USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1960

FRANCES A. ROGERS,

Plaintiff, Appellee,

v.

MANAGEMENT TECHNOLOGY, INC., ET AL.

Defendants, Appellees,

____________________

RICHARD CAVALLARO,

Defendant, Appellant.

____________________

PETITION FOR WRIT OF MANDAMUS AND APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, District Judge]

______________
____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________
____________________

Jennifer H. Zacks, with whom Frank W. Hunger, Assistant Attorne

_________________
_______________

General, Donald K. Stern, United States Attorney, and Barbara L.

_______________
__________
Herwig, Attorney, Civil Division, U.S. Department of Justice, were
______
brief for appellant, Richard Cavallaro.
Paul A. Manoff for appellee Frances A. Rogers.
______________
____________________

August 12, 1997

____________________

CAMPBELL, Senior Circuit Judge.

____________________

The United States

and its employee, Richard Cavallaro, appeal from the district

court's order

remanding

a slander

action

brought

Cavallaro back to the Massachusetts state court.

against

The slander

action had earlier been removed to the federal court pursuant

to the Attorney General's

Westfall Act certification,

which

stated that Cavallaro had been acting within the scope of his

federal

employment

incident.

at

Appellants

the

time

of

the

alleged

now complain that the

slander

district court,

ignoring the Attorney General's certification, wrongly placed

upon

them

acting

burden of

within the

committing

the

the

scope

establishing

of

the alleged tort.

absence of

any express

his

that

federal

Cavallaro was

employment

when

Appellants further complain of

determination

by the

district

court that Cavallaro had in fact been acting beyond the scope

of his federal employment.

We vacate and remand.

I. Factual Background
______________________

The plaintiff,

Management

Technology Inc.,

August 1993.

help desk

Rogers

superior

then

a government

At that time, Rogers was

falsifying the records

entry

Frances A. Rogers,

at

state

fired, allegedly for

Hanscom

action

court against, among

civil service employee

contractor, until

of the hours she had worked as a data

coordinator

filed

was employed by

in

Air

the

others, Richard

of the United States Air

-22

Force

Base.

Massachusetts

Cavallaro, a

Force.

She

asserted

over

that following a dispute she had had with Cavallaro

parking space,

telling her

he

had

defamed her

wrongfully

superiors that she had falsified

her time cards

causing the loss of her job.

The

Westfall

United

States

Act, certified

within the scope of his

that

Attorney,

Cavallaro

acting

had

under

the

been

"acting

office or employment at the

time of

the incident

out of which

2679(d)(1).

federal

the claim

The government

district court and

substituted

Cavallaro be

arose."1

then removed

moved that the

for Cavallaro as

28

the case

28 U.S.C.

to the

United States be

the party defendant,

dismissed, under

U.S.C.

and that

2679(d)(2)

and

(b)(1).

At

separately

Westfall

federal

personal

the

for

same

time,

summary

the

government

judgment, arguing

also

that

since

moved

the

Act provides that a plaintiff's sole remedy against

employee

injury or

for "injury

death

arising

negligent or wrongful act or

Government while

loss

or

of

property, or

resulting

from

the

omission of any employee of the

acting within

employment," 28 U.S.C.

or

the scope

2679(b)(1), is

of his

office or

a suit against

the

United States

under the Federal

Tort Claims Act,

and since

____________________

1.

Although the statute designates the Attorney General as

the person who makes the scope decision, the Attorney General
has delegated this authority to the United States Attorneys.
See 28 C.F.R.
___

15.3(a).

-33

the Federal Tort

Claims Act provides no waiver

immunity for the

types of claims asserted by

U.S.C.

Rogers, see 28
___

2680(h), Rogers had no remedy.

The case

District

Judge

Harrington

was assigned initially

Harrington.

ordered

"delineating

the

both

duties

employment . . . ."

as the government

neither

of sovereign

party

On

parties

and

to United

April

29,

to

submit

now contends,

filed

affidavits

1994,

or for

in

Judge

affidavits

responsibilities

Whether because it was

States

of

their

never received,

some other

compliance

reason,

with

this

order.2

On May 16, 1994, the case was reassigned to

States District Judge Gertner.

United

On September 16, 1994, Judge

Gertner

held a

substitution

dismissal

Rogers

of

hearing

of the

government's

and

denied

all

the

as

motions

for

party defendant

and

for summary

defamation action.

Cavallaro's failure to

the April

the

United States

Cavallaro

in her

Gertner

on

On

May 30,

government's

file an affidavit in

29, 1994 order and a

judgment

against

1996, Judge

motions,

citing

compliance with

lack of basis for concluding

that Cavallaro was acting within the scope of his employment.

____________________

2.

Rogers submitted an affidavit on May 2, 1994 that did not

address the "duties and responsibilities" of either her

employment or Cavallaro's.

Rogers says she filed this

affidavit in support of her opposition to the government's

summary judgment motion, and not in response to Judge
Harrington's order.

-44

Judge

Gertner

Massachusetts

then

remanded

state

court.

the

case

Without

back

to

moving

the

for

reconsideration, the government filed this appeal.3

II. Review of the Scope Certification

______________________________________

The

certification

Westfall

by

the

Act

states

Attorney General

that

the

that

scope

a federal

employee was acting within the scope of his or her employment

when committing the alleged

"shall

employment

conclusively

tort from which the claim

establish

scope

for purposes of removal."

_______________________

(emphasis added).

of

office

28 U.S.C.

In Gutierrez de Martinez
_____________________

arose

or

2679(d)(2)

v. Lamagno, 115
_______

S. Ct. 2227 (1995), the Supreme Court construed the Act so as

to allow

district courts

to review

scope certificate relative

the Attorney

to the matter of

the United States as a party defendant.

General's

substitution of

The Court wrote:

Congress spoke in discrete sentences in

2679(d)(2)

first

substitution.

of

Next,

removal,

then

Congress made

of
the

____________________

3.

The government says that it did not file a motion for

reconsideration under Fed. R. Civ. P. 60 because it "did not

become aware of the district court's orders denying the
United States' motion for substitution and remanding the case
to state court until a few days before the deadline for
filing a notice of appeal . . . ."

Given the government's

complaint that it was not notified of Judge Harrington's

order to file affidavits, it would have been sensible to
bring this matter to the district court's attention.

The

government's excuse that it did not learn of Judge Gertner's

order rejecting its motion until shortly before the
expiration of the time to appeal is not persuasive.

It could

have filed its notice of appeal first and then asked the
district court to reconsider its order.

See Puerto Rico v.

___ ___________

The SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979).

______________________

-55

Attorney General's certificate conclusive

solely

for

purposes

of

removal,

and

notably not for purposes of substitution.

It

follows

. . . that

employment

judgment

substitution can
checked by the

the

scope-of-

determinative

and properly

of

should be

court, i.e., the Attorney

____

General's

scarcely

certification

on

that

disinterested
matter

is

by

statute made the first, but not the final

word.

Id. at 2235.
___

Gutierrez did
_________

the burden

not speak to the question of who has

of proof on the scope

Nasuti v. Scannell,
______
________

issue, but our language in

906 F.2d 802 (1st Cir.

1990), indicates

clearly

that

in

situations

such

as

this

one,

where

plaintiff asserts that a defendant acted outside the scope of

his

or

her

employment

despite

the

certification to the contrary, the

plaintiff.

Attorney

General's

burden of proof is on the

We wrote:

The Attorney General

making

the

federal

defendant's

resolved

can see

to it,

by

that

the

status

is

certification,

by

scope

federal,

not

state

tribunal; employee immunity

will thus be

protected, in

the Westfall

keeping with

Act's purpose, except where the plaintiff

__________________________
can convince a federal court
_______________________________
government
the

employee

scope

of

therefore,
entitled

by
to

was

his

acting outside

employment

definition,
immunity

that the

from

was

and,
not

personal

liability.

Id. at 813 n.16 (emphasis added).

___

See also Aversa v.

________ ______

United
______

States, 99 F.3d 1200, 1209 (1st Cir. 1996).

______

-66

Neither the Supreme Court nor our own en banc court

has

said anything

to undermine

Nasuti that the plaintiff has

the

panel's conclusion

in

the burden of proof in respect

______

to

overturning the

The

Attorney General's

scope certification.

holding therefore remains binding in

this circuit.

Institut Pasteur v. Cambridge Biotech Corp., 104

_________________
________________________

See
___

F.3d 489,

493 n.8 (1st Cir.), cert. denied, No. 96-1698, 1997 WL 219862
____________

(U.S.

June 27, 1997);

Inc., 45
____

Williams v. Ashland Engineering Co.,

________
_________________________

F.3d 588, 592 (1st Cir.),

cert. denied, 116 S. Ct.

____________

Here,

court explained

51 (1995).

reasons for

the district

overturning the

the government's motions,

scope certification,

and remanding to the

order
submit

29, 1994, this court

requiring
an

defendant

affidavit

issued an

Cavallaro to

delineating

rejecting

state court,

solely as follows:

On April

its

his

duties and responsibilities

Force.
This

No such affidavit
Court

was received.

therefore has

concluding

that

within the

scope of his

with the Air

no

Cavallaro

basis for
was

acting

employment when

he made the allegedly defamatory remarks.

The district court's

government's

affidavit it had

Cavallaro was acting

ignored the

and

language

no basis for

within the scope

Attorney General's existing

improperly placed

establishing anew that

upon

that

the

concluding that

of his employment

scope certification

defendant

the

he had acted within the

federal employment.

-77

without the

burden

of

scope of his

In Nasuti, as the government points out, this court

______

further held that it is

illegal for the district court, when

_______

confronted with an outstanding scope certification, to remand

to the state court unless

of

its

own

plaintiff,

employment."

was

that

it makes "an express determination

defendant,

acting

beyond

Nasuti, 906 F.2d

______

when

he

the

scope

at 808.

allegedly

The

of

his

injured

federal

district court

made

no

such

instead merely

affidavit

express scope

determination

to Cavallaro's

failure to

delineating

responsibilities.

It

affidavit would have

Rogers,

namely,

his

is

far

Force

from

clear

Cavallaro was

pointing

have produced

Air

resolved the scope

that

here,

duties

that

records.

missing

fell

superiors

In any case,

affidavit

short

of

that

she

an

issue as framed

by

motivated

had

by personal

falsified

he told

her

time

the district court's reference to the

delineating duties

Nasuti's
______

affirmatively make an

and

such

animosity stemming from a parking space dispute when

Plaintiff's

an

and

requirement

responsibilities

that

the

express determination of its

Defendant was acting beyond the

court

own that

scope of his employment when

he injured the plaintiff.

We

do

not

say,

determination of scope

in

the

context

assuming there

of

is

of

course,

that

called for in Nasuti may

______

summary

no issue

judgment

of disputed

-88

type

the

express

not be made

proceeding,

fact requiring

an

evidentiary

hearing.

But Rogers

judgment on the scope issue.

determine

on the

that Cavallaro

never

summary

Nor did the district court ever

basis of uncontested

had acted

moved for

facts in

outside the

scope of

the record

his federal

employment.

This

that

is not a situation

where it might be thought

the district court had validly granted summary judgment

to a non-requesting party.

Crowley Maritime Corp.,

______________________

("[A] district court

See National Expositions, Inc. v.

___ __________________________

824 F.2d

131, 133

(1st Cir.

has the legal power to

judgment

. . . in favor'

judgment

motion 'even

of the

party

though he has

motion under rule 56.'") (quoting

render 'summary

opposing a

made no

1987)

summary

formal cross-

10A C. Wright, A. Miller &

M. Kane, Federal Practice and Procedure

______________________________

ed.

1983)).

2720, at 29-30 (1st

The major limitation on this rule is that "'the

losing party' must be 'on notice that she had to come forward

with all

of her evidence.'"

Id. (quoting Celotex Corp. v.

___
______________

Catrett, 477 U.S. 317 (1986)).

_______

the original movant

to show

is

In order to be

must have "'had an adequate opportunity

________________________

that there is a genuine

not entitled

"on notice,"

to judgment

(quoting 10A C. Wright,

as

issue and that his opponent

a matter

of

law.'"

A. Miller & M. Kane, supra,

_____

Id.
___

2720,

at 34) (emphasis added by cited case).

Here it cannot be said that Cavallaro understood he

was on notice that he

had to produce all his scope

evidence

-99

or else face

he

summary judgment against him.

was ordered

delineating

by Judge

Harrington

his duties and

Cavallaro

complied,

addressed

Rogers'

such

argument

It is true that

to produce

responsibilities.

an

affidavit

that

affidavits

But

would

Cavallaro's

even had

not

conduct

have

was

outside the scope of his

on personal spite.

federal duties because it was based

Rogers

herself, in her opposition to the

government's

summary

judgment

motion,

stated,

"There

insufficient

evidence in the record presently, for the court

to make [the

scope] determination."

Rogers argued

is

that she

needed to take three depositions before enough evidence would

exist.

In these confusing circumstances, we

the defendants were

all their

on notice they had to

evidence on scope,

on peril of

do not believe

come forward with

suffering summary

judgment on that issue in favor of the non-moving plaintiff.

Indeed, although we

seems

unclear

whether

the

need not decide the

facts

affidavit (treating them, arguendo,

stated

in

point, it

Cavallaro's

as uncontested) provided

sufficient

Massachusetts

basis

for

1163,

scope

under

1166

v. Business Incentives, Inc.,

__________________________

(Mass.

1986)

predominant motive

of the agent

not

act

prevent

determination

law against Cavallaro and the government.

Wang Laboratories, Inc.

________________________

N.E.2d

the

from

fact

is to benefit

coming

-1010

("The

within

that

See
___

501

the

himself does

the

scope

of

employment as long as the act is otherwise within the purview

of his authority.").

We hold, therefore, that the district

court lacked

an adequate basis in the present record and on the procedures

conducted to date for awarding

a judgment on the scope issue

in Plaintiff's favor.

Nor

tantamount

Cavallaro

their

to

the

entry

of

court's ruling be

default

upheld as

judgment

against

and the government designed to discipline them for

failure

Harrington.

can the district

to

The

file

court's

the

affidavit

order

denying

ordered

by

Judge

the government's

motions for

for

dismissal of Cavallaro as a

substitution of

judgment, does

citation

to

the

States,

not contain either

Fed.

R.

procedure for issuing

procedure

followed.

judgment;

written

judgment

United

was not

Civ.

party defendant and

and

the word

P. 55,

which

notice

not

summary

"default" or

sets

a judgment by default.4

Rogers did

for

move

forth

for

a default

an

application

for

served; and

no

hearing was

held on

default

See Fed. R. Civ. P. 55(b).

___

____________________

4.

Fed. R. Civ. P. 55(b)(2) states, in relevant part:

[T]he party entitled to a judgment by default shall

apply to the court therefor . . . .

the

Nor was that

of

matter of a default judgment.

If the party

the

against whom judgment by default is sought has appeared

in the action, the party . . . shall be served with
written notice of the application for judgment at least
3 days prior to the hearing on such application.

-1111

Rogers argues

that we lack jurisdiction

to review

the district court's remand order through a writ of mandamus.

Just as

in Nasuti, however, the district

______

court's failure to

make an express finding that Cavallaro was acting outside the

scope of

his employment

certification intact.

[S]o

long

certificate

left the

Attorney General's

scope

As we wrote:

as

the

Attorney

is validly

defendant] must

General's

in effect,

be deemed

[the

conclusively,

for removal purposes, to have been acting

within the scope

of his employment,

and
___

is thus absolutely immune from any civil

_________________________________________
action or proceeding for money damages.
________________________________________
The

district

court's

remanding

to

therefore,

totally

contrary to

the

state

current

order

court

unauthorized,

Congress's mandate

is,
being

that the

Attorney General's scope certification be

conclusive.

Nasuti,
______

906 F.2d at 809-10 (footnote omitted).

mandamus is

appropriate in

this case as

"At least where, as here, remand was

it was

Accordingly,

in Nasuti.
______

on grounds inextricably

mixed

with the

barred by

scope of

employment issue, and

the scope

certification, we

appropriate . . . ."

Id. at 812 n.15.5

___

was plainly

believe mandamus

____________________

5.

The district court's order may also be reviewable on

direct appeal.

See Nasuti, 906 F.2d at 812 n.15; Flohr v.

___ ______
_____

Mackovjak, 84 F.3d 386, 389 (11th Cir. 1996); Kimbro v.

_________
______
Velten, 30 F.3d 1501, 1503 (D.C. Cir. 1994), cert. denied,
______
____________
115 S. Ct. 2584 (1995); Jamison v. Wiley, 14 F.3d 222, 233
_______
_____
(4th cir. 1994); Aliota v. Graham, 984 F.2d 1350, 1353 (3d
______
______
Cir.), cert. denied, 510 U.S. 817 (1993); Mitchell v.
____________
________
Carlson, 896 F.2d 128, 132-33 (5th Cir. 1990).
_______

-1212

is

We

therefore

vacate

the district

court's

order

denying the government's motions for substitution and summary

judgment and remanding the case to state court.

We remand to

the district court for an express determination as to whether

Cavallaro was acting

allegedly

within the scope of his

injured Rogers.

Just

as in

duties when he

Nasuti, "As
______

we are

confident that the district court and the parties will comply

with our orders

in this regard, we

see no need to

actual writ of mandamus at this time."

Vacated and remanded.

____________________

Id. at 814.
___

issue an

-1313