John L. Kelly v. United States

924 F.2d 355, 19 Fed. R. Serv. 3d 1147, 1991 U.S. App. LEXIS 669, 1991 WL 3267
CourtCourt of Appeals for the First Circuit
DecidedJanuary 17, 1991
Docket90-1546
StatusPublished
Cited by291 cases

This text of 924 F.2d 355 (John L. Kelly v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John L. Kelly v. United States, 924 F.2d 355, 19 Fed. R. Serv. 3d 1147, 1991 U.S. App. LEXIS 669, 1991 WL 3267 (1st Cir. 1991).

Opinions

[356]*356SELYA, Circuit Judge.

Plaintiff-appellant John L. Kelly appeals from rulings of the United States District Court for the District of Massachusetts substituting the United States as the sole party defendant herein and thereafter granting summary judgment in its favor. Although Kelly’s plight engenders some sympathy, we have no principled choice but to affirm.

BACKGROUND

Approximately a decade ago, the federal Drug Enforcement Administration (DEA) and other law enforcement agencies formed a Boston-based task force to investigate the activities of Frank Lepere, a suspected drug kingpin. For nearly four years the investigation was hampered by leaks. DEA eventually learned in late 1984, and soon proved, that a quondam federal prosecutor, one David Twomey, was the wellspring of the profluent stream of surreptitious information. We previously told the tawdry tale of Twomey’s treacherous tattling in United States v. Twomey, 806 F.2d 1136 (1st Cir.1986), and it would be pleonastic to hawk the story anew.

Robert Stutman was the bureau chief in DEA’s Boston office during the time frame relevant to this appeal. Carlo Boccia was his deputy. Kelly, a veteran DEA agent, believed it to have been widely whispered before Twomey’s apprehension that he (Kelly) was the source of the seepage. Alleging that his career was ruined by the persistent rumors, notwithstanding their falsity, Kelly invoked the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80, and sued the government, Stut-man, and Boccia. Plaintiff theorized that, if Stutman and Boccia had gone through channels and promptly reported the scurrilous gossip to DEA’s Office of Internal Security (OIS),1 his name would have been more expeditiously cleared, his career salvaged, and his mental anguish eased. He sought damages “result[ing] from the conduct of defendants in failing to follow their own regulations relative to investigating allegations of misconduct by agents under their direction and control.” Complaint ¶ 1.

The district court was unimpressed. After the government certified in writing that the challenged conduct took place within the scope of the individual defendants’ employment as federal officers, the court dropped Stutman and Boccia as parties, substituted the United States in their stead, and simultaneously dismissed two counts of the complaint as barred by the FTCA’s defamation exemption, 28 U.S.C. § 2680(h).2 Kelly v. United States, C.A. No. 87-1100-C (D.Mass. Mar. 30, 1989) (unpublished order). More than a year later, the court, on Kelly’s motion for reconsideration, affirmed the substitution. It also granted the government’s motion for summary judgment on the two remaining counts. Kelly v. United States, 737 F.Supp. 711 (D.Mass.1990).

In this appeal, Kelly advances a pair of contentions: (1) the United States was incorrectly substituted for the individual defendants, and (2) there was a triable issue of fact which should have precluded reliance on the FTCA’s discretionary function exception as a basis for brevis disposition.

SUBSTITUTION OF PARTIES

In 1988, the FTCA was amended by the Federal Employees’ Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694 §§ 5, 6, 102 Stat. 4564, to require substitution of the United States for an individual defendant where the latter was sued by reason of acts or omissions occurring within the scope of his or her federal employment. In relevant part, the FTCA now reads:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident [357]*357out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States ... and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1).

In this case, the government filed the scope certificate in proper form. The district judge recognized his obligation to treat the scope certificate as non-conclusive, thereby anticipating our holding in Nasuti v. Scannell, 906 F.2d 802, 812-14 (1st Cir.1990). Under the FTCA, the next question — the scope of employment — called into play the law of the state where the alleged negligence occurred. See Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam); Doggett v. United States, 875 F.2d 684, 687 (9th Cir.1988); Nelson v. United States, 838 F.2d 1280, 1282-83 (D.C.Cir.1988); H.R.Rep. No. 700, 100th Cong., 2d Sess. 5, reprinted in 1988 U.S. Code Cong. & Admin.News 5945, 5949.

In Massachusetts, the “conduct of an agent is within the scope of employment if it is of the kind he is employed to perform; if it occurs substantially within the authorized time and space limits; and if it is motivated, at least in part, by a purpose to serve the employer.” Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163, 1166 (1986) (citations omitted). Stutman’s and Boecia’s claimed behavior fell well within this spacious encincture. Although appellant fulminates that his superiors did not deserve the benefit of this taxonomy because their misconduct was “blatant” and “egregious,” he offers no persuasive reason to believe that Massachusetts, in gauging the scope of employment, would carve out such a broad exception. More critical still, there are no documented facts contained in the record justifying the use of so pejorative a set of adjectives. Rhetoric, unsupported by facts, remains only rhetoric, even if stridently proclaimed.

We need not paint the lily. The district court ably explored this issue and disposed of it convincingly. We uphold the individual defendants’ dismissal, and their replacement by the sovereign, for substantially the reasons elucidated below. See Kelly, 737 F.Supp. at 714-16.

THE SUMMARY JUDGMENT STANDARD

Before tackling plaintiff’s claim that his case against the government should have proceeded to trial, we pause to retrace the familiar contours of Fed.R.Civ.P. 56.

Summary judgment is appropriate when “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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). To be sure, the record must be read in light most amiable to the summary judgment opponent and all reasonable inferences must be drawn in that party’s favor. See, e.g., Amsden v. Moran, 904 F.2d 748, 752 (1st Cir.), cert. denied, — U.S.

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924 F.2d 355, 19 Fed. R. Serv. 3d 1147, 1991 U.S. App. LEXIS 669, 1991 WL 3267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-l-kelly-v-united-states-ca1-1991.