*1
709
counsel,
record,
they
inadequate to fulfill will assume
cannot afford new
sion
appointed,
Anders. United
mo-
obligations under
new counsel will be
and the
counsel’s
(2d Cir.1993);
Burnett)
fused to
“indicate what is
ney whose brief failed to
why pursuing
might
CO., INC.,
them
sues
exist
B & A MARINE
grounds for nor indicated AMERICAN FOREIGN SHIPPING why pursuing Harry Marshall, range possible issues and INC. and W. frivolous. Neither addresses Defendants-Appellees. them would be conelusory issues beyond assertions standard No. Docket 93-9023. from a such as whether appeal sentence correctly imposed under 18 the sentence Appeals, Court of Ripps’ § 3553. submitted GWF’s Second Circuit. pur practical all Anders briefs are thus “for Burnett, F.2d at 105. poses worthless.” Argued March 1994. appointed by the Ripps been Had GWF 4,May court, Decided and order the we would remove them appointment of new counsel. Burnett, 3006A(c); F.2d at 105. How counsel,
ever, they and we be are retained they unless lieve that should not be relieved appellants so desire. We direct the Clerk writing, Baraga inform Estrella and copy opinion, right to continue of this Ripps respectively as GWF and to retain se, counsel, proceed pro to retain counsel, or, if cannot afford new new counsel, court appointed to have one Zulua pursuant to 18 U.S.C. 3006A. Cf. (holding ga, F.2d at 75 in situation that, if issues appointed counsel non-frivolous exist, may appointed). new counsel must be Baraga notified of Estrella and have been to withdraw and have their counsels’ desire If, objected. days not after notification Clerk, they responded, we from the have not
Background August act-
On ing through Department Transporta- (“MARAD”), tion, Maritime Administration *3 agreement into a service with the entered Foreign Shipping American defendant Co. (“AFS”). agreement, Pursuant to appointed agent, its United States AFS “as contractor,” independent not as to and an manage and conduct maintenance and Ready repair of vessels Reserve (emphasis Force.1 B A September Plaintiff & successfully a bid for contract with MARAD Cape Cape Ann and S.S. to refit S.S. Avinof, part Ready both a of the Reserve B agreement Pursuant to A’s with Force. & MARAD, ships to B & A’s work on these it supervised AFS. after be Sometime work, B began undertook the A to encoun- & de- ter severe cost overruns and substantial to lays; problems B & A these attributed weather, neglect and and inclement to AFS’s inability cooperation. with an lack Faced delivery, meet its contractual deadlines for to (Dublirer, Haydon, City New York Charles meeting a requested B & A with MARAD Victor, City), York Haydon, Straci & New performance to resolve its difficul- and AFS plaintiff-appellant. ties. 1, 1988, representa- February B & A On (Russell Crotty, City Robert E. New York Harry Captain W. tives met with defendant Warren, Kelley Drye. & New York Bogin, G. AFS, Marshall, the President of City), defendants-appellees. meeting, MARAD officials. Aftfer three a letter instructed Marshall to draft MARAD LEVAL, KEARSE Circuit Before: A seeking that B & B & A assurances to GLASSER, Judge.* Judges, District warning complete the contracts and would might necessary for A that it be MARAD & LEVAL, Judge: Circuit of the notify bonding companies B A’s & a prepared possibility of default. .Marshall brought alleging is an action libel This language: draft, following included the which agent of the States Gov- against an you to imme- In the event that are unable ernment, agent. The and an satisfactory to diately provide assurances for the Eastern District District Court your ability resources us as to York, Johnson, Jr., J., Sterling granted New subject ves- on the complete Contracts summary judgment for be- the defendants your sels, alert prudent consider it we Act, 28 the Federal Tort Claims U.S.C. cause of de- bonding companies possibility such em- seq., 2671 et bars actions the Contracts. performance fault in the acting within ployees of MARAD. employment. 28 the draft scope of their office or Marshall showed 2679(b)(1). it and returned MARAD redrafted letter We affirm. * Glasser, ships in case Judge can be used 1. This consists of Hon. I. Leo United States District York, sitting emergency. for the Eastern District of New of national designation. type because, 2680(h), instructions to MAR- a
to Marshall with defendant stationery. on AFS MARAD’s sovereign immunity AD’s.redraft did not waive for claims following language: libel; redraft included AFS & Marshall asked the court to Co., rule that had acted within the placed Inc. has B & A Marine itself and to dismiss by falling the action situation behind the default 2679(b)(1) precludes because hereby MARAD a civil action contract schedule. no- an compa- of the Government who tifying appropriate insurance has by copy nies of this letter that B & A committed a tort while Co., scope. Marine Inc. is default of its contract obligations. 27, 1993, August granted On the court incorporated changes MARAD’s Marshall summary judgment. defendants’ motion for *4 letter, into a which he resubmitted to revised The court that ruled Marshall and AFS were approved MARAD. MARAD the letter and employees of the United States within the it B instructed Marshall send to & A and FTCA, meaning 2671; § 28 U.S.C. sureties; its Marshall followed these instruc- they that acted within the signed by Marshall; tions. The letter was employment sending allegedly in the signature block indicated that it was sent letter; libelous and that were therefore by agent general AFS as on behalf of MAR- liability immune from tort under 28 U.S.C.
AD. § 2679. The court did not substitute the February of B & A commenced United States as Although defendant. no Court, Supreme Rings County, this action explanation given, was it is clear this was against alleg- New York Marshall and AFS because the United is States immune from Marshall, ing acting individually that and on 2680(h) § suit for libel of the FTCA. AFS, “willfully, maliciously, wrong- behalf of fully intentionally made the false state- Discussion ment that was in [B A]& default” of its The is a FTCA limited waiver of obligations contract with under its MARAD. sovereign immunity, making the Federal complaint alleged The that the statement Government liable to the same extent as a prompted bonding companies B & A’s private employer for certain torts of “em A in refuse to issue bonds B & connection ployees” acting within the of their em opportunities, with substantial business re- ployment. Orleans, See United States v. $15,000,000 sulting damages. 807, 813, 1971, 1975, 48 L.Ed.2d Marshall AFS and removed the action to (1976); States, Leone v. United 910 F.2d diversity federal court on the basis of of (2d Cir.1990), denied, 48-49 cert. citizenship summary judg- and moved for 111 ment. The district court ordered B A& and At liability the same time as it offers the of why the United States to show cause compensate the United victims of United States should not be substituted as torts, such provides the Act also that: place defendant of AFS and Marshall un- remedy against [t]he the United States ... 2679(d) §der of the Federal Tort Claims Act personal injury for ... arising ... or re- (“FTCA”). sulting negligent wrongful from the or act responded & A any employee or omission of of the Gov- reasons, should not be substituted for several acting ernment while within the including acting that the defendants were not his office or any is exclusive of within the proceeding money other civil action or damages against Government was not liable as it had not employee whose claims, immunity waived for libel gave and that act or omission rise to the claim.... private Any defendants were not immune proceeding be- other civil action or immunizing provisions cause money damages arising relating out of or inapplicable were subject made to a libel action against to the same matter 2680(h). responded The Government employee precluded_ 2679(b)(1). the United States should not be substituted agent of action or exclusivity of the cause emphasize To FTCA, capacity, in his individual but not against the United States under 2679(d) requires States be Government. upon cer- substituted as the defendant or tification Agency I. Status the FTCA Under employee was court that the defendant district court concluded that of his and AFS Marshall were “[e]mployee Act defines scope of their Government em government” including “officers or employment. B & A contends this error ployees agency,” federal and “federal genuine of materi and that there were issues “corporations agency” including is defined as concerning agency. trial al fact for AFS’s agen primarily acting as instrumentalities reject We this contention. As Marshall was but not include cies of the United States does AFS, an it is AFS’s status with contractor with United States.” respect Government critical. Thus, explicitly § 2671. the FTCA presented to the district The evidence court for the excludes summary judgment on the motion for showed independent omission an wrongful act or agent as a matter of law that was an AFS See, Logue e.g., contractor. *5 Government, independent and not an the 526-27, 2218-19, 521, 2215, 412 93 S.Ct. U.S. contractor. (1973); Berkman (4th Cir.1992). place, In the first the contract between
States, 108, 111 The 957 F.2d (1) provided expressly MARAD and AFS that accordingly court must determine: agent, serve “as [MARAD’S] AFS would acting in the whether the tortfeasors were By independent en- not as an contractor.” employee role of the or inde of Government agreement, tering into this the contractor, Government meaning pendent agreeing to make liable for AFS’s (2) itself FTCA, employees, the if were agen- its torts committed within the scope of they were the whether within why cy. points B A no reason & the employment. accepted should at agreement not be face FTCA, purposes of the For the point. this value on agency the common law of torts defines Secondly, agreement an contrac other details of the independent distinction between (for agency it relation- tor the is not that created an whose torts Government confirm have it indicative of an responsible) employee, ship. and an or Courts found servant (for relationship enjoys if is agent agency whose torts the the Government Government (Second) “power physical ‘to control responsible). The the the detailed Restatement contractor,’” Orleans, helpful guidance. of the Agency provides performance It defines 814, (quoting 96 1976 agent employed by a “an a master 425 at at servant as U.S. S.Ct. 528, in his 412 perform Logue service affairs whose v. United (1973)), performance or if of the is controlled or L.Ed.2d service “day- subject right supervises mas fact to control (Second) 2(2) Orleans, to-day 425 U.S. at Agency operations.” ter.” Restatement Logue, If court that at 1976. See also U.S. at determines 96 S.Ct. 2220; Leone, F.2d at agent employee of the at wrongdoer is an or required manage agreement “to who a tort within the The AFS committed employment, plaintiff for the United of the then the and conduct business directions, may employee, accordance such agent not recover from the or States in regulations ordinarily or as the United but has a claim the Gov orders If, hand, may prescribe-” from time time ernment. on the other the tortfea agent agreement further employee (emphasis sor not an or of the Gov ernment, representative agent that a MARAD provided or is an but did performance. These wrongdoing not in the of would monitor AFS’s commit the unquestionably the Gov- plaintiff provisions then has a establish authority Scope emment’s contractual to control III. Employment. in detail. performance AFS’s equally It was clear under the evi Third, working the evidence of the rela- presented dence to the district court that the tionship MARAD and between AFS further writing sending allegedly of the tortious power confirmed such resided letter were within the of the defen Government. The affidavits of Marshall and employment. unquestion dants’ This was Thurbon, George assigned by H. who was ably part management of AFS’s of the supervise performance, MARAD to AFS’s repair vessels, maintenance and of MARAD’s clearly that MARAD showed instructed AFS precisely which was the task for which the in detail as to what actions it should take Furthermore, agency was created. the un- advising B & A of its default. that, contradicted evidence demonstrated Finally, sug- B A submitted & no evidence letter, writing particular alleg and in gesting the existence of a triable issue of fact edly letter, portion libelous AFS was circumstances, point. on this Under the carrying explicit out the instructions of its justified completely district court was in con- Thus, principal. seriously open is not cluding “employee” status of AFS dispute sending of the letter was and Marshall had been established as a mat- ter of law. IV. The Immunity Competitive Bidding II.Lack Effect of Liability Government on the contends, A relying & also on 46 Employee-Tortfeasor. 2303(a), proper AFS could not ly be found to be an under the argues B A& the FTCA re through FTCA because it was not hired com quires that either the Government or the *6 petitive bidding. B & A’s reliance on employee by be liable for torts committed 2303(a) § misplaced. is That section re employees of the Government within the quires competitive procedures the use B A& acknowl procurement ... by “the of ... all services” edges liable, that the Government cannot be the Coast Guard. The section does not men because Section liability 2680 excludes its Guard, Although tion MARAD. the Coast (as torts, libel well as for most intentional MARAD, part like is of the United States arising foreign claims in a country, and a Department Transportation, the inclusion claims). variety However, of other B & A § of the Coast Guard in 2303 appear does not that, contends in the remedy absence of a to subject have been intended to Depart the against Government, provisions the Transportation ment of or MARAD to that 2679(b)(1) making remedy Section requirements. Rather, section’s MARAD against the United States exclusive of appears governed by § to be 41 U.S.C. civil against employee action should be which requires competitive procurement of Thus, inoperative. argues that where a contracts, public except all inap when “made plaintiff has against no the Govern plicable pursuant to section 474 of Title 40.” particular ment because the tort is not cov 41 § exempts U.S.C. 252. Section 474 MAR- by Act, ered the Federal Tort Claims AD competitive bidding from when “neces plaintiff should not also lose its claim sary appropriate.” See also 48 C.F.R. and be left remediless. Subpart (exempting 1201.103 MARAD from Department Transportation regulations argument The has considerable force and 474(16)”). by “as authorized 40 U.S.C. strengthened by is reading a literal of the & A dispute does not complied MARAD statute. liability Section 2680 withholds procedures with necessary dispensing asserting, provi- “The competitive bidding. argument The chapter sions [Chapter of this 171] and sec- 1346(b) nullity the contract was a is meritless.2 tion apply of this title shall not to A, argument bidder, 2. Because the competing event has no which was not a has stand- merit, question we ing complain do not reach the procedure. whether B & of the contract award
715
Congress. We therefore
...”
the intention of
libel
arising out of
[a]ny
claim
precluded
A
from as-
and cir-
that B & is
(as
variety
other torts
conclude
as a
well
cumstances).
(emphasis
AFS and Mar-
serting
28 U.S.C.
a libel action
2679(b)(1),
may
makes
which
have commit-
shall based on a tort
Section
exclusive
States
remedy against
of the Govern-
agents
ted
employ-
against the
any action
precludes
ment
among
chapter;
it is
ee,
same
part
a
notwithstanding that
the United States
which Section
chapter”
this
“provisions of
Armstrong,
Brown v.
also immune. See also
2680(h)
claim.
to a libel
inapplicable
(8th
makes
Cir.1991);
F.2d
1012-13
to com-
reading
seems
therefore
A literal
Carlson,
896 F.2d
134-36
Mitchell v.
that where Section
mand the conclusion
(5th Cir.1990).
States, the
liability of the United
forecloses
inapplicable,
§ 2679 is
exclusivity provision
V. Lack
Certification
survives, and the
liability of the
district
argues
B A also
&
not left remediless.
tort victim is
reversed on the
judgment should be
court’s
argu-
B & A’s
problem with
principal
to obtain
ground that the defendants failed
has ruled
Supreme Court
is that the
ment
pursu
General
certification
Smith, 499
contrary.
In United States
2679(d)(1)
Section
ant
&
Sections
113 L.Ed.2d
provides that
certification
malprac-
(1991),
alleged
of medical
an
victim
em
“Attorney
the defendant
Forces doctor
by an Armed
tice committed
scope of his
acting within the
ployee was
the individ-
impose
on
Italy sought to
employment,” the United
office or
provision
tortfeasor,
exception
ual
where
defendant,”
as the
“shall be substituted
2680(k)
inapplica-
the FTCA
made
of Section
2679(d)(1),
action shall be
country.”
foreign
arising in
ble to a “claim
(if necessary) and
to federal court
removed
ruled,
the ex-
based on
Supreme Court
proceeding shall be deemed
the “action or
2679(b)(1), that
clusivity
provision
Section
brought against
proceeding
action or
be an
protected
employee was
the Government
provisions
the United States
liability,
even where
from
(d)(2).
Id.
this title....”
not address
liability. The Court did
no
had
Attorney’s letter sub-
The’Assistant U.S.
2680, which
clause of Section
opening
*7
to show
response to the order
mitted in
exclusivity provision of
appears make the
to
that AFS
an assertion
cause did not contain
2679(b)(1)
to a “claim
inapplicable
Section
scope of
acting
and Marshall were
Supreme
foreign country.” The
arising in a
im-
(although the letter
their
argument.
B & A’s
ruling forecloses
Court’s
much).3 Nonetheless, in the absence
plied as
that the ef-
expressly recognized
The Court
General,
Attorney
by the
of a certification
certain tort
ruling was to leave
of its
fect
certify.
Id.
court to
permits the
the statute
against
any remedy
victims without
—either
2679(d)(3).4
ruling that AFS
§
The court’s
employee-
against
or
employees of the Govern-
and Marshall were
that
this was
found
tortfeasor. The Court
prohibit the court
likelihood,
to
deliberately
should be read
if the statute
the Assistant
In all
making
under Section
making
because
the certification
this “certification”
from
avoided
by
motion,
by
2679(d)(3)
"certification
provides that
such
the brief filed
statute
own
on its
shall
Attorney
...
the United States
"petition.”
serve as the
Marshall would
AFS and
defendant,”
28 U.S.C.
as the
be substituted
served on the
petition was not
true that the
It is
2679(d)(1),
seeking
was
to
§
the Assistant
and
required
the stat-
in the manner
as the
having
substituted
the United States
avoid
General).
(with
See
to the
notice
ute
defendant.
2679(d)(3).
might
§
The Government
petition
disregarded
or moved
have
therefore
employee may
provides
statute
4. The
however,
chose,
waive the
It
to set it aside.
[upon
to the Govern-
“petition
court
notice
the merits
defend on
and
defect in service
employee
certify
was
to find and
ment]
ground that the
being
against
substituted —on
employ-
or
acting
of his office
within the
for
the FTCA
States has no
2679(d)(3).
in
In their brief
ment.”
claims.
libel
cause, AFS and
response
order to show
Thus, even
to so find.
asked the court
Marshall
employ-
acting
ing
within the
of their
employment
ment
within the
and,
sufficiently complied
addition,
ment
with the certifica-
in
must have
in
been
requirement.
tion
governmental
exercise of
discretion.
297-98,
U.S. at
GLASSER,
Judge, concurring:
District
fall Act.
I
although differing
concur in the result
Section 5 of that Act amended 28 U.S.C.
majority
2679(b)
with the
as to the
route
which
part
read
relevant
as follows:
respects.
result
reached
two
(b)(1)
remedy against
the United
First,
argues
B A
if
government
&
1346(b)
provided by
sections
continues to be immune from an action for
2672 of
personal injury
this title for ...
(libel
tort)
being
tort
intentional
such a
there
... resulting
negligent wrong-
from the
or
remedy against
is no
If it
States.
any
ful act or
employee
omission of
only
the existence of such
which
Government while
precludes
against
employee
an action
employment
of his ...
is exclusive of
2679(b)(1),
pursuant
to 28 U.S.C.
then the
other civil action
proceeding
money
or
statutory preclusion
inoperative
should be
damages
against
...
whose
against
employ-
and the action
the defendant
act
gave
or omission
rise to the claim....
so,
ees should lie. Were this not
B & A
Any other civil action
proceeding
or
contends,
employees acting
federal
money damages arising out of ...
could commit in-
subject
same
matter
impunity leaving
tentional torts with
precluded_
Although
victims without recourse.
this con-
Section 6 of that Act amended 28 U.S.C.
logical consistency
tention has
appeal
2679(d)
(4)
provide
in subdivision
there-
goes,
go
far as it
it does not
enough
far
of that:
fails to take account of 28 U.S.C.
action
the United States
(4)
1346(b).
2679(d)(1),
§§
1346(b)
pursuant
filed
to section
of this
18,1988,
Effective
Congress
November
en-
subject
title ... shall be
to the limitations
acted
Employees Liability
the Federal
Re-
exceptions applicable
to those actions.
(“The
Compensation
form and Tort
Act
Act”
(Emphasis
Liability
“The Westfall Act” or “The
Re-
*8
Pursuing the reference
to 28 U.S.C.
Act”),
form
P.L. 100-694.
pur-
The declared
1346(b)
§
reveals that
provides
that section
pose
protect
of that Act was to
federal em-
in
part:
relevant
ployees
potential liability
from the
to which
(b) Subject
provisions
to the
chapter
they
exposed
were
as a result of the decision
title,
171 of this
the district
...
courts
Erwin,
292,
in
v.
484 U.S.
Westfall
jurisdiction
shall have exclusive
of civil ac-
(1988),
which dramatical-
against
tions on claims
the United
ly changed
by
personal
the law
which the
money
for
damages,
...
... personal
for
liability
employees
governed.
of federal
was
injury ...
by
negligent
caused
the
Prior to
employees
federal
were ab-
Westfall
wrongful act or
any employee
omission of
solutely
personal liability
immune from
acting
the Government while
within the
long
common law torts so
as
were
employment_
of his ...
the
at
injury
time the
occurred.
decided
complete
statutory
To
analysis,
only
it
Westfall
employees
federal
must have been act-
chapter
remains to be noted that
171 of title
claims,
apply
variety
to” a
including
Code contains within
wide
28 of the United States
1346(b)
2680(h)
§
provides
(Emphasis
§
libel.
As
which
has been indi-
cated,
1346(b)
§
arising
against
claims
out of
apply
not
authorizes actions
shall
libel,
“[sjubject
intentional torts.
provisions
slander and other
chapter
say subject
171”—that
is to
clearly
—
statutory framework
in
this
With
exceptions
§
in
specific
listed
2680. A
mind,
I turn to
consideration
opening
§
reference to the
clause
Smith,
S.Ct.
States
superfluous given
was
the Smith Court’s reli-
The issue before
113 L.Ed.2d
2679(d)(4)
§
ance on
which referenced
in that
was stated to be
the Court
case
1346(b)
§
§
which embraced
2680 and all the
Liability
Reform Act immun-
“whether
chapter
statutory
other sections of
171. The
employees from suit even
izes Government
conclusion,
leading
although
route
to this
exception precludes recovery
when an FTCA
circuitous,
clearly
somewhat
is nevertheless
against the
499 U.S. at
Government.”
marked.
deciding
at
that the
1184-85.
immunity, the
Act confers such
Court based
Second,
agree
portion
I do not
with that
upon
5 and 6 of the
its conclusion
sections
opinion
Section V of the court’s
which holds
Act,
Liability Reform
i.e. 28 U.S.C.
“in
by
the absence of a certification
=
2679(b)(1)
2679(d)(4), respectively.
§§
General,
Attorney
permits
the statute
2679(b)(1)
above,
pro-
As mentioned
section
2679(d)(3).”
§
certify
court to
Insofar as
against
an action
vides that
Government
suggests
that statement
that the statute au-
is the exclusive
FTCA
certify
sponte,
thorizes the court to
I
sua
precludes
an action
act-
nothing
2679(d)(3)
supports
find
which
ing
within the
of his
Sec-
provides,
part,
it. That
statute
relevant
2679(d)(4) provides
that actions
tion
follows:
1346(b) (the
pursuant
Government
(3)
Attorney
In the event that the
General
FTCA)
“subject
are
to the limitations and
certify scope
employ-
has refused to
of ...
exceptions applicable to those actions.” The
section,
employee may
ment under this
say:
then went on to
Court
petition
at
time before trial
the court
“exceptions” expressly
One of these
des-
—
certify
to find and
ignated
pro-
as such under
2680—is the
employ-
his
barring
[li-
vision
copy
petition
ment. ... A
shall be
bel
other
intentional
torts.
served
the United States
accor-
2680(h)
].
4(d)(4)
provisions
dance with the
of Rule
at
719 upon the it was ever served not reflect that hence could have been dis
Government
object
made the
of a motion
regarded or
plainly
The record is
barren
set it aside.
any suggestion that service was made
Attorney
Washington,
D.C.
in the record that the
There is no indication
even aware of the ser
was ever
Government
that it was defec
requirement
let alone
vice
therefore,
can,
majority
only spec
tive. The
defect
ulate that the Government waived the
the merits” in a
or chose to “defend on
matter to which it was never made
merely
why it
not
but
showed cause
would
event,
it is well settled
be.
power
no
has
imposed
conditions or limitations
waive
for suits
statute
States,
36,
Munro v.
States.
United
423-24,
(1938);
41,
421,
MACHINES Defendant-Appellee. No. Docket 93-9168. Appeals, Court of Circuit.
Second
Argued April
1994.
5,May
Decided
Court
n.