Lyons v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 26, 1998
• Docket: 97-2109
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2109

No. 97-2248

                    KATHLEEN L. LYONS, ET UX.,

                      Plaintiffs, Appellees,

                                v.

           JESSE BROWN, SECRETARY OF VETERANS AFFAIRS,

                       Defendant, Appellee,

                               and

                    NIKHIL I. PATHAK, M.D. and

                    UNITED STATES OF AMERICA,

                     Defendants, Appellants.


APPEALS FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

         [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]


Before

                     Boudin, Circuit Judge,

             Bownes and Cyr, Senior Circuit Judges.


Mark W. Pennak, Appellate Staff, Civil Division, Department of

Justice, with whom Frank W. Hunger, Assistant Attorney General, Jay

P. McCloskey, United States Attorney, and Barbara L. Herwig,

Appellate Staff, Civil Division, Department of Justice were on

brief for appellant United States.

     Alton C. Stevens with whom Marden, Dubord, Bernier & Stevenswas on brief for appellant Nikhil I. Pathak.

     Richard L. O'Meara with whom Murray, Plumb & Murray, Eric M.

Mehnert and Jones, Bernstein & Mehnert were on consolidated brief

for plaintiffs.


October 21, 1998


BOUDIN, Circuit Judge.  The United States and Dr. Nikhil

Pathak, a federal employee, appeal from the striking of the U.S.

Attorney's certification that Dr. Pathak was acting within the

scope of employment when he allegedly committed certain of the acts

that form the basis for claims against him.  The claims, made by

Kathleen Lyons, effectively charged Dr. Pathak with sexual

harassment.  This appeal involves the interpretation and

application of the Westfall Act, 28 U.S.C.  2679(d).

  The facts, as set forth below, either are undisputed or

are drawn from the complaint (and thus represent allegations taken

as true only for purpose of this appeal).  From 1989 to 1995,

Kathleen Lyons was a head nurse in the renal dialysis unit of the

Veterans Administration hospital in Togus, Maine.  Her supervisor

was Dr. Nikhil Pathak.  According to Lyons, Dr. Pathak made

advances to her while she and the doctor were attending a

nephrology conference in Chicago in June 1994.

  Lyons says that when she spurned Dr. Pathak, he

retaliated against her by (for example) not talking to her at work,

challenging her laboratory test requests, and writing up a

complaint against her.  Lyons claims that Dr. Pathak also made

harassing comments, suggested that the dialysis unit might be

closed, withdrew the unit from a research study, and questioned a

police officer about missing log books, apparently implying that

Lyons was somehow responsible for them.  Lyons also says that the

doctor inappropriately pushed her during the Chicago trip and

inappropriately hugged her at the hospital in Maine.

  In August 1995, Lyons filed suit in the federal district

court.  Putting aside a civil rights conspiracy claim later

dismissed, the complaint charged the Secretary of the Department of

Veterans Affairs as an employer with violations of Title VII, 42

U.S.C.  2000e et seq., and charged Dr. Pathak with state law

claims for infliction of emotional distress, slander, and assault

and battery.  The federal and state claims were separated for

purposes of trial, and Lyons prevailed in a jury trial on the Title

VII claims, obtaining a $375,000 judgment against the government;

that judgment is apparently not yet final due to the continuing

pendency of Lyons' state-law claims against Dr. Pathak.

  Under the Westfall Act, the Attorney General can certify

that a federal employee named as a defendant in a civil case was

"acting within the scope of his office or employment at the time of

the incident" that serves as the basis for a tort claim against

that employee.  28 U.S.C.  2679(d)(1).  If the certification

stands, the defendant federal employee is immune from suit on

claims arising from certified conduct, and the United States is

substituted as the defendant with regard to those claims.  Id. 

2679(b)(1), (d)(1).  The employee can also petition the court to

order certification if the Attorney General has wrongly refused to

certify.  Id.  2679(d)(3).

  On March 19, 1997, the U.S. Attorney for the District of

Maine certified that Dr. Pathak was generally acting within the

scope of employment "regarding the issues directly related to

patient care, clinical judgment, and hospital procedures and

operations," including "allegations regarding critical values,

physician's orders, rounds, and quality assurance reports." 

Specifically, the certificate identified 22 of 240 paragraphs of

the complaint as comprising certified conduct; for example, the

U.S. Attorney did not certify the alleged inappropriate hugging and

pushing but did certify Dr. Pathak's work complaint against Lyons,

his challenges to her test requests, and his refusals to talk to

her at the hospital.

     Scope of employment certifications by the government are

reviewable by the district court.  See Gutierrez de Martinez v.Lamagno, 515 U.S. 417, 436-37 (1995).  In April 1997, Lyons moved

to strike the government's certificate and sought an evidentiary

hearing.  Dr. Pathak, who had earlier requested certification of

all of his conduct, maintained that the government had not gone far

enough in its certificate.  The district court requested that all

parties brief the issues and later heard oral argument.

     On August 1, 1997, the district court issued an order

striking the scope certificate entirely, holding that the

government could not pick and choose among the alleged acts in the

complaint; rather the court said that the correct approach was to

evaluate whether in "the totality of the circumstances, the conduct

alleged in the Complaint occurred within the scope of . . .

employment."  Taking the complaint as a whole, the court said that

sexual harassment amounting to assault and battery was clearly

outside the scope of employment.  This appeal followed, the

government urging reinstatement of its original certificate and Dr.

Pathak arguing that even more acts should have been certified.

     At the threshold, Lyons says that the district court's

order striking the certificate is not yet reviewable.  Lyons

recognizes that denials of immunity in the district court are

customarily subject to immediate interlocutory appeal, Behrens v.

Pelletier, 516 U.S. 299 (1996), with an exception not here

pertinent, Johnson v. Jones, 515 U.S. 304, 315-16 (1995), under the

collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949).  For this purpose, qualified immunity in

federal civil rights actions and Westfall Act immunity are treated

in the same fashion.  See Taboas v. Mlynczak, 149 F.3d 576, 579

(7th Cir. 1998).

     Nevertheless, Lyons says that review now is premature

because, even if the government's certificate were reinstated, Dr.

Pathak would still have to stand trial for the uncertified acts

alleged in the complaint.  Thus, the disruption and delay of an

interlocutory appeal would be incurred not to rescue a defendant

from discovery and trial but merely to limit the claims against

him.  Whatever force the argument might otherwise have, it was

rejected by the Supreme Court in Behrens.  There the Court said

that an interlocutory appeal lay from a denial of immunity even if

granting it would not resolve the entire case.  See 516 U.S. at

311-13.

     Turning to the merits, the first question is to determine

the "unit" for which certification is appropriate under the

Westfall Act.  Where a single case involves multiple claims,

certification is properly done at least down to the level of

individual claims and not for the entire case viewed as a whole. 

This is evident from Behrens itself as well as other cases

approving certification of some claims but not others.  E.g., De

Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (1st Cir. 1986);

Araujo v. Welch, 742 F.2d 802, 805-06 (3d Cir. 1984).

     The harder question is how to handle a situation in which

an individual claim taken separately encompasses multiple

incidents.  This question is posed by the present case; for

example, Lyons' infliction of emotional distress charge embraces a

whole series of individual incidents (e.g., hugging, a negative

report, refusing to converse).  In all likelihood, we are

addressing an issue to which Congress gave no thought when it

framed the Westfall Act.

     The Westfall Act is an offshoot of statutes imposing

liability on the federal government for such events as accidents

involving federal-employee drivers--events in which there is

commonly a single incident (the crash) corresponding to a single

claim (driver negligence).  See Behrens, 516 U.S. at 303; Nasuti v.

Scannell, 906 F.2d 802, 809 (1st Cir. 1990).  While Congress surely

knew that a complaint may include multiple claims, a claim

supported by many divergent acts is less common.  Indeed, neither

side has found a Westfall Act case that squarely addresses the

issue we now face.

     Statutory language--always the starting point,

Petitioning Creditors of Melon Produce, Inc. v. Braunstein, 112

F.3d 1232, 1237 (1st Cir. 1997)--lends some support to the

government's act-by-act approach.  The Westfall Act speaks of

certification not of "the claim" but of "the incident out of which

the claim arose," 28 U.S.C.  2679(d); "incident" could easily be

equated with "act" or "event."  We do not think that either of

Lyons' counters--that the word "incident" appears in the singular

and that other related statutory provisions (e.g., removal, 28

U.S.C.  2679(d)(2)) explicitly operate on a claim-by-claim basis--

are of much force.

     Nevertheless, it is hard to make too much of this

language where Congress may have assumed a rough equation of

"incident" and "claim" and where the problem in our case arises

from a failure of the equation.  Nor do we have any direct evidence

of congressional intent derived from legislative history.  Lyons'

argument that Congress did not intend to allow certification of

"egregious misconduct," H.R. Rep. No. 100-700, 100th Cong., 2d

Sess. 5 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5949, does not

seem to us to bear directly on the "claim versus incident" issue

before us.

     In granting Westfall Act immunity, Congress aimed to

protect federal employees against personal lawsuits growing out of

their routine conduct of official business.  See United States v.

Wood, 995 F.2d 1122, 1125-26 (1st Cir. 1993).  The Federal Tort

Claims Act, 28 U.S.C.  1346(b), 2671-2680, had already made the

government liable for certain wrongful employee conduct within "the

scope of employment"; Congress simply provided in the Westfall Act,

contrary to ordinary tort law, that the employee would be immune to

suit for conduct within the scope of employment.

     Given the objective to protect conduct within the scope

of employment, we reject Lyons' notion that a plaintiff can defeat

certification merely by choosing to plead two different acts under

the heading of a single claim.  Modern pleading is so flexible, and

causes of action so numerous, that it is often child's play to

combine as part of the same "claim" remotely related incidents.  We

are far less concerned about the possibility suggested by Lyons

that a plaintiff might simply choose not to identify incidents in

the complaint, thereby frustrating any effort to certify specific

acts; discovery provides an easy remedy for that tactic.

     Lyons is right that the incident-by-incident approach may

increase the burden on the courts.  It certainly would be quicker

to make an all or nothing judgment as to each multi-incident claim,

although not easy to invent a standard (would it be the

predominance of scope versus nonscope conduct within each claim?). 

But mechanisms--such as special masters--exist for dealing with

routine, serial disputes, and our major concern must be to

implement Congress' basic aim:  to protect the employee for conduct

within the scope of employment but not outside it.  See Wood, 995

F.2d at 1125.

     Finally, Lyons objects that the government, by certifying

discrete incidents, can carve the evidentiary heart out of a case

whose gravamen is a single course of conduct.  But we see no reason

why, subject to the sound discretion of the district judge, conduct

within the scope of employment would automatically be excluded from

evidence if it were offered merely to show pattern, motivation or

anything else pertinent to imposing liability on the employee for

conduct that has not been certified.  See United Mine Workers of

America v. Pennington, 381 U.S. 657, 670 n.3 (1965); cf. Fed. R.

Evid. 404(b).  Of course, the jury ought to be told of the limited

purpose.  See Fed. R. Evid. 105.

     We thus conclude that the district court should have

applied the scope test to acts or incidents, as the government

claims.  The government, although urging reversal, says that the

district court has already developed the pertinent evidence and

urges this court to decide which incidents should be certified. 

See Ray v. Atlantic Richfield Co., 435 U.S. 151, 179 n.29 (1978). 

Dr. Pathak goes further, asking us to hold that the government

should have certified additional conduct.  Lyons, by contrast, asks

for a remand to decide what should be certified.  A remand cannot

be avoided, but we can and will narrow the issues for the remand.

     Under the Westfall Act, private action is barred against

an employee of the federal government for a "negligent or wrongful

act or omission of [the employee] . . . while acting within the

scope of his office or employment . . . ."  28 U.S.C. 2679(b)(1). 

Federal law determines whether a person is a federal employee and

defines the nature and contours of his official responsibilities;

but the law of the state in which the tortious act allegedly

occurred determines whether the employee  was acting within the

scope of those responsibilities.  Aversa v. United States, 99 F.3d

1200, 1208-09 (1st Cir. 1996).  Here, only the latter issue is in

dispute.

     All sides appear to concur that the scope issue should be

determined under Maine law (although a few of the acts occurred

outside Maine).  As elsewhere, the scope-of-employment issue in

Maine is normally resolved not to give immunity to the employee,

but to impose vicarious liability on an employer under the

respondeat superior doctrine.  Maine's courts follow the tests set

forth in the Restatement (Second) of Agency  228 et seq. (1958). 

See McClain v. Training and Development Corp., 572 A.2d 494, 497

(Me. 1990).  The Restatement's general rule  228 reads as follows:

          (1) Conduct of a servant is within the

          scope of employment if, but only if:



               (a) it is of the kind he is

          employed to perform;



               (b) it occurs substantially within

          the authorized time and space limits;



               (c) it is actuated, at least in

          part, by a purpose to serve the master,

          and 



               (d) if force is intentionally used

          by the servant against another, the use

          of force is not unexpectable by the

          master.



          (2) Conduct of a servant is not within

          the scope of employment if it is

          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.



     The rule is given more content by a further 24 pages

containing subordinate rules, commentary and illustrations, seeRestatement, supra,  228-236, and by case law and rules of thumb. 

For example, usually--but not always--acts relating to work and

done in the workplace during working hours are within the scope,

see id.  229, 233, 234; negligent performance of duties is within

the scope, see id.  232-233, while serious intentional wrongdoing

is outside it, see id.  231 & cmt. a.; and the motivation of the

employee (to serve the master's interests or his own) is often an

important element, see id.  235-236.

     Set forth in an appendix to this opinion is the full text

of each paragraph listed by the U.S. Attorney as certified.  Most

of the acts in these 22 paragraphs appear on their face to be work-

related.  For example, paragraph 59 says that "[i]n August 1994,

Dr. Pathak logged a Complaint with William Harnass and Dr. Holyoke,

Chief of Staff, against Mrs. Lyons."  Paragraph 115 says, "[o]n

February 23, 1995, Dr. Pathak announced to the Renal Dialysis Unit

that 'they' were considering closing the Renal Dialysis Unit." 

Paragraph 129 says:

     On March 13, 1995, without telling Mrs. Lyons,

     Dr. Pathak withdrew  Togus from the dialysis

     research study.  The study had been the

     purpose of the June, 1994 trip to Chicago and

     would have enhanced Ms. Lyons' standing in the

     nephrology community.



     Under Wood v. United States, 995 F.2d 1122 (1st Cir.

1993), the district court in deciding the immunity issue must

assume that the "harm-causing incident" alleged by the plaintiff

did occur and must then resolve issues regarding the

"characterization of the incident and subsidiary immunity-related

facts."  Id. at 1129.  Here, Dr. Pathak's filing of a complaint and

withdrawal from the dialysis research study were obviously work-

related in the sense that these acts might have been taken to serve

his employer; but they could also prove to be outside the scope of

employment if they were done instead with a private purpose on Dr.

Pathak's part to retaliate against Lyons for rejecting his

advances.

  If the complaint or the treatment of the study were done

in good faith to serve the employer's interests, then the conduct

was likely within the scope of employment even if Dr. Pathak's

judgment was mistaken.  Restatement, supra,  232-33; cf. Nasuti,

906 F.2d at 808.  Conversely, whatever justification Dr. Pathak

might have for his actions could be overcome if his actual purpose

was to retaliate, a motive that would convert his conduct into

"serious intentional wrongdoing" outside the scope of employment. 

Restatement, supra,  231 & comment a; cf. Wood, 995 F.2d at 1123. 

Of course, whether the conduct was objectively justified might play

some evidentiary role in helping the judge decide whether the

doctor's motive was professional or personal.

  In challenging the U.S. Attorney's certificate, the

burden is upon Lyons to prove any facts needed to contradict the

government's characterization of the conduct in dispute.  SeeRogers v. Management Technology, Inc., 123 F.3d 34, 36-37 (1st Cir.

1997); Nasuti, 906 F.2d at 808.  On remand, Lyons is entitled to

challenge the certificate as to each of the 22 certified

paragraphs.  For example, Lyons asserts that Dr. Pathak did not

honestly believe that the complaint he filed against her was true,

and she asserts that Dr. Pathak's superiors had no intention of

closing the dialysis unit. If her proffer so warrants, and the

facts alleged are in controversy, then an evidentiary hearing may

be required.

  We turn now to Dr. Pathak's claim that the U.S. Attorney

erred in refusing to certify other acts, apart from the 22

paragraphs, as within the scope of employment.  For example, Dr.

Pathak suggests that his alleged statement to Lyons that he "loved"

her should be regarded as a misunderstood attempt by him to solve

a workplace disagreement; his choice of words, he says, reflects

the fact that English is not his native language.  Although a few

examples of this kind are given, Dr. Pathak's principal argument on

appeal is that the district court erred in refusing to consider his

claims on an act-by-act basis.  We agree for reasons already

stated.

  If Dr. Pathak chooses on remand to pursue such claims, he

(like Lyons) will bear the burden of proof in moving for

certification under  2679(d)(3).  It will be up to him to offer

whatever evidence is necessary to persuade the district judge that

an individual alleged act, not found by the U.S. Attorney to be

within the scope of employment, falls within the scope of

employment.  And in soliciting a finding by the district court

(e.g., as to the motivation or circumstances surrounding an alleged

act), Dr. Pathak (like Lyons) confronts the risk that an adverse

determination may turn out to be harmful to him in the trial

itself.

     The order of the district court striking the U.S.

Attorney's certificate is vacated, and the matter is remanded to

the district court for further proceedings consistent with this

opinion.

     It is so ordered.                             APPENDIX


52.  The Defendant said, no one would do anything unless

Ms. Lyons said so and that the plaintiff was "walking around in her

white coat and high heels like she was a big person."



     53.  For the next three months, Dr. Pathak undertook a

continuing course of harassment against Ms. Lyons which centered

around work related issues.



     55.  Dr. Pathak would not communicate with Ms. Lyons,

canceled meetings and, most importantly, publicly questioned Ms.

Lyons's professional judgment on issues of critical labs, patient

orders and the like.



     59.  In August 1994, Dr. Pathak logged a Complaint with

William Harness and Dr. Holyoke, Chief of Staff, against Ms. Lyons.



     61.  The Complaint alleged that Ms. Lyons had maliciously

locked Dr. Pathak out of the Dialysis Unit.  Ms. Lyons never locked

Dr. Pathak out of the Dialysis Unit.  The Plaintiff expressed her

concerns to Dr. Beaupre who told her not to take it seriously

because we know it's not you.



     69.  On August 31, 1994, Ms. Lyons approached the

Defendant Pathak with a list of suggestions as requested by Dr.

Beaupre.  Dr. Pathak responded, "I don't want to talk to you."



     88.  Dr. Pathak also asked Joe Morelli, a police officer

at Togus, to question Ms. Lyons about missing log books.



     91.  On November 26, 1994, Dr. Pathak dictated in a

patient HX and Physical that "the patient's family talked with the

head nurse, Ms. Daigle."



     115.  On February 23, 1995, Dr. Pathak announced to the

Renal Dialysis Unit that "they" were considering closing the Renal

Dialysis Unit.



     129.  On March 13, 1995, without telling Ms. Lyons, Dr.

Pathak withdrew Togus from the dialysis research study.  The study

had been the purpose of the June, 1994 trip to Chicago and would

have enhanced Ms. Lyons' standing in the nephrology community.



     130.  Throughout March of 1995, Dr. Pathak continued to

avoid Ms. Lyons at work and refused to speak with her.  This made

it extremely difficult for Ms. Lyons to do her job because Dr.

Pathak was the director of the unit and directly responsible for

providing Ms. Lyons with critical patient care information.



     131.  From November, 1994 through the present, Ms. Lyons

has kept management updated about Dr. Pathak's behavior and the

risk to patient care it has created, but nothing has changed.



     132.  On March 16, 1995, Ms. Lyons paged the Defendant

with a question about patient care and Dr. Pathak refused to talk

to Ms. Lyons.



     133.  On March 21, 1995, Ms. Lyons again attempted to

talk to Dr. Pathak about a patient care issue, but only after

repeated requests did Dr. Pathak supply her any information.  Then,

the information he gave was minimal.



     134.  Throughout March of 1995, Dr. Pathak refused to

attend Renal Dialysis Unit staff meetings or do rounds with Ms.

Lyons.



     135.  On March 31, 1995, Ms. Lyons questioned Dr. Pathak

about a patient care situation needing immediate information and

Dr. Pathak refused to talk with her.



     140.  On April 8, 1995, Ms. Lyons again tried to talk to

Dr. Pathak about a patient care issue, but Dr. Pathak refused to

even take her call.  Ms. Lyons had to track Dr. Pathak down through

the hospital before he would talk to her.



     142.  Dr. Pathak unreasonably and without discussion

refused to allow the patient to see the video and ordered that the

patient receive no more information about the treatment.



     145.  On May 15, 1995, Dr. Pathak scheduled two patients

to come to the Renal Dialysis Unit but purposely refused to tell

Ms. Lyons they were coming.



     147.  On May 24, 1995, in front of a fellow nurse, Ms.

Lyons asked Dr. Pathak a specific question regarding preparing for

transient dialysis patients.  Dr. Pathak refused to answer her. 

She asked him another question and he refused to talk to her.



     148.  Throughout the week of May 25, 1995, Dr. Pathak

refused to talk to Ms. Lyons at all.  Dr. Pathak even planned the

transfer of patients off the unit without ever informing Ms. Lyons,

the head nurse.