Osborn, Pat v. Haley, Barry, et al. (01/22/2007)

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? (3) Whether the court of appeals had jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. " 1444(d)?

BY DEREK J. KLOBUCHER, MEDILL NEWS SERVICE

On May 20, 2002, Barry Haley announced his decision to hire the U.S. Forest Service's newest employee at the Land Between the Lakes National Recreation Area.

Haley did so at a meeting with the Land Between the Lakes Association, a Kentucky organization that contracts with the Forest Service to provide services to the like-named recreation area.

Pat Osborn was an LBLA employee who had applied for that position, but she was not the one who got it. After Haley's announcement, she had words with him in front of other employees.

"The basic nuts and bolts of the case is that the plaintiff alleged sex-based discrimination and interference with contractual relationships arising out of some comments that were made by Mr. Haley that allegedly would have lead to the termination of her employment," said LBLA attorney J. Duncan Pitchford.

"It's really this interference with contractual obligations argument," Pitchford said. "Nobody's really talked about the underlying allegations now for years."

After refusing her boss' request to apologize, Osborn filed a complaint with the Department of Labor, questioning whether or not the Forest Service had taken into account her veteran's preference points. The Department of Labor cleared Haley, and LBLA fired Osborn on the same day, after she again refused to apologize.

Osborn then filed a suit in state court against LBLA for firing her, Haley for allegedly getting her fired, and others for conspiracy. Osborn cited government policy prohibiting Forest Service personnel like Haley from participating in LBLA employment decisions.

Nevertheless, on Aug. 20, 2003, an acting U.S. Attorney found that Haley was acting within the scope of his employment at the time of the incident, leading the government to move the case from state to federal court.

In the U.S. District Court for the Western District of Kentucky, Osborn again challenged the government's determination of Haley's scope. As a hypothetical point of fact, the United States confirmed that if Haley had provoked Osborn's termination, such action would have been beyond his scope.

Rather than evaluate the contact Haley had with LBLA, the district court accepted Osborn's version of events, ruling that Haley was not acting within the scope of his employment. It concluded that the U.S. government could not be substituted as the respondent, as per the Westfall Act. The case would be remanded to state court, and Haley would be on his own.

Congress enacted the Westfall Act, formally known as the Federal Employees Liability Reform and Tort Compensation Act, in 1988, to override a U.S. Supreme Court decision earlier that year. In Westfall v. Erwin, the Court ruled that a federal employee may receive personal immunity in a lawsuit only if he both acted within the scope of his employment and was performing a discretionary function at the time of the incident in question.

The Westfall Act narrowed the question by providing that a federal employee need only be acting within his scope of employment. If the U.S. Attorney General acts on a case by deciding that there is scope or that the incident never occurred, the case would automatically go to federal court and the United States government would be substituted as the respondent.

If the Attorney General does not act, the defendant may appeal the decision in court or proceed with the existing case.

In Haley's September 2005 appeal, the 6th Circuit Court of Appeals reversed the district court, ruling that the lower court must "resolve the factual disputes underlying the scope question, including whether the alleged incident occurred."

In its opinion, the 6th Circuit acknowledged disagreement among the federal circuits as to the fact-finding authority that district courts possess when, as is the case here, the Attorney General denies a contested event. The first decision on the issue, handed down by the 1st Circuit in 1993, said language of the Westfall Act presupposes an incident.

Every federal circuit to have heard similar cases since then has ruled to the contrary. So did the 6th in Osborn v. Haley, concluding that the district court must decide the truth for itself.

The 6th Circuit also ruled that the Westfall Act would not allow the case to be sent back to a state court

"It is of considerable importance to the United States because it involves how they address suits against government employees," said Pitchford, whose client is enjoined in the case.

In 1995, the U.S. Supreme Court heard Gutierrez de Martinez v. Lamagno, ruling that the Attorney General's determination of scope could be challenged in court.

"That leaves some holes that this case will fill," Pitchford said.

"Congress set up two different schemes," Pitchford said of the Westfall Act. "One of which comes into play when the Attorney General acts, and one of which comes into play when the Attorney General declines to act."

The Supreme Court accepted review in the case on May 15, 2006, and directed the parties to address, in addition to what the parties sought, whether the court of appeals had jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. " 1444(d).

Lawyers on both sides of the case say there are three pertinent questions at issue.

"I think the first issue is whether the Attorney General can certify that a federal employee was acting within the course and scope of his employment simply by denying that anything happened at all," said Eric Grant, Osborn's attorney. "It's our contention that those kinds of certifications are not authorized by the Westfall Act."

Second, if the district court decides the Attorney General was wrong in concluding that Haley acted within the scope of his office, does the case go back to state court in Kentucky?

"It's our position that in some circumstances, including this case, the action has to go back to state court," Grant said.

Third, a question the Court asked the parties to address.: Did the 6th Circuit have jurisdiction to hear the appeal?

"The general rule is the order remanding this case to state court is not reviewable on appeal," Grant said, referring to 28 U.S.C. " 1447 (d). "So, I guess the question is whether there's an exception to that general rule in cases involving the Westfall Act."

A fundamental constitutional issue exists as well.

"There's also this additional question of whether or not Congress went too far in the power it gave the Attorney General," according to Pitchford, who said that part of the Westfall Act may violate Article III of the U.S. Constitution, which defines judicial authority.

Grant said a trial in Kentucky's jurisdiction is important to Osborn because it would mean being judged locally by a jury of her peers.

"We think the correct legal rule is that it should be back in state court," Grant said. "And that is where she prefers it to be."

On Jan. 22, 2007, the Court affirmed, holding 7-2 that the Attorney General's certification is conclusive for purposes of removal.

Writing for the majority, Justice Ruth Bader Ginsburg concluded that because the Westfall Act's purpose is to shield covered employees not only from liability but from suit, it is appropriate to afford protection to an employee on duty at the time and place of an "incident" alleged in a complaint who denies that the incident occurred.

Justices Antonin Scalia and Clarence Thomas dissented, arguing that the federal remand statute couldn't be clearer in providing that "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ...." The provision is not only time-honored, dating back to 1887, but jurisdictional. "Today's opinion eviscerates what little remained of Congress's Court-limiting command," wrote Scalia.