Wood v. U.S.

Citation995 F.2d 1122
Decision Date08 October 1992
Docket Number91-1324,Nos. 91-1323,s. 91-1323
Parties61 Fair Empl.Prac.Cas. (BNA) 1074, 120 A.L.R.Fed. 647, 61 Empl. Prac. Dec. P 42,263, 61 USLW 2674 Theresa H. WOOD, Plaintiff, Appellee, v. UNITED STATES * of America, Defendant, Appellee. Charles D. Owens, Defendant, Appellant. Theresa H. WOOD, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Mark W. Pennak, Attorney, Appellate Staff, Civ. Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Washington, DC, Wayne A. Budd, U.S. Atty., Boston, MA, and Barbara L. Herwig, Attorney, Appellate Staff, Civ. Div., Dept. of Justice, Washington, DC, were on brief, for appellants.

Stuart DeBard, Boston, MA, for appellee.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, TORRUELLA, SELYA, CYR, BOUDIN, and STAHL, Circuit Judges.


BREYER, Chief Judge.

The Westfall Act provides a federal employee with immunity from an ordinary tort suit if the suit arises out of acts performed "within the scope of" the defendant employee's "office or employment." The immunity attaches when the Attorney General files with the court a certificate stating 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. § 2679(d)(1) (emphasis added). Upon filing this certificate, the Attorney General can remove the case to federal court (if it started in state court), substitute the United States as defendant, and, effectively, immunize the employee from any personal liability. 28 U.S.C. § 2679(d).

This appeal focuses on whether the Attorney General may issue a Westfall Act certificate that simply denies that any injury-causing action occurred. Suppose a plaintiff claims that a federal employee committed acts clearly outside the scope of employment, as here, where the plaintiff has alleged sexual harassment amounting to "assault and battery." Can the Attorney General certify that there simply was no such event? To rephrase this question using the statutory terms underlined above: Can the certificate grant immunity simply by denying the occurrence of any "incident out of which the claim arose?" Would such a certificate fall within the scope of the immunity statute?

The legal question is important, for, where a plaintiff alleges a serious intentional tort, say assault or rape, and also presents enough evidence to survive a summary judgment motion, the answer will affect the plaintiff's right to a jury trial. A "yes" answer means that the Attorney General and the trial judge (reviewing the certificate) will decide whether or not the alleged assault occurred. A "no" answer reserves the basic factual issues for a jury, in effect, maintaining the plaintiff's Seventh Amendment right to a trial by jury in "Suits at common law." U.S. Const. amend. VII.

In our view, the answer is "no." This "no" answer finds support in the statutory language, read together with related provisions; the legislative history; the relevant case law background; and direct precedent from other circuits. We find nothing to suggest that Congress intended a contrary result. We therefore conclude that the Westfall Act certificate cannot deny the basic "incident" charged, though (as we shall explain in Part III) the certificate need not accept the plaintiff's version of just how it occurred.

I Background

Theresa Wood, the plaintiff, worked as secretary to the federal employee defendant, Charles Owens, an Army Major. She filed a federal court complaint against the United States and Major Owens. The complaint alleges that in October 1987 Major Owens told Mrs. Wood that he wanted to go to a hotel with her; that later in 1987 he called her into his office, "grabbed her arm, pulled her toward him, caressed her arm, took lint from her blouse and said, 'I like you, I like you a lot and I want to be intimate with you;' " that in January 1988, he told her that he "would like to have a relationship together--a sexual one;" and that in February 1988 he told her that she was not right for the job and would have to leave. Eventually, for reasons not here relevant, the district court dismissed the complaint insofar as it charged violations by the United States of various specified provisions of federal and state law. The complaint, however, also set forth state law claims of assault and battery, and civil rights violations against Major Owens. See Mass.Gen.L. ch. 12, § 11I. The district court did not dismiss these state law claims, over which it retained diversity jurisdiction. 28 U.S.C. § 1332.

The United States Attorney then filed (in what had become a state law, diversity action) a Westfall Act certificate. See 28 C.F.R. § 15.3 (delegating Attorney General's certification authority to the United States Attorney). It said that Owens, "at all times referenced in the ... Complaint," was "acting within the scope of his office as a commissioned officer of the Armed forces of the United States." In an accompanying affidavit, Owens simply denied Wood's factual allegations. He said,

I never spoke in a sexually suggestive manner to plaintiff nor did I at any time ever proposition or otherwise make any sexual advances towards plaintiff.

The United States Attorney, denying that any relevant incident had occurred, asked the court to substitute the United States for Owens as defendant, 28 U.S.C. § 2679(d)(1), and (because of federal preemption of state civil rights law and a special law preserving sovereign immunity for intentional torts) to dismiss the resulting claims against the United States. See 42 U.S.C. § 2000e-16; 28 U.S.C. § 2680(h).

The district court would not permit the substitution because it believed the Westfall Act certificate was inadequate. It pointed out that the complaint alleged facts, which (if true) showed Owens' actions fell outside his "scope of office or employment." See 28 U.S.C. § 2671 (defining "scope of office or employment" to mean a military officer's "line of duty"); Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir.1982) ("line of duty" is defined by the relevant state's law of respondeat superior ); Miller v. Federated Dep't Stores, Inc., 364 Mass. 340, 348, 304 N.E.2d 573, 579 (1973) (Massachusetts law of respondeat superior places intentional tort outside line of duty, or scope of employment, unless committed to stop victim's interfering with employee's job performance); Doe v. United States, 618 F.Supp. 503, 505-06 (D.S.C.1984) (sexual harassment outside the line of duty), aff'd, 769 F.2d 174 (4th Cir.1985); Turner v. United States, 595 F.Supp. 708, 710 (W.D.La.1984) (same). And, the court added, the government did not deny that the acts would have fallen outside the "scope of employment" had they occurred.

On appeal, a panel of this court affirmed the district court, 760 F.Supp. 952, for similar reasons. Sitting en banc, we, too, affirm the district court's determination, but for somewhat different reasons.


Denying the "Incident"

Congress did not directly consider the question before us: whether or not the Attorney General's certificate can simply deny that any "incident" occurred. The statute's language, history, and precedent, however, convince us that the certificate cannot deny the occurrence of the basic incident charged.

A The Statute Itself

1. The Provision's Language. The Westfall Act itself says that, to provide immunity, the Attorney General must certify 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. § 2679(d)(1). The dissent reads these words as permitting the Attorney General to obtain immunity for any alleged working-hour tort simply by denying that anything unusual occurred "at the time." But, it seems to us more natural to read these words as speaking of an action "at the time of the incident," thus assuming some kind of "incident" occurred.

After all, the basic point of immunity doctrine is to provide government employees with a defense for conduct that falls into certain categories. See, e.g., Barr v. Matteo, 360 U.S. 564, 573-74, 79 S.Ct. 1335, 1340-41, 3 L.Ed.2d 1434 (1959); Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The doctrine normally comes into play, not when the defendant denies the conduct charged, but when the defendant asks a court to characterize the conduct. The point of the certificate is to assert such a characterization, namely to claim that a (hypothetically conceded) "incident" involved activity that was "within the scope of employment."

2. The Statutory Scheme. The surrounding statutory provisions support our natural reading of the provision's language, for they reveal that Congress intended the Westfall Act to immunize employees from claims of wrongdoing of a particular type, not claims of wrongdoing at a particular time. The "type" consists of the sort of wrongdoing for which employers, typically, are vicariously liable under principles of respondeat superior. The statutory scheme does not concern claimed wrongdoing that falls outside respondeat superior 's traditional bounds, regardless of when the wrongdoing allegedly occurred.

The statutory scheme involves both the Federal Tort Claims Act's waiver of sovereign immunity and the Westfall Act's creation of employee immunity. The waiver enables tort plaintiffs to bring against a special employer, namely the federal government, the same kind of ordinary tort action that plaintiffs often bring against private employers, namely an action claiming that an employee wrongfully hurt the plaintiff and that the employer is liable under the doctrine of respondeat superior. Section 1346(b) of the Federal Tort Claims Act, which is a general waiver...

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