S.J. & W. Ranch, Inc. v. Lehtinen

• Decision Date: 10 October 1990
• Docket Number: No. 89-5990,89-5990
• Citation: 913 F.2d 1538
• Parties: S.J. & W. RANCH, INC., Plaintiff-Appellant, v. Dexter LEHTINEN and United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1538

913 F.2d 1538

S.J. & W. RANCH, INC., Plaintiff-Appellant, v. Dexter LEHTINEN and United States of America, Defendants-Appellees.

No. 89-5990.

United States Court of Appeals Eleventh Circuit.

Oct. 10, 1990.

J. David Pobjecky, Winter Haven, Fla., Phillip E. Kuhn, Lakeland, Fla., for plaintiff-appellant.

Alan Dagen, Asst. U.S. Atty., Ft. Lauderdale, Fla., Barbara Herwig, John F. Daly, Appellate Staff, Civil Div., Washington, D.C., for the U.S.

Anthony J. O'Donnell, Jr., Miami, Fla., for Lehtinen.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Plaintiff, S.J. & W. Ranch ("Ranch") appeals the dismissal of its complaint for libel and slander against Dexter Lehtinen, the United States Attorney for the Southern District of Florida. The dismissal was prompted by the substitution of the United States for Lehtinen as the defendant in the case pursuant to the Federal Employees Liability Reform and Tort Compensation Act ("the Reform Act"), 28 U.S.C. Sec. 2679 (1988), after the Attorney General determined that Lehtinen's statements were made within the scope of his duties as United States Attorney. The substitution of the United States as the defending party deprived the court of jurisdiction to entertain the Ranch's suit because the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(h), precludes libel and slander claims against the United States. Because the district court erroneously held that the

Attorney General's certification decision for purposes of substitution is not subject to judicial review, we reverse and remand for an evidentiary hearing on whether Lehtinen's statements were made within the scope of his employment.

BACKGROUND

Plaintiff's complaint alleges that on September 15, 1988, Dexter Lehtinen held a press conference during which he announced that the United States Attorney's Office for the Southern District of Florida had initiated civil forfeiture actions against the Ranch and two other properties. In the course of his announcement, Lehtinen allegedly made several defamatory statements concerning the involvement of the Ranch property and its owners in narcotics trafficking. On November 21, 1988, the Ranch filed a defamation suit against Lehtinen in the Circuit Court for Okeechobee County, Florida.

On December 8, 1988, pursuant to the Reform Act, a designate of the Attorney General of the United States certified that Lehtinen was acting within the scope of his employment as United States Attorney at the time of the press conference. See 28 U.S.C. Sec. 2679(d). On the basis of this certification, the action was removed to the United States District Court for the Southern District of Florida and the United States was substituted for Lehtinen as the defendant. See 28 U.S.C. Sec. 2679(d)(2). The district court held that judicial review of the Attorney General's scope of employment certification was foreclosed by the Reform Act. 717 F.Supp. 824. Therefore, once the United States was substituted as the defendant pursuant to the Reform Act, provisions of the FTCA deprived the court of subject matter jurisdiction to hear plaintiff's defamation claims.

On appeal both the plaintiff and the United States contend that the district court erred in holding that the Reform Act precludes judicial review of the scope of employment certification with respect to the substitution of defendants. ¹ Lehtinen persists in defending the district court's construction of the statute. ² The Ranch argues in the alternative that if the Reform Act prohibits judicial review of the certification decision, it violates plaintiff's rights of due process and equal protection. We need not address these constitutional concerns because we agree with the Ranch

and the United States that the district court erred in its construction of the statute.

DISCUSSION

The Reform Act was passed in response to the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which reduced the immunity previously available to federal employees for common law torts committed within the scope of their employment. Nasuti v. Scannell, 906 F.2d 802 (1st Cir.1990); Arbour v. Jenkins, 903 F.2d 416, 420 (6th Cir.1990); Springer v. Bryant, 897 F.2d 1085, 1086-87 (11th Cir.1990); Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir.1989). Congress described the purpose of the Act as being to protect federal employees from personal liability for common law torts committed within the scope of their employment, while also providing persons injured by the common law torts of federal employees with an appropriate remedy against the United States. Pub.L. No. 100-694 Sec. 2(b); Nasuti, 906 F.2d at 804; see Springer, 897 F.2d at 1086. The Reform Act accomplishes this purpose by substituting the United States for the federal employee as the defendant in a suit if the employee's actions were within the scope of his employment. Nasuti, 906 F.2d at 804; Gogek v. Brown Univ., 729 F.Supp. 926, 930 (D.R.I.1990). The crux of the issue before us on appeal is whether the Attorney General's Office or the federal district court is the forum entrusted with determining whether the challenged conduct occurred within the scope of employment for purposes of substituting the United States as the defendant. ³

The section of the Reform Act that is the basis of the parties' dispute provides that:

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 ... to the [appropriate] 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 all references thereto, and the United States shall be substituted as the party defendant. The certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

28 U.S.C. Sec. 2679(d)(2). It is significant that the statute, on its face, does not explicitly preclude judicial review of scope certification with respect to the substitution of the United States. To the contrary, the statute's express provision that certification "shall conclusively establish scope of office or employment for purposes of removal," suggests that Congress intended to make scope certification unreviewable only with respect to removal. See Nasuti, 906 F.2d at 809; Gogek, 729 F.Supp. at 933; Martin v. Merriday, 706 F.Supp. 42, 45 (N.D.Ga.1989). This interpretation is consistent with a congressional intent to ensure that federal rather than state courts review the Attorney General's scope certification. Martin, 706 F.Supp. at 45; see Nasuti, 906 F.2d at 813 & n. 16; Gogek, 729 F.Supp. at 933. Additionally, a provision in another section of the Reform Act allowing federal employees to seek judicial review of denials of certification indicates that the Act contemplated federal review of the Attorney General's certifications. See Martin, 706 F.Supp. at 45; 28 U.S.C. Sec. 2679(d)(3). Although the plain language of the statute militates in favor of the interpretation advanced by the Ranch and the United States, the section is sufficiently ambiguous ⁴ that a consideration of the statute's legislative history is helpful. See Arbour, 903 F.2d at 421.

Our review of this history persuades us that the district court's interpretation was in error. During the hearings before the House Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, Subcommittee Chair Frank, a sponsor of the bill, expressed his understanding that under section 2679(d)(2) a "plaintiff can still contest the certification...." Legislation to Amend the Federal Tort Claims Act: Hearing on H.R. 4358, H.R. 3872, and H.R. 3083 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 100th Cong., 2d Sess. 128 (1988) [hereinafter Hearings ]; see Arbour, 903 F.2d at 421. Representative Frank elaborated:

I mean that [this bill] is not going to void the [certification] litigation. It seems to me the certification is a weapon against the employee, not against the plaintiff, because the plaintiff would still have the right to contest the certification if they thought the Attorney General were certifying without justification.

Hearings, supra, at 128 (emphasis added). This understanding of the bill was reiterated in a colloquy with Lois Williams, Director of Litigation at the National Treasury Employees Union.

Frank: [E]ssentially the judge is deciding the case. One of the issues for the judge is going to be to decide [certification] ... because you might have a third route. It is conceivable--I cannot think of too many cases--where the plaintiff might not want the Government in there.

Williams: That is right.

Frank: So the plaintiff might object to the argument and the Government might certify. But that would not be binding on the plaintiff. The plaintiff would, I assume, have the right to go into court and say, baloney, it was not within the scope of employment, either because of some immunity issue or because you really hated that defendant and you wanted to get them.

Williams: Yes. In fact, that is the way it frequently has arisen in the past.

Id. at 197. Representative Frank's understanding that the certification issue would be subject to judicial review was shared not only by Williams, but also by a representative of the Justice Department, Deputy Assistant Attorney General Robert Willmore, as is evidenced by the following exchange:

Frank: Well, but the plaintiff can still contest the certification, could he not?

Willmore: Yes.

Id. at 128; see Arbo...