Stokes v. Cross

• Citation: 327 F.3d 1210
• Decision Date: 06 May 2003
• Docket Number: No. 02-5120.,02-5120.
• Parties: Billy STOKES, Appellant, v. Steven CROSS, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

327 F.3d 1210

Billy STOKES, Appellant, v. Steven CROSS, et al., Appellees.

No. 02-5120.

United States Court of Appeals, District of Columbia Circuit.

Argued April 8, 2003.

Decided May 6, 2003.

Appeal from the United States District Court for the District of Columbia (No. 01cv02305).

Richard Carnell Baker argued the cause and filed the briefs for appellant.

Beverly M. Russell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: ROGERS and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Contending that the district failed to follow the procedures set forth in Kimbro v. Velten, 30 F.3d 1501 (D.C.Cir.1994), Sergeant Billy S. Stokes of the Uniformed Police Branch of the United States Government Printing Office appeals the dismissal of his defamation complaint against seven co-workers. He contends that the district court treated a Westfall certification as dispositive rather than allowing him to conduct discovery on the scope-of-employment issue and holding an evidentiary hearing. We agree and reverse.

I.

According to the complaint's factual allegations, which this court accepts as true, Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 871 (D.C.Cir.2002), Sergeant Billy S Stokes worked for over twenty-five years as a member of the Uniformed Police Branch of the United States Government Printing Office ("GPO") and had an unblemished employment record. That almost changed as a result of an incident on November 4, 2000, while Stokes was the "Officer-in-Charge." Officer William Wilson, Stokes' subordinate, was stationed that evening at a GPO lot where an unknown individual was attempting to enter without authorization. After Wilson radioed for assistance, Stokes and the central dispatcher monitored the situation on surveillance cameras and maintained radio contact with Wilson until the incident was resolved. Several months later, Stokes received a Notice of Proposed Adverse Employment Action ("Notice"), which charged that on November 4 he had failed to provide Officer Wilson with necessary assistance in dealing with the trespasser.

Stokes challenged the Notice as "false and malicious or made with reckless disregard for the truth," and GPO canceled the Notice. Stokes also filed a complaint in the Superior Court of the District of Columbia, alleging that the seven co-workers not only failed reasonably to investigate the incident in good faith and to interview critical eyewitnesses, but also destroyed and ignored critical evidence, including video and audio tapes that would have exonerated Stokes. Specifically, Stokes alleged that Lieutenant Steven Cross and Commander James C. Raysinger, Stokes' superiors, induced the participation of Manuel Rivera, Phillip Griffin, and Collins Bailey, Jr., Stokes' subordinates, to manufacture false statements in support of the Notice. He further alleged that they had threatened Corporal Sherman Gray's career and livelihood if he did not make a statement adverse to Stokes; Gray executed a statement prepared by Griffin and Rivera but later recanted it. The defendants' actions, Stokes claimed, were designed to prevent his promotion, as it was well known that he intended to apply for the position of his supervisor, who had recently announced his plans to retire. Stokes alleged that he was "a leading and an extremely well-qualified candidate" for the position because of his seniority and "unblemished employment performance history." "[D]ue to spite, malice and ill-will and other sinister reasons," he claimed, the defendants sought to besmirch his record and foil his promotion opportunity by "orchestrat[ing] a conspiracy to injure, defame, harm, or destroy" his professional reputation.

On motion of three defendants the case was removed to United States district court. 28 U.S.C. §§ 1441, 1442(a)(1), & 1446 (2000). In the district court, Assistant United States Attorney ("AUSA") Mark E. Nagle, by authority delegated to and by the United States Attorney, filed a certification stating that "C. Steven Cross, Raymond Garvey, James C. Raysinger, William Wilson, and Collins Bailey, Jr. were acting within the scope of their authority as employees of the United States at the time of [the] alleged incidents." AUSA Nagle later filed a second certification stating that Griffin and Rivera were acting within the scope of their employment.

At a status call, the district court considered AUSA Nagle's certification to be "prima facie evidence" on the scope-of-employment issue and stated that Stokes had "given no evidence to suggest that Mr. Nagle is not able to make the certification that he has." The court therefore substituted the United States as defendant and, because the United States had not waived its immunity from defamation claims, 28 U.S.C. § 2680(h) (2000), dismissed Stokes' claims against the five defendants named in the AUSA's first certification. After receiving the second certification, the court, sua sponte, dismissed the remaining claims.

II.

In Westfall v. Erwin, 484 U.S. 292, 300, 108 S.Ct. 580, 585-86, 98 L.Ed.2d 619 (1988), the Supreme Court held that federal employees are absolutely immune from state tort liability only if (1) they were acting within the scope of their employment and (2) their actions were discretionary in nature. Congress acted quickly to nullify "the Westfall decision by establishing legislated standards to govern the immunity of Federal employees who have allegedly committed state common law torts." H.R.Rep. No. 100-700, at 4 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5947. The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, 28 U.S.C. § 2679(d) (2000), negated the discretionary function requirement, providing instead that immunity attaches so long as the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose...." Id. § 2679(d)(1). Thus, when a federal employee is sued for a wrongful or negligent act, the United States Attorney General, or by designation the United States Attorney in the district where the claim is brought, may certify that the employee was acting at the time within the scope of his or her employment. 28 U.S.C. § 2679(d)(1); 28 C.F.R. § 15.3(a) (2002). "Upon certification ... any civil action or proceeding commenced upon such claim in a State court shall be removed ... to the district court of the United States for the district and ... shall be deemed to be an action or proceeding brought against the United States ...." 28 U.S.C. § 2679(d)(2). The Westfall Act further provides that "[t]his certification ... shall conclusively establish scope of office or employment for purposes of removal." Id.

The Supreme Court has held that the government's scope of employment determination under the Westfall Act is judicially reviewable regarding the substitution of the government. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 115 S.Ct. 2227, 2229, 132 L.Ed.2d 375 (1995). In Lamagno, the Court noted that the petitioner's claims arose in a foreign country and therefore fell within an exception to the Federal Tort Claim Act's waiver of the United States' sovereign immunity. Id. at 422, 115 S.Ct. at 2230. As a result, "substitution of the United States would cause the demise of the action...." Id. The Attorney General, thus, had a strong incentive to certify that the defendants were acting in the scope of their employment, because the certification sheltered not only the individual employees but also the United States from liability. Id. at 427-28, 115 S.Ct. at 2232-33. These circumstances, the Court concluded, magnified the need for judicial review. Id. at 429-30, 115 S.Ct. at 2233-34. The Court also observed that the legislative history and purpose did not show "that Congress meant the Westfall Act to commit the critical `scope-of-employment' inquiry to the unreviewable judgment of the Attorney General or her delegate...." Id. at 426, 115 S.Ct. at 2232. The Court accordingly concluded that "the Attorney General's certification that a federal employee was acting within the scope of his employment — a certification the executive official, in cases of the kind at issue, has a compelling interest to grant — does not conclusively establish as correct the substitution of the United States as defendant in place of the employee." Id. at 434, 115 S.Ct. at 2236.

This circuit had reached the same conclusion a year earlier in Kimbro, which held that "[r]egardless of the content of the certification ... the federal district court must at least conduct an evidentiary hearing on the scope issue." 30 F.3d at 1508. "If there is a material dispute as to the scope issue," the court said, "the district court must resolve it at an evidentiary hearing." Id. at 1509. "[T]his procedure," the court continued, is "in keeping with the statutory scheme[, which] does not really treat the certification as having any particular evidentiary weight...." Id. The court also considered the weight to which the government's certification is entitled, adopting the approach of the Third Circuit. Id. at 1509. In Melo v. Hafer, 13 F.3d 736 (3d Cir.1994), the Third Circuit treated the certification as entitled to "prima facie effect" but stated that

[i]f the Attorney General's certification is based on a different understanding of the facts than is reflected in the complaint, the plaintiff should be permitted reasonable discovery and should then be called upon to come forward, as if responding to a motion for summary judgment, with competent evidence supporting the facts upon which he would predicate liability, as well as any other facts necessary to support a conclusion that the defendant acted beyond the scope of his employment.

Id. at 747; Kimbro,...