
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                                         -2-                                          2            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).            ___                                         -3-                                          3            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.                                         -4-                                          4            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).            ______________________                                         -5-                                          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).            ______                                         -6-                                          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.                                         -7-                                          7                      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                                         -8-                                          8            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                                         -9-                                          9            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                                         -10-                                          10            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.                                         -11-                                          11                      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).            _______                                         -12-                                          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.                      ____________________                                         -13-                                          13
