Contradictory Pleadings in Westfall Actions

Osborn v. Haley

The Wesfall Act provides that when a federal employee is sued for a common-law tort claim for actions undertaken within the scope of his employment, upon certification of that fact by the Attorney General, the employee is dismissed, the United States is substituted, and the action is removed to federal court. The Attorney General’s certification is “conclusive for purposes of removal.” In this case the U.S. Attorney certified that a federal employee “was acting within the scope of his employment … at the time of the conduct alleged” and then after removal, proceeded to deny that the alleged actions ever occurred. The federal court then dismissed the Westfall certification and remanded the case.

The District Court’s ruling denying substitution of the United States as defendant qualifies as a reviewable final decision because it decided a contested issue, which was important and separate from the merits of the action, and which would be effectively unreviewable later in the litigation. (Cohen v. Beneficial Industrial Loan Corp). Generally an order remanding to the state court where a case originated is not reviewable, but only if based on §1447 - improvidence and lack of jurisdiction.

Where the Attorney General certifies the scope of employment courts have no jurisdictional discretion, but where a court makes the determination they do, as jurisdiction is not “conclusively” established. The Attorney General’s determination can only be “conclusive” if courts are prohibited from remanding the case. Even in cases where the court later determines that the employee was acting outside the scope of their employment, and the case is left without federal jurisdiction, a federal court can exercise its discretion to retain jurisdiction.

To hold that the Attorney General may not contest the incident while certifying that it occurred during the course of employment would make the entire case, jurisdiction to merits, subject to the plaintiff’s imagination. Where this would lead to odd results, courts are already empowered to overrule the certification on the basis of factual findings. In cases where this would end the case on the merits without ever reaching a jury there is no Seventh Amendment violation because the right to jury trial does not extend to proceedings against the sovereign.

Substitution of the United States is not improper simply because the Attorney General’s certification rests on an understanding of the facts that differs from the plaintiff’s allegations, and the U.S. must remain the defendant until the court determines that the employee, in fact, was operating outside the scope of employment, and that the case may not ever be remanded.

Justice Souter argues that whereas decisions remanding a case to the state court from which it was removed is unreviewable, they should be unreviewable even on the basis of mistake as to jurisdiction. The order resubmitting Haley as defendant was not such an order, it was a substitution order, and allowing review of this sort of order effectuates congressional intent to codify the common law tort immunity available to Federal employees.

Justice Breyer believes that the Attorney General may only certify when he accepts, at least conditionally, the existence of “some kind of incident’” and may not do so where the incident, if it took place at all, fell outside the scope of employment (Justice Breyer later flips this to require the Attorney General to assert that if the incident took place it must necessarily have taken place within the scope of employment). The act allows certification where “at the time of the incident out of which the claim arose” the original defendant was acting within the scope of employment. The Westfall Act’s purpose was to overturn a Supreme Court decision requiring that an agent not only be acting in the scope of employment, but exercising discretion. Where the dispute is over facts as well as law, for the purpose of immunity disposition, the defendant must take the plaintiff’s facts as asserted, even if these facts prove determinative over a federal claim as well as a state claim, though “violation of a federal statute” is explicitly exempted. When Willingham v. Morgan said that federal defendants should have an opportunity to present their version of the facts to a federal, not a sate court,”

Justices Scalia and Thomas, dissenting, argue that 28 U.S.C. §1447 states that and order remanding a case to the State court from which it was removed is not reviewable, and it means just that. In Thermtron Products the Court exempted cases remanded in exercise of discretion, appending “under this subsection” to the end of the phrase. Then cases where the reason was mischaracterized as one requiring mandatory remand were exempted. The majority here holds that §1447 does not apply where the remand order is reviewable. Later, Justice Scalia concedes that these the remand to be “erroneous” but reminds that the Court has held that remand based on erroneous conclusion was unreviewable. Justice Scalia also questions whether the remand order could be reviewable even if the Attorney General’s determination were overturned.

What is particularly interesting here is how Justice Scalia’s argument demonstrates so well the virtues of his particular brand of originalism, and also that he accuses the majority of “uncompromising pursuit of technical perfection.”