UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-2216
DANIEL AVERSA, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
Francis G. Murphy, with whom Kathryn B. Johnston and Hall, Hess,
Kenison, Stewart, Murphy, & Keefe, P.A. were on brief for appellants.
Richard A. Olderman, Attorney, with whom Barbara L. Herwig,
Attorney, Civil Division, Department of Justice, Paul M. Gagnon,
United States Attorney, and Frank W. Hunger, Assistant Attorney
General, were on brief for appellees.
October 21, 1996
BOWNES, Senior Circuit Judge. Daniel and Carla
BOWNES, Senior Circuit Judge.
Aversa filed a civil action alleging that Patrick Walsh, an
Assistant United States Attorney in the District of New
Hampshire, and Kenneth Claunch, Chief of the Criminal
Investigation Division of the Internal Revenue Service,
falsely stated and implied to the local and national news
media that Daniel Aversa was involved in laundering
illegally-gotten money, tax evasion, drug trafficking and
racketeering activity, and thus committed slander and other
common law torts under New Hampshire law and deprived him of
his right to liberty guaranteed by the Constitution of the
United States. Senior District Judge Martin F. Loughlin, who
presided over the related criminal case, found the statements
to have been "totally false," "misleading," "outrageous,"
"self-serving" and "unfair." In this civil action,
Magistrate Judge Lovegreen and District Judge Mary Lisi
agreed with Judge Loughlin's condemnation, adding that the
defendants' conduct showed "extraordinarily poor judgment"
and was "lacking in professionalism." The district court,
however, dismissed the Aversas' lawsuit, finding that Walsh
and Claunch were absolutely immune from suit for the common
law torts, and qualifiedly immune from suit for the
constitutional tort.
The purpose of immunity -- absolute or qualified --
is not to protect erring federal officials from the
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consequences of their injurious acts, but to safeguard the
public interest in having responsible governmental employees
faithfully carry out their duties without fear of protracted
litigation in unfounded damage suits. See Wyatt v. Cole, 112
S. Ct. 1827, 1833 (1992); Westfall v. Erwin, 484 U.S. 292,
295 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982);
Scheuer v. Rhodes, 416 U.S. 232, 241-42 (1974); Barr v.
Matteo, 360 U.S. 564, 565 (1959) (plurality opinion); Wood v.
United States, 995 F.2d 1122, 1126 (1st Cir. 1993);
Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). In
obvious tension with that objective is that well-founded
damage suits promote the public interest in compensating
victims and deterring unlawful conduct. Harlow, 457 U.S. at
814, 819; Barr, 360 U.S. at 576.
The law of immunity seeks a balance between the
evils inevitable in any available alternative. Harlow, 457
U.S. at 813; Wood, 995 F.2d at 1126. Thus, a federal
employee who allegedly commits a common law tort will be
absolutely immune from suit if he acted within the scope of
his federal employment, 28 U.S.C. 2679(b)(1), but the
plaintiff can proceed against the government unless some
exception to the Federal Tort Claims Act applies. And a
federal official is qualifiedly immune from suit for an
alleged constitutional tort if his "conduct [did] not violate
clearly established . . . constitutional rights of which a
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reasonable person would have known," Harlow, 457 U.S. at 818,
even though his actions may have been "despicable and
wrongful" in some more general sense. Souza v. Pina, 53 F.3d
423, 427 (1st Cir. 1995).
Although we affirm, we believe that the false and
misleading information allegedly disseminated to the press in
Aversa's criminal case deserves more than condemnation, and
therefore refer the matter to the appropriate disciplinary
bodies.
I. FACTUAL AND PROCEDURAL BACKGROUND
I. FACTUAL AND PROCEDURAL BACKGROUND
Except where otherwise noted, the following facts
are taken from Aversa's complaint. Daniel Aversa ("Aversa")
and Vincent Mento ("Mento") were partners in a legitimate
real estate business.1 In January of 1989, they sold a
parcel of land, splitting the proceeds. At the same time,
Aversa was experiencing marital difficulties with his wife
Carla. In order to conceal some of his assets from his wife
in the event of a divorce, Aversa asked Mento if he could
deposit his share of the proceeds, amounting to $55,000, into
Mento's personal bank account. Mento agreed.
Both men were aware that domestic financial
institutions were required to report currency transactions in
excess of $10,000 to the Secretary of the Treasury, see 31
1. Vincent and Shirley Mento were plaintiffs in this action
but did not pursue an appeal.
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U.S.C. 5313(a); 31 C.F.R. 103.22(a)(1), and wished to
avoid causing a Currency Transaction Report ("CTR") to be
filed. Aversa therefore made a series of deposits into
Mento's account in sums just under $10,000.2 At the time,
Aversa was unaware that structuring the transactions to avoid
causing a CTR to be filed was a crime under federal law. See
31 U.S.C. 5324(a).
In June of 1990, IRS agents contacted Aversa and
informed him that he was under investigation for structuring
deposits. He immediately met with Assistant United States
Attorney Walsh, and without an attorney present, explained
that he was hiding the money from his wife, that it was not
derived from an illegal source, and that he did not know that
structuring was illegal. Walsh told Aversa that he and Mento
had been under investigation for some time and that he had no
reason to believe the money was anything but "clean," but
said that he did not need to prove that it was derived from
an illegal source or that Aversa knew that structuring was
illegal. Walsh told Aversa that there was no reason to seek
counsel and encouraged him to plead guilty because all that
2. Aversa's purpose in transferring the money out of his
account was to conceal it from his wife, a purpose we do not
condone. But Judge Loughlin found that Aversa and Mento
wished to avoid a CTR being filed because they believed it
would cause the Internal Revenue Service to hold Mento
responsible for the taxes on the amount, and that Aversa and
Mento each reported his share of the proceeds on his own tax
return.
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was needed for a conviction was what Aversa had just told
him. In a later meeting with Aversa's counsel, Walsh said
that he previously had been successful in prosecuting
individuals for structuring in Miami, but that this case
would be his first involving "clean money," and he planned to
use it to "set a precedent" and "educate the public about the
currency transaction reporting requirements."
On June 28, 1990, Walsh obtained an indictment
charging Aversa and Mento with conspiracy, structuring, and
making false statements, and Aversa alone with attempting to
cause a domestic financial institution to file a report
containing a material omission or misstatement of fact. That
same day, Walsh, Claunch, and the United States Attorney for
the District of New Hampshire, Jeffrey R. Howard (with whom
Aversa alleged Walsh and Claunch conspired but who was not
joined as a defendant) issued a press release and held a
press conference announcing to the local and national news
media, which reported to the public, that Aversa and Mento
had been arrested for money laundering. Walsh and Claunch
knew that Aversa and Mento were not involved in laundering
illegally-gotten money, or in drug trafficking, tax evasion
or organized crime, but created the impression that they
were. An article in the Boston Globe dated June 29, 1990,
reported:
Walsh said money laundering is usually
done for purposes of tax evasion, drug
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dealing or organized crime. He would not
say if either of yesterday's indictments
are related to these activities, but
added after the news conference that "it
would be a fair statement" to say
authorities are looking into how [these]
men amassed the sums of money involved.
Walsh also stated that Aversa faced up to forty years in
prison and added that the investigation was continuing and
more charges would be filed.
A front-page article in the Concord Monitor dated
June 29, 1990 reported:
The indictments are a sign that
prosecutors are serious about using the
money laundering laws, a tool that allows
them to charge people for handling money
illegally without having to prove that
the money was gained illegally, said
Jeffrey Howard, U.S.A. attorney for New
Hampshire.
"The indictments are important because
they are examples of the commitment the
I.R.S. has made . . . to use the money
laundering statutes in order to ferret
out tax evasion, drug trafficking and
other crimes," he said.
Prosecutors declined to say how Aversa
and Mento got the money or why they
believe the men tried to evade the
currency laws.
Claunch stated at the press conference that
"[t]hese cases represent the IRS's commitment to ferreting
out money launderers," and that the IRS wanted "to send a
message that money laundering is going to be detected,
investigated and prosecuted to the full extent."
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On October 10, 1990, after Judge Loughlin granted
the government's motion in limine to preclude a defense based
on ignorance of the anti-structuring law, Aversa pled guilty
to structuring. The plea agreement stipulated:
1. The United States has no evidence
that the currency involved in these
transactions was obtained from an
unlawful source.
2. The United States has no evidence
that the defendant knew of the
structuring provision, but states to the
Court that such knowledge is not
necessary to establish a violation of
Section 5324.
Aversa reserved his right to appeal the issue of whether a
conviction under 31 U.S.C. 5324 required knowledge that
structuring is illegal.
On October 17, 1990, following Mento's conviction,
Walsh issued a press release in which he stated that the
currency transaction reporting laws and the laws that
prohibit structuring "were passed to assist in the
investigation of related criminal conduct, such as narcotics
trafficking, organized crime and racketeering activity and
tax violations," and that these convictions would send "a
strong clear message that persons who violate . . . and evade
those laws will be vigorously prosecuted." Walsh made oral
statements to the press stating and implying that Aversa and
Mento had violated the anti-structuring law in order to
further an underlying criminal enterprise, and that they
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could not account for some of the money involved in the
structured transactions. No evidence had been adduced at
Mento's trial that there was an underlying criminal purpose
or that the source of the money was unexplained.
At Aversa's and Mento's sentencing, Judge Loughlin
found that Aversa and Mento would bear the stigma of the
"totally false" innuendoes reported in the media for the rest
of their lives. In a memorandum opinion ruling on Aversa's
and Mento's post-conviction motions,3 the judge noted that
the government had admitted that Aversa and Mento were "not
involved in drugs and not laundering ill-gotten gains and not
keeping information from the United States," and found that
the prosecutors' statements to the press were "outrageous and
unfair," "misleading and cruel," "self-serving and more than
a little disingenuous," and "smeared the reputation of these
two men."
This court vacated Aversa's and Mento's
convictions, ruling that the willfulness requirement of the
applicable criminal penalty provision, 31 U.S.C. 5322(a),
required the government to prove the violation of a known
legal duty or the reckless disregard thereof, and that an
3. The motions for writ of coram nobis were based on Cheek
v. United States, 111 S. Ct. 604 (1991), decided after
Mento's trial. Judge Loughlin found that in light of Cheek,
he had erred in ruling out the defendants' proposed mistake
of law defense, but found that he could not grant relief
under a writ of coram nobis because other relief, in the form
of an appeal, was available.
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unintentional, nonreckless mistake of law was a complete
defense to a structuring charge. United States v. Aversa,
984 F.2d 493, 498, 500, 502 (1st Cir. 1993) (en banc),
vacated sub nom., Donovan v. United States, 114 S. Ct. 873
(1994).4 We remanded for a new trial, but the government
elected not to proceed again against Aversa.
The Aversas then brought a civil action seeking
compensatory and punitive damages against Walsh, Claunch, and
other unnamed defendants, alleging in Count I that the
defendants, acting under color of federal law, deprived
Aversa of his Fifth Amendment right to liberty; in Counts II
and III that they committed the torts of slander and
intentional infliction of emotional distress under New
Hampshire law; and in Count IV that the defendants' conduct
caused Carla Aversa to lose the consortium of her husband.
The complaint alleged that Walsh and Claunch defamed Aversa
for the purpose of personally benefitting in their careers,
and that their false and misleading statements caused
irreparable harm to Aversa's personal and business
4. The Supreme Court ordered our judgment in Aversa vacated
and the case remanded for reconsideration in light of Ratzlaf
v. United States, 114 S. Ct. 655 (1994), in which the Court
had held that the willfulness requirement of 31 U.S.C.
5322(a) required knowledge that structuring is illegal. Id.
at 663. Congress has since amended the statute so that
willfulness is no longer required for a violation of 31
U.S.C. 5324. See Pub. L. No. 103-325, 411, 108 Stat.
2160 (Sept. 23, 1994) (codified as amended at 31 U.S.C.
5322(a) (West Supp. 1996)).
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reputations and his business goodwill, caused him to be
discharged from his job as an accountant, and prevented him
from finding other employment as an accountant. The case was
transferred from the District of New Hampshire to the
District of Rhode Island. Pursuant to the Federal Employees
Liability Reform and Tort Compensation Act of 1988, commonly
known as the Westfall Act, the Attorney General certified
that Walsh and Claunch acted within the scope of their
federal employment and the United States was provisionally
substituted as the party defendant. 28 U.S.C. 2679(d)(1).
Aversa was permitted to depose Walsh and Claunch in aid of
his challenge to the scope certification, and he submitted
the depositions and various exhibits to the court.5
Thereafter, Magistrate Judge Lovegreen ruled that Walsh and
Claunch were acting within the scope of their employment,
thus converting the common law claims into claims against the
United States under the Federal Tort Claims Act, 28 U.S.C.
2679(d)(1), 1346(b), then recommended that those claims be
dismissed for lack of subject matter jurisdiction based on
5. The exhibits included copies of press releases dated
June 28, 1990, and October 17, 1990, a newspaper article
dated June 29, 1990, a transcript of Aversa's sentencing
hearing on March 14, 1991, Judge Loughlin's memorandum
opinion dated April 29, 1991, ruling on Aversa's and Mento's
motions for writ of coram nobis, Chapter 7 of the United
States Attorneys' Manual (1988), 28 C.F.R. 50.2, Rule 35 of
the Local New Hampshire District Court Rules, Claunch's job
description, and an Internal Revenue Policy Statement
concerning news coverage.
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the exception to the Federal Tort Claims Act for claims
arising out of libel or slander. 28 U.S.C. 2680(h).
Treating the defendants' motion to dismiss the constitutional
claim as a motion for summary judgment, the magistrate judge
recommended summary judgment in favor of Walsh and Claunch on
the basis that they were qualifiedly immune.
Magistrate Judge Lovegreen stated in his Report and
Recommendation that he was in full agreement with Judge
Loughlin's assessment of the defendants' conduct, and added
that the "defendants' extraordinarily poor judgment in making
these statements should not go unnoticed." In adopting the
magistrate's Report and Recommendation in its entirety,
United States District Judge Mary Lisi found that the
defendants' "publication of misleading information [was]
lacking in professionalism and deserving of the opprobrium
articulated by Judge Loughlin and Magistrate Lovegreen."
II. DISCUSSION
II. DISCUSSION
A. The Common Law Claims
A. The Common Law Claims
As an initial matter, the Aversas' complaint
describes a claim for slander under New Hampshire law, which
defines the tort as follows:
In order to be actionable, the language
complained of must tend to lower the
plaintiff in the esteem of any
substantial and respectable group, even
though it may be quite a small minority.
The defamatory meaning must be one that
could be ascribed to the words by hearers
of common and reasonable understanding. .
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. . The threshold question . . . is
whether the published words are capable
of conveying the defamatory meaning or
innuendo ascribed to them by the
plaintiff.
Thomson v. Cash, 402 A.2d 651, 653 (N.H. 1979) (internal
quotation marks and citations omitted). We agree with the
district court (and the Aversas do not contest) that the
claims for intentional infliction of emotional distress and
loss of consortium through "verbal abuse and slander" also
"arose out of" slander within the meaning of 28 U.S.C.
2680(h). See Jiminez-Nieves v. United States, 682 F.2d 1, 6
(1st Cir. 1982) (court must look beyond the literal language
to ascertain the real cause of the complaint; heartland of
the tort of defamation is injury to reputation by the
implicit or explicit communication of an idea).
1. The Westfall Act
1. The Westfall Act
Before 1988, a plaintiff with a tort claim against
a federal employee could proceed against the employee in his
or her personal capacity, and if the employee was "acting
within the scope of his office or employment," 28 U.S.C.
1346(b), could proceed against the United States, instead of
or in addition to the federal employee, under the Federal
Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671-78, 2680.
Congress, however, expressly excepted certain kinds of claims
from the FTCA's otherwise broad waiver of sovereign immunity,
including any claim arising out of slander and other
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specified intentional torts. 28 U.S.C. 2680(h).6 Thus,
while a plaintiff with a claim not excepted from the right to
sue the United States likely would choose to sue the
government rather than or in addition to an individual who
may be judgment-proof, a plaintiff with an excepted claim
like the Aversas' would have no choice but to proceed solely
against the employee. The employee, however, might be found
absolutely immune from suit according to federal common law
principles. See Howard v. Lyons, 360 U.S. 593, 597 (1959).
In 1988, the Supreme Court decided Westfall v.
Erwin, 484 U.S. 292 (1988), holding that absolute immunity
from state-law tort actions was available to federal
employees only when their conduct was both "within the scope
of their official duties and . . . discretionary in nature."
Id. at 297-98 (emphasis in original). The Court, however,
invited Congress to legislate standards defining the scope of
6. The legislative history regarding the intentional tort
exceptions is scant, but they appear to rest on concerns
raised by the Department of Justice that those torts would be
"easily exaggerated" and "difficult to make a defense
against." See 2 L. Jayson, Personal Injury, Handling Federal
Tort Claims 13.06[1][a], at 13-48-49 n. 1.2 (1995)
(discussing legislative history). In 1973, Congress removed
from the list assault, battery, false imprisonment, false
arrest, abuse of process and malicious prosecution committed
by investigative or law enforcement officers, in recognition
of the "manifest injustice" of denying a federal remedy when
a federal agent intentionally assaults a citizen in an
illegal raid, while providing the remedy to a citizen run
down by a negligent mail truck driver. See S. Rep. No. 93-
588, 93d Cong., 2d Sess. 1974, reprinted in 1974 U.S.C.C.A.N.
2789. Congress has not otherwise amended the exceptions for
intentional torts.
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federal employee immunity, since it was in the best position
to resolve the "complex and often highly empirical inquiry"
whether the "contribution to effective government"
sufficiently "outweighs the potential harm to individual
citizens" to warrant immunity in a particular context. Id.
at 299-300.
Congress responded within the year with the Federal
Employees Liability Reform and Tort Compensation Act of 1988,
commonly known as the Westfall Act. The Westfall Act amended
the FTCA to make an action against the United States the
exclusive remedy for money damages for injury arising from
the "negligent or wrongful act or omission" of a federal
employee "acting within the scope of his office or
employment," 28 U.S.C. 2679(b)(1), thus eliminating the
discretionary function requirement and making federal
employees absolutely immune from suit for torts committed
within the scope of employment.7 The FTCA is the exclusive
remedy even when, as here, an exception to the FTCA precludes
7. Congress understood prior immunity law as not requiring
the act to have been discretionary in nature, feared
protracted litigation in determining whether the employee
exercised governmental discretion, and intended "to return
Federal employees to the status they held prior to the
Westfall decision." See H.R. Rep. No. 100-700, 100th Cong.,
2d Sess. 4,reprinted in 1988 U.S.C.C.A.N. 5945, at 5946-47.
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government liability. United States v. Smith, 499 U.S. 160,
165-67 (1991).8
The exclusive remedy provision is first invoked
through a certification by the Attorney General or her
delegate that the employee was acting within the scope of
employment.9 28 U.S.C. 2679(d)(1). Once the certification
is made, the suit is "deemed an action against the United
States" under the FTCA and the United States is substituted
as the party defendant, id., but the certification is
provisional and subject to judicial review, after which the
employee may be resubstituted. Gutierrez de Martinez v.
Lamagno, 115 S. Ct. 2227, 2230-31 (1995).
2. State Respondeat Superior Law
2. State Respondeat Superior Law
Before the Westfall Act, federal employee immunity
from suit for state law torts was decided according to
federal common law. The Westfall Act provides that a federal
8. The Act provides that once the United States has been
substituted as the party defendant, the action "shall be
subject to the limitations and exceptions applicable to . . .
any action against the United States filed pursuant to
section 1346(b)," 28 U.S.C. 2679(d)(4) (sentence structure
disregarded), and the legislative history states that "any
claim against the government that is precluded by the
exceptions set forth in Section 2680 of Title 28, U.S.C. also
is precluded against an employee in [sic] his or her estate."
H.R. Rep. No. 100-700, supra, at 5950.
9. The Attorney General has delegated her authority to make
scope of employment certifications to the United States
Attorneys with respect to civil actions brought against
federal employees in their respective districts, subject to
the supervision of the Assistant Attorney General in charge
of the Civil Division. See 28 C.F.R. 15.3(a).
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employee is immune if he or she acted "within the scope of
his office or employment," 28 U.S.C. 2679(b)(1), which,
according to the legislative history, is to be determined by
the same law that had previously been used only to determine
whether the United States could be sued under the FTCA: the
law of respondeat superior of the state in which the incident
occurred. See H.R. Rep. No. 100-700, supra, at 5949.
At oral argument, we raised a concern about whether
certain comments in the recent case of Gutierrez de Martinez
v. Lamagno, supra, might indicate that scope of employment is
to be determined according to federal common law rather than
state respondeat superior law. In that case, the Court
concluded that a certification by the Attorney General or her
delegate that the federal employee was acting within the
scope of his or her employment is subject to judicial review
for purposes of permanently substituting the United States as
the party defendant. 115 S. Ct. at 2234-36. Amicus raised a
potential Article III problem -- that if the court concluded
that the employee acted outside the scope of employment, and
the plaintiff and defendant were not of diverse citizenship,
there would no longer be a federal question to support
subject matter jurisdiction once the federal employee was
resubstituted. Id. at 2236. A four-justice plurality
concluded that Article III nonetheless was satisfied because
"there was a nonfrivolous federal question" presented at the
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outset of the case. Id. at 2236 (emphasis in original).
Justice Ginsburg wrote:
At that time, the United States was the
defendant, and the action was thus under
the FTCA. Whether the employee was
acting within the scope of his federal
employment is a significant federal
question -- and the Westfall Act was
designed to assure that this question
could be aired in a federal forum.
Because a case under the Westfall Act
thus "raises [a] questio[n] of
substantive federal law at the very
outset," it "clearly 'arises under'
federal law, as that term is used in Art.
III."
Id. at 2236 (citations omitted).
After further briefing in which both parties agreed
that the plurality did not mean that the scope determination
should be resolved by reference to federal rather than state
law, we reach the same conclusion. First, we think that all
the plurality intended to address was whether there is a
sufficient federal predicate to keep a Westfall Act case in
federal court, once a determination has been made that the
defendant was not acting within the scope of his federal
employment. The answer was yes, because at the outset, the
case arose under a law of the United States (the FTCA), and
the United States was a party. See U.S. Const. art. III,
2. Second, even if Justice Ginsburg was referring in some
measure to the scope determination, federal law does
determine whether a person is a federal employee and the
nature and contours of his or her federal responsibilities.
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See Ezekiel v. Michel, 66 F.3d 894, 899 (7th Cir. 1995);
Platis v. United States, 409 F.2d 1009, 1011 (10th Cir.
1969). But state law governs whether the person was acting
within the scope of that employment and those
responsibilities. As already noted, the legislative history
is clear that Congress so intended, H.R. Rep. No. 100-700,
supra, at 5949, and although we are the first to grapple with
the meaning of the plurality's remarks in Gutierrez de
Martinez, the courts of appeal, including our own, have
concluded that state law controls. See Heuton v. Anderson,
75 F.3d 357, 360 (8th Cir. 1996); Haddon v. United States, 68
F.3d 1420 (D.C. Cir. 1995); Garcia v. United States, 62 F.3d
126, 127 (5th Cir. 1995); Jamison v. Wiley, 14 F.3d 222, 227
n.4 (4th Cir. 1994); Schrob v. Catterson, 967 F.2d 929, 934
(3d Cir. 1992); McHugh v. Univ. of Vermont, 966 F.2d 67 (2d
Cir. 1992); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,
1542 (11th Cir. 1990), cert. denied, 112 S. Ct. 62 (1991);
Nasuti v. Scannell, 906 F.2d 802, 805 n.3 (1st Cir. 1990);
Arbour v. Jenkins, 903 F.2d 416, 421-22 (6th Cir. 1990);
Washington v. United States, 868 F.2d 332, 334 (9th Cir.),
cert. denied, 493 U.S. 992 (1989).
In a related vein, Aversa argues that we indicated
in Nasuti v. Scannell, supra, that intentional torts are not
within the scope of employment as a matter of law. There, we
stated that "the tort charged (assault and battery) is one of
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the 2680(h) exceptions which could not by definition be
within the scope of employment." 906 F.2d at 813 n.16. This
remark, however, does not mean that intentional torts
excepted by section 2680(h) are outside the scope of
employment as a matter of federal law regardless of the law
of respondeat superior of the state in which the tort
occurred. The assault at issue in Nasuti took place in
Massachusetts, under whose law an assault is within the scope
of employment only if done in response to some conduct of the
plaintiff that interfered at the time with the employee's
ability to do his or her job. Id. at 805 n.3 (citing Miller
v. Federated Dep't Stores, Inc., 304 N.E.2d 573, 579 (Mass.
1973)). Because the district court found no evidence of
those circumstances, the assault on Nasuti was outside the
scope of employment as a matter of Massachusetts law.
Generally, however, an intentional tort excepted by section
2680(h) can be within the scope of employment if state
respondeat superior law so requires. See, e.g., Henson v.
NASA, 14 F.3d 1143, 1147-48 (6th Cir. 1994) (under Ohio law,
an employee's acts are within the scope of employment if he
acts within his authority during the course of employment
even though acting intentionally or maliciously, but are
outside the scope if the acts are self-serving and in no way
facilitate the employer's business); Nadler v. Mann, 951 F.2d
301, 305-06 (11th Cir. 1992) (under Florida law, prosecutor's
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allegedly slanderous conduct in referring bribery allegation
to FBI was within scope of employment, but leaking the story
to the press was not); Jayson, supra, 9.07[1], at 9-168
(that the employee's conduct was intentional does not
preclude a finding that he was acting within the scope of
employment).
3. Scope of Employment
3. Scope of Employment
We now turn to the merits. It is the plaintiff's
burden to prove the existence of subject matter jurisdiction.
Murphy v. United States, 45 F.3d 520, 522 (1st Cir.), cert.
denied, 115 S. Ct. 2581 (1995). Because it is not in dispute
that Aversa cannot sue the United States for defamation,
there is subject matter jurisdiction only if Walsh and/or
Claunch acted outside the scope of his employment. It was
Aversa's burden to persuade the court that they did. Nasuti,
906 F.2d at 813 n. 16. In ruling on a motion to dismiss for
lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1), the district court must construe the complaint
liberally, treating all well-pleaded facts as true and
indulging all reasonable inferences in favor of the
plaintiff. Murphy, 45 F.3d at 522. In addition, the court
may consider whatever evidence has been submitted, such as
the depositions and exhibits submitted in this case. Cf.
Nasuti, 906 F.2d at 808 (trial court may hold evidentiary
hearing to resolve immunity-related factual disputes). We
-21-
21
review the district court's scope of employment determination
de novo.
There is no New Hampshire case resolving a scope-
of-employment question in a defamation case, but we find
sufficient guidance in New Hampshire cases dealing with the
question in the context of assault and in those sections of
the Restatement (Second) of Agency that we feel confident the
New Hampshire Supreme Court would follow. See Croes v.
United States, 726 F.2d 31, 32 (1st Cir. 1984).
An act is within the scope of employment under New
Hampshire law if it was authorized by the employer or
incidental to authorized duties; if it was done within the
time and space limits of the employment; and if it was
actuated at least in part by a purpose to serve an objective
of the employer. See Daigle v. City of Portsmouth, 534 A.2d
689, 698-700, 701-02 (N.H. 1987); Richard v. Amoskeag Mfg.
Co., 109 A. 88, 91-92 (N.H. 1920); Restatement (Second) of
Agency 228(1) (1958). The conduct is not within the scope
of employment if it was "different in kind from that
authorized, far beyond the authorized time or space limits,
or too little actuated by a purpose to serve the master."
Restatement, supra, 228(2).
As there was no dispute that Walsh and Claunch
acted within the time and space limits of their employment,
the magistrate judge focused on whether their conduct was
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22
authorized or incidental to authorized duties, and was
intended by them to serve their employers. He found that
because Walsh and Claunch were authorized to prepare press
releases and participate in press conferences in order to
keep the public informed, and because Howard approved the
press releases, made the decision to hold the press
conferences, and was present for the press conferences, the
statements were either authorized or incidental to authorized
duties. The magistrate judge further found that Walsh and
Claunch acted at least in part to serve their employers'
interests in keeping the public informed of law enforcement
efforts.
Aversa correctly argues that Walsh's defamatory
statements to the press were not authorized. Walsh testified
that as an Assistant United States Attorney, he was expected
to abide by the United States Attorneys' Manual ("the
Manual") issued by his employer, the Department of Justice.
Chapter 7 of the Manual, entitled "Media Relations," provides
that "fairness [and] accuracy . . . must prevail in all
dealings with the news media." Manual, ch. 7, 1-7.001
(1988). News conferences should not be held to announce
indictments or arrests except in "unusual circumstances,"
such as to alert the public about a fugitive from justice,
and then "extreme care" should be taken to avoid statements
branding an accused as guilty of a crime of which he or she
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23
has not been convicted. Id. Written news releases "relating
the essentials of the indictment" may be distributed, and,
with permission of the United States Attorney, an Assistant
United States Attorney "may answer legitimate questions about
indictments or arrests, either in press conferences or in
discussions with individual reporters, but answers should not
go beyond explanation of what is in the public document or
the confines of 28 C.F.R. 50.2." Id. The Manual provides
that 28 C.F.R. 50.2 "defines the types of information that
may be and the types of information that may not be made
available to the news media about pending . . . criminal
cases by employees of the Department of Justice." Id.
(emphasis in original). Employees are to adhere to the
regulation "in both letter and spirit." Id.
The regulation provides that, among other facts and
circumstances not relevant here, Justice Department employees
may make public the "substance or text of the charge, such as
a[n] indictment," and may disclose "only incontrovertible,
factual matters." 28 C.F.R. 50.2(b)(3). Release of
information that would be prejudicial or would serve no law
enforcement function is prohibited. Id. 50.2(b)(3), (5),
(6). Statements which could "reasonably be expected to
influence the outcome of a pending or future trial," and
statements concerning evidence in the case, whether or not
-24-
24
anticipated to be used at trial, are prohibited. Id.
50.2(b)(2), (6)(v).
Walsh also testified that he was subject to Rule 35
of the Local New Hampshire District Court Rules, which
prohibits any lawyer from releasing information that is not a
matter of public record, or is likely to interfere with a
fair trial or otherwise prejudice the due administration of
justice. See D.N.H. L.R. 35.
Walsh admitted that, in dealing with the news media
regarding a criminal case, he was not authorized to say
anything that was inaccurate or misleading, not contained in
a public document, or prejudicial to a defendant's right to a
fair trial, or to otherwise contravene the directives of the
Manual, 28 C.F.R. 50.2, or Local Rule 35. The statements,
as represented in the complaint and appearing in the press
releases and news articles submitted to the court,
transgressedthesepoliciesandrules
andthereforewerenot
authorized.
That Howard approved the press releases, made the
decision to call the press conferences, and was present at
the press conferences does not change that result. Howard
did not approve in advance any of Walsh's oral statements to
the press.10 Moreover, we do not think that Howard's
10. Howard did approve Walsh's statements after the fact.
Judge Loughlin required Howard's presence at the sentencing
hearing and asked him to respond to his criticism of the
"various innuendoes, totally false, in the media that these
crimes were drug related." Howard stated that he "stood by
-25-
25
approval can suffice as authorization for Walsh's defamatory
statements. An employee of the Department of Justice who
wishes to release information beyond that allowed by 28
C.F.R. 50.2 must obtain permission from the Attorney
General or Deputy Attorney General, 28 C.F.R. 50.2(9), not
the United States Attorney, and Walsh did not seek such
approval.
Although an employee's intentionally tortious act
was not authorized, it may nonetheless have been within the
scope of employment if it was "incidental to authorized
duties." According to New Hampshire cases deciding whether
assaults were within the scope of employment, the conduct
must meet three requirements in order to be considered
incidental to authorized duties: (1) the employer authorized
or could foresee that the employee would use a reasonable
degree of force as a means of carrying out an authorized
duty; (2) the employee used excessive force, although
wrongly, as a means of accomplishing an authorized duty; and
(3) the employee's purpose was, at least in part, to carry
out an authorized duty. Daigle, 534 A.2d at 699-702;
Richard, 109 A. at 90-91; Rowell v. Boston & Maine R.R., 68
N.H. 358, 359 (1895). See also Restatement, supra, 229
cmt. b (even though an act is of an entirely different kind
the actions and conduct of the Assistant United States
Attorney in this case throughout."
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26
than that authorized, it may be "incidental to an authorized
act" if it is "within the ultimate objective of the principal
and an act which it is not unlikely that such a servant might
do"). If these conditions are met, it follows that the
employer is liable for the employee's negligent or willful
use of excessive force although the employer did not
authorize it and even forbade it. See Daigle, 534 A.2d at
699-700 (police officer's use of excessive force in effecting
arrest was within scope of employment); Richard, 109 A. at
91-92 (supervisor's use of excessive force in keeping
employee at her work station was within scope of employment);
Rowell, 68 N.H. at 359 (conductor's use of excessive force in
ejecting plaintiff from railroad car was within scope of
employment). If any one of the conditions is not met, the
employee's conduct is outside the scope of employment. Morin
v. People's Wet Wash Laundry Co., 156 A. 499, 500 (N.H. 1931)
(although employee's motive in assaulting plaintiff may have
been to serve his employer, assault was outside scope of
employment because the employment implied no measure of
force).
Here, the Justice Department authorized or at least
could foresee that an Assistant United States Attorney
permitted to inform the public about arrests, indictments and
convictions would convey to the public a reasonable amount of
negative information about the persons involved. Further,
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27
although unfortunate, we think that the Department of Justice
reasonably could anticipate that an employee entrusted with
that power might abuse it. Analogously, the Daigle court
stated that "excessive force in the use of guns and
nightsticks is always foreseeable." 534 A.2d at 700. True,
there were policies and regulations against the kinds of
statements that were made, but an act which is forbidden or
done in a forbidden manner may nonetheless be within the
scope of employment. Restatement, supra, 230. A "master
cannot direct a servant to accomplish a result and anticipate
that he will always use the means which he directs or will
refrain from acts which it is natural to expect that servants
may do." Id., 230 cmt. b. See also Danforth v. Fisher, 75
N.H. 111, 111-12 (1908) (if employee was serving some purpose
of his employer, it is immaterial that he did it in a way
that was unexpected).
We also think that Walsh made the alleged
statements as a means, albeit tortious and contrary to his
employer's policies and rules, of accomplishing the Justice
Department's objective of informing the public of recent law
enforcement efforts. To be sure, Walsh's suggestions that
Aversa was involved in drug trafficking, tax evasion and
racketeering furthered no legitimate law enforcement
objective and actually misinformed the public. But his
statements did inform the public about a recent prosecution
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under the anti-structuring laws. The New Hampshire Supreme
Court agrees with the Restatement's view that "the criminal
or tortious character of an employee's act does not, ipso
facto, remove the act from the scope of employment," Daigle,
534 A.2d at 700 (citing Restatement, supra, 231), so long
as it is "exerted in, and for the purpose of, doing the
employer's business." Id. And that court does not
necessarily agree with the Restatement's view that, if these
conditions are met, the degree of outrageousness of the
conduct may remove it from the scope of employment. Id.
(referring to Restatement, supra, 229 cmt. b); Rowell, 68
N.H. at 359 (master is responsible for the acts of the
servant done as a means and for the purpose of performing
that work although done with a wanton or reckless purpose to
accomplish the work in an unlawful manner); Arthur v. Balch,
23 N.H. 157, 161 (1851) (employee acted within the scope of
his employment when he used a horse he had stolen to do his
employer's business).
Finally, we think that Walsh's statements were
actuated, at least in part, by an intention to serve his
employer. Daigle, 534 A.2d at 699; Restatement, supra,
228(1)(c). This inquiry focuses on the subjective intent of
the employee and his notion of how to serve his employer's
interests need not be reasonable or reflective of good
-29-
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judgment.11 Aversa points out that the complaint, which the
district court was required to take as true, alleged that
Walsh defamed Aversa for the purpose of promoting his own
career, and that Judge Loughlin found at least some of
Walsh's statements to have been "self-serving." The
complaint, however, also alleged that Walsh told Aversa's
attorney that he planned to use the case to "set a precedent"
and "educate the public" about the currency transaction
reporting requirements. During his deposition, Walsh did not
deny that the media accurately reported his words and
testified that he believed he was discharging his duty to
inform the public in making these statements. From this, the
district court justifiably could find that Walsh intended, at
least in part and although misguidedly, to serve an objective
of his employer.
Under these circumstances, we have little doubt
that the New Hampshire Supreme Court would hold Walsh's
employer responsible for his defamatory statements. We find
further support for this conclusion in the Restatement's
11. In Daigle, the New Hampshire Supreme Court found that
the police officer was actuated at least in part to serve a
law enforcement function in that he believed it was
appropriate to beat suspects in the course of serving the law
enforcement objectives of capturing the guilty and
establishing their guilt. 534 A.2d at 700. See also Concord
Bank v. Greg, 14 N.H. 331, 340 (1843) (principal is
chargeable with agent's fraudulent acts done for the purpose
of effecting sale for principal; "[w]ere it otherwise, the
principal would never be liable for the frauds of a special
agent, unless he commissioned him to commit a fraud").
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30
special rule for defamation, which embodies the general
principle, recognized in the New Hampshire assault cases,
that an employer should be held responsible when it entrusts
an employee with a duty particularly susceptible of abuse to
cause harm:
A master is subject to liability for
defamatory statements made by a servant
acting within the scope of his employment
. . . . If the scope of employment of a
servant includes the making of statements
concerning others which he believes to be
true and privileged, the master is
subject to liability for untrue and
unprivileged defamatory statements made
by the servant concerning such others, if
the statements are otherwise within the
scope of the servant's employment. . . .
If the master employs a servant to speak
for him, he is subject to liability if
the servant makes a mistake as to the
truth of the words spoken or as to the
justification for speaking them, or even
if he speaks with an improper motive,
provided that he acts at least in part to
serve his employer's purposes. The
master may be liable even though the
servant knows the statement to be untrue,
as where the manager of a store, for the
purpose of obtaining an admission from a
suspected thief, charges such person with
other similar crimes, although having no
belief in his own statements.
Id., 247 & cmts. a, c.
We also conclude that the district court correctly
held that Claunch acted within the scope of his employment.
One of his duties was to inform the public about tax and
other cases in which the IRS was involved in order to deter
violations of the law and to instill public confidence that
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31
the IRS prosecuted violators. The IRS's policy statement on
news coverage required Claunch to act with due regard for an
individual's right to a fair trial and the public's right to
know, and, particularly in view of the "statutory prohibition
on the disclosure of tax information," to strictly limit what
he said to facts that were a matter of public record. IRS
Policy Statement P-1-181. Aversa alleged that Claunch stated
that the case represented the IRS's commitment to ferreting
out, investigating and prosecuting money launderers. Aversa
was indicted for and convicted of violating the anti-
structuring law, which was enacted as part of the "Money
Laundering Control Act of 1986." See Pub. L. No. 99-570,
Subtitle H, 100 Stat. 3207-18 (Oct. 27, 1986). The
legislative history, however, defines "money laundering"
essentially as concealing money from the government (not
one's spouse) for the purpose of covering up illegal activity
or evading taxes. See H.R. Rep. No. 746, 99th Cong., 2d
Sess., p. 16 (1986). Aversa was not, therefore, a "money
launderer." Nonetheless, we have no doubt that Claunch's
employer would be held responsible for his statement under
the principles of New Hampshire law set forth above.
Because Walsh and Claunch acted within the scope of
their employment, the United States was properly substituted
as the party defendant, and the common law claims were
properly dismissed pursuant to the exception to jurisdiction
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32
under the FTCA for claims arising from libel and slander. 28
U.S.C. 2680(h).
B. The Constitutional Claim
B. The Constitutional Claim
A person may sue a federal official in his or her
individual capacity for damages arising out of a
constitutional violation.12 See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Relying on Bivens, the Aversas alleged in Count I of their
complaint that Walsh and Claunch deprived Aversa of a liberty
interest guaranteed by the Due Process Clause of the Fifth
Amendment by making false and misleading statements to the
press with willful or reckless disregard of his rights, thus
causing his employer to discharge him from his job as an
accountant, preventing him from finding other employment as
an accountant, and damaging his business goodwill.13
12. Constitutional tort claims are not subject to the
Westfall Act's exclusive remedy provision. 28 U.S.C
2679(b)(2)(A).
13. Aversa contends that the district court erred in denying
him leave to amend Count I to add: (1) that the defendants
violated a federal statutory right by contravening Rule 35 of
the Local New Hampshire District Court Rules, and (2) that
Aversa permanently lost his right to earn a living as an
accountant. Leave to amend "shall be freely given when
justice so requires," Fed. R. Civ. P. 15, but need not be
given if the amendment would not be "a proper subject of
relief." Foman v. Davis, 371 U.S. 178, 182 (1962). As to
the first proposed addition, a plaintiff may sue for
violation of a federal statute under section 1983 or Bivens
if the statute "create[s] enforceable rights, privileges, or
immunities," which, in turn, depends on whether the provision
"was intend[ed] to benefit the putative plaintiff." Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (internal
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33
The district court granted summary judgment in
favor of Walsh and Claunch, finding that they were
qualifiedly immune from suit. Summary judgment is proper if
the "pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to summary judgment as
a matter of law." Fed. R. Civ. P. 56(c). Because no
material fact is in dispute, the question before us is one of
pure law. Our review is de novo and we view the facts in the
light most favorable to Aversa. St. Hilaire v. City of
Laconia, 71 F.3d 20, 24 (1st Cir. 1995), cert. denied, 64
U.S.L.W. 3849 (U.S. June 24, 1996).
An official is qualifiedly immune if his "conduct
[did] not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
quotation marks and citations omitted). Local Rule 35,
entitled "Release of Information by Attorneys in Criminal
Cases," limits the information that may be made public before
and during a criminal trial, and can be said to be intended
to protect a criminal defendant's right to a fair trial. We
do not reach the question whether a civil cause of action
could ever rest on Local Rule 35, because we do not think
that Rule 35 was intended to protect against loss of
employment or business goodwill. Thus, denial of the request
to amend was not error. The answer to Aversa's complaint
about the denial of his second proposed addition is that the
court considered Aversa's allegations that he was fired from
his job and lost future employment opportunities as an
accountant and we consider them here.
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34
finding that the right Aversa asserted was not clearly
established, the district court not only relied on the law as
it was in 1990, but on Siegert v. Gilley, 500 U.S. 226
(1991), which postdated the alleged violation. Qualified
immunity, however, must be decided according to the law in
effect at the time of the alleged violation -- "implicit in
the Harlow formulation . . . is a temporal dimension: the
right must have been clearly established at the time of the
defendants' alleged improper actions." Souza v. Pina, 53
F.3d 423, 425 (1st Cir. 1995). The court's reliance on
Siegert in its qualified immunity analysis stemmed from some
confusing language in that very case:
A necessary concomitant to the
determination of whether the
constitutional right asserted by a
plaintiff is "clearly established" at the
time the defendant acted is the
determination of whether the plaintiff
has asserted a violation of a
constitutional right at all. Id. at 232.
Siegert failed not only to allege a
violation of a constitutional right that
was clearly established at the time of
Gilley's actions, but also to establish
the violation of any constitutional right
at all. Id. at 233.
Some courts have read this language as requiring a
resolution of the merits under current law before beginning
the analysis of the law as it stood at the time of the
alleged violation. See DiMeglio v. Haines, 45 F.3d 790, 795-
97 (4th Cir. 1995) (discussing various interpretations of
-35-
35
Siegert). But we think that these statements, read in
context, simply mean that the plaintiff must assert a clearly
established federal constitutional (or statutory) right, and
not merely a state law tort claim. The Siegert Court
concluded that the damage Siegert alleged "may be recoverable
under state tort law but it is not recoverable in a Bivens
action," Siegert, 500 U.S. at 234, and held that he had
"failed to satisfy the first inquiry in the examination of
such a claim; he failed to allege the violation of a clearly
established constitutional right." Id. at 231.
This is not to say that currently applicable law
cannot be considered in the course of, in addition to, or
instead of determining the law in effect at the time of the
alleged violation. See Harlow, 457 U.S. at 818 ("On summary
judgment, the judge appropriately may determine, not only the
currently applicable law, but whether that law was clearly
established at the time an action occurred."). For example,
a court of appeals may recognize a right for the first time
in that circuit, but find that it was not clearly established
at the time of the alleged violation. See Calhoun v. New
York State Div. of Parole Officers, 999 F.2d 647, 655 (2d
Cir. 1993). Or a court may look to current Supreme Court law
to determine that, although the right may now exist, it was
not clearly established before. See St. Hilaire, 71 F.3d at
27-28. A court may also bypass the qualified immunity
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36
analysis if it would be futile because current law forecloses
the claim on the merits. See Hinton v. City of Elwood, 997
F.2d 774, 779-80 (10th Cir. 1993). We follow the latter
course in this case because Aversa failed to state a claim
under current law.
Aversa claimed that Walsh and Claunch deprived him
of his right to liberty under the substantive component of
the Due Process Clause of the Fifth Amendment, which protects
against "certain government actions regardless of the
fairness of the procedures used to implement them." Daniels
v. Williams, 474 U.S. 327, 331 (1986). See also Pittsley v.
Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied, 502 U.S. 879
(1991).14 We have said that substantive due process is
violated if either (1) the government actor deprived the
plaintiff of an identified interest in life, liberty or
property protected by the Fifth Amendment, or (2) the
government actor's conduct "shocks the conscience." See
Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 531
(1st Cir. 1995) (citations omitted), cert. denied, 116 S. Ct.
1044 (1996). Because Aversa did not address the latter
theory below or in his brief to this court, we limit our
discussion to the former.
14. In contrast, the essence of a procedural due process
claim is that a government actor deprived the plaintiff of
life, liberty or property through procedures that were
inadequate in light of the importance and characteristics of
the affected interest. Pittsley, 927 F.2d at 6.
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37
In Paul v. Davis, 424 U.S. 693 (1976), the Court
indicated that a claim for defamation could rise to a
constitutional level if accompanied by a loss of employment,
but left unclear whether that loss would have to result from
some further action by the defendant in addition to the
defamation itself. In Siegert v. Gilley, the Court made
clear that it would. Siegert resigned from his job as a
psychologist at a federal hospital in order to avoid being
terminated, then began working at an Army hospital. Because
Army hospitals required "credentialing" by a committee,
Siegert signed a request form asking the federal hospital to
provide his new employer with information regarding his job
performance and privileges. Gilley, Siegert's former
supervisor, sent a letter in response, stating that he could
not recommend Siegert for privileges as a psychologist, and
that Siegert was inept, unethical and the most untrustworthy
individual he had supervised in thirteen years. The
committee denied Siegert credentials. Thereafter, Siegert
was turned down for a position at another Army hospital and
returned to work at the first Army hospital with provisional
credentials. After his administrative appeals were denied,
his federal employment was terminated altogether. Id. at
228-29. The Court found that Gilley's defamatory statements
and their consequences were not actionable as a deprivation
of liberty, stating:
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38
The alleged defamation was not uttered
incident to the termination of Siegert's
employment by the hospital, since he
voluntarily resigned from his position at
the hospital, and the letter was written
several weeks later. The statements
contained in the letter would undoubtedly
damage the reputation of one in his
position, and impair his future
employment prospects. But the plaintiff
in Paul v. Davis similarly alleged
serious impairment of his future
employment opportunities as well as other
harm. Most defamation plaintiffs attempt
to show some sort of damage and out-of-
pocket loss which flows from the injury
to their reputation. But so long as such
damage flows from injury caused by the
defendant to a plaintiff's reputation, it
may be recoverable under state tort law
but it is not recoverable in a Bivens
action.
Id. at 234. Thus, what may have been left open by Davis was
foreclosed by Siegert -- in order to state a cognizable claim
that defamation together with loss of employment worked a
deprivation of a constitutionally-protected liberty interest,
a plaintiff must allege that the loss of employment resulted
from some further action by the defendant in addition to the
defamation. Where it is the defendant who terminated the
plaintiff, the further action is the termination. But where,
as here, a third party discharges or refuses to hire the
plaintiff solely as a result of the defendant's defamation,
the plaintiffhas notdescribed a viableconstitutional claim.15
15. Aversa contends that even if the defamation was not
uttered in conjunction with some other more direct action by
Walsh or Claunch causing him to be discharged from his job,
the defamatory statements stood in the midst of circumstances
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39
III. CONCLUSION
III. CONCLUSION
"Although '[s]tatements to the press may be an
integral part of a prosecutor's job, and . . . may serve a
vital public function,' that function is strictly limited by
the prosecutor's overarching duty to do justice." Souza, 53
F.3d at 427. Those who wield the power to make public
statements about criminal cases must "be guided solely by
their sense of public responsibility for the attainment of
justice." Id. (quoting Young v. United States ex rel.
Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)). The public
statements asserted to have been made in the course of
Aversa's criminal case have been condemned as false,
misleading, self-serving, unjust and unprofessional by every
court to look at them.16
We therefore refer the matter of Assistant United
States Attorney Walsh's conduct to the Office of Professional
Responsibility of the Department of Justice, and to the
wherein the criminal charges never should have been brought.
We previously have expressed doubt, without deciding, that
"an alleged constitutional violation for which the defendant
prosecutor enjoys absolute immunity [such as initiating
criminal charges] can provide the 'plus' needed to satisfy
the 'defamation-plus' test of Paul v. Davis." Celia v.
O'Malley, 918 F.2d 1017, 1021 (1st Cir. 1990). In any event,
Aversa did not present this theory to the district court and
we decline to consider it.
16. The characterizations of the defendants' conduct are
quotations from the various trial judges who have heard the
proceedings in this and the underlying criminal cases. This
court makes no findings itself as to the defendants' conduct,
but acts on the basis of the record.
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40
Professional Conduct Committee of the New Hampshire Supreme
Court. We refer the matter of Agent Claunch's conduct to the
Inspector General of the Department of the Treasury. We also
refer former United States Attorney Howard's conduct to the
Professional Conduct Committee of the New Hampshire Supreme
Court. We do not suggest in any way to the disciplinary
bodies what action, if any, should be taken.
No costs.
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41