USCA1 Opinion

April 30, 1993

[SYSTEMS NOTE:

This appendix is only available through the

Clerk's Office in Boston.]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 91-1323
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
CHARLES D. OWENS,
Defendant, Appellant.
_____________________
No. 91-1324
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.

____________________
ERRATA SHEET
Please make the following correction
above case release on April 28, 1993:

in the

opinion in

the

The following two-page Appendix (Excepts from the Federal Tort

Claims Act, 28 U.S.C.
1346, et. seq.) should be affixed to the
end of the opinion.

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 91-1323
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
CHARLES D. OWENS,
Defendant, Appellant.

_____________________
No. 91-1324
THERESA H. WOOD,
Plaintiff, Appellee,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
__________________

Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
Torruella, Selya, Cyr, Boudin, and Stahl, Circuit Judges.
______________
____________________

Mark W. Pennak, Attorney,

_______________
Department of Justice, with

Appellate

Staff, Civil

Division,

whom Stuart M. Gerson, Assistant

_________________
Attorney General, Wayne A. Budd, United States Attorney, and
_______________
Barbara L. Herwig, Attorney, Appellate Staff, Civil Division,
__________________
Department of Justice, were on brief for appellants.
Stuart DeBard for appellee.
_____________
____________________
April 28, 1993
____________________
OPINION EN BANC
____________________

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

immunity attaches

"office

or

employment."

when the Attorney General

The

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).

certificate,

the Attorney

General can

Upon filing this

remove the

case to

federal court (if it started in state court), substitute the

United States as defendant,

and, effectively, immunize

employee from any personal liability.

This
General

appeal

may issue

denies that

focuses

a Westfall

on

28 U.S.C.
whether

2679(d).

the

Act certificate

any injury-causing action occurred.

the

Attorney

that simply
Suppose a

plaintiff

claims that

federal employee

clearly outside the scope of

plaintiff
"assault
that

has

alleged

there

Can

simply was

acts

employment, as here, where the

sexual

and battery."

committed

harassment

amounting

the Attorney

no such

event?

to

General certify
To

rephrase this

question using the statutory terms underlined above: Can the

certificate grant immunity simply by denying

the occurrence

-4-

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

plaintiff alleges a serious intentional tort, say assault or

rape, and also presents enough evidence to survive a summary
judgment
right

motion, the

to a

Attorney

jury

General

answer

trial.
and

the

will affect
"yes" answer
trial

certificate) will decide whether

judge

the

plaintiff's

means

that the

(reviewing

the

or not the alleged assault

occurred.
for a

"no" answer reserves the basic

jury, in effect, maintaining

factual issues

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."
finds support in the
related
case

circuits.
a

background;

Act certificate

need

legislative history;
and

direct

(as we
not accept

from

other

We therefore conclude that the Westfall

cannot deny the

shall explain in
the

basic "incident"
Part III)

plaintiff's version

-5-

occurred.

precedent

the relevant

We find nothing to suggest that Congress intended

contrary result.

though

statutory language, read together with

provisions; the

law

This "no" answer

charged,

the certificate
of

just how
___

it

I
Background
__________
Theresa
to the

Wood, the plaintiff,

federal employee

Major.

She

filed a

worked as secretary

defendant, Charles Owens,

federal court

United States and Major Owens.

complaint

an Army

against the

The complaint alleges

that

in October 1987 Major Owens told Mrs. Wood that he wanted to

go to a
into

hotel with her;

that later in

his office, "grabbed

caressed her arm,

her arm, pulled

took lint

like you, I like you

1987 he called

her toward him,

from her blouse

a lot and I

her

and said,

want to be intimate

'I
with

you;'" that in January 1988, he told her that he "would like

to have a relationship

together -- a sexual one;"

in February 1988 he told her that she was not

job

and would have to

here relevant,
insofar as it
various

leave.

the district

Eventually,

right for the

for reasons not

court dismissed

charged violations

by the

and that

the complaint

United States

specified provisions of federal and state law.

complaint,
assault and
Major Owens.

however,

also set

battery, and

civil

forth

law claims

rights violations

See Mass. Gen. L. ch. 12,

___
-6-

state

11I.

of
The
of

against

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

state

certificate.
General's

See
___

diversity

28

C.F.R.

certification

Attorney).
the

law,

Westfall

15.3 (delegating

authority

to

the

Act

Attorney

United

States

It said that Owens, "at all times referenced in

. . . Complaint,"

office

action)

was "acting within

the scope of his

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

incident
United

States

for

and

denying

asked the

Owens

and (because

rights law

immunity

Attorney,

had occurred,

2679(d)(1),
civil

States

as
of

court to
defendant,

any

28

law preserving

torts) to

claims against the United States.

dismiss

relevant

substitute the

federal preemption

a special

for intentional

that

U.S.C.
of

state

sovereign

the resulting

See 42 U.S.C.
___

2000e-16;

28 U.S.C.

2680(h).
The

district

substitution

because

court
it

would

believed

not
the

permit

the

Westfall

Act

out

the

-7-

certificate
complaint

was

alleged facts,
_______

actions fell
See
___

28

inadequate.
which

outside his

U.S.C.

employment" to

2671

It

pointed

(if

true)

"scope of office
(defining

that

showed

Owens'

or employment."

"scope

of

office

or

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

respondeat superior);
____________________

Miller
______

Inc.,
____

348,

364 Mass.

340,

v.
304

state's law of

Federated Dep't Stores,

________________________
N.E.2d

573,

579

(1973)

(Massachusetts law of respondeat superior places intentional

___________________

tort

outside line of
_______

committed to stop

duty, or scope

of employment, unless

victim's interfering with employee's

job

performance); Doe v. United States, 618 F. Supp. 503, 505-06

___
_____________
(D.S.C. 1984) (sexual harassment
aff'd, 769
_____

F.2d

174

(4th

outside the line of duty),

Cir. 1985);

Turner
______

v.

United
______

States, 595 F. Supp. 708, 710 (W.D. La. 1984) (same).

______
the court added, the

government did not deny that

And,

the acts

would have fallen outside the "scope of employment" had they

occurred.
On

appeal, a

district court, for

too,

affirm

panel

of this

similar reasons.

the district

court's

somewhat different reasons.

-8-

II

court affirmed
Sitting

the

en banc, we,

determination, but

for

Denying the "Incident"

______________________
Congress
before

us:

did not

whether

or

certificate can simply

The

not

the

deny that

statute's language,

convince us that the

directly consider

the question

Attorney

General's

any "incident"

occurred.

history,

and precedent,

however,

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
incident
________

of his
out

2679(d)(1).
the

of

office or employment
which

claim

working-hour tort

to

denying that

U.S.C.

for any
___

alleged

anything unusual

But, it seems to us more natural to

words as speaking of
thus

28

words as permitting

obtain immunity

simply by

occurred "at the time."

___________

the incident,"
_____________

arose."

The dissent reads these

Attorney General

read these

the

at the time of the

___________________

assuming

an action "at the

______
some

kind

of

time of
__

"incident"

occurred.
After all, the basic point of immunity doctrine is

-9-

to provide
that

government employees with a

falls into

Matteo, 360
______
472

certain categories.

U.S. 564,

U.S. 511,

See, e.g.,
___ ____

573-74 (1959); Mitchell

________

525 (1985); Harlow

______

800, 818 (1982).

defense for conduct

v. Forsyth,
_______

v. Fitzgerald,
__________

point

of

457 U.S.

The doctrine normally comes into play, not

when the defendant denies the conduct charged, but

defendant asks

Barr v.
____

a court

the

characterization,

to characterize
____________

certificate
namely to

is
claim

the conduct.

to

assert

that a

conceded) "incident" involved activity

when the

such

The
a

(hypothetically

that was "within the

scope of employment."
2.

The Statutory Scheme.

______________________

statutory provisions

support

our natural

The

surrounding

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

wrongdoing for
liable

under

statutory
falls

time.
____

The "type"

which employers, typically,

principles

of

scheme does not

outside

consists

of the

sort of

are vicariously

respondeat
superior.
_____________________

concern claimed

respondeat superior's
____________________

The

wrongdoing that

traditional

bounds,

regardless of when the wrongdoing allegedly occurred.

____
The statutory

scheme

involves both
____

the

Federal

-10-

Tort

Claims

Westfall Act's

Act's waiver
creation of

of

sovereign

immunity and

employee immunity.

the

The waiver

enables tort plaintiffs to bring against a special employer,

namely

the federal

government, the

same kind

of ordinary

___________________
tort

action

that plaintiffs

employers,

namely

wrongfully

hurt

liable under

an

often

action

bring

claiming

the plaintiff

and

against private
_______

that

that

an

employee

the employer

the doctrine of respondeat superior.

____________________

1346(b) of the Federal

Tort Claims Act, which is

is

Section
a general

waiver of sovereign immunity, seeks to permit just this type

of action.

It says:
[T]he [federal] district courts . . .
shall have exclusive jurisdiction of
civil actions on claims against the
United States, for money damages, . . .
for injury . . . caused by the negligent
or wrongful act or omission of any
employee . . . while acting within the
________________________
scope of his office or employment, under
________________________________________
circumstances where the United States,
________________________________________
if a private person, would be liable to
________________________________________
the claimant in accordance with the law
____________
of the place where the act or omission
occurred.

28 U.S.C.

1346(b) (emphasis

added).

But see 28
________

U.S.C.

2680 (limiting the waiver in various ways).

The

Westfall Act

goes

respondeat superior immunity

____________________

for

on to

federal

roughly tracks the federal government's

-11-

create

a type

employees

of
that

respondeat superior
___________________

liability.
employee

The Westfall Act sets forth a Basic Statement of

immunity

which

(edited to

emphasize

our point)

says,
[1] The remedy against the United States
provided by section [] 1346(b) . . .
_____________________
[2] for injury .
. . arising
or
resulting from the negligent or wrongful
act or omission of any employee . . .
while acting within the scope of his
________________________________________
office or employment
____________________
[3] is exclusive of any other civil
action . . . for money damages by reason
of the same subject matter against the
____________________________
employee whose act or omission gave rise
to the claim . . . .
28 U.S.C.
statement

2679(b)(1) (emphasis
cross-references

sovereign immunity.
to that in Section

added).

Section

Part 2 uses
1346(b).

Part

1346(b)'s

1 of
waiver

this
of

language almost identical

And, Part 3's

operative words

granting immunity from actions

seeking damages by reason of

the "same subject matter" would

therefore seem to refer, in

general way,

to

the respondeat superior

____________________

circumstances

found in the kind of suit that Section 1346(b) describes.

The

Westfall Act

similar language.

It

subsection now

before

provides for substitution

us uses
where the

Attorney General certifies that

the defendant employee was acting within
the scope of his office or employment at
the time of the incident out of which
-12-

the claim arose . . .

_________
28

U.S.C.

2679(d)(1)

(emphasis

added).

The

language

"acting within the scope of his office or employment" tracks

the language

of Section

1346(b).

claim," appearing right after

refer to the Basic
have

The

reference to

"the

the Basic Statement, seems to

Statement's kind of claim.

said, the Basic Statement,

And, as

we

in turn, refers to Section

1346(b), which creates liability if there is

1) an "injury"

2) "caused by" 3)

an employee's "negligent or wrongful

or omission," where 4) the employee

act

acted "within the scope

of office or employment," and 5) "under circumstances" where

state

law

would make

private

employer liable

for

an

employee's "act or omission."

The

federal

government's

liability

under

Federal Tort Claims Act is not perfectly congruent

federal

employee's immunity

sovereign
limitations

immunity

under the

waiver

that the

1346(b)).

Smith, 111
_____

1180, 1185 (1991)

S. Ct.

See,
___

"arising in a foreign country,"

v.

United States,
______________

("discretionary

924

The

exceptions

and

not contain

(but

Act does

outside of Section
_______

F.2d

e.g., United States

____ _____________
(exception for

28 U.S.C.
355,

362

function" exception, 28
-13-

with the

Westfall Act.

contains

Westfall

the

v.

torts

2680(k)); Kelly
_____
(1st
U.S.C.

Cir.

1991)

2680(a));

Nasuti v. Scannell, 906

______
________

F.2d 802, 805, 806 (1st

(limitation for co-employee plaintiff,

Cir. 1990)

5 U.S.C.

8116(c),

and exception for assault and battery, 28 U.S.C.

2680(h));

Hamrick
_______

v. Franklin,
________

931 F.2d 1209,

1212 (7th

(exception for libel and interference

28

U.S.C.

2680(h)).

And,

the

Cir. 1991)

with contract rights,

federal government

may

escape liability under Section 1346(b), even if the employee

is immune, by asserting
U.S.C.

2674.

state or federal law defenses.

Nonetheless, the

"government-liability-creating"
removing"

provisions

provisions involve

makes

the same

and

Since

of the

that

basic kind
____

both

no

to apply

concededly do

Act as

Westfall

not involve any kind

___

superior liability.
________
that

the

Nor,

taking from

deciding whether an egregious

namely a

grants of immunity

Act

cases, there
in cases

that

of potential respondeat
__________

is there any reason to

the jury

of

And that fact is critical

Congress intended to limit

reason

sets

of case,

to job-related, respondeat superior, kinds of

____________________
is

basic

"employee-liability-

clear

respondeat superior kind of case.

___________________
here.

language

28

interpret

its traditional

job of

tort (well outside the "scope

of employment"), in fact, occurred.

There
before us

is, then,

other than

no

reason to

its natural

give the

reading, a

statute

reading that

-14-

requires the
asserting

Attorney

General

purposes), not

"incident" underlying
General need not
____

to

to deny,
____

assume
______

the occurrence

the plaintiff's claim.

deny the

incident to obtain

job-related immunity the statute seeks

Attorney

General

should
______

incident, to obtain
is not

job-related,

(for

not

be

by

of some

The Attorney
the kind

to bestow.

able,

immunity-

of

And, the

denying

the

employee immunity for a tort claim that

regardless

of

whether

the

Attorney

why

Congress

to respondeat
__________

superior
________

General believes the claim to be true or false.

3.
decided

Purpose.
_______

to link

not a

can

employee immunity

principles as described.
a public,

One

private,

imagine

Federal employee tort immunity has

objective, namely

the need

for

public employees faithfully to

Gregoire v. Biddle, 177
________
______
v.

discharge their duties.

F.2d 579, 581 (2d Cir.

See
___

1949); Barr
____

Matteo, 360 U.S. 564, 571 (1959); Westfall v. Erwin, 484

______
________
_____

U.S. 292, 296

"personal
diminution

(1988).

It aims at

liability" in
in

the vigor

implementation."

avoiding "exposure"

order

to

prevent "a

of

Federal

to

substantial

law enforcement

and

H.R. Rep. No. 700, 100th Cong., 2d Sess.

3, reprinted in 1988 U.S.C.C.A.N.

_____________

at 5947.

The resulting

immunity reflects a balancing of judgments, on the one hand,

about

the

likelihood

that potential

tort

liability will

-15-

adversely affect

job performance

the potential harm such

plaintiffs.

That

inside, and outside,

and, on the

other, about

immunity might cause potential tort

balance

may differ

the scope of

as

between

employment.

After

cases
all,

one might believe that employees

performance to
negligent

often can change their job

avoid, even unfounded, suits

performance of

that job,

based on, say,

but that

they

lack a

comparable ability to avoid, in a similar way, false charges

of

an egregious tort (e.g.,

possible

effect

performance

might

justification for
jury

trial

torts.
53

Cf.
___

of

such
seem

murder or assault).
non-duty-related

too

uncertain,

depriving a plaintiff

in cases

involving

or

And, the

suits

on

too

weak,

of her right

job
a

to a

non-duty-related egregious

Granfinanciera, S.A. v. Nordberg,

____________________
________

492 U.S. 33,

(1989) (Congress may substitute statutory non-jury trial

action for common law jury trial action where former "action
inheres in, or lies against,
sovereign
simply

capacity.").
reflects

the Federal Government in

Hence,

different

the

statute, as

Congressional

its

enacted,

judgments

in

different circumstances.
As the

dissent suggests,

interpretation means

that sometimes

pp. 31, 34,

Driver

infra, our
_____

A, who

admits

negligence will receive immunity, while less culpable Driver

-16-

B,
not

who denies the existence

receive immunity.

Driver
related,

A can

Driver

hypothetically, for
seem anomalous given
And, it

But,

claim that

while

is that

of any accident
this could

be so

the underlying
B

cannot

make

argument's sake.

at all, would
only where

incident is
this

This

claim,

jobeven

result does not

immunity's job-related public purpose.

public purpose, not

relative culpability,

that controls the shape of the legal doctrine.

-17-

B
History
_______

for

our

The Westfall

Act's history offers

reading

the

of

Act.

First,

direct support
the

House

of

Representatives Report suggests that Congress did not intend

the Westfall Act to confer immunity for tort
the respondeat superior
___________________
Act

permits

context.

substitution

of

It

claims outside

simply says that

the United

States

for

the
the

defendant employee
whenever the Attorney General determines
that the act or omission alleged to have
caused
the claimant's
injuries was
within the scope of
the employee's
office or employment.
H.R. Rep. No.
1988

700, 100th

U.S.C.C.A.N. at

Cong., 2d Sess.

5952.

The Report

9, reprinted in
_____________
thereby seems

to

assume the Section 1346(b) elements of an act that caused an

injury.
Second,
permit

the Report

substitution

says

that the

Act does

not

the

conduct

alleged

is

where

"egregious:"
[T]he United States will incur vicarious
liability only for . . . torts . . .
committed within the "scope of . . .
employment." If an employee is accused
of egregious misconduct, rather than
_____________________
mere negligence or poor judgment, then
the United States may not be substituted
as the defendant, and the individual
-18-

employee remains liable.

Id.
___

at 5, 1988 U.S.C.C.A.N. at 5949 (emphasis added).

language suggests
certificate simply
assault, or some

that the Act

does not allow

___

to deny, say, an
other "egregious

during working hours.

This

an immunity

alleged killing, rape,

misconduct" that

occurs

It suggests that the Act requires the

certificate to explain, instead, why the alleged

misconduct

was not so "egregious" as to place it outside the employee's

"scope of employment."

The dissent's interpretation of the

Act is inconsistent with this statement in the Report.

Third,
restore
that

Congress

approximately the

Cong., 2d

292 (1988).

leading immunity

See
___

cases all

H.R. Rep. No.

to

immunity

700, 100th

other case

involved "incidents"

to have occurred.

F.2d 579 (2d Cir.

(1959); Westfall v.
________

1949); Barr v.
____

Erwin, 484
_____
we have

Matteo, 360 U.S. 564

______
And,

in

parties conceded

or

purposes the occurrence

of

kind of harm-causing "act or omission."

-19-

that

Gregoire v. Biddle,
________
______

U.S. 292 (1988).

found, the

assumed for immunity-conferring

some

employee tort

Act

We have examined the pre-Westfall Act cases.

defendants conceded

every

Westfall

Sess. 3-4 (1988), reprinted in 1988 U.S.C.C.A.N.

_____________

5945, 5946-47.

177

federal

the

existed prior to the Supreme Court case of Westfall v.

________

Erwin, 484 U.S.

_____

The

intended

We could find

no
__

contrary

example

"constitutional"

of

tort case

either
in

an

ordinary

which a

claim of

rested on a denial that any incident occurred.

v.

or

immunity

See
___

Chagnon
_______

Bell, 642 F.2d 1248, 1256 (D.C. Cir. 1980) ("doctrine of

____

immunity assumes official error"), cert. denied, 453

_______________________
_____________
911

(1981); Scheuer
_______

v.

Rhodes, 416
______

U.S. 232,

U.S.

242 (1974)

("Implicit in the idea that officials have some immunity . .

. is a recognition that they may err."); see also Heidelberg
________ __________
v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (distinguishing
______
the defense of "absolute immunity" from
claim").

Nothing

in the

that Congress wanted to

"failure to state a

Westfall Act's

history suggests

change the pre-existing practice in

this respect.
Fourth,
immunity"

the

by overriding

Westfall

protection

(the

changed

the Supreme Court's

the doctrine to "discretionary

97, and by extending to

Act

limitation of

functions," 484 U.S. at 296-

all federal employees a

certification

available only to government

"official

procedure)

drivers.

28 U.S.C.

procedural
previously
2679(d)

(1982) (amended by the Westfall Act).

irrelevant

here.

Driver's Act
on

The

latter

The former purpose is

offers

added support,

immunity cases, like common

whether the

for

law cases, turned

"incident" (essentially

an

auto accident)

-20-

fell within the

basic

"scope of employment,"

incident occurred.

See,
___

not on whether

e.g., Henderson
____ _________

any

v. United
______

States, 429 F.2d 588, 590 (10th Cir. 1970) (looking at "time
______
of

the accident").

Moreover, those

cases indicate

that

Driver's Act "immunity," like Westfall Act "immunity," arose

in a respondeat superior context.
___________________
We recognize
immunity to

the

superior liability
________
Act,

See id.
___ ___

that the Driver's

government's Section
more explicitly

for, in the context

Act tied employee

1346(b),

than does the

of removal, the

respondeat
__________
Westfall

Drivers Act said

that

if the

federal court

plaintiff would

finds

(before trial)

have no Section 1346(b)

United States,

the "case

court."

28

U.S.C.

indicates

that the

shall

Driver's Act

drivers against claims of

remedy against the

be remanded

2679(d)

that the

to the

State

(1982).

This

language

would not
___

have protected

"egregious torts," whether or not

they allegedly occurred during the driver's work hours.

Henderson, 429
_________

F.2d at

590 (state law

See
___

respondeat superior
___________________

principles define "scope of employment); Miller v. Federated

______
_________
Dep't Stores,
_____________

364

(intentional tort
unless committed

Mass.

at

348,

is normally outside
to prevent

victim

performance); McGowan v. Williams,

_______
________
-21-

304

N.E.2d

scope of

at

579

employment

interference with

job

623 F.2d 1239, 1242 (7th

Cir.

1980)

("the

individual

federal

capacity"

employment).

if

he

The Westfall

Act

language, leaves

But

it apparently does so

namely

to

make

can be

acted outside

sued

"in

his

his

scope

of

Act, while copying much Driver's

out this

clear

substitution, can

specific remand

for a reason
that

the

provision.

not here relevant,

United

States,

assert various defenses that

not, have been available

2674;

driver"

to the employee.

after

may, or may

See
___

28 U.S.C.

H.R. Rep. No. 700, 100th Cong., 2d Sess. 5, reprinted

_________

in 1988 U.S.C.C.A.N at
__

5948 ("ordinary tort defenses .

available to the United

States").

We therefore do

. .

not see

how one could find much of significance in this difference.

C
Direct Precedent
________________
We
district

have

court

found one

case directly

University of Vermont,
______________________
plaintiff

claimed

harassed her.
certificate.
because the
that

the

that

Act does not

alleged

on

966 F.2d
a federal

The Attorney
The Second

circuit

court

point.
67

case and
In

(2d Cir.
employee

General filed

McHugh
______
1992),

had

one
v.
the

sexually

a Westfall

Act

Circuit overruled the certificate

permit the government

incident

is

"within

the

to certify
scope

employment" simply "by denying that the acts occurred."

of
Id.
___

-22-

at 74.
need

It added (as do we, in Part III) that the Government

not

incident,
acts"
The

accept the

plaintiff's

version
_______

of the

alleged

for it can argue that the "context of the alleged

places them
trial

within the "scope

court,

it

explained,

of employment."
may

hold

evidentiary hearing to resolve factual disputes

"context."

Id.
___

Our holding

Id.
___

pre-trial
relevant to

here essentially follows

the

Second Circuit.
In Jackson
_______
Colo. 1990),

v. United States, 751 F. Supp. 911 (D.

_____________

the plaintiff

alleged that the

Army psychotherapist had engaged

her during

treatment.

defendant, an

in sexual intercourse with

The district

court held

invalid a

Westfall Act certificate that simply denied that the alleged

event had taken place.

See id. at 913.

___ ___

Language,
the same

general

Westfall Act
is confined
superior"
________

context, history, and precedent lead to

conclusions.

1) The

immunity that

confers upon federal employees

to, a

certain context, namely

context, described roughly

the Federal

Tort Claims Act.

certificate

simply

extend a form of this

to deny

arises in, and

the "respondeat
__________

in Section 1346(b) of

2) To permit
that

the

a Westfall Act

anything occurred

would

immunity well outside the "respondeat

__________
-23-

superior" context to
________

"egregious" torts allegedly

at

permit, to

work.

It would

Attorney General

a significant

and district judge (rather

committed
degree, the

than the jury)

to decide whether allegations of such non-work-related torts

were

true

or false.

3)

We

therefore conclude

that the

certificate cannot assert "immunity" simply by

anything occurred.
words

naturally

We read

the statute to

say, namely

that

denying that
mean what

the Attorney

its

General's

certificate must assume the existence of an "incident out of

which the claim arose."
III
What "Incident" Must the Certificate Assume?
___________________________________________
We
have not yet

are aware

of one

important question

asked or answered.

that we

Given our interpretation,

could a plaintiff, through artful pleading, transform a jobrelated tort into a non-job-related tort simply by alleging,
say an "off-duty" state of mind (such as "malicious" intent)
or

by alleging

that

a negligent

intentionally?

If so,

practice, the

job-related

will

action

federal

was carried

employees lose,

immunity that

Congress

out
in

clearly

intended the Westfall Act to provide?

Consider,
might

normally file

for example,
a suit

an

accident

victim

charging negligence.
-24-

who

Suppose

that such a victim also claimed

acted

with

state

of

that the defendant employee

mind

that,

under

traditional

respondeat superior doctrine, would place the action outside

___________________
the

"scope

of

employment,"

"deliberate" state of
Stores, 364
______
tort

is

Mass. at 348,

normally

committed

to

performance).
facts

mind.

victim

or

v. Federated Dep't
_______________
at 579

of

(intentional

employment"

interference

unless

with

job

that the victim alleged detailed

indicating that, at the

time, the employee

Weiner v. Mairs, 234 Mass.

______
_____

125 N.E. 149, 150 (1919).

accept

"intentional"

See Miller
___ ______

"scope

Or, suppose

"frolic of his own."

an

304 N.E.2d

outside

prevent

say,

was on a
156, 158,

To force the Attorney General to

all such facts as valid might often prevent her from

removing the
United States

case from

state court, from

as defendant,

substituting the

and from freeing

the employee

from the burden of the lawsuit.

This
interpretation

problem,
that would

deny the basic "incident."

that

the

certificate

however,

does

permit the

not

require

an

Attorney General

to

Rather, we can (and

assume

do) insist

some kind of harm-causing

____________________________

incident, while leaving the Attorney General free to dispute

________

characterizations of the
related facts.

incident and subsidiary

The Second Circuit held

immunity-

precisely the same

-25-

in McHugh.
______
that

the

966 F.2d at
Attorney

74.

Moreover, we

General's

plaintiff's incident-describing
facts

and that

the

court

may

certificate

injured

906 F.2d 802

while

riding in

may

resolve any

such

to trial.

(1st Cir. 1990),

the

contest

and incident-characterizing

conflicts, relevant to immunity, prior

v. Scannell,
________

previously held

back of

factual
In Nasuti
______

the plaintiff,
government truck

driven by federal employee Scannell, sued Scannell, claiming

that Scannell had intentionally injured him by driving fast,
_____________
thereby jostling him,
"in spite
that these

of" Nasuti's

and throwing him

from side to

"entreaties" to stop.

factual allegations, if true,

We

side,
assumed

would have placed

Scannell's

actions outside the

"scope of

his employment."

See Miller, 364 Mass. at 348, 304 N.E.2d at 579 (intentional

___ ______
torts normally outside "scope of employment").

But, we held

the

pre-trial

the key

immunity-

immunity

evidentiary

certificate

hearing that

valid,

pending

would resolve

related factual dispute, namely whether Scannell intended to

________
harm

Nasuti.

certificate
causing

See
___

id. at
___

808.

The

General's

in Nasuti did not deny the existence of a harm______

incident.

It

denied

related

characterizations of that incident.

certificate

Attorney

before us

denies

descriptions

and

By way of contrast

the

the existence

of any

harm-

-26-

causing incident at all.

We recognize an obvious problem with the line that
we, like the

Second Circuit, have tried to draw.

How clear

is the line?
particular

Will

we later

factual

have to

circumstances

answer questions

about

the

in

difference

between denying facts that amount to a "characterization" or

"description"

and

denying that

occurred at all?

any

harm-causing incident

Compare Unwin v. Campbell, 863

_______ _____
________

133 (1st Cir. 1988)

F.2d 124,

(extent of defendant's participation in

incident is part of qualified immunity inquiry) with Domegan

____ _______
v.

Fair, 859
____

causation is

F.2d 1059,
not part

1065 (1st

of immunity

Cir. 1988)

(denial of

inquiry) and
___

Bonitz v.
______

Fair, 804 F.2d 164, 167 (1st Cir. 1986) (same), overruled on
____
____________
other grounds,
______________

Unwin v.
_____

Campbell, 863
________

F.2d

at 132.

We

concede this kind of administrative problem would likely not

arise

were we to read

the statute either

the certificate to deny the

2) as insisting that
alleged

account

believe

the

1) as permitting

"incident" in its entirety,

or

the certificate accept the plaintiff's

as totally

problem is

valid.

But, we

least

potential

the

nonetheless
evil.

The

administrative problem is not insuperable.

Cases that raise

this kind of

issue seem

we have

pointed

the more

out

rare.
serious
-27-

Moreover,
harm

that would

already
accompany

either

of the

constricting,
Congress

other choices,
the practical

intended to confer.

administrative

consideration

namely unduly
scope

of

we believe that

the

immunity

And, we cannot
justification for

major restraint upon the plaintiff's

Consequently,

expanding, or

find in this
imposing a

right to a jury trial.

our "middle

more faithfully to the statute itself.

that

ground" adheres

-28-

IV
Other Matters
_____________
We add two final,
oral

argument

in

this

unrelated points.

case the

Fourth

First, after

Circuit

decided

Johnson v. Carter, No. 90-3077 (4th Cir., Jan. 15, 1993), in

_______
______
which

it held

Westfall

that

Act certificates.

held to the contrary.

357; Nasuti, 906
______
not

to

courts cannot

assess

reviewability.

Id.
___

at 7.

previous

The Government
holding

And, we shall not do so.

validity of

We previously have

Kelly v. United States,

_____
_____________

F.2d at 812.
our

review the

in

924 F.2d at
has asked us
respect

to

Second,

the

Government

originally

appealed

totally separate issue, whether or not federal law preempted

certain

of Wood's state law

claims.

The

consider that aspect

of the

interlocutory appeal

did not lie from

decision of that question.

F.2d 18, 22 (1st Cir.
decision

panel refused to

appeal on the

ground that

the district court's

See Zayas-Green
___ ___________

1990).

v. Casaine, 906
_______

We have accepted the

on that matter in this en banc proceeding.

panel's
Hence,

we have not decided the preemption issue on the merits.

Government

an

The

remains free to raise the issue on appeal from a

final judgment.

-29-

Applying our basic determination of the law to the

case

before

impermissibly,

us,

we

find

has rested

its

that

the

Government

certificate

here,

simply upon

denial that any "incident" took place.

could

characterize the

would

bring them within defendant's "line

has

not tried to

do so.

incidents at

We do not see how it

We

issue in

a way

that

of duty," and it

consequently believe that the

district court's decision denying substitution and dismissal

was correct, and that decision is
Affirmed.
________

-30-

COFFIN, Senior Circuit Judge, SELYA

____________________
Judges,
______

dissenting.1

charged

with

an

incidents never

In

this

intentional

In

federal
that

occurred, and the Attorney

2679, accepting

our

tort said

"scope of employment" certificate

U.S.C.

case

and BOUDIN, Circuit

_______

view, the

the

alleged

General issued a

under the Westfall Act, 28

the employee's version

Attorney

employee

General's

certificate must be respected unless

of events.

scope of

employment

and until set aside

by

the district court; and the certificate can be set aside only
if the

judge determines--in this case,

_____

hearing

to decide

after an evidentiary

whether the incidents

occurred--that the

employee engaged in improper conduct outside the scope of his

employment.
I.
In the Westfall Act,
to

determine whether

against
the scope

to

Congress told the Attorney General

certify that

a federal

employee,

whom a civil suit has been filed, was acting "within

of his

incident out

office or employment

at the

of which the claim arose . .

2679(d)(1), (2).

Where

directs that the

case, if initially brought

. ."

time of

the

28 U.S.C.

this certificate issues, the statute

shall be removed to federal court

in state court,

and in any event that "the

United States

shall be substituted as

the party defendant."

____________________
1This opinion represents the work, as well as the views,
of all three judges so we have signed it jointly.
-2828

Id.
__

The

as it

statute makes the certificate "conclusive"

is used to remove

2679(d)(2).

a case to federal

court.

Id.
__

The statute does not address, and thereby leaves

open, the possibility that

a

so far

certificate, it may be

where the Attorney General grants

reviewed so far

as it substitutes

the United States for the employee.

On

February

Massachusetts,
certificates,

8,

who
28

1990,

is

delegated

C.F.R.

certificate in this

the

15.3,

U.S.

Attorney

authority to
issued

case affirming that

for

issue

such

Westfall

Act

Owens at all

times

referenced in the complaint was "acting with the scope of his

office . . . ."
for Owens.

The

United States then

substituted itself

Needless to say, the government has never claimed

that the incidents,

if they occurred as

be behavior within the

certificate amounts

Wood alleged, would

scope of Owens' duties.

to an

assertion that

Rather, the

Owens was at

all

times acting within the scope

of his employment because,

_______

in

the Attorney General's view,

the incidents did not occur

as

alleged by Wood.
Accordingly,

we

now

face

Attorney General's delegate has

plaintiff
simply

has sought to set

assuming

the

complaint's allegations
held that the grant

a situation

in

which

the

issued a certificate and the

it aside.

certificate

to

One option--that of
be

false)--we reject.

of a scope certificate is

true

(and

the

This court

has

reviewable as

-2929

to substitution because any other reading could foreclose the

plaintiff's
v.

claim without a

judicial determination.

Scannell, 906 F.2d 802 (1st Cir. 1990).2

________

Nasuti
______

The government,

after initially resisting such district court review, has now

accepted its necessity.

We are

equally confident that the

opposite alternative

must be rejected: the district court cannot proceed merely by

assuming

the

certificate

complaint's allegations
false.

Such

an

to

be

assumption

true and

would

give

the
the

plaintiff complete control over the certification process and

permit the

certificate to be nullified

finding.

The

statute

permits a

without any judicial

certificate

where

"the

defendant employee was acting within the scope of his

office

or employment at

In our

the time of the

incident . . . ."

view, this language speaks not to what plaintiff or defendant

may

allege
______

but

rather

to

the

actual

events

and

their

connection to the employee's office or employment.

Finally,

to

us it

is of

no

moment that

the statute

refers to "the incident out of which the claim arose."

an

accident of

case--that the
the

Attorney

certificate,

language--a

reflection of

statute posits a
General
that the

the most

"happening."

concluded,

as

events claimed

It is

In

evidenced
by plaintiff

common

this case
by

the

did not

____________________
2That is so, for example, where the Westfall
mandates substitution but the tort is one for which
United States has not waived its sovereign immunity.
-3030

Act
the

occur, at least in the form alleged

difficult

to find here

conceded

by

a set of

everyone:

relationship with Wood,

occasions
is

Owens

by Wood.

But it is

"incidents" or occurrences
did

have

met and talked

supervisory

with her on

various

and danced with her at an official function.

disputed is

occasions,

much

plaintiff

might

precisely what
as

not

was said

government

give two

quite

and done

driver

different

and

What

on these
a

private

versions of

an

would apply even

if

accident.
Indeed, we think

the Westfall Act

there were less of an "incident" than is indisputably present

____
in this case.

For example, surely the statute

the same force whether

applies with

a postal service driver says

that he

did not hit the plaintiff's car or that he did so but was not
at fault.

"Incident," in

possibility

other words,

that something

did not

must encompass

happen as

well

the

as the

possibility that it did.

Against

this background, we confront a single question:

should the judge or

the jury make the

as to

did not

occur and

its relationship

employment?

The

is peculiar

Owens'
because

what

did or

office or
the

same issue

happens to

initial determination

case
be

common both

to
only

to the

validity

of

controversy
molested

the

certificate

between

and

plaintiff

and

Wood, the certificate is

to

the

merits

defendant.

of
If

the
Owens

invalid and he is liable;

___

-3131

if it never happened

and he maintained a

employee relationship,

then

proper supervisor-

his behavior

toward

Wood

was

within the scope of his employment and he has no liability.

___
II.
Although the question

of who should decide

is not free

from doubt, we believe that the Attorney General's

certificate cannot be set aside unless and until the district
judge concludes that Wood's version of events
therefore that

Owens could not

scope of his employment.

one most consistent
policy,

with Supreme

have been acting

within the

This course appears to us to be the

with statutory language,

Court

and other

sound administration of the statute.

addressed in turn.

is correct and

with Congress'

precedent, and

with

Each of these points is

We

start

with

interpretation
Landreth,
________

the

requires.

471

U.S.

681,

statute's
See
___
685

employee.
[the]
28

The

(1985).

proper

The

Westfall

v.
Act

filing of a certificate, to

to substitute the United States

statute provides

that "upon

for the

certification,

action . . . shall proceed" against the United States,

U.S.C.

2679(d)(4).

an official act
is

as

Landreth Timber Co.

____________________

operates automatically, upon the

remove the case and

language,

set

with legal consequences unless

aside.

implication,

The certificate, in other words, is

but

The
it

official
is

act

operative

is
until

and until it

reviewable,
found

by

invalid,

-3232

protected by the same presumption of validity that ordinarily

attaches

to

official

action.

See
___

Citizens to Preserve
______________________

Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); United
_________________
_____
______
States
______

v.

Chemical Foundation, Inc., 272

__________________________

U.S.

1,

14-15

(1926).
The certificate
case

filed by

is not facially

the Attorney General

invalid.

As

we have noted,

nothing in the statute that requires the

in this
there is

Attorney General or

the court to accept the plaintiff's version of events as true

without

scrutiny

sufficiently
Nor

is

(and

such

odd that a

there

requirement

court could not

anything

that prevents

would

be

lightly infer it).

a

certificate

from

issuing where the "incident" charged in the complaint did not

occur

and

the defendant

occurring

wholly

employment.

engaged

within

the

only
scope

in proper
of

his

behavior
office

or

In sum, so far as the statute is concerned, this

_______

is a proper certificate, unless

and until a factual

finding

in Wood's favor undermines the premise of the certificate.

It

is even

clearer

that

the

congressional

policies

underlying the statute support the government's position.

present,

Owens is

not presumed

military

officer who

has

advances to an employee
his official duties.
General must have

to be a

been accused

molester; he
of making

whom he supervised in the

To issue his certificate,

concluded that in

-3333

At
is a

improper
course of

the Attorney

this case the

advances

were not
scope

made.

Where the

Attorney General

certificate, Congress intended

only from liability for

has issued

to spare employees not

misconduct related to their official

duties but also from the burden and expense of defending such
____
suits.3
In

other

words,

the

Westfall

immunity statute saying that

against

liability and

underlying
federal

forum and

the certificate.4

simple

employee to

assert that

Rather, by its precise terms and its

relieve the

employee

the case if the

__

from the

cost and

Attorney General issues

A certificate having issued in this

Owens should

having the

not a

policy, the statute meant to lift the case into a

effort of defending

surely

is

certain misconduct is protected

leaving the

immunity in litigation.

Act

not

be deprived

government defend the

of

case,

the advantage

case, a protection

of

that a

negligent postal employee would gain as a matter of course.

Turning

to precedent,

the

Supreme Court

has not

yet

____________________
3The Supreme Court has been equally concerned, in
fashioning immunity doctrine, with "the general costs of
subjecting officials to the risks of trial--distraction of
officials from their governmental duties, inhibition of
discretionary action, and deterrence of able people from
public service."
Harlow v. Fitzgerald, 457 U.S. 800, 816

______

__________

(1982).
4The statute directs "substitution" of the United States
for
the
defendant immediately
upon issuance
of the
certificate, it removes the case if pending in state court,
and it gives the defendant who is denied a certificate an
immediate right to challenge this decision before the judge.
28 U.S.C.
2679(d)(1), (2), (3). See also H.R. Rep. No.
___ ____
700, 100th Cong., 2d Sess. 2 (1988).
-3434

addressed

the issue in this case, but it has spoken recently

and emphatically about the procedures for

questions.

The single thread

resolving immunity

that runs through these recent

decisions is that immunity-related issues should be decided

________________________________________________
by the judge and at the earliest opportunity.5
_______________________________________________
the

Supreme Court has said, not

liability after trial

but also immunity

511, 526 (1985).

invalidated without
burden

If the

a factual

is, as

only immunity from ultimate

going to trial at all that matters.

U.S.

It

from the burden

of

Mitchell v. Forsyth, 472

________
_______

certificate in

this case is

finding, Owens will

face the

of going to trial even though the evidentiary hearing

might show

that at all

times he conducted

himself properly

and within the scope of his office.

As for circuit court
Act

itself, our

view that
are

precedent relating to the Westfall

own Nasuti
______

decision directly

"where the facts underlying

disputed,

. the

matter

resolved by the court . . . ."

panel

decision

continue

is

to find the

the scope certificate

[must]

be independently

906 F.2d at 813.

not binding

on

supports the

an

reasoning in Nasuti
______

en
__

Although a

banc court,
____

we

persuasive and do

____________________
5See, e.g., Hunter v. Bryant, 112 S. Ct. 534, 537 (1991)
___ ____ ______
______
("Immunity ordinarily should be decided by the court long
before trial."); Siegert v. Gilley, 111 S. Ct. 1789, 1793-94
_______
______
(1991) (same); Anderson v. Creighton, 483 U.S. 635, 646 n.6
________
_________
(1987) ("qualified immunity questions should be resolved at
the earliest possible stage"); Mitchell v. Forsyth, 472 U.S.
________
_______
511, 526 (1985) (same); Davis v. Scherer, 468 U.S. 183, 195
_____
_______
(1984) (same); Harlow v. Fitzgerald, 457 U.S. 800, 818
______
__________
(1982)(same).
-3535

not

think

the case

circuits,

distinguishable from

in accord with

this one.

Nasuti, have held

______

Other

or assumed that

the district judge may resolve facts that arise in the course
of

a challenge

Catterson,
_________

to

967

a certificate.

F.2d

929,

See, e.g.,
___ ___

936 (3d

Cir.

1992);

Schrob
______

v.

Brown
_____

v.

Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991).

_________
The

only circuit "precedent" to

the contrary is a very

brief statement in McHugh v. University of Vermont, 966 F.2d

______
______________________
67 (2d Cir. 1992).
the end of a
may

well

follows.

With respect, this statement is buried at

long opinion addressed to different

be

qualified

Id. at 74.
__

by the

sentence

that

issues and
immediately

It is by no means clear that the court

thought it was deciding the issue presented in this case, and

it certainly gave
other, which

no reasons for deciding it one

strongly reinforces

way or the

the inference that

it did

not intend to decide the issue at all.

Finally, while this is the least weighty
think that the

reading urged

of reasons, we

by the government

is the

most consistent with sound administration of the statute.

seems quite
district
version

likely that

judge
of

finding would

would

events were
sustain

the evidentiary hearing

be

an efficient
accepted

after

the certificate

course:

(by

It

before the
if

the hearing,
and

one

Owens'
that

collateral

estoppel) dispose of Wood's

time.

claim on the merits at

the same

If instead Wood's version were accepted, then we think

-3636

Owens would similarly

resubstituted
before

as a

a jury

be bound

by the result;

defendant,

on other

and the

he would

case would

unadjudicated issues,

be

proceed

such as

the

issue of damages.6
By contrast,

under

the majority's

approach,

district

courts--and ultimately this court--will continue to engage in

difficult, time-wasting controversies

(like this one)

precisely which facts pertaining to the

____________

scope of employment

issue are for the district judge and which

Hair

splitting

distinctions

multiply.7

If

Congress

should be

obeyed.

But

hardships

upon

Congress' statute
direction.

and

commanded this

and

and its policy

are for the jury.

anomalous

there is no reason

ourselves

the

about

results

course,

then

will
it

to inflict these

judicial

both look in

process

when

the opposite

III.
____________________
6If the employee is content to have the government
substitute itself for him to defend his conduct, then we
think
that his
interests
and
the government's
are
sufficiently aligned for collateral estoppel to operate
against him. See Montana v. United States, 440 U.S. 147, 154
___ _______
_____________
(1979) (one who assists in the prosecution or defense of an
action in aid of some interest of his own is bound);
Restatement (Second) of Judgments
39.
7For example, suppose Wood said she had been offensively
touched but Owens said he touched her only accidentally as he
was handing her a stack of correspondence. If the Attorney
General then granted a certificate, there would be an
"incident" and a clear scope of employment issue. Presumably
the certificate could not be set aside without a district
court factual finding.
Why this case should follow a
different procedural course is hard to understand.
-3737

The
should be

faced

perhaps the
that it
that

against the

head on.

resolution

The main

adverse

only practical argument against

deprives the plaintiff of trial

goes to

validity

arguments

the heart

of the

of the

certificate.

consequence,

our reading, is

by jury on an issue

merits, as
That

we propose

well as

common issue,

to the
turning

directly

on credibility in this case, may be well suited for

jury resolution.
jury

trial

Amendment
vigore
______

This is not a small objection; the right to

as at

common law

itself.

While the

is

preserved by

the Seventh

Seventh Amendment

ex proprio
__________

does not apply in this case, courts are protective of

jury trial,

e.g., Pernell v.
____ _______

(1974), and do not

Southall Realty, 416

_______________

lightly read an ambiguous statute

U.S. 363
to cut

off the opportunity of a litigant to obtain a jury.8

Yet under the Westfall Act the inevitable and deliberate
effect of what
all

Congress has done is to supplant the jury for

__

cases within the

ken of

that statute,

including cases

where the scope question goes to the heart of the merits.

the

ordinary tort

negligently runs
what

is

lost

substituted

claim

arising when

into another
to

for the

a government

car, jury trial

plaintiff
employee.

when

the

In

driver

is precisely
government

Because claims

is

against the

____________________
8The Seventh Amendment does not apply because there is
no constitutional right to a trial by jury against the United
States.
See Lehman v. Nakshian, 453 U.S. 156, 160 (1981).
___ ______
________
Through the statute and the certificate, Congress has made
this suit at present one against the United States.
-3838

United

States

U.S.C.

are not

2402, neither

nor the question

normally subject

the plaintiff's claim

of damages is submitted to a

of "deliberate" harm, such

or an FBI agent

to jury

as might arise if a

were sued for assault, could

in a bench trial on the merits.

See 28 U.S.C.
___

trial, 28

of negligence
jury.

A case

prison guard
equally result
2680(h).

Policy concerns would be quite different if the Attorney

General's certificate were
adjudication of

allowed to preclude any

Wood's claim.

abandoned its earlier position

that its certificate
circuit

decision

Carter, 983
______

However, the

judicial

government has

(which we rejected in Nasuti)

______

is conclusive and now disowns

that reaches

such

F.2d 1316 (4th Cir. 1993).

a recent

result, Johnson
_______

v.

Under our reading of

the statute, the plaintiff simply gets an adjudication on one

issue by the
discovery

trial judge

and full opportunity

witnesses, which is the

against

instead of a

the government.

occurred, this is
__

jury, with

adequate

to present and cross-examine

way that plaintiffs normally proceed

And given

a case against

until the certificate is set aside.

that substitution

has

the government unless

and

With

respect,

majority seem to

the

more

technical

us unpersuasive.

arguments

In framing the

Act, Congress no doubt had in mind the classic

"the

of

the

Westfall

case in which

wrongdoing" (if it occurred) was the type for which the

government

would

be responsible

under

respondeat superior
__________ ________

-3939

doctrine.

But

a claim

of

certifiable

conduct (under the

perfect

symmetry between

the

Westfall Act) and government

liability (under the Federal Tort Claims Act) is refuted, and

definitively so, by United States v. Smith, 111 S.
______________
_____
(1991).

Smith
_____

employee

for conduct within the scope

there is no

held

that the

Westfall

Ct. 1180

Act immunizes

the

of employment even if
_______

remedy against the United States.

Id. at 1185.
__

Accord, H. Rep. No. 700, supra, p. 6.

______
_____
Similarly, it seems to us beside the point that Congress
plainly did not intend to grant immunity to employees who act

egregiously.
anyone;

he is

employee might

Owens

has not

charged
_______

been

found to
_____

with misconduct,

be accused

of

have

just

molested

as a

negligent driving

agent of assault during the arrest of a suspect.

postal

or an

FBI

If Owens is

found by the district judge to have engaged in harassment, he

will

not have immunity and will be personally liable.

that

happens, the

certificate

affords him

the

Until

procedural

advantages of government substitution and representation.

The majority also
Westfall
of

House Report on

the

Act, which states that "[i]f an employee is accused

egregious

misconduct,

judgment, then the

the

relies upon the

rather than

United States may

defendant, and the

negligence

or

not be substituted

poor
as

individual employee remains liable."

H. Rep. No. 700, supra, p. 5.

_____

There is no hint that Congress

meant to

the word "accused."

place any weight on

From the

-4040

prior

and succeeding

sentences, it

appears that

the House

Report

was simply

would

not take

torts

of employees

employment.
the judge

assuring readers

on the

burden of

that the

United States

paying for

the egregious

plainly committed

outside the

See id.
___ ___

That result will

or jury makes

the initial

scope of

be achieved whether

determination of

what

happened.
Finally,

the

majority's broadest

persuasive argument is its

dismayed

to

to

its

statute

think least

would be shocked if

applied to

Owens.

harassment were held

be covered by official immunity, but no one is suggesting

that it is.

Congress

its statute

might apply where intentional

since intentional
The

we

intimation that Congress would be

discover that

Certainly Congress

but

reality

could not be shocked to

harm clearly is

is that

Congress in

statutes, probably did not

discover that

harm was charged,

covered in some
this

case, as

think one way or the

cases.9
with many

other about

unusual applications, and it is an illusion to think that one

knows just what Congress

would have thought if it

had faced

the precise issue in this case.

In such cases, the court's job is not to speculate about

____________________
9Notably, the Federal Tort Claims Act itself waives the
government's sovereign immunity for claims
of assault,
battery and false imprisonment by law enforcement officers.
28 U.S.C.
2679(h).
It must be undisputed that an
individual FBI agent, if sued for assault during an arrest,
could obtain a valid Westfall Act certificate.
-41-

41

legislative intent that never

to

existed.

Rather, our

task is

piece out the statutory edifice as best we can, "giv[ing]

coherence to what Congress has done within the bounds imposed

by a fair reading
States,
______

353

of [the] legislation."

U.S.

373, 379

(1957).

Achilli
_______
And

if Congress

displeased when it sees how its general language

have been fitted

to the case, it is

v. United
______
is

and purpose

always open to Congress

to refine its statute.

Having stated our view as to what the statute requires, we
want to make clear that the charge made by Wood against Owens
is a very serious one involving--if the allegations are true-multiple abuses of Owens'
as

well as

opinion

continuing sexual harassment.

should

unsubstantial

position as a government official

suggest that
or implausible.

Attorney General's certificate

rest on a faulty

Wood's
We

version

in this

of events

simply do not

know:

is
The

may be well founded or it may

factual premise.

have the validity of

Nothing

Our concern is

simply to

the certificate and the correctness

of

its

premise

determined

swiftly

and

at

the

outset,

in

accordance with Congress' statutory plan.

For the reasons stated,

we would vacate the order

of the

district court and remand the case for an evidentiary hearing

to

determine whether Owens, in

his conduct vis

a vis Wood,

acted solely within the scope of his office or employment.

-4242