Johnson v. Carter

Decision Date09 October 1991
Docket NumberNo. 90-3077,90-3077
Citation939 F.2d 180
PartiesWilliam D. JOHNSON, Plaintiff-Appellee, v. Powell F. CARTER, Defendant-Appellant, United States of America, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Widener, Circuit Judge, filed dissenting opinion.

Patricia M. Bryan, Deputy Asst. Atty. Gen., Civ. Div., U.S. Dept. of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Barbara L. Herwig, Michael E. Robinson, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Henry E. Hudson, U.S. Atty., Norfolk, Va., Richard F. Walsh, Office of the Judge Advocate Gen. of the Navy, Alexandria, Va., on brief), for appellants.

Jeremiah A. Denton, III, Virginia Beach, Va., for plaintiff-appellee.

Before WIDENER and SPROUSE, Circuit Judges, and NICKERSON, District Judge for the District of Maryland, sitting by designation.

OPINION

SPROUSE, Circuit Judge:

We consider whether the United States must be substituted as the sole defendant in a suit against a United States military officer for alleged tortious conduct. Involved is an interpretation of the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act). We also consider whether the officer has military immunity under the doctrine announced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and whether the suit should have been brought under the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1111 et seq.

William D. Johnson, a civilian law enforcement officer stationed at the Norfolk Naval Base in Virginia, sued Admiral Powell F. Carter, Jr., Commander-in-Chief of the United States Atlantic Fleet, in state court for claims arising out of an incident in which Carter allegedly called Johnson "a liar." Johnson sought damages for slander, libel, insulting words, intentional infliction of emotional distress, and tortious interference with contractual and business relations. After removing the case to federal district court, pursuant to 28 U.S.C. Secs. 1442, 1442a, and 2679(d)(2), Carter moved to substitute the United States as sole defendant, pursuant to the Westfall Act which requires that suits against Federal employees for actions committed within the scope of their office or employment be brought only under the Federal Tort Claims Act. 1 Alternatively, Carter moved to dismiss the case on grounds of intramilitary immunity under Feres. The district court denied these motions. However, it granted a stay of further proceedings pending this appeal. We affirm.

I.

Carter is the Commander-in-Chief of the U.S. Atlantic Fleet, which has its shore installation at the Norfolk Naval Base in Virginia. On Sunday, the 18th day of June, 1989, Johnson, a civilian law enforcement officer of the Naval Base Security Force, stopped Janeen Carter, Admiral Carter's daughter, for speeding and issued her a warning. Travelling in a separate car, Carter's wife witnessed the incident and provided the vehicle number of Johnson's patrol car when she related the incident to her husband. She, along with Janeen, alleged that Johnson was "rude and intimidating" during the stop.

Carter, who had received similar complaints about discourteous conduct on the part of base patrolmen, concluded that the patrolman had been abusive and "requested" two of Johnson's superiors to bring him to Carter's quarters. 2 On that same Sunday afternoon, two of Johnson's superiors escorted Johnson to the garden of Carter's place of residence where the latter was tending his garden dressed in casual civilian clothes. Carter contends that he directed most of his comments to the duty officer or the supervisor, remarking on the persistent problem of discourtesy by base police and the need to correct the problem. In any event, in reply to Carter's inquiry, Johnson denied he had engaged in rude conduct directed at Carter's wife and daughter. In his deposition, Carter stated that he "believes" he responded "I think you are lying." However, Johnson in his affidavit averred that Carter, in response to his denial, said, "You are a liar."

The next day, Carter formally complained 3 about Johnson's conduct and a local newspaper reported the incident. Following an investigation, civilian authorities of the Naval Base Security Force recommended and approved a two-day suspension for Johnson. An arbitration panel later reduced the suspension to a letter warning.

The district court found "incredible" the U.S. Attorney's certification that Carter was acting within the scope of his employment. In its order denying the motion for reconsideration, the district court set forth in writing its reasons for denying the government's motion to substitute or to dismiss. In distinguishing Wallen v. Domm, 700 F.2d 124 (4th Cir.1983), which involved a charge of assault against the plaintiff's supervisor, the district court noted that there the discussion that formed the basis for the charge took place on a normal work day in the defendant's office, that the defendant was the immediate supervisor of the plaintiff and that the substance of the discussion was entirely work-related. In contrast, the district court noted that the incident in the case sub judice occurred on a Sunday while the Admiral was at home gardening in civilian clothing, that Carter is not the base commander, and that the essence of the conversation concerned the altercation between Carter's daughter and Johnson as opposed to problems of base security. Finally, the court questioned whether such immediate action would have been taken if a civilian's daughter had been stopped by Johnson.

On appeal, Carter challenges the district court's refusal to substitute the United States as defendant, its refusal to dismiss the case under the Feres doctrine, and contends that the Civil Service Reform Act (CSRA) preempts state common law remedies for employment related actions like that of the appellee. We consider his contentions in that order.

II. Westfall Act

Carter argues that the United States should have been substituted as sole defendant in the action pursuant to 28 U.S.C. Sec. 2679(d)(1) (the Westfall Act). 4 In denying Carter's motion to substitute the United States, the district court rejected the United States Attorney's certification that Carter was acting within the scope of his employment. 5 Carter argues that the district court erred in reaching a conclusion contrary to the attorney general's certification. Johnson, of course, argues in support of the district court's finding that Carter was not acting within the scope of his office or employment when he called him a liar. He stresses that Carter was acting in violation of naval regulations, without authority, and out of personal motivation.

Determination of whether an employee's actions are within the scope of employment for purposes of the Act involves a question of law as well as fact. See S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990). However, where the facts are not in dispute, the "determination of the scope of employment is a question of law, reviewable de novo." Washington v. United States, 868 F.2d 332, 334 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989). As here however, where some facts are in dispute, 6 the standard of review as to those factual findings is whether they are clearly erroneous. See McCluggage v. United States, 392 F.2d 395, 397 (6th Cir.1968) (applying clearly erroneous standard to finding of fact on the issue of scope of employment in FTCA case).

Whether an employee's actions fall within the scope of his employment pursuant to the Westfall Act and FTCA is to be determined according to the rules of respondeat superior of the state in which the wrongful conduct occurred. Nasuti, 906 F.2d at 805 n. 3; Arbour, 903 F.2d at 421-22; H.R.Rep. 100-700, 100th Cong., 2d Session 5, reprinted in 1988 U.S.Code Cong. & Admin.News at 5945, 5949; citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955).

The test in Virginia is whether the act was fairly and naturally incident to the employer's business, was done while the employee was engaged upon the employer's business, and was done with a view to further the employer's interests. Roughton Pontiac Corp. v. Alston, 236 Va. 152, 372 S.E.2d 147 (1988), see also United Brotherhood v. Humphreys, 203 Va. 781, 127 S.E.2d 98, 102 (1962), cert. denied, 371 U.S. 954, 83 S.Ct. 509, 9 L.Ed.2d 501 (1963); McNeill v. Spindler, 191 Va. 685, 62 S.E.2d 13, 17 (1950); Manuel v. Cassada, 190 Va. 906, 59 S.E.2d 47, 50 (1950). Scope of employment is determined from the surrounding circumstances, including character of the employment, nature of the wrongful deed, time and place of its commission as well as the purpose of the act. See, e.g., Abernathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88, 92 (1960) (scuffle held independent venture to gratify personal feelings); Bryant v. Bare, 192 Va. 238, 64 S.E.2d 741, 747 (1951) (accident occurring when employee had, after earlier detour, proceeded on highway as instructed held within scope); Appalachian Power Co. v. Robertson, 142 Va. 454, 129 S.E. 224, 227-28 (1925) (courtesy performed for third person during meal hour off of work premises held not within scope); Drake v. Norfolk Steam Laundry Corp., 135 Va. 354, 116 S.E. 668, 670 (1923) (going out of way for own purposes on an errand that began and was to end in service of employer held within scope).

Carter cites naval regulations detailing the duties of naval commanders and the Commander-in-Chief of the U.S. Atlantic Fleet specifically. He points out, among other things, that he is "responsible for the administration, training, maintenance, support and readiness of the Atlantic Fleet including those forces temporarily assigned to the operational command of other commanders," 7 that he may "exercise...

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