Rogers v. Management Technolog

• Court: Court of Appeals for the First Circuit
• Decided: August 12, 1997
• Docket: 96-1960
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1960



                                  FRANCES A. ROGERS,



                                 Plaintiff, Appellee,



                                          v.



                         MANAGEMENT TECHNOLOGY, INC., ET AL.



                                Defendants, Appellees,



                                 ____________________



                                  RICHARD CAVALLARO,



                                Defendant, Appellant.



                                 ____________________



                  PETITION FOR WRIT OF MANDAMUS AND APPEAL FROM THE



            UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Nancy J. Gertner, District Judge]
                                               ______________

                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________



            Jennifer H. Zacks, with whom Frank W. Hunger, Assistant Attorney
            _________________            _______________

        General, Donald K. Stern, United States Attorney, and Barbara L.
                 _______________                              __________

        Herwig, Attorney, Civil Division, U.S. Department of Justice, were on
        ______

        brief for appellant, Richard Cavallaro.

            Paul A. Manoff for appellee Frances A. Rogers.
            ______________

                                 ____________________



                                   August 12, 1997

                                 ____________________



CAMPBELL, Senior Circuit Judge.   The United States
                                ____________________



            and its employee, Richard Cavallaro, appeal from the district



            court's order  remanding  a slander  action  brought  against



            Cavallaro back to the Massachusetts state court.  The slander



            action had earlier been removed to the federal court pursuant



            to the Attorney General's  Westfall Act certification,  which



            stated that Cavallaro had been acting within the scope of his



            federal  employment  at  the  time  of  the  alleged  slander



            incident.  Appellants  now complain that the  district court,



            ignoring the Attorney General's certification, wrongly placed



            upon  them  the  burden of  establishing  that  Cavallaro was



            acting  within the  scope  of  his  federal  employment  when



            committing  the alleged tort.  Appellants further complain of



            the  absence of  any express  determination  by the  district



            court that Cavallaro had in fact been acting beyond the scope



            of his federal employment.  We vacate and remand.



                                I.  Factual Background
                                ______________________



                      The plaintiff,  Frances A. Rogers,  was employed by



            Management  Technology Inc.,  a government  contractor, until



            August 1993.   At that time, Rogers was  fired, allegedly for



            falsifying the records  of the hours she had worked as a data



            entry  help desk  coordinator  at  Hanscom  Air  Force  Base.



            Rogers  then  filed  a  state  action  in  the  Massachusetts



            superior  court against, among  others, Richard  Cavallaro, a



            civil service employee  of the United States Air  Force.  She


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asserted  that following a dispute she had had with Cavallaro



            over  a  parking space,  he  had  defamed her      wrongfully



            telling her  superiors that she had falsified  her time cards



               causing the loss of her job.



                      The  United  States  Attorney,  acting  under   the



            Westfall  Act, certified  that  Cavallaro  had  been  "acting



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



            the incident  out of which  the claim  arose."1  28  U.S.C.  



            2679(d)(1).    The government  then removed  the case  to the



            federal  district court and  moved that the  United States be



            substituted  for Cavallaro as  the party defendant,  and that



            Cavallaro be  dismissed, under  28 U.S.C.     2679(d)(2)  and



            (b)(1).  



                      At  the  same  time,   the  government  also  moved



            separately  for  summary  judgment, arguing  that  since  the



            Westfall  Act provides that a plaintiff's sole remedy against



            a  federal  employee  for "injury  or  loss  of  property, or



            personal  injury or  death  arising  or  resulting  from  the



            negligent or wrongful act or  omission of any employee of the



            Government while  acting within  the scope  of his  office or



            employment," 28 U.S.C.    2679(b)(1), is  a suit against  the



            United States  under the Federal  Tort Claims Act,  and since


____________________



            1.  Although the statute designates the Attorney General as

            the person who makes the scope decision, the Attorney General

            has delegated this authority to the United States Attorneys. 

            See 28 C.F.R.   15.3(a).
            ___



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the Federal Tort  Claims Act provides no waiver  of sovereign



            immunity for the  types of claims asserted by  Rogers, see 28
                                                                   ___



            U.S.C.   2680(h), Rogers had no remedy.



                      The case  was assigned initially  to United  States



            District   Judge  Harrington.    On  April  29,  1994,  Judge



            Harrington  ordered   both  parties   to  submit   affidavits



            "delineating  the   duties  and  responsibilities   of  their



            employment . . . ."   Whether because it was  never received,



            as the government  now contends,  or for  some other  reason,



            neither  party  filed  affidavits  in  compliance  with  this



            order.2



                      On May 16, 1994, the case was reassigned to  United



            States District Judge Gertner.   On September 16, 1994, Judge



            Gertner  held a  hearing  on  the  government's  motions  for



            substitution  of the  United States  as  party defendant  and



            dismissal  of  Cavallaro  and  for summary  judgment  against



            Rogers  in her  defamation action.   On  May 30,  1996, Judge



            Gertner   denied   all  the   government's   motions,  citing



            Cavallaro's failure to  file an affidavit in  compliance with



            the April  29, 1994 order and a  lack of basis for concluding



            that Cavallaro was acting within the scope of his employment.


____________________



            2.  Rogers submitted an affidavit on May 2, 1994 that did not

            address the "duties and responsibilities" of either her

            employment or Cavallaro's.  Rogers says she filed this

            affidavit in support of her opposition to the government's

            summary judgment motion, and not in response to Judge

            Harrington's order.



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Judge   Gertner  then   remanded  the   case   back  to   the



            Massachusetts   state    court.       Without   moving    for



            reconsideration, the government filed this appeal.3



                        II.  Review of the Scope Certification
                        ______________________________________



                      The   Westfall   Act   states   that   the    scope



            certification  by  the  Attorney General      that  a federal



            employee was acting within the scope of his or her employment



            when committing the alleged  tort from which the claim  arose



                "shall  conclusively   establish  scope   of  office   or



            employment  for purposes of removal."  28 U.S.C.   2679(d)(2)
                        _______________________



            (emphasis added).   In Gutierrez de Martinez  v. Lamagno, 115
                                   _____________________     _______



            S. Ct. 2227 (1995), the Supreme Court construed the Act so as



            to allow  district courts  to review  the Attorney  General's



            scope certificate relative  to the matter of  substitution of



            the United States as a party defendant.  The Court wrote:



                      Congress spoke in discrete sentences in  

                      2679(d)(2)  first  of  removal,  then  of

                      substitution.   Next,  Congress made  the



                                
            ____________________



            3.  The government says that it did not file a motion for

            reconsideration under Fed. R. Civ. P. 60 because it "did not

            become aware of the district court's orders denying the

            United States' motion for substitution and remanding the case

            to state court until a few days before the deadline for

            filing a notice of appeal . . . ."  Given the government's

            complaint that it was not notified of Judge Harrington's

            order to file affidavits, it would have been sensible to

            bring this matter to the district court's attention.  The

            government's excuse that it did not learn of Judge Gertner's

            order rejecting its motion until shortly before the

            expiration of the time to appeal is not persuasive.  It could

            have filed its notice of appeal first and then asked the

            district court to reconsider its order.  See Puerto Rico v.
                                                     ___ ___________

            The SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979).
            ______________________



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                                          5



Attorney General's certificate conclusive

                      solely  for  purposes   of  removal,  and

                      notably not for purposes of substitution.

                      It  follows   . . . that  the   scope-of-

                      employment   judgment   determinative  of

                      substitution can  and properly  should be

                      checked by the  court, i.e., the Attorney
                                             ____

                      General's      scarcely     disinterested

                      certification  on   that  matter   is  by

                      statute made the first, but not the final

                      word.



            Id. at 2235. 
            ___



                      Gutierrez did  not speak to the question of who has
                      _________



            the burden  of proof on the scope  issue, but our language in



            Nasuti v. Scannell,  906 F.2d 802 (1st Cir.  1990), indicates
            ______    ________



            clearly  that  in  situations  such  as  this  one,  where  a



            plaintiff asserts that a defendant acted outside the scope of



            his  or  her  employment   despite  the  Attorney   General's



            certification to the contrary, the  burden of proof is on the



            plaintiff.  We wrote:



                      The Attorney General  can see  to it,  by

                      making   the   certification,   that  the

                      federal  defendant's   scope  status   is

                      resolved  by  a   federal,  not  a  state

                      tribunal; employee immunity  will thus be

                      protected, in  keeping with  the Westfall

                      Act's purpose, except where the plaintiff
                                     __________________________

                      can  convince  a federal  court  that the
                      _______________________________

                      government  employee  was  acting outside

                      the   scope   of  his   employment   and,

                      therefore,   by   definition,   was   not

                      entitled   to   immunity   from  personal

                      liability.



            Id. at 813 n.16 (emphasis added).  See also Aversa v.  United
            ___                                ________ ______     ______



            States, 99 F.3d 1200, 1209 (1st Cir. 1996).
            ______


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                                          6



Neither the Supreme Court nor our own en banc court



            has  said anything  to undermine  the  panel's conclusion  in



            Nasuti that the plaintiff has  the burden of proof in respect
            ______



            to  overturning the  Attorney General's  scope certification.



            The  holding therefore remains binding in  this circuit.  See
                                                                      ___



            Institut  Pasteur v. Cambridge  Biotech Corp., 104  F.3d 489,
            _________________    ________________________



            493 n.8 (1st Cir.), cert. denied, No. 96-1698, 1997 WL 219862
                                ____________



            (U.S.  June 27, 1997);  Williams v. Ashland  Engineering Co.,
                                    ________    _________________________



            Inc., 45  F.3d 588, 592 (1st Cir.),  cert. denied, 116 S. Ct.
            ____                                 ____________



            51 (1995).          Here,  the district  court explained  its



            reasons for  overturning the  scope certification,  rejecting



            the government's motions,  and remanding to the  state court,



            solely as follows:



                      On April  29, 1994, this court  issued an

                      order  requiring  defendant  Cavallaro to

                      submit  an   affidavit  delineating   his

                      duties and responsibilities  with the Air

                      Force.   No such affidavit  was received.

                      This  Court  therefore has  no  basis for

                      concluding  that  Cavallaro   was  acting

                      within the  scope of his  employment when

                      he made the allegedly defamatory remarks.



                      The district court's  language    that  without the



            government's  affidavit it had  no basis for  concluding that



            Cavallaro was acting  within the scope  of his employment    



            ignored the  Attorney General's existing  scope certification



            and  improperly placed  upon  the  defendant  the  burden  of



            establishing anew that  he had acted within the  scope of his



            federal employment.


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In Nasuti, as the government points out, this court
                         ______



            further held that it is  illegal for the district court, when
                                     _______



            confronted with an outstanding scope certification, to remand



            to the state court unless  it makes "an express determination



            of   its  own  that  defendant,  when  he  allegedly  injured



            plaintiff,  was  acting  beyond  the  scope  of  his  federal



            employment."   Nasuti, 906 F.2d  at 808.  The  district court
                           ______



            made  no  such  express scope  determination  here,  pointing



            instead merely  to Cavallaro's  failure to  have produced  an



            affidavit    delineating   his    Air   Force    duties   and



            responsibilities.    It  is  far  from  clear  that  such  an



            affidavit would have  resolved the scope  issue as framed  by



            Rogers,  namely,  that  Cavallaro was  motivated  by personal



            animosity stemming from a parking space dispute when  he told



            Plaintiff's  superiors  that  she   had  falsified  her  time



            records.  In any case,  the district court's reference to the



            missing  affidavit  delineating duties  and  responsibilities



            fell   short  of   Nasuti's   requirement  that   the   court
                               ______



            affirmatively make an  express determination of its  own that



            Defendant was acting beyond the  scope of his employment when



            he injured the plaintiff.



                      We   do  not  say,  of  course,  that  the  express



            determination of scope  called for in Nasuti may  not be made
                                                  ______



            in  the  context  of  a  summary  judgment  type  proceeding,



            assuming there  is  no issue  of disputed  fact requiring  an


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evidentiary  hearing.   But Rogers  never  moved for  summary



            judgment on the scope issue.  Nor did the district court ever



            determine  on the  basis of uncontested  facts in  the record



            that Cavallaro  had acted  outside the  scope of  his federal



            employment.



                      This  is not a situation  where it might be thought



            that  the district court had validly granted summary judgment



            to a non-requesting party.  See National Expositions, Inc. v.
                                        ___ __________________________



            Crowley Maritime Corp.,  824 F.2d  131, 133  (1st Cir.  1987)
            ______________________



            ("[A] district court  has the legal power to  render 'summary



            judgment  . . . in favor'  of the  party  opposing a  summary



            judgment  motion 'even  though he has  made no  formal cross-



            motion under rule 56.'") (quoting  10A C. Wright, A. Miller &



            M. Kane, Federal Practice and Procedure   2720, at 29-30 (1st
                     ______________________________



            ed.  1983)).  The major limitation on this rule is that "'the



            losing party' must be 'on notice that she had to come forward



            with all  of her evidence.'"   Id. (quoting Celotex  Corp. v.
                                           ___          ______________



            Catrett, 477 U.S. 317 (1986)).   In order to be  "on notice,"
            _______



            the original movant  must have "'had an  adequate opportunity
                                                 ________________________



            to show  that there is a genuine  issue and that his opponent



            is  not entitled  to judgment  as  a matter  of  law.'"   Id.
                                                                      ___



            (quoting 10A C. Wright,  A. Miller & M. Kane, supra,    2720,
                                                          _____



            at 34) (emphasis added by cited case). 



                      Here it cannot be said that Cavallaro understood he



            was on notice that he  had to produce all his scope  evidence


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or else face  summary judgment against him.   It is true that



            he  was ordered  by Judge  Harrington  to produce  affidavits



            delineating  his duties and  responsibilities.  But  even had



            Cavallaro  complied,   such  an  affidavit   would  not  have



            addressed  Rogers'  argument  that  Cavallaro's  conduct  was



            outside the scope of his  federal duties because it was based



            on personal spite.  Rogers  herself, in her opposition to the



            government's  summary  judgment  motion,  stated,  "There  is



            insufficient  evidence in the record presently, for the court



            to make [the  scope] determination."  Rogers argued  that she



            needed to take three depositions before enough evidence would



            exist.   In these confusing circumstances, we  do not believe



            the defendants were  on notice they had to  come forward with



            all their  evidence on scope,  on peril of  suffering summary



            judgment on that issue in favor of the non-moving plaintiff.



                      Indeed, although we  need not decide the  point, it



            seems  unclear  whether  the  facts  stated   in  Cavallaro's



            affidavit (treating them, arguendo,  as uncontested) provided



            a  sufficient   basis  for   a   scope  determination   under



            Massachusetts  law against Cavallaro and the government.  See
                                                                      ___



            Wang  Laboratories, Inc.  v. Business  Incentives, Inc.,  501
            ________________________     __________________________



            N.E.2d   1163,  1166  (Mass.   1986)  ("The  fact   that  the



            predominant motive  of the agent  is to benefit  himself does



            not  prevent  the   act  from  coming  within  the  scope  of


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employment as long as the act is otherwise within the purview



            of his authority.").  



                      We hold, therefore, that the district  court lacked



            an adequate basis in the present record and on the procedures



            conducted to date for awarding  a judgment on the scope issue



            in Plaintiff's favor.



                      Nor  can the district  court's ruling be  upheld as



            tantamount  to  the  entry  of  a  default  judgment  against



            Cavallaro  and the government designed to discipline them for



            their   failure  to  file  the  affidavit  ordered  by  Judge



            Harrington.    The  court's  order  denying  the government's



            motions for  dismissal of Cavallaro as a  party defendant and



            for  substitution of  the  United  States,  and  for  summary



            judgment, does  not contain either  the word  "default" or  a



            citation  to  Fed.  R.  Civ.  P. 55,  which  sets  forth  the



            procedure for issuing  a judgment by default.4   Nor was that



            procedure  followed.    Rogers did  not  move  for  a default



            judgment;  written  notice  of  an  application  for  default



            judgment  was not  served; and  no  hearing was  held on  the



            matter of a default judgment.  See Fed. R. Civ. P. 55(b).
                                           ___


____________________



            4.  Fed. R. Civ. P. 55(b)(2) states, in relevant part:



               [T]he party entitled to a judgment by default shall

               apply to the court therefor . . . .  If the party

               against whom judgment by default is sought has appeared

               in the action, the party . . . shall be served with

               written notice of the application for judgment at least

               3 days prior to the hearing on such application.



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Rogers argues  that we lack jurisdiction  to review



            the district court's remand order through a writ of mandamus.



            Just as  in Nasuti, however, the district  court's failure to
                        ______



            make an express finding that Cavallaro was acting outside the



            scope of  his employment  left the  Attorney General's  scope



            certification intact.  As we wrote:



                      [S]o  long  as   the  Attorney  General's

                      certificate  is validly  in effect,  [the

                      defendant] must  be deemed  conclusively,

                      for removal purposes, to have been acting

                      within the scope  of his employment,  and
                                                            ___

                      is thus absolutely immune from any  civil
                      _________________________________________

                      action or  proceeding for  money damages.
                      ________________________________________

                      The   district   court's   current  order

                      remanding   to   the  state   court   is,

                      therefore,  totally  unauthorized,  being

                      contrary to  Congress's mandate  that the

                      Attorney General's scope certification be

                      conclusive.



            Nasuti,  906 F.2d at 809-10 (footnote omitted).  Accordingly,
            ______



            mandamus is  appropriate in  this case as  it was  in Nasuti.
                                                                  ______



            "At least where, as here, remand was  on grounds inextricably



            mixed  with the  scope of  employment issue, and  was plainly



            barred by  the scope  certification, we  believe mandamus  is



            appropriate . . . ."  Id. at 812 n.15.5
                                  ___


____________________



            5.  The district court's order may also be reviewable on

            direct appeal.  See Nasuti, 906 F.2d at 812 n.15; Flohr v.
                            ___ ______                        _____

            Mackovjak, 84 F.3d 386, 389 (11th Cir. 1996); Kimbro v.
            _________                                     ______

            Velten, 30 F.3d 1501, 1503 (D.C. Cir. 1994), cert. denied,
            ______                                       ____________

            115 S. Ct. 2584 (1995); Jamison v. Wiley, 14 F.3d 222, 233
                                    _______    _____

            (4th cir. 1994); Aliota v. Graham, 984 F.2d 1350, 1353 (3d
                             ______    ______

            Cir.), cert. denied, 510 U.S. 817 (1993); Mitchell v.
                   ____________                       ________

            Carlson, 896 F.2d 128, 132-33 (5th Cir. 1990).
            _______



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                                          12



We  therefore  vacate  the district  court's  order



            denying the government's motions for substitution and summary



            judgment and remanding the case to state court.  We remand to



            the district court for an express determination as to whether



            Cavallaro was acting  within the scope of his  duties when he



            allegedly  injured Rogers.   Just  as in  Nasuti, "As  we are
                                                      ______



            confident that the district court and the parties will comply



            with our orders  in this regard, we  see no need to  issue an



            actual writ of mandamus at this time."  Id. at 814.
                                                    ___



                      Vacated and remanded.
                      ____________________


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