Osborn v. Haley - Oral Argument

Argument of Eric Grant

Chief Justice Roberts: We'll hear argument first this morning in Osborn v. Haley.

Mr. Grant.

Mr. Grant: Mr. Chief Justice, and may it please the Court:

The court of appeals misinterpreted the Westfall Act in a way that unfairly deprives tort plaintiffs of the most basic procedural protections routinely afforded in both Federal and State courts.

That misinterpretation cannot be reconciled with the text and history of the statute, the nature and operation of official immunity or the jurisdictional limitations of article III.

Accordingly, the judgment of the court of appeals should be reversed and this State law case should be remanded to the State courts where it rightfully belongs.

In the alternative, the court of appeals judgment should be vacated for lack of appellate jurisdiction.

Prior to the Westfall Act, courts considered whether, assuming the alleged acts occurred, the Federal employee was acting within the scope of his employment.

In Westfall v. Erwin, this Court added the additional requirement that the acts be undertaken with a discretionary function, but invited Congress to address the issue.

In responding with the Westfall Act, Congress did not change the basic rule that scope of employment sets the line for immunity.

Indeed, Congress confirmed that rule.

In particular, Congress gave no hint that it was radically rewriting the rules to direct Federal district courts to determine the merits of wholly State law claims in some sort of unprecedented summary proceeding.

Justice Ginsburg: Why is it a wholly State law claim if the principal matter is whether this Federal employee is immune from suit?

That's the threshold question that has to be answered.

It's determined wholly by Federal law, so you must get through that Federal law gateway before you can go any place else in the suit.

Mr. Grant: Your Honor, that is true in perhaps a majority of Westfall Act cases, but in cases like this and a significant and recurring subset of cases there is no Federal law question because scope of employment simply is not at issue.

What the Government does in those subset of cases is merely to assert the defense of he didn't do it or it never happened.

Justice Ginsburg: But that... it's not it never happened as though the Federal employee was off in Hong Kong.

He was there on the premises.

He is claiming that whatever he did was within the scope of his authority.

It seems like it's a question of phraseology that you're dealing with.

Mr. Grant: With respect, Your Honor, that is not the case, certainly in this case and in others.

The Government has conceded that if Respondent Barry Haley acted as alleged in the complaint he was acting outside the course and scope of his Federal employment.

Justice Kennedy: But I think Justice Ginsburg's point, and it concerns me as well, is that the Government is entitled to say that during the time the event occurred, i.e., the firing, he was on duty and he refrained from committing any unlawful act.

Mr. Grant: Your Honor, there may be cases where even if the acts occurred, they were within the course and scope of the Federal employment.

But in the case like this, as in Wood versus United States, as in Melo v. Hafer in the Third Circuit, the Government concedes, because the law and the facts require the Government and the employee to concede, that if the alleged acts took place they were necessarily outside the scope of employment.

Chief Justice Roberts: But the actual statutory language refers to acting within the scope of employment at the time of the incident, and so a certification based on the view that at the time of the alleged incident, he was acting entirely within his scope would seem to be within the language of the statute.

Mr. Grant: Your Honor, on its face the certification in this case, as in others, tracks the statutory language.

But when the Government's position was examined in the district court, it became apparent that the Government's essential defense, in fact supported by two declarations, including the declaration of Respondent Haley, was that he simply did not do the acts alleged.

Justice Kennedy: Well, but the question is what the district court should examine, and the statute talks about the incident out of which the claim arose.

So that necessarily requires the Government to look at the complaint, see the incident out of which this claim arises, whether or not the claim is true, and to certify it.

Mr. Grant: Your Honor--

Justice Kennedy: "Out of which the claim arose. "

it seems to me is of some importance.

But the dissenting judges in the First Circuit case, Wood, didn't think it was important.

I'm not sure they were right about that.

Mr. Grant: --Your Honor, this Court has consistently made a distinction between immunity and the merits.

Starting in cases like Mitchell versus Forsyth in 1985 and continuing through cases like Richardson versus McKnight in 1997, the Court has consistently recognized that immunity is different from a defense on the merits.

It's different from a defense of he didn't do it or it never happened.

And I would say that, although the time of the incident is important, that is only one of several factors certainly under Kentucky law in determining whether something happened within the course and scope of employment.

Chief Justice Roberts: Well how is it... I mean, that line is awfully difficult to draw.

You assert he didn't do it versus something else.

But it's easy, let's say it's an assault case and the person says, you hit me, and the person says, well, it was entirely an accident; I was gesticulating with my hand so it wasn't, wouldn't have met the requirements for the tort.

Now, are they denying the incident in that case?

Mr. Grant: Your Honor, the Court in Wood v. United States took account of the possibilities of artful pleading and would allow the Government to challenge the characterization of the incident.

Chief Justice Roberts: But it's not just a characterization.

If it's something that has, for example, a mental element, the plaintiff can assert, you did that with malice aforethought and the defendant can say, no, I didn't.

Now, is that a characterization or is that a denial of the incident?

Mr. Grant: I believe that's a characterization, Your Honor.

Justice Souter: Why isn't it the denial of an element of the claim?

There's no recovery for assault if the mental element is what the Chief Justice just described in his hypo, and if in fact that is an element of the claim how do you draw a distinction between that and the existence or nonexistence of any act at all.

Mr. Grant: There are, Your Honor, certain cases in which--

Justice Souter: Well, I'm not asking about certain cases.

I just want to know analytically how you do it or how you think we're supposed to do it.

Mr. Grant: --There are cases in which the merits and the immunity defense overlap and in those cases the district courts are fully empowered to make factual findings.

Justice Souter: Well, in this case the immunity defense is, number one, as you said, the Government forthrightly said at the beginning right in terms of the statute that he was acting within the scope of his employment.

Secondarily, as you said, the Government in effect elaborated on that and said the reason he was not acting outside the scope of his employment is that these acts which would have been outside scope didn't happen.

Why is that any different from the claim in the Chief Justice's hypo that there was no intent to harm?

Mr. Grant: Your Honor, because a claim of, that the alleged act did not occur, that he didn't do it, is not a claim of immunity.

Again, this--

Justice Souter: It's a claim upon which the immunity depends.

The immunity is claimed... the immunity claimed here is that at the time in question he was not acting outside the scope of his employment.

The reason he was not acting outside the scope was that he didn't do what they say he did.

Mr. Grant: --Your Honor, I'm sorry if I have the same answer to the question, but again, this Court's jurisprudence has consistently distinguished between defenses, so to speak, on the merits, a claim that the alleged act did not occur, that one of the elements of the State law claim is not met.

Justice Alito: In this case, if Mr. Haley had said, I had some conversations with the private employer and the plaintiff's name was mentioned during the conversations, but I never told them to discharge her, would this, would that be something... would your argument apply there?

Mr. Grant: It would apply, Your Honor, if, if that factual determination were relevant to scope of employment under the applicable law, namely the agency law of Kentucky.

Justice Ginsburg: Well, is it?

I mean, that's... the problem that I have with your argument, Mr. Grant, is that in life things are often not, it happened or it didn't happen.

There is a middle ground, which is this officer is saying, I was there at the relevant time or place and when I was there everything that I did was within the scope of my employment, I didn't do anything that was outside the scope of my employment.

Mr. Grant: There are cases in which there is a middle ground, Your Honor.

But this case is not one of them, and there is certainly a distinct and recurring subset of cases, like Wood and Melo and Kimbro, where it is conceded on the facts and the law that if the actions occurred, they occurred outside the scope of employment.

Justice Scalia: I don't understand why anyone would want to come out the way you urge us to come out.

Why would it make any sense to give a Federal employee the benefit of trial in Federal court when he committed the act, and then you debate about whether it was, whether there was liability or not, and yet deprive him of the benefit of a Federal court when he denies that he did anything at all?

Why would you want one set of cases to remain in the State court and the other set of cases to go to Federal court?

Mr. Grant: Your Honor, it's Congress that set the line at scope of employment.

Justice Scalia: Well, I mean, that's what we're debating, whether the line is there or not, and as you've seen from the discussion, there is at least some ambiguity in it.

There being ambiguity, why should we find a line that doesn't make any sense?

Mr. Grant: Well, Your Honor, I believe that line does make sense because if the Government's view is adopted and the view of the majority of the court of appeals, the merits of the wholly State law claim will be resolved in Federal court and resolved in a procedural context that denies a tort plaintiff the right to discovery, that denies the tort plaintiff a right to the normal evidentiary presumptions on a motion to dismiss or motion for summary judgment, and denies that tort plaintiff the right to a jury trial.

Justice Scalia: But that can happen when in fact the certification of the Attorney General turns out to be wrong and there isn't any immunity.

Still, the whole thing is going to be tried in Federal court.

Mr. Grant: Your Honor, in that situation, the merits will at least be tried under the normal provisions for discovery and evidentiary presumptions, even if it does ultimately proceed against the United States.

Justice Stevens: But Mr. Grant, I'm a little puzzled.

Why is the discovery in the Federal system any less valuable in the State system?

Mr. Grant: Because what the Government advocates here, as I think most starkly illustrated by the Third Circuit's decision in Melo v. Hafer is some sort of summary proceeding that takes place before the normal processes of Federal litigation.

After all, it's the Government's position that this employee is immune.

Justice Stevens: Isn't that only summary for the purpose of deciding whether the removal was proper?

Mr. Grant: It's for the purpose of deciding scope of employment, but the Government's interpretation of that phrase encompasses essentially the merits of the case.

Chief Justice Roberts: It's not for deciding whether removal... I thought the statute says that the Attorney General's certification is conclusive with respect to removal.

Mr. Grant: It is conclusive, Your Honor, in those cases that truly do implicate scope of employment.

In this case, by contrast, the certification was essentially to raise the he didn't do it or it never happened defense.

Chief Justice Roberts: Well, what does it mean to say that the certification is conclusive with respect to scope of employment for purposes of removal if it doesn't mean that it's conclusive, if you're going to have judicial review that is going to address the question of removal as opposed to the validity of the certification on the merits?

Mr. Grant: Your Honor, it's conclusive where it satisfies the definition in the statute.

What is conclusive in the final sentence of paragraph (d)(2) of section 2679 is this certification, and this certification of course is the one referred to earlier in that paragraph.

Chief Justice Roberts: So you're saying it's only conclusive if it's right?

Mr. Grant: No, Your Honor.

It's only, it can be conclusive right or wrong, but it's only conclusive if it satisfies the statutory definition, being about scope of employment, not about the merits.

In this case, for example, there never will be, never could be a true scope of employment determination, the Government having conceded it.

Justice Ginsburg: Suppose, Mr. Grant, that the district court had said, I'm going to deny the substitution of the United States as the defendant, but I realize that this is a debatable question, so I'm not going to order a remand until the defendant and the United States have had a chance to challenge my initial ruling that I deny the substitution of the United States.

Suppose that it had happened that way?

Would you have any right to get back in the State court?

Wouldn't that properly go to a court of appeals?

Mr. Grant: Your Honor, that, that could certainly go to the court of appeals under the discretionary appeal procedure in section 1292(b), or perhaps by mandamus.

Justice Ginsburg: Well, suppose that happened, and then the court of appeals said the United States should have been substituted?

Mr. Grant: That would... that would on its merits restrict the district court from remanding, but of course in this case, the district court did enter an order of remand based on its interpretation of section 2679.

Justice Alito: But your position is that the Attorney General's certification is conclusive... is not conclusive in those situations in which the Attorney General doesn't draw the line properly between an event denying answer and an event characterizing answer?

Whenever the Attorney General is wrong on that very nuanced decision in some instances, then the Attorney General's certification is not conclusive?

Mr. Grant: The short answer is yes, Your Honor.

The Attorney General's certification is not conclusive where it does not satisfy the statutory definition, where it is not a certification that truly implicates scope of employment.

We have tried to draw the distinction between an unauthorized or improper certification, one that doesn't meet the statutory definition, and a certification as, as the Court in Aliota versus Graham said was wrong or erroneous on its merits, so to speak, on the facts, on the law, of State agency law.

Justice Scalia: Mr. Grant, these items we've been discussing are perhaps the more important features of the case.

But your argument in your brief didn't begin with those.

It began with the assertion that there is no jurisdiction to review the district court's remand order at all.

I take it you're not abandoning that, are you?

Mr. Grant: Absolutely not, Your Honor.

Justice Scalia: Then why was it first in your brief and not first in your argument?

Mr. Grant: It was first in my brief because this Court ordered me to brief and address it, and I was happy to do so.

The court of appeals in fact did lack jurisdiction in this case.

This Court has made clear as recently as the Kircher opinion last term that section 1447(d) means what it says.

And in this case, the district court entered an order remanding the case to the State court from which it was removed, and 1447(d), of course, bars review of that order by appeal or otherwise.

Chief Justice Roberts: There is at least considerable tension with 1447(d), though, and 2679(d)(2), in that that specifically says that for purposes of removal, the Attorney General's certification is conclusive.

And it doesn't, if you look at 2679, it suggests, you'd think that case would proceed in Federal court rather than be immediately remanded without the availability of review.

Mr. Grant: Your Honor, on the merits of the interpretation of 2679(d)(2), we tried to explain why conclusive does not operate in a case like this, but I think the important point for jurisdiction is that this Court has consistently said that even if a district court misinterprets a jurisdictional statute, that review is nonetheless barred by section 1447(d).

Chief Justice Roberts: This is a different type of jurisdictional statute in that there is concern on Congress's part here to provide a Federal forum for the adjudication of whether something is within the scope of a Federal employee's duty.

It's not inconceivable, but it would seem illogical to specifically provide for review of that determination but then have that review take place in State court rather than Federal court.

Mr. Grant: Well, Your Honor, Congress obviously knows how to make exceptions to section 1447(d).

I believe it was footnote eight of this Court's opinion in Kircher that cited a number of examples.

The Government in its brief relied on 12 U.S.C. section 1441(a), and that statute which involved the Resolution Trust Corporation specifically refers to appeal and remand.

And so what this Court has said is, the bar of section 1447(d), which has been around for more than a century, is not to be ignored unless there is a clear statutory command that makes an exception.

Justice Alito: But here not only, not only does it say that the Attorney General's certification is conclusive for purposes of removal, but there is no mention about remand in relation to a case that is removed after the Attorney General's certification.

Whereas by contrast, where the Attorney General doesn't certify and the case is removed, the statute does address the issue of remand.

So if you put those two things together, isn't it perfectly clear that Congress did not want these cases that are removed on the Attorney General's certification to be remanded?

Mr. Grant: No, Your Honor.

The authority to remand in this case proceeds from subsection C of section 1447.

As this Court has said in various cases, including the International Primate Protection League case in 1991, when a Federal district court lacks subject matter jurisdiction because a case, a party attempting to remove has done so without authority to do so, section 1447(c) obliges a remand.

Justice Scalia: I would have thought your answer would have been even if, even if the remand was improper, even if it is the case that, what is it, (d)(2) envisions that the suit remain in the Federal court.

Nonetheless, if there is an erroneous remand, it is still a remand that is covered by the prohibition of review.

I mean, we said in other cases that even when the remand is wrong, the remand is not reviewable.

Mr. Grant: That is my answer, Your Honor.

Section (d)(2) goes, gives direction to district courts, but section 1447(d) gives direction to appellate courts.

Justice Breyer: If that's your answer, can I go back to the other main issue for a second?

I would have thought that your case, unfortunately for you in my mind, is the classic case where there should be jurisdiction because the AG is supposed to say look, I don't think anything happened, okay?

So he was doing his job all day.

But if something did happen, I'll tell you what, it was within the scope of his employment.

And apparently, that's just what they did say here.

And then it got mixed up in the courts below.

In other words, if he made some phone calls and even if he mentioned the employee, even if he said something improper, it was within the scope of his employment, which is just what they said.

So because of that, it seems to me this makes a lot of complexity out of nothing.

Now you explain what your answer is.

Mr. Grant: Your Honor, with respect, I believe the Attorney General said just the opposite, that--

Justice Breyer: In the district court he didn't say, if something happened here, it was in the scope of his employment?

I thought he had.

Maybe he hadn't.

I thought he had, but I'll ask him that.

Mr. Grant: --Your Honor--

Justice Breyer: In the district court I thought he said that.

Mr. Grant: --The Attorney General's submission, the Government's submission in the district court was that nothing happened.

Justice Breyer: Well, it was there first, but you can argue in the defense alternative, I think nothing happened.

But if the plaintiff can convince a jury otherwise, fine, but then what they can convince him of is within the scope of his employment.

Now did that happen in the district court, that they said something like that or not?

Mr. Grant: Your Honor, the Government did make what it called an alternative argument.

Justice Breyer: Well, why can't they do that, which is just what Wood says they can do, if anybody, you know, thinks that's valid?

But the... what's the problem then?

Because I would have thought that the reason this case appears difficult is because yours is a case where the AG should be able to come in and remove it.

Mr. Grant: The district court, the very same district court that the Government so, so desperately wants to review the facts of this case, said that given Mr. Haley's declaration under penalty of perjury, it would not accept that alternative.

Justice Breyer: But it's wrong in that, isn't it?

Mr. Grant: Well, the Government did not appeal that point in the court of appeals, and in fact--

Justice Breyer: I mean, the Wood issue was the issue of where if anything happened, of course it's outside the scope.

It's like one employee shoots another, you know.

There is nothing to do with scope of employment there, it's plainly outside.

And of course, this act, in my view then, then, was that this is not an act that allows the AG to defend that kind of thing.

But if it's arguable at least that something happened, if it happened at all it was within the scope of employment, the AG can defend it.

Mr. Grant: --Your Honor, the Government--

Justice Breyer: What's the problem with... there should be a problem with what I say from your point of view, so--

Mr. Grant: --I think the problem is in the record, Your Honor, and the Government's brief at the, at the petition stage on page 14 in note five quotes its own appellate brief in the court of appeals, and that brief says the memorandum of understanding between the Forest Service and the private respondent showed that if Haley did cause the contractor to fire Osborn, he acted outside the scope of his employment.

And the court of appeals quite logically took that--

Justice Breyer: --So you're saying they have abandoned the argument?

Mr. Grant: --They have Your Honor and the court of appeals recognized that on page 3a of the petition appendix.

If the Court has no further questions I'd like to reserve the balance of my time.

Argument of Douglas Hallward-Driemeier

Chief Justice Roberts: Thank you, Mr. Grant.

Mr. Hallward-Driemeier.

Mr. Hallward-Driemeier: Mr. Chief Justice and may it please the Court:

In the Westfall Act Congress provided an absolute immunity for Federal employees for acts taken within the scope of their employment and it went further and provided that when the Attorney General certifies that the employee was acting within the scope of his employment at the time of the incident out of which the claim arose, that that issue of Federal immunity is to be decided by the Federal court.

It is the Attorney General's assertion of this Federal defense of immunity that satisfies article III just as the employee's own assertion of immunity satisfies article III under the Federal Officer Removal statute and just as a, in other circumstances a plaintiff's assertion of a claim under Federal law satisfies article III.

Chief Justice Roberts: So what if the Attorney General certifies and removes a case in a criminal case, a case clearly not within the statute?

What happens then?

Mr. Hallward-Driemeier: Well, I think that the, the... that would probably be a defect in removal procedure rather than a jurisdictional defect but even if it is--

Chief Justice Roberts: No, no, on the procedure, he follows the procedure meticulously; it's just wrong.

It's a criminal case.

The statute says he can do it in a civil case.

On the other hand the statute also says that his certification is conclusive.

Mr. Hallward-Driemeier: --Well, Your Honor even if that is a case that would be removed without jurisdiction, that case is quite different from this case because this case--

Chief Justice Roberts: Yes, this one is a civil one and that's a criminal, but I'm just trying to understand how broad your argument that this is not subject to further review goes.

Mr. Hallward-Driemeier: --Well, the issue that is not subject to further review for purposes of jurisdiction is the Attorney General's certification that the employee was acting within scope.

The statute doesn't provide that the Attorney General's certification that it is a civil action is conclusive but only the Attorney General's certification that the employee was acting within scope is conclusive for purposes of removal.

That's the essential element of the Federal defense and that's what satisfies article III jurisdiction.

And in fact, this Court in the Willingham case recognized that an employee could assert a claim of Federal immunity even though he was also at the same time denying that he caused any harm to the plaintiff.

Chief Justice Roberts: Well I thought your analogy to Willingham was a strong one until you go back and read the statute.

Willingham is a very different statutory predicate.

It's acting under color of law.

This is much more specific.

At the time of the incident, he was acting within his scope, so I'm not sure the analogy holds up.

Mr. Hallward-Driemeier: Well if anything the language of the Westfall Act is broader because as Your Honor emphasized earlier, the statute, the Westfall act provides that the Attorney General is to certify that at the time of the incident out of which the claim arose the employee was acting within the scope.

So arguably the necessary question is what was the employee doing at the time.

The Federal Officer Removal statute is somewhat narrower because it requires that the claim arise out of the, the acts taken under color of office.

Chief Justice Roberts: But yet that would be a good argument if the statute said the Attorney General can certify that the employee did not do anything outside the scope of his employment, but it's phrased in the affirmative.

He has to certify that he was acting within the scope of his employment.

Mr. Hallward-Driemeier: That's right.

And that's what the Attorney General did here, certified that Mr. Haley was acting within the scope of his employment at the time of the incident out of which the claim arose.

And as several--

Justice Breyer: So that's the issue then.

And what I... is my, my question for you is this, let's imagine not this case, which as I said I think is too complicated and probably is one that the Government should be able to defend, but suppose it's an assault like Wood's, a sexual assault and there is absolutely no doubt that if it happened it was outside the scope of employment, everybody concedes it but Government.

And the Government's position is, nothing happened.

All right?

Nothing happened.

You say Government, would you like to argue that if something happened, and they may be able to prove something, something like a movement?

No, we agree there was nothing like that, we agree nothing like that happened; we are not going to defend on any scope of employment ground.

All we are arguing is that ordinary work went on and that was within the scope of employment.

Now, does this act cover it or not?

Your view is yes and you read, you know I thought it was a close question but you read what I thought the other way in Wood, though it was obviously a close question.

So what is your basic response to that?

Mr. Hallward-Driemeier: --You are correct that our view is that yes, the Attorney General can certify in that case.

The issue is really one along a continuum as I think Your Honor has recognized.

Of on, on the one extreme, one might say that the Attorney General must accept all of the plaintiff's allegations as true.

And, and I don't think that anybody here is arguing that.

Justice Ginsburg: That was the position of the district court, though, wasn't it?

Mr. Hallward-Driemeier: That was the position of the district court, although I don't think the Petitioner is now advocating that view.

And that view would certainly be inconsistent; it would create the anomaly that the Attorney General's authority to certify scope and to assert the immunity on behalf of the employee would be narrower than the employee's own authority to assert the immunity, because again going back to the Willingham case, the Court never asked whether it would be within the scope of employment for the prison officials to have maliciously tortured the prisoner; rather the defense was we didn't harm the prisoner but anything that happened between us and the prisoner happened within the scope of our employment.

And so the Attorney General's authority to certify has to be at least as broad as that in our view.

Justice Breyer: The basic point I think in Wood is this.

I'm the district judge.

And the Government, you come in and argue in the alternative.

Nothing happened, but if it did happen it was within the scope of employment and they say there is no possibility.

You'd say, plaintiff, I want to know here if there is a reasonable chance, maybe any chance, that a jury could find that something went on here that was within the scope of employment that shouldn't have.

And if the answer to that question is no, the defendant wins either because of summary judgment or because... no, sorry.

I've gotten lost in what I said.

Do you follow it?

Mr. Hallward-Driemeier: The... I think I do.

In our view--

Justice Breyer: All right.

Good, I'm glad that someone did.

[Laughter]

Mr. Hallward-Driemeier: --In our view, it would be anomalous that the, that the more innocent employee would be deprived of the benefits of the Westfall Act, and if I could use a more simple--

Justice Breyer: I was talking really about practicality of it.

I don't think you can give me a case that is going to be hard for me as a district judge to decide because I'm going to ask you, the Government, to tell me if anything went on here that might have been within the scope of employment.

And I look at what you're saying; if you say no, if you say no you can't defend it.

If you say yes, you can defend it and that's going to be the end of it as long as your view is based on a reasonable reading of the record.

Mr. Hallward-Driemeier: --Well, I don't think that that could be the end of it.

As Justice Ginsburg pointed out, reality is much murkier than the black or white and even in the hypothetical that Your Honor poses, it is quite possible that as the case progresses, the plaintiff is going to attempt to introduce evidence that is much more ambiguous as to whether the employee was acting within the scope or not.

If I could use a simple example of assault.

If the, if a supervisor is dressing down her employee for, for inadequate work, the employee then sues the supervisor alleging that she assaulted her, shaking her fist right under her nose, threatening harm to her.

Even if that would be outside the scope of employment, the employee might say... the supervisor rather might say, I never raised my hand at all.

I raised my voice certainly but I never raised my hand.

A third party witness may say well I saw the supervisor wag her finger at the employee but not in a threatening fashion.

Now--

Justice Breyer: And as long as a jury could find that there is a view of the record such that the plaintiff might prove something wrong that it was within the scope of employment, such as finger wagging that hits her forehead, for example, you can defend it.

What's the problem?

Mr. Hallward-Driemeier: --Well, if the employee--

Justice Breyer: The only problem is if you admit that you can't prove anything like that.

Mr. Hallward-Driemeier: --If the employee was acting within the scope of the employment when she wagged a finger, then a fortiori she was acting within the scope of her employment when she didn't raise her hand at all.

Justice Breyer: No, not a fortiori, for the reason that Congress wrote this statute not to give the defendant the right to call in the Government to defend him no matter what he did.

The reason that Congress wrote the statute was to repeal the Westfall case, which was a question of the scope of immunity, which was the question of the scope of Government responsibility to take away that limited determination in Westfall.

That was the only point.

Congress could have written a statute the way.

What's your response to that?

Mr. Hallward-Driemeier: But Congress made, established an absolute immunity where the employee was acting within the scope of employment, and Petitioner agrees that scope of employment is the essential question for immunity.

So if in my hypothetical the supervisor was acting within the scope of her employment when she dressed down, raising her voice but not raising her fist, her, her subordinate, then she is protected by the Westfall Act from a claim arising out of the context of that employment.

Chief Justice Roberts: But what happens in a case where the certification is clearly wrong?

I mean, you get into a fight with your neighbor.

It's got nothing to do with your employment at all but the Attorney General certifies that it does.

You know:

"They are always thinking about your cases. "

"You must have been thinking about it at the time. "

That certification goes into the district court.

The district court looks at it and says this is ridiculous, throws it out, then that State law assault case proceeds in Federal court?

Mr. Hallward-Driemeier: Your Honor, the Congress enacted the Westfall Act against the presumption of regularity of Federal officials and that is of course what this Court has often said as well, and so I don't think we should construe the statute on the presumption that the Attorney General would, would certify ridiculous cases.

Justice Ginsburg: Well what about the, Lamagno, where the question was, was the employee working within the scope of his employment or was he off on a frolic of his own?

I think that's the kind of question that the Chief Justice put to you.

The certification, if it were wrong, the Attorney General said what he was doing was within the scope of employment and turned out he was on a drunken binge with his friends and they got in his car and killed someone.

If that certification within the scope was wrong and instead he is on a frolic of his own, then the United States isn't substituted.

Mr. Hallward-Driemeier: That's right.

That would mean that the district court did not on the merits ultimately uphold the defense of immunity, but as the Court said in Mesa, the merits of the immunity defense have nothing whatsoever to do with the question of jurisdiction.

Justice Ginsburg: I thought that that case was about, was the certification reviewable?

Mr. Hallward-Driemeier: That's right.

Lamagno was about whether the certification was reviewable.

Your Honor is also correct about the facts of that case.

One of the points of dispute between the Government and the plaintiffs there was whether Mr. Lamagno was drunk at the time of the accident, and, and the Attorney General certified on his understanding that Mr. Lamagno was not drunk.

And that was upheld by the district court on remand after some discovery and summary judgment type litigation.

Justice Ginsburg: But the Court said that that could be reviewed.

Mr. Hallward-Driemeier: That's right.

It can be reviewed and the Attorney General's certification is not conclusive for purposes of the substitution.

Justice Ginsburg: Right.

Mr. Hallward-Driemeier: It is conclusive for purposes of the court's removal jurisdiction.

Justice Scalia: What does that mean?

Does that mean that if the district court finds that in fact the defendant was not acting within the scope of his employment, the United States is eliminated as the defendant and the individual employee is resubstituted?

Mr. Hallward-Driemeier: Yes, Your Honor.

That's what happened.

But, and in that--

Justice Scalia: Where, where does that come from?

Mr. Hallward-Driemeier: --Well, the procedure for what happens upon the district court's review is not spelled out in the Westfall Act, neither is the review itself in particular.

But the, the employee--

Justice Scalia: Maybe the United States should remain the party defendant and the United States should pay which would be the, you know, the price of the Attorney General's certification.

He should be careful what he certifies.

Mr. Hallward-Driemeier: --Well, the uniform view of the lower courts is that when the certification is overturned, the effect is to resubstitute the employee as the defendant and it proceeds in Federal court as a pendent claim.

The Attorney General's assertion of the defense of immunity which we presume to be colorable because we presume regularity by the Attorney General, confers article III jurisdiction on the courts, even though it may ultimately on the merits be rejected.

This Court held in the Carnegie-Mellon case that the district courts have discretion whether to exercise jurisdiction over pendent claims once the Federal question has been resolved.

If the courts have discretion to exercise that pendent jurisdiction, then certainly Congress can instruct them to exercise that--

Chief Justice Roberts: Well, they wouldn't have discretion in that case, though, because the statute says the Attorney General's certification is conclusive for purposes of removal.

Mr. Hallward-Driemeier: --That's right.

Congress has removed the discretion in this class of cases and says that the courts must retain jurisdiction.

Chief Justice Roberts: I thought maybe your answer, one alternative answer, would have been that you can't remand the case but you can still dismiss it.

Mr. Hallward-Driemeier: Well, the, perhaps, perhaps that's so.

Certainly Carnegie-Mellon--

Chief Justice Roberts: It would still be conclusive for purposes of removal, but it doesn't mean it's conclusive for purposes of subject matter jurisdiction.

Mr. Hallward-Driemeier: --By its text, the statute speaks to removal and that the Attorney General's certification is conclusive for purposes of removal.

But I think--

Justice Souter: Couldn't it be conclusive for purposes of removal jurisdiction, but still leave the district court with discretion to remand on the grounds that, although it had removal jurisdiction, in fact the premise of that removal jurisdiction was wrong, and it would therefore remand, in effect, because the only claim it had before it was the equivalent of a pendent claim.

Mr. Hallward-Driemeier: --But the... as the Court held in Carnegie-Mellon, a remand of pendent claims after the Federal issue has been resolved is not a remand for lack of subject matter jurisdiction within the meaning of 1447(c).

Rather, it is a discretionary remand under the doctrine of pendent jurisdiction, and so--

Justice Souter: In that case it would be reviewable.

Mr. Hallward-Driemeier: --And it would be reviewable.

That's why... that's one of the reasons why the district court's order here is reviewable, because it is not an order of remand authorized by 1447(c) because, first of all, Congress has instructed the courts that they are not to remand.

Justice Scalia: That's, that's what the district court said it was, though, isn't it?

Didn't it... wasn't the district court remanding for lack of jurisdiction?

Mr. Hallward-Driemeier: It is certainly true that the district court--

Justice Scalia: So you want us to review the, the assertion of the district court that it was remanding for, I mean that would mean every case would, would be reviewable.

Mr. Hallward-Driemeier: --No, Your Honor, because here the Court need not go beyond the face of the district court's order to understand what it was doing.

The court exercised jurisdiction over the Federal question that was properly brought before it by the Attorney General's certification and this Court's decision in Lamagno.

After resolving that, the district court said, having concluded that the United States is not a proper party to this case, the court must now determine whether or not it has jurisdiction, and it also said that the absence of the U.S. as a party to the case destroys the court's jurisdiction.

So it's evident that the court understood that it had jurisdiction and that it was a subsequent event that deprived it.

Justice Stevens: Let me go back to the Chief Justice's hypo a little earlier.

Could the district judge at that point dismiss the case without prejudice to refiling in the State court?

Mr. Hallward-Driemeier: I don't think that that would be consistent with Congress's intent.

The... in all of the Government--

Justice Stevens: It would be consistent with the court having jurisdiction to dispose of the case.

Mr. Hallward-Driemeier: --That is true.

But I think that the intent of Congress was the same as this Court, all the members of this Court, recognized in Lamagno.

In Lamagno, even the dissenters, the plurality, all acknowledged what Congress intended by the "conclusive for purposes of removal" language was to prevent the shuttling back and forth of the case.

Once it was removed, it was to stay in Federal court.

That was what Congress intended.

And one reason--

Justice Ginsburg: Then it's more than pendent jurisdiction, because pendent jurisdiction leaves it up to the Federal court to either retain the State claim or send it back.

So this is... what you're suggesting is something other than pendent jurisdiction.

Mr. Hallward-Driemeier: --That's right.

By pendent jurisdiction what, what I meant to convey was that it is within the Court's article III jurisdiction to exercise jurisdiction over the State law claims that were pendent to a Federal claim.

Under this Court's judicially developed doctrine of pendent jurisdiction, that is discretionary with the court.

But if it is discretionary with the court, then certainly Congress can mandate that the court exercise that jurisdiction and that it would be consistent with article III.

But another reason why Congress would have wanted the case to remain in Federal court even if the certification is overturned is, as we've alluded to before, the development of the case subsequent to the certification substitution decision may, may illustrate that the plaintiff's claim does indeed assert facts that were within the scope of employment.

The court would at the very--

Chief Justice Roberts: Well, the jurisdiction wouldn't depend on that.

Justice Ginsburg's point that there's more than pendent jurisdiction here I take it is because these are not separate State claims appended to what you thought was a Federal claim.

This is the same claim that you initially thought was a Federal claim and then it turned into a purely State law claim, and that may be analyzed quite differently for purposes of jurisdiction.

Mr. Hallward-Driemeier: --No.

The case is I think not distinguishable from removals under the Federal Officer Removal statute, where Congress has indicated that it is the Federal defense that confers jurisdiction rather than the Federal claim.

Then, the ultimate merits of the Federal defense are irrelevant to the jurisdictional issue.

And the Court--

Justice Souter: So you're saying there are two claims, one claim is raised by the defense, and if you look at that claim which is by definition Federal, then it's fair to look at the original State claim by analogy as a pendent claim?

Mr. Hallward-Driemeier: --Yes.

Justice Souter: Is that fair?

Mr. Hallward-Driemeier: Yes, Your Honor.

Justice Kennedy: What happens if the Attorney General doesn't certify and it goes to State court?

I take it one of the concerns we have here is that there will be a deprivation of jury trial if the certification is wrong and if it's in Federal court.

Suppose that there is a denial of certification.

Then under (d)(3)--

Mr. Hallward-Driemeier: (D)(3).

Justice Kennedy: --the employee can ask for a certification decision.

I take it that's a Federal law defense that the, or a Federal law point, that the State court must hear and so now we're back in State court?

Mr. Hallward-Driemeier: Yes.

Justice Kennedy: And we still don't have a jury trial and if that's so I'm not sure if that helps you or helps the Petitioner.

Mr. Hallward-Driemeier: Well, I think that Your Honor's point illustrates that this issue of Federal law is one that Congress has mandated be resolved at the outset by the judge, and if the employee petitions for certification over the Attorney General's objection the statute allows the Attorney General to remove the petition to Federal court and the statute states that the district court shall find and certify whether the employee was acting within the scope.

Justice Kennedy: But in my case I guess I don't think it ever gets to district court because there's no certification, but then the employee can ask the State court to have a bench trial on the scope of employment.

Am I right about that?

Mr. Hallward-Driemeier: He can, you are correct.

It is at the option of the Attorney General under (d)(3) to remove the case at that point so that the review of his noncertification happens in Federal court.

(D)(3), in stark contrast to (d)(2), provides that if the district court holds that the Attorney General was correct that the employee was not acting within the scope the case is to be remanded to State court.

So the presence of the remand--

Justice Kennedy: But my point is I suppose the Government can just say, we're not going to make the certification and we're not going to remove.

Mr. Hallward-Driemeier: --Yes.

Justice Kennedy: So then the State court still has to have the bench trial on the scope of employment.

Mr. Hallward-Driemeier: That's right.

Justice Kennedy: I'm not sure if that helps.

It seems to me that might be an argument for limiting the inquiry just so that we can avoid having bench trials in almost every case.

Mr. Hallward-Driemeier: The... I think what that illustrates is that Congress wanted the issue of immunity resolved at the outset of the case by the court.

And one reason that that is so essential under the Westfall Act FTCA scheme is that if the immunity... if the scope of employment issue is resolved in favor of the employee, that has many, many consequences, including that the United States is the proper defendant, exclusive jurisdiction lies in the Federal court, the case must be dismissed until an administrative claim is filed and that avenue is exhausted.

All of these procedural and substantive defenses come into play depending on how the scope of employment issue is resolved.

Justice Breyer: Right, but that's the strongest argument I thought the other way initially, that suppose the issue is whether he is on a frolic of his own.

That you resolve in a bench trial.

If the answer he was, okay, it stays in the Federal court anyway.

I understand that.

But if you're going to take your position whether, say, it's a sexual assault as it was in Wood and the question is well, was there a sexual assault or not, and if there was it's clearly outside of the scope of employment, well, then you're going to have all these things resolved in a bench trial and actually it's supposed to normally be before a jury, for example.

Justice Ginsburg: Is that so?

If the employee is resubstituted, it's going on now, the United States is not a party, just the Federal employee, but it's staying in Federal court under this pendent jurisdiction-like theory, wouldn't either party be entitled to a jury trial?

Mr. Hallward-Driemeier: Yes.

Yes, Your Honor.

I think Justice Breyer's question, though, had to do with the procedure at the certification review stage.

That is to be done by the district court sitting without jury and that's because under the statute the Attorney General's certification has the legal effect of making the United States the defendant.

The United States... the action shall be deemed an action against the United States and the United States shall be substituted, and that is true unless and until the certification is overturned.

And there is of course no Seventh Amendment right to jury trial against the United States.

Justice Scalia: Mr. Grant, could I come back for... I'm sorry.

I have the wrong counsel.

Mr. Hallward-Driemeier--

Mr. Hallward-Driemeier: I'll respond to anything, Your Honor.

Justice Scalia: --What is your response to the application of 1447(d)?

You say that it does not apply where it's apparent on the face that the remand is improper?

Mr. Hallward-Driemeier: That the remand was not one of the remands authorized by 1447(c)--

Justice Scalia: Right, right.

Mr. Hallward-Driemeier: --Not just that it was erroneous.

Justice Scalia: Wouldn't somebody always be able to bring an appeal asserting that to be the case--

Mr. Hallward-Driemeier: No, Your Honor.

Justice Scalia: --And wouldn't that destroy the whole purpose of 1447(d), which is to stop this ping-pong?

Mr. Hallward-Driemeier: No, Your Honor, I think not.

And we have two arguments that both the issues, substitution and remand, are appealable.

One is a very specific one and that is that Congress has categorically taken this kind of remand outside the court's authority under 1447(c) by specifically prohibiting remand at all in 2679(d)(2), and that argument of course would not have relevance, I don't think, much beyond this case.

And this Court has recognized that Congress can exempt a certain class of orders from the scope of 47(c) and (d) without cross-referencing those provisions.

In the Rice case, the Court said that that specific removal provision did not purport to impair or restrict the application of the then equivalents of 747(c) and (d).

But clearly 2679(d)(2) does purport to impair the authority to remand by making the certification conclusive for purposes of removal.

So with that as our narrowest argument--

Justice Scalia: But the response to that is that our opinions show that even an erroneous remand is nonetheless governed by 1447(d).

There are a lot of erroneous remands and this would just be, just be another one.

Mr. Hallward-Driemeier: --But when Congress specifically prohibited the courts from remanding a case under 2679(d)(2) it certainly did not mean to protect a court that ignored that mandate from review.

Justice Souter: Isn't the problem, and maybe I'm missing, and I may be missing something here, but isn't the problem with your argument is that the statute didn't come out and say you can't remand.

The statute said, for purposes of removal, the certification is conclusive, and that allows for the kind of dichotomy that you and I were talking with before.

A court can say look, I know that I have article III jurisdiction here, but in point of fact I am, I am remanding because what you and I are calling here the pendent claim does not support any of the Government's theory.

If that's the case, then under 1447(d), there could be a review of it because it was not a jurisdictional ruling.

But if on the contrary, the judge said, as I think the judge said here, I am remanding because based on this analysis, I do not have jurisdiction, i.e., the judge went against the statute saying that jurisdiction is conclusive.

That is an erroneous jurisdictional ruling, and as Justice Scalia said, we have said over and over again, however erroneous it may be, it is not reviewable.

Mr. Hallward-Driemeier: If I may, Your Honor?

I think, two things: One, that there is a difference between Congress categorically prohibiting a certain kind of remand, and saying that a remand was simply erroneous.

And secondly, that that argument would not go to our argument that under Waco, at the very least, the order on substitution is appealable, because it is separate and independent from remand.

Rebuttal of Eric Grant

Chief Justice Roberts: Thank you, counsel.

Mr. Grant, you have four minutes remaining.

Mr. Grant: Thank you.

As to jurisdiction, Congress knows how to make an exception to section 1447(d).

All of the examples cited by the Court in Kircher, and by the Government in its brief, specifically referred, used the terms appeal and remand.

The statute here contains neither of those terms.

Chief Justice Roberts: Well, there was nothing expressed about Thermtron, and yet we recognized an exception there.

Mr. Grant: Your Honor, Thermtron was a case where the district court did not even purport to be relying on one of the grounds enumerated in section 1447(c), namely lack of subject matter jurisdiction.

In this case, of course, the district court explicitly cited both that statute and used the term subject matter jurisdiction, and the Government itself is, is not willing to go behind that.

On the merits, the Government has argued this morning that the Westfall Act provides a Federal forum to assert a Federal defense of immunity.

The Government has analogized this statute to section 1442(a), which allows the assertion of a colorable Federal defense, but the defense of, he didn't do it, it never happened, is not a Federal defense.

It is not a defense of immunity.

Justice Ginsburg: How about the defense of, I was on the job and everything I did on the job was within the scope of my employment?

Mr. Grant: In certain cases, Your Honor, that could be a defense of immunity, but in a class of cases identified by Justice Breyer, there will be an admission.

There has to be an admission under the facts and the law, that even if the alleged acts occurred, it was outside the scope of employment.

In that case, the defense is purely a merits defense.

And I think for this Court to say otherwise in this case would require overruling, or being contradictory to over 20 years of official immunity jurisprudence, where the Court has consistently distinguished between immunity defenses and defenses on the merits, where certainly the lower courts have taken that conceptual distinction and said a defense that the alleged acts did not occur do not raise an immunity defense.

And so, the assertion of a defense in that case on the merits is not the assertion of a Federal defense.

It is not sufficient to confer Federal jurisdiction under article III.

It does not meet the definition of a statute, of the statute, which uses the phrase "scope of employment" no fewer than seven times.

There is no indication that Congress in the Westfall Act intended to change the normal rules that purely State law defenses such as he didn't do it were to be decided in a Federal forum.

Justice Ginsburg: But then you're left with this question Justice Scalia raised.

If it's ambiguous, an employee says I did everything within the scope of my employment, I did nothing improper.

They allege I did something improper.

I didn't.

I was a faithful servant.

The negligent employee will be allowed the Federal forum, but the one who was a loyal, careful employee has to be in the State court.

Does that make any sense?

Mr. Grant: Your Honor, I think that's, with respect, a misunderstanding of how the statute works.

The employee who acts within the scope of his employment, whether or not he did the acts alleged, gets immunity.

The employee who acts outside of the scope of employment--

Justice Ginsburg: This is an employee who said I never did one thing that was inconsistent with my Federal employment.

Mr. Grant: --That's an employee who should win on the merits and will win on the merits.

As Justice Kennedy recognized, there are certain applications that allow the State court to resolve even a Federal defense.

We should trust that State courts will resolve State law defenses in a manner fair to their own citizens as well.

Chief Justice Roberts: Thank you, Mr. Grant.

The case is submitted.