Mangold v. Analytic Services, Inc.

Joseph’s decision was motivated Because indefensible, illegitimate, improper, out- assumptions stereotypical about the

moded

proclivities they whites and blacks when judgment upon to sit of their called citizens, because fell

fellow his decision range

far of professionally “the wide outside assistance,” to which

competent Weatherwax entitled, I would affirm Accordingly,

courtis order. dissent. MANGOLD; D.

Karen W. Sanford Colonel,

Mangold, Plaintiffs-

Appellees, SERVICES,

ANALYTIC INCORPORAT (The Corporation); Fa ED Anser John Doctor, individually,

bian, and in his agent

capacity as officer of the An (The Services, Incorporated

alytic Anser Adler,

Corporation); Paul A. individual

ly, capacity and in his as officer Analytic agent Services, Incorpo (The Corporation), Anser Defen

rated

dants-Appellants, America, Defendant.

United States

No. 94-1307. Appeals, States Court

Fourth Circuit.

Argued Jan. 1995. March

Decided attention, murder, guilty second-degree Joseph wax was would found mattcr to the court's client, request Joseph action would have enabled have accommodated of his course of protecting strategy. simultaneously to file a for a new trial based on the while Moreover, his trial motion desirable, newspaper although R.Crim. Wcathcr- incident. See Fed. Proc. 33. less once Bagby, Epstein, R. Thomas

ARGUED: Green, DC, P.C., Washington, for Becker & Allen, Darrell Darrell Appellants. Madison Allen, P.C., Fairfax, Appel- Virginia, for M. Volpe, Boskey, BRIEF: Bennett lees. ON DC, Ap- Lyons, Washington, Boskey & pellants. practices by published opened inquiry into the of Col. remanded

Reversed and Mangold, the team.1 D. who headed Judge NIEMEYER wrote Sanford opinion. to deter- immunity, investigation in which was undertaken the court on opinion of joined; Mangold abused his au- Judge PHILLIPS Senior mine whether Col. Senior opinion thority of subordinates and Judge wrote his treatment PHILLIPS jurisdiction, which dealings private matter with the sector. One court on his joined; Judge specifical- Judge aspect investigation focused NIEMEYER of the opinion. dissenting ly Mangold improper- wrote a allegations MICHAEL on that Col. govern- ly pressure influence to exerted his NIEMEYER, Judge, delivered the Circuit contractor, Services, Analytic Inc. ment I, III, in Parts and IV opinion the court (which “ANSER”), parties refer to as (on immunity), and the issue of absolute family Mangold hire a friend. ANSER is PHILLIPS, Judge, delivered Senior Circuit corporation which contracts with the issue of opinion of the court on government provide engineering jurisdiction. subject matter govern- analysis services in connection with MICHAEL, NIEMEYER and Before Air acquisitions, particularly ment PHILLIPS, Senior Judges, and Circuit Force. n Judge. Circuit Mangold’s investigation into activ- Col. OPINION Brig. Air 'Gen. ities was conducted Force Raymond Huot and his staff Huot. General NIEMEYER, Judge: Circuit approached in June 1993 and in- ANSER whether absolute immuni- We must decide quired Mangold’s about effort to have Col. lia- ty government contractor from shields a Worrell, Betsy hire Mrs. a close ANSER bility arising from statements made Mangold’s Three AN- friend of Col. wife. during government investigators response to investigators’ responded officers SER response In to Air investigation. an official questions provided tapes of tele- cassette charges queries relating to of miscon- Force phone messages Mangold on left Col. dealings colonel in his by an Air Force duct telephone answering machine in ANSER’s contractor, private government with a November and December questions under oath contractor answered When the provided other information. Fabian, AN- particular, In Dr. John M. under common the contractor colonel sued CEO, during Huot that SER’s told Gen. reputation and injury to the colonel’s law for Mangold, on behalf of late fall of Col. asserted the defense position, the contractor Force, requested Air had use of AN- immunity, which the district court of absolute services, consulting which were avail- SER’s gov- that the rejected. we conclude Because government open able to on an units subjected should not ernment contractor conjunction request, contract. with his on statements law tort claims based to state Mangold suggested Col. that ANSER hire response to an official it made in provide Mrs. those services. De- Worrell gov- dealings with the investigation about its spite the fact Mrs. Worrell was ernment, rul- the district court’s we reverse job, qualified perform Mangold Col. immunity. ing denying such matter, pressed implying that his team’s depended on AN- use of ANSER’s services hiring Dr. Mrs. Worrell. Fabian stated SER Rooney, Mangold, he told “I value the name Lt. James Col. the initiative of Col. On company I’m assigned to of this not interested Air Force officer States hiring somebody your team at who was a friend Resource Allocation the Air Force’s wife’s, support.” Special provide in order to contract Air Force Office of Pentagon, the explained Mangold Inspector General Dr. Fabian Col. Investigations and curcmcnt, time, involving responsible $20 for ad- billion. the team was 1. At the pro- quarter Force's ministering of the Air one support college needing for this Mrs. did not have a ANSER because Worrell CQ Space possess preestab- did not Dive Team. degree, she necessary provide the qualifications lished subordinate, Mangold’s immediate Lt. Col. requested. According Mangold services Col. Rooney, who was Col. James familiar with Fabian, you Mangold responded, “[I]f Dr. Mangold’s behalf Col. efforts on of Mrs. Wor- I’ll find a contractor who can’t do will.” rell, the impropriety was concerned about Adler, president, Paul A. con- vice ANSER’s Mangold’s actions and Col. consulted testimony. Dr. firmed Fabian’s Mangold, Capt. another of Col. subordinate Mangold’s telephone Transcripts of Col. Russo, Anthony J. about his As concern. an- messages telephone left ANSER’s Capt. Russo related the events: period swering during the corrobo- machine Rooney me Lt. Col. took aside and also These these witnesses’ statements. rate expressed serious concerns about the com- in which transcripts messages contain several made that ments to ANSER. He stated repeatedly pressured to Mangold ANSER already complained had to Lt. Mu- he Col. He in various hire Mrs. Worrell. stated (both Kingsbery and from shaw Col. messages: XOFS) going and that he was to meet with you not guys that I’m real frustrated (SAF/AQS) Hard he knew M Gen whom ah, this hiring Mrs. I think that Worrell. previous assignment. from a Lt. Col. well opportunity for ANSER was an excellent Rooney Mangold that stated Col. headed get [the to involved with XO team go far and did not about to too that he respon- Mangold], to show some Col. anything might to be in want involved siveness, and with us. work illegal. my support. for I be He asked

agreed Mangold made com- Col. had misinterpreted by AN- ments could to, uh, you like talk to also about I would promised and that I tell the SER would really a for fact that test case this ANSER, meeting if truth about the if working together and and XO ANSER However, I told him I asked. that would out, could see probably this one works personally go outside our chain of not opportunities for ANSER.... more command, I wanted to more and ****** objections directly forcefully express my on, uh, maneuvering I’ve run out of room going Mangold I would think of Col. before uh, in indi- using options getting an other over his head. by the on like Mrs. Worrell board vidual Rooney’s Following complaints Lt. Col. week, the, ah, ah, by the end of this end of officers, Air commenced superior Force expect the part of week when we first next investigation, Air and internal Force Col. an in. budgetary work to come avalanche position as Mangold from his was transferred would it clear that ANSER became When Allocation of the Resource team. head entreaties, Mangold Col. not accede his request Air for contract Force’s canceled later, Mangold and his Col. Several months According to the support Karen, ANSER. wife, Virginia in a state filed suit transcripts, answering he stated: machine ANSER, executives, and Lt. its court Rooney injuring reputations their you and for sent to us Col. individual While and, ah, Mangold’s position with the United very pleasant and and Col. brought over is for intentional infliction uh, lady, longer Air Force and intelligent young we no States The com- I seven-count any support.... have of emotional distress. ANSER need alleges that the defendants de- absolutely, indelibly, plaint both to make want fabricating Mangold by for and Mrs. totally support ANSER famed Col. clear that the de- charges of and that pro- misconduct Space CQ Dive team not be will conspired damage Mangold’s Col. appreciate fendants through office.... vided to, Mangolds de- position. your ability reputation your help and all John damages compensatory office, in the mand million bringing $15 individual damages. punitive million in contemplate ever need do I $5 nor do 1447(d) Rooney application § Lt. removed the case to the to remand orders Col. 1447(c)). § District Court for the Eastern issued under United States Virginia District of 28 U.S.C. challenges only in this case 2679(d)(2), and the United States substitut- ruling immunity, district court’s Rooney party for Lt. as the ed itself Col. subsequent not its remand to state court. defendant under the Federal Tort Claims dispositions The fact that the two —denial 2679(d)(1). Act, After the 28 U.S.C. Unit- immunity and remand to state court —were summary judg- a motion for ed States filed deprive in single included order does not us jurisdiction,2 Mangolds ment for lack of immunity ruling. to review the voluntarily dismissed the United States as a Fidelity See Waco v. & G. U.S. party defendant. 79 L.Ed. 244 Waco, the Court held that it had employees and its also filed a ANSER dismissing party, to review an order even summary judgment, asserting, motion though the dismissal was included a non- defenses, among other for claims remanding reviewable order case state arising responses questioning out of their Wiley, 14 court. See also Jamison v. requests for information the course of (4th Cir.1994) (permitting review of Air investigation an official Force into AN- party-substitution despite its inclu- arrangement SER’s contractual with the Air remand). paper in same with order of sion Force. The district court determined jurisdiction had discretion to retain over the Accordingly, juris- I conclude that we have case, though even the was no United States to review the diction district court’s interloc- longer party, immunity to decide ANSER’s utory denying appellants the absolute immunity denying defense. After ANSER’s Nixon, 743, immunity.3 See 457 U.S. at defense, the court remanded the case to the Alternatively, at S.Ct. 2697-98. concur in court, purportedly state under 28 U.S.C. Judge Phillips’ concurring opinion directed to 1447(c). § jurisdictional the issue. appeal was taken from the This Ill ruling denying immunity. court’s absolute governmental Much of the law of im Fitzgerald, v. See Nixon 457 U.S. munity developed part has been as of (1982) (denial the 2690, 73 L.Ed.2d 349 of S.Ct. protect sphere common federal law to immunity immediately claim of absolute is discretionary governmental action from the doctrine). appealable under collateral order

potentially debilitating distraction of defend See, ing private e.g., Barr v. lawsuits. Mat II teo, 569-73, 360 U.S. S.Ct. (1959) 1338-41, matter, (plurality As a threshold we must address 3 L.Ed.2d 1434 Erwin, suggestion opinion); the that we lack matter 484 U.S. Westfall the to hear this because 108 S.Ct. L.Ed.2d 619 immunity Westfall, ruling on In Barr and district court’s absolute Court remand, recognized immunity was included in an order for and an absolute from state liability certain l'emand orders are not reviewable. law tort for federal officials exercis 1447(d); ing acting scope discretion while within the See 28 U.S.C. Thermtron Prod- ucts, Hermansdorfer, employment. Protecting govern Inc. v. 96 of their (1976) immunity, (limiting ment actors with howev- injuries arising activity that Col. and out of inci- 2. The United States contended Mrs. scrvicemen's service). Mangold military failed to exhaust their administrative dent to filing claim with remedies administrative Force; had not the Air that the States necessary if were review the 3. Even it remand alleged from the waived its torts in order, 1447(d), provisions of U.S.C. as Mangolds' complaint; and that the claims were Thermtron, do not immunize it limited States, in barred the decision Feres United J., event, Phillips, op. review. See infra. (1950) 71 S.Ct. 95 L.Ed. 152 340 (holding we have to reach the issue. the United not liable for States was er, costs, illegal protects government even of- tent that it employees. has its since and may go public facilitating conduct unredressed. Such The interest in the gov- fensive immunity also policing contracting pro- tends to undermine basic ernment’s of its legal system process subject temptation of our individuals cess—a to the tenet wrongful conflicting conduct. self held accountable for their interest and the risks of Westfall, corruption at at influence perhaps undue and —is reasons, important public these law as in 583. For common as interest facili- immunity recognized tating government’s in Barr policing of itself. Westfall only public expose private government extent that the afforded And contrac- by granting immunity responding cooperating out- who are benefits obtained tors 3,n. weigh investigations its costs. at 296 such to the of state Id. risk investigative n. 3.4 tort claims would chill the ef- coop- that exposing fort to same extent immunity recognized erating government employees would. Ulti- sufficiently Barr and broad Westfall mately, liability, to allow such tort whether discretionary protect, part sphere government employees against action, in governmental official decisions to contractors, govern- would tend to make fraud, waste, suspected mis vestigate ment less efficient. govern management the administration of pri investigations Extending such ment contracts. Official sector, type are to the efficient conduct vate in the narrow circumstances critical public govern outweighs their value the where the interest efficient outweighs affording granting redress ment the costs of such interest of individuals immunity, comports un persons principles investi participating immunity recognized derlying action. because in Barr gations wrongful And only Westfall, scope of investigations if and since the that immuni can be effective such ty by of investigators coopera obtain is defined the nature the are able to the function witnesses, by being performed and not the or the cooperating government office tion of through particular employee of the involved. protected position be employees should also explained: in immunity. government employees cooper If As the Court Barr investigations exposed are ating in such left badge privilege The is not a or emolument by investigation, filed under to lawsuits those office, expression an of a of exalted cooperate, if they might be to even reluctant designed in the func- policy to aid effective they eyewitnesses improper to conduct. were government. complexities The tioning of important, in the such Equally as absence of activity magnitude governmental of and they in protection, might distort information of great have there must become so liability, exposure to an effort to tort avoid necessity redelegation delegation be a and functions, many authority and we of as to immunity also Barr Whether and Westfall say cannot these functions become private persons to in the sector extends they are important simply because less government participat- contractors who are in lower rank the exercised officers of investigations government ing in official hierarchy. executive pri- though Even contracts is less clear. 572-73, If gov- at 79 S.Ct. at 1340. persons contract with the vate particular gov- a public immunity protects in only partly act ernment function, many matter how public may no interest demand ernmental sphere, dele- to level that function is immunity protect to ex- times or what them the same Westfall, Act. The Act substitutes specifically Con- to as Westfall invited ferred In the Court in legislative as the sole defendant gress to define the United Stales to establish standards employee a law tort action federal available to state the contours the official scope the em- employees within tort ac- for acts committed involved state law federal regardless of employment, ployee’s office or at 585-86. 484 U.S. at S.Ct. tions. employee’s was involved. responded Employees discretion Congress whether Federal law, Act, immuni- Compensation absolute official Liability co- At federal common Reform and Tort discretionary commonly ty functions. and rc- remains limited at 28 dified U.S.C. sum, step protect that func- In we are of the view that state law gated, it a small contractors, private delegated to which holds contractors liable tion when Government light government’s military equipment un- particularly design for defects in delegate governmental present “sig- a questioned need does in some circumstances perform government policy The cannot functions. nificant conflict” with federal and necessary proper services itself and all displaced. be must out some services for therefore contract must (footnote at 487 U.S. at S.Ct. private performance sector. When omitted). Yearsley v. Ross Constr. See also discretionary gov- delegates government 20-21, 413, 414-15, S.Ct. through contracting functions ernmental (1940). 84 L.Ed. 554 contractors, therefore, pub- private same lic identified in Barr and interest pro- that the rationale for the We believe Westfall— government Barr, the interest efficient Westfall, articulated in tections —de- possess government that the the abili- mands Boyle applies also to the case before us investigate ty meaningfully to these contracts a the extent that this case involves discre- they performed are without to ensure tionary governmental function has which fraud, waste, mismanagement. delegated private sector. This been conclusion, however, fully does not resolve Extending contractors persons cooperating the issue of whether important government protect an interest investigation, with an official as See, e.g., Boyle Tech- is not novel. v. United distinguished persons conducting nologies Corp., 487 U.S. investigation, protected. While the deci- holding that a 101 L.Ed.2d investigation may sion to conduct an be providing helicopters government contractor discretionary involving act exercise military for the was not liable under state Westfall, judgment, see at defect, injury by design law for caused tort 585-86, protect- such Boyle equated liability Court immunity, reasoning in ed private procurement contractor with that of a only provides partial foundation might government official who have been Westfall cooperating in an protecting witnesses upon design manufacture the called justification investigation. full official product: same principles for such also draws on independent present case involves an immunity protects which in witnesses performing obligation its contractor investigations government-sponsored and ad- contract, an procurement a rather than judications. duty performing official his as a federal obviously implicated employee, but there is provides immunity varying The law of de getting the interest in the Govern- same grees public citizens and offi to both done. ment’s work investigating adjudicat in engaged cials and 505, (emphasis at Id. at 108 S.Ct. 2514-15 ing disputes meaningful in a order to ensure added). observing designing After judicial system. government-sponsored military performance helicopter for is “as- Thus, immunity an absolute shields witnesses function,” 511, suredly discretionary at id. court, LaHue, testifying in v. see Briscoe 460 2518, government that a 108 S.Ct. at and 325, 335-36, 1108, 1115-16, 103 S.Ct. 75 U.S. performing official the same function would (1983), testifying before a L.Ed.2d 96 and by immunity protected be under 28 therefore Baker, jury. Anthony grand v. 955 F.2d 2680(a) (Federal Act), U.S.C. Tort Claims (10th 1395, Cir.1992); Kincaid v. 1400 the Court concluded: (7th Eberle, Cir.), denied, cert. 712 F.2d 1023 551, 1018, 104

It little sense to insulate the Gov- 464 U.S. S.Ct. makes (1983). immunity against liability the And also has been held to ernment financial for testimony pub giving to judgment particular that a feature of mili- extend to witnesses Eddy, 341 F.2d tary equipment prosecutors, when the lic see Holmes v. necessary Gov- denied, Cir.), itself, cert. 382 U.S. produces equipment ernment the but 480 (1965). production. 86 S.Ct. 15 L.Ed.2d not when it contracts for the denied, grant for of such immu- cert. underlying policy (1967); Holmes, nity long-standing: L.Ed.2d 473 341 F.2d at (granting immunity 480-81 for stockbroker court, 19th-century of one the words suspi statements made to about a SEC witnesses, “the damages in suits company that a attempting cion to “bilk yield claims of the individual must market”); public via the securities Gulati requires which public policy, dictates of (E.D.Pa. Zuckerman, F.Supp. v. paths that the which lead ascertain- 1989) (granting immunity absolute to a de and ment of truth should be left free employees alleg fense contractor and its for possible.” unobstructed as Calkins edly defamatory statements about com Sumner, (1860). A wit- 13 Wis. pany’s president dealings former in his subsequent apprehension dam- ness’s Defense). Department Bradley ages liability might two Cf. induce forms Computer Corp., Sciences First, self-censorship. might witnesses (4th Cir.) (granting qualified testify.... reluctant to come forward to defense contractor libel suit for criti stand, his And once a witness is on employee of civil cism service based on con testimony might fear of be distorted right government), stitutional criticize cert. liability. subsequent denied, Briscoe, 332-33, 103 at 1114 L.Ed.2d 248 (citation omitted). privi In the absence of a witnesses, lege exposure for to tort such case, Turning in facts this an government-sponsored lawsuits chill would investigation Air official Force was undertak efforts, investigatory adjudicatory and Brig. en Huot and the Office of Gen. reliability their threatening to undermine Special Investigations to determine whether judi and to erode confidence in the therefore Mangold had been involved in Col. government. negative cial function of Those wrongdoing dealings in his with ANSER. outweigh consequences benefit would far Investigations Air conducted Force giving right of redress individuals Special Investigations Office official testimony. false fraud, waste, designed to actions combat abuse, mismanagement government, in the Accordingly, circumstances of case, investigation recognize scope and the of Gen. Huot’s limited, roots, words, drawing public inquiring in his into two one on the has fraud, Mangold AN identifying addressing Sandy involvement of interest in “the waste, mismanagement government, Corp trying get budget .... SER analyst allegations sur the common law hired and which drawing and the other trying get Betsy Mrs. Wor testify with rounded one privilege to process.” law, ANSER in that grand juries, before rell hired with courts before investigation, initiate investigators. immu- ANSER did not While this merely responded to official Air Force nity in the has foundations well established nothing sug law, inquiries. it to And in the record apply we care to common take employees volun only gests that ANSER its witnesses in the sector any beyond scope necessary greater public teered information to serve the extent inquiries. Air apply such Force’s interest. Therefore we Gulati Cf. (refusing F.Supp. at extend only necessary to state- insofar as shield information, by or a letter written contractor the Small truthful ments and whether was not con not, and Business Administration which given by contractor investigation and governmental response queries gov- nected employees its in government re response in made in to a investigators engaged an official not ernment solely It on the substance of quest). Philco investigation. See also Becker v. (4th Cir.) given by of its (holding responses two Corp., ANSER 372 F.2d Mangolds’ tort liability inquiries that officers these immune defense contractor its officers were defamatory possi- ANSER and alleged report detailing claims an security employees), two based. ble breaches order, employees pro- for the former and its to review remand

Because ANSER only requested may significantly vided information as turn on the latter. government agency officially investigating ANSER, dealings Mangold’s we Col. A. employees are hold that and its ANSER problem jurisdiction principal with our liability absolutely immune from state tort course, to review the remand order is of any on statements made and informa- based 1447(d) generally § which bars re- U.S.C. given response queries tion made in the view, means, by any remanding of orders investigation. course of the Air Force’s Ac- Thermtron, Although removed cases. cordingly, ruling of the court that district (1976), U.S.

such does not attach is reversed. invoking only established that remands one 1447(c) PHILLIPS, Judge, grounds specified §in specially Circuit of the Senior —defect opinion subject concurring, procedure delivered the of the court in removal or lack of mat- 1447(d)’s jurisdiction: bar, subject jurisdiction' § matter on the issue of ter —come arguably invoke remand order here does Niemeyer’s Judge opinion I concur hold- jurisdiction, lack of matter hence jurisdiction ing that we have to review the Indeed, come under the at one does bar. and, no-immunity ruling district court’s point opined in the court merits, that the district court erred longer any that “there is no basis for federal ruling. specially I that write because be- jurisdiction”, and the remand order con- procedural lieve under the unusual cir- “pursuant cludes is entered cumstances, proper disposition ap- § U.S.C. 1447.” If this was the actual peal requires that we review the remand invoked, ground we not review this or- immunity ruling; order as well as the manifestly, inarguably der even if it be erro- purpose may inquire, sponte, for that we sua Gravitt, neous. See so; jurisdiction upon into our to do such 1439,52 L.Ed.2d 1 inquiry, have for that do upon purpose; and that that review error is But, powerful policy considerations apparent, requiring vacatur of the remand persuasive authority support decisional order. power responsibility past our look —and —to contextually, ambiguous allusions and even 1447(c) specific §to to determine citations The ANSER defendants’ notice of by independent review of the record the ac order, “designates” “judgment, part as the grounds upon tual or basis which the district appealed thereof from” “the Memorandum empowered court considered it to re Opinion and Order dated and entered First, case, mand. it must be the as some day February, action on the 1st 1994.” JA recognize, have had courts the occasion to That Order both denied the absolute 1447(c) that neither the citation of nor the immunity defense and remanded the action presumed authority failure to cite it for a to the state court. JA 325. question: remand is of the real conclusive Although parties grounds none of the chal- whether one of its two is the actual has lenged being authority our to review either of basis invoked as for remand. Kolibash, rulings, we of course in this as these must Cir. 1989) (failure 1447(c) ourselves, conclusive; satisfy sponte, case sua of our to cite not Kunzi, review); jurisdiction any prop- found in record to resolve merits issues basis (9th Cir.1987) (§ Here, 1447(c) erly presented only F.2d for review. the 1293-94 cited, formally inquiry presented merits issue for review is but further made to determine basis). immunity propriety actual If a review of the record dis the of the district court’s But, that, ruling. Appellant’s reviewing Br. i. a for reasons closes to court’s satisfaction follow, sponte notwithstanding any in that order to address sua indications to the con jui'isdiction trary, upon that the actual basis which the court our to review substantive jurisdiction thought empowered it ruling, we must also address our was to remand was 1447(d) these, point, bar re- Id. in a critical of does not tion.” And additional neither case, asserted, only question course, (incorrectly) In the the in view. instant counsel “Of actually event, the was any whether basis invoked ... is the Court under Mine United jurisdiction. jurisdiction lack of retain over Workers Gibbs longer even if

claims a Federal claim no court, exists in the Id. To B. case.” which the critically purposes, responded: also for our My reading of the here satis record purely discretionary “But it’s the Court that, despite me evident confusion and fies posture whether hold on case in the backing filling during process, the some presently (emphasis it in. [?].” that Id. in the court remanded the end not on added). respond- To which ANSER counsel assumption “lack of that there was a ed, plaintiff: with no demur counsel for jurisdiction” compelled, so that remand was correct, urge “That’s Your Honor. I would jurisdiction, though there that there was but go ahead and the sum- Court decide It was discretion to remand. is settled judgment ... mary upon motion based when district court remands on such Federal-immunity of a defendant’s assertion 1447(d) basis, appellate not bar re does ” AN- defense.... 308-09. Counsel for J.A. See, e.g., Airways In re view. Surinam argued then merits SER of the federal Holding Cir. colloquy in an defense extended Cohill, 1992); Carnegie-Mellon see also during gave court indica- court with the no 98 L.Ed.2d that, at suggestion, tion odds with counsel’s (court (1988) review appeals’ of discretion actually jurisdiction lacked matter ary pendant state claim af remand law the claim defen- over ANSER Court). by Supreme firmed dants. J.A. 309-13. analysis My point the record on this actually When, following colloquy, plaintiffs’ follows: The remand order was respond, response to a to re- counsel first entered not motion counsel asked mand, consequence hearing of a on a noted that “to the extent the does Court claim, jurisdiction by the or for feel it has over this motion United States dismiss ... summary judgment state] a mo- welcome a remand to [the on merits and would summary turned to J.A. 313. Counsel then tion of ANSER defendants for Court.” argument their the merits of the judgment upon on the merits based on engaging in At the the hear- with the court substan- defense. outset of defense had, colloquy any plaintiff suggesting reserva- ing it was revealed that the tive without motion, jurisdiction to 313- volun- about its do so. J.A. response to the States’ tion United opposing At the of counsels’ tarily States. At 19. conclusion dismissed merits, jurisdic- arguments on district court suggestion point the court’s first un- to its critical relevant Having issues occurred. determined made statements tional jurisdictional posture of diversity derstanding of the inquiry that was not be- there going [ANSER] in- “I am to take the remaining parties, the court the case: tween the summary judgment motion for longer “Then is no basis defendants’ quired: there advisement_ grant the mo- this, [I]f I is there?” for federal matter, out summary judgment, that moots heard on that tion for Asking to be J.A. 307. it, grant If do not noted the case. It’s over. for the ANSER defendants counsel referring [state] it back to the a federal- will be [sic] had raised that those defendants essentially Court, are suggested that in the because there issues defense and It’s involved in the case. presented, “appropriate” it was law are thus state situation in a appropriate them to handled based more “retain[ ] for the court to court.... nature [G]iven state upon the assertion defendants charges, they better handled State Federal-immunity defense.” J.A. get point.” authority, argued if we J.A. 320-21 Citing decisional counsel Court added). then hearing (emphasis defense that the existence of such federal jurisdic- adjourned. with federal “provides Court by Opinion

In “Memorandum and Order” tention that reason of their its federal-immu- court, later, days in nity entered four the district defense the court should “retain” its procedural setting, summarizing the noted them, jurisdiction against over the claims that any and that event it could do so under summary judg- rule, hearing acquiesced

“At the plainly [the the court Gibbs motions, plaintiffs’ jurisdiction counsel advised ment] that it the assertion did have that defendant United States Court by to do its rhetorical comment that the so from the action. Without was dismissed was, however, jurisdiction “purely discretion- longer defendant there is no the federal ary.” The fact that this was now J.A. 308. jurisdiction any basis for federal because perception despite inti- the court’s its earlier diversity among does not exist the remain- mation of doubt to whether it had as ing parties. Defendants asked the court to jurisdiction strongly basis for is borne out jurisdiction solely purpose for the retain First, by what then occurred. the court federal-immunity deciding issue].” [the proceeded argu- opposing to consider the added). (emphasis J.A. 323 defense, ments of counsel on the substantive expressing juris- no more doubts about its having After then addressed the merits of issue, that, might opined the court diction to do so. This alone have in- nothing “The defendants are not entitled to absolute dicated more than conditional con- summary sideration, ... jurisdictional [for and their motion question with the judgment that DE- basis] must belied, however, being That reserved. ” Then, noting NIED .... that the J.A. plainly later comments that indicate the judi- a defendants also had raised defense of entry court’s continued belief down to of its evidentiary proceeding privilege, cial jurisdiction remand order that it had court observed that the standard under defendants, against claims the ANSER privilege which such must be assessed was (as discretionary power that it also had law, opined Virginia one of state that “a situation) erroneously-suggested Gibbs whether defendants have determination of jurisdiction not to exercise that once the Virginia met this standard is better left to federal defense to claims those had been added). (emphasis The court tribunal.” Id. Specifically, ruled out. the court indicated then “ORDERED that this action be re- point if to counsel that it decided pursuant [the court] manded to state 28 against immunity, it would remand the case 1447(c).” U.S.C. to state court because the issues re- then proceedings, maining essentially deduce from this course of would be state law is- points despite sues, some obvious confusion at appropriate and would be “more for along way flat in the court”, error end as them to be handled in a state remand, power following the court’s they must be handled there for lack of evolution of the district court’s understand- jurisdiction. its own ing hearing began, of the matter. When the perception That this of the basis for its summary the court had before it motions power persisted to remand to the time the (as judgment both the United States sub- remand order was entered then confirmed pursuant to the Westfall stituted defendant Opinion supporting in the Memorandum certification), private Act and the defendants. again, opined remand. There the court Immediately upon finding out that the Unit- only involving with the case now state law voluntarily ed States had been dismissed as defense, issues of claim and were these “bet- inquiry party, learning upon after tribunal”, they to a ter left State not that diversity there was not between be remanded because of the must court’s parties, perceived the court and raised a lack them. to determine possible question of its over the evidence, (now re-substituted?) compelling the face of this the final claim AN- 1447(c) only citation to can be understood only defendants —but in the form of SER inadvertence, simple certainly may query Having, howev- to counsel. J.A. 307. er, con- then heard the ANSER defendants’ do so. basis, peti I of the Had

On this conclude review the ANSER defendants also order, they actually properly on tioned for remand because not based removal —as could 1447(c), 1442(a)(1), § § grounds specified have under either of federal officer 1447(d). §by specific removal statute —there would not barred be authority for

case this result. held in We situation, that in that Jamison once removal C. jurisdiction attached it was not thereafter by rejection immunity defeated leads, de however, That to the further fense, accordingly and that there was no question whether the remand order is other 1441(c) § power under to remand the claim. interlocutory wise barred from review as an (4th Wiley, Jamison v. Here, plain. may order. law is It not be Cir.1994). Here, though was effect removal quali appeal reviewed because it does not by the ed States under the Westfall fy appealable collateral order under as Act, recognized 28 U.S.C. the effect doctrine, reviewed, it if may Cohen be surely in Jamison must be the same: error, by sufficiently egregious mandamus. jurisdiction properly acquired by the re Thermtron, 352-53, U.S. at See effectively mandatory did moval And, we a 593-94. treat notice permit discretionary following remand de appeal petition as mandamus when nial of federal defense. As issuing that are stringent conditions for writ recognized, provi two Jamison removal present. Wiley, See Jamison complementary Cir.1994). sions their intended Here, they are. operation, providing alternative means for stand, allowing result this order to remand getting such claims into the federal courts on erroneous, wrongly even if would be the basis of the federal defense. unnecessarily fragment a claim between Compare id. at & n. 16. 237-38 Carne way fraught courts in a state and federal Cohill, gie-Mellon capable un producing with mischief and (when (1988) 614, 98 L.Ed.2d 720 removal necessary systems. two tensions between the 1441(a), jurisdiction is based on district present it un Principally, could difficult and power has than court remand —rather dis power to re resolved issues of a state court’s prejudice -pendent state-law miss without examine a federal court’s decision a feder — claims). following claim of federal dismissal al-immunity defense to remanded state-law claim, beyond that inconsistent deci basis, I On conclude that the were the state court to consider itself sions ordering the claim court erred in a remand of free The conditions to re-examine issue. (with rejected) federal-immunity defense present for mandamus review are therefore court, and it must therefore to state and, accordingly should treat the notice of vacated. petition as a for the writ.

II D. our to review the As to immunity ruling, agree Judge Niemey question then leads to the This Fitzgerald, Nixon v. er have the dis whether1 district court did 2690, 2697-98, L.Ed.2d cretionary power purported to exercise (1982), it is reviewable under the Cohen having remand the state claim after denied denying abso doctrine as a collateral federal-immunity it. defense to immunity. But that our con lute I believe issue, temporaneous vacatur of the remand order On that I am satisfied the court did power obliged perhaps makes more is essential not have that but was to exer- certain — finality required ruling’s cise its removal to resolve to—the order, any ques collateral since it removes whole claim. am aware of no direct author- power ity exactly possible to re compara- in an tion of state court for this conclusion Furthermore, that vaca setting. that issue. procedural supported ble But it is examine whether by reasoning analogous removes need for concern situations. tur “preceding beginning hearing the remand order was one it in At the dismissed. of Jamison, logic fact.” the district court noted that and United dismissed, longer any

States “there is no jurisdiction.” basis for Federal Defense ORDER counsel nevertheless asked the court to re- I, III, parts given For the reasons jurisdiction in immu- tain order to decide the Niemeyer’s opinion Judge IV of en- nity question. argu- The court then heard tirety Judge Phillips’ opinion, of we reverse immunity hearing by ment on and ended the denying the district court’s order the defense saying: grant [summary judg- “If I do not immunity, of vacate the district defendants], referring I ment to the will be order, and remand the court’s remand case court, Arlington [the case] back to the be- to that court with instructions dismiss the essentially cause of these issues State action. law that are in the involved case. It’s more IT IS SO ORDERED. appropriate for them to in a be handled State court.” The court it indicated would MICHAEL, Judge, dissenting: Circuit quickly. rule appeal I would dismiss this because we do later, 1, 1994, days February Four on jurisdiction my to hear it. have Because opinion district court issued a memorandum jurisdiction, colleagues taken able have First, taking up and order. before the im- disagree must also with them on the substan- decided, munity issue, the court “Without away question. giving tive We are too much longer any federal defendant there is no immunity granting govern- to a jurisdiction basis for federal because diversi- compulsion ment contractor who is under no ty among remaining par- does not exist report government employee misconduct. “retailing] But ties.” the court said was respectfully dissent. jurisdiction,” request at the of the defen-

dants, “solely purpose deciding for the I. whether defendants’ actions are entitled to allegedly an absolute because the A. defamatory statements were made within the investigation.” context of an Air Force action, This which was filed the Circuit court next discussed and decided Arlington County, Virginia, Court included that “the defendants are not entitled to abso- Rooney Lt. Col. James of the United States immunity.” lute The court then returned to Air Force as a defendant. Pursuant to 28 jurisdictional 2679(d)(2) issue and ordered the ac- § certi- U.S.C. United States Virginia tion remanded to state court under Rooney “acting fied that Lt. within Col. 1447(c). appeal- 28 U.S.C. The defendants scope employment ... at the time of his 1, 1994, February ed the order and also [Mangolds’] which the of the incident out of petitioned for a writ of action, therefore, mandamus. We de- claim arose.” The petition nied the mandamus on March brought against deemed to be one the United 1994. We should now dismiss the States removed it to States. The United jurisdiction 2679(d)(2) because we have no to consider federal court under and was order) it. (by place substituted as a defendant in Rooney.

of Lt. Col. B. Later, 27, 1994, January on consent or- against immunity ruling der dismissed the case in- United district court’s Meanwhile, prejudice. February States ANSER cluded its remand order of (the defendant) corporate and the individual and that order is before us on this summary judgment appeal. defendants moved for on The order is first and last remand juris- ground of absolute im- The district court the doctrine order. decided first, only munity barred the action them. The dictional issue after announc- January ing court heard this motion on that it lacked matter immunity. ruling day after the States was did it turn to Because the (“The the order’s action must not ricochet back forth immunity was incidental to Virginia depending court —the on the most recent determination essence —remand court.”); Wright, ruling I do not federal Charles A. Law was not conclusive. (1994) (“This any 253-54 way that we have Federal Courts ban see spare litigants its on review is de- remand discus- intended review the lay.”). immunity. about sion exception is an rule of There non

1. reviewability, exception.” the “Thermtron If court a the district orders remand for reason Congress has denied us 1447(c),1 by § not authorized 28 U.S.C. remanding “An orders: order review remand in the challenged remand order court a case court which was State petition appeals by of a for of manda a writ on or oth is not reviewable removed Prods., mus. v. Thermtron Inc. Hermans erwise,” except in not limited circumstances 336, 351-52, S.Ct. 584, dorfer, 1447(d). 423 U.S. 96 § here. 28 U.S.C. This relevant (1976) (remand 593-94, 46 L.Ed.2d 542 order juris long part rule been a of American has reviewable). based on crowded docket was See, Wiswall, e.g., prudence. Railroad Co. v. Legal (23 Wall.) See also Kolibash v. Comm. on Ethics 508, 507, L.Ed. 103 U.S. 23 90 (4th Bar, 571, W. F.2d 573 Va. 872 Cir. (1875); 129, Callaway, v. F.2d Mason 554 of 1989) (remand “represent[ing] discre (4th Cir.) denied, curiam), (per cert. 434 130 ... not to (1977). tionary decision hear certain 229, 877, 54 L.Ed.2d 157 U.S. 98 S.Ct. grounds public policy” case was of review Indeed, court have held that district we able). power its own re lacks even to reconsider Farms, Inc. v. Alton mand order. Three J exception scope of the Thermtron (4th Co., Cir.1979), 112 609 F.2d Box Board See, e.g., extremely Things narrow. Remem 1090, denied, 911, 445 100 63 cert. U.S. S.Ct. - bered, Petrarca, -,-, Inc. v. U.S. (1980). Steinman, also L.Ed.2d 327 John (1995) 494, 498, 116 133 L.Ed.2d 461 S.Ct. Removal, Remand, in Pendent and Reviere J., concurring); (Kennedy, v. South Gravitt Cases, Party 41 Pendent Vand. Claim and 723, 723, 430 western Bell Tel. U.S. 97 (1988) 923, (collecting L.Rev. 997 nn. 349-50 (1977) curiam) 1439, (per 52 1 L.Ed.2d cases). (“The order was district court’s remand 1447(c) § non-reviewability designed plainly within the bounds of The rule of by Ap of proceed expeditiously to the hence was unreviewable the Court allow cases otherwise.”); words, peals, by Volvo to avoid mandamus merits. In other of Am., Schwarzer, 1331, Corp. v. 97 long, disputes about cases technical whether 284, (Rehnquist, 50 L.Ed.2d 273 Circuit federal court. “Con- S.Ct. should be in state or order). 1976) stay (denying of remand rule of Justice gress, by adoption [the non- rarely excep invoke the Thermtron reviewability of established Courts orders] remand Steinman, at n. 41 999 interruption of tion. See Vand.L.Rev. policy permitting of not cases). Supreme (collecting “As the merits a removed 364. litigation of the stated, court re questions has when district prolonged litigation of of Court cause in the grounds a case on contained court to which the mands district Rice, subject challenge statute ‘his order is cause is removed.” United States appeal, manda appeals court of 90 L.Ed. ” mus, (1946). Washington Suburban re Bev- or otherwise.’ See also In Providencia CRS/Sirrine, Inc., (1st Cir.1969) Sanitary Comm’n Corp., el. 406 F.2d (1940). 1447(e) § earli- 28 U.S.C. An arc “defect tion.” See 1. The authorized reasons remand subject procedure” required [of] "lack[] in removal whenever er statute remand jurisdiction” "at time before final matter "improperly case re- court found that the was 1447(c). judgment." The current 28 U.S.C. (Pub.L. 61-475, No. Mar. moved.” 36 Stat. 1095 § 1447 enacted 1988. 102 version of was 3, 1911). history rule non- The earliest of the (Pub.L. 100-702, 1988). Nov. Stat. 4670 Previously, Nor reviewability jurisdictional remand orders is required case remand if "the Rice, length supra. at discussed jurisdic- improvidently and removed without (4th Cir.1990) (1977) (“review (quoting F.2d Therm is un- 589). tron, at Ac plain legal no available matter how error Royers, cord Wilkins v. 581 F.2d remand”); 402-03 ordering Hansen v. Blue (4th Cir.1978) curiam); McCain, (per Noel v. (9th California, Cross Cir.1976); Wright, (“Section 1447(d) Cir.1989) precludes review supra at 253 n. 25 jurisdictional of a district court’s decision clearly wrong.”). even if it was Here, the district court said that remand statutory ground was based on a 1447(c), jurisdiction. lack of matter beginning hearing Near the on the majority says that the rul- summary motion, judgment defendants’ ing is reviewable under the collateral order said, interrupted court defense counsel and doctrine described in v. Cohen Beneficial longer any “there is no basis for Federal 541, Corp., Indus. Loan 337 U.S. 69 S.Ct.

jurisdiction.” At hearing, the end of the the 1221, (1949); Fitzger- 93 L.Ed. 1528 Nixon v. court reiterated belief that its the case be- ald, 731, 2690, 457 U.S. 102 S.Ct. 73 L.Ed.2d longed discussing in state court. Before im- (1982); Wiley, 349 14 Jamison v. F.3d order, munity opinion in its written the (4th 222, Cir.1994). disagree. 230 expressly subject district court found that jurisdiction lacking.2 Finally, matter the Wiley, In v. a remand Jamison order held magic district court’s order contained the reviewable mandamus under the Therm- 1447(c): hereby § reference to “it is OR- exception ruling tron also contained DERED that this action be remanded to the (a employee) the defendant federal was not Aldington County Circuit Court entitled to have the United States substitut- Virginia pursuant Commonwealth of to 28 ed for him as defendant under the Westfall 1447(c).” § U.S.C. Because the remand or- Act, § 28 U.S.C. 2679. We held statute, expressly der rested on the portion substitution of the removal order exception apply Thernitron does not and this appealable “was under Cohen because it fi- power court has no to review the district nally conclusively denied a claim of abso- court’s order. Jamison, immunity.” lute 14 F.3d at 234. majority has concluded that the dis misplaced The reliance on Jamison is 1447(c) § trict invocation of court’s was sim First, three reasons. the remand order ple inadvertence. But even if the district 1447(c) Instead, § there was not a order. 1447(e)erroneously, § court relied on we still the district court in Jamison described its power have no to review remand order. remand; discretionary action as a it did not “|T]he magic words are indeed ones: 1447(c). Here, § rest on Id. at 233. proof order is review even if it mere contrast, 1447(c) § we have a remand based ly ‘purports’ ground quot on the remand subject expressly juris- on the lack of matter Stores, Dep’t ed.” Richards Federated diction. This leaves us without a basis for (5th Cir.) Inc., 211, n. 1 (per 812 F.2d 212 jurisdiction. short, appellate In federal denied, curiam), 824, cert. 108 S.Ct. gone, case is and we have no hook which 88, 98 L.Ed.2d 50 both “Under Gruv pull it into back federal court for Thermtron, itt and a remand order made purpose, including appellate review. 1447(c) § pursuant if cannot be reviewed it Second, here, immunity ruling grounds that unlike is based on the the court lacks Jamison, jurisdictional if the substitution decision is with- the court’s —even 1447(d)’s §in analysis barrier to because the was erroneous.” Kunzi v. Pan Inc., immunity ruling Airways, “precede did not [the] American World 833 F.2d ” (9th Cir.1987). 1291, 1292 remand, logic v. of both ‘in and in fact.’ See also Briscoe Ja- Bell, 2428, (quoting 432 414 n. mison at Waco v. 233 United States contrast, Cohill, relies, By Carnegie-Mellon majority Univ. v. did not involve remand or- justified ground 484 U.S. (1987), on the ders Co., Thus, Ainvays Holding lacking. and In re Surinam in those cases the district courts 1992), 1447(c). upon § Cir. which did not invoke Fidelity after Guar. the distinct court entered its remand & (1934)). L.Ed. 244 In Jamison order. district court made the noted Virginia On remand the courts would ruling it decided to re- substitution “before quickly recognize that the district court’s im court, mand the case state while it still had ruling munity preclusive did not have effect. decision, the case. That which was control of Nutter, (“any at 322 issues that from, to, prior separable made and is court decided district incident remand remand, is not decision to court”); relitigated in be state McIntosh 1447(d).” (empha- Id. limitations of at 233 Atchison, Ry., T. Kan.App.2d & S.F. original). sis decision (1994) (ignoring P.2d federal perhaps separated order before us can law). pre-remand court’s conclusions of decision, conceptually from the remand particular, the law of the case doctrine does separability enough the mere fact of is not accept Virginia bind the courts help Waco is of no because the under Waco. immunity ruling. federal district court’s here was made after the decision Corp., Steinman v. Coal 121 Va. Clinchfield to remand the case.3 court decided (1917) (“the 93 S.E. doctrine 1447(d) implicitly recognized that Jamison apply the ‘law of the case’ does not prevents appellate of collateral rul- review decision, litigation,*by former in unended by a ings made district court its remand after foreign jurisdiction”).4 court of a Even if the decision. law case apply, doctrine was to the Third, appeal Virginia permit power not an courts still the Jamison does would have to immunity the order and the ques here because district court’s did revisit redetermine See, conclusively [deny! e.g., Capital tion. “finally not claim of Investors Co. v. Exec (4th utors, Cir.1978) (“the immunity.” 652, id. at 234. Nix 584 F.2d 654 731, 102 2690, principle law the Fitzgerald, [of v. 457 S.Ct. of is not absolute case] on U.S. denied, (1982), inflexible.”), 981, Supreme Court nor cert. 440 99 73 L.Ed.2d 349 U.S. 1790, (1979); interlocutory denying 60 241 held an order ab S.Ct. L.Ed.2d Wilson v. that America, Inc., immunity go Volkswagen F.Supp. 445 solute a defendant about of (E.D.Va.1978) (“the 1368, appealable court as 1370 law of the to trial in the district was an order under Cohen. We have case doctrine ‘is not inexorable com collateral ”) delaying appeal (quoting an mand.’ G. Roe & v. observed that an Wm. Co. (5th 862, Co., immunity 414 867 denying absolute “would de Armour & order Cir.1969)). claim he [the defendant’s] feat should trial, protec initial put not be which The district court’s remand order does not privilege.” of v. Mc tion Smith immediately. to trial force the defendants (4th

Donald, Cir.1984), aff’d, F.2d 427 737 The would be free to raise the defendants 2787, 105 L.Ed.2d 472 86 384 U.S. S.Ct. Virginia before the defense of (1985). Indeed, regularly rule state courts courts. defenses, e.g., “finally on see Coo court’s order neither federal denied, White, Cohen, determined,” ney (Wyo.), P.2d 353 at v. 845 cert. see 337 U.S. 69 - -, 1225-26, 114 126 “finally conclusively U.S. S.Ct. at nor S.Ct. (1993), I am confident that immunity,”' of L.Ed.2d 30 a claim absolute see denied Jamison, Virginia equipped are well to deal 14 F.3d 234. Nor did the defen- courts at issue this case. jeopardy the imminent of trial dants face validity ques apply Although has been 4. Steinman's doctrine also docs not because Waco tioned, Rosenblum, (as below) F.Supp. Timms v. 713 district court's discuss (4th (E.D.Va.1989), aff'd, ruling Virginia "City F.2d 256 954 n. 13 not bind the courts. would 1990), sign appellate given any provide Virginia no court has Cir. on the need Waco focused of Indeed, findings not be followed. that Steinman would review that are conclusive recently good as Monongahela as law as rights parties.” Nutter the case was cited v. Cir.1993) (em ph Hanford, Va. Co. v. 1993. American Filtrona Power 4 F.3d 514(1993). App. 428 S.E.2d supplied). asis statute, grounded There is no doctrine or rule that fendants have is in the First of the district immu- right allows court’s Amendment’s Petition Clause: “the nity ruling. people petition ... the Government grievances.”

for a redress of See McDonald Smith, 472 U.S. C. S.Ct. (1985). However, tempting majority It do what has give Petition Clause does not those who com case, is, step done in this back in the plain about the conduct of offi quiet try figure appellate review and right cials an absolute to tell lies about those really meant, out district court re- what the Id.; Nicholls, (3 officials. White v. 44 U.S. gardless today of its exact words. Until How.) 266, (1845); Bradley L.Ed. 591 there at least one instance where Computer Corp., Sciences where, here, could not be done: as a district (4th Cir.), denied, 940, 102 cert. (even erroneously) court ordered remand us- 476, 70 A charge L.Ed.2d 248 1447(c), ing magic words review of against government of misconduct officialis 1447(d). prohibited privileged long person so as the making the rule, shortcomings rigid of that Whatever malice,” charge does not act with “actual preventing procedural it had the benefits of that term is defined First Amendment free wrangling letting parties and of know speech/free McDonald, press jurisprudence. quickly decisively they whether were 484-85, 105 S.Ct. at 2790-91. going to state federal court. do Sullivan, See also New York Times Co. v. up away any it is to us to take believe 254, 279-80, 710, 725-26, statutory the benefits of that rule. (1964) (actual L.Ed.2d 686 knowing malice is falsity disregard or reckless for whether a II. false). statement is true or Thorne v. Cf. majority’s The election to reach the immu- (4th Cir.) (Petition Bailey, 241, 846 F.2d 245 nity question disagree me to forces second analyzed Clause claim in accord with First today. disagree majority’s time with the speech principles), Amendment free cert. de unprecedented step granting im- absolute nied, 488 U.S. 102 munity government to a contractor who was (1988). L.Ed.2d 569 any duty acting pursuant imposed by to contract, regulation. statute or I do believe conspire intentionally who “[TJhose to de employees that the contractor its fame a federal officer in order to effect that qualified priv- entitled to a First Amendment discharge” protected official’s are not ilege. long step qualified But the from to First Amendment and be sued for dam step absolute is a too far. Tennessean, ages. Windsor v. The 719 F.2d 155, 162.(6th Cir.1983), denied, cert. 469 U.S.

A. (1984). long recognized: This rule has been Mangolds allege The that the defendants engaged campaign in a of lies Col. individual, an maliciously, who wantonly, Mangold with the intent to ruin his career cause, probable asperses and without and that his career was ruined. The defen- public character of a officer in a written or say they voluntarily responded dants printed paper, delivered to those who are queries investigators from Air Force because power invested with removing him Mangold pressuring Col. them to hire office, responsible from party is to the bottom, his wife’s At friend. the defendants injured damages, although in paper such is they may complain alleged claim that about specious masked under the cover of inves- government misconduct of a official to his tigating the conduct of such officer for the superiors. n public good. policy Public demands no important rights persons defendants do have the such sacrifice of the misconduct, privilege report privi- capacity, but the official nor will the law endure lege only is privilege mockery justice. not absolute. The de- such a of its

1459 (Pa. Pentland, Air Serg. & R. 25 conduct. Their decision talk to Force Gray 2 McDonald, 1815) voluntary investigators 472 at 483- was not (quoted com 2790-91). contract, pelled by particular regulation 105 S.Ct. Group statute. Health Inc. v. Blue See “[tjhe short, petition guaran- right (S.D.N.Y. Ass’n, F.Supp. 69, Cross 78-79 teed; impunity libel right to commit 1985) immunity), (denying a claim absolute McDonald, 485, 105 is not.” 472 U.S. at (2d dismissed, Cir.1986), draw at 2791. That is where would S.Ct. denied, cert. S.Ct. private in this contractors the line for (1987). L.Ed.2d 758 case, immu- granting them absolute because nity gives right to tell them deliberate determining whether absolute im- When damages. lies fear of civil without munity granted, should be courts must bal- rights against ance the harm to individual B. promote government.” need “effective im- majority concludes Erwin, 295-97, Westfall munity should extended L.Ed.2d Cer- public inter- promote here to contractors tainly, granting these defendants absolute fraud, mis- stamping out waste and est immunity promotes effective means, of management government. This degree. Absolute encour- some course, Mangold is that if Col. correct voluntary cooperation govern- ages career, he lied and ruined his defendants investigate wrongdoing by ment’s efforts to any remedy whatever. without requires a employees. its But cost- Westfall agree I do that in the limited instances analysis, question and the difficult benefit obligated to private contractors are when whether, case is at the presented im- speak, they granted should be resulting margin, from move benefit munity. ques- If the answered defendants qualified to absolute out- from investigators Air be- tions Force weighs imposes gov- costs move contractually- they pre-existing, had a cause target employees who are the ernment so, duty do immuni- defined then absolute complaints. id. at 296 n. 108 S.Ct. at Corp., ty proper. Becker v. Philco would be n. 3. (“an Cir.) 771, 775 utterance by the plainly commanded duties marginal Here the costs are substantial. government repeated- has been author to the limits, immunity does not elimi- Qualified unconditionally privileged”) ly recognized as nate, targeted employees. rights of denied, U.S. (emphasis supplied), cert. 389 immunity, to qualified from absolute move (1967). 473 88 S.Ct. 19 L.Ed.2d however, jump quite is because absolute Similarly, Department if a Defense statute or rights immunity completely extinguishes reporting regulations imposed had detailed employees who have suffered of those even defendants, they have duties on the should immunity wrongs. comes “[OJfficial serious Seiler, complete immunity. Bushman injured party An with an great aat cost. (8th Cir.1985) (Medicare 653, 655 claim is denied meritorious tort otherwise immunity car- granted providers absolute had the mis- compensation simply because he responsibilities that rying out “administrative im- injured [someone fortune to be imposes”).5 the law Moreover, immunity con- munity!. be defendants, however, tenet that individuals no travenes basic were under These wrongful conduct.” for their duty Mangold’s alleged mis- held accountable report Col. to specifications, Boyle equipment to those majority’s Tech- conformed to 5. The citation (3) nologies Corp., supplier 108 S.Ct. warned the United States (1988), Boyle pro- apposite. not L.Ed.2d 442 using equipment. dangers” Id. about at512, be held vides a defense contractor scope Boyle 2518. The 108 S.Ct. at liability products certain kinds of liable for extremely no privilege and has rele- narrow “(1) approved the specifications" reason- if United States claims ably at id. n. 108 S.Ct. here. See at 505 vance equipment precise for the 1.n. "(2) government, produced and sold 1108, 1119, Id. at An additional (or (1983). danger) qualified Williams, cost of the move from to L.Ed.2d 96 See also immunity (presence stems the fact that F.2d at 142 of the “tools of the private government judicial process” justifies contractors are not grant sub of absolute ject suit). political They control. do not answer from civil A trial also is a voter, they public nor do proceeding, likely answer to and a witness is less political official who does. There is thus no if he exposed lie knows that his lies will be against fully check immunized contractor to the entire world.7 who becomes reckless or malicious his zeal Here, Mangold opportunity Col. had no expose government employee. See Nu- confront or cross-examine his accusers. Mfg. Air Co. v. Frank B. Hall & immunity, With absolute there is no check Cir.1987), denied, cert. they might what have said in a shrouded, investigation. internal I realize government The benefit to effective government investigators coop- need the giving protection government additional eration of contractors who witness voluntarily contractors who talk does not out wrongdoing, but absolute is too weigh the harm leaving govern caused broad a brush for the delicate task of ensur- employees they ment defenseless if ever be ing cooperation. honest target come the of reckless and malicious charges.

D. C. A ap First Clause Amendment/Petition proach goes just enough protect far majority’s significant expan Nor can the public substantial in bringing interest justified ground sion of on the public employees misconduct of or officials to species that the defendants are entitled to a light. qualified privilege under the Peti immunity. happened of testimonial What powerful privilege, tion Clause is a and it is (non given in here —statements an internal adequately protect one that will those who public) investigation strays Air Force too — cooperate honestly investi far from the core use of testimonial immuni gations. if Even a whistleblower is “motivat ty. give judicial We witnesses in certain self-interest, ed financial and [is] aware of trials, proceedings, such as absolute immuni pleased by prospect injury result ty they testify fully so will feel free to of,” ing complained to the official the accused truthfully being without fear of sued for the employee may damages not recover absent they speak words under oath.6 proof by clear convincing evidence that (or adversarial) process The trial contains his accusers made statements that were safeguards to knowingly recklessly Bradley, aid the search for truth. false. importantly, Stern, Most trial witnesses are 1033. Accord 547 F.2d at LaHue, to cross-examination. See Briscoe v. 1329. (4th Cir.) Eddy, mony absolutely (per privileged); 6. Holmes v. 341 F.2d 477 is Wheelerv. Cosden curiam), denied, 892, 185, cert. 382 U.S. (absolute Oil & Chem. 734 F.2d 261 (1965), majority, 15 L.Ed.2d 149 cited is during denied for statements made judicial proceedings best understood as a immu pretrial hearing), grounds, on other 744 modified nity There the case. defendant assisted the Secu (5th Cir.1984); County F.2d 1131 Cox v. of Suf Exchange prosecu rities tion of an Commission in the (E.D.N.Y.1991) (not folk, F.Supp. ongoing civil action. grand jury testimony absolutely privileged); all is Frank, (S.D.N.Y.) F.Supp. White v. (same), Indeed, grant

7. some courts have refused to ab dismissed, (2d 855 F.2d 956 Cir. during ju solute dicial safeguards for statements made 1988). Hubert, Strength But proceedings lacking truth-promoting see v. 854 F.2d (11th Cir.1988) open Malley (granting trial in court. See 423-24 & n. 2 Briggs, witness); L.Ed.2d S.Ct. grand jury from civil suit to (1986) (police officer not entitled to absolute Eberle, (7th Cir.) (per Kincaid v. 712 F.2d 1023 immunity for false made in warrant statements curiam) (same), denied, cert. Baker, application); Anthony v. (not 1992) grand jury 1400-01 Cir. all testi- importance of Again, recognize I fer- by public officials and

reting wrongdoing out My point and mali-

employees. false wrongdoing charges

cious can made. I would to leave the

For instances like those protec- protection. There is no

victim some in an internal investi-

tion when accuser immunity.

gation given re- qualified

spectfully think dissent because

immunity is sufficient. America, STATES

UNITED

Plaintiffs-Appellee, Taylor, Philip JOBE, Stephen

Billie Mac Jobe, Sutton, Stanley

Mark Pruet Novoa, Defendants-Appel-

Fernando

lants.

No. 94-50646. Appeals, States Court

Fifth Circuit.

March

Case Details

Case Name: Mangold v. Analytic Services, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 12, 1996

Citation: 77 F.3d 1442

Docket Number: 94-1307

Court Abbreviation: 4th Cir.