Wasserman v. Rodacker

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided February 24, 2009

No. 07-5307

MICHAEL F. WASSERMAN,
APPELLANT

v.

DENISE RODACKER, UNITED STATES PARK POLICE OFFICER
AND UNITED STATES OF AMERICA,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 06cv01005)

Michael F. Wasserman, appearing pro se, argued the cause
and filed the briefs for appellant.

Marian L. Borum, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, and RANDOLPH and
GARLAND, Circuit Judges.
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Opinion for the Court filed by Circuit Judge RANDOLPH.*

RANDOLPH, Circuit Judge: Michael F. Wasserman brought
tort and constitutional claims against a U.S. Park Police officer
who arrested him for walking his dogs without a leash and for
assaulting a police officer. The district court dismissed the tort
claims due to Wasserman’s failure to exhaust his administrative
remedies and granted summary judgment to the officer on the
constitutional claims. We affirm.

I.

Walking a dog on public property without a leash is a
criminal offense under District of Columbia Municipal
Regulation 24-900.3. On February 20, 2005, Wasserman was
walking his two dogs without leashes in Montrose Park, a public
park in northwest Washington, D.C. Denise Rodacker, a U.S.
Park Police Officer, observed Wasserman and began following
him. He started walking away quickly, at which point Rodacker
ordered him to stop and answer some questions. Wasserman
responded that he did not have to answer and continued walking.
Rodacker ran to catch up with him and placed her hand on his
left shoulder. She claims that Wasserman tried to pull himself
out of her grip, while he claims that he immediately stopped and
stood still. Rodacker then forced Wasserman’s arm behind his
back, handcuffed him, and placed him under arrest.

Rodacker took Wasserman to the Rock Creek Park Police
Substation, where he was charged with violating the dog leash
law and assaulting a police officer. Because the assault charge
was a felony, Wasserman was transported to the Metropolitan
Police Department central cell block and held there pending
presentment in the Superior Court of the District of Columbia.

*Judge GARLAND concurs in Part I of the opinion on the
ground noted in subpart B, and concurs in Part II.
 3

He appeared before the court the following afternoon. The U.S.
Attorney’s Office dropped the assault charge. Wasserman was
arraigned on a charge of violating Regulation 24-900.3. He
agreed to post a $25 security in exchange for the prosecutor’s
entry of nolle prosequi on this remaining charge.

On February 21, 2006, Wasserman filed suit in the Superior
Court of the District of Columbia alleging that Rodacker, acting
under color of law, violated his constitutional rights and
assaulted, battered, and falsely imprisoned him in violation of
the common law of the District of Columbia. The United States
substituted itself as a defendant against the common law tort
claims pursuant to 28 U.S.C. § 2679(d) and removed the entire
case on Rodacker’s behalf to the United States District Court for
the District of Columbia. The district court denied Wasserman’s
motion to strike the substitution of the United States and his
motion to remand the case to Superior Court. The court granted
defendants’ motion to dismiss the tort claims pursuant to 28
U.S.C. § 2675(a) because of Wasserman’s undisputed failure to
exhaust his administrative remedies. It then granted summary
judgment to Rodacker on the constitutional claims.

Wasserman asserts that the district court erred in permitting
the removal of his claims from the Superior Court. He points
out that the attorneys who signed the Notice of Removal and
then filed it in district court had not properly entered an
appearance as attorneys for Rodacker.1 Therefore, he contends,
Rodacker technically never filed a notice of removal. He further

1
D.D.C. Local Civ. R. 83.6(a) states: “An attorney eligible to
appear may enter an appearance in a civil action by signing any
pleading described in Rule 7(a), Federal Rules of Civil Procedure, or
by filing a written notice of entry of an appearance listing the
attorney’s correct address, telephone number and bar identification
number.”
 4

argues that the United States could not substitute itself as a
defendant and remove the case on its own behalf under 28
U.S.C. § 2679(d)(2) because that provision does not apply to
cases originally filed in the local courts of the District of
Columbia.

There is no dispute that Rodacker had the right to remove
this case in its entirety; 28 U.S.C. § 1441(b) permits removal of
constitutional claims, and § 1442(a)(1) permits removal of
claims against an officer of the United States acting under color
of office. It is also clear that the notice of removal was filed on
behalf of both the United States and Rodacker. The notice
recites Rodacker’s grounds for removal under 28 U.S.C. § 1441
and § 1442 – grounds that could not apply to the United States.
It begins by stating: “Defendant respectfully notifies the Court
as follows” and then identifies Rodacker as the defendant. The
notice also states that Rodacker is a U.S. Park Police Officer.
All indications are that the United States Attorney and the two
Assistant United States Attorneys who signed the notice were
representing Rodacker; they cited 28 C.F.R. § 50.15, subsection
(a) of which authorizes government attorneys to represent a
federal employee in civil proceedings if the employee has acted
“within the scope of the employee’s employment.” The notice
might also have invoked the provision of the Westfall Act
imposing a duty on the Attorney General to “defend any civil
action or proceeding brought in any court against any employee
of the Government” for tort damages. 28 U.S.C. § 2679(c).

Wasserman says that because the government attorneys did
not file a formal entry of appearance, there is no way of
knowing whether they were really speaking for Rodacker when
they removed the case. This is not a serious contention.
Rodacker did not object to the notice of removal; she never
complained about the representation the three government
attorneys provided her; and throughout the rest of the case, one
 5

of those attorneys continued to serve as her counsel. In the
district court, she opposed Wasserman’s motion to remand. Her
intention to remove the case is clear, her notice of removal was
timely and properly stated the basis for removal, and any
confusion over the identity of her attorney did not prejudice
Wasserman. To force her to file an amended notice would be
especially pointless.2 Cf. Mathews v. Diaz, 426 U.S. 67, 75 &
n.9 (1976). The case reached completion in the district court
and the district court had jurisdiction over it. Even if there were
some minor procedural defect in removing the case, Supreme
Court precedent strongly disfavors upsetting the judgment.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 75–77 (1996).

In a tort case against a federal employee, the United States
will be substituted as the party defendant upon certification by
the Attorney General that the employee was “acting within the
scope of his employment at the time of the incident out of which
the claim arose.” 28 U.S.C. § 2679(d). This provision applies
to “any civil action or proceeding commenced . . . in a United
States district court,” id. § 2679(d)(1), or “in a State court,” id.
§ 2679(d)(2). We have decided three cases in which we
indicated that 28 U.S.C. § 2679(d) permitted the United States
to substitute itself for one of its employees in cases initially filed
in the Superior Court of the District of Columbia. Norman v.
United States, 467 F.3d 773 (D.C. Cir. 2006); Haddon v. United
States, 68 F.3d 1420 (D.C. Cir. 1995), abrogated on other
grounds by Osborn v. Haley, 549 U.S. 225 (2007); Kimbro v.
Velten, 30 F.3d 1501 (D.C. Cir. 1994). In Haddon, for instance,
we stated with respect to an action begun in Superior Court that

2
Although an amended notice of removal would come long
after the 30-day deadline of 28 U.S.C. § 1446, that deadline is not
jurisdictional, and the district court would have discretion to allow the
amendment. See, e.g., Loftin v. Rush, 767 F.2d 800, 805 (11th Cir.
1985).
 6

the lawsuit “was initially filed in state court . . ..” 68 F.3d at
1423.

In none of the three decisions just cited did we elaborate on
the reasons why the Superior Court was a State court under the
Westfall Act. The point must have seemed obvious. The central
purpose of the Act is to indemnify federal employees from tort
liability arising from acts committed within the scope of their
employment. Congress took this step in response to the
Supreme Court’s denial of absolute immunity in Westfall v.
Erwin, 484 U.S. 292 (1988). See Westfall Act, Pub. L. No.
100-694, § 2, 102 Stat. 4563, 4563 (1988). The mere “prospect”
of tort “liability,” Congress found, would “seriously undermine
the morale and well being of Federal employees [and] impede
the ability of agencies to carry out their missions.” Id. § 2(a)(6).
A specific Congressional finding stated that the Act was meant
to remove “the threat of protracted personal tort litigation for the
entire Federal workforce.” Id. § 2(a)(5). Federal employees
performing official duties in the District of Columbia are
obviously a significant part of the “entire Federal workforce.”

A.

There are two grounds supporting our earlier decisions,
either one of which permitted the United States to substitute
itself for Rodacker pursuant to 28 U.S.C. § 2679(d)(1). The first
is that upon Rodacker’s timely removal of the case to federal
court, Wasserman’s action was “commenced . . . in a United
States district court.” While any case removed from a state
court necessarily originated outside of district court, its removal
creates a federal civil case (here, Case 06-cv-01005) with a
procedural beginning and end. Federal civil actions are typically
commenced when the plaintiff files his complaint in a district
court. See FED. R. CIV. P. 3 (“A civil action is commenced by
filing a complaint with the court.”). Wasserman did not re-file
 7

his complaint with the district court after removal and the
Federal Rules of Civil Procedure – which treat the District of
Columbia as a State, FED. R. CIV. P. 81(d)(2) – explicitly
provide that such a formality is unnecessary. FED. R. CIV. P.
81(c)(2). Thus the absence of re-filing does not alter our
analysis. According to the applicable rules of civil procedure,
Wasserman’s action commenced in the district court when
removal was effected and the complaint was received by the
clerk, see FED. R. CIV. P. 3, 5(d)(2). As such, 28 U.S.C.
§ 2679(d)(1) applies to this action, and it allows the United
States to replace Rodacker as the party defendant to the tort
claims against her.

B.

In the alternative, the United States properly substituted
itself as a defendant because the Superior Court was a “State
court” within the meaning of 28 U.S.C. § 2679(d)(2). There is
a longstanding legal tradition of interpreting “State” in various
federal statutes as encompassing the District of Columbia. The
Supreme Court long ago recognized that the word “State”
“sometimes . . . has the larger meaning of any separate political
community, including therein the District of Columbia and the
territories.” Talbott v. Bd. of County Comm’rs of Silver Bow
County, 139 U.S. 438, 444 (1891). The Court has repeatedly
interpreted the term “State” to include the District of Columbia
when that interpretation reflects Congress’s intent, Hurd v.
Hodge, 334 U.S. 24, 31 (1948); Talbott, 139 U.S. at 444
(collecting cases); see also Loughran v. Loughran, 292 U.S.
216, 228 (1934) (treating the District as a “State” under the Full
Faith & Credit Clause), and this court has followed suit, Madley
v. U.S. Parole Comm’n, 278 F.3d 1306, 1309 (D.C. Cir. 2002);
Garris v. Lindsay, 794 F.2d 722, 724 n.8 (D.C. Cir. 1986); see
also Norman, 467 F.3d at 774; Haddon, 68 F.3d at 1423;
Kimbro, 30 F.3d at 1505–06. In every case, context and the
 8

overall purpose of the federal statute must be considered. See,
e.g., District of Columbia v. Carter, 409 U.S. 418, 420 (1973).
These decisions, coupled with the Westfall Act’s unambiguous
purpose – to protect the “entire Federal workforce,” Westfall
Act § 2(a)(6), from tort liability for official actions – compels
the conclusion that Congress intended “State court” in
§ 2679(d)(2) to include the Superior Court of the District of
Columbia. We can think of no policy reason, no logical reason,
no reason whatever why Congress would have intended
otherwise.

Wasserman lists other statutes in which Congress defined
“State court” to include the courts of the District of Columbia.
His point apparently is that when Congress wanted the District
to be considered a State, Congress said just that. This type of
argument is usually not a particularly strong one. See City of
Naples Airport Auth. v. FAA, 409 F.3d 431, 434 (D.C. Cir.
2005); Doris Day Animal League v. Veneman, 315 F.3d 297,
299 (D.C. Cir. 2003). Here it is especially weak because
Wasserman cannot explain why Congress would have wanted
cases begun against federal employees in the District of
Columbia local courts to be excluded from the Westfall Act.3
Of course matters would have been clearer if Congress had

3
If anything, one of Wasserman’s examples actually cuts
against his argument. Congress explicitly defined “State court” to
include the D.C. Superior Court in the “Definitions” provision of the
federal removal statute. 28 U.S.C. § 1451. This definition technically
applies only to the chapter containing the general removal provisions
of the U.S. Code – the substitution and removal provision of § 2679
is located in a different chapter for which no definition of “State
court” is provided. We cannot fathom any plausible reason – nor does
Wasserman suggest one – why Congress would intentionally treat the
D.C. Superior Court as a State court under the general removal statutes
but not the Westfall Act.
 9

included a definition of “State” or “State court.” But Congress’s
failure “to speak with clarity signifies only that there is room for
disagreement about the statute’s meaning.” City of Naples, 409
F.3d at 434 (quoting Doris Day Animal League, 315 F.3d at
299); see Goldstein v. SEC, 451 F.3d 873, 878 (D.C. Cir. 2006).

II.

Having determined that Rodacker properly removed this
action to the district court and that the United States was
properly substituted as a defendant against Wasserman’s tort
claims, we proceed to the merits of the case. Upon substitution
of the United States as a party defendant, the Westfall Act
dictates that the action “shall proceed in the same manner as any
action against the United States filed pursuant to section 1346(b)
of this title and shall be subject to the limitations and exceptions
applicable to those actions.” 28 U.S.C. § 2679(d)(4). Among
these limitations is the requirement that a plaintiff present his
claim to the appropriate federal agency and receive a denial of
the claim in writing before his tort action may proceed. 28
U.S.C. § 2675(a). Wasserman failed to exhaust his
administrative remedies, and the district court properly
dismissed his claim.4

4
Wasserman counters that the Federal Tort Claims Act, 28
U.S.C. § 2402, which requires facts to be tried by a judge rather than
a jury, violates the Seventh Amendment. This argument is foreclosed
by a long line of Supreme Court decisions holding that the Seventh
Amendment’s right to trial by jury does not apply in actions against
the federal government. See, e.g., Osborn v. Haley, 549 U.S. 225, 252
(2007); Lehman v. Nakshian, 453 U.S. 156, 160 (1981); Glidden Co.
v. Zdanok, 370 U.S. 530, 572 (1962); Galloway v. United States, 319
U.S. 372, 388–89 (1943).
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The district court (and the defendants) construed
Wasserman’s complaint to allege violations of the Fourth
Amendment that give rise to claims for damages under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Wasserman alleged that Rodacker arrested
him without probable cause, used excessive force during his
arrest, and caused him to be detained for an unreasonable length
of time. The district court correctly granted summary judgment
to defendants on all of these Bivens claims.

Wasserman now concedes that the police had probable
cause to arrest him, due to his violation of the District of
Columbia’s dog leash law.5 As to the excessive force claim, an
officer’s motion for summary judgment is to be granted unless
“the excessiveness of the force is so apparent that no reasonable
officer could have believed in the lawfulness of his actions.”
Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993). We
evaluate the reasonableness of Rodacker’s behavior based on
“the facts and circumstances of [the] particular case, including
the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
The inquiry is objective; the subjective intent of the officer
(which Wasserman alleges was malicious here) is irrelevant.
See Whren v. United States, 517 U.S. 806, 812–13 (1996).

5
Probable cause is evaluated based on an objective standard.
Whren v. United States, 517 U.S. 806, 812–13 (1996). The fact that
Rodacker had probable cause is sufficient under the Fourth
Amendment even if Wasserman’s leash law violation was not actually
the basis for the arrest. See id.; United States v. Bookhardt, 277 F.3d
558, 564 (D.C. Cir. 2002).
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Taking the evidence before us in the light most favorable
to Wasserman, see, e.g., Arrington v. United States, 473 F.3d
329, 333 (D.C. Cir. 2006), we assume that Wasserman was not
moving or offering any resistance after Rodacker first touched
his left shoulder and that Rodacker forcefully pressed upwards
on Wasserman’s arm before handcuffing him, causing him pain.
Nonetheless, it was reasonable for Rodacker to apply force to
Wasserman’s arm to secure his compliance during arrest. Police
officers have authority to use “some degree of physical
coercion” when arresting a suspect, Graham, 490 U.S. at 396,
and Wasserman’s refusal to obey Rodacker’s order prior to his
arrest suggested that he might try to resist or escape.
Wasserman suffered no bruise or injury, which tends to confirm
that Rodacker did not use “more force than reasonably appeared
necessary” to secure Wasserman’s compliance. Scott v. District
of Columbia, 101 F.3d 748, 760 (D.C. Cir. 1996); see Saucier v.
Katz, 533 U.S. 194, 209 (2001), overruled on other grounds by
Pearson v. Callahan, 129 S.Ct. 808 (2009); Wardlaw, 1 F.3d at
1304. In light of the facts and circumstances of the arrest,
Rodacker’s alleged use of force was not excessive.

A person arrested without a warrant and detained is entitled
to a probable cause determination by a neutral magistrate within
a reasonable period of time. Forty-eight hours is presumptively
reasonable. County of Riverside v. McLaughlin, 500 U.S. 44,
53–54, 56 (1991). Wasserman was arrested at approximately
8:00 AM on Sunday, February 20, 2005, and received a hearing
at approximately 3:00 PM the next day, well within the 48-hour
period. A detention of less than 48 hours may be unreasonable
if, for example, the probable cause hearing is intentionally
delayed out of “ill will, or delay for delay’s sake.” Riverside,
500 U.S. at 56. Wasserman does not attempt to show that
Rodacker delayed his hearing because of ill will or any other
malicious purpose. Instead, he claims that his detention was
unreasonable because it was premised on a charge of assault on
 12

a police officer that was later dropped by the U.S. Attorney’s
Office. We are sympathetic towards any citizen detained
overnight due to a police officer’s arguably overzealous
charging of offenses. Regardless, Wasserman’s claim must fail
because he does not allege that the length of his detention was
unreasonable. Wasserman’s arguments about the basis of his
detention are not material. As to his detention, all the Fourth
Amendment requires in this context is that he receive a hearing
within a reasonable time. In addition, the police may have
constitutionally detained Wasserman for up to 48 hours on the
ground of his uncontested misdemeanor offense. See Atwater v.
City of Lago Vista, 532 U.S. 318, 352 (2001).

Officer Rodacker properly removed this action to federal
court and the United States was properly substituted as a
defendant against Wasserman’s tort claims. The district court
correctly dismissed the tort claims due to Wasserman’s failure
to exhaust his administrative remedies and correctly granted
summary judgment to Rodacker on the constitutional claims.

Affirmed.