Jamison v. Wiley

Decision Date13 January 1994
Docket NumberNo. 92-1628,92-1628
Citation14 F.3d 222
Parties63 Fair Empl.Prac.Cas. (BNA) 1051, 63 Empl. Prac. Dec. P 42,838 Connie JAMISON, Plaintiff-Appellee, v. Jerry WILEY, Defendant-Appellant, United States of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Steven Ray Minor, White, Elliott & Bundy, Bristol, VA, argued (Mark M. Lawson, on brief), for defendant-appellant Wiley.

Jeffrey Alan Fleischhauer, Bird, Kinder & Huffman, P.C., Roanoke, VA, argued (Donald W. Huffman, Kenneth J. Lasky, on brief), for plaintiff-appellee Jamison.

Scott Ramsey McIntosh, Civil Div., U.S. Dept. of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., E. Montgomery Tucker, U.S. Atty., Barbara L. Herwig, on brief), for plaintiff-appellee U.S.

Before PHILLIPS, NIEMEYER, and WILLIAMS, Circuit Judges.


PHILLIPS, Circuit Judge:

Jerry Wiley, a federal employee, appeals the district court's refusal to substitute the United States for him as defendant in a removed state tort action brought against him by one of his subordinates, as well as its subsequent decision to remand the action to state court, 794 F.Supp. 587. We hold that the district court properly refused to substitute the United States as defendant, but that it erred in relinquishing jurisdiction and remanding the case to state court. We therefore reverse the order of remand and direct the district court to exercise jurisdiction over the case.


This case presents a number of interrelated jurisdictional and procedural issues respecting the scope and operation of the immunity and removal provisions of the Westfall Act, 28 U.S.C. Secs. 2679(b) and (d), in conjunction with the general federal officers removal statute, 28 U.S.C. Sec. 1442(a)(1), as well as the jurisdiction of this court over appeals from orders of substitution and remand entered in the course of applying those immunity and removal provisions. Because operation of the Westfall Act's provisions are of central importance to an understanding of the specific issues presented, we summarize them at the outset of our statement of the factual background and procedural history of the case as it has come to us.


The Federal Employees Liability Reform and Tort Compensation Act, commonly known as the Westfall 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 significantly narrowed the scope of the absolute immunity that federal employees had traditionally enjoyed for common law torts committed within the scope of their employment. Before 1988, it was widely understood that federal employees were absolutely immune from personal liability for common law torts committed while they were acting "within the outer perimeter of [their] line of duty." See, e.g., General Elec. Co. v. United States, 813 F.2d 1273, 1277 (4th Cir.1987), citing Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959) (plurality opinion). In Westfall, however, the Supreme Court held that such immunity is not available unless the challenged conduct is both within the outer perimeter of the employee's official duties and "discretionary in nature." 484 U.S. at 298, 108 S.Ct. at 584. This meant that federal employees were now exposed to personal liability for any common law torts committed in the course of their official duties, unless they could show they were exercising governmental discretion at the time of the conduct in question.

The Court in Westfall recognized that by introducing into the doctrine of official immunity such an inquiry into the "discretionary" nature of the challenged conduct--similar to the one that had bedeviled courts for years in litigation under the Federal Tort Claim Act (FTCA) 1--it was not only creating the potential for considerable complexity, but also making it difficult for federal employees to obtain dismissals based on official immunity at the summary judgment stage or earlier. Id. at 299-300, 108 S.Ct. at 585. It therefore expressly invited Congress to establish "[l]egislat[ive] standards" to define the scope of the official immunity available to "federal employees involved in state-law tort actions." Id. at 300, 108 S.Ct. at 585.

Congress promptly responded by passing the Westfall Act, which "establish[es] legislative standards to govern the immunity of Federal employees who have allegedly committed state common law torts." See H.R.Rep. No. 100-700, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.Code Cong. & Admin.News 5945, at 5947 (1988). As the Act's legislative history reveals, Congress' primary concern was that the Westfall decision would expose federal employees--particularly low-level "rank and file" employees who exercise little discretion in carrying out their duties--to unprecedented personal liability, with predictable adverse consequences for the routine administration of the government's business. Id. at 5946-47; see Pub.L. No. 100-694, Sec. 2(a) (Westfall decision has "seriously eroded the common law tort immunity previously available to Federal employees" and "created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce," which threatens to "seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act"). The Act's stated purpose therefore was to "protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States." Id. Sec. 2(b).

The centerpiece of the Act was Sec. 5, which amended the FTCA to provide that an FTCA action against the United States is the sole remedy for any injury to person or property caused by the negligent or wrongful acts of a federal employee "acting within the scope of his office or employment," "exclusive of any other civil action or proceeding for money damages ... against the employee whose act or omission gave rise to the claim." 28 U.S.C. Sec. 2679(b)(1). The purpose of this "exclusive remedy" provision was to give federal employees an absolute immunity from common law tort actions that was functionally equivalent to--if not perfectly congruent with 2--the immunity that they had enjoyed under the common law doctrine of Barr v. Matteo before the Westfall decision. H.R.Rep. No. 100-700, supra, at 5947 ("The functional effect of [the Act] is to return Federal employees to the status they held prior to the Westfall decision").

Section 6 of the Act contained several procedural provisions designed to implement the absolute immunity created by section 5. It authorizes the Attorney General to issue what has come to be called a "scope certification"--a certification 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." 28 U.S.C. Sec. 2679(d)(1)-(2). 3 If the Attorney General issues such a scope certification with respect to an action brought against a federal employee in federal court, the action "shall be deemed" to be an action against the United States under the FTCA, and the United States "shall be substituted as the party defendant." Id. Sec. 2679(d)(1). If the Attorney General issues a scope certification with respect to an action brought against a federal employee in state court, the action "shall be removed without bond ... by the Attorney General to the [appropriate] district court of the United States," where it "shall be deemed" to be an action or proceeding against the United States under the FTCA and the United States "shall be substituted as the party defendant." Id. Sec. 2679(d)(2). The Act further provides that the Attorney General's certification with respect to an action brought against a federal employee in state court "shall conclusively establish scope of office or employment for purposes of removal." Id. (emphasis added).

If the Attorney General refuses to issue a scope certification with respect to an action pending in either federal or state court, the Act permits the employee to "petition the court to find and certify that the employee was acting within the scope of his office or employment." Id. Sec. 2679(d)(3). If the court so certifies, the action "shall be deemed" to be an action against the United States under the FTCA, and the United States "shall be substituted as the party defendant." Id. If the suit is pending in state court at the time the employee files the petition for certification, the Attorney General "may" remove the action to the appropriate district court for resolution of the disputed scope-of-employment issue, but the district court must remand the action to the state court if it finds, in considering the employee's petition for certification, that he was not acting within the scope of his office or employment. Id.; see Gogek v. Brown Univ., 729 F.Supp. 926, 930 n. 3 (D.R.I.1990).


In January 1990, Connie Jamison, an employee of the federal Mine Safety and Health Administration, filed this civil action in Virginia state court against her supervisor, Jerry Wiley, in his individual capacity. Jamison's complaint sought damages, under Virginia's common law of tort, for alleged sexual assault and battery and intentional infliction of emotional distress. 4 Most of the conduct of which Jamison complained was alleged to have occurred in the federal work place during working hours.

The United States Department of Justice initially agreed to undertake Wiley's representation, pursuant to federal statutory and regulatory provisions that authorize it to defend federal employees who are sued in tort for acts within the scope of their employment. See 28 U.S.C. Sec....

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