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Gutierrez de Martinez v. Lamagno

June 14, 1995

KATIA GUTIERREZ DE MARTINEZ, EDUARDO MARTINEZ PUCCINI AND HENNY MARTINEZ DE PAPAIANI, PETITIONERS

v.

DIRK A. LAMAGNO ET AL.



SYLLABUS BY THE COURT

Certiorari to the United States Court of Appeals for the Fourth Circuit.

No. 94-167.

Argued March 22, 1995

Decided June 14, 1995

Invoking the federal court's jurisdiction based on diversity of citizenship, petitioners alleged in their complaint that they had suffered physical injuries and property damage as a result of an accident in Colombia caused by the negligence of respondent Lamagno, a federal employee. The United States Attorney, acting pursuant to the statute commonly known as the Westfall Act, 28 U. S. C. Section(s) 2679(d)(1), certified on behalf of the Attorney General that Lamagno was acting within the scope of his employment at the time of the episode. Ordinarily, upon such certification, the employee is dismissed from the action, the United States is substituted as defendant, and the case proceeds under the Federal Tort Claims Act (FTCA). But in this case, substitution would cause the action's demise: petitioners' claims arose abroad, and thus fell within an exception to the FTCA's waiver of the United States' sovereign immunity. And the United States' immunity would afford petitioners no legal ground to bring Lamagno back into the action. See United States v. Smith, 499 U. S. 160. Endeavoring to redeem their lawsuit, petitioners sought court review of the Attorney General's scope-of-employment certification, for if Lamagno was acting outside the scope of his employment, the action could proceed against him. However, the District Court held the certification unreviewable, substituted the United States for Lamagno, and dismissed the suit. The Fourth Circuit affirmed.

Held: The judgment is reversed, and the case is remanded. 23 F. 3d 402, reversed and remanded.

Justice Ginsburg delivered the opinion of the Court with respect to Parts I, II, and III, concluding that the Attorney General's scope-of-employment certification is reviewable in court. Pp. 5-17.

(a) As shown by the division in the lower courts and in this case, the Westfall Act is open to divergent interpretation on the question at issue. Two considerations weigh heavily in the Court's analysis. First, the Attorney General herself urges review, mindful that in cases of the kind petitioners present, the incentive of her delegate to certify is marked. Second, when a Government official's determination of a fact or circumstance-for example, ``scope of employment''-is dispositive of a court controversy, federal judges traditionally proceed from the strong presumption that Congress intends judicial review. Review will not be cut off absent persuasive reason to believe that Congress so intended. No such reason is discernible here. Pp. 5-6.

(b) Congress, when it composed the Westfall Act, legislated against a backdrop of judicial review: courts routinely reviewed the local U. S. Attorney's scope-of-employment certification under the Act's statutory predecessor. The plain purpose of the Westfall Act was to override Westfall v. Erwin, 484 U. S. 292, which had added a ``discretionary function'' requirement, discrete from the scope-of-employment test, as a criterion for a federal officer's personal immunity. Although Congress thus wanted the employee's personal immunity to turn solely on the critical scope-of-employment inquiry, nothing tied to the Act's purpose shows an intent to commit that inquiry to the unreviewable judgment of the Attorney General or her delegate. Pp. 6-8.

(c) Construction of the Westfall Act as Lamagno urges-to deny to federal courts authority to review the Attorney General's scope-of-employment certification-would oblige this Court to attribute to Congress two highly anomalous commands. First, the Court would have to accept that, whenever the case falls within an exception to the FTCA, Congress has authorized the Attorney General to sit as an unreviewable judge in her own cause-able to block petitioners' way to a tort action in court, at no cost to the federal treasury, while avoiding litigation in which the United States has no incentive to engage, and incidentally enhancing the morale-or at least sparing the purse-of federal employees. This conspicuously self-serving interpretation runs counter to the fundamental principle that no one should be a judge in his own cause, and has been disavowed by the United States. Pp. 8-11.

(d) Second, and at least equally perplexing, Lamagno's proposed reading would cast Article III judges in the role of petty functionaries, persons required to rubber-stamp the decision of a scarcely disinterested executive officer, but stripped of capacity to evaluate independently whether that decision is correct. This strange course becomes all the more surreal when one adds to the scene the absence of any obligation on the part of the Attorney General's delegate to conduct proceedings, to give the plaintiff an opportunity to speak to the scope-of-employment question, to give notice that she is considering the question, or to give any explanation for her action. This Court resists ascribing to Congress an intention to place courts in the untenable position of having automatically to enter judgments pursuant to decisions they have no authority to evaluate. Pp. 11-12.

(e) The Westfall Act's language is far from clear. Section 2679(d)(2) provides for removal of the case from state to federal court and for substitution of the United States as defendant upon the Attorney General's certification. Section 2679(d)(2) states explicitly that ``certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.'' (Emphasis added.) Notably, Section(s) 2679(d)(2) contains no such statement with regard to substitution. The Section(s) 2679(d)(2) prescription thus tends in favor of judicial review. Counseling against review, however, is the commanding force of the word ``shall'': ``Upon certification by the Attorney General . . . , any civil action or proceeding . . . shall be deemed an action against the United States . . . , and the United States shall be substituted as the party defendant.'' Section(s) 2679(d)(1) (emphasis added). As the statutory language is reasonably susceptible to divergent interpretations, the Court adopts the reading that accords with the presumption favoring judicial review and the tradition of court review of scope certifications, while avoiding the anomalies that attend foreclosure of review. Pp. 12-17.

Ginsburg, J., delivered the opinion of the Court with respect to Parts I, II, and III, in which Stevens, O'Connor, Kennedy, and Breyer, JJ., joined, and an opinion with respect to Part IV, in which Stevens, Kennedy, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment. Souter, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit.

Justice Ginsburg delivered the opinion of the Court, except as to Part IV.

When a federal employee is sued for a wrongful or negligent act, the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act) empowers the Attorney General to certify that the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . ." 28 U. S. C. Section(s) 2679(d)(1). Upon certification, the employee is dismissed from the action and the United States is substituted as defendant. The case then falls under the governance of the Federal Tort Claims Act (FTCA), ch. 753, 60 Stat. 812, 842. Generally, such cases unfold much as cases do against other employers who concede respondeat superior liability. If, however, an exception to the FTCA shields the United States from suit, the plaintiff may be left without a tort action against any party.

This case is illustrative.

The Attorney General certified that an allegedly negligent employee "was acting within the scope of his . . . employment" at the time of the episode in suit. Once brought into the case as a defendant, however, the United States asserted immunity, because the incident giving rise to the claim occurred abroad and the FTCA excepts "[a]ny claim arising in a foreign country." 28 U. S. C. Section(s) 2680(k). Endeavoring to redeem their lawsuit, plaintiffs (petitioners here) sought court review of the Attorney General's scope-of-employment certification, for if the employee was acting outside the scope of his employment, the plaintiffs' tort action could proceed against him. The lower courts held the certification unreviewable. We reverse that determination and hold that the scope-of-employment certification is reviewable in court.

I.

Shortly before midnight on January 18, 1991, in Barranquilla, Colombia, a car driven by respondent Dirk A. Lamagno, a special agent of the United States Drug Enforcement Administration (DEA), collided with petitioners' car. Petitioners, who are citizens of Colombia, allege that Lamagno was intoxicated and that his passenger, an unidentified woman, was not a federal employee.

Informed that diplomatic immunity shielded Lamagno from suit in Colombia, petitioners filed a diversity action against him in the United States District Court for the Eastern District of Virginia, the district where Lamagno resided. Alleging that Lamagno's negligent driving caused the accident, petitioners sought compensation for physical injuries and property damage. *fn1 In response, the local United States Attorney, acting pursuant to the Westfall Act, certified on behalf of the Attorney General that Lamagno was acting within the scope of his employment at the time of the accident. The certification, as is customary, stated no reasons for the U. S. Attorney's scope-of-employment determination. *fn2

In the Westfall Act, Congress instructed:

"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 out 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 under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant." Section(s) 2679(d)(1).

Thus, absent judicial review and court rejection of the certification, Lamagno would be released from the litigation; furthermore, he could not again be pursued in any damages action arising from the "same subject matter." Section(s) 2679(b)(1). Replacing Lamagno, the United States would become sole defendant.

Ordinarily, scope-of-employment certifications occasion no contest. While the certification relieves the employee of responsibility, plaintiffs will confront instead a financially reliable defendant. But in this case, substitution of the United States would cause the demise of the action: petitioners' claims "ar[ose] in a foreign country," FTCA, 28 U. S. C. Section(s) 2680(k), and thus fell within an exception to the FTCA's waiver of the United States' sovereign immunity. See Section(s) 2679(d)(4) (upon certification, the action "shall proceed in the same manner as any action against the United States . . . and shall be subject to the limitations and exceptions applicable ...


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