Petition for Writ of Certiorari — Mackey v. Milam

\ Supreme Court, U.S.

(| FILED

98156 4 MAR 26 1999

No. 98-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

DOROTHY MACKEY,

Petitioner,

v.

DAVID W. MILAM, TRAVIS ELMORE,

AND UNITED STATES OF AMERICA,

Respondents.

Petition for Writ of Certiorari

To the United States Court of Appeals

for the Sixth Circuit

MARK E. WOJCIK PETER GOLDBERGER

John Marshall Law School Counsel of Record

315 So. Plymouth Court JAMES H. FELDMAN, JR.

Chicago, IL 60604 50 Rittenhouse Place

Ardmore, PA 19003-2276

(312) 987-2391 (610) 649-8200

Attorneys for Petitioner

March 1999

BY ee

pe

Saget

fa

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QUESTIONS PRESENTED

1. Does the United States Court of Appeals lack

jurisdiction under 28 U.S.C. § 1292(b) over an

interlocutory appeal where the district court’s

certification of the "controlling question of law" is not

contained in the order to be appealed, as provided in

§ 1292(b), nor in an amended version of that order, as

allowed by Fed.R.App.P. 5(a), but rather appears only in

a separate order entered over ten months later, when a

purported "collateral order" appeal of the same order

under 28 U.S.C. § 1291 has already been fully briefed

and is ready for argument?

2. Is it state law or federal law which determines whether

an officer in the United States Air Force was "acting

within the scope of his office or employment," as used in

28 U.S.C. § 2679(d), which is defined in 28 U.S.C. § 2671

in the case of members of the military to mean "acting in

line of duty," and thus whether a case alleging severe

sexual harassment by members of the military shall be

removed to federal court under the Westfall Act upon

certification of the United States Attorney?

LIST OF ALL PARTIES

The caption of the case in this Court contains the

names of all parties (Dorothy Mackey, David W. Milam,

Travis Elmore, and the United States).

-ii-

2 ee ee

TABLE OF CONTENTS

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PETITION

OPINIONS BELOW. ...................ssee0000 ici earaconobtamnosn 1

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STATUTES and RULES INVOLVED ......................002. 2

STATEMENT OF THE CASE

a edieneater at perk Saae Nees an ane a

i eR ae ee Jodi cikdcececsccveccceves 8

c. Statement of Lower Court Jurisdiction ............ 10

REASONS FOR GRANTING THE WRIT

1. This case presents an important and

unresolved question of federal appellate

jurisdiction: whether interlocutory order

jurisdiction exists where the district court

issues a "certification," many months after an

order has been appealed as "collaterally

final," that the order presents a "controlling

question of law," without having included that

certification in the order itself, as provided in

28 U.S.C. § 1292(b), or in an amended order,

as allowed under Fed.R.App.P. 5(a). ...............0000++ 11

2. The lower courts have wrongly assumed, in

conflict with this Court’s suggestion in

Gutierrez de Martinez, that removal of a tort

case against a federal military member from

state court to federal court turns on a state-

law rather than a federal-law standard of

whether that employee was acting "within the

scope" of his or her "employment," that is, "in

Pin OE it sic. ccckccsaledeb isc swilisisiettciaeees 20

CKING RPIRN cascicssasnsscsntenledscsish os ciusecductiocsbabicbartepbesbin 29

INDEX TO APPENDIX

A. Opinion of the Court of Appeals

B. Order of District Court (filed Dec. 11, 1996)

C. Order of District Court (entered May 27, 1997)

D. Order of District Court certifying issue

for interlocutory appeal

E. Order of Court of Appeals denying rehearing

-iv-

4 nse nes Seep eae alia

TABLE OF AUTHORITIES

Cases:

Baldwin County Welcome Center v. Brown,

466 U.S. 147 (1984) (per curiam) ...............:.:000 18

Burlington Industries, Inc. v. Ellerth, 524 U.S. --,

118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ......... 22, 28

California Coastal ’n v. Granite R Co.

S37 SS. S41 LIPS) cisin. Bs biedicoci dbase’ 6

Coopers & Lybrand v. Livesay,

AST UB. BGS (IGT) sossinsrcsiis cee po stebecsovccstses 15, 19

Day v. Massachusetts Air National Guard,

1999 WestLaw 44728 (1st Cir., Jan. 29, 1999) ..... 29

Faragher v. City of Boca Raton, 524 US. --,

141 L.Ed.2d 662, 118 S.Ct. 2275 (1998) ......... 22, 28

Feres v. United States, 340 U.S. 135 (1946) ................. 29

Foman v. Davis, 371 U.S. 178 (1962) .........s.scceseseeeeees 18

Griggs v. Provident Consumer Discount Co.,

GOP TD Te OO CRP OET eisai ccccanhsaSscdsiciicctascsissoscsvisinss 17

Gulfstream Aerospace Corp. v. Mayacamas Corp.,

BS Tae CBP) Cais eine sthsacesseiececocebonciecienséen 19

Gutierrez de Martinez v. Lamagno,

SIS US ATT CIGOS) sisicr ih Sei cohoeet 5, 23, 29

Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994) .............. 19

Moore v. United States, 48 Ct.Cl. 110 (1913) .............. 24

Schrob v. Catterson, 967 F.2d 929 (3d Cir. 1992) ........ 19

Smith v. Barry, 502 U.S. 244 (1992) .........scccsesseeseessesees 15

Sorrough v. United States, 155 Ct.Cl. 464,

foi BET BES 8) ROR Be rd eee een hy ae SRO 24

Thermstrom Products, Inc. v. Hermansdorfer,

LS Bote TB 8S SERRA KR Ree Be Peak Oo 14

Van Cowenberghe v. Biard, 486 U.S. 517 (1988) ......... 19

Williams v. United States,

350 U.S. 857 (1955) (per curiam) ............. 21, 23, 29

Constitution, Statutes and Rules:

10. COBRA FBG Cs BIE DS ocensccecisslascoswninasscidcvcscnees 28

DEG ICED tocdaliccscscnsscpnedestecinsodedciseonsojoenies 24

Oa RTE) bi psiscinccsecohcicabaptssoocteasetiscdaiibaniocnte 24

10 U.S.C. $§ 1201, 1203, 1204, 1207 ............c.csecssesoesee 24

BO USANA BSE eitacosciintssiovisdesennstbhayicevsiedaladplangdeones 27

TAA cies BE AAPA): tectonics sch dipscenpsassnistinbslsaebathenpancetstcsnses 2

Be aR TIE vis cictbidiinesssspannstininaleabetoal 6, 11, 18, 19

PO Nia BEMED) ‘cnsessccioncsttuonelodbascotes 2, 7, 11, 12, 15-19

BO BABE Wiisivtiveies isniiniessisitashbesdehideatpaglbebtcaonn: 23

SO Re GID) oo ictcnsncndessisittcssapliateaclesieve 7, 11, 21,23

TB see OTE Sesisicidiccie tien tides’ 7, 24, 26

Co ATTRIB ROTI). cesiccnstsencensascbioniscdies 5, 7, 11, 21-23, 29

Oe REE MUID Seccanccoscsascccdevqsbitphabinethi taaamenenbstoatabees+ed 24

SO RN BSE Ie Soskcicisccspschocssbccesinidackaehes ap tadbabbaaree 24

SO USO: BDO) sipccasers<bdsaralledite db Bissti ee pmareeoee 24

a Sa RD BAD srs sch ossediiinsoliphabbticsstbtnalitlpidedaladeaioires 27

Pe Ri AN pxscisapesesns seen aveieiedhastondilinivesviveieeste 27

FEAR ier Ok IAG) civcssnivdistsicths Demmntleeveabidiiechsoye 27

Fe A sees REE OG BI, Fa sss siatinchprsb rec ainacones senses 28

BeAr SAE a i wvdeis vi ddccnde db Sev ctbdbidb eokigahs dumb bei tideneee 27

32 C.F.R. § 728.21(d) ....... jesdsiesiaigeaidibadl ios Aiaei bile sve 24

FO Grae BF MIG): osnsciissclnidihidpesocdeniieeapiens 25, 27

Be Gn EicMes BP katt Acti dceacedcarieivocabiailbaleeiis dade» ove 25

FO Pi PATILE « BERNA) sac cccisisnivccegeioikoicsnaribataiioasradsancssans 12

FOOT PO DOR) so issecei oasis onigreeeiteees 4, 6, 11-14, 16, 17

POG TAs SECOND) scsnvisshinesbuhdolnsthe abet pb Riaeesteveeneasen l

FOR RAW.Es ONG) i ibn bh Gaia 5, 6, 12

-vi-

aka Nt asd

OE ET RT TET Gpersdieiner ste ee ant toni eset aeaaen 2

SOe RUIN eh ee... 10

Miscellaneous:

Army Reg. 600-8-1 939-5.a (1986) .......:csscssereeneeeneeens 25

Brief for the United States, Williams v. United States,

Né: 74, Ot: Tem 1955 inch aca 21, 26, 28

H.Rep. No. 100-700, 100th Cong., 2d Sess. (1988) ...... 25

Annot. (D.T. Kramer), Federal Tort Claims Act: when is

a government officer or employee "acting within the

sope of his office or employment" for purpose of

determining government liability under 28 USCA

§ 1346(b), 6 ALR Fed. 373 (1971) .......s.sssseseeseeeee 23

Legislation to Amend the Federal Tort Claims Act, Hearing

Before Subcomm. on Admin. Law & Gov’t Relations

of House Comm. on Jud., 100th Cong., 2d Sess.,

Serial 000,55 (ISGB): scccividicccsciscdeecctcicepenssivivcstacecccees 26

19 Moore’s Federal Practice § 203.32 (3d ed. 1998) ...... 17

20 Moore’s Federal Practice § 305.14 (3d ed. 1998) ...... 16

2 Op. Att’y Gen. 589 (1833) ..........cscsccecereserorsorssssessosere 24

T Op. Att'y Gene. 149 (1855) ...0.....ccsscccceoeessecsorncsnseoseses 24

17 Op. Att’y Gen. 172 (1881) ......scccccsaccocserssssccesceoosees 24

32 Op. Att'y Gen. 12 (1919) ..i...........cosrerecssosencresescoroeses 24

Annot. (J.F. Rydstrom), Federal Tort Claims Act: When

Is a Member of the Armed Forces "Acting in Line of

Duty" Within Meaning of 28 U.S.C.A. § 2671, 1 ALR

Fed. 563 (1969 & 1998 Supp.).......-.cscsccsssereeseseneeees 22

16 Charles A. Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure (2d ed.

-Vili-

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DOROTHY MACKEY respectfully petitions this

Court for a writ of certiorari to review the judgment and

decision of the United States Court of Appeals for the

Sixth Circuit filed and entered on September 10, 1998.

OPINIONS BELOW

The opinion of the Court of Appeals (per Siler, J.,

with Krupansky, J.; Cole, J., dissenting), is reproduced in

Appendix A. The decision is published at 154 F.3d 648.

The district court’s unpublished "Order" (a 17-page

memorandum opinion), denying the government’s

motion to dismiss under Fed.R.Civ.P. 12(b)(6) and

granting the plaintiff's motion to remand to state court,

dated December 10, 1997, filed December 11), is

reproduced as Appendix B (Susan B. Dlott, J.). The

district court’s Order dated May 21, 1997, and entered

May 27, 1997, granting in part the government’s motion

for reconsideration is Appendix C.

JURISDICTION

The judgment of the United States Court of

Appeals for the Sixth Circuit reversing the orders of the

district court was filed September 10, 1998. Appendix A.

The order denying petitioner Mackey’s timely petition for

rehearing was filed October 27, 1998. Appendix E. On

January 19, 1999, under No. A-580, Justice Stevens

granted petitioner’s application for an extension of time

to file this petition to and including March 26, 1999.

Rules 13.1, 13.3, 13.5, 30.1 (1997 rev.). Petitioner

invokes this Court’s jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION, FEDERAL

STATUTE, AND RULE INVOLVED

Section 1292 of the Judicial Code provides:

(b) When a district judge, in making in a

civil action an order not otherwise appeal-

able under this section, shall be of the

opinion that such order involves a control-

ling question of law as to which there is

substantial ground for difference of

opinion and that an immediate appeal from

the order may materially advance the

ultimate termination of the litigation, he

shall so state in writing in such order. The

Court of Appeals which would have juris-

diction of an appeal of such action may

thereupon, in its discretion, permit an

appeal to be taken from such order, if

application is made to it within ten days

after the entry of the order ....

28 U.S.C. § 1292(b).

part:

The Federal Tort Claims Act provides, in pertinent

(b) Subject to the provisions of chapter 171

[$§ 2671-2680] of this title, the district

courts ... shall have exclusive jurisdiction of

civil actions on claims against the United

States, for money damages ... for personal

injury ... caused by the negligent or

wrongful act or omission of any employee

ren o

of the Government while acting within the

scope of his office or employment, under

circumstances where the United States, if a

private person, would be liable to the

claimant in accordance with the law of the

place where the act or omission occurred.

28 U.S.C. § 1346. Section 2671 of title 28 adds:

Definitions

As used in this chapter [171] and sections

1346(b) and 2401(b) of this title, the term

"Federal agency" includes ... the

military departments ....

"Employee of the government"

includes ... members of the military or

naval forces of the United States ....

"Acting within the scope of his office or

employment", in the case of a member of

the military or naval forces of the United

States ... means acting in line of duty.

The Westfall Act amendments to the Federal Tort

Claims Act provide, in pertinent part:

(d)(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 .... 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 the United States shall be substituted

as the party defendant. ....

Rule 5 of the Federal Rules of Appellate Proce-

dure provides, in pertinent part:

(a) Petition for Permission to Appeal. An

appeal from an interlocutory order

containing the statement prescribed by 28

U.S.C. § 1292(b) may be sought by filing a

petition for permission to appeal with the

clerk of the court of appeals within 10 days

after the entry of such order in the district

court with proof of service on all other

parties in the district court. An order may

be amended to include the prescribed

statement at any time, and permission to

appeal may be sought within 10 days after

entry of the order as amended.

Fed.R.App.P. 5(a).

STATEMENT OF THE CASE

This petition presents two important questions

arising out of the government’s attempt to remove to

federal court, and there to defeat, a civil action brought

in Ohio by a former Air Force officer against her super-

visors, as individuals, alleging severe forms of sexual

harassment, including assault.

a. Procedural History

The petitioner, Dorothy Mackey, is a former

Captain in the United States Air Force. She brought suit

in December 1994 in the Montgomery County, Ohio,

Court of Common Pleas against respondents Milam and

Elmore, alleging that from the fall of 1991 until fall 1992

they subjected her to repeated and severe forms of sexual

harassment while serving as her superior officers. After

the case had proceeded for some 15 months in state

court, the United States Attorney filed certifications

under the Westfall Act, 28 U.S.C. § 2679(d)!. The case

was thus removed to the United States District Court for

the Southern District of Ohio, where the government

sought to substitute the United States as defendant.

The plaintiff-petitioner promptly filed a motion

for remand to the state court. The government then

moved to dismiss the case for failure to state a claim on

which relief could be granted, claiming intramilitary

immunity and other defenses. Had this motion been

granted, the result would likely have been a dismissal of

the action under the Feres doctrine (Feres v. United

States, 340 U.S. 135, 146 (1950)) and 28 U.S.C. § 2680.

The district court, exercising its authority under

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

determined that the complaint described conduct of the

defendants which was not “within the scope of [their]

office or employment" within the meaning of § 2679-

(d)(1) and therefore ordered that the United States not

be substituted, that the case proceed against the indi-

vidual defendants, and that it be remanded to state court.

Appx. B (12/10/96 order, filed 12/11/96). The court thus

dismissed the defendants’ motions as moot.

On reconsideration under Fed.R.Civ.P. 59(e), the

district court declined to revisit its fundamental holding

defining the "scope of employment" under Ohio law as

applied to the facts alleged in petitioner’s complaint.

1 See Statutes and Rules Involved.

-5-

However, the district court agreed with the government's

suggestion that discovery be allowed on the true facts

underlying the "scope of employment" question. Accord-

ingly, it vacated its order resubstituting the individuals as

defendants and the order remanding to state court. App.

C (5/21/97 order, entered 5/27/97). Despite having thus

prevailed in part on its Rule 59(e) motion, the govern-

ment on July 21, 1997, filed a notice of appeal from both

the district court’s December 11, 1996, and May 27, 1997,

orders. By order dated July 31, 1997, on concurrence of

the parties, the district court entered a stay of all

proceedings pending appeal.

At about the same time it filed its appellate brief,

which claimed "collateral order" jurisdiction under 28

U.S.C. § 12912, the government on September 30, 1997,

filed in the district court a "Motion to Certify ‘Inter-

locutory’ Decision for Appellate Review." The motion

expressly requested certification in order to seek leave to

appeal only the May 21, 1997, order (entered May 27)

partially denying reconsideration, and not the antecedent

December 10, 1996 order (entered December 11, 1996).

The government did not seek an amendment of the May

order to make it appealable, as provided in Fed.R.App.P.

5(a).? By Order filed April 22, 1998, Judge Dlott granted

the certification, in the form requested by the govern-

ment, on the issue of whether the individual respondents-

defendants were acting within the scope of their employ-

ment as determined under the respondeat superior

doctrine under Ohio tort law. App. D. By then, the case

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

(1949).

3 See Statutes and Rules Involved.

a

had been fully briefed in the court of appeals and oral

argument was about to be scheduled.

On appeal, a divided panel of the Sixth Circuit

reversed. App. A. The division of opinion was over the

proper outcome of the scope-of-employment question

under Ohio law. The court apparently assumed that the

issue of scope of employment, defined in the military

context under the Federal Tort Claims Act to mean "in

line of duty," 28 U.S.C. § 2671, is to be determined

under state law, even when that question determines

whether the federal court will have jurisdiction under id.

§ 2679(d), because that same phrase incorporates state

law to determine liability under id. § 1346(b). The

opinion implies that the government applied to the Sixth

Circuit under § 1292(b) for leave to appeal the May 21,

1997, order, as certified by the district court, App. A5,

although there is no reference to such a filing on the

appellate docket. Permission to appeal is granted in the

opinion. 154 F.3d at 650; App. AS. A timely petition

for rehearing was denied, Judge Cole dissenting. App. E.

On motion of the appellee (petitioner Mackey),

the Sixth Circuit by order dated December 14, 1998,

stayed its mandate to allow the filing of a petition for

certiorari.°

4 See Statutes and Rules Involved.

5 The court of appeals therefore did not reach the question of

collateral order jurisdiction under § 1291. See 154 F.3d at 850

n.1; App. A5.

6 The court in fact granted that stay to and including April 6,

1999, to allow for the filing of a certiorari petition pursuant to

a 60-day extension of time.

x F

i

b. Statement of Facts

Petitioner Dorothy Mackey joined the U.S. Air

Force through the Reserve Officer Training Corps in

1983. By 1991 she had been promoted to Headquarters

Squadron Section Commander of Aeronautical Systems

Division, Wright-Patterson Air Force Base (WPAFB), in

Dayton, Ohio. From the Fall of 1991 until her separation

in the Fall of 1992,’ petitioner was responsible for

programs designed to ensure physical fitness and readi-

ness of military personnel. During this period, according

to the complaint, petitioner was subjected to escalating

sexual harassment (including assault) by each of her

immediate supervisors, respondents Cols. David W.

Milam (then Inspector General and Chief of Staff for the

Aeronautical Systems Division at WPAFB), and Travis

Elmore (then Assistant Chief of Staff for Aeronautical

Systems Division of WPAFB and Assistant Inspector

General).

Both Milam and Elmore regularly leered at peti-

tioner’s body during debriefings, making particular effort

to ogle her legs even when she sat behind a meeting

table. Each made inappropriate comments toward peti-

tioner. Elmore often referred to petitioner’s breasts,

commenting once that he could see that the cold of his

office was affecting her nipples. Milam referred to peti-

tioner’s perfume and make-up, as well as to her appear-

ance in the skirted version of the military uniform,

asserting "This is what I prefer." Elmore, after ordering

’ The court of appeals’ opinion mistakenly states that

petitioner left the Air Force in 1994. She did seek

reinstatement in 1994. Because this case has so far proceeded

only on the pleadings, the entire statement of facts in this

petition consists of a narrative summary of the complaint.

-8-

her to stand and turn in the skirted uniform, stared

directly at her legs and stated, "Very nice, very nice."

Milam and Elmore also each invaded petitioner’s

personal space. Respondent Milam would stand so close

to petitioner she could feel his breath on her face and

neck. Milam often locked the door when meeting alone

with petitioner in his office. Elmore and Milam each

derided petitioner for her apparent distress, embarrass-

ment or protests in reaction to their misconduct.

Milam and Elmore each touched petitioner inap-

propriately on several different occasions. Milam often

squeezed petitioner’s arm or touched her back while she

talked. With a smirk, Milam acknowledged to petitioner

that he knew his "touching" made her uncomfortable.

In addition to stroking her arms and shoulders,

Elmore inappropriately placed his hands on petitioner's

neck, waist and leg on distinct occasions. Once, when

petitioner expressed to Elmore that she was not feeling

well, he approached her and put his hands on her waist,

around her back, thumbs pressing in on her stomach; he

then moved his hands down the front of her pants all the

way to her pubic area, despite petitioner's protests.

Separately, Elmore and Milam made unsuccessful

attempts to get petitioner to socialize with them. Ona

regular Sunday workday, Milam invited petitioner to

watch football any Sunday in his office. Elmore persist-

ently invited petitioner to lunch and out dancing.. Elmore

enticed petitioner to an off-base bar late one night under

a professional pretense. Because of her earlier refusals,

Elmore told petitioner he had her resume and would

review it with her, as she had requested months earlier

when she had begun to contemplate leaving the Air

Force. When petitioner arrived, Elmore had ordered

food and said he had left the resume in his car. In

addition to touching petitioner’s neck and back, Elmore’s

hands dropped below her waist. During this encounter,

Elmore asked petitioner to "slow dance," which she

refused. He later tried to prevent her from leaving the

bar by blocking the driver’s side door of her car, insisting

he follow her home, and even telling her he wanted a

night cap at her home, all of which, again, she refused.

Retaliating for her resistance to the harassment,

Milam undermined petitioner’s authority by not taking

requested measures against an insubordinate technical

sergeant under her supervision. Milam attempted to

humiliate her by making inappropriate comments about

her body in the presence of co-workers. When petitioner

reached out for support to a friend who was a civilian

employee, Milam ordered petitioner to cease contact

with that person. He also failed to provide common

professional support by refusing to attend a luncheon

where petitioner was to be honored as a nominee for

"Federal Woman Supervisor of the Year." Expressing his

displeasure with petitioner’s response to his behavior,

respondent Milam habitually whacked petitioner on the

back while talking, hard enough to knock her off balance.

Respondents’ concerted pattern of behavior

toward petitioner not only disrupted her ability to work

effectively, but also harmed her psychologically and

emotionally, ultimately forcing her to abandon a ten-year

career in the military.

c. Statement of Lower Court Jurisdiction Under

Rule 14.1(g) (ii)

The district court’s jurisdiction was invoked in this

case by removal from an Ohio state court on certification

of the United States Attorney under the Westfall Act, 28

-10-

U.S.C. § 2679(d)(2). Upon substitution of the United

States as sole defendant pursuant to that provision, the

district court would have had jurisdiction under 28 U.S.C.

§ 1346(b)(1). The certification was successfully chal-

lenged in the district court, App. B & C, but that court’s

order was reversed by the Sixth Circuit. App. A. The

government invoked the jurisdiction of the court below

under 28 U.S.C. § 1291 on the basis of the collateral

order doctrine, and alternatively under id. § 1292(b) by

certification of an interlocutory order presenting a

controlling question of law. App. D. This petition chal-

lenges the Sixth Circuit’s finding of § 1292(b) jurisdiction;

the "collateral order" issue was not reached below, App.

AS, and is therefore not ripe for consideration here.

REASONS I WRIT

1. This case presents an important and unresolved

question of federal appellate jurisdiction: whether

interlocutory order jurisdiction exists where the district

court issues a "certification," many months after an

order has been appealed as "collaterally final,” that the

order presents a "controlling question of law," without

having included that certification in the order itself, as

provided in 28 U.S.C. § 1292(b), or in an amended order,

as allowed under Fed.R.App.P. 5(a).

The court below lacked interlocutory jurisdiction

in this case, because the procedure followed by the

government and the order entered by the district court

did not comply with the clear requirements of 28 U.S.C.

§ 1292(b) and Fed.R.App.P. 5(a). This Court has long

adhered to the complementary doctrines that grants of

tt.

appellate jurisdiction must be strictly construed and that

implementing procedural rules must be scrupulously

followed. The Court should grant certiorari in this case

to establish that these principles apply with full force to

§ 1292(b), which grants jurisdiction to review interlocu-

tory orders under specified circumstances.

Because the order the government wished to chal-

lenge was never amended to contain the statutorily

prescribed certification, the court of appeals never

acquired jurisdiction to permit this interlocutory appeal.

The district court’s order denying the government’s

motion to dismiss and granting the plaintiff-petitioner’s

motion for remand was filed on December 10, 1996, App.

B, and entered as a judgment in the civil case the next

day. On December 24, rather than appeal, the govern-

ment filed a timely motion to alter or amend that

judgment under Fed.R.Civ.P. 59(e).8 The motion did not

request that the December 10 order be amended under

Fed.R.App.P. 5(a) to contain a certification under

§ 1292(b).? Ruling on the government's motion, the

district court noted that it had not previously addressed

the respondents’ motion to dismiss on the basis of "intra-

military immunity," because its judgment had been to

® The district court’s memorandum erroneously states that the

motion was filed January 31, 1997. App. C2. Were that so, the

motion would have been untimely, and likewise the later

notice of appeal. Fed.R.App.P. 4(a)(4)(C). The district court

docket shows December 24 as the filing date, however, within

ten business days of the entry of the judgment, as required.

January 31 was in fact the filing date of the government's reply

to petitioner’s answer to the motion.

® See Statutes and Rules Involved.

72.

remand to state court, where the judge had already

denied a motion to dismiss. However, the district court

stated that it found the state judge’s reasoning in

rejecting the application of the intramilitary immunity

doctrine persuasive, and declared that it would adopt

that analysis. App. C3.

The district court further agreed, in the reconsid-

eration order, that in ruling on the motion for remand it

should have considered the government'’s conditional

request for an evidentiary hearing to test the averments

of the complaint insofar as they bore on the scope of

employment question.!° In an order dated May 21, 1997

(filed May 23 and entered May 27, 1997), the court there-

fore vacated the order for remand and allowed discovery

in anticipation of a hearing. App. C4-7.

Again the government did not seek amendment of

the district court’s order under Rule 5(a) to include a

certification that any of the issues decided were "control-

ling questions of law" warranting allowance of an inter-

locutory appeal. Instead, nearly two months later, on

July 21, 1997, claiming that the December 11 and May 27

orders were collaterally final, the government filed a

notice of appeal to the Sixth Circuit.’ Over two months

10 Such hearings are appropriate where the court has ruled

that the complaint’s averments on their face take the

defendants’ conduct outside the scope of their employment,

even though the U.S. Attorney has certified otherwise.

Obviously, the government could not ensure its employees the

benefit of Westfall Act protection if substitution of the United

States as defendant could be defeated by the plaintiff's skill in

pleading alone.

11 Consistent with its claim of collateral finality only, the

government pointedly did not appeal from the judgment the

43.

after that, on September 30, 1997 -- the very eve of filing

its opening brief on appeal -- the government filed a

motion in the district court captioned "Motion to Certify

"Interlocutory’ Decision for Appellate Review." This

motion requested certification so as to seek leave to

appeal the May 21, 1997, order (entered May 27)

partially denying reconsideration; the motion made no

reference to the antecedent December 10, 1996, order

(filed December 11, 1996, as was a judgment). Again,

the government did not seek an amendment of the order

it wished to appeal, as provided in Fed.R.App.P. 5(a).

By Order filed April 22, 1998, over petitioner’s

objection, the district judge granted certification for

interlocutory appeal, in the form requested by the

government, of the issue whether the individual

respondents-defendants were acting within the scope of

their employment as determined under the respondeat

superior doctrine under Ohio tort law (assuming they

committed the acts alleged in the complaint). App. D.

By then, the case had been fully briefed in the court of

appeals, including the question of whether there was

"collateral order" jurisdiction, and oral argument was

about to be scheduled. The government may have filed

with the Sixth Circuit an application for permission to

appeal, although no indication of such a filing appears on

the docket.!? The court of appeals did not assign a new

(cont'd)

district court had entered, but rather from the two orders. Cf.

Thermstrom Products, Inc. v. Hermansdorfer, 423 U.S. 336,

352-53 (1976) (orders remanding to state court are neither

"final" nor "collateral" under § 1291).

12 The government did serve a copy of such a petition on

petitioner’s counsel, however. Petitioner does not seem to

have contested jurisdiction under § 1292(b) below.

An,

docket number, but seems to have referred the matter to

the merits panel which was about to hear the purported

collateral order appeal. In its published opinion, the

court granted the necessary permission, App. AS, and

addressed only the question certified by the district court.

In permitting the appeal and reaching the merits,

the court of appeals acted without jurisdiction, because

the district court never complied with Fed.R.App.P. 5(a).

Asa result, the order given review did not contain the

statement required by 28 U.S.C. § 1292(b), and the

petition to the circuit (if filed at all) was not filed within

the required time from the entry of the specified kind of

order. Grants of federal appellate jurisdiction must be

strictly construed, California Coastal Comm’n v. Granite

Rock Co., 480 U.S. 572, 579 (1987), and the applicable

procedural requirements are to be scrupulously followed.

Smith v. Barry, 502 U.S. 244, 248 (1992); see Coopers &

Lybrand v. Livesay, 437 U.S. 463, 474 (1978). This Court

should grant certiorari to establish that these principles

apply fully to interlocutory appeals by permission under

28 U.S.C. § 1292(b).

Section 1292(b) provides that:

When a district judge, in making in a civil

action an order not otherwise appealable —

under this section, shall be of the opinion

that such order involves a controlling

question of law as to which there is

substantial ground for difference of

opinion and that an immediate appeal from

the order may materially advance the

ultimate termination of the litigation, he

shall so state in writing in such order. The

Court of Appeals which would have juris-

at

diction of an appeal of such action may

thereupon, in its discretion, permit an

appeal to be taken from such order, if

application is made to it within ten days

after the entry of the order ....

(emphasis added). Further clarifying and elaborating the

procedures to be followed, the Federal Rules of Appel-

late Procedure state:

An appeal from an interlocutory order

containing the statement prescribed by 28

U.S.C. § 1292(b) may be sought by filing a

petition for permission to appeal with the

clerk of the court of appeals within 10 days

after the entry of such order in the district

court .... An order may be amended to

include the prescribed statement at any

time, and permission to appeal may be

sought within 10 days after entry of the

order as amended.

Fed.R.App.P. 5(a) (emphasis added). The statute and

rule, read together, are perfectly clear. If the district

judge includes in the interlocutory order the certification

language prescribed by § 1292(b), then an aggrieved

party may promptly (within ten days) seek permission

from the court of appeals to appeal.

As stated in Rule 5(a), if an interlocutory order

does not contain the required language, but a party

wishes to seek an interlocutory appeal, the party must

move to amend the order.!* There is no provision for the

'3 This may be done "at any time," although tardiness in

seeking certification may bear on the exercise of discretion

whether to grant the motion to amend. 20 Moore’s Federal

Practice § 305.14[1], at 305-12 (3d ed. 1998). Apparently, the

order could also be amended sua sponte.

-16-

PrN ist arte SNS Tien mae *

Site INS ocont

:

s

; 4

;

issuance of a separate order of certification. “In this

situation it appears that the court must issue an amended

order adding only the certification." 19 Moore ’s Federal

Practice § 203.32[1], at 203-96.1 to -97 (3d ed. 1998). If

the motion to amend is granted, the ensuing petition

seeks permission to appeal the interlocutory order, as

amended, and must be filed within ten days. The reason

for the rule is apparent: the petition under § 1292(b)

serves the function of a notice of appeal, and like a notice

it must be filed within a specified, short, jurisdictional

period of time after entry of the order to be appealed.

Because the government never sought to have the order

it wished to challenge amended, and that order never was

amended to contain the prescribed certification, no

petition was filed in this case within ten days of the entry

of the challenged order, either in its original form or as

amended. The court of appeals therefore never acquired

jurisdiction to allow this appeal.

The district court’s certification was contained in

an independent order, App. D, not in an amendment of

the order the government sought to challenge (which is

App. C), as required by Rule 5(a).’* Asa result, a

government petition for permission to appeal was not

filed within ten days of the entry of the order sought to be

appealed, as required by both the statute and the rule.

The court of appeals accordingly lacked jurisdiction to

grant the petition (if one was filed) and to decide the

I4 The reason the respondents failed to comply with the

mandated procedure may be that the order in question was

already under appeal, and it is well established that the district

court lacks jurisdiction to alter or amend an order that is the

subject of a pending appeal. Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 58 (1982).

By B

appeal under § 1292(b). 16 Charles A. Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Proce-

dure § 3929, at 376 (2d ed. 1996); see Baldwin County

Welcome Center v. Brown, 466 U.S. 147, 161 (1984) (per

curiam) (Stevens, J., dissenting).

The court of appeals’ decision cannot be salvaged

-- at least not in this Court -- by reference to the

collateral order doctrine under 28 U.S.C. § 1291, as

initially invoked by the government. The court of

appeals did not address this alleged alternative ground of

jurisdiction, App. A5; this Court, if it agrees that

§ 1292(b) jurisdiction was lacking, should therefore at

most remand for further consideration. Alternatively,

the Court might simply dismiss the alternative jurisdic-

tional claim under § 1291 as plainly without merit. The

original December 11, 1996, judgment remanding the

case to state court ended this case on the merits in

federal court and may have been appealable on that

basis, but the government did not appeal; rather, it

'S In addition to the untimeliness of the respondents’ petition,

the record raises another question about the court of appeals’

§ 1292(b) jurisdiction. The only order sought to be appealed

in the government’s motion for certification (as in its draft

petition for permission to appeal, as served on petitioner’s

counsel) was the May 27, 1997, order granting reconsideration

in part and denying it in part. The question addressed by the

court of appeals -- whether the conduct described in the state

court complaint was within the scope of the defendants’

employment under Ohio law -- was not decided in the May

order, however; on that ruling, the latter order merely refused

to reconsider. For this reason as well, the court of appeals

may have exceeded its jurisdiction under § 1292(b) when it

decided the government’s appeal. See Foman v. Davis, 371

U.S. 178 (1962).

-18-

:

,

;

:

sought reconsideration. As a result, the judgment was

rendered nonfinal by the district court’s agreement to

allow discovery and then a hearing on whether the indi-

vidual defendants, although accused of acting outside the

scope of their employment, had actually not done so, and

so were entitled to Westfall Act protection. App. C. An

appeal could then be brought only if the order was collat-

erally final, but it was not.

The notice of appeal filed in July 1997 (as

opposed to any § 1292(b) petition in April 1998) did

reference, and thus bring before the court of appeals,

both the December 1996 and May 1997 orders, including

the decision on scope of employment. But those rulings

cannot reasonably be described as separate from and

unrelated to the merits (respondents’ conduct being at

the heart of the scope issue, also), nor as having conclu-

sively determined the question of scope of employment in

the case, which are both requirements of the collateral

order doctrine. Van Cowenberghe v. Biard, 486 U.S.

517, 529 (1988); Gul erospace Corp. v. Maya-

camas Corp., 485 U.S. 271, 276 (1988); Coopers &

Lybrand, 437 U.S. at 468-69. Hence, the decision of the

court of appeals addressed an order which was not collat-

erally final. E.g., Jamison v. Wiley, 14 F.3d 222, 230-31

(4th Cir. 1994); Schrob v. Catterson, 967 F.2d 929, 936-38

(3d Cir. 1992). The court below lacked jurisdiction under

§ 1291, just as it did under § 1292(b).

For all these reasons, this Court should issue a

writ of certiorari to review and address the jurisdictional

defects in the court of appeals’ review of the district

court’s order refusing to reconsider the order deter-

mining under the law of Ohio that petitioner’s complaint

described conduct not falling within the scope of respon-

dents’ federal employment.

-19-

2. The lower courts have wrongly assumed, in conflict

with this Court’s suggestion in Gutierrez de Martinez,

that removal of a tort case against a federal military

member from state court to federal court turns on a

state-law rather than a federal-law standard of whether

that employee was acting "within the scope" of his or her

"employment," that is, "in line of duty."

The courts below, like virtually all other federal

courts, have mistakenly assumed that the scope-of-

employment judgment they must exercise in reviewing a

Westfall Act certification under 28 U.S.C. § 2679(d)'°

requires exclusively the application of state rather than

federal law. Because that critical error is based on a

misreading of this Court’s cases and of the controlling

statute, this Court should grant certiorari in order to give

guidance to the lower courts on this recurring and criti-

cally important question.

The Westfall Act, passed in 1988 to grant federal

employees even greater personal protection from suit

than they already enjoyed, and in particular to override

the holding of this Court in Westfall v. Erwin, 484 U.S.

292 (1988), states that:

Upon certification by the Attorney General

that the defendant employee was acting

within the scope of his office or employ-

ment 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 ... to the

‘© See Statutes and Rules Involved.

-20-

Pe ee gD Cae Oar RS

district court of the United States ....

(There,] the United States shall be

substituted as the party defendant.

28 U.S.C. § 2679(d)(2). The case is then handled as one

under the Tort Claims Act.

Subject to a variety of exceptions and defenses,

the FTCA waives sovereign immunity so as to allow suits

directly against the government for:

the negligent or wrongful act or omission of

any employee of the Government while

acting within the scope of his office or

employment, under circumstances where

the United States, if a private person,

would be liable to the claimant in accor-

dance with the law of the place where the

act or omission occurred.

28 U.S.C. § 1346(b). The Westfall Act, while echoing the

FTCA’s "scope of employment" language, does not

couple it with the "under circumstances ... in accordance

with the law of the place" qualification.

In 1955, this Court summarily decided that under

the plain language of § 1346(b), state not federal law

controls the question of the government's liability for the

acts of its employees under the Federal Tort Claims Act,

even when the federal worker for whose acts the govern-

ment might be held liable was a member of the military.

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

curiam).!’ The same phrase -- "acting within the scope of

\7 That decision was rendered against the position of the

Solicitor General that a uniform federal standard was both

necessary and consistent with the statute. Brief for the United

States, No. 24, Oct. Term 1955, at 35-36. It is not necessary in

the present case to revisit the question whether Williams was

a: 3

his office or employment" -- is used in the Westfall Act,

28 U.S.C. § 2679(d)(1), for a different purpose: to

determine when the federal court must assume jurisdic-

tion and the United States shall be substituted as the sole

defendant. Notably, when used in § 2679(d), the "scope

of office or employment" language is used without the

accompanying phrase, "in accordance with the law of the

place where the act or omission occurred," as found in

§ 1346(b). Nevertheless, the lower federal courts,

virtually without exception, have assumed, as did the

court below, that this jurisdictionally-determinative issue

in Westfall Act cases is to be decided solely by reference

to state law. See Annot. (J.F. Rydstrom), Federal Tort

Claims Act: When Is a Member of the Armed Forces

"Acting in Line of Duty" Within Meaning of 28 U.S.C.A.

§ 2671, 1 ALR Fed. 563 (1969 & 1998 Supp.).

This case illustrates the bizarre situation in which

vagaries of a state’s agency law can determine whether

the federal court sitting in a given district has jurisdiction

(cont'd)

correctly decided; as discussed below, if a minimum federal

standard is applied to the "line of duty"/"scope of employment"

question under § 2679(d), then § 1346(b) will never be invoked

in the case. Nevetheless, petitioner would be remiss if she did

not invite reconsideration of Williams, pointing out that the

decision in that case was issued literally without a word of

explanatory analysis. Moreover, just last Term, in the Title

VII context, this Court eloquently elaborated the reasons why

federal employment discrimination laws should implement

uniform, national standards of respondeat superior

determined as a matter of federal law, without varying from

state to state. See Burlington Industries, Inc. v. Ellerth, 524

US. --, 118 S.Ct. 2257, 2265-67, 141 L.Ed.2d 633, 648-50

(1998); Faragher v. City of Boca Raton, 524 U.S. --, 141

L.Ed.2d 662, 679-85, 118 S.Ct. 2275, 2285-90 (1998).

*.

Se ee ee NT en

over a case and whether the United States government

may or may not be sued. This Court has already

suggested that the perception of the lower courts

(followed in the courts below), that state law supplies the

rule of decision under § 2679(d), is incorrect. In

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

the plurality, without citing Williams, called the Westfall

Act scope-of-employment determination for removal and

substitution purposes a "federal question." 515 U.S. at

435. The dissenters did not disagree.!* The lower

federal courts, including the courts below, have appar-

ently assumed they are bound by Williams to use state

law in this fundamentally different context. See App. A,

B; see generally Annot. (D.T. Kramer), Federal Tort

Claims Act: when is a government officer or employee

"acting within the sope of his office or employment" for

purpose of determining government liability under 28 USCA

§ 1346(b), 6 ALR Fed. 373 (1971). This Court should

grant certiorari to examine this important question, and

to clarify that at least when some peculiarity of a state’s

application of the law of agency conflicts with a funda-

mental aspect of federal policy, as it does here, the

federal rule must control.

The lower courts’ assumption about the control-

ling authority of state law in the context of Westfall Act

certifications is all the more dubious in the case of

military defendants in state court suits, for whom

18 Without even hinting that "scope of employment" might be a

state law issue, the four Gutierrez dissenters viewed it as

merely a question going to jurisdiction and thus not a "federal

question" under 28 U.S.C. § 1331. 515 U.S. at 441-42. Justice

O’Connor, concurring, did not comment on the issue. Id. at

437-38.

28:

Congress specially provided in 28 U.S.C. § 2671 that

"scope of employment" means "in line of duty,"!? a

uniquely federal concept with a long history of statutory

usage and judicial construction in the context of military

benefits determinations. See, e.g., 10 U.S.C. §§ 1074a-

(a)(1), 1076(a)(2)(C), 1201, 1203, 1204; 38 U.S.C. § 1110,

50 U.S.C.Appx. § 593(b)(3). In that context, to fulfill the

remedial purposes of such legislation, the scope of the

phrase is very broad. See 32 Op. Att’y Gen. 12 (1919); 7

Op. Att’y Gen. 149 (1855).

Yet even in that generous setting, there is a fixed

star of limitation: an injury or disability which is due to

the servicemember or veteran’s own willful misconduct is

never viewed as incurred "in line of duty." As provided in

10 U.S.C. § 1207, "Each member of the armed forces who

incurs a physical disability ... that resulted from his inten-

tional misconduct ... shall be separated from his armed

force without entitlement to any benefits under this

chapter." Likewise as to veterans, under 38 U.S.C. § 105,

an "injury or disease incurred during active military,

naval or air service" cannot be "deemed to have been

incurred in line of duty" if it resulted from "the veteran’s

own misconduct ....". The Attorney General has repeat-

edly recognized this invariable limiting principle. See 32

Op. Att’y Gen. 12 (1919); 17 Op. Att’y Gen. 172 (1881);

2 Op. Att’y Gen. 589 (1833). So has the Court of Claims.

Sorrough v. United States, 155 Ct.Cl. 464, 295 F.2d 919

(1961); Moore v. United States, 48 Ct.Cl. 110 (1913).

The military and veterans’ departments agree with

this limitation. See, e.g., 32 C.F.R. § 728.21(d) (“line of

19 Section 2671 of title 28 is reproduced in the Statutes

Involved.

-24-

A a a a

NAA AER Sy PSS CGE ce

Te a ee

duty" rule for reservists’ medical and dental care eligi-

bility; expressly excluding conditions "incurred as a result

of the reservist’s own misconduct"); 38 C.F.R. § 3.1(m)

(definition of "in line of duty" for purpose of eligibility for

veterans’ benefits; excludes "result of the veteran’s own

willful misconduct"), id.(n) (defining "willful misconduct"

as requiring "conscious wrongdoing or known prohibited

action"), id.(y)(4) (eligibility of former prisoners of war

limited if detention or internment “was the proximate

result of the serviceperson’s own willful misconduct"); 38

C.F.R. § 3.301(a) (defining "line of duty" for purposes of

basic entitlement to veterans’ benefits, excluding cases of

death or disability resulting from "veteran’s own willful

misconduct"), accord, id.(b). Likewise, the Army regula-

tion governing the conduct of "line of duty investigations"

sets forth as one of its basic principles that "Injury or

disease proximately caused by the member’s intentional

misconduct or willful negligence is ‘not in LD -- due to

own misconduct." AR 600-8-1 139-5.a (1986).

The House Committee on the Judiciary, after

holding hearings on the Federal Employees Liability

Reform and Tort Compensation Act of 1988 (the "West-

fall Act") reported to the House -- without reference to

the law of any particular state -- that under those amend-

ments the "scope of employment" limitation included

"common law torts," but that "If an employee is accused

of egregious misconduct, rather than mere negligence or

poor judgment, then the United States may not be substi-

tuted as the defendant, and the individual employee

remains liable." H.Rep. No. 100-700, 100th Cong., 2d

Sess. 5 (1988). Requested during the hearing to provide

examples of situations where the Attorney General

would not certify a federal worker’s alleged misconduct

-25-

as being "within the scope" of his or her employment, the

Department provided a list of nine examples from

published cases, three of which involved sexual misbe-

havior. Legislation to Amend the Federal Tort Claims Act,

Hearing Before Subcomm. on Admin. Law & Gov't

Relations of House Comm. on Jud., 100th Cong., 2d

Sess., serial no. 55, at 129-30 (1988).

The Solicitor General! has not hesitated to

acknowledge the same limitation before this Court.

Discussing the meaning of the term “line of duty" in 28

U.S.C. § 2671, as a special definition of "scope of employ-

ment" under the FTCA, the government explained:

Congress has expanded the ‘line of duty’

concept in such legislation [granting benefits

to servicemembers or their dependents] to

reward them for the sacrifices caused by their

separation from civilian life and for the

understandable and desirable purpose of

making benefit payments to such servicemen

and their dependents in all situations except

where the injury or death (1) was the

proximate result of the serviceman’s own

misconduct ....

Brief for the United States, Williams v. United States,

No. 24, Oct. Term 1955, at 17.” If a particular state

chooses to treat willful misconduct as being within the

scope of a person’s employment under that state’s own

law, that doctrine cannot be accepted under the

© The Williams brief was filed by Solicitor General (later

Judge) Simon E. Sobeloff, and co-signed by Assistant Attorney

General Warren E. Burger.

“1 Tt is by no means clear, notwithstanding the decision below,

ni

a aa a aa as ae

ap ee ee See eo

Westfall Act -- certainly not in a case with a military

defendant -- without defeating a fundamental Congres-

sional understanding of the Act’s coverage, and the

firmly-settled meaning of its terms, nor without defeating

the limitations that the national military departments

have placed on the benefits available to their members

for almost 200 years. Indeed, if a uniform "willful

misconduct" exclusion is not read into § 2671’s use of the

term "line of duty," it is difficult to see what that statute

adds to the "scope of employment" limitation found in §

2679, which in turn must be read as incorporating, in all

cases, at least an "egregious misconduct" limitation.

As noted in 38 C.F.R. § 3.1(n), the concept of

"willful misconduct" in the military context must include

not only "conscious wrongdoing" but also "known prohib-

ited action." This bipartite standard follows, if nothing

else, from the culture of obedience that is necessary to

the success of the military mission. That obedience must

include compliance with the military departments’ strong

and unequivocal stands against sexual harassment and

abuse by superior officers. 10 U.S.C. § 1561(a)

(Congressional mandate that military is to investigate

complaints of sexual harassment); 32 C.F.R. § 51.4

(policy to eliminate sexual harassment), id. § 51.3 (defini-

tion, including conduct like that alleged by petitioner), id.

§ 51.5(b)(4),(6), id. § 191.4(f) (elimination of sexual

harassment by civilian employees of military); 32 C.F.R.

(cont'd)

that Ohio is such a state. The Ohioan district judge, analyzing

Ohio law, ruled that the respondents’ conduct, as alleged in

the complaint, was outside the scope of their employment,

App. B, and the dissenting Ohioan federal circuit judge

agreed. App. A10-A18. The 2-1 decision below was authored

by a Kentuckian. See App. Al.

a.

part 154, appx. H (sexual harassment is form of "sexual

misconduct" which is disqualifying for receiving security

clearance for sensitive classified material); cf. 10 U.S.C.

§ 893, UCMJ art. 93 (maltreatment, including severe

sexual harassment, is military crime).

Under all these laws and policies, it could not be

more clear that sexual harassment by a supervisor is not

in "line of duty" or "within the scope of [military] employ-

ment," because it is a form of "willful misconduct." As

the Solicitor General argued in Williams:

[Cjertainly where, as here, the regulations

reveal that a particular activity is definitely

not beneficial to the service and is not to be

undertaken, a court would not be justified in

holding the serviceman to be within his

employment while carrying on that precise

activity ....

Brief for the United States, Williams v. United States,

No. 24, Oct. Term 1955, at 35. This conclusion is the

same one that the Court reached last year and declared

in the context of national employment law. "The general

rule is that sexual harassment by a supervisor is not

conduct within the scope of employment." Burlington

Industries, Inc. v. Ellerth, 524 U.S. --, 118 S.Ct. 2257,

2267, 141 L.Ed.2d 633, 650 (1998); Faragher v. City of

Boca Raton, 524 U.S. --, 141 L.Ed.2d 662, 679-85, 118

S.Ct. 2275, 2285-90 (1998). This Court should grant the

requested writ of certiorari to settle this important point,

as it applies to control the federalization of a lawsuit

under the Westfall Act, and to correct the Sixth Circuit’s

erroneous invocation and questionable interpretation of

Ohio’s law of agency, which it applied to defeat the peti-

-28-

tioner’s right to have her day in court against the indi-

vidual respondents.*”

The question whether the use of state law to

determine the scope of liability, as provided in 28 U.S.C.

§ 1346(d), also requires the use of state law to determine

federal court jurisdiction under § 2679(d) is an important

question, worthy of this Court’s consideration, particu-

larly in view of the possible conflict between the decision

in Williams and the language of Gutierrez de Martinez.

Petitioner Mackey’s instant petition should be granted.

CONCLUSION

The court below erred in reversing the district

court and holding that on the facts alleged in petitioner’s

complaint, the defendants-respondents acted within the

scope of their employment under Ohio law, and thus "in

line of duty" under the Westfall Act, when they sexually

*2 In correcting the error below, the Court should also

disapprove the circuit’s reaching out, in an advisory opinion

that went beyond the bounds of dictum, to announce that the

doctrine of intramilitary immunity would apply to require

dismissal of this case on remand. App. A9. That question was

not then before the court of appeals and is not presented here.

Whether the Feres doctrine (Feres v. United States, 340 U.S.

135 (1946)) should be expanded to cover suits not only against

the government in federal court, but also against individual

former military supervisors in state court, was not before the

court below on the § 1292(b) interlocutory appeal it accepted.

(The district court did not reach it in the December 1996

order, but "adopt[ed] the reasoning" of the state trial judge’s

ruling on the question when ruling on reconsideration. App.

C3.) The question is a controversial one, on which courts have

differed. See Day v. Massachusetts Air National Guard, 1999

WestLaw 44728 (1st Cir., Jan. 29, 1999).

-29-

abused and harassed her while acting as her superior

officers in the Air Force. For the foregoing reasons, peti-

tioner DOROTHY MACKEY prays that this Court

grant her petition for a writ of certiorari to review the

judgment and opinion of the United States Court of

Appeals for the Sixth Circuit.

Respectfully submitted,

MARK E. WOJCIK PETER GOLDBERGER

John Marshall Law School Counsel of Record

315 So. Plymouth Court JAMES H. FELDMAN, JR.

Chicago, IL 60604 50 Rittenhouse Place

Ardmore, PA 19003-2276

(312) 987-2391 (610) 649-8200

Attorneys for Petitioner

March 26, 1999.

-30-

APPENDIX A

154 F.3d 648 :

78 Fair Empl.Prac.Cas. (BNA) 244

Dorothy MACKEY, Plaintiff-Appellee,

v.

David W. MILAM, Travis Elmore,

and United States of America,

Defendants-Appellants.

No. 97-3859.

United States Court of Appeals,

Sixth Circuit.

Argued June 11, 1998.

Decided Sept. 10, 1998.

Edward Himmelfarb (argued and briefed), Barbara L.

Herwig (briefed), U.S. Dept. of

Page 154 F.3d 649 follows

Justice, Civil Div., Washington, DC, for Appellants.

Joanne Jocha Ervin (argued and briefed), Dayton, OH,

for Appellee.

Before: KRUPANSKY, SILER, and COLE, Circuit

Judges. SILER, J., delivered the opinion of the court, in

which KRUPANSKY, J., joined. COLE, J. (pp. 652-

655), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

Plaintiff, Dorothy Mackey, initially filed this action in

Ohio state court alleging that defendants, David W.

Milam and Travis Elmore, her superior officers in the

United States Air Force, sexually harassed her. The

Department of Justice authorized representation of

Milam and Elmore, and the case was removed to federal

court with the United States substituted as defendant.

The district court, however, determined that under appli-

cable Ohio law, Milam and Elmore were not acting

within the scope of their employment when they allegedly

sexually harassed Mackey. It therefore rejected substitu-

tion of the United States as defendant and remanded the

case to the Ohio state court. On the United States’s

motion, the district court certified its scope of employ-

ment decision for an interlocutory appeal pursuant to 28

U.S.C. § 1292(b). For the reasons that follow, we find

that Milam and Elmore were acting within the scope of

their employment and therefore REVERSE the district

court’s order.

I.

Mackey was a Captain in the Air Force. Milam and

Elmore were her two immediate superior officers during

the times in question. Mackey alleges that on several

occasions, Milam and Elmore made inappropriate sexual

advances toward her.

In her complaint, Mackey states that at their first

meeting, Milam locked the door to his office while she

was alone with him. He often "ogled" her and made

comments when she wore her skirted uniform. He also

stood very close to her and inquired about her perfume

and make-up. Milam also engaged in "unwanted

touching" and made sexual comments in her presence.

Mackey made even more serious allegations against

Elmore in her complaint. She alleged that he often stared

at her breasts and made comments about her slender

-Appx. A2-

waist and her appearance in the skirted uniform. During

meetings, he leaned back in his chair so that he could see

under the table when she wore her skirted uniform.

During one meeting, after Mackey’s neck popped,

Elmore began massaging her neck. On another occasion,

he began touching her enkle and legs after she injured

her knee. At another time, he placed his hands around

her waist in order to "measure" it. During one meeting,

Mackey commented that she was not feeling well. At

that point, Elmore began replicating a pelvic exam by

moving his hands down Mackey’s stomach. Finally,

Elmore invited Mackey to a local bar late one evening

for the stated purpose of working on her resume. She

met him at the bar, but when she started to leave, he

initially stopped her and prevented her from entering her

car.

Mackey left the Air Force in 1994. She alleges that

both Milam and Elmore, who were still on active military

duty, subsequently gave unfavorable assessments of her

work to prospective employers.

In 1995, Mackey filed a complaint in Ohio state court

against Milam and Elmore in their individual capacities,

alleging various violations of Ohio common law and of

Ohio’s civil rights statute. The defendants moved for

summary judgment in state court on the basis of

intramilitary immunity, but the state court denied that

motion.

In the spring of 1996, the Department of Justice

authorized representation of Milam and Elmore. The

U.S. Attorney filed a certification that the defendants

were acting within the scope of their employment under

the Westfall Act, 28 U.S.C. § 2679(d)(2). The case was

removed to federal court with the United States

substituted as defendant. The case therefore became one

against the United States pursuant to the Federal Tort

Claims Act ("FTCA"), 28 U.S.C. § 2679(d)(1).

Page 154 F.3d 650 follows

The United States moved to dismiss on the ground that

FTCA claims for injuries that arise incident to military

service are barred by the Feres doctrine. Feres v. United

States, 340 U.S. 135, 71 §.Ct. 153, 95 L.Ed. 152 (1950).

The district court denied the United States’s motion to

dismiss and rejected the substitution of the United States

as defendant. On the scope of employment issue, the

court determined that under Ohio law, Milam and

Elmore were not facilitating or promoting the business of

the United States and were therefore not acting within

the scope of their employment. Therefore, Milam and

Elmore were not entitled to have the United States

substituted as defendant. The court noted that the case

had been litigated for some time in state court and

remanded the matter with Milam and Elmore resub-

stituted as defendants.

In response, the United States filed a Rule 59(e)

motion to alter or amend the judgment. The court

denied that motion in part and granted it in part in an

order dated May 23, 1997. The court refused to revise its

order concerning the scope of employment issue and

rejected the defendants’ alternative argument that they

were entitled to intramilitary immunity. However, the

court did agree that where facts are disputed, the court

must hold an evidentiary hearing to determine whether

the plaintiff has produced sufficient threshold evidence

that the events in question occurred before ruling on the

immunity issue. Therefore, the court vacated its earlier

order and ordered an evidentiary hearing, as requested

-Appx. A4-

by the United States, for the purpose of determining

whether there was evidence that the acts alleged by

Mackey in her complaint occurred.

The United States appealed and urged this court to

take jurisdiction under the collateral order doctrine. It

also filed a motion with the district court to certify the

scope of employment decision for interlocutory appeal

under 28 U.S.C. § 1292(b). The district court granted

that motion and framed the question for interlocutory

appeal as follows: “Whether the defendant Air Force

officers were acting within the scope of their employment

under Ohio law when they allegedly engaged in sexual

harassment of the Plaintiff, an Air Force officer who

worked for them."

Il.

[1] Under 28 U.S.C. § 1292(b), this court may, "in its

discretion, permit an appeal to be taken from" an inter-

locutory order where the district court has certified that

the order "involves a controlling question of law as to

which there is substantial ground for difference of

opinion and that an immediate appeal from the order

may materially advance the ultimate termination of the

litigation.". Because we agree with the district court that

the scope of employment issue is a controlling question

of law and that resolution of the issue would advance the

litigation, we take jurisdiction of this appeal under 28

U.S.C. § 1292(b).!

' Defendants also argue that this court would have

jurisdiction over this appeal under the collateral order

doctrine, even in the absence of the district court’s

certification. However, we decline to reach that

alternative argument.

-Appx. A5-

III.

[2] [3] [4] A scope certification by the U.S. Attorney

pursuant to 28 U.S.C. § 2679(d)(2) "does not conclusively

establish as correct the substitution of the United States

as defendant in place of the employee," Gutierrez de

Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227,

132 L.Ed.2d 375 (1995), but "provides prima facie

evidence that the employee was acting within the scope

of employment." RMI Titanium Co. v. Westinghouse

Electric Corp., 78 F.3d 1125, 1143 (6th Cir. 1996) (citation

omitted). Under the Westfall Act, "[w]hether an

employee was acting within the scope of his employment

is a question of law ... made in accordance with the law of

the state where the conduct occurred." /d. This court

therefore reviews the district court’s determination de

novo. Coleman v. United States, 91 F.3d 820, 823 (6th

Cir. 1996).

[5] The district court relied primarily upon the Ohio

Supreme Court’s decision in Byrd v. Faber, 57 Ohio St.3d

56, 565 N.E.2d

Page 154 F.3d 651 follows

584 (1991), a case in which a church pastor was accused

of engaging in nonconsensual sexual conduct with a

member of his congregation. The Ohio court held that

the church could not be held liable under a respondeat

superior theory of liability as the pastor was not acting

within the scope of his employment because his behavior

was not "calculated to facilitate or promote the business

for which the servant was employed.” /d. at 587 (citation

omitted). The district court in this case therefore relied

on Byrd to hold that Milam and Elmore were acting

outside the scope of their employment because sexual

harassment did not facilitate the business of the Air

Force.

-Appx. A6-

However, the Ohio Supreme Court in a subsequent

case made clear that the rationale of Byrd did not apply

to an employee’s sexual harassment of another employee

over whom he or she had supervisory power. In Kerans v.

Porter Paint Co., 61 Ohio St.3d 486, 575 N.E.2d 428

(1991), the plaintiff alleged that her direct supervisor had

sexually harassed her during the course of her employ-

ment. The court specifically rejected Porter Paint’s

reliance on Byrd and its argument that it could not be

held liable because it did not hire the employee to harass

female employees. /d. at 432.

In determining whether to impose liability

based on respondeat superior on an employer

for the sexually harassing acts of one of its

employees, federal courts have employed

traditional agency principles. Specifically,

they have held that where an employee is able

to sexually harass another employee because

of the authority or apparent authority vested

in him by the employer, it may be said that the

harasser’s actions took place within the scope

of his employment.

Id. (citations omitted). Where the harassment takes

"place during working hours, at the office, and was

carried out by someone with the authority to hire, fire,

promote and discipline the plaintiff," it will normally fall

within the employee’s scope of employment. /d. (citation

omitted). The Kerans court then adopted the above

standard, previously applied by federal courts, and held

that there was a genuine issue as to the harasser’s super-

visory powers and that dismissal] of the employer was

improper. /d.

-Appx. A7-

In the instant case, Milam and Elmore had direct

supervisory power over Mackey. Most of the alleged acts

took place during working hours on the base. Moreover,

Milam and Elmore were able to perpetrate the harass-

ment because their employer, the Air Force, had placed

them in a supervisory position. Therefore, they were

acting within the scope of their employment.”

In arguing that Milam and Elmore were acting outside

the scope of their employment, Mackey focuses on at

leaw: two events that do not precisely fit the above

profile. First, she argues that Elmore’s harassment of her

at a local bar was outside the scope of employment

because it occurred off base and after working hours.

However, we find that this isolated incident does not take

Elmore’s actions, as a whole, outside the scope of his

employment. He convinced Mackey to come to the bar

because he said he wanted to discuss her resume. Thus, it

is doubtful that he would have been able to "lure" her to

* The dissent suggests that reliance on Kerans is

misplaced and that this court should instead rely on

Osbome v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d 825, 829

(1992). In Osborne, which dealt with the liability of a

police department for the actions of an off-duty officer

who assaulted a civilian, the Ohio court stated that, "an

employer is not liable for independent self-serving acts of

his employees which in no way facilitate or promote his

business." Jd. However, that quoted language was taken

from Byrd, 565 N.E.2d at 588, which the Ohio Supreme

Court rejected in cases of sexual harassment of an

employee by her supervisor. See Kerans, 575 N.E.2d at

432.

-Appx. A8-

EE CO SOS TT LTE ne eT

the meeting had he not been in a supervisory position

over her.

Mackey also argues that the unfavorable job recom-

mendations given by the defendants after she left the Air

Force take their actions outside the scope of her employ-

ment because they were no longer her supervisors.

However, their opinions were solicited because they had

been her supervisors. Therefore, their opinions were

given only because the Air Force had placed them in

positions of authority. The fact that Mackey was no

longer on active duty is irrelevant to the determination.

Page 154 F.3d 652 follows

[6] We conclude that the individual defendants were

acting within the scope of their employment when they

allegedly harassed Mackey. Therefore, the United States

should be substituted as the defendant in this action, and

the matter should not be remanded to the Ohio state

court. Under the Feres doctrine, "the Government is not

liable under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are in the

course of activity incident to service." Feres v. United

States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152

(1950). Mackey’s allegations go "directly to the ’manage-

ment’ of the military; [they call] into question basic

choices about the discipline, supervision, and control of a

serviceman ... and [are], therefore, [ | allegation[s] about

which we are prohibited from inquiring." Skees v. United

States, 107 F.3d 421, 424 (6th Cir. 1997) (citing United

States v. Shearer, 473 U.S. 52, 58, 105 S.Ct. 3039, 87

L.Ed.2d 38 (1985)) (internal quotations omitted). See

also Stubbs v. United States, 744 F.2d 58 (8th Cir. 1984)

(holding that a claim against the United States for a

servicewoman’s suicide allegedly caused by her drill

sergeant’s sexual harassment was barred by Feres).

-Appx. A9-

REVERSED and REMANDED for action consistent

with this opinion.

DISSENT

R. GUY COLE, JR., Circuit Judge, dissenting.

I respectfully dissent from the majority’s opinion

because I disagree with its reading of Ohio law and

conclusion that the conduct alleged in this suit falls

within the defendants’ scope of employment. Therefore,

I do not believe that the United States should be

substituted as the defendant in this action.

The majority considers Kerans v. Porter Paint Co., 61

Ohio St.3d 486, 575 N.E.2d 428 (1991), a departure of

sorts from the general principles of Ohio law regarding

scope of employment, and bases its conclusion in this

case on only that one decision. In Kerans, the court

concluded that a jury could find a store manager’s

alleged sexual harassment to be within the scope of his

employment if the manager had supervisory authority

over the plaintiff and used such authority to cause the

plaintiff to feel compelled to endure his conduct in order

to remain employed. /d. at 432. I disagree with the

majority’s conclusion that Kerans is dispositive of the

issue presented in this case. The resolution of scope of

employment questions varies from case to case; we are

not bound by one decision’s determination that summary

judgment was not warranted in a particular factual

circumstance.

Although the majority opinion sets out the basic facts

of this case, I have included the district court’s synopsis

of the facts alleged in the complaint, as it presents a

somewhat fuller picture of the conduct and circumstances

-Appx. A10-

Le Se SE Pe ene e Ree Re

alleged. As taken from the district court’s opinion, the

factual scenario is as follows:

After graduating from the University of

Akron, Plaintiff, Dorothy Mackey, became a

commissioned officer in the United States Air

Force. In September 1991, Plaintiff was

assigned as Squadron Section Commander at

Wright-Patterson Air Force Base (Wright-

Patterson) in Dayton, Ohio. In this position,

Plaintiff reported to and interacted with the

Defendants in this action, Colonel David W.

Milam and Lt. Colonel Travis E. Elmore. As

Squadron Section Commander, Plaintiff was

responsible for the Weight Management

Program (WMP) and the Cycle Ergometry

Program (CEP), both designed to measure

and ensure the physical fitness and readiness

of military personnel.

Defendant Colonel Milam, retired, served

as Inspector General and Chief of Staff for

the Aeronautical Systems Division of Wright-

Patterson at the time the alleged incidents

occurred. Defendant Lt. Colonel Elmore

reported to Colonel Milam. His official title

at the time of these incidents was Assistant

Chief of Staff for the Aeronautical Systems

Division and Assistant Inspector General.

Both Defendants were Plaintiff's immediate

supervisors.

Plaintiff alleges various instances of sexual

harassment against both Defendants while she

served as Squadron Section Commander.

These allegations include

-Appx. All-

Page 154 F.3d 653 follows

charges of both verbal harassment and

physical contact that, if true, constitute

serious misconduct. Specifically, with regard

to Colonel Milam, Plaintiff alleges that:

(1) While Plaintiff was reporting to Colonel]

Milamin his office regarding the WMP

checks, the Colonel would often close and

lock the door behind Plaintiff; (2) During

these briefings and on several occasions

Colonel Milam would eye Plaintiff from head

to toe and make suggestive remarks such as

"This is what I prefer"; (3) Colonel Milam

would invade Plaintiff's "intimate zone" by

standing so close to her as to enable her to

feel his breath on her face and neck; (4)

Colonel Milam often touched Plaintiff by

placing his hand on her hand or squeezing her

arm while she briefed him on the WMP

program.

Plaintiff's allegations regarding Lt.

Colonel Elmore’s conduct are even more

severe. According to the Complaint, Lt.

Colonel Elmore made it clear early on in the

relationship that he was interested in

Plaintiff's body. He appeared to have had a

particular interest in Plaintiff's breasts, even

going so far as to comment on one occasion

that her erect nipples were "a natural

reaction" from the cold. Lt. Colonel Elmore

repeatedly made inquiries into Plaintiff's

waist size, even taking the liberty of placing

his hands around her waist on more than one

-Appx. Al2-

MS Sah SD a eg AT eb ence: Ee he Wiel 5S Liat a Senso

wn Baie Lola

occasion. Elmore would often make an

approving remark such as, "Very nice--very

nice," if Plaintiff were wearing her skirted

uniform, but Elmore allegedly lost interest if

she were wearing the pants uniform. Plaintiff

alleges that over time the Lt. Colonel’s

conduct became increasingly more physical.

Elmore once began to massage the back of

Plaintiff's neck after it had popped audibly in

his presence. One another occasion, after

Plaintiff had twisted her right knee and was

treated by a physician, Lt. Colonel Elmore

took the opportunity to examine the knee

himself.

Finally, in a truly bizarre and disturbing

event, Plaintiff alleges that Elmore began to

replicate a quasi-pelvic exam on Plaintiff

while in his office. Plaintiff mentioned to

Elmore that she was not feeling well. Lt.

Colonel Elmore allegedly got out of his chair,

walked over to Plaintiff, and placed both of

his hands on her stomach and pressed down.

He began to move his hands down the front of

her pants, with his thumbs up and fingers

wrapped around her back. Elmore continued

to move his hands downward, pressing in on

Plaintiff's abdomen despite her protests.

When the Lt. Colonel got to Plaintiff's pubic

area, Elmore said that she should see a

physician.

All of Plaintiff's allegations, with the

exception of one incident in August 1992,

occurred on the military base during working

-Appx. Al3-

hours. The August incident involved Elmore

allegedly calling Plaintiff at her apartment

around 10:00 p.m. from an off-base night spot

and insisting that she meet him there.

Plaintiff agreed to meet Lt. Colonel Elmore

after he mentioned that he could review her

resume which he had with him. When

Plaintiff arrived, Elmore was alone and had

placed an order for food. Elmore asked

about her neck and back, and he began

rubbing his hand up and down her back.

Plaintiff claims that on several occasions, his

hand dropped below her waist. After refusing

Lt. Colonel Elmore’s request to dance,

Plaintiff claims she attempted to leave, but

Elmore physically prevented her from

entering her car by leaning against the driver’s

side door. Thirty minutes later, Elmore

finally relinquished, and allowed Plaintiff to

drive home alone.

Mackey v. Milam, No. C-3-96-140, at 1-4 (S.D.Ohio Dec.

11, 1996).

The majority reasons that Milam and Elmore’s actions

were within the scope of their employment simply

because they had direct supervisory power over Mackey

and because most of the incidents occurred during

working hours. This reasoning is not supported by Ohio

law. In Kerans, the decision upon which the majority

relies, the Ohio Supreme Court did not hold that a super-

visor’s sexual harassment of an employee is per se within

a supervisor’s scope of employment by virtue of a super-

visor’s ability to sexually harass. Rather, the court held

that if a supervisor used his authority to cause the

subordinate employee to feel compelled to endure his

-Appx. Al4-

SANS cP Ac ENG i Rte LOA a «aR AON REN, tii Sats link, Sade Srabbdiaint elk

Page 154 F.3d 654 follows

advances in order to keep her job, then a jury could

reasonably find that the supervisor acted within the scope

of his employment. Kerans, 575 N.E.2d at 432.1 The

Kerans court went on to state that "[e]ven if [the super-

visor’s] activities took place outside the scope of employ-

ment, summary judgment against appellants’ claims

would not be proper," noting that the employer may be

liable for failing to take appropriate action if the

employer knows or had reason to know that its employee

posed a risk of harm to other employees. 575 N.E.2d at

432. The Kerans decision has been characterized as

holding that "the torts of co-workers predicated upon

sexual harassment are within the scope of employment if

the employer was negligent in not preventing that

malfeasance." Baab v. AMR Services Corp., 811 F.Supp.

1246, 1267 (N.D.Ohio 1993). Thus, the Kerans court did

not rely entirely upon the issue of scope of employment

to conclude that summary judgment was not warranted in

that case.

' The majority represents that the Kerans Court held that

when the harassment takes place during working hours,

at the office and by someone with the authority to hire,

fire, promote and discipline the plaintiff, "it will normally

fall within the employee’s scope of employment." See slip

op. at p. 650. The Kerans Court did not make that

statement. Rather, it summarized a federal district

court’s decision in which there were such circumstances.

See Kerans, 575 N.E.2d at 432 (summarizing holding of

Shrout v. Black Clawson Co., 689 F.Supp. 774 (S.D.Ohio

1988)).

-Appx. Al5-

I do not believe that Kerans, or Ohio law in general,

suggests that all an employee’s acts are within the scope

of employment simply because he is in a supervisory

position which enables him to engage in tortious conduct.

To say such leads to the conclusion that innumerable

tortious acts committed upon lower-ranking employees

by supervisors will be considered within the scope of

employment. In my mind, this reasoning and its

inevitable conclusion defy common sense. The fact that

Elmore and Milam would not have been able to commit

the alleged conduct absent their positions as supervisors

avoids the question presented. It goes without saying

that the conduct would not have occurred if Mackey had

not had an association with the defendants by virtue of

her employment. Our task is to determine whether these

supervisors were acting within their scope of employment

when they engaged in the alleged conduct.

In addition, the Ohio Supreme Court has more recently

restated its position regarding whether an employee’s

conduct falls within the scope of his employment, albeit

not in the context in which a supervisor was the tort-

feasor. See Osborne v. Lyles, 63 Ohio St.3d 326, 587

N.E.2d 825, 829 (1992). In Osborne, the Ohio Supreme

Court explained that in order for an employee’s conduct

to be considered within the scope of his employment, "the

behavior giving rise to the tort must be ’calculated to

facilitate or promote the business for which the servant

was employed....”"" 587 N.E.2d at 829 (citations omitted).

In general, an intentional and willful attack

committed by an agent or employee, to vent

his own spleen or malevolence against the

injured person,is a clear departure from his

employment.... Stated otherwise, an employer

-Appx. Al6-

is not liable for independent self-serving acts

of his employees which in no way facilitate or

promote his business.

Id. (citations and quotations omitted); see ake Henson v.

National Aeronautics and Space Administration, 14 F.3d

1143, 1147 (6th Cir. 1994) (stating that under Ohio law,

"an employee is not acting within the scope of employ-

ment if its acts are self-serving and in no way facilitate or

promote business"), amended on neneneing. 23 F.3d 990

(6th Cir. 1994).

Clearly, the conduct alleged here was intended to

neither facilitate nor promote the business of the United

States Air Force. The Air Force does not promote, facil-

itate or condone sexual harassment; in fact, it has

promulgated regulations prohibiting such conduct. In

Osborne, the Ohio Supreme Court offered further

guidance, drawing on its long-established precedent.

"When an employee diverts from the straight and narrow

performance of his task, the diversion is not an abandon-

ment of his responsibility and service to his employer

unless his act is so divergent that its very character severs

the relationship of employer and employee.”" Id. at 829

(citations omitted) (emphasis added);

Page 154 F.3d 655. follows

Mumford v. Interplast, Inc., 119 Ohio App.3d 724, 696

N.E.2d 259, 265 (1997) (stating that "an employee is

acting outside the scope of employment where the act has

no relationship to the employer’s business or is so

divergent that its very character severs the employer-

employee relationship"). It is clear to me that the nature

of the conduct alleged here is so divergent from the

defendants’ legitimate duties and work activities that it

severed the employer-employee relationship between the

Air Force and the defendants.

-Appx. A17-

In sum, I believe that the majority improperly extended

the holding of Kerans and disregarded other Ohio deci-

sions relevant to determining the issue of whether an

employee’s conduct falls within the scope of his employ-

ment. In my view, the majority opinion thus

misconstrues Ohio law. The Kerans decision, upon which

the majority relies, supports the imposition of liability

against a negligent employer by considering the

employer’s potential liability for an employee’s actions.

Here, the majority’s application of Kerans provides for

the opposite result. By considering the defendants’

actions to fall within the scope of their employment, the

majority enables the defendants, as well as their

employer--the United States--to escape liability because

the United States is immune from suit. Plaintiff is thus

left without a remedy for the egregious actions of the

defendants. I do not believe that Ohio law can be

construed to permit such an inequitable result. In my

opinion, the defendants’ conduct was plainly a personal

deviation and not within the scope of their employment

as defined by Ohio law. As a result, the United States

should not be substituted as the defendant in this action.

I would therefore affirm the district court’s reinstatement

of Milam and Elmore as defendants in this action.

-Appx. Al8-

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Dorothy Mackey, : CASE NO. C-3-96-140

Plaintiff,

vs. : Judge Susan J. Dlott

David W. Milam, et al.,

Defendants. : ORDER

This matter is currently before the Court on

Defendant's motion to dismiss for failure to state a claim

upon which relief can be granted pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.

I. FACTUAL BACKGROUND

After graduating from the University of Akron,

Plaintiff, Dorothy Mackey, became a commissioned

officer in the United States Air Force. In September

1991, Plaintitf was assigned as Squadron Section

Commander at Wright-Patterson Air Force Base

(Wright-Patterson) in Dayton, Ohio. In this position,

Plaintiff reported to and interacted with the Defendants

in this action, Colonel David W. Milam and Lt. Colonel

Travis E. Elmore. As Squadron Section Commander,

Plaintiff was responsible for the Weight Management

Program (WMP) and the Cycle Ergometry Program

(CEP), both designed to measure and ensure the physical

fitness and readiness of military personnel.

Defendant Colonel Milam, retired, served as

Inspector General and Chief of Staff for the Aeronaut-

ical Systems Division of Wright-Patterson at the time the

alleged incidents occurred. Defendant Lt. Colonel

Elmore reported to Colonel Milam. His official title at

the time of these incidents was Assistant Chief of Staff

for the Aeronautical Systems Division and Assistant

Inspector General. Both Defendants were Plaintiff's

immediate supervisors. Plaintiff alleges various instances

of sexual harassment against both Defendants while she

served as Squadron Section Commander. These allega-

tions include charges of both verbal harassment and

physical contact that, if true, constitute serious

misconduct. Specifically, with regard to Colonel Milam,

Plaintiff alleges that: (1) While Plaintiff was reporting to

Colonel Milam in his office regarding the WMP checks,

the Colonel would often close and lock the door behind

Plaintiff; (2) During these briefings and on several occa-

sions Colonel Milam would eye Plaintiff from head to toe

and make suggestive remarks such as "This is what I

prefer"; (3) Colonel Milam would invade Plaintiff's

"intimate zone" by standing so close to her as to enable

her to feel his breath on her face and neck; (4) Colonel

Milam often touched Plaintiff by placing his hand on her

hand or squeezing her arm while she briefed him on the

WMP program.

Plaintiff's allegations regarding Lt. Colonel

Elmore’s conduct are even more severe. According to the

Complaint, Lt. Colonel Elmore made it clear early on in

the relationship that he was interested in Plaintiff's body.

He appeared to have had a particular interest in

Plaintiff's breasts, even going so far as to comment on

one occasion that her erect nipples were "a natural

reaction" from the cold. Lt. Colonel Elmore repeatedly

made inquiries into Plaintiff's waist size, even taking the

liberty of placing his hands around her waist on more

-Appx. B2-

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than one occasion. Elmore would often make an

approving remark such as, "Very nice -- very nice," if

Plaintiff were wearing her skirted uniform, but Elmore

allegedly lost interest if she were wearing the pants

uniform. Plaintiff alleges that over time the Lt. Colonel’s

conduct became increasingly more physical. Elmore

once began to massage the back of Plaintiff's neck after it

had popped audibly in his presence. On another

occasion, after Plaintiff had twisted her right knee and

was treated by a physician, Lt. Colonel Elmore took the

opportunity to examine the knee himself.

Finally, in a truly bizarre and disturbing event,

Plaintiff alleges that Elmore began to replicate a quasi-

pelvic exam on Plaintiff while in his office. Plaintiff

mentioned to Elmore that she was not feeling well. Lt.

Colonel Elmore allegedly got out of his chair, walked

over to Plaintiff, and placed both of his hands on her

stomach and pressed down. He began to move his hands

down the front of her pants, with his thumbs up and

fingers wrapped around her back. Elmore continued to

move his hands downward, pressing in on Plaintiff's

abdomen despite her protests. When the Lt. Colonel got

to Plaintiff's pubic area, Elmore said that she should see

a physician.

All of Plaintiff's allegations, with the exception of

one incident in August 1992, occurred on the military

base during working hours. The August incident

involved Elmore allegedly calling Plaintiff at her apart-

ment around 10:00 p.m. from an off-base night spot and

insisting that she meet him there. Plaintiff agreed to

meet Lt. Colonel Elmore after he mentioned that he

could review her resume which he had with him. When

Plaintiff arrived, Elmore was alone and had placed an

-Appx. B3-

order for food. Elmore asked about her neck and back,

and he began rubbing his hand up and down her back.

Plaintiff claims that on several occasions, his hand

dropped below her waist. After refusing Lt. Colonel

Elmore’s request to dance, Plaintiff claims she attempted

to leave, but Elmore physically prevented her from

entering her car by leaning against the driver’s side door.

Thirty minutes later, Elmore finally relinquished, and

allowed Plaintiff to drive home alone.

As a consequence of these alleged incidents,

Plaintiff claims that she was so traumatized as to make

any prospect of working at the base impossible. Plaintiff

claims to have sought the help and support of many, but

to no avail. Plaintiff finally submitted an application for

the early separation program in May of 1992. Plaintiff's

final day of service in the United States Air Force was

September 29, 1992.

Plaintiff filed a complaint against Colonel Milam

and Lt. Colonel Elmore in their individual capacities in

the Montgomery County Court of Common Pleas on

December 5, 1994. The case proceeded in the state court

before Judge Gilvary for 16 months until the United

States Attorney for the Southern District of Ohio on

April 30, 1996, certified that Colonel Milam and Lt.

Colonel Elmore were acting within the scope of their

employment and, consequently, the United States was

substituted as Defendant. The United States, as

Defendant, filed a notice of removal with this court on

May 1, 1996, almost a year and a half after Plaintiff

originally filed her Complaint in state court. On May 31,

1996 the Plaintiff filed a motion to move this Court to

remand the present action to the Montgomery County

Court of Common Pleas. The United States, on July 12,

-Appx. B4-

Sa ee As en Oe Oe eee eS SE

1996, filed its Motion to Dismiss Plaintiff's Complaint.

Plaintiff prays for relief on the grounds of intentional

infliction of emotional distress, common law sexual

harassment, assault and battery, tortious interference

with contractual relations, tortious interference with

prospective business advantage, sex discrimination

(hostile environment), and wrongful separation

(discharge).

II. Discussion

A. Legal Standard of Review: Scope Certification

It is well established that when a suit is filed

against a federal employee based upon a tort committed

within the scope of his employment the civil action

against the employee is deemed to be against the United

States under the Federal Tort Claims Act (hereinafter

"the Westfall Act") and the United States is substituted

by operation of law as the sole defendant with respect to

any state law claims. 28 U.S.C. § 2679(d)(1)(2).

The Attorney General has delegated to the

United States Attorney the authority to determine when

federal employees are acting "within the scope of their

employment" for purposes of the Westfall Act. 28 C.F.R.

§ 15.3 (1989). On April 30, 1996, the United States

Attorney for the Southern District of Ohio certified that

both Colonel Milam and Lt. Colonel Elmore were acting

within the scope of their employment at the time the inci-

dents giving rise to this suit occurred. The United States

was thus substituted as the true defendant, and this

action was removed to federal court. Defendants then

filed their motion to dismiss.

Just last term the Supreme Court made clear that

a U.S. Attorney’s certification regarding scope of employ-

ment does not conclusively decide the matter. Martinez

-Appx. BS-

v. Lamagno, 115 S.Ct. 2227, 2236 (1995). The Court

refused to render the federal district courts powerless to

grant anything more than mere mechanical judgments in

support of the United States Attorney’s certification. In

Martinez the plaintiffs, citizens of Colombia, suffered

physical injuries and property damage when an allegedly

intoxicated United States DEA Agent collided into

plaintiffs’ car in Barranquilla, Columbia. Id. at 2229.

The United States Attorney certified that the agent was

acting within the scope of his employment at the time of

the accident. Due to an exception to the Federal Tort

Claims Act, the United States would be immune to suit

were it substituted as defendant for the DEA agent. Id.

at 2230. With this in mind, the Cv=:t held that:

"... the Attorney General’s certifi-

cation that a federal employee was

acting within scope of his employment .

. . does not conclusively establish as

correct the substitution of the United

States as defendant in place of the

employee.” Id. at 2236.

However, although federal courts are no longer

viewed as "rubber stamps" of executive actions, the Sixth

Circuit has held that a U. S. Attorney’s certification

serves as prima facie evidence that the employee was

acting within the scope of his employment. Coleman v.

United States, 91 F.3d 820, 823 (6th Cir. 1996). Whether

an employee was acting within the scope of his employ-

ment is a question of law, not fact, made in accordance

with the law of the state where the conduct occurred.

RMI Titanium Co. v. Westinghouse Electric Corp., 78

F.3d 1125, 1144 (6th Cir. 1996). Hence, under the

Westfall Act, the Court must look to Ohio state law to

-Appx. B6-

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determine whether Colonel Milam and Lt. Colonel

Elmore’s actions fell within the scope of their employ-

ment.

B. Ohio Scope of Employment Law

It is well established in Ohio that under the

doctrine of respondeat superior an employer will be held

liable when an employee commits a tort while he is acting

within the scope of his employment. Byrd v. Faber, 57

Ohio St.3d 56, 58 (1990). Where the tort alleged is inten-

tional, the test is whether the behavior giving rise to the

tort is "calculated to facilitate or promote the business for

which the servant was employed." Taylor v. Doctor’s

Hosp., 21 Ohio App.3d 154, 156-57 (1985). As outlined

below, Ohio courts have had ample opportunity to

address the issue of what actions fall within the scope of

one’s employment. In general, scope of employment is a

fact specific inquiry, with the court reaching differing

conclusions depending upon the identity and practices of

the defendant, as well as the particular actions alleged.

The Ohio Supreme Court has held that an

employer will not be liable for independent and self-

serving acts of his employees which in no way facilitate or

promote the employer’s business. Byrd, 57 Ohio St.3d at

59. In Byrd, the plaintiffs requested that their church

reverend provide their family with needed marital and

personal counseling. During the course of this

counseling, Reverend Faber allegedly forced Mrs. Byrd

to engage in unwanted sexual activity with him. The

Byrds brought action against Reverend Faber and his

employer, the Ohio Conference of Seventh-Day

Adventists, for inter alia, intentional infliction of

emotional distress and nonconsensual sexual conduct.

Id. at 586.

-Appx. B7-

Despite the fact that counseling falls within the

scope of a pastor’s clerical duties, the Supreme Court

held that Reverend Faber acted outside the scope of his

employment by engaging in nonconsensual sexual

conduct with the plaintiff. In upholding the dismissal of

the plaintiffs’ claim against the Church, the Supreme

Court of Ohio focused on the nature of the defendant-

employer: "The Seventh-Day Adventist organization in

no way promotes or advocates nonconsensual sexual

conduct between pastors and parishioners." Id. at 60-61.

In other words, the church could not be held liable for

the independent and self-serving acts of the pastor which

in no way facilitated or promoted the beliefs of the

Seventh-day Adventist organization. The Court was

careful to focus on both the actions complained of and

the identity of the defendant-employer. The Court noted

that the church did not hire the pastor to rape, seduce, or

otherwise physically assault members of the congrega-

tion. Id. at 60. The Court concluded that the Church, as

an institution, could not be held liable for such coercive

and harassing behavior. Id.

Defendants characterize Byrd as an aberration of

Ohio law and instead rely on an opinion from this

district, Crithfield v. Monsanto Co., 844 F.Supp{.] 371

(S.D. Ohio, W.D. 1994). In Crithfield, the plaintiff

alleged a pattern of harassment by a defendant-co-

worker which included exposing himself to her, unwel-

comed sexual advances, requests for sexual favors,

nonconsensual sexual fondling, and displays of sexually

explicit photographs. Id. at 372-373. The court rejected

the employer’s argument that it could not be held liable

for the independent and self-serving acts of its employee.

In an effort to distinguish Byrd, the Honorable Judge

-Appx. B8-

Speigel noted that the Byrd analysis revolves around the

fact that the defendant was a church, "raising among

other problems First Amendment questions." Id. at 374

(emphasis added).

Although the Court agrees with the Defendants

that Byrd did not create a per se rule that sexual harass-

ment always falls outside the scope of a supervisor’s

employment, the Court cannot conclude that Byrd is an

aberration. Rather, the two cases illustrate that Ohio

courts are sensitive to the identity of the defendant-

employer and the context in which the allegedly harassing

behavior arose. As Crithfield readily points out,

churches can be distinguished from private employers.

Most significantly, the harassing conduct displayed in

Byrd is antithetical to the doctrines, teachings, and raison

d’etre of a religious institution. ! 3

' Defendants rely on Davis v. Black, 70 Ohio App.3d 359,

591 N.W.2d 11 (1991) where a parish secretary was

allegedly harassed by the church’s pastor. The trial court

found that the pastor could not have been acting within

the scope of his employment since sexual harassment fell

outside the duties of a pastor. The Court of Appeals

reversed and distinguished Byrd along employment and

religious lines:

This case involves the church as an employer

and its responsibility for sexual harassment by

the person to whom it delegated supervisory

(and hiring) authority. Byrd involves the

strictly religious aspects of the church and its

relationship to parishioners (not employees)

and its pastor. Id. at 365.

-Appx. B9-

When the Ohio Court of Appeals visited the scope

of employment issue in the context of sexual harassment,

it was found to be of considerable significance that the

defendant-employer was the State of Ohio. Szydlowski v.

Ohio Department of Rehabilitation and Correction, 79

Ohio App.3d 303, 305 (1992). In Szydlowski, plaintiffs

were female inmates at an Ohio correctional facility who

alleged that they engaged in sexual] aciivity with a certain |

state employed psychological aide hired to provide

counseling to inmates. The Court of Appeals found Byrd

directly on point and indistinguishable from the facts ;

before it. Id. at 305. "Like the church, the state does not

promote or advocate sexual conduct, much less

nonconsensual sexual conduct, between its employees

and inmates at penal institutions, nor did it hire the

psychological aide to engage in any type of sexual contact

or conduct with female inmates..." Id. at 306.

Finally, the Sixth Circuit has recently had the

opportunity to consider the issue of scope certification

under Ohio law, although not in the context of alleged

(continued)

This Court notes only that Davis deals with the

Church in the context of an employer. Not only is the

identity of the employer a significant consideration in the

court’s analysis, but so are the practices and actions of

that employer. Davis illustrates that the context in which

the alleged sexual harassment occurred is as significant as

the identity of the defendant-employer. The church in

Davis more closely resembled a private entity employer

than the church as an institution. The relationship

between employer and pastor, and pastor and employee

was sufficient enough to impute liability on the church.

-Appx. B10-

sexual harassment. Nonetheless, the Sixth Circuit’s

insight proves valuable to the case at hand. In RMI

Titanium Co. v. Westinghouse Electric Corp. supra,

RMI, a federal subcontractor, brought suit against the

Department of Energy (DOE) and one of its employees

for wrongful termination of a government contract.

RMI, 78 F.3d at 1125. The Sixth Circuit upheld the

Attorney General’s certification that the DOE employee

was acting within the scope of his employment at the time

of the complained of actions. More importantly for

purposes of the instant case, the Court, in a final

footnote, commented on the type of scope certification

cases relied upon by RMI:

The cases relied upon by RMI all deal with

sexual and racial harassment by supervisors

of employee-plaintiffs (and one case involving

the sexual activities of a priest with a

parishioner). Not surprisingly, in these cases,

the courts held that the employee-defendants

were not acting within the scope of their

employment. Id. at 1144.

The Sixth Circuit recognized that when a plaintiff-

employee alleges sexual or racial harassment, the court

should be more willing to find the defendant to be acting

outside the scope of his employment. This would seem

especially appropriate when the alleged sexual harass-

ment occurs in the context of a church or military setting.

C. Analysis

Relying on the reasoning of the cases mentioned

above, the Court believes that the courts of Ohio would

hold that when a commanding military officer sexually

harasses a subordinate while carrying out military duties,

that officer’s actions will be considered outside the scope

-Appx. B11-

of his employment under respondeat superior principles,

and the United States may not be substituted as

defendant for the officer under the Federal Tort Claims

Act. The Military, like the Church and the State, is an

employer wholly distinguishable from the private entity

employer. The United States Air Force, or any other

branch of the Armed Services for that matter, in no way

promotes, facilitates, or condones sexual harassment in

any form. The United States Air Force has set forth

extensive regulations that prohibit exactly the kind of

conduct Plaintiff alleges against Defendants here.

Additionally, in light of the recent high profile efforts of

the military to deal with the problem of sexual harass-

ment between-commanding officers and subordinates in

the military, it could hardly be said that the United States

Armed Services encourages or advocates that its

members engage in sexual discrimination or harassing

conduct.

As has been discussed, the identity and practices

of the defendant-employer play a prominent role in a

court’s determination of whether the employee was

acting within the scope of his or her employment.

Although Byrd involved a religious institution, the Ohio

Court of Appeals found that "there is no reason to apply

a lesser standard to a claim against the state..." Id. at

306. The State in Szydlowski was likened to the Church

and distinguished from the private entity employer.

Additionally, the Sixth Circuit has noted that a court

should be more sensitive in the area of scope of employ-

ment when a plaintiff's complaint alleges instances of

sexual harassment. Obviously Byrd does not stand alone

on its facts, and its holding can be extended to the

Military. The Military is a system based, to a large

-Appx. B12-

degree, upon a rigid hierarchi{c]al command structure.

Military superiors tempted to exploit the vulnerability of

their subordinates should not believe that their sexually

harassing conduct will be protected under the auspices of

the Federal Tort Claims Act.

On the facts alleged in this case, the Court finds

that Defendants’ conduct fell outside the scope of their

employment at the time the incidents giving rise to this

suit occurred and that the United States may not be

substituted as defendant in this action: Plaintiff has

alleged numerous instances of sexually harassing

behavior and conduct which contravene outlined military

procedure. Although all but one of the alleged instances

of harassment and coercion occurred while Colonel

Milam and Lt. Colonel Elmore were on duty, in no way

can their conduct be characterized as calculated to facili-

tate or promote the business of the United States govern-

ment. The Defendants’ actions can only be seen as inde-

pendent and self-serving. Plaintiff alleges several counts

of sexual harassment including sexually charged

comments, lascivious stares, inappropriate and unwanted

touching, locking of office doors at private meetings, and

encounters where Plaintiffs "intimate zone" was

invaded. On these facts, the scope of employment test in

Ohio fails to be satisfied. Because the United States Air

Force did not hire Defendants to sexually harass female

subordinates and since such behavior is not condoned by

the Defendants’ employer, the Defendants’ alleged

actions did not occur within the scope of their employ-

ment. This suit must now proceed against Colonel

Milam and Lt. Colonel Elmore in their individual

capacity and liability may not be imposed upon the

United States government as the substituted defendant.

-Appx. B13-

D. Status of Federal Court Jurisdiction

This Court must now decide whether to rule on

Defendants’ Rule 12(b)(6) motion and let this action

proceed or to remand the case back to state court for

final determination. Defendants argue that this case

should not be remanded to state court, but should

proceed to final judgment before this Court. Plaintiff

asserts that a case should be remanded to state court

when, contrary to the Attorney General’s certification,

the actions of individual defendants have been found not

to be within the scope of their employment.

Defendants rely heavily on Part IV of the recent

U.S. Supreme Court case of Martinez v. Lamagno, supra,

in support for their proposition that no "grave Article III

problem" is raised when a court determines that the

Defendants were not acting within the scope of their

employment. Martinez, 115 S.Ct. at 2236. "Whether the

employee was acting within the scope of his federal

employment is a significant federal question." Id.

Defendants, however, fail to mention that in Martinez

the suit was originally brought in federal court and was

not removed from state court. Here, Plaintiff originally

filed her complaint in a state court which has already

expended a considerable amount of time and resources

on this case. Over a year and a half elapsed between the

filing of Plaintiff's Complaint and the substitution of the

United States as defendant. Judge Gilvary has ruled on

numerous motions and has presided over an in-chambers

pretrial scheduling conference resulting in the issuance of

a Final Pretrial Order and an Amended Pretrial Order.

Unlike in Martinez, the state courts here have a consid-

erable interest in this litigation.

-Appx. B14-

Siteabiatiea

SN RR INE

Furthermore, Part IV of Martinez is not control-

ling on this court. In an opinion by a markedly divided

Court, Justice O’Connor, the deciding vote, refused to

join Part IV of the decision on the grounds that the

question was not properly presented before the Court.

This left an evenly divided Court with the still undecided

issue of what to do in cases where the federal district

court overturns the Attorney General’s scope of employ-

ment certification.

The Sixth Circuit has yet to rule on whether a case

should be remanded to state court or be allowed to

proceed when the district court finds that the Attorney

General’s scope certification is incorrect and resubsti-

tutes the originally named defendant. See, Coleman v.

United States, 91 F.3d 820, 822 n.2 (6th Cir. 1996). A

split among the circuits exists on the issue, and decisions

favoring remand include: Nasuti v. Scannell, 906 F.2d

802, 814 n.17 (1st Cir. 1990) and Haddon v. United

States, 68 F.3d 1420, 1426 (D.C. Cir. 1995). However,

Garcia v. United States, 88 F.3d 318 (Sth Cir. 1996) and

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

denied, 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37

(1993), both reach the contrary result and find a suffi-

cient basis for federal court jurisdiction. The Court

believes that the cases supporting remand where the

federal district court finds the original defendants to have

been acting outside the scope of their employment to be

the more well reasoned. Therefore, Plaintiff's motion to

remand must be granted and the case remanded to state

court.

E. Conclusion

Based upon a full review of both parties’ briefs,

and for the reasons stated above, the Court finds that the

-Appx. B15-

Defendants did not act within the scope of their employ-

ment during the incidents alleged in Plaintiff's complaint.

Therefore, Defendants’ Motion to Dismiss is remanded

to the state court.

IT IS SO ORDERED.

s/Susan J. Dlott

Susan J. Diott

United States District Judge

wey age

December 10, 1996 ;

-Appx. B16-

APPEN C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DOROTHY MACKEY,

Plaintiff, : Case No. C-3-96-140

v. ‘District Judge Susan J. Diott

DAVID W. MILAM, : ORDER GRANTING IN

et al., : PART AND DENYING

: IN PART DEFENDANT’S

Defendants. : MOTION FOR

: RECONSIDERATION

This matter is before the Court on Defendant’s

Motion for Reconsideration (doc. #18) of the Court's

December 11, 1996 Order (doc. #16). For reasons more

fully set forth below, the Court hereby GRANTS IN

PART AND DENIES IN PART the Defendant’s

Motion.

This matter is also before the Court on

Defendant's Motion to Stay Proceedings (doc. #19). In

light of this Court’s decision today on the Defendant’s

Motion for Reconsideration, the Defendant’s Motion to

Stay Proceedings is hereby DENIED AS MOOT.

I. BACKGROUND

The factual background of this case is set forth

fully in this Court’s Order of December 11 (doc. #16).

In the December 11 Order, the Court found that,

assuming the facts in the complaint were true, the named

Defendants, Colonels Milam and Elmore, were not

acting within the scope of their employment when they )

engaged in sexually harassing behaviors toward their

subordinate, the Plaintiff, Dorothy Mackey. On January

31, 1991, the Defendant United States of America,! filed

a Motion for Reconsideration. Specifically, the

Defendant sets forth five grounds upon which judgment

should be amended:

1. The Order fails to decide whether Plaintiff's

case is barred by the doctrine of intramilitary

immunity.

2. The Order improperly applies Ohio law in

deciding whether the Colonels were acting

within the scope of their employment.

Oe eee ee hee ee

| Initially, the Court notes that the United States

may not be a party to this action at this time. Both

parties seem to contend that the Court’s December 11

Order did not resubstitute Colonels Milam and Elmore

as Defendants. However, the Court’s December 11

Order specifically states that "[t]his suit must now

proceed against Colonel Milam and Lt. Colonel Elmore

in their individual capacity and liability may not be

imposed upon the United States government as the

substituted defendant" (doc. #16 at 17). By this

language, the Court resubstituted the Colonels as

Defendants in this action.

However, because the Plaintiff does not seriously

contest the motion on the basis of the status of the

United States as a nonparty, and because the effect of

this Order is to reinstate the United States as a party, the

Court will allow the filing of the Motion to Reconsider by

the United States.

-Appx. C2-

3. The Order fails to provide a hearing on the

scope of employment issue, as requested by

the United States.

4. The Court failed to Order the resubstitution of

the Colonels as Defendants upon finding that

they were acting outside the scope of their

employment.

5. The Order improperly remands the case to state

court.

Each argument will be addressed in turn.

II. ANALYSIS

A. The Doctrine of Intramilitary Immunity

The doctrine of intramilitary immunity was not

addressed in the Court’s December 11 Order because the

doctrine is not dispositive. The Court reviewed Mont-

gomery County Common Pleas Court Judge James J.

Gilvary’s decision on this issue and found the reasoning

persuasive.

Judge Gilvary found the so-called Feres doctrine

to be inapplicable to this case for many of the same

reasons that this Court found the Colonels’ alleged acts

not to be within the scope of their employment. Thus,

the Court adopts the reasoning of the Decision, Entry

and Order Overruling in Part and Sustaining in Part

Defendants’ Motion to Dismiss, Case No. 94-4249.2

B. Application of Ohio Law

This point needs little elaboration. The Court’s

December 11 Order cites RMI Titanium Co. v. Westing-

house Electric Corp., 78 F.3d 1125, 1143 (6th Cir. 1996),

? The copy filed with the Court does not bear a

date or docket number.

-Appx. C3-

for the proposition that Ohio law governs in the deter-

mination of whether the Colonels were acting within the

scope of their employment. A review of this cited auth-

ority reveals that this proposition is explicitly stated by

the Sixth Circuit in RMI Titanium, and no other auth-

ority cited in the United States’ Motion compels the

Court to find otherwise.

C. Evidentiary Hearing

The United States next contends that it condition-

ally requested an evidentiary hearing on the issue of

whether the Colonels acted within the scope of their

employment. The Plaintiff argues that the United States

agreed in a pretrial conference that no evidentiary

hearing was necessary to determine the scope of employ-

ment issue (doc. #20 p.5) and that the Court should

accept as true the allegations contained in the complaint

for the purposes of the motion to dismiss. In its initial

Order, the Court’s recollection mirrored that of the

Plaintiff's and therefore the Court did not order an

evidentiary hearing on the scope of employment issue.

However, an examination of the transcript from

the pretrial conference reveals that the United States

only conditionally agreed to accept as true the allegations

contained in the Plaintiff's complaint. If the Court could

find that the Colonels were acting within the scope of

employment even assuming as true the allegations

contained in the complaint, then the United States was

satisfied to forego its right to an evidentiary hearing. If,

however, the Court were to find that the Colonels were

not acting within the scope <i their employment, the

United States would ask for an evidentiary hearing on the

-Appx. C4-

OF OU oe TAA Ng ne) Nowe owe

3

Upon reconsideration, the Court finds that the

United States requested an evidentiary hearing if the

Court concluded that the Colonels were acting outside

the scope of their employment, and the Court holds that

the United States is entitled to an evidentiary hearing on

this issue. Hueton v. Anderson, 75 F.3d 357, 361 (8th

Cir. 1996) (finding that where Westfall Act scope of

employment issue is disputed, the district court must

conduct an evidentiary hearing to determine all facts

relevant to the immunity question); Arthur v. United

States, 45 F.3d 292, 296 (9th Cir. 1995) (finding that a

district court reviewing Westfall Act certification must

identify and resolve any disputed issues of fact necessary

to its determination of the scope of employment issue);

Kimbro v. Velten, 30 F.3d 1501, 1508 (D.C. Cir. 1994)

(finding that, where necessary, the district court must

hold an evidentiary hearing to determine scope of

employment issue), cert. denied, 115 S.Ct. 2584 (1995);

issue.

* Counsel for the United States stated the

following:

[Bjut I think to a certain extent, if you decide on

the facts that the plaintiff presented that they were

acting outside the scope, then the United States

would request an evidentiary hearing to determine

what actually happened, realizing that, in effect,

[the evidentiary hearing] is going to be the whole

nine yards. It’s going to be basically the trial.

Both counsel for the Plaintiff and counsel for Colonel

Milam indicated understanding of the United States’

statement in their own subsequent statements.

-Appx. CS5-

Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994) (finding

that if Westfall Act certification is based on a different

understanding of the facts than that contained in the

complaint, the plaintiff should be allowed discovery and

an evidentiary hearing may be required); Wood v. United

States, 995 F.2d 1122, 1133 (1st Cir. 1993) (finding that

where employee denied alleged incidents ever occurred,

district court must hold an evidentiary hearing to decide

whether the incidents occurred.).*

While the Court is not inclined to reconsider the

merits of its determination of the scope of employment at

issue in this case, the Court is inclined to give considera-

tion to the determination of the truth of the factual }

allegations set forth in the Plaintiff's complaint upon

which its determination of the scope of employment issue

was based. Upon conclusion of the evidentiary hearing,

the Court will make findings of fact and will apply those |

* The Sixth Circuit authority on the requirement

of an evidentiary hearing on the scope of employment

issue does not directly address whether an evidentiary

hearing is required when the district court determines

that the employee acted outside the scope of his or her

employment. See RMI Titanium, 78 F.3d at 1144 (no

hearing is necessary if the district court finds that the

employee acted within the scope of employment).

However, the Court can find no instance in which

contested facts were the basis for a finding by the district

court that an employee acted outside the scope of

employment and its own research leads to the inevitable

conclusion that an evidentiary hearing is required in this

case if requested by the United States.

-Appx. C6-

t

a

a

facts to the rules of law set forth in its December 11

Order. If the Plaintiff proves the allegations contained in

her complaint, then the Colonels will be resubstituted as

Defendants and the case will be remanded to state court.

Accordingly, the Court hereby VACATES that

part of its December 11 Order remanding the case to

State court.

D. Order of Resubstitution of Colonels as Defendants

Initially, the Court notes that, contrary to what the

Defendant alleges in its Motion, the Court did order the

resubstitution of the Colonels as Defendants. The

Court’s December 11 Order specifically states that "[t]his

suit must now proceed against Colonel Milam and Lt.

Colonel Elmore in their individual capacity and liability

may not be imposed upon the United States government

as the substituted defendant." (doc. #16 at 17). By this

language, the Court resubstituted the Colonels as

Defendants in this action.

However, at this time, the Court hereby

VACATES that part of its decision of December 11

ordering the resubstitution of the Colonels as Defendants

pending discovery by the Plaintiff and the United States,

and pending the evidentiary hearing ordered above.

E. Remand to State Court

The Court agrees that remand to state court prior

to the Court's findings pursuant to the evidentiary

hearing ordered above is inappropriate. At this time, the

Court hereby VACATES that part of its decision of

December 11 ordering remand of the action to state

court.

III. CONCLUSION

For the reasons set forth and in the manner

outlined above, the Court hereby DENIES IN PART

-Appx. C7-

AND GRANTS IN PART Defendant’s Motion for

Reconsideration. In light of the Court’s Order regarding

the Defendant’s Motion for Reconsideration, the Court

hereby DENIES AS MOOT the Defendant’s Motion to

Stay Proceedings.

The parties will be contacted to arrange a sched-

uling conference to set deadlines for discovery in this

matter and to set a date for the evidentiary hearing.

IT IS SO ORDERED.

s/Susan J. Dlott

Susan J. Dlott

United States District Judge

Date: 5/21/97

-Appx. C8-

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION FILED

KENNETH J. MURPHY

CLERK

Dorothy Mackey, : 98 APR 22 PM12:55

705 Villa Avenue U.S. DISTRICT COURT

Akron, Ohio 44310 : SOUTHERN DIST OHI‘)

WEST DIV CINCINNATI

Plaintiff, :

CIVIL CASE NO.

vs. : C-3-96-140

David W. Milam, Judge Susan J. Dlott

Travis Elmore,

United States of America

Defendants.

ORDER CERTIFYING INTERLOCUTORY DECISION

FOR APPELLATE REVIEW

Upon Motion of the United States of America,

David Milam, and Travis Elmore, Defendants, for

Certification pursuant to 28 U.S.C. §1292(b) of the

following issue in its May 27, 1997 Order:

1. Whether under Ohio law, a supervisor who

engages in sexual harassment of a subordinate

employee is acting within the scope of his employ-

ment.

this Court finds that its order denying Defendant’s

Motion to Dismiss, deciding that under Ohio law, a

supervisor who engages in sexual harassment of a

subordinate employee is not acting within the scope of

his employment, does involve a controlling question of

law as to which there is a substantial ground for

difference of opinion and that an immediate appeal from

the order may materially advance the ultimate termina-

tion of the litigation.

WHEREFORE, pursuant to 28 U.S.C. §1292(b)

this Court hereby certifies the following question pres-

ented by this Court’s Order entered May 27, 1997,

involves a controlling question of law as to which there is

a substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance

the ultimate termination of the litigation:

Whether the defendant Air Force officers were

acting within the scope of their employment under

Ohio law when they allegedly engaged in sexual

harassment of the Plaintiff, an Air Force officer

who worked for them.

IT IS SO ORDERED.

_s/Susan J. Dlott

SUSAN J. DLOTT

UNITED STATES DISTRICT JUDGE

-Appx. D2-

i

3

te

APPENDIX E

97-3859

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 001271998

LEONARD GREEN, Clerk

DOROTHY MACKEY,

Plaintiff-Appellee,

v. ORDER

DAVID W. MILAM, ET AL.,

Defendants-Appellants.

Nee ee Ne Ne Ne

BEFORE: KRUPANSKY, SILER, and COLE,

Circuit Judges.

The court having received a petition for rehearing

en banc, and the petition having been circulated not only

to the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the

original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submis-

sion and decision of the case. Accordingly, the petition is

denied. Judge Cole would grant rehearing for the

reasons stated in his dissent.

ENTERED BY ORDER

OF THE COURT

s/Leonard Green

Leonard Green, Clerk /n

-Appx. E2- |