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January 16, 1990


The opinion of the court was delivered by: Munson, District Judge.


In a Memorandum-Decision and Order signed May 12, 1989 this court held that there was a disputed issue of fact as to whether Needling had acted within the scope of her employment when she performed the acts complained of. The court directed the parties to appear for a hearing on the matter or, in the alternative, offered the government an opportunity to demonstrate as a matter of law that Needling was acting within the scope of her employment. The government chose the latter alternative and its motion is presently before the court. In essence, the motion is a motion for reconsideration of the Memorandum-Decision and Order signed May 12, 1989. The court, as evidenced by its previous decision, will entertain the motion. In addition to the government's motion, plaintiff's motion for summary judgment is also pending before the court.

A. Deference to the Certification.

In its present motion the government's primary argument, up until recently, rested upon the assertion that the court is precluded from reviewing the Assistant U.S. Attorney's scope of employment certification. However, in open court Assistant U.S. Attorney William F. Larkin stated that the government is now withdrawing that line of argument in view of new Justice Department guidelines. According to Assistant U.S. Attorney Larkin, the new guidelines provide that the government will no longer take a position that the court is precluded from reviewing the scope of employment certification.*fn1 Instead, the government now contends that the certification, albeit reviewable, is entitled to deference from this court.

Although an agency's interpretation of a statutory scheme under which it works is usually entitled to deference, see, e.g., Weeks v. Quinlan, 838 F.2d 41, 43 (2d Cir. 1988); Sunshine Health Systems, Inc. v. Bowen, 809 F.2d 1390 (9th Cir. 1987), the court is of the opinion that deference is not proper with respect to certification under § 2679. This decision primarily stems from the court's conclusion that the system of certification by the United States Attorney is constitutionally suspect. In addition, the court determines that deference was not required under the previous certification system which involved the antecedent to the present § 2679. Before addressing the constitutional issues, the court will review the history of § 2679.

The certification in the present action was required by the relatively new Federal Employees Liability Reform and Tort Compensation Act, P.L. 100-694, 102 Stat. 4563 (November 18, 1988 ("Reform Act" or "Act"). The Reform Act made the § 2679 certification process applicable to all actions brought against a federal employee under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and §§ 2671-2680. Previously, that certification process in § 2679 was part of the Drivers Liability Act which applied only to torts involving motor vehicles operated by federal employees. See L. Jayson, Handling Federal Tort Claims: Administrative and Judicial Remedies § 175.03[2], at 6-19 (1989) ("Jayson").

Under the Drivers' Act version of § 2679 ("old § 2679"), the trial judge determined the scope of employment issue as a matter of law. Levin v. Taylor, 464 F.2d 770, 771 (D.C. Cir. 1972). In fact, the government's position that certification under § 2679 used to be entitled to review by this court under an "arbitrary and capricious" standard, see Proietti v. Levi, 530 F.2d 836 (9th Cir. 1976), has been implicitly, yet emphatically, rejected by this court in Van Lieu v. United States, 542 F. Supp. 862 (N.D.N.Y. 1982). In Van Lieu, despite a government certification of scope of employment, the court made its own independent determination of scope of employment following a hearing. This approach is supported by the rule in the Second Circuit that under the old § 2679 a case which commenced in state court was to be remanded in the event a federal court determined that the employee was not acting within the scope of her employment. See Kelley v. United States, 568 F.2d 259, 268 (2d Cir.) (a removed case was to continue to judgment unless it was found on a pretrial motion that the employee was acting beyond the scope of his employment), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). It has been noted that "much of the extensive body of case law construing and applying the Drivers Act is directly relevant to the interpretation and application of the new amendments." Jayson § 175.03[1], at 6-19. Under that theory, the old case law, including the Kelley, Levin and Van Lieu cases, would apply to the Reform Act and review of the certification would be de novo.

Presumably, the government could argue that the new § 2679 amends the old § 2679, by directing that the certification is entitled to deference from the courts. While there is no such express statement in the legislation, the statutory scheme is suggestive of such deference. Under the Reform Act only the federal employee has the right to petition the court for a certification that she was acting within the scope of her employment. That Act provides no corresponding mechanism by which a plaintiff may petition the court for a determination that the employee was not acting within the scope of her employment. Nevertheless, there is an element of the legislative history that suggests that the court may make its own determination on the scope of employment issue. The House Report on the Reform Act exhibited no antagonism towards court determination of scope of employment issues. In fact, while it castigated the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which stiffened the requirements for qualifying for absolute immunity, the Report generally applauded the scope of employment determinations made by courts when examining issues of scope of employment. H.R.Rep. No. 100-700, 100th Cong., 2d Sess., at 2-3, reprinted in 1988 U.S.Code Cong. & Admin.News 5945, 5946.

Moreover, the court cannot help but wonder if the government threw out the bath water with the baby when it agreed that the certification was reviewable. Absent constitutional concerns, the government had a strong argument based on Congressional intent that this court is precluded from reviewing the certification. See supra at 5; Aviles v. Lutz, 887 F.2d 1046, 1048-50 (10th Cir. 1989); S.J. and W. Ranch, Inc. v. Lehtinen, 717 F. Supp. 824 (S.D.Fla. 1989); Assaad-Faltas v. Griffin, 715 F. Supp. 247, amending, 708 F. Supp. 1035 (E.D.Ark. 1989); Arbour v. Jenkins, 713 F. Supp. 229 (E.D.Mich. 1989); cf. Martin v. Merriday, 706 F. Supp. 42 (N.D.Ga. 1989). Without notification of the reasons for the government's about-face, the court ponders whether the Justice Department has located some constitutional imperfection with unreviewable certifications. Such imperfection, depending on its character, could well carry over to any contention that the certification is entitled to deference.

This court's constitutional concerns both relate to the guarantee of due process under the law. See U.S. Const. amend. V. For there to be a due process violation: plaintiff must have a property right; there must be government action amounting to a deprivation; and it must be demonstrated that the deprivation occurred without due process. Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir. 1989). The court holds that plaintiff has a constitutionally recognized property interest in the present lawsuit and/or the damages he seeks in this suit.*fn2 Martin v. Zook, No. 87-3775, 1988 WL 33919, 1988 U.S.Dist. LEXIS 3016 (E.D.Pa. December 31, 1988); Windsor Communications Group, Inc. v. Grant, 75 B.R. 713, 734 (E.D.Pa. 1985) ("Obviously, a money judgment against a person, such as those sought in the instant five (5) actions, implicates a due process property interest."); see Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 2125-26, 100 L.Ed.2d 743 (1988);*fn3 Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. 1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983); cf. Federal Deposit Ins. Co. v. Morrison, 747 F.2d 610, 614 (11th Cir. 1984) ("Even an arguable right of possession constitutes property.") (citing Fuentes v. Shevin, 407 U.S. 67, 86-87 & n. 16, 92 S.Ct. 1983, 1997 & n. 16, 32 L.Ed.2d 556 (1971)), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 682, 50 S.Ct. 451, 454, 74 L.Ed. 1107 (1930) ("while it is for the state courts to determine the adjective as well as the substantive law of the State, they must, in so doing, accord the parties due process of law") (Brandeis, J.). To hold otherwise would be to determine that a litigant is not entitled to due process from the nation's courts, either state or federal. With respect to the second requirement, the court concludes that the government action which amounts to a deprivation is the certification performed by the Assistant United States Attorney. If given deference, it effectively terminates plaintiff's lawsuit, even though the Order of this court is the instrument which would actually terminate the litigation.

The court next addresses two procedural concerns. First, and most importantly, unless this court can decide the scope of employment issue, the statute provides no opportunity to be heard to a plaintiff upon whose action certification and removal are contemplated. In brief, the statutory scheme is constitutionally suspect because the guarantees of due process require that plaintiff have an opportunity to be heard. Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908); Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828, 833-37 (D.N.J. 1989). The extent to which he is entitled to be heard depends on whether the administrator is determining adjudicative facts or legislative facts. "Adjudicative facts are facts about the parties and their activities, businesses, and properties." K. Davis, Administrative Law Treatise § 7.02 (1958). "Legislative facts . . . are general facts which help [a] tribunal decide questions of law and policy and discretion." Id. There can be little doubt that the certification process determines adjudicative facts, facts particular to plaintiff, his supervisor and their individual circumstances. Therefore, it is especially warranted that plaintiff be given an opportunity to be heard prior to the decision to certify. Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908); United States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973); see also Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 446, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915).

It could be argued, with near effectiveness, that plaintiff has an opportunity to be heard when he files his complaint. However, the complaint may or may not address the scope of employment issue. If it does not, there may be a good reason for the absence of any such discussion. For instance, in Van Lieu this court was presented with a situation in which "plaintiff was entirely unaware that [defendant] had any connection with the military." 542 F. Supp. at 863. The present action is equally illustrative. It was filed in small claims court on July 27, 1988; the summons issued by that court was not at all explicit. It did not identify the nature of the case beyond stating, "Libel per se — injured personal and professional reputation and loss of wages." The government removed the action to this court on July 8, 1988. In a motion, defendant later sought a more definite statement. Doc. 2. However, the papers submitted in conjunction with that motion neither mentioned the scope of employment issue nor the possibility of upcoming certification. Nor did they put plaintiff on notice of the possible effect of a scope of employment determination. Accordingly, the court is hesitant to defer to a decision prior to which plaintiff had no opportunity to be heard by the decisionmaker. Compare Reilly, 716 F. Supp. at 835 (noting that plaintiff raised a powerful due process argument that it was entitled to judicial review of remedial plan prior to enactment of the plan; holding, however, that plaintiff did have an opportunity to be heard).

In addition to the issue regarding opportunity to be heard is the issue of potential bias of the certifier. In an action against a federal employee for libel, slander or defamation, etc., an Assistant U.S. Attorney who is defending such a case may, under the government's theory of deference, almost certainly assure the demise of the action he defends when certifying that the actions complained of are ones which a federal employee undertook within the scope of her employment. Under the Reform Act and the FTCA, once the United States has been substituted as the defendant in an action alleging ...

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