Nadler v. Mann

• Decision Date: 12 February 1990
• Docket Number: No. 88-2179-CIV.,88-2179-CIV.
• Citation: 731 F. Supp. 493
• Parties: Joseph M. NADLER, Plaintiff, v. Frederick (Fritz) MANN, Defendant.
• Court: U.S. District Court — Southern District of Florida

731 F. Supp. 493

Joseph M. NADLER, Plaintiff, v. Frederick (Fritz) MANN, Defendant.

No. 88-2179-CIV.

United States District Court, S.D. Florida.

February 12, 1990.

Alfred Aronovitz, Miami, Fla., for plaintiff.

Gary J. Takacs, Asst. U.S. Atty., Miami, Fla., for defendant.

AMENDED MEMORANDUM DECISION

SCOTT, District Judge.

This is a defamation action arising from the 1986 campaign for a seat on the Dade County Circuit Court. Plaintiff Joseph M. Nadler, the incumbent, won re-election. Defendant Frederick (Fritz) Mann, one of two challengers, was an Assistant United States Attorney at the time. Plaintiff's victory was marred by news accounts that he was under investigation by the Federal Bureau of Investigation for suspicion of bribery. Plaintiff claims that Defendant initiated the investigation and then leaked the story to the press.

The case is now before the Court upon Defendant Mann's motion to substitute the United States as sole defendant. Mann contends that he was acting within the scope of employment and is therefore immune from liability pursuant to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679 (1988). The motion raises complex questions of statutory construction under the newly-enacted statute. The Court will first present the factual and procedural background of the dispute before turning to these novel legal issues.

I. BACKGROUND

A. Facts

During 1986, Defendant Frederick (Fritz) Mann was employed as an Assistant United States Attorney ("AUSA") in the Miami Division of the Southern District of Florida. Mann was a candidate for a judgeship on the Dade County Circuit Court. Plaintiff Joseph M. Nadler, the incumbent, was seeking re-election.

The primary election was scheduled for September 2, 1986. Two or three weeks before the primary, Mann took annual leave from the U.S. Attorney's Office to campaign full time.¹ While on leave, Mann continued to call and visit the office on occasion to monitor his assigned cases.

Several days before the primary, Mann received a telephone call at home from a public official who claimed to know Nadler.² The caller claimed to have reason to believe that Nadler had accepted a bribe to influence his decision in a pending case.³ Mann advised the caller to inform the Federal Bureau of Investigation ("FBI"). Mann offered to arrange a meeting between the caller and the FBI. The caller accepted.

After the meeting, the FBI decided to pursue an investigation of Nadler. Mann did not participate in the investigation and was not kept apprised of its status.⁴ On September 2, 1986, Mann was defeated in the primary election. In late October, the Miami Herald reported the FBI investigation of Nadler.

On November 4, 1986, Nadler won re-election. On July 17, 1987, the FBI closed the investigation, finding insufficient evidence to warrant prosecution. This action followed.

B. Procedure

Plaintiff initially filed this action in Dade County Circuit Court. Defendant removed the action pursuant to 28 U.S.C. § 1442(a) and Plaintiff moved to remand. In response, the United States certified that Mann was acting within the scope of his employment pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679. Based on that certification, the Government moved to dismiss Mann from the action and substitute the United States as sole defendant.

On February 6, 1989, the Court denied Plaintiff's motion to remand without prejudice. The Court further permitted joinder of the United States as co-defendant. After affording the parties notice and an opportunity to conduct limited discovery, we converted the motion to dismiss into a motion for summary judgment. After reviewing the product of discovery and the arguments of counsel, we are now prepared to decide the issue.

II. LEGAL ANALYSIS

A. The Act

On November 18, 1988, the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA") was enacted, amending sections of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq.⁵ Congress passed the Act in response to Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which "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." H.R. 4612, Public Law No. 100-694 § 2(a)(4)-(5). In Westfall, the Supreme Court held that absolute immunity is available only when the challenged conduct is discretionary in nature.

The Act was designed to supplant West-fall and provide federal employees with absolute immunity from liability for common law torts committed within the scope of employment. Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir.1989).⁶ Congress achieved this purpose by precluding direct actions against federal employees. Instead, the plaintiff's "exclusive remedy" is an action against the United States under the FTCA. Section 5 of the Act, amending 28 U.S.C. § 2679(b).⁷

B. Certification of Scope of Employment

The Attorney General, through the United States Attorney, has certified that Mann "was acting within the scope of his office or employment at the time of the incident out of which the claim arose."⁸ Plaintiff challenges this certification. Thus, the threshold issue for the Court is whether the Attorney General's certification decision is subject to judicial review.

Parenthetically, the Court notes that Defendants have receded from their initial position that judicial review is not available. That concession is based on the legislative history of a similar bill which suggests that Congress believed that judicial review of the certification decision would be available. See Legislation to Amend the Federal Tort Claims Act, Hearing Before the Subcommittee on Administrative Law and Governmental Relations, Apr. 14, 1988, at 128, 133, 197 ("The plaintiff would still have the right to contest the certification without justification.") (remarks of Representative Frank, with Department of Justice approval).

The only circuit to consider the issue has suggested that FELRTCA bars judicial review of the Attorney General's decision to grant certification. See Moreno v. Small Business Administration, 877 F.2d 715 (8th Cir.1989). Among the district courts, some have denied judicial review. See S.J. and W. Ranch, Inc. v. Lehtinen, 717 F.Supp. 824 (S.D.Fla.1989) (Gonzalez, J.); Arbour v. Jenkins, 713 F.Supp. 229 (E.D. Mich.1989); Mitchell v. United States, 709 F.Supp. 767, 768 n. 4 (W.D.Tex.1989). Others have granted it. See Baggio v. Lombardi, 726 F.Supp. 922 (E.D.N.Y.1989) (ordering evidentiary hearing to determine scope of employment issue in defamation action); Martin v. Merriday, 706 F.Supp. 42 (N.D.Ga.1989); cf. Williams v. Morgan, 723 F.Supp. 1532 (D.D.C.1989) (scope of employment is "apparently to be determined de novo by a `finding' of the court, since the Attorney General's decision is not subject to judicial review"; finding that defendants did not act within the scope of employment).⁹

We begin with the principle that "Congress will be presumed to have intended judicial review of agency action unless there is persuasive reason to believe otherwise." United States v. Fausto, 484 U.S. 439, 452, 108 S.Ct. 668, 675, 98 L.Ed.2d 830, 843 (1988); Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 2455, 81 L.Ed.2d 270 (1984).¹⁰ Although the legislative history does not resolve the issue,¹¹ our decision is informed by the logic of the statutory scheme as a whole. Fausto, 484 U.S. at 452, 108 S.Ct. at 675, 98 L.Ed.2d at 843.

FELRTCA contains separate provisions concerning certification of actions pending in state and federal court. In federal court, upon certification by the Attorney General, the action shall be deemed an action against the United States and the United States shall be substituted as the party defendant. This provision makes no mention of judicial review. Section 6 of the Act, amending 28 U.S.C. § 2679(d)(1).

In state court, upon certification, the action shall be removed to district court, the action shall be deemed an action against the United States and the United States shall be substituted as the party defendant. "This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal." Section 6 of the Act, amending 28 U.S.C. § 2679(d)(2).

Thus, we conclude that, because certification triggers the right of removal, Congress intended to preclude state courts from reviewing the Attorney General's decision to grant certification. This does not imply, however, that Congress intended to prevent federal courts from reviewing that decision upon removal. Martin v. Merriday, 706 F.Supp. 42 (N.D.Ga.1989).¹² Indeed, it is highly doubtful that Congress intended to deny judicial review of the decision that vests subject matter jurisdiction in federal court.

In addition, FELRTCA empowers the court to certify the action should the Attorney General refuse to do so.¹³ If the action is pending in state court, the Attorney General may remove the action to district court. "If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the state court." Section 6 of the Act, amending 28 U.S.C. § 2679(d).

Thus, the Court could have certified the action if the Attorney General had refused to do so. In view of that authority, we cannot conclude that Congress intended to prevent the Court from reviewing the Attorney General's decision to grant certification. There is no basis for such inconsistent treatment of certification decisions. Finding no "persuasive reason" to believe that Congress intended to deny judicial review, Fausto, 484 U.S. at 452, 108 S.Ct....