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No. 05-593

In the Supreme Court of the United States

PAT OSBORN, PETITIONER

v.

BARRY HALEY; ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT BARRY HALEY

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

BARBARA HERWIG
MARK W. PENNAK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Attorney General's decision under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), 28 U.S.C. 2679(d), to 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" (thus permitting the substitution of the United States for the employee as the defendant and the removal of the case to federal court) must accept the truth of the plaintiff's allegations.

2. Whether the Westfall Act's provision that the "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal" of the suit from state court, 28 U.S.C. 2679(d)(2), establishes that a district court is to retain jurisdiction over the removed suit, even if the court ultimately overturns the Attorney General's scope-of- employment certification for purposes of substituting the United States as the defendant.

In the Supreme Court of the United States

No. 05-593

PAT OSBORN, PETITIONER

v.

BARRY HALEY; ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT BARRY HALEY

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-11a) is reported at 422 F.3d 359. The memorandum and or der of the district court denying the motions for substi tution and dismissal filed by the United States (Pet. App. 17a-25a) and the opinion and order denying recon sideration of that order (Pet. App. 12a-16a) are unre ported.

JURISDICTION

The judgment of the court of appeals was entered September 8, 2005. The petition for a writ of certiorari was filed November 7, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1988, Congress enacted the Federal Employ ees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. 100-694, 102 Stat. 4563 to override legislatively this Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, the Court held that, in order to obtain personal immunity from suit on tort claims, a federal employee must show both that he was acting within the scope of his employment and that he was performing a discretionary function. Id. at 299. The Westfall Act confers personal immunity on federal employees from all common-law tort claims arising out of acts taken within the scope of their employment, thus eliminating the discretionary function requirement of common law immunity under Westfall. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 425-426 (1995); H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988).1

The Westfall Act provides that the remedy available against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., for "injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" is exclusive, and bars any damages action against the em ployee "arising out of or relating to the same subject matter." 28 U.S.C. 2679(b)(1). When a lawsuit is filed against a federal employee rather than the United States, the Westfall Act authorizes the Attorney General or his designee to issue a certification that "the defen dant 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).2 Once the Attor ney General issues a determination that the employee was acting within the scope of his or her employment, the suit "shall be deemed an action against the United States" under the FTCA, and "the United States shall be substituted as the party defendant." Ibid.

If the suit was initiated in state court, the Westfall Act further provides that, upon the Attorney General's certification, the action shall be removed to federal dis trict court, where it will proceed against the United States as the substituted defendant. 28 U.S.C. 2679(d)(2). The Act specifies that the Attorney's Gen eral certification "conclusively establish[es] scope of office or employment for purposes of removal." Ibid.

The Attorney General's decision to certify, or not to certify, that the employee was acting within the scope of his or her employment is reviewable by the district court. In Lamagno, supra, the Court held that the At torney General's "scope-of-employment certification is reviewable in court" if the plaintiff challenges it. 515 U.S. at 420. The Westfall Act also expressly provides that if "the Attorney General has refused to certify scope of office or employment," the employee defendant may "petition the court to find and certify that the em ployee was acting within the scope of his office or em ployment." 28 U.S.C. 2679(d)(3).

If the employee petitions for review of the Attorney General's refusal to certify in a case that is pending in state court, the Attorney General may remove the case to federal district court, which must then resolve the scope-of-employment dispute. 28 U.S.C. 2679(d)(3). In contrast to removal after the Attorney General issues a scope certification-in which case, that certification is "conclusive[] * * * for purposes of removal," 28 U.S.C. 2679(d)(2)-the Westfall Act provides that where the Attorney General removes a case to defend against an employee's petition for judicial certification over the Attorney General's objection, "the action or proceeding shall be remanded to the State court" if the district court rejects the employee's petition, 28 U.S.C. 2679(d)(3).

2. Petitioner Pat Osborn was an employee of Land Between the Lakes Association (LBLA), which is con tracted to provide services at the Land Between the Lakes National Recreation Area in Kentucky. The Rec reation Area is administered by the United States For est Service. Osborn applied for a job with the Forest Service, but was not hired. The Forest Service em ployee responsible for that hiring decision, Barry Haley, announced the hiring of another person in a meeting with LBLA employees at which Osborn was present. Osborn made comments to Haley at the meeting, in front of other employees, about the hiring decision that may have embarrassed Haley, and Osborn's supervisor shortly thereafter asked that she apologize to Haley. Osborn refused. Osborn later filed a complaint with the Department of Labor (DOL), questioning whether the Forest Service's hiring decision had given appropriate consideration to veterans' preference points to which Osborn was entitled. The DOL investigator, Robert Kuenzli, consulted with Haley and found that the deci sion was handled properly. Thereafter, on the same day that the DOL investigator had called Haley, the execu tive director of LBLA summoned Osborn and demanded again that she apologize to Haley for her behavior at the May 20 meeting. Osborn again refused, and she was fired by LBLA two days later. Pet. App. 20a-21a.

3. Osborn filed suit in state court asserting claims (1) against LBLA and its executive director, Gaye Luber Gieselman, alleging that she had been terminated in violation of public policy in retaliation for inquiring with DOL about the handling of her veterans' preference points, (2) against Haley, alleging interference with Osborn's employment relationship with LBLA, and (3) against all the defendants, alleging conspiracy wrong fully to discharge Osborn and conspiracy to interfere with her employment relationship. Pet. App. 21a. The United States Attorney certified, under 28 U.S.C. 2679(d)(1), that Haley "was acting within the scope of his employment * * * at the time of the conduct al leged in the Complaint." August 20, 2003, Certification of Acting United States Attorney Monica Wheatley. The United States then removed the case to the United States District Court for the Western District of Ken tucky and moved to dismiss the claims against the United States for failure to comply with the FTCA's administrative exhaustion requirement. Pet. App. 19a. In its motion to dismiss, the United States did not spe cifically deny "any of the factual allegations contained in Ms. Osborn's complaint." Id. at 22a. In response to the government's motion, Osborn submitted a copy of a Memorandum of Understanding between the Forest Service and LBLA, which provided, inter alia, that For est Service employees would not participate in the hiring or firing of LBLA employees. Id. at 23a. The United States emphasized in its reply that it did not dispute the specific facts that were alleged in Osborn's complaint but argued that Osborn could not overcome the pre sumption in favor of the Attorney General's certification decision by simply relying on an unsupported inference that Haley had called LBLA after the DOL inquiry and insisted that Osborn be fired. Mot. to Dismiss Reply 3- 4.

The district court held that under Kentucky law, which governs the substantive question of scope of em ployment under the FTCA, Williams v. United States, 350 U.S. 857 (1955), the temporal proximity of the DOL investigation and Osborn's firing was "enough to raise [an] inference" that Haley had taken retaliatory steps to cause Osborn's termination. Pet. App. 24a. Further, the court found that, in light of the Memorandum of Under standing providing that the Forest Service would not participate in the hiring or firing of LBLA employees, "any interaction Mr. Haley might have had regarding Ms. Osborn's employment was out of the scope of his duties with the Forest Service." Id. at 23a. In addition, the district court held that Haley's alleged actions would not have furthered the Forest Service's interests or been a foreseeable result of his employment. Ibid. The court concluded that the "certification is inappropriate" and on that basis denied the United States' notice of substitution and motion to dismiss. Id. at 24a. The dis trict court also held that the rejection of the United States' substitution deprived the court of jurisdiction over the suit and ordered the case remanded to state court. Id. at 24a-25a.

The government moved for reconsideration. In sup port, the government submitted declarations from both Haley and Luber, the LBLA director. Haley swore that he had not spoken with Luber between the time of the DOL investigation and Osborn's firing and that he did not "attempt to influence Luber's independent decision to fire Ms. Osborn." Haley Decl. 1-2. Luber similarly swore that Osborn's DOL complaint "was not and could not have been a factor in my decision to terminate Ms. Osborn, because I did not know it had occurred." Luber Gieselman Decl. 1. The government argued that the affidavits "provide ample evidence that Barry Haley never acted outside the scope of his employment and directly and specifically controvert any allegations to the contrary." Reconsid. Mot. 6. The government urged that those affidavits were sufficient, in the absence of contradictory evidence from Osborn, to support the U.S. Attorney's scope determination, or, at the very least, to warrant limited discovery and a hearing to resolve the disputed issue of fact. Id. at 7-8. Alternatively, the gov ernment argued that "discovery * * * could also reveal evidence supporting an argument that, even if the alle gations are true, the alleged conduct falls within the relevant Kentucky law on scope" of employment. Id. at 8. The government continued, "[a]ssuming, for the sake of argument only, that Haley and Luber interacted re garding plaintiff's employment," the facts might support a conclusion that Haley's conduct was within the scope of Haley's employment under Kentucky law. Ibid.

The district court denied the motion to reconsider. Pet. App. 12a-16a. The court noted a circuit conflict on the question of how to deal with a Westfall Act certifica tion that was "based on an argument that no harm-caus ing incident ever took place." Pet. App. 14a (citing Wood v. United States, 995 F.2d 1122, 1124 (1st Cir. 1993) (en banc) (Breyer, C.J.) (holding that the certifica tion "cannot deny the occurrence of the basic incident charged"), and Kimbro v. Velten, 30 F.3d 1501, 1508- 1510 (D.C. Cir. 1994) (expressly rejecting Wood and holding that the district court must resolve the merits of the underlying dispute in such a circumstance), cert. denied, 515 U.S. 1145 (1995)). Purporting to follow the First Circuit's decision in Wood, the district court de nied the United States' request for an evidentiary hear ing on whether Haley had attempted to influence Luber's decision. Pet. App. 15a. The court also re jected the United States' request for discovery as to whether, in the alternative, there had been some inter action between Haley and Luber that was within the scope of Haley's employment. The court would not allow the United States to make arguments that were incon sistent with Haley's sworn declaration that no such in teraction occurred. Id. at 14a.

3. On appeal, the Sixth Circuit reversed. Pet. App. 1a-11a. The court of appeals analyzed the appeal as pre senting the question "whether district courts evaluating a scope certification can resolve material disputes about the facts 'upon which the plaintiff would predicate liabil ity,' or whether instead courts must accept the plaintiff's allegations of such 'merits facts.'" Id. at 4a (quoting Melo v. Hafer, 13 F.3d 736, 742-743 (3d Cir. 1994)). The court of appeals noted that there was a clear split in the circuits on that issue. The court recognized that the First Circuit had held in Wood that "the Westfall Act does not permit judicial factfinding where the Attorney General's certification essentially denies the plaintiff's central allegations of wrongdoing, but instead requires courts to accept as true the plaintiff's allegations (as the district court did here)," while allowing the Attorney General "to dispute the plaintiff's description of the tortious incident alleged-'incident-characterizing facts.'" Id. at 5a. The court of appeals observed, how ever, that the "majority" of circuits, including the D.C., Third, and Eighth Circuits, had rejected Wood. Id. at 6a-7a. The court of appeals then elected to "join the majority of the circuits" and held that "where the Attor ney General's certification 'is based on a different un derstanding of the facts than is reflected in the com plaint,' * * * including a denial of the harm-causing inci dent, the district court must resolve the factual dispute." Id. at 8a (quoting Melo, 13 F.3d at 747). The court of appeals cited, among other reasons, the need for the em ployee's immunity to be decided at the outset of the liti gation and the difficulty of administering the Wood ma jority's distinction between denial of an incident and re characterization of the incident. Id. at 6a-7a. The court of appeals therefore remanded to the district court for a hearing to "resolve the factual disputes underlying the scope question, including whether the alleged incident occurred." Id. at 11a.

The court of appeals also addressed the question whether, if substitution is ultimately not upheld, the district court must remand the case to state court for want of jurisdiction. The court held that, in light of the Westfall Act's language stating that the "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal," 28 U.S.C. 2679(d)(2) (emphasis added), the "clear language of the Act forecloses remand." Pet. App. 10a. The court acknowledged, however, the "circuit split" on that issue as well. Id. at 8a-10a (citing decisions of the Third, Fourth, and Fifth Circuits holding that remand was im proper, and decisions of the D.C. and First Circuits holding that remand was required).

DISCUSSION

Petitioner correctly observes (Pet. 7-8, 13-14) that the courts of appeals are divided on two questions relat ing to judicial review of scope-of-employment certifica tions under the Westfall Act: (1) the extent to which the Attorney General's certification may depend upon a de termination that one or more of the allegations of the complaint is untrue; and (2) whether, if the district court overrules the Attorney General's certification in a case that was removed from state court, the action must be remanded. While both circuit conflicts are somewhat stale and this case is in an interlocutory posture, on bal ance, the Court should grant review on both questions.

1. a. As petitioner states (Pet. 6), there is a conflict among the circuits with respect to whether the Attorney General may issue a Westfall Act certification based on a denial that the alleged incident occurred. In the first appellate decision to address the issue, McHugh v. Uni versity of Vermont, 966 F.2d 67 (1992), the Second Cir cuit stated, without elaboration, that the district court must, in resolving a contested scope determination, "as sume that plaintiff's allegations are true," id. at 75, and construe them "in the light most favorable to the plain tiff," id. at 74. The court also stated that "the govern ment may not deny that acts were within the scope of employment by denying that the acts occurred." Ibid.3

In Wood v. United States, 995 F.2d 1122 (1993), the en banc First Circuit adopted a slightly different ap proach. The First Circuit held that the Attorney Gen eral's "certificate cannot assert 'immunity' simply by denying that anything occurred," but "must assume the existence of an 'incident out of which the claim arose.'" Id. at 1129. On the other hand, in contrast to the Second Circuit in the passages quoted above, the First Circuit concluded that the Attorney General was "free to dis pute characterizations of the incident and subsidiary immunity-related facts," including factual allegations essential to the plaintiff's cause of action, such as an allegation that the employee caused the harm intention ally. Ibid. Wood provides that, in such cases, there should be a hearing in federal district court to resolve the factual dispute regarding the allegation. Ibid. The First Circuit saw that such an exception to the general rule it announced was necessary because a plaintiff might otherwise, "through artful pleading, transform a job-related tort into a non-job-related tort," and "fed eral employees [would] lose, in practice, the job-related immunity that Congress clearly intended the Westfall Act to provide." Ibid. The Wood majority acknowl edged that this necessary limitation on its rule pre sented an "administrative problem" of line-drawing, ibid., which was one reason the dissenters argued for rejecting the majority's approach altogether, id. at 1136 (Coffin, Selya, and Boudin, J.J., dissenting).4

Since Wood, every court of appeals to reach the ques tion has held that the Attorney General is free to base a scope-of-employment certification on his own assess ment of the facts, even if contrary to the central allega tion of the complaint, and that the federal court must conduct a factual inquiry. In Melo v. Hafer, 13 F.3d 736, 746 (1994), for example, the Third Circuit held that "the Attorney General may file a scope of employment certifi cate based on a finding that the defendant did not en gage in the conduct alleged by the plaintiff." The D.C. Circuit similarly held in Kimbro v. Velten, 30 F.3d 1501 (1994), cert. denied, 515 U.S. 1145 (1995), that "the stat utory language describing certification does not pre clude a disavowal through certification that the harm- causing event actually occurred." Id. at 1508. See Heuton v. Anderson, 75 F.3d 357, 360 (8th Cir. 1996). The Sixth Circuit concurred in that view. Pet. App. 8a.

The courts that have rejected Wood have emphasized two principal points. First, the courts have noted an inconsistency between the Wood analysis, which was based on the language of Section 2679(d)(1), and Section 2679(d)(3), which the Wood majority did not discuss. Section 2679(d)(1) provides that the United States shall be substituted if 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 the claim arose." In the First Circuit's view, that language implies that the Attorney General must as sume the occurrence of some "incident" underlying the plaintiff's claim. 995 F.2d at 1123, 1125-1126. Subse quent decisions have emphasized that the district court's authority to make a scope-of-employment determination at the request of a defendant employee pursuant to 28 U.S.C. 2679(d)(3) does not have the "time of the inci dent" language on which the First Circuit relied. See Melo, 13 F.3d at 746-747; Kimbro, 30 F.3d at 1508; Heuton, 75 F.3d at 360; Pet. App. 6a-7a. As those other courts of appeals have observed, it is unlikely that Con gress intended the Attorney General to be more circum scribed by the plaintiff's allegations than the district court is when it makes a scope-of-employment determi nation at the behest of the defendant. Ibid. In addition, the later appellate decisions have emphasized the practi cal, as well as theoretical, difficulty in drawing the kind of distinctions "between characterization of an incident and denial of an incident" required by Wood, id. at 6a; Kimbro, 30 F.3d at 1507; Melo, 13 F.3d at 743, 746, something that the Wood majority itself acknowledged, 995 F.2d at 1129.

b. Petitioner frames the first question presented in a manner that appears to set to one side the approach suggested by McHugh, under which the Attorney Gen eral must accept all of the allegations of the plaintiff's complaint and construe them in the light most favorable to the plaintiff, by posing the question in the terms em ployed by the First Circuit in Wood: whether the Attor ney General may "deny[] that such incident occurred at all." Pet. i. In addition, petitioner claims that "the pres ent case does not raise what the First Circuit in Wood called a potential 'administrative problem' that can arise when the court confronts 'the difference between deny ing facts that amount to a 'characterization' or 'descrip tion' (which Wood permits the Attorney General to do) and 'denying that any harm-causing incident occurred at all' (which is foreclosed by Wood)," Pet. 19 (quoting 995 F.2d at 1129-1130).5 In fact, however, the "administra tive problem" noted by Wood is fully evident on the facts of this case. Indeed, the Sixth Circuit's order remand ing this case to the district court for an evidentiary hear ing would have been appropriate even under the ap proach in Wood.

The First Circuit acknowledged in Wood that the Westfall Act does not require the Attorney General to concede as fact that the alleged incident occurred, but merely to "assume" that it did "for immunity-asserting purposes." 995 F.2d at 1126. See id. at 1129; id. at 1125 (certification must "claim that a (hypothetically con ceded) 'incident' involved activity that was 'within the scope of employment'"). In Wood, which involved an alleged assault and battery of a sexual nature by an Army Major against his civilian secretary, id. at 1123- 1124, the court observed "[w]e do not see how [the At torney General] could characterize the incidents at issue in a way that would bring them within defendant's 'line of duty,' and it has not tried to do so," id. at 1130.

In this case, the United States did attempt to make an argument "assuming arguendo" the existence of an incident, but was precluded from doing so by the district court. The United States' motion to reconsider specifi cally argued, in the alternative, that because it was un clear what evidence Osborn would rely on in support of her claim, it was possible that discovery could "reveal evidence supporting an argument that, even if the alle gations are true, the alleged conduct falls within the relevant Kentucky law on scope." Reconsid. Mot. 8 (em phasis added). See ibid. ("[a]ssuming, for the sake of argument only, that Haley and Luber interacted re garding plaintiff's employment," the facts might support a conclusion that Haley's conduct was within the scope of his employment under Kentucky law (emphasis added)). For example, if Osborn offered testimony in support of her tortious interference claim that someone overheard Haley say to Luber that he thought Osborn's conduct at the May 20, 2002, meeting was inappropriate and called into question whether she was a good fit for LBLA's project with the Forest Service, the govern ment could assume that such a conversation occurred, but contest the characterization that Haley said it with an intent to retaliate against Osborn for filing the DOL complaint or even to get Osborn fired.

The district court refused to allow the government to make that alternative argument in light of Haley's decla ration, in which he stated that he had not discussed with Luber Osborn's DOL complaint or attempted to influ ence Luber's decision to fire Osborn. Pet. App. 13a-14a. In so ruling, the district court refused to permit the gov ernment to do precisely what Wood endorsed, i.e., to "assume some kind of harm-causing incident, while leaving the Attorney General free to dispute character izations of the incident and subsidiary immunity-related facts." 995 F.2d at 1129.6

c. The circuit conflict on the question of the scope of the Attorney General's certification authority is some what stale, since no court of appeals has adopted peti tioner's position since the First Circuit's divided deci sion in Wood more than 12 years ago. Since then, all four courts of appeals to have considered the question have reached the contrary conclusion, and neither the First nor Second Circuit has revisited the issue in light of the subsequent decisions of the other courts of ap peals.

Moreover, the fact that the district court's order could have been reversed and the case remanded for an evidentiary hearing even under the Wood approach may make this case a less than ideal vehicle for resolving the circuit conflict that does exist.7 And any uncertainty on whether a remand under Wood would be appropriate simply demonstrates the inherent difficulty with the distinction that is at the heart of the Wood decision. While the foregoing considerations weigh against certio rari, on balance, the Court should grant review.

2. a. The second question presented in the petition is whether the Attorney General's certification "conclu sively" establishes the district court's removal jurisdic tion, thereby barring the district court from remanding the case back to state court in the event the court ulti mately rejects the certification. As noted, Section 2679(d)(2) provides that "[t]his certification of the Attor ney General shall conclusively establish scope of office or employment for purposes of removal." The issue is whether the plain language of Section 2679(d)(2) con trols and should be given effect by precluding the dis trict court from remanding the case back to state court in the event the court rejects the certification of the At torney General.

As petitioner states (Pet. 13-14), there is a square conflict on this question. Four circuits, the Third, Aliota v. Graham, 984 F.2d 1350, 1356 (Alito, J.), cert. denied, 510 U.S. 817 (1993), the Fourth, Borneman v. United States, 213 F.3d 819, 826 (2000), cert. denied, 531 U.S. 1070 (2001), the Fifth, Garcia v. United States, 88 F.3d 318, 325 (1996), and the Sixth, Pet. App. 10a, have held that the district court has no authority to remand a case back to the state court should certification be rejected. The Eleventh Circuit, in Green v. Hill, 954 F.2d 694, on reh'g, 968 F.2d 1098 (1992), has held that the district court has "discretion" over whether to remand the case to the state court.

In contrast, the First Circuit, in Nasuti v. Scannell, 906 F.2d 802 (1990), held that "[i]f the district court finds that Scannell was acting outside the scope of his employment, it shall remand the case back to the state superior court." Id. at 814. The D.C. Circuit imposed the same remand requirement in Haddon v. United States, 68 F.3d 1420, 1427 (1995). In so ruling, the D.C. Circuit expressly rejected the Third Circuit's contrary holding in Aliota. Id. at 1426. There is, thus, as peti tioner states (Pet. 13), a three-way split in the circuits concerning the scope of the district court's authority to order a remand.

Like the circuit conflict on the first question pre sented, however, the conflict on the second question is also somewhat stale. The second of the two appellate decisions adopting petitioner's position on this issue was rendered by the D.C. Circuit in Haddon more than 10 years ago. Since then, three courts of appeals, including the Sixth Circuit in this case, have rejected petitioner's position. Furthermore, this case is in an interlocutory posture, because the court of appeals remanded for a determination whether respondent was acting within the scope of his employment; only if the district court con cludes that he was not would the question of remand to the state court have any concrete significance in this case, and that issue could be raised on subsequent re view in the court of appeals.

b. Significantly, moreover, the eight Justices who joined either the plurality or the dissenting opinion in Lamagno read the text of 28 U.S.C. 2679(d)(2), which provides that the Attorney General's certification that the employee was acting within the scope of his employ ment shall be "conclusive * * * for purposes of re moval," to bar remand to the state court if the federal district court overturns the Attorney General's certifica tion. See 515 U.S. at 434 (plurality opinion of Ginsburg, J.); id. at 440 (Souter, J., dissenting). Indeed, the same view is also reflected in the portion of Justice Ginsburg's opinion that constituted the opinion of the Court, which was joined by Justice O'Connor. See id. at 432 & n.8, 433 n.10.

A plurality of four Justices-Justice Ginsburg, joined by Justices Stevens, Kennedy, and Breyer- addressed and rejected an Article III objection to this interpreta tion, viz., that if the certification is given "conclusive" effect for purposes of removal, as required by the lan guage of Section 2679(d)(2), "then the federal court will be left with a case without a federal question to support the court's subject-matter jurisdiction." 515 U.S. at 435. The plurality found this argument unpersuasive, con cluding that the scope-of-employment issue under the Westfall Act "is a significant federal question" and that removal by the Attorney General on his certification therefore "raises [a] questio[n] of substantive federal law at the very outset" of the litigation. Id. at 435 (al teration in original) (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 (1983)). The plural ity reasoned that "'[C]onsiderations of judicial economy, convenience and fairness to litigants' make it reasonable and proper for the federal forum to proceed beyond the federal question to final judgment once it has invested time and resources on the initial scope-of-employment contest." Id. at 436 (alteration in original) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)).

Justice O'Connor, in her concurring opinion, specifi cally declined to join in this Article III discussion of the Lamagno plurality, stating that resolution of the issue was a "difficult question" that was "not presented in this case." 515 U.S. at 437.

Justice Souter dissented in an opinion in which Chief Justice Rehnquist and Justices Scalia and Thomas joined. The dissent agreed that the statutory language is clear: "there is nothing equivocal about the Act's pro vision that once a state tort action has been removed to a federal court after a certification by the Attorney Gen eral, it may never be remanded to the state system." Lamagno, 515 U.S. at 440 (citing 28 U.S.C. 2679(d)(2)). The dissent expressed the view, however, that, for this reason, judicial review of the Attorney General's scope- of-employment certification would raise a "serious" question whether the retention of jurisdiction after re jection of the United States' substitution would "cross the line" of the courts' Article III jurisdiction. Id. at 441.

However this Court might resolve the Article III issue, the opinions in Lamagno are highly instructive on the statutory remand question, even though that case did not directly raise the issue because it was initially filed in federal court. It is true that the D.C. Circuit's split decision in Haddon holding that remand is required post-dated Lamagno. But while the majority in Haddon recognized that the dissenting Justices in Lamagno had read 28 U.S.C. 2679(d)(2) to bar a remand if the district court overturns the Attorney General's scope determi nation, 68 F.3d at 1427, the majority failed to recognize that the plurality (and perhaps the opinion of the Court) in Lamagno read Section 2679(d)(2) in the same way. Other courts of appeals, by contrast, have recognized the significance of Lamagno in resolving this issue. See Bornman, 213 F.3d at 825-826; Garcia, 88 F.3d at 323- 327; see also Pet. App. 9a (citing plurality but not dis senting opinion). In light of the opinions in Lamagno and the more recent trend of appellate decisions, it is possible that the D.C. Circuit and First Circuit, if pre sented with the question anew, would reconsider their respective decisions. And, of course, this case presents the issue in an interlocutory posture-interlocutory even as to the interlocutory issue of the appropriateness of a remand to state court, because the district court may still find the Attorney General's scope certification proper and thus moot any question of remand to the state court. Accordingly, as with the first question pre sented, there are considerations that weigh against cer tiorari to resolve the second question. On balance, how ever, the Court should grant review on the second ques tion if it grants review on the first question.

c. Finally, we submit that Article III is not violated by the "conclusive" removal provision of Section 2679(d)(2). As the Court held in Verlinden, supra, the "Article III 'arising under' jurisdiction is broader than federal-question jurisdiction under § 1331." 461 U.S. at 495. The Court thus noted that, under Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824), the "arising under" Article III jurisdiction is a "broad con ception" under which "Congress may confer on the fed eral courts jurisdiction over any case or controversy that might call for the application of federal law." Verlinden, 461 U.S. at 492. In Verlinden, the Court did not "decide the precise boundaries of Art. III jurisdiction, * * * , since the present case does not involve a mere specula tive possibility that a federal question may arise at some point in the proceeding," but, rather, "necessarily raises questions of substantive federal law"-the immunity of a foreign state from suit-"at the very outset, and hence clearly 'arises under' federal law, as that term is used in Art. III." Id. at 493.

The Westfall Act is not a "pure jurisdictional stat ute," like a federal removal statute, that purports simply to accord jurisdiction over a defined class of claims or persons. See Mesa v. California, 489 U.S. 121, 136 (1989). Rather, like the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, which was at issue in Verlinden, the Westfall Act is "comprehensive scheme" comprising both pure jurisdictional provisions (removal) and federal law capable of supporting Article III "arising under" jurisdiction. See Verlinden, 461 U.S. at 496-497; see also Republic of Austria v. Altmann, 541 U.S. 677 (2004).

Specifically, like the FSIA, the Westfall Act does not merely govern access to federal court, but governs as well the type of cases that may be removed (tort cases certified by the Attorney General under Section 2679(d)(2) or in which the employee has petitioned for certification under Section 2679(d)(3)), the standard (scope of employment) for assessing the propriety of the substitution of the United States for the employee, and the consequences of such substitution of the United States (immunity from suit for the employee and appli cability of all the defenses available to the United States under the FTCA). Thus, just as the FSIA "comprehen sively regulat[es] the amenability" of foreign sovereigns "to suit in the United States," the Westfall Act "compre hensively regulat[es] the amenability" of federal em ployees to suit in both federal and state courts. Verlinden, 461 U.S. at 493. As Verlinden holds, the presence of such a comprehensive regulatory scheme is alone sufficient to pass muster under Article III.

Indeed, the analogy to Verlinden is particularly close in that under both the Westfall Act and FSIA, "the rule of decision may be provided by state law." 461 U.S. at 491. Just as there was a strong federal interest in Verlinden concerning the question of what types of suits should be brought against foreign sovereigns, id. at 493, there is a similar undeniable federal interest in allowing federal courts to adjudicate tort actions involving fed eral employees who have been certified by the Attorney General as acting within the scope of their employment. See Lamagno, 515 U.S. at 426.

That federal interest in giving the Attorney Gen eral's certification "conclusive" effect is particularly strong under the district court's approach to the first question presented. Even if the Attorney General's scope-of-employment certification is determined to be inappropriate based upon the particular facts so far al leged by Osborn in support of her claims, it is entirely possible that discovery will reveal that plaintiff intends to rely on evidence of purportedly tortious acts by Haley that were within the scope of his employment, such as complaining to Luber about Osborn's conduct at the May 20, 2002, meeting. Thus, because there is an ongo ing possibility that substitution would become appropri ate under Wood depending upon what new evidence the plaintiff offers regarding the defendant's conduct, the federal question will be present throughout the litiga tion. In this respect, it is perfectly understandable and appropriate for Congress to accord "conclusive[]" weight for removal purposes to the Attorney General's certifi cation that the defendant acted within the scope of his employment, while providing for remand to state court where the Attorney General has removed the case solely to defend against a petition for certification over his ob jection.

Finally, as the plurality observed in Lamagno, there are sound practical reasons to keep the case in federal court after the scope determination is made. Remand ing the case to state court would waste judicial re sources, both in the federal court, which would have al ready become familiar with the case, and in the state court, which would have to duplicate that familiarity upon any remand. As the plurality noted in Lamagno, by making the Attorney General's certification "conclu sive[] * * * for purposes of removal," 28 U.S.C. 2679(d)(2), Congress "decided to foreclose needless shuttling of a case from one court to another." 515 U.S. at 433 n.10.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

BARBARA HERWIG
MARK W. PENNAK
Attorneys

FEBRUARY 2006

1 The Westfall Act excludes from its coverage suits against an employee "for a violation of the Constitution" and suits against an em ployee for a violation of a federal statute when "otherwise authorized." 28 U.S.C. 2679(b)(2).

2 The Attorney General has delegated this authority by regulation to United States Attorneys, who make scope certification determina tions in consultation with the Department of Justice. See 28 C.F.R. 15.3 (1988). The Attorney General's delegation authority is set forth in 28 U.S.C. 510. See, e.g., United States v. Cuomo, 525 F.2d 1285, 1287-1288 (5th Cir. 1976).

3 The dissenters in Wood questioned whether those statements by the Second Circuit, in an opinion devoted primarily to other issues, reflected an intent to resolve the issue presented here. See Wood, 995 F.2d at 1136 (Coffin, Selya, and Boudin, J.J., dissenting). The Second Circuit does not appear to have confronted the issue of what allegations the Attorney General must accept in making his scope certification since McHugh issued. We assume, for purposes of argument, that the Second Circuit's statements quoted in the text constitute a holding.

4 Although the majority in Wood stated (995 F.2d at 1128, 1129) that its approach was the same as that of the Second Circuit in McHugh, the Second Circuit's opinion appears to limit the Attorney General's certification to the facts alleged, and permits a factual inquiry only with respect to the "context of the alleged acts" as they are relevant to the scope-of-employment issue. McHugh, 966 F.2d at 74.

5 Petitioner bases that contention on the court of appeals' statement that "the United States 'conceded that if Haley induced [petitioner's] firing, he acted outside the scope of his employment' with the U.S. Forest Service." Pet. 18-19 (quoting Pet. App. 3a). In making that statement, the court of appeals may have relied on the acknowledge ment in the appellant's brief that "the Memorandum of Understanding [between the Forest Service and LBLA] only showed that, if Haley did cause the Contractor to fire Osborn, he acted outside the scope of his employment." Haley C.A. Br. 21. That sentence, however, recognized that it would have been outside the scope of his employment for Haley to orchestrate Osborn's firing with the intent of retaliating against her for filing a DOL inquiry, as the complaint alleges. But the government has specifically disputed in this case that it would necessarily have been outside the scope of his employment for Haley to take actions that might have influenced Osborn's firing by, for example, raising concerns about her ability to be a good partner to the Forest Service. Reconsid. Mot. 8. Even assuming, arguendo, that influencing Osborn's firing for such reasons would have violated the Memorandum of Understanding between the Forest Service and LBLA, that would not mean that Haley acted outside the scope of his employment in doing so. See, e.g., Heuton, 75 F.3d at 361 ("It is true that * * * posting the picture was unquestionably prohibited by the USDA, but that does not mean that the act was necessarily outside of the scope of Anderson's employ ment.").

6 The district court was wrong to think that the alternative argument above would necessarily contradict Haley's declaration. That decl aration stated only that Haley had not spoken to Osborn "regarding the [DOL] inquiry" or "Osborn's veteran's status" and that he had not "attempt[ed] to influence [Luber's] independent decision to fire Ms. Osborn." Haley Decl. 1-2. Even if there were an inconsistency with Haley's affidavit, Wood does not preclude the Attorney General from making a certification on the assumption that some incident did occur, but then litigating on the ground that it did not.

7 The government argued in the court of appeals that if the court did not reverse the district court's decision outright and order that the United States be substituted for Haley as a defendant, the court should at least remand for an evidentiary hearing on whether Haley committed acts outside the scope of his employment. Haley C.A. Br. 29. The government did not specifically argue, however, that the case should be remanded for an evidentiary hearing under the approach adopted by the First Circuit in Wood.