Nowhere in its Reply did the

Government concede that Haley’s alleged acts were out-

side the scope of his employment if they occurred. Instead,

the Reply merely pointed out that the Petitioner failed to

meet her burden of proving Haley acted outside his federal

employment. (/d., J.A. 36.)’

* The courts of appeal agree this burden shifts to the plaintiff upon

certification by the Attorney General. (See U.S.’s Reply, J.A. 36 (citing

Borneman v. United States, 213 F.3d 819, 827 (4th Cir. 2000), cert.

denied, 531 U.S. 1070 (2001); Day v. Mass. Air Nat'l Guard, 167 F.3d

678, 685 (1st Cir. 1999); Taboas v. Mlynczak, 149 F.3d 576, 581 (7th Cir.

(Continued on following page)

When the district court then issued its Memorandum

and Order overruling the Certification, the court mistak-

enly concluded that

the United States does not deny any of the fac-

tual allegations contained in Ms. Osborn’s com-

plaint, i.e., that Mr. Haley talked with Ms. Luber

regarding Ms. Osborn’s complaint to the De-

partment of Labor. Instead, the United States

only disputes her legal conclusion that Mr. Haley

was acting in his individual capacity during the

relevant times.

(D. Ct. Mem. & Order, App. D to Pet. Cert. 22a.) To be

precise, the United States could not literally have denied

such a specific factual allegation, because Osborn never

made it. As set forth above, however, the United States did

point out the absence of such, and specifically denied

Osborn’s conclusory allegation that Haley induced her

termination — in addition to denying that Haley acted

outside the scope of his employment.

The district court apparently recognized that a plain-

tiff cannot defeat a motion to dismiss after the United

States substitutes itself as a defendant merely by relying

upon the factual allegations in his complaint. (Jd., App. D

21a-22a (citing Gilbar v. United States, 108 F. Supp. 2d

812, 816-17 (S.D. Ohio 1999), aff’d, 229 F.3d 1151 (unpub-

lished table opinion), 2000 WL 1206538 (6th Cir. 2000)).)

1998); Palmer v. Flaggman, 93 F.3d 196, 198 (5th Cir. 1996); Flohr v.

Mackoujak, 84 F.3d 386, 390 (11th Cir. 1996); Billings v. United States,

57 F.3d 797, 800 (9th Cir. 1995); Richman v. Straley, 48 F.3d 1139, 1145

(10th Cir. 1995); Kimbro v. Velten, 30 F.3d 1501, 1505 (D.C. Cir. 1994),

cert. denied, 515 U.S. 1145 (1995); Melo v. Hafer, 13 F.3d 736, 747 (3d

Cir. 1994)).)

Nonetheless, the district court concluded that no eviden-

tiary hearing was needed because there was no conflicting

evidence as to a material fact, noting that “Ms. Osborn

need not provide additional proof of an undisputed fact

absent any challenge to those facts by the United States.”

(Id., App. D 22a, 23a n.2.) The court then ruled the alleged

conduct, if it occurred, was outside the scope of Haley’s

employment under Kentucky law, in part because “there is

no indication — or even argument — that any of Mr. Haley's

actions, if proven, furthered the Forest Services’ goals.”

(Id., App. D 23a.) The court accordingly overruled the

Attorney General’s “declaration of substitution and/or

certification,” resubstituted Haley as a defendant,’ and

remanded the case to state court. (/d., App. D 24a, 25a; D.

Ct. Order, App. C to Pet. Cert. 17a.)

Contrary to her present argument that remand

following such a ruling was required, Osborn had not

requested remand in opposing the United States’ Motion.

Instead, she asked the court to lift the stay on discovery so

that the case could move forward against Haley in federal

court. (Pl.’s Resp. to U.S.’s Mot. to Dismiss, J.A. 20; Ten-

dered Order attached to Pl.’s Resp., R. 15.)

In its Motion to Reconsider, the United States re-

minded the court that it had indeed vigorously contested

Petitioner’s allegations, and further attached Declarations

from the individual defendants stating that they had

never discussed Osborn’s “veterans’ preference” inquiry.

* The court did not designate its action as “resubstitution,” but this

was its practical effect given the automatic substitution of the United

States following certification. See 28 U.S.C. § 2679(d)(2) (directing that

the United States “shall be substituted as the party defendant” upon

certification).

(U.S.’s Mot. to Recons., J.A. 40-45, 51-54.) Thus, the

United States was compelled to supplement the record

with specific, sworn statements refuting allegations that

the Petitioner had never specifically made. At the same

time, assuming “for the sake of argument only” that Haley

and Verdi “interacted regarding plaintiff’s employment,”

the United States argued that Haley’s alleged conduct in

causing Osborn’s firing could be construed as furthering

his employer’s goal of “partnering with competent contract

employees in a healthy and productive work environ-

ment... .” Ud., J.A. 47.)

In responding to the United States’ Motion to Recon-

sider, Osborn merely repeated her allegations that (1)

Verdi met with her to discuss problems with her employ-

ment on the same day that Haley learned she had filed a

complaint with the Department of Labor, and (2) she was

terminated by Verdi two days later. (Pl.’s Resp. to U.S.’s

Mot. to Recons., R. 23.) Again, she failed to allege any

contacts between Haley and Verdi regarding her employ-

ment.

Finally, in its order denying the United States’ Motion

to Reconsider, the district court accepted that it is “highly

unlikely,” in light of Haley’s affidavit, that Osborn could

develop proof demonstrating that Haley “interacted with

Verdi regarding Osborn’s employment.” (D. Ct. Order, App.

B to Pet. Cert. 14a.) Nevertheless, the district court

further explained that it could neither decide the basic

question of whether the communication occurred at all,

nor consider the United States’ alternative legal argument

that inducing Osborn’s termination could have benefitted

Haley’s employer and been within the scope of his em-

ployment, as this would contradict Haley’s declaration

under oath. (Id., App. D 14a-15a.)

Thus, having previously overruled the Certification

without a hearing because the United States had suppos-

edly failed to deny the underlying “allegations,” the

district court later held that it must sustain its ruling

without a hearing because it could not consider the United

States’ proof refuting the underlying “allegations.” Fur-

ther, the district court simply declined to consider the

alternative legal argument that a Forest Service represen-

tative could conceivably act within the scope of his em-

ployment in attempting to influence a contractor to

provide cooperative employees. Inherent in this rationale

is the court’s conclusion that Haleys involvement in

Osborn’s termination for any reason, whether related to

the Department of Labor inquiry or otherwise, would have

necessarily been outside the scope of his employment as a

matter of law.

In summary, the United States never conceded that

Petitioner’s conclusory allegations, or her implied but

never-stated underlying factual allegations, described

conduct outside the scope of Barry Haley's employment.

This is not the “simple and stark” case Petitioner suggests,

as when the parties agree that the defendant/employee’s

alleged conduct was necessarily outside the scope of his

emp)oyment under any version of the facts which could be

presented. Rather, this is a case in which the federal

employee has been denied immunity even though matters

relevant to both the characterization of his alleged conduct

and whether it occurred at all have not yet been fully

heard.

SUMMARY OF ARGUMENT

The Westfall Act provides, without qualification, that

the Attorney General’s certification shall “conclusively”

establish scope of office or employment for purposes of

removal only. The Court should give effect to this plain

declaration, and thereby reconcile all legal principles ame

‘ authorities pertinent to this dispute. Congress has effec-

tively foreclosed judicial review of removal jurisdiction,

while allowing judicial review of the question of scope of

employment — i.e. immunity — as determined by Gutierrez

de Martinez v. Lamagno, 515 U.S. 417 (1995). This ap-

proach satisfies the Constitution because the distinctly

federal question of immunity is present in these cases

from the outset, even when the underlying facts are in

dispute.

Question 1:

Petitioner contends the Attorney General had no

authority under the Westfall Act to deny her factual

allegations but simultaneously certify that Respondent

Haley acted within the scope of his employment. The

Attorney General’s authority, however, is unrestricted by

the statute. The relevant question is not the scope of the

Attorney General’s authority to issue a certification, but

the proper scope of judicial review of that certification

when the underlying facts are in dispute. Petitioner asks

the Court to preclude judicial review in such cases, auto-

matically denying immunity even to federal employees

who are falsely accused, based solely on the nature of the

conduct alleged. The purpose and language of the Westfall

Act prohibit this approach. Under the statutory scheme,

once the Attorney General certified Respondent Haley was

acting within the scope of his federal employment, Haley

was entitled to have the district court determine the truth

of the plaintiff’s controverted allegations before deciding

his immunity.

Congress made no exception in the Westfall Act for so-

called “incident-denying” certifications, and the Court

should not create one. The legislative history shows

Congress intended to restore, to federal employees who

acted within the scope of their employment, the immunity

and protection against having to “subject their personal

resources to the lottery of a jury trial” that they had

enjoyed before the holding in Westfall v. Erwin, 484 U.S.

292 (1988). To preclude removal, certification and substi-

tution for falsely-accused employees would automatically

deny them judicial review of the scope of employment

question due solely to the wording of the complaint — even

though they necessarily acted within the scope of their

employment at all times. Yet the same exception would

guarantee judicial review only for those employees who

actually committed the alleged conduct and may therefore

have acted beyond the scope of their employment.

Lamagno held that judicial review is indispensable

before a final determination of immunity. This should be

no less true for defendants than it is for plaintiffs; other-

wise, the plaintiff, rather than the district court, will

become “sole judge in her own cause.” Lamagno itself

involved an “incident-denying” certification, and the

opinion recognizes that judicial review will include deter-

minations of fact. Such determinations are distinct from

resolving the merits. They are nonetheless prerequisite to

resolving the absolute immunity defense raised in Westfall

Act cases, because the court cannot decide the legal

question of whether the defendant acted within the scope

of his employment without first determining what he

actually did at the time of the incident alleged.

If the government employee must try the case to

disprove facts relevant to scope of employment, as Peti-

tioner advocates, then his immunity has already been lost.

This reality distinguishes Westfall Act cases from qualified

immunity cases, in which the court can typically decide at

the beginning of the case, from the pleadings and pub-

lished law alone, whether the plaintiff claims a violation of

“clearly established law.” This Court’s pre-Westfall hold-

ings allowed government employee defendants to deny the

allegations and challenge the lack of supporting evidence

relevant to immunity through summary judgment mo-

tions. Since Congress sought to restore federal employees’

immunity to its pre-Westfall status, it is not reasonable to

interpret the Westfall Act as destroying the employees’

right to put plaintiffs to their proof.

Section 2679(d)(3) has been interpreted to allow

judicial determination of the underlying facts during

review of the Attorney General’s refusal to certify. Logi-

cally, when the Attorney General has certified that a

federal employee was acting within the scope of his em-

ployment, the employee should be entitled to the same

factual review before having the certification overturned

and his immunity revoked.

The “scope of employment” analysis under § 2679(d) is

also analogous to the “color of office” inquiry under the

federal officer removal statute, which allows removal if the

officer’s relationship to the plaintiff derived from his

official duties; the officer need not admit the plaintiff’s

allegations in order to establish federal jurisdiction.

Petitioner’s own court filings establish such a relationship

with Respondent Haley.

As illustrated by the district court proceedings in this

case, the “incident denial” exception Petitioner asks the

Court to read into the statute would also deny falsely-

accused federal employees their right under the Civil

Rules to deny the allegations but plead in the alternative

that a complaint describes conduct which, even if it were

true, falls within the scope of employment. By contrast,

interpreting the statute as written will impose no “burden”

on plaintiffs, other than having to accept a federal judicial

determination of the federal issue of the scope of a federal

worker’s employment — just as they do when an employee

has challenged the Attorney General’s refusal to certify.

Question 2:

Congress made the Attorney General’s certification

“conclusive” only for purposes of removal, while remaining

silent as to judicial review of the question of scope of

employment. Congress thus declared its intent to foreclose

remand of such cases under any circumstances, even if the

proceedings ultimately establish the federal defendant

acted beyond the scope of employment. By contrast,

Congress specifically required remand for “beyond the

scope” cases removed without the Attorney General’s

certification. By omitting this requirement for Attorney

General-certified removals, Congress made clear that such

cases are to remain in federal court.

This Court has already determined, in the context of

the federal officer removal statute, that the Constitution

allows Congress to provide a federal forum for claims

against federal employees, if the employee raises the

federal defense of immunity from the outset. Federal

defendant Haley did so here, removing the case pursuant

to both the officer removal statute and the Westfall Act.

Accordingly, he was entitled to the federal forum Congress

provided to him, consistent with Article III. The Lamagno

plurality correctly concluded that Congress acted in

accordance with Article III in prohibiting remand follow-

ing the Attorney General’s certification, as the significant

federal question of immunity is present from the outset in

such cases. Petitioner’s attempt to portray the certification

and removal of this case as somehow “unauthorized” has

no support in the statute or the record. Even if the certifi-

cation had been based solely on denial of the facts asserted

by Petitioner, the Attorney General would still have been

certifying that Haley acted within the scope of his em-

ployment — meaning the purely federal question of Haley’s

immunity would still have been present from the outset.

Question 3:

The court of appeals had jurisdiction to review this

matter. The order resubstituting Haley as a defendant was

immediately appealable under the collateral order doctrine

as a conclusive denial of governmental immunity, an

important issue separate from the merits and effectively

unreviewable on appeal from a final judgment. The resub-

stitution order was also reviewable under City of Waco v.

U.S. Fid. & Guar. Co., 293 U.S. 140 (1934), as it logically

preceded and could be “disaggregated” from the order

remanding the case to state court. Unlike in Kircher v.

Putnam Funds Trust, 547 U.S. __, 126 S. Ct. 2145 (2006),

in which the district court’s order of dismissal pursuant to

the Securities Litigation Uniform Standards Act resolved

all claims, here state law claims against Haley and these

Respondents remain to be tried.

The remand order is reviewable as well under the

exception to 28 U.S.C. § 1447(d) explained in Thermtron

Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976). This

provision protects from appellate review only those re-

mand orders invoking the grounds specified in § 1447(c);

i.e., that removal was “improvident and without jurisdic-

tion.” A district court cannot remand a properly removed

case on grounds it has no authority to consider. Here,

unlike in Things Remembered, Inc. v. Petrarca, 516 U.S.

124 (1995) and Kircher, Congress had foreclosed any issue

of removal jurisdiction through its “clear statutory com-

mand” that the Attorney General’s certification would be

conclusive for purposes of removal. Respondents’ appeal

was not a challenge to a district court’s mere legal error in

denying jurisdiction. Instead, Respondents maintain the

district court lacked statutory authority to question its

jurisdiction or to remand at all following certification.

Allowing the district court to override Congress’ statutory

directive with impunity would effectively void § 2679(b)(2).

Enforcing this provision would not weaken § 1447(d),

which never comes into play when Congress has specifi-

cally acted to foreclose any jurisdictional disputes. Deny-

ing effect to the statute would also threaten the

underpinnings of Lamagno; while enforcing it will recon-

cile the Court’s prior holdings with the issues now at hand.

Petitioner’s three arguments depend ultimately on the

same two premises: (1) the Attorney General’s certification

in this case was based solely on denial of the underlying

allegations; and (2) the scope of employment issue, and

therefore the question of immunity, is never reached when

the certification merely denies the allegations. For the

reasons stated herein, each premise is false. This is not

merely an “incident-denying” case. Rather, this case

involves the need for the district court to determine facts

and hear legal arguments relative to the truth, characteri-

zation and effect of the defendant/federal employee's

alleged conduct under Kentucky law defining scope of

employment. Even if nothing were left to decide but the

truth of the allegations, the court’s ruling would still

determine whether Haley is entitled to immunity, a

federal question which has been present from the outset.

For these reasons, the certification was authorized, the

statutory prohibition of remand following certification is

constitutional, and the district court acted beyond its

authority in remanding the case to the state court, render-

ing its order subject to appellate review. This Court should

exercise its jurisdiction to review the issues raised by

Petitioner, and uphold Congress’ constitutional power to

provide a federal forum for claims against all federal

officers and employees — including those who may be

falsely accused.

ARGUMENT

I. The District Court Should Have Determined

the Truth of the Plaintiff’s Controverted Alle-

gations Before Deciding Haley’s Immunity.

A. Congress made no exception to the Westfall

Act for so-called “incident-denying” certifi-

cations.

Under 28 U.S.C. § 2679(d)(2), the Attorney General

may certify that the defendant employee was acting within

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

incident” from which the claim arose, upon which the

action shall be removed, or he may choose not to so certify.

Congress imposed no qualification or restriction whatso-

ever on the Attorney General’s authority to admit, deny, or

consider the facts underlying the plaintiff’s allegations in

reaching this certification decision. Had it intended to do

so, Congress might have used a phrase such as “when

committing the conduct” instead of “at the time of the

incident,” as the latter wording leaves open the possibility

that the employee may have been “on the job” when an

incident occurred without participating in the specific

conduct alleged. So long as the federal employee is acting

in the course and scope of employment “at the time of the

incident” ~ whether as described by the plaintiff or other-

wise — the Attorney General may issue the Westfall Act

certification.

To support her separate argument that federal juris-

diction was never present, Petitioner nevertheless miscon-

strues Congress’ choice not to specifically authorize a so-

called “incident-denying” certification as a limitation on

the Attorney General’s authority to certify. In fact, as

illustrated above, the absence of an express limitation

means exactly that. By mandating removal without

qualification when the certification is in the employee's

favor, Congress necessarily contemplated that the Attor-

ney General would exercise judgment in making a certifi-

cation in each case.

However, as the Court concluded in Gutierrez de

Martinez v. Lamagno, 515 U.S. 417 (1995), this does not

mean that the Attorney General’s certification, once made,

is conclusive, except for purposes of removal as specifically

stated in § 2679(d)(2). Thus, Congress left the accuracy of

the certification — i.e. the question of the defendant’s

immunity from suit — open for judicial review. Id. As the

Sixth Circuit concluded, it is the scope of this judicial

review, and specifically the district court’s freedom to

resolve factual disputes before denying immunity to the

federal employee, which is properly at issue — not the

Attorney General’s authority to make the cer -ification and

remove the case to federal court. (See 6th Cir. Opinion,

App. A to Pet. Cert. 4a, available at Osborn v. Haley, 422

F.3d 359 (6th Cir. 2005), cert. granted, 126 S. Ct. 2017

(2006).) Under Petitioner’s approach, there in effect v ould

be no judicial review for falsely-accused federal employees,

because the district court’s inquiry would stop upon the

defendant’s denial of the plaintiff’s allegations.

B. Interpreting the Act to exclude the under- ©

lying facts from judicial review would un-

fairly deny immunity to falsely-accused

federal employees.

Petitioner contends that district courts should simply

assume the truth of the plaintiff’s underlying allegations

in all cases, and deny immunity to the defendant if the

nature of the alleged acts is such that they would neces-

sarily fall outside the scope of employment if they oc-

curred. This argument overlooks the point that a

defendant who did not commit the alleged “beyond the

scope” conduct was necessarily acting “within the scope” of

his employment at the time of the incident. It follows that

under Petitioner’s approach, a falsely-accused defendant

who was entitled to immunity would not get immunity. He

would still be entitled to defend the underlying claims, and of

course would avoid liability if successful, but only at his own

considerable expense. This is not immunity. Literally, it is

denial of immunity without judicial review. Accordingly, it

would defeat the purpose and express provisions of the

Westfall Act.

The legislative history shows Congress intended to

restore, to federal employees who act within the scope of

their employment, the immunity and protection against

having to “subject their personal resources to the lottery of

a jury trial” that they had enjoyed before the Westfall

holding. See H.R. Rep. No. 100-700 (1988), reprinted in

1988 U.S.C.C.A.N. 5945, 5947. The exception Petitioner

seeks would undo this remedy and discriminate unfairly

against federal employees falsely accused of any type of

conduct or tort. Yet the same exception would illogically

guarantee judicial review for those who actually commit-

ted the alleged conduct, and may therefore have acted

beyond the scope of their employment. By contrast, inter-

preting the statute as written will impose no “burden” on

plaintiffs, other than having to accept a federal judicial

determination (now available to them pursuant to

Lamagno) of the federal issue of the scope of a federal

worker’s employment, and try their underlying claims in

federal court.

C. Lamagno’s reasoning that judicial review

is indispensable before a final determina-

tion of the immunity question should apply

equally to defendants and plaintiffs.

Precluding removal, certification, and substitution for

falsely-accused employees, as Petitioner advocates, would

automatically deny them immunity without judicial

review. In Lamagno, this Court essentially found that to

protect the plaintiff, judicial review was indispensable

before a final and binding determination granting immu-

nity to the federal employee: “Thus, absent judicial review

and court rejection of the certification, Lamagno would be

released from the litigation. ...” Lamagno, 515 U.S. at

422. The determination is no less final and binding for the

falsely-accused employee, and judicial review is therefore

no more dispensable. In Lamagno, this Court declined to

cast district court judges into the role of “petty functionar-

ies,” by insulating the Attorney General’s certification

from review and making her delegate “sole judge” with

regard to the employee’s immunity. See id. at 426, 429.

Petitioner’s approach would cast the hypothetical plaintiff,

instead of the Attorney General, as “sole judge” in her own

cause, by allowing her to decide immunity unilaterally

through false accusations of torts that are by definition

beyond the scope of employment, while requiring the

district judge to act as a “petty functionary” in remanding

such claims without first assessing the facts.

As Petitioner recognized, scope of employment “sets

the line” according to Lamagno:

If Lamagno is inside that line, he is not subject to

petitioners’ suit; if he is outside the line, he is

personally answerable. The sole question, then,

is who decides on which side of the line the case

falls: the local United States Attorney, unreview-

ably or, when that official’s decision is contested,

the court.

Id. at 423-24. Applying this rationale here, it is irrelevant

whether the defendant or the Attorney General denied the

plaintiff’s allegations. What matters is whether Barry

Haley acted within the scope of his employment and who

will decide whether he did so. This decision literally

cannot be made without deciding the relevant facts, since

they are in dispute. The Court in Lamagno declined to

transfer the final scope of employment determination from

the district court to the United States Attorney as an

interested party, absent an express directive from Con-

gress to do so. By the same logic, it should not transfer the

final determination to the plaintiff, who could then control

the result through false allegations and/or artful pleading.

D. The Court’s prior holdings suggest that ju-

dicial review in immunity cases may in-

clude factual determinations.

The Court inherently recognized in Lamagno that the

district courts’ review of certifications will include factual

determinations: “In adjudicating the scope-of-federal-

employment question ‘at the very outset,’ the court inevi-

tably will confront facts relevant to the alleged miscon-

duct, matters that bear on the state tort claims against the

employee.” Lamagno, 515 U.S. at 435; see also id. at 442

(Souter, J., dissenting) (“[Llitigating the question whether

an employee’s allegedly tortious acts fall within the scope

of employment will, of course, always require some evi-

dence to show what the acts were.”). “Second, when a

Government official’s determination of a fact or circum-

stance — for example, ‘scope of employment’ — is dispositive

of a court controversy, federal courts generally do not hold

the determination unreviewable.” Id. at 424. “The key

question presented — scope of employment — however

contestable in fact, would receive no judicial audience

[under the defendant’s interpretation].” Jd. at 429.

Indeed, Lamagno involved an “incident-denying certifi-

cation” revealed through the “crucible of litigation,” as

defined by Petitioner. (See Petr.’s Br. 19 n.5.) The scope of

employment question before the Court involved allegations

that the federal defendant, Lamagno, was intoxicated while

driving, and that his passenger, an unidentified woman,

was not a federal employee. Lamagno, 515 U.S. at 420-21.

The Fourth Circuit’s more detailed description, on appeal

following remand, confirms these allegations were in

dispute. See Gutierrez de Martinez v. Drug Enforcement

Admin., 111 F.3d 1148, 1156-1159 (4th Cir. 1997), cert.

denied, 522 U.S. 931 (1997). Lamagno’s brief as Respon-

dent also indicates that the Government had denied many

of the Petitioner’s allegations. See Brief For Respondent

Dirk A. Lamagno at 2-3, Gutierrez de Martinez v. Lamagno,

515 U.S. 417 (1995) (No. 94-167), 1995 WL 39033, at *6-7.

In requiring judicial review of such an “incident-denying”

certification, the Court must have contemplated that the

district court’s inquiry would include resolving factual

determinations pertinent to the scope of Lamagno’s em-

ployment.

Petitioner correctly contends that determining immu-

nity is distinct from resolving the merits of the case. This

does not mean that determining immunity cannot include

determination of facts relevant to immunity. Factual

determinations are prerequisite to resolving the absolute

immunity defense raised in Westfall Act cases, because the

court cannot decide the legal question of whether the

defendant acted within the scope of his employment

without first determining what the defendant actually did.

If the employee must try the case to disprove facts rele-

vant to scope of employment as Petitioner advocates, then

his immunity has already been lost.

In the qualified immunity cases upon which Petitioner

so heavily relies, the court can typically decide at the

beginning of the case, from the pleadings and published

law alone, whether the plaintiff has claimed a violation of

“clearly established law.” Certainly, both absolute and

qualified immunity cases ultimately involve questions of

law that must be decided before trial. Orders denying both

are effectively unreviewable on appeal from a final judg-

ment, because immunity is “effectively lost if a case is

erroneously permitted to go to trial,” and orders denying

both are therefore appealable before final judgment. See

Mitchell v. Forsyth, 472 U.S. 511, 525-30 (1985); see also

infra Part III(A)(1) (discussing collateral order doctrine).

But this does not alter the fact that the court must con-

sider the plaintiff’s factual allegations in resolving the

immunity issue. Mitchell, 472 U.S. at 529. In so doing,

prior to Westfall v. Erwin, 484 U.S. 292 (1988), the district

courts would grant summary judgment on grounds of

immunity if the plaintiff could tender no competent

evidence of conduct beyond the scope of the immunity; the

fact that the defendant needed to contest the plaintiff’s

merits allegations to establish his immunity did not

preclude summary judgment in his favor. Melo v. Hafer, 13

F.3d 736, 744-745 (3d Cir. 1994) (citing Harlow v. Fitzger-

ald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S.

635 (1987)). “If the defendant did not qualify for immunity

on the facts alleged in the complaint, however, this did not

mean the defendant had to go to trial.” Jd. at 745. Since

Congress specifically sought to restore the early resolution

of immunity which had been available before Westfall, it is

not reasonable to suggest that Congress intended for the

Westfall Act to destroy the federal employee’s opportunity

to deny the plaintiff’s allegations relevant to immunity,

and challenge the lack of supporting evidence thereof. See

id. at 744 (citing H.R. No. 100-700 (1988), reprinted in

1988 U.S.C.C.A.N. 5945, 5946). Even in qualified immu-

nity cases in which the complaint adequately alleges acts

that violate clearly established law, the defendant is

entitled to summary judgment if discovery fails to create a

genuine issue of fact regarding the alleged conduct.

Mitchell, 472 U.S. at 526. This is necessary to protect the

defendant’s “entitlement not to stand trial or face the

other burdens of litigation, conditioned on the resolution of

the essentially legal question whether the conduct of

which the plaintiff complains violated clearly established

law. The entitlement is an immunity from suit rather than

a mere defense to liability. ... ” Jd. Nothing in the line of

qualified immunity cases Petitioner cites supports her

argument that defendants who deny the allegations in the

complaint automatically forfeit their immunity.

E. Section 2679(d)(3) allows judicial determi-

nation of the underlying facts when the At-

torney General has refused to certify the

employee was within the scope of employ-

ment, and it would be illogical to omit such

determination when the Attorney General

has so certified.

The four circuits that directly rejected the approach of

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

banc) (Breyer, J.) compared § 2679(d)(2) with § 2679(d)(3),

which does not contain the “time of the incident” clause

upon which the First Circuit relied. See 6th Cir. Opinion,

App. A to Pet. Cert. 6a-7a, available at Osborn v. Haley,

422 F.3d 359, 363-64 (6th Cir. 2005), cert. granted, 126

S. Ct. 2017 (2006); Heuton v. Anderson, 75 F.3d 357, 360

(8th Cir. 1996); Kimbro v. Velten, 30 F.3d 1501, 1508 (D.C.

Cir. 1995), cert. denied, 515 U.S. 1145 (1995); Melo v.

Hafer, 13 F3d 736, 746-47 (3d Cir. 1994). Section

2679(d3) merely requires the district court, when peti-

tioned by the employee following the Attorney General’s

refusal to certify, to “find and certify [prior to substitution]

that the employee was acting within the scope of his office

or employment.” These courts pointed out that it is

unlikely that Congress intended the Attorney General, in

deciding whether to certify pursuant to (d)(2), to be more

circumscribed by the plaintiff’s allegations than the

district court, in deciding whether to certify pursuant to

(d)(3). See id. Petitioner does not contend that § 2679(d)(3)

excludes the underlying facts from judicial review, and

Respondents can find no case that so holds. The First and

Ninth Circuits have recognized that the district court’s

role in reviewing challenges to the Attorney General’s

refusal to certify, brought pursuant to § 2679(d)(3), in-

cludes fact finding. See Lyons v. Brown, 158 F.3d 605 (1st

Cir. 1998); Green v. Hall, 8 F.3d 695 (9th Cir. 1993) (per

curiam); Wang v. United States, 947 F.2d 1400 (9th Cir.

1991); cf. Snodgrass v. Jones, 957 F.2d 482 (7th Cir. 1992)

(holding that no hearing required prior to district court’s

determination under (d)(3) where not explicitly required

by statute, and no facts were in dispute). The Court

having now ruled in Lamagno that judicial review is

available under (d)(2) as well as (d)(3), it would be even

less logical to allow the district court to resolve factual

disputes only when reviewing the Attorney General’s

refusal to certify that an employee was not “within the

scope” of federal employment, and not when the Attorney

General has certified that the employee was “within the

scope.” In each situation the district court will finally

decide the question of the employee’s immunity, and it

should resolve any factual disputes before doing so. Noth-

ing in either provision of the statute commands otherwise.

F. The analogous federal officer removal stat-

ute does not require the defendant to admit

the plaintiff’s allegations to secure removal.

By analogy, under the federal officer removal statute,

28 U.S.C. § 1442(a)(1) (App. C hereto), the federal officer

need not admit the plaintiff’s allegations to secure re-

moval. Willingham v. Morgan, 395 U.S. 402, 408 (1969)

(citation omitted). Rather, in this civil suit alleging assault

by prison officials, the “color of office” test of § 1442(a) was

met when the federal officer merely showed that his

relationship to the plaintiff derived solely from his official

duties. Jd. at 409. The Court further explained:

Past cases have interpreted the “color of office”

test to require a showing of a “causal connection”

between the charged conduct and asserted offi-

cial authority. “It is enough that [petitioners’]

acts or [their] presence at the place in perform-

ance of [their] official duty constitute the basis,

though mistaken or false, of the state prosecu-

tion.” In this case, once petitioners had shown

that their only contact with respondent occurred

inside the penitentiary, while they were perform-

ing their duties, we believe that they had demon-

strated the required “causal connection.” The

connection consists, simply enough, of the undis-

puted fact that petitioners were on duty, at their

place of federal employment, at all the relevant

times. If the question raised is whether they

were engaged in some kind of “frolic of their own”

in relation to respondent, then they should have

the opportunity to present their version of the

facts to a federal, not a state, court. This is ex-

actly what the removal statute was designed to

accomplish.

Id. at 409 (citations omitted) (alterations in original).

Citing Willingham, a district court has held that a

United States Navy superintendent was acting under color

of his office in contacting a private employer concerning

the prospective employment of a Navy civilian employee,

and accordingly that a claim against him for tortious

interference with contract was properly removed to federal

court under § 1442(a)(1). Areskog v. United States, 396

F. Supp. 834 (D. Conn. 1975).

The “scope of employment” analysis under § 2679(d) is

analogous to the “color of office” inquiry under § 1442(a).

See 14C Charles Alan Wright and Arthur R. Miller, Fed-

eral Practice & Procedure § 3727 (3d ed. 1998). Here, like

in Areskog, Petitioner’s own filings — including her plead-

ing that Haley was employed as Business Manager for the

Forest Service “at all times relevant” to her complaint —

effectively established that her relationship with Haley

derived solely from his official duties. Her mere conclusory

allegation that he nonetheless acted for his own purposes

in affecting her employment should not be enough to deny

Haley the opportunity to present his own version of the

facts to a federal court, before it finally decides whether he

is entitled to immunity.

G. Under the Civil Rules, federal defendants

are entitled to simultaneously deny the

plaintiff’s allegations and challenge their

characterization as beyond the scope of

employment.

As illustrated in Mr. Haley’s case, the exception Peti-

tioner seeks would also deny falsely-accused federal em-

ployees the opportunity to contest “incident-characterizing”

facts or allegations. That is, it would deny employees the

opportunity to make the legal argument that a complaint

describes conduct that may fall within the scope of em-

ployment as a matter of law, depending on the ultimate

facts showing the context of the incident. Such a defense is

no different than pleading hypothetically or in the alterna-

tive, which is specifically sanctioned in Fed. R. Civ. P.

8(e)(2). Even the holdings in Wood v. United States, 995

F.2d 1122 (ist Cir. 1993) (en banc) (Breyer, J.), and

McHugh v. Univ. of Vt., 966 F.2d 67, 74 (2d Cir. 1992), the

sexual harassment cases upon which Petitioner primarily

relies, carefully distinguished challenges to the context or

characterization of the defendant’s alleged conduct which

go beyond simple denials:

The context of the alleged act that is relevant to

the scope of employment issue is a matter of fact

to be determined by the district court, however,

after an appropriate factual hearing. Whenever

scope of employment is disputed, substitution

should be made only if the court finds that the al-

leged acts were within the scope of employment.

McHugh, 966 F.2d at 74-75.

The Wood court, whose primary conclusion Respon-

dents believe was flawed, conceded that “the certificate

need not accept the plaintiff’s version of just Aow it

occurred.” Wood, 995 F.2d at 1123. In response to the

defendant’s concern that “Driver A” who admits negligence

would receive immunity while less culpable “Driver B,”

who denies that any accident occurred, would not, the

Wood court explained that “it could be so only where

Driver A can claim that the underlying incident is job-

related, while Driver B cannot make this claim, even

hypothetically for argument’s sake.” Jd. at 1127. Address-

ing the concern that a plaintiff might transform a job-

related tort into a non-job-related tort simply by alleging

an. “off-duty” state of mind or alleging that a negligent

action was carried out intentionally, the court stated:

Rather, we insist that the certificate assume

some kind of harm-causing incident, while leav-

ing the Attorney General free to dispute charac-

terization of the incident and _ subsidiary

immunity-related facts. The Second Circuit held

the same in McHugh. 966 F.2d at 74. Moreover,

we previously held that the Attorney General’s

certificate may contest a plaintiff’s incident-

describing and incident-characterizing facts and

that the court may resolve any such factual con-

flicts, relevant to immunity, prior to trial.

Id. at 1129.*

Remand of this case to the district court for an eviden-

tiary hearing on the scope of employment issue is consis-

tent even with McHugh and Wood. Unlike in those cases,

the Petitioner has not alleged conduct — such as sexual

assault or rape — which is clearly not entitled to the

protection of immunity if it occurred and would clearly be

beyond the scope of employment under state law under

any version of events. Instead, Osborn alleged torts that

the district court correctly ruled are not actionable if

undertaken with a “purpose to serve the employer.” (D. Ct.

* By way of illustration, the Wood court noted that in its earlier

case, Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990), the plaintiff had

alleged that a federal employee intentionally injured him by driving

fast in order to jostle him and throw him from side-to-side in the back of

a truck. The court explained: “We assumed that these factual allega-

tions, if true, would have placed Scannell’s actions outside the ‘scope of

his employment’ ... but, we held the immunity certificate valid,

pending a pre-trial evidentiary hearing that would resolve the key

immunity-related factual dispute, namely whether Scannell intended to

harm Nasuti.” Wood, 995 F.2d at 1129 (citing Nasuti, 906 F.2d at 808).

Mem. & Order, App. D to Pet. Cert. 23a (citing Am. Gen.

Life & Accid. Ins. Co. v. Hall, 74 S.W.3d 688, 692 (Ky.

2003)).) See also Areskog v. United States, 396 F. Supp.

834, 839-840 (D. Conn. 1975) (holding the naval superin-

tendent immune as “within the outer perimeter of [his]

line of duty” under Barr v. Matteo, 360 U.S. 564, 575

(1959) (plurality opinion), even though he committed the

acts plaintiff characterized as tortious interference). Even

criminal assault has been deemed within the scope of

employment under Kentucky law, when intended to

further the employer’s purpose. Patterson v. Blair, 172

S.W.3d 361 (Ky. 2005).

Further, the United States articulated motives that

could have justified Haley’s alleged attempt to influence

Osborn’s employment as serving his employer. Osborn

herself put forth documentation that she was fired because

she engaged in public ridicule of a Forest Service official

as a contractor’s employee, pointedly undermining that

official’s (Haley’s) attempt to address the quality of com-

munications between the two organizations. This is hardly

analogous to a case in which the only matter in dispute is

whether the defendant committed a rape or sexual as-

sault.

The instant matter also does not involve a situation in

which the United States has merely denied the factual

“allegations.” Instead, the United States attempted to put

the Petitioner to her proof, and then argued that even if

Petitioner’s allegations that Haley interfered with her

employment were hypothetically true, Haley was entitled

to a hearing to determine his intent or motive. Consistent

with Wood and Nasuti, Haley should have been given the

opportunity to contest Osborn’s “incident-describing” and

“incident-characterizing” allegations, which were merely

conclusory and did not even allege specific conduct. Para-

phrasing the language of Wood, 995 F.2d at 1129, the

district court should have considered all facts and argu-

ments relevant to the context of Haley’s alleged conduct,

which could have been consistent with a legitimate busi-

ness purpose.

Indeed, Petitioner effectively conceded that her claims

against Haley describe conduct which can fall within the

scope of employment under Kentucky law. Petitioner’s

claims against Respondent Verdi were essentially identical

to those against Haley: she accused Verdi of discharging

her in violation of public policy, conspiring to wrongfully

discharge her, conspiring to interfere with her employment

relationship, and committing outrageous conduct, all

alleged to have been carried out in a “malicious, oppres-

sive, and intentional manner in order to injure and dam-

age plaintiff.” (Compl., App. A to Verdi’s Br. in Opp’n 1-15.)

In each instance, Osborn specifically alleged that Verdi

acted within the scope of her employment as Executive

Director of the defendant LBLA while performing these

acts. (Jd. [f] 24, 26, 37, 38, 44, 45, 52, 53 and 61, App. A 6-

7, 9-11, 13-14.) Yet Petitioner in her later court filings

characterized the same purported conduct as beyond the

scope of Haley’s employment. At the least, the Attorney

General should be entitled to challenge Petitioner’s self-

serving re-characterization of these conclusory allegations.

II. Congress’ Prohibition of Remand Follcwing

Certification is Consistent with Article III.

A. Congress clearly precluded remand by

making the Attorney General’s certification

conclusive only for purposes of removal.

The Westfall Act provides that the Attorney General’s

certification “shall conclusively establish scope of office or

employment for purposes of removal” of the suit from state

court. 28 U.S.C. § 2679(d)(2). By making the certification

conclusive only for removal, Congress clearly signaled its

intent to preclude remand and provide a federal forum to

federal employees in such cases, even when a district court

finds the Attorney General’s determination to be incorrect.

Nine justices apparently recognized this in deciding

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995).

The majority reasoned that Congress likely omitted the

Drivers Act provision authorizing remand, “because it had

decided to foreclose needless shuttling of a case from one

court to another — a decision evident also in the Westfall

Act language making certification ‘conclusivie] ... for

purposes of removal.’” Jd. at 434 n.10. Assessing the same

provision, the dissent stated: “The Court recognizes that

there is nothing equivocal about the Act’s provision that

once a state tort action has been removed to a federal

court after a certification by the Attorney General, it may

never be remanded to the state system.... ” Jd. at 440

(Souter, J., dissenting). The four-circuit majority of appel-

late courts addressing the issue agreed, holding that the

statute deprives the district court of authority to remand.

See 6th Cir. Opinion, App. A to Pet. Cert. 10a, available at

Osborn v. Haley, 422 F.3d 359, 365 (6th Cir. 2005), cert.

granted, 126 S.Ct. 2017 (2006); Borneman v. United

States, 213 F.3d 819, 826 (4th Cir. 2000), cert. denied, 531

U.S. 1070 (2001); Garcia v. United States, 88 F.3d 318, 325

(5th Cir. 1996); Aliota v. Graham, 984 F.2d 1350, 1356 (3d

Cir.) (Alito, J.), cert. denied, 510 U.S. 817 (1993).

B. Congress did not violate Article III by pro-

hibiting remand, since the Attorney Gen-

eral’s certification raises the significant

federal question of immunity from the out-

set.

The practical question before the Court, then, is

whether Article III of the United States Constitution will

allow the Court to give effect to Congress’ plain language

and intent. The split among the circuits on this question of

remand is grounded squarely in Article III concerns.

Petitioner cites Nasuti v. Scannell, 906 F.2d 802, 814 (1st

Cir. 1990), and Haddon v. United States, 68 F.3d 1420,

1427 (D.C. Cir. 1995), for the proposition that a district

court cannot retain jurisdiction after concluding that the

defendant acted outside the scope of his employment. Both

courts cited constitutional concerns (although Nasuti pre-

dates the published ruling in Lamagno). See Haddon, 68

F.3d at 1427; Nasuti, 906 F.2d at 814. Of the four circuits

barring remand, only the Fifth Circuit in Garcia v. United

States directly analyzed the Article III question, essen-

tially adopting the Lamagno plurality’s rationale in

concluding that retaining jurisdiction after rejecting the

Attorney General’s certification was constitutional. Garcia

v. United States, 88 F.3d 318, 325 (5th Cir. 1996).

The plurality in Lamagno did not view the posed

Article III problem as a grave one, reasoning (in para-

phrase) as follows: (1) a case that raises a substantive

question of federal law at the outset clearly “arises under”

federal law within the meaning of Article III, Lamagno,

515 U.S. at 435 (citing Verlinden B.V. v. Cent. Bank of

Nigeria, 461 U.S. 480, 493 (1983)); (2) the scope of a

federal employee’s employment is a significant federal

question, and the Westfall Act was designed to assure that

it could be aired in a federal forum, id.; and (3) considera-

tions of judicial economy and convenience and fairness to

litigants make it reasonable and proper to proceed beyond

the federal question to final judgment, id. At this stage,

the court will have invested time and resources on the

initial scope-of-employment question, during which it

“inevitably will confront facts relevant to the alleged

misconduct, matters that bear on the state tort claims

against the employee.” Jd. (citing United Mine Workers of

Am. v. Gibbs, 383 U.S. 715, 725 (1966)). As the constitu-

tional question is now squarely before the Court, see id. at

437 (O'Connor, J., concurring), the Court should now

affirm this portion of the Lamagno opinion.

Respondents acknowledge the Lamagno dissenters’

concern that to use the inevitable intermingling of evi-

dence bearing on both scope of employment and liability to

justify retaining jurisdiction is “tantamount to saying the

authority to determine whether a court has jurisdiction

over the cause of action supplies the very jurisdiction that

is subject to challenge.” Id. at 442 (Souter, J., dissenting).

But this view incorrectly characterizes the determination

the district court must make. The district courts have no

“authority to determine ... jurisdiction” following the

Attorney General’s certification. Congress conclusively

prohibited them from doing so, via § 2679(d)(2). See infra

Parts III(B)(1) and (2). Rather, the judicial review recog-

nized by Lamagno entails determining whether to override

the Attorney General’s conclusion, speaking as the federal

employer, that its employee was acting within the scope of

his employment. This is the question that becomes “inter-

mingled” with the merits of the underlying claims, and it

is a question of federal immunity, not jurisdiction. The

involvement of this federal question from the outset does

indeed justify Congress’ decision to leave jurisdiction with

the district court following its resolution. As the Lamagno

plurality noted, if the plaintiff necessarily relies on feder-

ally-created legal relationships, her claim should be

treated as one arising under federal law within the meaning

of Article III. Lamagno, 515 U.S. at 436 (citation omitted).

Since Congress further “federalized” the question by involv-

ing the United States Attorney General in the scope of

employment determination, the matter falls within Congress’

unquestioned Article III power to create federal questions by

statute, thereby creating federal jurisdiction.

Even the Petitioner agrees that the majority interpre-

tation of § 2679(d)(2) as prohibiting remand is “eminently

reasonable” with respect to certifications that are “author-

ized by the Westfall Act,” as this “gives effect to the adverb

conclusively, and it ‘foreclose[s] needless shuttling of a

case from one court to another.” (Petr.’s Br. 38 citing

Lamagno, 515 U.S. at 433 n.10.) Perhaps this is why

Petitioner never requested remand before the court or-

dered it, asking the court instead to lift the stay on discov-

ery so that the case could move forward against Haley in

federal court. (Tendered Order attached to Pl.’s Resp., R.

15.)

C. Questions of law and fact relevant to Ha-

ley’s immunity created federal jurisdiction

over this case from the outset.

Nonetheless, Petitioner now attempts to contrast the

present case as involving an “unauthorized” certification

and removal. Thus, Petitioner argues, there was never any

dispute for the district court to resolve other than whether

the alleged incident did in fact occur, and accordingly, the

court never had federal subject matter jurisdiction and

was required to remand under 28 U.S.C. § 1447(c) (App. C

hereto). As demonstrated above, this is simply not correct.

First, there is no such thing as an “unauthorized” certifi-

cation under the statute. Second, as demonstrated in the

Statement of the Case, questions of law were intertwined

with the facts relating to the scope of Respondent Haley’s

employment.

Even if Petitioner were correct, then in deciding solely

a factual dispute, the district court would still be deciding

whether the incident occurred for the very purpose of

determining whether the federal employee acted within

the scope of his federal employment. This decides the

distinctly federal question of immunity. Again, since scope

of employment “sets the line” according to Lamagno, 515

U.S. at 423, the key question is not whether the defendant

or the Attorney General denied the plaintiff’s allegations;

it is whether Barry Haley acted within the scope of his

employment, and is therefore entitled to immunity. This is

a uniquely federal question. Accordingly, the basis for

federal jurisdiction was present since the Attorney Gen-

eral’s certification, if not from the very moment the allega-

tions were filed. To conclude otherwise would be to accept

the unworkable premise that falsely-accused employees

are simply not entitled to immunity.

D. Federal jurisdiction was also present from

the outset under the federal officer removal

statute.

Additionally, the United States preserved a separate

basis for federal jurisdiction by requesting removal to

federal court under the federal officer removal statute, 28

U.S.C. § 1442 (App. C hereto), as well as the Westfall Act.

(Notice of Removal 1-3, R. 1.) As explained in detail above,

this Court has already determined that a federal officer

need not admit the plaintiff’s allegations to secure re-

moval. Willingham v. Morgan, 395 U.S. 402, 408 (1969)

(citing Maryland v. Soper, 270 U.S. 9, 32-33 (1926)).

Further, the “color of office” test of § 1442(a) and Willing-

ham’s required “causal connection” of the allegations to

the defendant’s official duties are easily met here, where

Petitioner’s own filings effectively established that her

relationship with Haley derived solely from his official

duties.

Ill. The Court of Appeals Had Jurisdiction to

Review the District Court’s Decisions.

A. The court of appeals enjoyed jurisdiction to

review the order of resubstitution under

the doctrines established by this Court in

Cohen and Waco.

1. The district court’s resubstitution order

is reviewable under the collateral order

doctrine announced in Cohen, as a rul-

ing denying governmental immunity.

Appellate jurisdiction typically arises from a “final

and appealable order” of a district court; i.e., appellate

review is barred until the trial court finally adjudicates all

of the issues presented to it by the litigants. See 28 U.S.C.

§ 1291; Behrens v. Pelletier, 516 U.S. 299, 305 (1996). An

exception to this rule exists, however, for those orders that

“(1) conclusively determine the disputed question, (2)

resolve an important issue completely separate from the

merits of the action, and (3) [are] effectively unreviewable

on appeal from a final judgment.” Will v. Hallock, 546 US.

__., 126 S. Ct. 952, 958 (2006) (citations omitted). While

the Court has stated that these conditions must be applied

in a “stringent” manner to avoid upsetting the finality

requirement contained in § 1291, see Digital Equip. Corp.

v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994), certain

classes of orders, by their very nature, automatically fall

within this so-called “collateral order doctrine.”

Among these are orders denying governmental employ-

ees the benefits of absolute immunity, Nixon v. Fitzgerald,

457 U.S. 731, 742 (1982), and qualified immunity, Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). The purpose of the con-

gressionally-established substitution process, as set forth

above, is to afford certain federal employees the benefits of

governmental immunity. The order entered by the district

court overturning the substitution decision of the Attorney

General under 28 U.S.C. § 2679(d)(2) and resubstituting

Respondent Haley as a party defendant in his individual

capacity effectively denied Respondent Haley the protection

of governmental immunity under the Federal Tort Claims

Act. The resubstitution order of the district court, therefore,

falls within the category of cases where immediate, inter-

locutory appellate review is available under Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).°

* The courts of appeal unanimously agree that a government

employee has a right of immediate appeal from an order of resubstitu-

tion under the Westfall Act. See Woodruff v. Covington, 389 F.3d 1117,

(Continued on following page)

2. Will v. Hallock permits review of the re-

substitution order, as a ruling denying

governmental immunity.

The recent opinion of this Court in Will v. Hallock, 546

U.S. __, 126 S. Ct. 952 (2006), does not alter the estab-

lished rubric for immediate appellate review of orders

denying governmental immunity. In Will, the respondent

first brought suit against the United States under the

FTCA, alleging negligence by government agents in the

search of her home. See Will, 126 S. Ct. at 956. The district

court dismissed the action, finding it barred under an

exception in the FTCA. Id. The respondent, during the

pendency of the FTCA action, brought a second claim

against the officers pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), asserting the agents’ conduct violated her rights of

due process secured by the Fifth Amendment. Asserting

the judgment bar of the FTCA, see 28 U.S.C. § 2676, the

agents sought dismissal of the Bivens claim once the

district court entered its order on the initial FTCA claim.

Will, 126 S.Ct. at 956. The district court denied this

request, and the Government appealed. Jd.

1123-24 (10th Cir. 2004) (citing Mathis v. Henderson, 243 F.3d 446, 448

(8th Cir. 2001); Cuoco v. Moritsugu, 222 F.3d 99, 105-06 (2d Cir. 2000);

Lyons v. Brown, 158 F.3d 605, 607 (1st Cir. 1998); Rodriguez v. Sarabyn,

129 F.3d 760, 764 (5th Cir. 1997); Coleman v. United States, 91 F.3d

820, 823 (6th Cir. 1996); Flohr v. Mackovjak, 84 F.3d 386, 390 (11th Cir.

1996); Melo v. Hafer, 13 F.3d 736, 741 (3d Cir. 1994); Kimbro v. Velten,

30 F.3d 1501, 1503 (D.C. Cir. 1994), cert. denied, 515 U.S. 1145 (1995);

Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 870

(9th Cir. 1992)) (finding that a resubstitution order falls within the

Cohen doctrine and that “every circuit court follows” the collateral order

doctrine in reviewing such orders).

While the Second Circuit affirmed the court below,

this Court ordered reversal for want of jurisdiction in the

court of appeals. Finding that the FTCA bar more accu-

rately equated to the common law doctrine of res judicata

or claims preclusion than to a denial of governmental

immunity, the Court determined that rejection of the

FTCA claim bar did not rise to the level of a collateral

- order under Cohen. See Will, 126 S. Ct. at 960.

The explanation offered by the Court in Will to sup-

port this conclusion demonstrates the inapplicability of its

holding to the case at bar. The protections for government

employees that Congress established in the Westfall Act do

not constitute the “avoidance of litigation for its own

sake,” but rather demonstrate an unequivocal judgment by

the legislative branch that employees of the federal gov-

ernment are entitled to absolute immunity for actions

performed in the scope of their employment. Jd. This

immunity protection is not “procedural in nature”; rather,

it is “timely from the moment” of the certification by the

Attorney General. /d. It depends not on some prior action

involving the same facts and circumstances — indeed, it is

not qualified on any precondition. at all, as the immunity

protection is absolute and immediate. See Lamagno, 515

U.S. at 423; cf Will, 126 S. Ct. at 960 (noting that applica-

tion of the judgment bar is dependent upon the bringing of

a prior action under the FTCA and a finding in favor of the

Government in the earlier action). The question is not one

of procedure, but one of immunity.

Like the purpose of qualified immunity is to encour-

age governmental employees to act without fear of consti-

tutional liability when an issue of law is unclear, the purpose

of the Westfall Act is to encourage governmental employees

to carry out their duties without fear of common law tort

liability. Will, 126 S. Ct. at 960. In the preamble to the

Westfall Act, Congress set forth its express desire to

accomplish just this task, stating that “the purpose of this

Act [is] to protect Federal employees from personal liabil-

ity for common law torts committed within the scope of

their employment....” Federal Employees Liability

Reform and Tort Compensation Act of 1988, Pub. L. No.

100-694, § 2(b) (1988). Quick resolution of the substitution

question is therefore “essential” to further the policy which

undergirds the immunity scheme established by the Act.

Will, 126 S. Ct. at 960.°

3. The order of resubstitution was review-

able as a separate, precedent order un-

der Waco.

Although Kespondents contend, infra, that the ex-

press language of the Act afforded the court of appeals

jurisdiction to review both the order of remand and the

order of resubstitution, jurisdiction to review the latter

also arose from the decision of this Court in City of Waco v.

U.S. Fid. & Guar. Co., 293 U.S. 140 (1934). Waco arose

from a district court’s decision dismissing a party’s cross-

claim and, then determining that the dismissal destroyed

* One can argue, as the Government did in Will, that application of

the FTCA judgment bar is similarly “essential” to further the immunity

policies of that statute. However, such an argument improperly

juxtaposes the questions of immunity and judgment. The issue of

substitution goes to the heart of the question of immunity: if substitu-

tion is proper the employee is immune; if not, there is no immunity. The

question of the judgment bar, by contrast, goes to the ultimate question

of the effect of a judgment, which can only arise after the question of

immunity has been finally answered. Once a judgment has been

entered, the congressional policy of affording immunity has already

been served, or one would not be discussing an FTCA judgment at all.

the court’s diversity jurisdiction, entering an order re-

manding the action to Texas state court. See id. at 141-42.

This Court found appellate jurisdiction to review the

dismissal of the cross-claim, notwithstanding the bar of

the then in effect version of 28 U.S.C. § 1447, on grounds

that the “decree of dismissal preceded that of remand” and

would be conclusive on the parties upon their return to

state court. Jd. at 143. The Court “disaggregated” the two

orders and proceeded to direct review of the initial dis-

missal. See Kircher v. Putnam Funds Trust, 547 U.S. __,

126 S. Ct. 2145, 2156 n.13 (2006).

Similar reasoning applies to the current claim. The

issue of resubstitution is “separate from and logically

precedes the question of remand” and can be reviewed

without effect upon the remand order.’ Aliota v. Graham,

984 F.2d 1350, 1353 (3d Cir.) (Alito, J.) (citations omitted),

cert. denied, 510 U.S. 817 (1993). The remand discussion

contained in the district court opinion reveals that the

decision to order remand was contingent upon a prior

finding of resubstitution. (See D. Ct. Mem. & Order, App.

D to Pet. Cert. 24a (“Having concluded that the United

States is not a proper party to this case, this Court must

now determine [the question of remand]”.).) This decision

thus fits squarely within the Waco rationale, and jurisdic-

tion for review of the resubstitution order is available

pursuant to the procedure contained in that opinion.*

" Assuming, of course, that the district court possessed the

necessary statutory authority to order the remand. Cf. infra Part III(B).

* Similarly to the application of the collateral order doctrine, the

courts of appeal agree that Waco permits review of the resubstitution

order. See Coleman v. United States, 91 F.3d 820, 823 (6th Cir. 1996);

Flohr v. Mackovujak, 84 F.3d 386, 389-90 (11th Cir. 1996); Hanna v.

(Continued on following page)

4. Kircher permits review of the resubsti-

tution order under Waco, because the

order did not resolve the entire action.

In the Kircher opinion, the Court addressed an argu-

ment by the respondent mutual funds that review was

available for the decision in that matter pursuant to Waco.

The Court, in addressing this argument, noted “[w]Jithout

passing on the continued vitality of that case [Waco] in

light of § 1447(d), we note that on its own terms it is

distinguishable.” Kircher, 547 U.S. __, 126 S. Ct. at 2156

n.13. The Court concluded that, because the “remand

order here cannot be disaggregated as the Waco orders

could,” the Waco rule did not permit review. Id.

First, nothing contained in the current version of 28

U.S.C. § 1447(d) undermines the rule set forth in Waco.

The version of the remand review statute in effect at that

time, 28 U.S.C. §§ 71 and 80, contained a materially-

identical bar to reviewing remand orders. See Thermtron

Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 349-50 (1976)

(“Sections 1447(c) and (d) represent the ... recodification

of §§ 71 and 80. They were intended to restate the prior

law with respect to remand orders and their reviewabil-

ity.”). As this Court explained in Thermtron, “[nlo changes

of law or policy are to be presumed from changes to the

language in the 1948 revision of the Judicial Code unless

an intent to make such changes is clearly expressed.” Jd.

Naegele, 72 F.3d 137 (unpublished table opinion), 1995 WL 723597

(10th Cir. 1995); Kimbro v. Velten, 30 F.3d 1501, 1503 (D.C. Cir. 1994),

cert. denied, 515 U.S. 1145 (1995); Jamison v. Wiley, 14 F.3d 222, 233

(4th Cir. 1994); Aliota v. Graham, 984 F.2d 1350 (3d Cir.) (Alito, J.), cert.

denied, 510 U.S. 817 (1993); Mitchell v. Carlson, 896 F.2d 128, 132 (5th

Cir. 1990).

at 350 n.15 (citation omitted). Because the text of the

current version of § 1447(d) contains no “clear expression”

of a change in law from the remand review statutes in

effect at the time of Waco, the rubric set forth in that

opinion remains unaltered in evaluating review of the

resubstitution order in the case at bar.

Second, Waco, unlike Kircher, is not distinguishable

here on its facts. The discussion in Kircher arose out of the

peculiar statutory mechanism contained in the Securities

Litigation Uniform Standards Act (““SLUSA”), 15 U.S.C.

§ 77p. The SLUSA statute provides not for a mechanism of

continued adjudication, but one of dismissal; i.e, if the

preclusion provision contained in the statute applies, the

case is automatically dismissed in its entirety. See Kircher,

126 S. Ct. at 2155 (“If the action is precluded, neither the

District Court nor the state court may entertain it, and the

proper course is to dismiss.”). Here, upon resubstitution of

Respondent Haley as a party defendant, there was some-

thing to return to state court — a bevy of state law em-

ployment-related torts against the Respondents. See

Mitchell v. Carlson, 896 F.2d 128, 133 (5th Cir. 1990)

(noting that by ordering resubstitution of the individual

defendant, a case exists for return to state court).

Further, in the case at bar, regardless of the FTCA

protection extended to Respondent Haley, the FTCA will

not bar continued action against Respondent Verdi. A

Kentucky state court judge could exercise his or her

discretion afforded under Ky. R. Civ. P. 21 and sever the

two claims, leaving an administrative action under the

FTCA and a state court claim proceeding against Respon-

dent Verdi. Unlike in Kircher, therefore, something did

exist “to remand to state court” following entry of the

resubstitution order. Kircher, 126 S. Ct. 2156 n.13.

B. Section 1447(d) presents no bar to review of

the remand order.

1. Section 1447(d) bars review only of re-

mand orders invoking grounds within

the district court’s authority to consider

under Section 1447(c).

The statutory language contained in § 1447(d), while

ostensibly absolute in its bar of appellate review, must be

construed in light of the language contained in § 1447(c).

See Thermtron, 423 U.S. at 345-46 (“These provisions, like

their predecessors, are in pari materia and are to be

construed accordingly rather than as distinct enactments.”

(quotation and citation omitted)). This Court thus held in

Thermtron that “only remand orders issued under

§ 1447(c) and invoking the grounds specified therein that

removal was improvident and without jurisdiction are

immune from review under § 1447(d).” Id. at 346. Applying

this rule, the Court concluded in Thermtron that the Sixth

Circuit possessed appellate jurisdiction to review a re-

mand decision based upon an overcrowded district court

docket. The Court found that the provision contained in

§ 1447(d) did not insulate from review district court

remands based on “grounds that seem justifiable to them

but which are not recognized by the controlling statute.”

Id. at 351.

That justice may move more slowly in some fed-

eral courts than in their state counterparts is not

one of the considerations that Congress has per-

mitted the district courts to recognize in passing

on remand issues. Because the District Judge

remanded a properly removed case on grounds

that he had no authority to consider, he exceeded

his statutorily defined power; and issuance of the

writ of mandamus [overturning the remand] was

not barred by § 1447(d).

Id.*

2. Section 2679(d)(2) barred the District

Court from directing remand in this ac-

tion, and accordingly there were no

grounds it had authority to consider

under § 1447(c).

In the case at bar, as in Thermtron, the district court

“exceeded his statutorily defined power” in ordering

remand. Thermtron, 423 U.S. at 351. Section 2679(d)(2)

expressly states that the certification by the Attorney

General “shall conclusively establish the scope of office or

employment for purposes of removal.” 28 U.S.C.

§ 2679(d)(2). While the district court enjoyed the ability to

review the scope of employment question under Lamagno,

“his statutorily defined power” did not grant to him the

ability to order a remand.

Congress, by expressly stating that the Attorney

General’s certification is “conclusive” as to jurisdic-

tion, has prohibited a district court from using its

disagreement with the Attorney General’s scope of

employment certification to deny jurisdiction and

* The Court subsequently recognized another circumstance that

fits within the Thermtron rule construing the statutory authority of

district courts and its impact upon appellate review. In Quackenbush v.

Allstate Ins. Co., 517 U.S. 706 (1996), the Court held that remand based

upon application of the abstention doctrine established by Burford v.

Sun Oil Co., 319 U.S. 315 (1943) was not a remand order described in

§ 1447(c), and therefore appellate review was available. See Quacken-

bush, 517 U.S. at 712.

so send the case back to state court where it

originated.

Aliota, 984 F.2d at 1357. The court could not legitimately

invoke the grounds specified in § 1447(c), that “removal

was improvident and without jurisdiction,” when Congress

had issued a blanket statement conclusively establishing

removal jurisdiction.”

Thus, the question is not whether there was “plain ...

legal error in ordering the remand,” for which appellate

review is unavailable. See Kircher, 126 S.Ct. at 2154

(citations omitted). The question is whether the district

court had authority to remand at all. Congress’ express

creation of non-discretionary, exclusive federal jurisdiction

for matters under § 2679(d)(2) simply afforded the district

* Revisions to § 1447(c) enacted by Congress subsequent to the

decision in Thermtron do not alter its directive that actions taken by a

district court without statutory authority are not immune from

appellate review. Moreover, it is clear from a review of the legislative

history to these revisions that Congress sought only to impose a thirty

day time limit on filing motions to remand based upon defects other

than a lack of subject matter jurisdiction, not to alter the existing

understanding of appellate review of remand orders. See H.R. Rep. No.

104-799, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 3417, 3418 (“The

intent of this amendment was to impose a 30-day limit on all motions to

remand except in those cases where the court lacks subject matter

jurisdiction.”). The statutory history reveals the language that in 1976

(at the time of Thermtron) read “improvidently,” became in 1988 “defect

in removal procedure,” and in 1996 became “any defect other than

subject matter jurisdiction,” is consistently designed to cover defects

that occur at the time of removal other than subject matter jurisdiction.

Here, no “defect” existed at the time of removal due to the statutory

language contained in § 2679(d)(2), placing the district court’s remand

order outside those covered by § 1447(c) under any of its modern

statutory phrasings.

court no statutory authority to order remand of this

“properly removed” action. Thermtron, 423 U.S. at 351."

Allowing district courts to override Congress’ statu-

tory directive with impunity would render the language of

§ 2679(d)(2) null and void. Enforcing this provision, by

contrast, does no injury to § 1447, which merely protects

the district courts’ discretion to remand in cases in which

removal jurisdiction is at issue. Subject to constitutional

boundaries which are not reached here (see Part II(A),

supra), Section 2679(d)(2) foreclosed any issue of removal

jurisdiction or remand in Westfall Act cases in which the

Attorney General has certified scope of employment. This

is the “clear statutory command” the Court recognized as

an exception to the presumption that Congress “is aware

of the universality of thle] practice of denying appellate

review of remand orders when Congress creates a new

ground for removal.” See Things Remembered, Inc. v.

Petrarca, 516 U.S. 124, 128 (1995) (citations omitted).

Unlike the bankruptcy removal/remand statute the Court

analyzed in Things Remembered and the SLUSA removal

provision addressed in Kircher, § 2679%d)(2) “cannot

comfortably coexist” with § 1447 under the interpretation

" District courts, like all inferior federal courts, are creatures of

statute, there being no express provision in the Constitution for the

creation of such courts without congressional action. See Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. __, 125 S. Ct. 2611, 2616-17

(2005) (“The district courts of the United States, as we have said many

times, are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute.” (quotation and citation

omitted)). Congress has the power to invest district courts with

“jurisdiction, either limited, concurrent or exclusive, and of withholding

jurisdiction from them in the exact degrees and character which

Congress may deem proper for the public good.” Cary v. Curtis, 44 U.S.

(3 How.) 236, 245 (1845).

Petitioner proposes. Id.; see also Kircher, 126 S.Ct. at

2153 n.8.

Contrary to Petitioner’s argument, the district court

lacked any authority to conclude it “had no original juris-

diction over this case,” as Congress expressly provided for

such jurisdiction. (Petr.’s Br. 12 (quoting Int'l Primate

Protection League v. Admins. of Tulane Educ. Fund, 500

U.S. 72, 87 (1991)).) Indeed, in Lamagno, all nine mem-

bers of the Court recognized that Congress intended the

language in question to remove from the district court the

authority to evaluate the propriety of removal, and thus,

remand. See supra Part II(A).”

No constitutional prohibitions exist to prevent the

exercise of the clear statutory language set forth by

Congress, and the lack of authority for the district court’s

action in this situation is clear. Therefore, the remand

order did not fall within the ambit of § 1447(c), and was

properly subject to review by the court of appeals and now

this Court.

* Denying effect to the “conclusively ... for removal” wording of

the statute would threaten the very analytical foundation of Lamagno:

if the majority had not interpreted the phrase to preclude remand, then

its discussion of potential Article III problems would have been moot,

along with the dissent. The alternative interpretation, that the Attor-

ney General's certification is conclusive for all purposes, would preclude

judicial review of the certification. Had Lamagno so held, then the U.S.

Attorney’s certification that Haley acted within the scope of his

employment would control, and the case would remain in district court

with the United States as a party. Under either interpretation, Haley

would be entitled to defend the action in a federal forum. If the word

“conclusively” is given any effect in the statute, the question of remand

should never arise.

CONCLUSION

The judgment of the Court of Appeals for the Sixth

Circuit should be affirmed.

Respectfully submitted,

C. THOMAS MILLER

Counsel of Record

J. DUNCAN PITCHFORD

RICHARD C. ROBERTS

WHITLOW, ROBERTS,

HOUSTON & STRAUB, PLLC

September 2006

App. 1

APPENDIX A

28 U.S.C.A. § 2679

(a) The autherity 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

cognizable 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

employee of the Government while acting within the scope

of his office or employment is exclusive of any other civil

action 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 employee. 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

action against an employee of the Government —

(A) which is brought for a violation of the Con-

stitution 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 individual is otherwise authorized.

proceeding brought in any court against any employee of

App. 2

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 service 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 Gen-

eral, 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 provisions of this title and all references thereto,

and the United States shall be substituted as the party

defendant.

(2) Upon certification by the Attorney General that the

defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a State court shall be

removed without bond at any time before trial by the

Attorney General 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 pro-

ceeding 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

App. 3

shall be substituted as the party defendant. This certifica-

tion of the Attorney General shall conclusively establish

scope of office or employment for purposes of removal.

(3) In the event that the Attorney General has refused to

certify scope of office or employment under this section,

the employee may at any time before trial petition the

court to find and certify that the employee was acting

within the scope of his office or employment. Upon such

certification by the court, such action or proceeding shall

be deemed to be an action or proceeding brought against

the United States under the provisions of this title and all

references thereto, and the United States shall be substi-

tuted 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 petition, the district court

determines that the employee was not acting within the

scope of his office or employment, the action or proceeding

shall be remanded to the State court.

(4) Upon certification, any action or proceeding subject to

paragraph (1), (2), or (3) shall proceed in the same manner

as any action against the United States filed pursuant to

section 1346(b) of this title and shall be subject to the

limitations and exceptions applicable to those actions.

(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

App. 4

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.

App. 5

APPENDIX B

28 U.S.C.A. § 1447

(a) In any case removed from a State court, the district

court may issue all necessary orders and process to bring

before it all proper parties whether served by process

issued by the State court or otherwise.

(b) It may require the removing party to file with its

clerk copies of all records and proceedings in such State

court or may cause the same to be brought before it by

writ of certiorari issued to such State court.

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

matter jurisdiction, the case shall be remanded. An order

remanding the case may require payment of just costs and

any actual expenses, including attorney fees, incurred as a

result of the removal. A certified copy of the order of

remand shall be mailed by the clerk to the clerk of the

State court. The State court may thereupon proceed with

such case.

(d) An order remanding a case to the State court from

which it was removed is not reviewable 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 other-

wise.

App. 6

APPENDIX C

28 U.S.C.A. § 1442

(a) Acivil action or criminal prosecution commenced in a

State court against any of the following may be removed

by them to the district court of the United States for the

district and division embracing the place wherein it is

pending:

(1) The United States or any agency thereof or

any officer (or any person acting under that offi-

cer) of the United States or of any agency thereof,

sued in an official or individual capacity for any

act under color of such office or on account of any

right, title or authority claimed under any Act of

Congress for the apprehension or punishment of

criminals or the collection of the revenue.

(2) A property holder whose title is derived

from any such officer, where such action or prose-

cution affects the validity of any law of the

United States.

(3) Any officer of the courts of the United

States, for any act under color of office or in the

performance of his duties;

(4) Any officer of either House of Congress, for

any act in the discharge of his official duty under

an order of such House.

(b) A personal action commenced in any State court by

an alien against any citizen of a State who is, or at the

time the alleged action accrued was, a civil officer of the

United States and is a nonresident of such State, wherein

jurisdiction is obtained by the State court by personal

service of process, may be removed by the defendant to the

App. 7

district court of the United States for the district and

division in which the defendant was served with process.

App. 8

APPENDIX D

28 C.F.R. § 15.3 Agency report.

(a) The Federal employee’s employing Federal

agency shall submit a report to the United States Attorney

for the district embracing the place where the civil action

or proceeding is brought fully addressing whether the

employee was acting within the scope of his office or

employment with the Federal Government at the time of

the incident out of which the suit arose, and a copy of the

report shall be sent by the employing Federal agency to

the responsible Branch Director of the Torts Branch, Civil

Division, Department of Justice.

(b) The appropriate Federal agency shall submit a

report to the United States Attorney for the district

embracing the place where the civil action or proceeding is

brought fully addressing whether the person was acting as

a covered person at the time of the incident out of which

the suit arose, and a copy of the report shall be sent by the

appropriate Federal agency to the responsible Branch

Director of the Torts Branch, Civil Division, Department of

Justice.

the earliest possible date, or within such time as shall be

fixed upon request by the United States Attorney or the

responsible Branch Director of the Torts Branch.

28 C.F.R. § 15.4 Removal and defense of suits.

(a) The United States Attorney for the district where

the civil action or proceeding is brought, or any Director of

the Torts Branch, Civil Division, Department of Justice, is

authorized to make the statutory certification that the

App. 9

Federal employee was acting within the scope of his office

or employment with the Federal Government at the time

of the incident out of which the suit arose.

(b) The United States Attorney for the district where

the civil action or proceeding is brought, or any Director of

the Torts Branch, Civil Division, Department of Justice, is

authorized to make the statutory certification that the

covered person was acting at the time of the incident out of

which the suit arose under circumstances in which Con-

gress has provided by statute that the remedy provided by

the Federal Tort Claims Act is made the exclusive remedy.

drawn if a further evaluation of the relevant facts or the

consideration of new or additional evidence calls for such

action. The making, withholding, or withdrawing of

certifications, and the removal and defense of, or refusal to

remove or defend, such civil actions or proceedings shall be

subject to the instructions and supervision of the Assistant

Attorney General in charge of the Civil Division or his or

her designee.

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.