Suit Against Federal Employee Decided by Supreme Court

It’s not often that a selection decision by a federal supervisor ends up before the US Supreme Court. In a new decision of the Court, a selection decision made by an official of the Forest Service ends up in a case involving the application of the Westfall Act–a law providing immunity for federal employees when acting in their official capacity.

The U.S. Supreme Court has just handed down an important decision upholding the protections afforded to federal employees who are sued for actions they take in their official capacity. (Osborn v. Haley, No. 05-593, 1/22/07 ) The facts are taken from the court’s opinion.

Ms. Osborn worked for a concern (The Land Between the Lakes Association) that provides staff for the Land Between the Lakes National Recreation Area in Kentucky. She applied but was not selected for a civil service trainee position with the Forest Service. In a meeting of unit employees where the name of the person chosen for the position was announced, Osborn made a joke at the expense of Forest Service officer Haley who had been responsible for the selection process.

Osborn’s company bosses requested that she apologize to Haley on that occasion, but Osborn refused. Osborn filed an administrative complaint involving her non-selection for the trainee position. The investigator concluded that proper procedures had been followed. Her company then again requested that Osborn apologize to Haley and she again refused. The company fired Osborn.

Osborn sued her company, Haley and others in local Kentucky court. She charged Haley with tortuous interference with her employment relationship and conspiracy to have her fired.

The U. S. Attorney invoked the Westfall Act (28 U.S.C. §2679(b)(1)) on behalf of Haley. This is the law that gives federal employees immunity from tort liability for actions they take as part of their official duties. He certified on behalf of the Attorney General that Haley had been acting within scope of his employment in connection with the events that gave rise to Osborn’s suit. He therefore successfully had the suit removed to the federal district court and—as is typical in these cases–immediately moved to substitute the United States as the defendant in place of Haley. He also moved to have the case thrown out, arguing that the actions that Osborn complained about on Haley’s part never occurred.

The District Court concluded that under Kentucky law, if Osborn’s allegations against Haley were true then Haley was acting outside of the scope of his employment. The court therefore threw out the Attorney General’s certification, and ordered the case back into the local Kentucky court.

The government appealed and the Sixth Circuit Court of Appeals overturned the lower court. The Supreme Court now affirms the circuit court decision.

In short, the Supreme Court held that the Attorney General’s certification of scope of employment under Westfall is “conclusive,” meaning that once this certification is made and the case is removed to federal court, then that court has exclusive jurisdiction to handle the case. It may not remand the case back to a state court.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.