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Supreme Court Decision Update - Osborn v. Haley

feds.jpgThe Supremes’ second decision for today came in Osborn v. Haley (PDF of the opinion). The issues at play are procedural matters relating to when a federal employee is sued and the Attorney General steps in to certify that the employee was acting in the course of their official duties. This bounces the case to federal court, and the question here is whether the case can be bounced back down to the state courts.

QuizLaw Analysis: The opinion here is rather long, particularly because there’s also a dissenting opinion and two concur-in-part, dissent-in-part opinions, but the outcome is pretty straightforward. If the Attorney General certifies that the federal employee was acting in the course of official duties, the case gets sent up to the federal courts and cannot be sent back down to state court. Plain and simple.

What’s the story with all the opinions? Well there’s a majority opinion penned by Justice Ginsburg and joined by Chief Justice Johnny and Justices Stevens, Kennedy and Alito. Justices Souter and Breyer each joined some parts of Ginsburg’s opinion, but they also each filed separate opinions, concurring in part and dissenting in part. Finally, the Scalia filed a dissenting opinion, joined by his boy Clarence.

What are we talking about here? We’re talking about the Federal Employees Liability Reform and Tort Compensation Act of 1998, which is known as the Westfall Act. The Westfall Act says federal employees are immune from common-law tort claims where those claims arise from the employee acting the ordinary course of their official duties. When such a lawsuit arises, the Attorney General is empowered to provide a certification that the employee was acting in the scope of their duties. That certification is deemed conclusive with regard to removal of the case, which means that once such a certification has been made, the employee is dismissed, the US government becomes the defendant and the case is then automatically removed from state court to the relevant federal District Court.

And what’s the relevant background here? Here’s the short version. Pat Osborn filed a lawsuit in Kentucky against Barry Haley, a federal employee. Osborn alleged that Haley committed tortuous interference with here employment and tried to have her wrongfully discharged. The US Attorney, acting as the AG’s delegate, certified that Osborn was acting within the scope of his federal employment at the time of the conduct which Osborn alleged in her complaint, and the case was then removed to federal court. In District Court, the US Attorney denied that Haley did the actions Osborn alleged. The Court then rejected the AG’s certification leaving Haley as the defendant, and remanded the case to Kentucky. The case then moved to the Sixth Circuit, which vacated the District Court’s order, telling the court that it couldn’t remand to Kentucky and had to keep the case.

Did the Sixth Circuit even have jurisdiction to review the District Court’s order rejecting the AG certification? Well, that’s the first question Ginsburg turns to. And the short answer is yes. A decision is deemed a reviewable final decision where three factors are met, and this District Court decision meets all three factors: (i) the court conclusively decided the issue, firmly ruling that that AG certification wasn’t appropriate in this case; (ii) the issue is important, because it effectively denies the federal employee his statutory right to immunity, and the issue is separate and distinct from the merits of the case; and (iii) for all intents and purposes, this wouldn’t be reviewable later. Plus, all the federal Court of Appeals, Ginsburg notes, “are unanimous in holding that orders denying Westfall Act certification and substitution are amenable to immediate review.”

And did the Sixth Circuit also have jurisdiction over the District Court’s order to remand the case to Kentucky? Ginsburg spends a bit more time on this issue. And we should note that this is one of the sections that Justice Souter did not join (Breyer did join it, however). Federal law says that an order to remand a case to a state court isn’t reviewable on appeal. She then turns to the details of the Westfall Act and its discussion of removal and remand, to determine if that principle applies here. She determines that it does not. The Westfall Act specifically acknowledges that, where the AG declines to certify the matter, the employee can petition the state court for removal anyway - if the case is removed and the federal court then determines that the employee wasn’t acting within the scope of his office, the Westfall Act says the court must remand the action back to the state. But there’s no similar language for the case where the AG does certify and the court rejects the certification. Ginsburg says that this distinction “leads to the conclusion that Congress gave district courts no authority to return cases to state courts on the ground that the Attorney General’s certification was unwarranted.” If the court rejects the certification, it can simply reinstate the employee as a defendant and the case can continue on in federal court.

Ginsburg then explains that this outcome doesn’t cause any problems with Article III. Even if the court rejects certification, leaving the issue a state-law tort issue, there was “a significant federal question” at the beginning, namely, whether there should be Westfall Act immunity. Article III gives the federal court discretion to keep the state law claims, since it had jurisdiction over the case at the outset, so there is no problem.

Well that seems to cover all the jurisdiction stuff, so what’s left? There’s still a question of what happens where, as was the case here, the federal employee denies that the alleged acts even happened. It’s been argued that there can’t be a valid certification in such an instance.

So can the AG certify when the actions are denied? Yes. Before we get into this, let’s note that Souter is back on board, joining Ginsburg. However, this is where Breyer parts ways from the majority. Anyway, Ginsburg says the purpose of the Westfall Act isn’t just to shield federal employees from liability, but from having any part in the lawsuit. So it makes sense to allow protection, via the AG certification, even when the alleged acts are denied, so long as the employee was acting in his scope at the time of the alleged incident. And this also means that the government, when it takes over as a defendant following the AG certification, can continue to deny that the alleged incident ever took place.

Ginsburg says that she recognizes that there’s another issue “tugging against” this ruling, namely, a question of “who decides” the underlying case - a judge or jury. If the court determines that the federal employee was, in fact, engaged in conduct within the scope of his employment, and that there was no tortuous conduct, the plaintiff would lose on the merits without ever getting to a jury. Ginsburg says that “[u]nder the Westfall Act, however, Congress supplanted the jury in covered cases.” Once the case is certified, the action is against the US, and the right to a jury trial in cases based on the common law doesn’t apply to cases against the government. So when the court reviews the certification issue, the plaintiff has no right to a jury trial anyway.

And that, as they say, is that.

What’s Souter’s beef-in-part? As noted, Souter dissents from Ginsburg’s decision that the Sixth Circuit had jurisdiction to review the District Court’s remand of the case back down to state court. For him, the legal standard that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise” is the end of the road, even if the remand was based on an obvious legal error.

And what’s Breyer’s beef-in-part? Remember, Breyer didn’t join with Ginsburg with regard to when the employee and/or government denies the alleged incident ever even happened. He believes that “the Westfall Act permits the Attorney General to certify only when accepting, at least conditionally, the existence of some kind of ‘incident,’” and that the incident must have taken place within the scope of the employee’s employment. He then goes onto a long analysis about facts that aren’t even part of this case, so it’s not just a dissent, but dicta, and I’m not wasting my time or your time with it.

And finally, the Scalia - what’s his beef? Scalia, joined by Thomas, dissents from the whole thing. He loves strict interpretation of statutes, as you may or may not know, so it all basically boils down to this:

Few statutes read more clearly than 28 U.S.C. § 1447(d): “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise….” That bar to appellate review is a venerable one, dating back to 1887…[and it is] not just horatory; it is jurisdictional.

To Scalia, this is a clear “Court-limiting command” which Ginsburg is eviscerating. And he wants no part of it. This case should’ve never gone up to the Sixth Circuit, end of story. So says the Scalia.