983 F.2d 1316 (4th Cir. 1993), 90-3077, Johnson v. Carter

Docket Nº:90-3077.
Citation:983 F.2d 1316
Party Name:William D. JOHNSON, Plaintiff-Appellee, v. Powell F. CARTER, Defendant-Appellant, United States of America, Appellant.
Case Date:January 15, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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983 F.2d 1316 (4th Cir. 1993)

William D. JOHNSON, Plaintiff-Appellee,


Powell F. CARTER, Defendant-Appellant,

United States of America, Appellant.

No. 90-3077.

United States Court of Appeals, Fourth Circuit

January 15, 1993

Argued Dec. 3, 1991.

As Amended March 3, 1993.

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Michael Eugene Robinson, Civ. Div., U.S. Dept. of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Barbara L. Herwig, Civ. Div., U.S. Dept. of Justice, Washington, DC, Henry E. Hudson, U.S. Atty., Norfolk, VA, Richard F. Walsh, Office of Judge Advocate General of the Navy, Alexandria, VA, on brief), for defendant-appellants.

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



WIDENER, Circuit Judge:

Admiral Powell F. Carter, Jr., former Commander-in-Chief 1 of the Atlantic Fleet, appeals from the district court's decision denying his motion to substitute the United

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States as the sole defendant under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act). 2 We reverse.


On June 18, 1989, Admiral Carter's daughter, Janeen Carter, visited her father at his home on the Norfolk Naval Base. When she left, her mother, Admiral Carter's wife, Carole Carter, escorted her off the base. Janeen followed in her own vehicle. William D. Johnson, a police officer patrolman at the base, pulled over Janeen Carter for speeding. 3 When Johnson requested base identification, Janeen produced a four-star placard. Carole Carter circled back behind Officer Johnson's car and got out of her car. Johnson directed Mrs. Carter back to her car. He then gave Janeen Carter a warning and sent her on her way. Janeen proceeded off the base. Johnson then went to Mrs. Carter's car and informed her that a warning had been issued to her daughter. According to Janeen and Mrs. Carter, Johnson was rude and intimidating to them during the stop. Upon her return home, Mrs. Carter told her husband what had happened and gave him the vehicle number of Officer Johnson's car.

Admiral Carter, who had been concerned about the conduct of base police officers for some time, sought to identify the officer involved so that he could file a formal complaint concerning the incident. After unsuccessfully attempting to reach the Commander of the Naval Base and the Commanding Officer of the Naval Station, Carter phoned the duty petty officer of the Naval Station and asked that the duty officer, the patrolman involved and his supervisor from the Naval Base Security Force report to his quarters so that the Admiral could identify the patrolman.

Admiral Carter was working in the garden at his home when the three officers arrived at the Admiral's house. Admiral Carter told Johnson's supervisor, Major G.K. Maynard, that something needed to be done about the discourtesy of the base police. After Maynard identified Johnson as the patrolman in question, Admiral Carter related to Johnson his wife's account of what had happened and asked Officer Johnson if he had been rude to Mrs. Carter and their daughter. Johnson replied, "No, sir." According to Officer Johnson, Admiral Carter responded, "You are a liar." The Admiral then directed Maynard to instruct Officer Johnson on how to properly conduct himself. Admiral Carter also informed Maynard that he intended to file a formal complaint against Johnson. The three officers were then dismissed.

The next day, Admiral Carter lodged a formal complaint against Officer Johnson. The incident was reported in a local newspaper, the Virginian Pilot/Ledger Star. Admiral Carter made no statements to the newspaper and instructed his staff not to make any comments to the press. After an investigation, the Naval Base Security Force recommended and approved a two-day suspension for Johnson. Upon arbitration at Johnson's instance, the disciplining of Johnson was affirmed, but the suspension was reduced to a letter warning.

In October 1989, Officer Johnson filed an action against Admiral Carter in the Circuit Court of the City of Norfolk, Virginia, seeking $500,000 in compensatory damages and $1,000,000 in punitive damages for slander, libel, insulting words, intentional infliction of emotional distress, and tortious interference with contractual and business

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relations. 4 Admiral Carter then moved to have the case removed to federal district court pursuant to 28 U.S.C. § 1442 and 28 U.S.C. § 2679(d)(2) and have the United States substituted as the sole defendant. 5 The United States Attorney certified that Admiral Carter was acting within the scope of employment when the alleged torts occurred. The case was removed to the United States District Court for the Eastern District of Virginia. The district court denied the motion to substitute the United States as the sole defendant. Admiral Carter filed a renewed motion to substitute the United States as the sole defendant. The district court treated this pleading as a motion for reconsideration and denied it. Admiral Carter sought and was granted a stay of the district court's order pending resolution of the appeal.

On appeal, a divided panel of this court upheld the district court's decision. Johnson v. Carter, 939 F.2d 180 (4th Cir.1991). We then granted rehearing en banc and vacated the panel opinion. Johnson v. Carter, 939 F.2d at 191. We now reverse.


Admiral Carter argues that the United States should have been substituted as the sole defendant in the action pursuant to 28 U.S.C. § 2679(d)(1) (the Westfall Act). 6 We agree. By the plain language of 28 U.S.C. § 2679(d)(2), no discretion is given to the district court. If the Attorney General certifies that the defendant employee was acting within the scope of his employment, "the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2) (emphasis added).

The Department of Justice, which once advocated that the Attorney General's certification was conclusive, now takes the position that the certification of scope of office or employment is reviewable. It has apparently also taken an intermediate position. Nasuti v. Scannell, 906 F.2d 802, 812 (1st Cir.1990). The Circuits are divided regarding this issue. The First, Third, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits follow the course taken by the district court and do not give conclusive effect to the Attorney General's determination. 7

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7] These courts base their decisions, in part, on legislative history and what they perceive as ambiguity in the statute. 28 U.S.C. § 2679(d)(2), the portion of the Westfall Act dealing with cases commenced in the state courts, concludes by providing that "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal." There is no similar provision in 28 U.S.C. § 2679(d)(1), the portion of the Act dealing with cases commenced in the federal courts. Upon this claimed ambiguity, 8 the court typically would then look to the legislative history and find that Congressman Frank, the Act's sponsor, stated that "the plaintiff would still have the right to contest the certification if they [sic] thought the Attorney General were [sic] certifying without justification." Legislation to Amend the Federal Tort Claims Act: Hearing Before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, 100th Cong., 2d Sess. 60, 128 (April 14, 1988), cited in Meridian Int'l Logistics, Inc. v. United States, 939 F.2d at 744. In addition, the court would rely upon a Department of Justice representative, Deputy Assistant Attorney General Robert Willmore, who appeared at a Congressional hearing and stated that "Chairman Frank is correct that a plaintiff can challenge that certification. So that would be reviewable by a court at some point, probably by a Federal District Court." Legislation to Amend the Federal Tort Claims Act: Hearing, at 133, cited in S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d at 1541. The Fifth and Tenth Circuits, however, follow Congress's express language instead of the legislative history and give conclusive effect to the Attorney General's certification. See Mitchell v. Carlson, 896 F.2d 128 (5th Cir.1990); Aviles v. Lutz, 887 F.2d 1046 (10th Cir.1989).

We are of opinion that the district court erred in not giving conclusive effect to the Attorney General's scope certification. We do not agree with the Department of Justice's latest position and, with respect, with those courts which rely on legislative history in determining that the Attorney General's scope certification is not conclusive. We are of opinion that "[l]egislative history is irrelevant to the interpretation of an unambiguous statute." Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 808-09 n. 3, 109 S.Ct. 1500, 1504 n. 3, 103 L.Ed.2d 891 (1989). As we have recently stated,

Congress enacted [the statute], not its accompanying legislative reports. We have no authority to limit the scope of a clear statutory term by recourse to the views of a legislative subgroup.

In re Moore, 907 F.2d 1476, 1479 (4th Cir.1990). In the instant case, the language of the statute is clear and unambiguous. If the Attorney General certifies that the defendant

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employee was acting within the scope of his employment, "the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2) (emphasis added). That language, we suggest, is hardly ambiguous.


In any event, even if the certification should not be conclusive in all cases (which we do not intimate), it...

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