UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1960
FRANCES A. ROGERS,
Plaintiff, Appellee,
v.
MANAGEMENT TECHNOLOGY, INC., ET AL.
Defendants, Appellees,
RICHARD CAVALLARO,
Defendant, Appellant.
PETITION FOR WRIT OF MANDAMUS AND APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Jennifer H. Zacks, with whom Frank W. Hunger, Assistant Attorney
General, Donald K. Stern, United States Attorney, and Barbara L.
Herwig, Attorney, Civil Division, U.S. Department of Justice, were on
brief for appellant, Richard Cavallaro.
Paul A. Manoff for appellee Frances A. Rogers.
August 12, 1997
CAMPBELL, Senior Circuit Judge. The United States
and its employee, Richard Cavallaro, appeal from the district
court's order remanding a slander action brought against
Cavallaro back to the Massachusetts state court. The slander
action had earlier been removed to the federal court pursuant
to the Attorney General's Westfall Act certification, which
stated that Cavallaro had been acting within the scope of his
federal employment at the time of the alleged slander
incident. Appellants now complain that the district court,
ignoring the Attorney General's certification, wrongly placed
upon them the burden of establishing that Cavallaro was
acting within the scope of his federal employment when
committing the alleged tort. Appellants further complain of
the absence of any express determination by the district
court that Cavallaro had in fact been acting beyond the scope
of his federal employment. We vacate and remand.
I. Factual Background
The plaintiff, Frances A. Rogers, was employed by
Management Technology Inc., a government contractor, until
August 1993. At that time, Rogers was fired, allegedly for
falsifying the records of the hours she had worked as a data
entry help desk coordinator at Hanscom Air Force Base.
Rogers then filed a state action in the Massachusetts
superior court against, among others, Richard Cavallaro, a
civil service employee of the United States Air Force. She
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asserted that following a dispute she had had with Cavallaro
over a parking space, he had defamed her wrongfully
telling her superiors that she had falsified her time cards
causing the loss of her job.
The United States Attorney, acting under the
Westfall Act, certified that Cavallaro had been "acting
within the scope of his office or employment at the time of
the incident out of which the claim arose."1 28 U.S.C.
2679(d)(1). The government then removed the case to the
federal district court and moved that the United States be
substituted for Cavallaro as the party defendant, and that
Cavallaro be dismissed, under 28 U.S.C. 2679(d)(2) and
(b)(1).
At the same time, the government also moved
separately for summary judgment, arguing that since the
Westfall Act provides that a plaintiff's sole remedy against
a federal employee 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," 28 U.S.C. 2679(b)(1), is a suit against the
United States under the Federal Tort Claims Act, and since
1. Although the statute designates the Attorney General as
the person who makes the scope decision, the Attorney General
has delegated this authority to the United States Attorneys.
See 28 C.F.R. 15.3(a).
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the Federal Tort Claims Act provides no waiver of sovereign
immunity for the types of claims asserted by Rogers, see 28
U.S.C. 2680(h), Rogers had no remedy.
The case was assigned initially to United States
District Judge Harrington. On April 29, 1994, Judge
Harrington ordered both parties to submit affidavits
"delineating the duties and responsibilities of their
employment . . . ." Whether because it was never received,
as the government now contends, or for some other reason,
neither party filed affidavits in compliance with this
order.2
On May 16, 1994, the case was reassigned to United
States District Judge Gertner. On September 16, 1994, Judge
Gertner held a hearing on the government's motions for
substitution of the United States as party defendant and
dismissal of Cavallaro and for summary judgment against
Rogers in her defamation action. On May 30, 1996, Judge
Gertner denied all the government's motions, citing
Cavallaro's failure to file an affidavit in compliance with
the April 29, 1994 order and a lack of basis for concluding
that Cavallaro was acting within the scope of his employment.
2. Rogers submitted an affidavit on May 2, 1994 that did not
address the "duties and responsibilities" of either her
employment or Cavallaro's. Rogers says she filed this
affidavit in support of her opposition to the government's
summary judgment motion, and not in response to Judge
Harrington's order.
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Judge Gertner then remanded the case back to the
Massachusetts state court. Without moving for
reconsideration, the government filed this appeal.3
II. Review of the Scope Certification
The Westfall Act states that the scope
certification by the Attorney General that a federal
employee was acting within the scope of his or her employment
when committing the alleged tort from which the claim arose
"shall conclusively establish scope of office or
employment for purposes of removal." 28 U.S.C. 2679(d)(2)
(emphasis added). In Gutierrez de Martinez v. Lamagno, 115
S. Ct. 2227 (1995), the Supreme Court construed the Act so as
to allow district courts to review the Attorney General's
scope certificate relative to the matter of substitution of
the United States as a party defendant. The Court wrote:
Congress spoke in discrete sentences in
2679(d)(2) first of removal, then of
substitution. Next, Congress made the
3. The government says that it did not file a motion for
reconsideration under Fed. R. Civ. P. 60 because it "did not
become aware of the district court's orders denying the
United States' motion for substitution and remanding the case
to state court until a few days before the deadline for
filing a notice of appeal . . . ." Given the government's
complaint that it was not notified of Judge Harrington's
order to file affidavits, it would have been sensible to
bring this matter to the district court's attention. The
government's excuse that it did not learn of Judge Gertner's
order rejecting its motion until shortly before the
expiration of the time to appeal is not persuasive. It could
have filed its notice of appeal first and then asked the
district court to reconsider its order. See Puerto Rico v.
The SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979).
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Attorney General's certificate conclusive
solely for purposes of removal, and
notably not for purposes of substitution.
It follows . . . that the scope-of-
employment judgment determinative of
substitution can and properly should be
checked by the court, i.e., the Attorney
General's scarcely disinterested
certification on that matter is by
statute made the first, but not the final
word.
Id. at 2235.
Gutierrez did not speak to the question of who has
the burden of proof on the scope issue, but our language in
Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990), indicates
clearly that in situations such as this one, where a
plaintiff asserts that a defendant acted outside the scope of
his or her employment despite the Attorney General's
certification to the contrary, the burden of proof is on the
plaintiff. We wrote:
The Attorney General can see to it, by
making the certification, that the
federal defendant's scope status is
resolved by a federal, not a state
tribunal; employee immunity will thus be
protected, in keeping with the Westfall
Act's purpose, except where the plaintiff
can convince a federal court that the
government employee was acting outside
the scope of his employment and,
therefore, by definition, was not
entitled to immunity from personal
liability.
Id. at 813 n.16 (emphasis added). See also Aversa v. United
States, 99 F.3d 1200, 1209 (1st Cir. 1996).
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Neither the Supreme Court nor our own en banc court
has said anything to undermine the panel's conclusion in
Nasuti that the plaintiff has the burden of proof in respect
to overturning the Attorney General's scope certification.
The holding therefore remains binding in this circuit. See
Institut Pasteur v. Cambridge Biotech Corp., 104 F.3d 489,
493 n.8 (1st Cir.), cert. denied, No. 96-1698, 1997 WL 219862
(U.S. June 27, 1997); Williams v. Ashland Engineering Co.,
Inc., 45 F.3d 588, 592 (1st Cir.), cert. denied, 116 S. Ct.
51 (1995). Here, the district court explained its
reasons for overturning the scope certification, rejecting
the government's motions, and remanding to the state court,
solely as follows:
On April 29, 1994, this court issued an
order requiring defendant Cavallaro to
submit an affidavit delineating his
duties and responsibilities with the Air
Force. No such affidavit was received.
This Court therefore has no basis for
concluding that Cavallaro was acting
within the scope of his employment when
he made the allegedly defamatory remarks.
The district court's language that without the
government's affidavit it had no basis for concluding that
Cavallaro was acting within the scope of his employment
ignored the Attorney General's existing scope certification
and improperly placed upon the defendant the burden of
establishing anew that he had acted within the scope of his
federal employment.
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In Nasuti, as the government points out, this court
further held that it is illegal for the district court, when
confronted with an outstanding scope certification, to remand
to the state court unless it makes "an express determination
of its own that defendant, when he allegedly injured
plaintiff, was acting beyond the scope of his federal
employment." Nasuti, 906 F.2d at 808. The district court
made no such express scope determination here, pointing
instead merely to Cavallaro's failure to have produced an
affidavit delineating his Air Force duties and
responsibilities. It is far from clear that such an
affidavit would have resolved the scope issue as framed by
Rogers, namely, that Cavallaro was motivated by personal
animosity stemming from a parking space dispute when he told
Plaintiff's superiors that she had falsified her time
records. In any case, the district court's reference to the
missing affidavit delineating duties and responsibilities
fell short of Nasuti's requirement that the court
affirmatively make an express determination of its own that
Defendant was acting beyond the scope of his employment when
he injured the plaintiff.
We do not say, of course, that the express
determination of scope called for in Nasuti may not be made
in the context of a summary judgment type proceeding,
assuming there is no issue of disputed fact requiring an
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evidentiary hearing. But Rogers never moved for summary
judgment on the scope issue. Nor did the district court ever
determine on the basis of uncontested facts in the record
that Cavallaro had acted outside the scope of his federal
employment.
This is not a situation where it might be thought
that the district court had validly granted summary judgment
to a non-requesting party. See National Expositions, Inc. v.
Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir. 1987)
("[A] district court has the legal power to render 'summary
judgment . . . in favor' of the party opposing a summary
judgment motion 'even though he has made no formal cross-
motion under rule 56.'") (quoting 10A C. Wright, A. Miller &
M. Kane, Federal Practice and Procedure 2720, at 29-30 (1st
ed. 1983)). The major limitation on this rule is that "'the
losing party' must be 'on notice that she had to come forward
with all of her evidence.'" Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)). In order to be "on notice,"
the original movant must have "'had an adequate opportunity
to show that there is a genuine issue and that his opponent
is not entitled to judgment as a matter of law.'" Id.
(quoting 10A C. Wright, A. Miller & M. Kane, supra, 2720,
at 34) (emphasis added by cited case).
Here it cannot be said that Cavallaro understood he
was on notice that he had to produce all his scope evidence
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or else face summary judgment against him. It is true that
he was ordered by Judge Harrington to produce affidavits
delineating his duties and responsibilities. But even had
Cavallaro complied, such an affidavit would not have
addressed Rogers' argument that Cavallaro's conduct was
outside the scope of his federal duties because it was based
on personal spite. Rogers herself, in her opposition to the
government's summary judgment motion, stated, "There is
insufficient evidence in the record presently, for the court
to make [the scope] determination." Rogers argued that she
needed to take three depositions before enough evidence would
exist. In these confusing circumstances, we do not believe
the defendants were on notice they had to come forward with
all their evidence on scope, on peril of suffering summary
judgment on that issue in favor of the non-moving plaintiff.
Indeed, although we need not decide the point, it
seems unclear whether the facts stated in Cavallaro's
affidavit (treating them, arguendo, as uncontested) provided
a sufficient basis for a scope determination under
Massachusetts law against Cavallaro and the government. See
Wang Laboratories, Inc. v. Business Incentives, Inc., 501
N.E.2d 1163, 1166 (Mass. 1986) ("The fact that the
predominant motive of the agent is to benefit himself does
not prevent the act from coming within the scope of
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employment as long as the act is otherwise within the purview
of his authority.").
We hold, therefore, that the district court lacked
an adequate basis in the present record and on the procedures
conducted to date for awarding a judgment on the scope issue
in Plaintiff's favor.
Nor can the district court's ruling be upheld as
tantamount to the entry of a default judgment against
Cavallaro and the government designed to discipline them for
their failure to file the affidavit ordered by Judge
Harrington. The court's order denying the government's
motions for dismissal of Cavallaro as a party defendant and
for substitution of the United States, and for summary
judgment, does not contain either the word "default" or a
citation to Fed. R. Civ. P. 55, which sets forth the
procedure for issuing a judgment by default.4 Nor was that
procedure followed. Rogers did not move for a default
judgment; written notice of an application for default
judgment was not served; and no hearing was held on the
matter of a default judgment. See Fed. R. Civ. P. 55(b).
4. Fed. R. Civ. P. 55(b)(2) states, in relevant part:
[T]he party entitled to a judgment by default shall
apply to the court therefor . . . . If the party
against whom judgment by default is sought has appeared
in the action, the party . . . shall be served with
written notice of the application for judgment at least
3 days prior to the hearing on such application.
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Rogers argues that we lack jurisdiction to review
the district court's remand order through a writ of mandamus.
Just as in Nasuti, however, the district court's failure to
make an express finding that Cavallaro was acting outside the
scope of his employment left the Attorney General's scope
certification intact. As we wrote:
[S]o long as the Attorney General's
certificate is validly in effect, [the
defendant] must be deemed conclusively,
for removal purposes, to have been acting
within the scope of his employment, and
is thus absolutely immune from any civil
action or proceeding for money damages.
The district court's current order
remanding to the state court is,
therefore, totally unauthorized, being
contrary to Congress's mandate that the
Attorney General's scope certification be
conclusive.
Nasuti, 906 F.2d at 809-10 (footnote omitted). Accordingly,
mandamus is appropriate in this case as it was in Nasuti.
"At least where, as here, remand was on grounds inextricably
mixed with the scope of employment issue, and was plainly
barred by the scope certification, we believe mandamus is
appropriate . . . ." Id. at 812 n.15.5
5. The district court's order may also be reviewable on
direct appeal. See Nasuti, 906 F.2d at 812 n.15; Flohr v.
Mackovjak, 84 F.3d 386, 389 (11th Cir. 1996); Kimbro v.
Velten, 30 F.3d 1501, 1503 (D.C. Cir. 1994), cert. denied,
115 S. Ct. 2584 (1995); Jamison v. Wiley, 14 F.3d 222, 233
(4th cir. 1994); Aliota v. Graham, 984 F.2d 1350, 1353 (3d
Cir.), cert. denied, 510 U.S. 817 (1993); Mitchell v.
Carlson, 896 F.2d 128, 132-33 (5th Cir. 1990).
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We therefore vacate the district court's order
denying the government's motions for substitution and summary
judgment and remanding the case to state court. We remand to
the district court for an express determination as to whether
Cavallaro was acting within the scope of his duties when he
allegedly injured Rogers. Just as in Nasuti, "As we are
confident that the district court and the parties will comply
with our orders in this regard, we see no need to issue an
actual writ of mandamus at this time." Id. at 814.
Vacated and remanded.
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