Nasuti v. Scannell, s. 89-1830

Decision Date05 February 1990
Docket Number89-1831 and 89-2001,Nos. 89-1830,s. 89-1830
PartiesNicholas NASUTI, Plaintiff, Appellee, v. James SCANNELL, Defendant, Appellant. Nicholas NASUTI, Plaintiff, Appellee, v. James SCANNELL, Defendant, Appellee. United States of America, Defendant, Appellant. In re UNITED STATES of America and James Scannell, Petitioners. . Heard
CourtU.S. Court of Appeals — First Circuit

Ira C. Lupu, Appellate Staff, Civil Div., Dept. of Justice, with whom Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., Boston, Mass., and Barbara L. Herwig, Washington, D.C., Appellate Staff, Civil Div., Dept. of Justice, were on Petition for Writ of Mandamus and brief, for defendants.

Karen B. Hoffman with whom Burton A. Nadler and Petrucelly & Nadler, P.C., Boston, Mass., were on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This case comes before us for the second time. Its first visitation was in Nasuti v. Scannell, 792 F.2d 264 (1st Cir.1986) ("Nasuti I"). The present time around, the basic issues remain much the same--the reviewability and correctness of the district court's order remanding back to the state court plaintiff Nasuti's claim for assault and battery against defendant Scannell. However, because of Congress's recent adoption of the Westfall Act, our answer is now different. While in Nasuti I, we dismissed for lack of appellate jurisdiction, in Nasuti II we conclude that we may review the remand order by way of mandamus. So doing, we hold that, as defendant was a federal employee currently certified by the Attorney General of the United States to have been acting within the scope of his federal employment when plaintiff was injured, the action may not be remanded from the federal to the state court unless and until the district court expressly finds that, contrary to the certification, the defendant was acting outside the scope of his federal employment. Accordingly we direct the district court to vacate its order of remand to the state court and to make a determination as to whether Scannell was acting within the scope of his employment when, allegedly, he injured Nasuti.


The Westfall Act amended key provisions of the Federal Torts Claims Act applicable to actions against federal employees. Properly known as the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. 100-694, 102 Stat. 4563, the statute was Congress's 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). In Westfall, the Supreme Court reduced the immunity previously available to federal employees for common law torts committed within the scope of their employment. Compare, e.g., Barr v. Matteo, 360 U.S. 564, 574-75, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959) (plurality opinion). The Court in Westfall, however, invited Congress to deal with the immunity issue, saying,

Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity [for federal employees] is warranted in a particular context.

484 U.S. at 300, 108 S.Ct. at 585.

Congress quickly accepted the invitation, enacting the Westfall Act within the year. In findings set out at the beginning of the Act, Congress denounced judicial "erosion of immunity of Federal employees from common law tort liability," saying that that erosion "has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce." Pub.L. No. 100-694, Sec. 2(a)(5), eff. Nov. 18, 1988. The new Act's purpose was described as being,

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.

Pub.L. No. 100-694, Sec. 2(b).

The Westfall Act thus expressly provided for the absolute immunity of government employees for acts committed within the scope of their employment that amounted to common law torts.

The heart of the scheme created by the Westfall Act lies in sections 5 and 6, which amend the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2671, et seq. Section 5 provides that the FTCA's remedy against the United States for the negligent or wrongful acts or omissions of any government employee while acting within the scope of his office or employment "is 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). According to the House Report on the Westfall Act, "the availability of suit under the FTCA precludes any other civil action or proceeding of any kind from being brought against an individual Federal employee or his estate if such action or proceeding would sound in common law tort." H.R.Rep. No. 100-700, 100th Congr., 2d Sess. 5 ("House Report"), reprinted in 1988 U.S.Code Cong. & Admin.News ("USCCAN") 5945, 5949. By rendering federal employees immune from personal liability for actions within the scope of their employment, Congress would "return [them] to the status they held prior to the Westfall decision." Id. at 4, 1988 USCCAN at 5947.

Section 6 implements section 5's exclusive-remedy provision. It directs the Attorney General to defend any civil action or proceeding brought in any court against an employee of the government for damage or injury. 28 U.S.C. Sec. 2679(c). 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). 1 Upon such certification, any civil action brought in a state court is removed to the federal district court, where it "shall be deemed to be an action or proceeding brought against the United States under the provisions of this title [i.e., the FTCA]...." Id. Sec. 2679(d)(2). The Attorney General's certification "shall conclusively establish scope of office or employment for purposes of removal." Id.


When the incident that gave rise to this litigation occurred, plaintiff Nicholas Nasuti and defendant James Scannell were both employees of the National Park Service. Nasuti was a janitor and Scannell was a driver. In August of 1980, Nasuti sustained back injuries while riding in the back of a pickup truck being driven by Scannell on a Park Service assignment.

In August 1983, Nasuti brought an action for negligence against Scannell in the Massachusetts Superior Court. The action was, at the time, subject to the provisions of the Federal Driver's Act, the predecessor of the Westfall Act which contained some but not all of the latter's features. Pursuant to a provision of the Driver's Act, then 28 U.S.C. Sec. 2679(d), the Attorney General certified that Scannell had been acting within the scope of his employment as a federal driver when Nasuti was injured. The case was removed to the United States District Court for the District of Massachusetts in accordance with the same provision of the Driver's Act. The United States then moved to dismiss Nasuti's action on the ground that, being a federal employee, he was limited in remedies against the United States to those provided by the Federal Employees' Compensation Act ("FECA"), see 5 U.S.C. Sec. 8116(c) (1982). 2

On the basis of the FECA, the district court dismissed the original negligence claim. However, Nasuti had amended his complaint to allege, as an additional claim, that Scannell's conduct in driving the pickup amounted to an assault and battery upon him. The district court ordered this amended complaint to be remanded to the state court.

On motion by the United States, the district court stayed execution of its remand order, and referred to a magistrate the issue of whether Scannell had been acting within the scope of his employment. The magistrate found that: (1) if the plaintiff's version of the events leading to his injuries were believed, there was sufficient evidence for a jury to find that Scannell had acted intentionally in driving the Park Service vehicle in a manner which amounted to the commission of an assault and battery on Nasuti, and (2) on this evidence, under Massachusetts law, these intentional acts would necessarily fall outside the scope of Scannell's employment. 3 The magistrate ruled that, although normally the district court must rule on the question of whether the defendant was acting within the scope of his employment, he could not rule on the question in the instant case without also deciding the merits of Nasuti's case, i.e., whether Scannell had committed an assault and battery in performing the acts that injured Nasuti. Instead, he recommended remand of the case to the Massachusetts state court for a decision on the merits pursuant to the preamendment 28 U.S.C. Sec. 2679(d):

Should a United States district court determine ... before a trial on the merits that the case ... is one in which a remedy by suit [under the FTCA] is not available against the United States, the case shall be remanded to the State court.

No remedy against the United States was available, the magistrate ruled, because of the statutory provision exempting assaults, batteries and certain other intentional torts from the FTCA. 28 U.S.C. Sec. 2680(h). 4 Consequently, there was no need to decide whether Scannell had actually committed an assault and battery since, even if he had, Nasuti could not recover against the United States under the FTCA.

On August 20, 1985, the district judge adopted the magistrate's report and recommendations...

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