Operation Rescue v. United States

• Court: Court of Appeals for the First Circuit
• Decided: July 6, 1998
• Docket: 97-2290
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2290



                OPERATION RESCUE NATIONAL, ET AL.,



                     Plaintiffs, Appellants,



                                v.



                    UNITED STATES OF AMERICA,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



             [Hon. Mark L. Wolf, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

            Aldrich and Cyr, Senior Circuit Judges.


Paul F. Galvin with whom Randal C. Fritz was on brief for

appellants.

     John F. Daly with whom Mark B. Stern, Attorneys, Appellate

Staff, Stephen W. Preston, Deputy Assistant Attorney General,

Donald K. Stern, United States Attorney, and Frank W. Hunger,

Assistant Attorney General, were on brief for appellee.


July 1, 1998


ALDRICH, Senior Circuit Judge.  On November 15, 1993

  Senator Edward M. Kennedy, in Boston, following a campaign

  fund-raising luncheon, addressed a group of reporters in

  connection with a bill protecting access to clinics serving

  women's health, including abortions.  The bill, of which he was

  the prime sponsor, was to be debated in the Senate the

  following day.  In the course of his remarks, in answer to a

  question regarding this legislation, the Senator stated that

  organizations like Operation Rescue National ("Operation

  Rescue") had a "national policy [of] firebombing and even

  murder."  Operation Rescue brought suit for defamation against

  the Senator in the Massachusetts Superior Court.  Pursuant to

  28 U.S.C.  2679(d) of the Federal Tort Claims Act ("FTCA"), the

  United States Attorney filed therein a certification to the

  effect that Senator Kennedy "was acting within the scope of his

  employment as an officer and employee of the United States at

  the time of the conduct alleged in the complaint," and moved to

  remove the action to the United States District Court.  The

  removal was effected and the district court thereupon granted

  the United States' motion for its substitution for Senator

  Kennedy as a defendant immunized by the FTCA.  Because the FTCA

  excepts liability for defamation, see id.  2680(h), the court

  thereafter granted summary judgment for the United States,

  leaving Operation Rescue with no claim against either it or the

  Senator.  See id.  2679(b)(1) (providing that an action

  against the United States is the exclusive remedy); United

  States v. Smith, 499 U.S. 160, 166-67 (1991) (holding that the

  exclusivity of remedy provision applies even if government

  liability is precluded).

    We affirm those actions, but, before proceeding

  further, we review the Westfall Act, so-called, the first step

  in producing this result, starting with the history leading to

  its enactment.

    One Erwin suffered injuries allegedly as a result of

  the negligence of Westfall and others, employees of the United

  States executive branch, in performing official acts   the

  storage of dangerous chemicals.  See Westfall v. Erwin, 484

  U.S. 292, 293-94 (1988).  He brought suit against the

  individual defendants in the state court, but this action was

  removed to the district court pursuant to 28 U.S.C.

   1442(a)(1).  This court held, by summary judgment, that

  defendants were absolutely immune because their conduct had

  been in the course of their government employment.  The Court

  of Appeals reversed, holding that government employees were

  immune only for conduct of a discretionary character.  It

  ordered the case remanded for a determination whether

  defendants' conduct was of that nature.  On defendants'

  obtaining certiorari, the Court agreed with the Court of

  Appeals.  Inter alia, it stated, "[O]fficial immunity comes at

  a great cost. . . . [A]bsolute immunity for federal officials

  is justified only when 'the contributions of immunity to

  effective government in particular contexts outweigh the

  perhaps recurring harm to individual citizens.'"  Id. at 295-96

  (citation omitted).  Without laying down standards, the Court

  affirmed.  In so doing, it remarked that Congress was in the

  best position to rule on what was required for immunity.  Seeid. at 300.

    This Congress promptly did by the Federal Employees

  Liability Reform and Tort Compensation Act of 1988, Pub. L. No.

  100-694, 102 Stat. 4563, the so-called Westfall Act.  Beside

  removing the Westfall v. Erwin discretionary requirement, it

  increased the scope of the FTCA by adding employees of the

  judicial and legislative branches to those of the executive

  branch.

    In a comprehensive Memorandum, Operation Rescue

  National v. United States, 975 F. Supp. 92 (D. Mass. 1997), the

  district court, in addition to disposing of other matters no

 longer involved,  considered the following issues: (1) Whether,

  as a result of the Westfall Act, the FTCA is to be read as

  including the members of Congress; and (2) Whether, if the FTCA

  does include Congressmen, its application to these facts is

  constitutional.  We review its resolutions in the affirmative

  de novo, as rulings of law.  See, e.g., Inmates of Suffolk

  County Jail v. Rouse, 129 F.3d 649, 653, 655 (1st Cir. 1997). 

  Beginning with the first, we agree with the district court's

  result, but approach it differently.

 Congressmen   as Officers or Employees?

      At the time of Westfall v. Erwin, the list of

  government employees covered by the FTCA did not include those

  of the judicial and legislative branches:

   Definitions

           As used in this chapter and sections

      1346(b) and 2401(b) of this title, the term

      "Federal agency" includes the executive

      departments, the military departments . . . .

  

           "Employee of the government" includes

      officers or employees of any federal agency,

      members of the military . . . .

  

  The Westfall Act added the words "the judicial and legislative

  branches" to follow "the executive departments" in the first

  paragraph.  It made no change in the second.

      In almost unlimited number, Operation Rescue has shown,

  from the Constitution and widespread federal statutes, uses of

  the phrase, "officers, members and employees," with "members"

  meaning members of Congress.  From this it would have us

  conclude that when Congress said "officers or employees" here,

  it made a deliberate and meaningful omission.  We quote its

  brief, pp. 7 and 14,

           Section 3 of the Westfall Act makes the

      FTCA applicable to "officers or employees" of

      the "legislative branch[]".  A United States

      Senator is neither.  Congress' historical

      practice, since its (sic) 1789, has been to

      reference the three classes of persons found

      in the halls of Congress as either "Member",

      "officer", or "employee".  Congress chose

      defining, restrictive language, "officers or

      employees" of the "legislative branch[]", when

      it wrote its 1988 Westfall Act.  So choosing,

      Congress identified a readily identified body

      of congressional personnel which does notinclude United States Senators.

  

                              . . . .

  

           Of course the Members of the 100thCongress knew to whom they were referring when

      they wrote into the Westfall Act the

      restrictive language, "officers or employees"

      of the "legislative branch[]".

           In writing statutes, Congress chooses

      its words carefully . . . .

  

  (Emphases added).

  

      Aside from the final sentence, the rest is fiction.  A

  voting Congressman who went beyond reading "FEDERAL EMPLOYEES

  LIABILITY" in the Westfall Act title would not find the

  claimed-to-be restrictive language even once.  The Act's

  expressly declared purpose was to "protect Federal employees

  from personal liability for common law torts"; the phrase

  "Federal employee" occurred ten times, and the word "officer" and

  the phrase "officers and employees" never.  See Westfall Act

   2, 102 Stat. 4563-64.  How many astute legal minds who

  bothered to go further and read the FTCA, and saw there the

  phrase "officers or employees", would have thought of Operation

 Rescue's omission argument?   We cannot think the Westfall

  Congress should be charged with plaintiff's connotation.

      Alternatively, Operation Rescue would say that, as a

  matter of law, Congressmen are neither "officers" nor "employees"

  of the federal government.  The district court has compiled

  much detail rejecting this assertion that we need not repeat. 

  See, e.g., Lamar v. United States, 241 U.S. 103 (1916). 

 Operation Rescue, incomprehensibly, persists. 

      We add that even were this correct, circumstances speak

  louder than words.  We ask a simple question   Why would

  Congressmen vote to exclude themselves from a universal grant

  of immunity given to all others; to all employees below them;

  to all officers, up to the president, above them?  The district

  court noted some, concededly weak, post-Westfall Act

  legislative history favoring inclusion of Congressmen.  We

  think it more important to look to contemporary legislative

  history.  Here we find nothing relevant.  Like the famous dog

  that remained silent, the silence is telling.  If the Westfall

  Act clearly and carefully intended to exclude Congressmen from

  the FTCA's otherwise universal benefits, would there not have

  been, at the least, some Congressmen who would have

  remonstrated?

      There is no such legislative history, or Operation

  Rescue's counsel would have found it.  If, which we consider it

  does not, the strict language should be read as Operation

  Rescue would have it, this would be a clear case where contrary

  circumstances as a whole would surely prevail.  Cf. Griffin v.

  Oceanic Contractors, Inc., 458 U.S. 564, 571-74 (1982).

      Failing here, Operation Rescue would supplement with

  constitutional claims.  These have been well answered by the

  district court. We pass without comment the contention that

  "Congress does not have a general power to legislate," except to

  note McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406, 413

  (1819), and turn to Operation Rescue's main theme, that this is

  an immunity from which Congressmen are uniquely exempt. 

  Accordingly, Congress could grant immunity from defamation

  claims to other federal officers or employees, but it could not

  vote such benefits for itself.  Further, the Speech or Debate

  Clause is a ceiling rather than a floor.  For this last, the

  basic contention is, by its having given Congressmen some

  protection not given to others, the Constitution implicitly

  forbad any increase by statute, even when giving greater

  protection to others.  This is singular logic.  We need not

  repeat the district court's extensive rejections, with which we

  agree.

      In all respects the decision below is affirmed.