*1 back- by the reinforced is conclusion This in U.S.S.G. provided commentary ground that: explains commentary 2J1.2. § by this covered conduct [bjecause of an part frequently guideline effort escape person another assist ... refer- offense, a cross punishment After (Accessory 2X3.1 ence § ref- this cross ofUse Fact) provided. offense enhanced provide will erence respect is in obstruction when level offense, whether serious particularly to a de- committed offense such (Emphasis person. another fendant
added). indi- “effort” word underscored As the sentencing guide is meant cates, 2J1.1 § § U.S.C.A. of 18 violations for all “endeavor- an obstruction convicted Defendants theory. ing” 1503, namely, justice § obstructing escape of to effectuate attempting his sen- prior drug distributor convicted cross-referencing result, tencing. As fact) would after (accessory 2X3.1 appropriate.
VIII. reasons, all foregoing For sentences convictions Appellants’ AFFIRMED. JOHNSON, D.
William Plaintiff-Appellee, CARTER, Defendants F. Powell Appellant, America, Appellant. States United 90-3077. No. Appeals, Court Fourth Circuit. 3, 1991. Argued Dec. 15, 1993. Jan. Decided 3, 1993. March Amended As *2 Eugene Robinson,
Michael Div., Civ. U.S. Dept, Justice, DC, Washington, argued (Stuart Gerson, M. Gen., Atty. Asst. Bar- Herwig, Div., L. bara Civ. Dept, U.S. Justice, DC, Washington, Henry E. Hud- son, Norfolk, VA, Atty., U.S. Richard F. Walsh, Judge Office of Advocate General Alexandria, VA, Navy, brief), defendant-appellants. Denton, Virginia
Jeremiah A. III Beach, VA, argued, plaintiff-appellee. ERVIN, Judge, RUSSELL, Before Chief WIDENER, HALL, PHILLIPS, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, LUTTIG, HAMILTON and SPROUSE, Judges, Circuit Senior Judge. Circuit
OPINION
WIDENER, Judge: Circuit Carter, Jr., Admiral Powell F. former Fleet, Commander-in-Chief1 the Atlantic appeals from the district court’s decision denying his motion to the United substitute At all dispute, 1. times relevant to this Admiral lantic Fleet. He retired Carter was the Commander-in-Chief of the At so quarters report the Fed- sole defendant patrolman. identify the could Tort Reform Liability Employees eral (the Westfall Act Compensation gar- working Act).2 reverse. We officers three when home at his den *3 Admiral house. Admiral’s the at arrived Major supervisor, Johnson’s told Carter I. to something needed that Maynard, G.K. Carter’s 1989, Admiral base June discourtesy of the On the about done father Carter, her visited Janeen daughter, Johnson identified Maynard After police. Base. Naval Norfolk the on his home at Admiral Car- question, in patrolman as the Car- mother, Admiral left, her she When account wife’s his to Johnson related ter off her Carter, escorted wife, Carole John- ter’s Officer asked and happened had what ve- own her followed Janeen and the base. Mrs. Carter to rude he had been son officer Johnson, police a D. “No, hicle. William sir.” replied, Johnson daughter. their Janeen over base, pulled the at patrolman Johnson, Car- Admiral According to Officer re- Johnson When speeding.3 for Carter The Admi- a liar.” “You responded, ter pro- identification, Janeen base quested instruct Offi- to Maynard directed then ral Carter Carole placard. four-star a conduct duced properly to on how Johnson cer car Johnson’s Officer behind back circled informed also Carter Admiral himself. directed Johnson car. her got out formal and file a to he intended that Maynard gave He then car. her to back Carter Mrs. three offi- The against Johnson. complaint her sent warning and Carter Janeen dismissed. then cers base. the off proceeded way. Janeen her lodged Carter day, Admiral next- The and car Carter’s to Mrs. went then Johnson Johnson. Officer against complaint formal is- been warning had her informed news- in a local reported was The Janeen According to daughter. to her sued Pilot/Ledger Star. Virginian the paper, and rude Carter, Johnson Mrs. and the to statements no made Carter Admiral stop. during the intimidating to them to staff his instructed and newspaper her told home, Carter Mrs. return Upon her After press. any comments make him gave and happened had what husband Security Base Naval the investigation, Johnson’s Officer number vehicle the a two- approved and Force recommended car. arbitra- Upon for Johnson. suspension day concerned Carter, had been who Admiral disciplining instance, the at Johnson’s tion officers police of base conduct about the suspen- affirmed, but Johnson offi- identify the time, sought some warning. letter to a reduced sion was formal file a he could so that involved cer filed Johnson Officer In October After concerning incident. complaint Circuit Admiral Carter action reach attempting unsuccessfully Norfolk, Virginia, City Court and Base Naval Commander damages compensatory $500,000in seeking Station, Naval Commanding Officer damages punitive $1,000,000 and officer petty duty phoned Carter words, intentional insulting libel, slander, duty offi- asked Station Naval distress, tortious of emotional infliction supervi- involved patrolman cer, the and business contractual interference Security Force Base Naval sor for em- remedies law common state preempts dis- appeals the addition, Carter Admiral 2. as this. such activities related ployment dis- denying motion decision court's trict Act of Westfall resolution our immunity Because military on the based case miss is- CSRA Feres issue, decide do not we States, 340 Feres United forth set doctrine sues. (1950). 95 L.Ed. S.Ct. U.S. Also, issue appeal Johnson, equipment raises his radar According Carter (CSRA) a 25 m.p.h. in Act Reform Service Carter Janeen the Civil clocked relations.4 Admiral Carter then moved to II. have the case removed to federal district argues pursuant to 28 U.S.C. 1442 and 28 § United States should have been substituted 2679(d)(2) U.S.C. § as the sole defendant pursu action substituted as the sole defendant.5 ant 2679(d)(1) (the 28 U.S.C. Westfall § United States certified that Act).6 agree. We By plain language Admiral Carter was acting within the 2679(d)(2), of 28 U.S.C. no discretion is of employment alleged when the torts oc- given to the district court. If the Attorney curred. The ease was removed the Unit- General certifies the defendant em ed States District Court for the Eastern ployee acting within the *4 Virginia. District of The district court de- employment, “the United States shall be nied the motion to substitute the United substituted as the party defendant.” States as the sole defendant. Admiral Car- 2679(d)(2) added). U.S.C. (emphasis § ter filed a renewed motion substitute the Department The Justice, which once United as the sole defendant. The advocated Attorney General’s cer- pleading district court treated this as a conclusive, tification was now takes motion for reconsideration and denied it. position that scope certification of sought granted was employment office or is reviewable. It has stay of the district pending order court’s apparently also posi- taken an intermediate appeal. resolution of the Scannell, Nasuti v. tion. 906 F.2d appeal, panel On a divided of this court (1st Cir.1990). The Circuits are divided
upheld the district court’s decision.
John-
regarding
First, Third,
issue.
The
Carter,
son v.
(4th Cir.1991).
There
1989).
Cir.
dealing
2679(d)(1),
Act
portion
in the federal
with cases commenced
opinion
the district
We
ambiguity,8 Upon this claimed
courts.
giving
in not
conclusive effect
court erred
legis-
then look
typically would
certifica
General’s
history
Congressman
find that
agree
Depart
lative
with the
tion. We do not
Frank,
sponsor,
and,
that “the
position
Act’s
stated
latest
ment of Justice’s
right to
rely
have the
con-
plaintiff
respect,
would still
with those courts which
*5
thought
they
legislative history
determining
that the
the certification
test
[sic]
is
Attorney
certifying Attorney
General’s
General
[sic]
opinion
We are of
to not conclusive.
justification.”
Legislation
without
history
irrelevant
“[legislative
Tort
Act:
Amend the Federal
Claims
interpretation
unambiguous
statute.”
on Ad-
Hearing
Subcommittee
Before
Michigan
Treasury, 489
Dep’t
v.
Davis
Re-
Law and Governmental
ministrative
3,
1500,
803,
109
1504
808-09 n.
S.Ct.
U.S.
the Committee on
Judicia-
lations of
3,
(1989).
n.
L.Ed.2d 891
As we have
103
14,
60,
Cong.,
(April
2d
128
100th
Sess.
ry,
stated,
recently
1988),
Logistics,
cited Meridian Int’l
Congress
statute], not its
enacted
States,
In
[the
ence,
Saturdays,
nor do
Sundays, or holi-
days, as we all
judge,
know. A
when at
III.
home, can issue an
unquestionable
order of
validity.
In Cunningham
Neagle,
event,
even if the certifica
U.S.
(1890),
L.Ed. 55
tion should not be conclusive in all cases
Supreme Court
principle
discussed the
at
(which
intimate),
we do not
it must be
issue here.
treated as conclusive
ain case such as Important cases are
argued
often
before
military
where
officer is inquiring into a
judge
any place
at
convenient to the
report
him concerning
improper perfor
concerned,
parties
and a decision of the
duty.
mance of
The manner in which Ad
judge is arrived
by investigations
at
performed
miral Carter
duty
should not
room,
made in his own
may
wherever he
subject
to review aby civil court under
be, and it is
say
idle to
that this is not as
the Westfall
upon proper certification,
Act
performance
much the
duty as
here,
and that is what the Westfall Act
filing
judgment
clerk,
with the
is all about.
opinion
We are of
and the announcement of the result in
be,
is,
should
entirely
and it
within the
open court.
province Congress
provide,
has,
as it
135 U.S.
Court,
merely because it if: employment Base. at Norfolk Naval garden Admiral’s contrary would serve to A decision to (1) impliedly directed expressly or officers of hamstring principal one of naturally incident employer, or is performance of his business, the United States duty. (2) performed, although mistaken- it was
ly
ill-advisedly,
the intent to fur-
with
interest,
employer’s
ther the
IV.
that was the
impulse
some
or emotion
(and again assuming
In
event
attempt to
of an
do
consequence
natural
scope of
employment
that the
business,
employer’s
“and did not
intimate),
reviewable, which
do not
we
external,
wholly
inde-
arise
from some
concluding
the district court erred
part
motive on the
pendent,
personal
outside
Admiral Carter’s actions were
[employee]
upon
do the act
The determination
employment.
own account.”
employee’s actions were
of whether
West,
430,
Kensington
v.
234 Va.
Assoc.
employment is to be
within
(1987) (citations
900, 901
362 S.E.2d
respondeat
according to the
determined
omitted).
State, in this case
rules of the
superior
anything in
It
said from
alleged
occurred.
cannot be
Virginia, in
tort
which
summon
States,
record that
Carter’s
350 U.S.
v. United
Williams
police
“wholly
(1955) (per
ing of a
officer arose
base
correct the
rudeness be-
which it occurred. As we stated in Wallen
from civil defamation suits.” 360 U.S. at
Domm,
Cir.1983),
ing context—an proper otherwise exer- The court also holding district erred in authority cise of effectively that “to substitute the United States as the —would emasculate immunity the defense. defendant, Once sole and to dismiss thé then wrongful the acts are plaintiff’s excluded an from claims ... completely ig- [would] exercise authority, only of any innocuous ac- nore semblence of constitutional [sic] tivity remains which immunity to process’ plaintiff would ‘due on his claim of Thus, be available. the defense alleged would slander and Supreme libel.”9 The The Smith, note, United sovereign States has not waived its we was decided after the district immunity Therefore, in defamation actions. court's decision. government the is substituted as the sole defen- judgment dant plaintiff. be must entered the 2620(h). 28 U.S.C. the holding to — in erred court district U.S. Smith, States Court, in United contrary. L.Ed.2d 1180, 113 -, reasoning its district the phrase of not it decision Accordingly, did the while (1991), rejected reversed, and terms, expressly must from appealed in constitutional that held to sub- and instructions very account with that recovery on case remanded the de- party immunized as the are United States employees the stitute government exception judgment FTCA enter to then when and suit “even fendant from States, it not Govern the United recovery against in favor case precludes immunity for — sovereign at 1182. at -, S.Ct. its having waived U.S. ment.” of claim. type this mere- than more much involves case This WITH REMANDED AND REVERSED statute the federal of construction ly the INSTRUCTIONS. employ- scope of law on Virginia the ability the do with has It ment. Judge, Circuit SPROUSE, Senior of officers principal the one of of obligation dissenting: duty un- perform States United the the for having to answer dissent. respectfully I hampered seriously can oneNo court. a civil same not would Carter Admiral contend I the movement authority to order the ma- with disagreement strongest My garden same from aircraft ships and of holding that its is with opinion jority gov- by the (which owned is here involved scope of of Attorney General’s any at Base Naval ernment) the Norfolk substituting of purposes employment day of on night, day or hour is con- the defendant as States United Regulations Navy for, week, pursuant review. defies clusive, thus “exer- might he service” active “while by con- degree to a is influenced My view who persons all authority over cise Justice Department by the cessions true just isIt to him. subordinate” certifica- Admiral Carter behalf the base authority over had Carter States by United review subject to tion iswho Base Naval Norfolk policeman from precedent find I also courts. district contested This case. in this involved appeal courts seven decision acknowledged in and is apart Even persuasive.1 effect same had Since court. district sup- overwhelming precedential from policeman base control authority to objective conclude I cannot port, Carter’s) (Admiral performance enacting 28 when Congress, analysis that perform authority to had he duty, then to interfere 2679(d)(2),intended U.S.C. § entirely a manner than duty other decide prerogative judiciary’s with (even if sensibilities public accord me, is dis- To jurisdiction. questions ad- uttered, which is charged words denies opinion majority turbing that argument.) mitted decisions to review authority courts partic- legal branch’s executive office— Admi- hold that so opinion We are deter- here, decisions its where, as ularly acting within ral Carter an interested it is in which litigation mine occurred. when *9 (1991); 358, 301 U.S. -, L.Ed.2d 116 112 S.Ct. 1007, 1010-11 Armstrong, 949 F.2d v. Brown 802, (1st Scannell, 812-13 F.2d 906 v. v. Nasuti Logistics, Inc. Cir.1991); Int'l (8th Meridian 416, Jenkins, F.2d 421 903 (9th Cir.1990); v. 740, Cir. Arbour States, 743-45 F.2d 939 1209, Cir.1990). Franklin, (6th F.2d 931 1991); v. Hamrick -, — denied, U.S. Cir.), (7th cert. 1210-11 question ear circuits, decided which Two (1991); W. S.J. & 200, 159 L.Ed.2d 116 S.Ct. 112 ac Justice Department of (one before liest 1538, Lehtinen, 1540-42 Ranch, F.2d 913 v. Inc. held position), have knowledged current its (11th 1555 Cir.1990), F.2d modified, 924 (11th 128, Carlson, F.2d 896 v. contrary. Mitchell 62, 116 denied, - U.S. -, 112 S.Ct. Cir.), cert. 1046, Lutz, Cir.1990); 887 F.2d (5th v. Aviles 136 628, Hafer, F.2d 912 (1991); v.Melo 37 L.Ed.2d 1989). (10th Cir. 1048-49 grounds,- Cir.1990), other (3d 640-42 aff'd 1325 Quite party. apart possible interpretation constitu- is wrong. if the Even lan- problems separation tional powers guage equivocal, however, and an ex- which, process, my opinion, and due in legislative amination of history and con- majority dismissed, quickly has too all of gressional intent were required, my conclu- interpretive point traditional tools to sion would be the Congressional same. Congress conclusion that intended 28 rationale in differentiating between the ef- 2679(d)(2) unsavory U.S.C. to avoid this § fect of certification removal, as it relates to appearance by subjecting unfairness hand, on the one and its effect on substitu- Attorney General's certification to judicial tion, other, on the pointed out review. Eighth Circuit in Brown v. Armstrong, 949 F.2d Cir.1991). 1007 The court noted A that substitution will often end plain- In the place, unambiguous first the the tiff’s case—as it However, will here. language of the statute should dispose same concerns do not “[t]he exist with au- question. 2679(d)(1) Section applies to removal, tomatic which changes only the courts, cases filed district federal while forum and not the substance case.” (d)(2) section to those applies filed in state Id. at 1011. The Third Circuit has ex- provide: courts. Both “Upon sections cer- plained significant policy tification ... reasons United States for shall (em- Congress give substituted as party government defendant” an un- phasis added). addition, (d)(2) section challenged right to a federal forum for tort provides: “Upon certification ... [the brought against suits (remov- employees its shall be removed ... to the district claim] al), noting while policy no similar rea- added). Thus, court” (emphasis in federal making sons for exist the Attorney Gener- cases the result of certification is substitu- al’s substitution decision unreviewable. tion, while state cases it is substitution Historically, government general has plus removal. Notably, only mention ly preferred to litigation have which it or of nonreviewability pertains to removal: employees its are defending in the neu “The Attorney certification of the General tral confines of federal courts. For ex shall conclusively establish of office ample, a similarly right “absolute” employment purposes removal.” for provided removal 2679(d)(2) (emphasis added). U.S.C. 28 U.S.C. § Clearly, then, 1442(a)(1) only pur- certification whenever for suit poses nonreviewable; of removal is certifi- United States officer is filed a state cation purposes for of substitution remains act for “under color of [feder subject review. because, office” Supreme as the al] explained,
There are
Court
only
ways
“Congress
two
has
has de
view
majority’s reading
language.
of this
officers,
One
cided that federal
and indeed
interpretation
they
is that
have added
itself, require
Federal Government
words to the sentence to make it read:
protection
of a federal forum.” Melo
“The
certification of the
General
Hafer,
(3d Cir.1990)
912 F.2d
shall
conclusively establish
office
(quoting Willingham
Morgan,
purposes
of removal
402, 407,
U.S.
89 S.Ct.
purposes
substitution.” Alter-
(1969)),
L.Ed.2d
on other
aff'd
natively, they
interpreted
“shall” in
—
-,
grounds,
U.S.
“shall be substituted”
“shall
be re-
(1991).
B cially purposes reviewable for of substitu- *10 tion, apparent It is unambiguous from the not novel. It has posi- lan- the been guage of the statute that majority’s Department the tion of the of Justice at least 1326 not be would that certify. But might opin the represents 1990,2and early since plaintiff The plaintiff. on the binding of courts federal nine the of seven of ion go to right the assume, have would, I Perhaps issue. entertaining the appeals not baloney, it was say, and is found court into discussion comprehensive most the either employment, of decision the 1990 within Circuit’s Eleventh the or be- Lehtinen, immunity issue 913 of Ranch, v. some because Inc. & W. S.J. Cir.1990), defendant modi hated that really (11th you 1538, 1540-42 cause F.2d Cir.), de cert. them. (11th get you wanted F.2d 1555 and
fied, — -, is the fact, that nied, U.S. Yes. Williams: exhaustively Lehtinen (1991). arisen has L.Ed.2d frequently way it of majority the of the rationale expresses past. circuits: understanding other Frank’s Representative history [legislative of this review Our sub- be would issue certification the that the that us 2679(d)(2)] persuades not shared review ject in er interpretation court’s district represen- by a Williams, also but only by the hearings before the During ror. Deputy Department, Justice of the tative Administrative Subcommittee House Will- Robert Attorney General Assistant of the Relations Governmental Law following by the more, is evidenced as Judiciary, Subcommit on the Committee exchange: bill, of the Frank, sponsor a Chair tee still can plaintiff Well, the but Frank: understanding that expressed not? certification, he could the contest still can “plaintiff 2679(d)(2) a section Yes. Willmore: Arb See certification....” the contest dur- Later 421. F.2d at Arbour, 903 See 416, 421 Jenkins, F.2d our reiterated: hearing, Willmore the ing elabo Frank Representative Cir.1990). plain- a correct is Frank “Chairman rated: So certification. challenge can tiff going to is not bill] mean [this I at court aby reviewable be would It litigation. the [certification] void Dis- by a Federal probably point, some weap- is a me the certification seems legislative agree. We Court.” trict against not employee, the provision certification history of plaintiff because plaintiff, the lan- coupled Act the Reform to contest right still would us persuades itself the statute guage thought they scope certifi- Attorney General’s certifying Attorney General only dispositive pertinent is cation justification. without purposes. removal reiter- bill understanding of the This is statute interpretation Williams, Our Lois colloquy with in a ated consider- additional by several supported National Litigation Director con- powers First, separation ations. Union. Employees Treasury cogently Circuit First theAs cerns .... decid- judge is [Essentially Frank: Congress imagine hard noted, is “it for the issues One the case. ing officer, the At- executive empowering to decide [certifica- going judge States, to the United torney General might have you because ... tion] final court federal can- displace conceivable—I It is route. third determiner many cases—where of too think forcing federal Gov- thus question, want might not plaintiff jurisdic- own its forego determination in there. ernment by ex- plaintiff, preventing tion, right. That Williams: possibly fiat, pursuing ecutive object to might plaintiff So Frank: Nasuti court.” state claim legitimate Government argument guidelines). of Justice F.Supp. ment States, 728 Petrousky See Depart- (discussing new (N.D.N.Y.1990)
1327
Scannell,
906
(1st
F.2d
Cir.
the final determiner of
of em-
1990).
ployment question, thus forcing a federal
Moreover,
statutory
interpretation
forego
determination of its own
urged by defendant
particu-
jurisdiction,
Lehtinen is
and preventing
plaintiff,
larly suspect because
it leaves
fiat,
the deter-
executive
from pursuing
possi-
mination of
dispositive
issue
bly legitimate
in FTCA
claim state court. Espe-
to an
cases
party....
interested
We
cially
do
this unlikely given
the Attorney
Congress
not believe
intended to entrust
General’s interested relationship to the
party
responsible for providing the
case. It is his
responsibility
represent
employee’s
federal
pow-
defense with the
protect
the interests of the United
er to
make a
determination that
States and of the defendant employee,
will have the result
dismissing
of
see 28
2679(c).
U.S.C.
There
sug-
is no
plaintiffs
for
jurisdiction.
suit
of
lack
gestion that the Attorney General
tois
Nasuti,
parties.... cognizant We are also pro- of the due Nasuti Scannell, (1st F.2d implications cess in treating inherent the Cir.1990). Attorney General’s scope as short, my view that unambigu- dispositive. We share the First Circuit’s ous language of 2679(d)(2) section provides nothing observation that regula- that certification is conclusive for purposes governing tions scope certifications re- removal, but reviewable purposes quires the Attorney General “to conduct substitution. Even if the language were a neutral proceeding, open parties, to all ambiguous, however, I would reach the taking before position a final on the same Congressional result. intent leg- scope question....” history, islative explained as previously by Finally, whether an employee’s actions other here, circuits and reiterated make are within that conclusion inescapable. purposes of the Reform Act is an governed issue by the law of state
where the C Nasuti, occurred. 3; F.2d at Arbour, n. 903 F.2d at IAs understand III part majority of the 421-22. Because this in- determination opinion, would, quite apart from the question volves a fact, as well law as above analysis, create a subset cases it is reasonable to assume that Congress (such one) as this concerning any high mili- entrusted the disposition authoritative tary officer “inquiring report into a to him question judicial to the rather than concerning improper performance duty.” the executive branch. Op. at Regardless of whether the Lehtinen, 913 (some F.2d at 1541-42 cita- executive judicial or the branch is the ulti- omitted) tions (emphasis added Lehti- mate judge of of employment court). nen question, holding Admiral Carter accounta- IAs indicated, six circuits in addi- not, ble would majority suggests, tion Eleventh, employing similar ra- hamstring “one of principal officers of tionales, have reached the same conclusion. the United States” in performance The First Circuit in Nasuti added: Op. duties. at 1324. Carter could be Even without [legislative history of held only liable he acted .if outside Act], Westfall it is hard to imagine performance Moreover, duties. sec- Congress empowering an executive 2679(d)(2) offi- tion is not directed preserving cer, the Attorney General of the United discipline in the military. grants protec- It States, displace the federal court as tion to all federal employees.3 There is no agency” 3. "Federal includes the "Employee executive de- government” includes offi- partments, legislative branches, employees cers or agency, federal military departments.... military members of the or naval forces of the *12 demonstrate should It laws. and state al applying between principle difference recog- even principle that, most basic our a four- action of — improper the statute the critical implicit in exceptions rare nizing the improp- it applying and admiral star on operates the law emergencies, postal of national supervisor mid-level aof action er equally. citizens all employees. con- expresses nonetheless majority The D of this review judicial permitting that cern analogy an between might somehow draws majority tort civil military officer’s military offi- high-ranking go to some They of security. actions the national affect entertaining judges Carter of conduct the that and out cials point length to inor home Atlantic at the while for relief of petitions movements direct could quar- have no I dressed locations. nonjudicial while garden his other from Fleet offi- judicial both that the thesis well within with and be rel clothes civilian must times this at military that officers They conclude authority. and cers his of in locations while emergencies construc- mere respond than more involves case think, I Virginia stations. official and the their than statute other a federal of tion mark analogy misses however, this that employment. scope of on law sug- would of us None margin. wide and obli- a ability by with to do It has litigant a summon could judge a gest of officers principal of one gation admin- and in a social hall or duty his on the streets perform the United personal of some because judicially ister answer having to by unhampered be judge a should Nor caprice. or seri- can whim one No court. in a civil same harass- for sexual liability from would immune ously contend judicial off on or it occurs ment, whether move- authority to order the park- chastising a unduly or for premises, the same aircraft ships and ment employee. custodial or attendant ing lot (which is owned here involved garden judicial that a question no be should There Naval the Norfolk government) suit immunity from denied be night, on would day officer or any hour of Base at For nonjudicial derelictions.4 such over the week.... day of should military officer reasons, a same 1324. Op. at by a civil- action civil immunity from denied course, fervently hope, of We all con- tortious over sues who policeman ian surprise fall country were to this by an alle- officer, brought duct or an invasion or suffer attack nuclear po- wife officer’s from the gation all crisis, and the Admiral military other treatment Although the rude. liceman respond would military servants other our considerably Johnson Officer afforded physical and geographical from whatever unbecoming to flogging, aof short my at the time. occupied they positions high rank Carter’s of Admiral officer with the hardly equates however, view, this Navy least, was not and, say the officer, enjoying one in which situation oblige. of noblesse tradition our offices honors highest prerogatives bestow, uses can nation E peeve— personal to vindicate position elitist an authoritative be that may It view- Even court concluded. the district as high-ranking immunizing completely context, rule as military purely case in ing the all tortious any and military officials involves agree that it I majority, does create would subordinates toward feder- conduct construction merely than more opinion shadows majority Regrettably, the 4. States, Guard National of the members United ap- doubt, Act Westfall ..., since principle with training duty or engaged in while legislative) (and agency executive plies a federal acting persons behalf employees. 28 perma- military temporarily capacity, employees as well official in an States, nently service 2671. § U.S.C. compensation. without 28 U.S.C. military. and more A disciplined better acted outside the employment. egalitarian approach military We, course, more disci- consider de novo the district pline in country a democratic is at least application court’s Virginia law. Al- *13 equally Despite temptation tenable. the though presents the record signifi- us with tangential, in engage philosophical disputes, con- cant factual we must affirm the cerns, however, legal the issue we review is district court’s findings factual unless they military. not the about Nor about are clearly erroneous. libel, or whether Mrs. Carter or Officer Only people three witnessed the traffic lying. Johnson is The issue we review is Johnson, encounter: Officer plaintiff; the a federal law protect about enacted to Carter, Carole wife; the Admiral’s and Jan- efficiency of federal employees’ perfor- Carter, een daughter. the Admiral’s mances. story two women’s differed critically from fashion, in Focused this I impli- view the Carter, Johnson’s. Admiral perhaps under- cations of our decision in perspective standably, chose the version offered his from majority’s. different Even aside daughter wife and investigating without possible concerns, from it is constitutional inquiring into possibility that Johnson hard for me to fathom Congress that would was correct. Mrs. Carter stated that her grant the authority executive branch the daughter traveling per hour; 23 miles protect liability from any and all Johnson clocked her at 40 per miles hour. officials, circumstances military or other- Mrs. Carter said that Johnson was rude wise, who have violated our I civil laws. discourteous; he stated that he was Congress believe principal that a intended professional and They courteous. also dif- States, officer of the United no matter how fered in their accounts of the actual words high must, position, fact, his be “ham- passed that between them. pered” by having to answer for civil trans- discrepancy Relevant is the between the gressions in civil court if he acts outside view of Admiral concerning Carter his en- scope of his authority, and that counter with Johnson at his home and the jurisdiction to question decide the ultimate version offered independent witnesses. authority rests judiciary. with the Carter deposition testified in his that he did not send for merely Johnson but for his II superiors, and that did not he address John- Although review of Gener- initially spoke son but to him only after he al's certification on substitution is neces- Major Maynard identified. wrote that only if sary reviewable, certification is he, Navy (the when Lt. Irene Glass Naval majority nonetheless engages in that analy- officer), duty Station command and John- part sis opinion. IV of its Like its hold- Carter, reported son the Admiral ing on reviewability question, I believe stated speeding that the really ... was majority’s conclusion that Admiral Car- not his concern at moment. He was ter’s actions fell within the of his really way concerned about offi- employment faulty. is also cer treated daughter. He then stated The district court held that Admiral Car- daughter when his showed officer ter acted outside the military placard it, Johnson his with the stars on employment when the incident at issue oc- officer Johnson stated that those stars curred. The majority correctly notes that give you right speed don’t in FTCA cases the determination break other on this laws base. He employee’s actions are within the by stating then continued that when his employment is to be made under the law getting wife came back and was out of state which vehicle, tort occurred—in her yelled officer Johnson at her case, Virginia. Contrary majori- get back in her vehicle. He then however, ty, I application think Virginia asked officer Johnson that was not requires law to the facts here affirmance true? Officer said Johnson “no sir”. of the district court’s holding that Carter Admiral Carter then called officer John- sur- is determined he stated then He a liar.... son including charac- circumstances, rounding in- him working for people a lot had of the nature employment, ter com- base Pappas Jimmy [the cluding its com- place deed, time wrongful to have going he was mander], and See, act. purpose mission, investigated. whole Va. Romaczyk, Abernathy e.g., depo- insisted also scuffle (1960) (declaring 88, 92 117 S.E.2d only angry but really he sition that personal gratify venture independent testified Glass Lt. whereas agitated, 238, 64 Bare, Va. feelings); Bryant “he could Maynard Major told within (holding (1951) 741, 747 S.E.2d *14 then She replaced.” fired, be him had, employee occurring when accident an ask Johnson not did Carter that testified highway detour, on proceeded earlier after daughter or his to wife rude been he had v.Co. Power instructed); Appalachian deposition); in testified (as 224, 227- 454, 129 S.E. Robertson, 142 Va. rude: had he been Johnson rather, told he courtesy a outside (1925)(holding 28 telling [John- generally [Carter] “I recall during meal person for third performed to rude disrespectful, or he was that son] Drake premises); work off hour Norfolk Lt. him.” ask didn’t He Carter]. [Mrs. 354, 116 Va. 135 Corp., Laundry Steam Carter that testified also Glass (holding within (1923) 668, 670 S.E. job and doing his not he was Johnson told own way for out of going employee’s his treated had effect, that Johnson said, in began and was that errand purposes criminals. common like daughter wife employer). of in service to end Admiral Carter that testified Finally, she detailing regulations naval cites tell Carter could she upset” “appeared partic- commanders—in naval of voice, the duties his of tenor from “[t]he this ular, the Commander-in-Chief an- controlled using was He posture_ Carter Specifically, Fleet.5 Atlantic ger.” of base supervision general argues dis facts, which view, these my In supervision forces, including the security crediting John by interpreted court trict re- among his traffic, is vehicle of motor To review. our version, critical son’s sponsibilities.6 supe respondeat of Virginia’s law invoke regulations naval relies also Johnson fairly and be act must employee’s rior, the contrary contention—that support busi employer’s naturally his em- of outside acted Carter en employee while ness, done be Navy stresses particularly He ployment. business, and be employer’s in gaged a mili- prohibits 721.18, which regulation employer's further a view done any ac- in participating tary officer Al Corp. v. Pontiac Roughton interests. conflict of a appearance that has tion 149 152, 372 S.E.2d ston, 236 Va. regulations cites also Johnson interest.7 Carpenters Bhd. (1988); United and abu- behavior tyrannical prohibit S.E.2d 127 203 Va. Humphreys, subor- dealings with in language sive 83 denied, U.S. 371 (1962), cert. 102 insulting the use proscribe dinates,8 and Scope of (1963). 509, 9 L.Ed.2d S.Ct. 700.602(a), 700.309(a), 700.- §§ C.F.R.
5. 32
im-
or
independence
complete
[ljosing
(4)
602(d).
partiality,
5.c;
id. 11200.5C
at ¶
5530.14B
6. OPNAVINST
the code
4.3.a(3).
4.b(l),
OPNAVINST
activity
¶¶
1—
engage
(d)
...
Naval
by
Chief
promulgated
instructions
expected reasonably be
or
might result in
Operations.
interest.
a conflict
appearance
create
(d)
a
provide that
721.18(b)(4) and
C.F.R.
provides:
regulations, article
8.Navy
...
must
officer
naval
injure
spe-
action,
authority
or not
are forbidden
[ajvoid any
(b)
Persons
capricious
might
or
tyrannical
result in
or
by
which
cifically prohibited,
subordinates
their
appear-
language.
to create
expected
conduct,
reasonably
by
abusive
ance
defamatory language
general.9
plaintiff
John-
independent
were “an
venture of
own,
son
that when
contends
Carter violated his
and the relation of master and
regulations,
these
“upon
he did so
his own servant
for the
suspended”).
time
responsibility.”
hardly support
These eases
the creation of
purpose
a “dual
doctrine.”
view,
my
In
consideration of the cited
regulations
presents
naval
alone
a close
not, therefore,
I would
disturb the dis-
question whether Carter’s actions were in-
finding
trict court’s
that Admiral Carter
employer’s
cident to his
business. Assum-
acted
employment.
outside the
however,
ing,
regulations
that the
cited
alleged
incident occurred in Carter’s
Carter vested him with authority, and that
garden where, dressed in casual civilian
was not vitiated
the conflict-of-inter- clothing, he
engaged
quintessen-
est regulations,
question
there remains- the
tial civilian activity. The
correctly
Virginia
law whether he acted with
single
determined
incident,
traffic
purpose
fulfilling
responsibili-
these
backdrop
even
general
com-
commander,
ties as a naval
personal
or for
plaints,
pose grave
did not
and immediate
context,
argues
reasons.
problem. Resolution of the issue could
*15
personal/official
that a mixed
motive would easily
postponed
have been
until the next
show that
scope
his actions fell within the
day
working
normal
day, during which
—a
employment,
of his
pursuant
to a “dual
the Admiral could have determined the
purpose doctrine.” Although Carter cites
facts in his office under
military
normal
West,
Kensington Associates v.
234 Va. procedure
perhaps
and
could
so
have done
(1987),
with a different construction worker. The reviewed the General’s certifica- guard’s employer given specific had him substitution, purposes tion for it instructions not to “bother” the construc- correctly determined Admiral Carter tion workers. The court found that neither authority. acted outside the horseplay shooting nor the resulting important It is was done in remember that employer’s furtherance of the we Rather, question not faced they interests. with the when the whether the occurred guard upon commission of a independent “embarked tort can be within ven- satisfy Domm, ture to personal employment. own desire to Wallen v. ‘play’ 903; Cir.1983) have ‘fun’ and 700 F.2d (per around.” Id. cu- riam), see also Abernathy Romaczyk, question 202 Va. answered that in the affir- (1960) (holding faced, 117 S.E.2d rather, that mative. are We with employee’s argument question scuffle commission of a tort 133(a) Military commanding Code of Uniform art. A departs Justice officer who instructions, (codified 933); 133(c)(3). at 10 U.S.C. his orders or id. or takes official art. action which is not in accordance with such instructions, upon orders or responsibility.... does so own 700.702(b) provides: 10. 32 C.F.R. § always within employee government
by a Attor- when it believe is. I certifies ney General dissent. not, therefore Judge Chief state that I am authorized PHILLIPS Judges ERVIN, and dissent. in this join MURNAGHAN BIRDWELL, Andrew David Petitioner-Appellee, Jr., District SKEEN, Criminal Jack Texas, County, Attorney of Smith *16 Respondent-Appellant. 91-4561.
No. Appeals, Court Circuit. Fifth 24, 1993. Feb.