Opinion
NO. CIV. 2:12-1422 WBS EFB
08-06-2012
REVERGE ANSELMO and SEVEN HILLS LAND AND CATTLE COMPANY, LLC, Plaintiffs, v. RUSS MULL, LESLIE MORGAN, a Shasta County Assessor-Recorder, COUNTY OF SHASTA, BOARD OF SUPERVISORS OF THE COUNTY OF SHASTA, LES BAUGH and GLEN HAWES, Defendants. COUNTY OF SHASTA, and COUNTY OF SHASTA, for the People of the State of California, Cross-Complainant, Cross-Complainant, v. REVERGE ANSELMO; SEVEN HILLS LAND AND CATTLE COMPANY LLC; NANCY HALEY, MATTHEW RABE, MATTHEW KELLEY, ANDREW JENSEN; and DOES 1 THRU 50, Cross-Defendants.
ORDER RE: MOTION TO CHALLENGE
THE UNITED STATES' SCOPE OF
EMPLOYMENT CERTIFICATION
Plaintiffs Reverge Anselmo and Seven Hills Land and Cattle Company ("Seven Hills") filed an action in state court against defendants Russ Mull, Leslie Morgan, Shasta County, the Board of Supervisors of the County of Shasta ("Board of Supervisors"), Les Baugh, and Glen Hawes, related to defendants' allegedly wrongful interference with plaintiffs' use of a portion of their land. Shasta County brought third-party claims seeking indemnification and contribution from three employees of the United States Army Corps of Engineers ("Army Corps"), and the action was removed to federal court.
Currently before the court is Shasta County's motion to challenge the United States' certification of scope of federal employment. (Docket No. 17.)
I. Factual and Procedural Background
Plaintiffs' lawsuit arose from a dispute between the parties regarding grading carried out on plaintiffs' land. Plaintiffs allege that county officials engaged in a variety of improper behavior that interfered with plaintiffs' use of their property, including issuing wrongful notices of grading violations, (Third Am. Compl. ("TAC") ¶¶ 30, 40 (Docket No. 1, Ex. B)), filing false reports with various officials and agencies, (id. ¶¶ 23, 27), requiring an unnecessary environmental impact study, (id. ¶¶ 44-47), and wrongfully denying plaintiffs' application for a Williamson Act contract, (id. ¶¶ 44, 49-58).
Plaintiffs further allege that as part of the county officials' campaign against Anselmo, Andrew Jensen, an employee of the California Regional Water Quality Control Board,attempted to intimidate Anselmo by soliciting governmental agencies including the Army Corps to "obtain assertions of violations of other laws" in order to "create a 'piling on' condition" that would "deprive . . . SEVEN HILLS of its right to hold and use real property" and violate Seven Hills' constitutional rights under the Fifth and Fourteenth Amendments. (Id. ¶ 28.)
Plaintiffs named Jensen as a defendant in the action originally filed in state court, but have since settled their claims against him. (Shasta County's Req. for Judicial Notice Ex. 2 (Docket No. 24-1).)
The court includes this fact by way of explanation only. Because the court does not rely on either the Stipulation for Dismissal with Prejudice or the original complaint filed in state court attached to Shasta County's Request for Judicial Notice, the court denies the request as moot.
Shasta County filed a third-party complaint seeking contribution from three employees of the Army Corps. (Docket No. 1 Ex. A.) The United States then removed the action from state court pursuant to 28 U.S.C. § 1442(a) and § 2679(d)(2), (Docket No. 1), and certified under the Westfall Act, 28 U.S.C. § 2697, that the Army Corps employees were acting within the scope and course of their employment at the time of the alleged conduct, (Docket No. 3). The United States was then substituted in place of the Army Corps employees. (Docket No. 4.)
II. Discussion
Pursuant to the Westfall Act, when a federal employee is sued for wrongful or negligent conduct, the Attorney General may certify that the employee was acting within the scope of his office or employment. Osborn v. Haley, 549 U.S. 225, 229-30 (2007). Upon certification, the United States is substituted as defendant in place of the employee and the litigation is governed by the Federal Tort Claims Act ("FTCA"). Id.
The Attorney General's certification is subject to de novo review in district court. Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991). "[C]ertification is 'prima facie evidence that a federal employee was acting in the scope of [his] employment at the time of the incident.'" Pauly v. U.S. Dep't of Agric., 348 F.3d 1143, 1151 (9th Cir. 2003) (per curiam) (quoting Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995)). "[T]he party seeking review bears the burden of presenting evidence and disproving the Attorney General's decision to grant . . . scope of employment certification by a preponderance of the evidence." Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (citations omitted).
In reviewing a scope of federal employment certification, the district court relies on "the principles of respondeat superior as articulated in the law of the place where the alleged tort occurred." Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 875 (9th Cir. 1992). In this case, all of the events are alleged to have occurred in California. Therefore, the relevant law is California law.
As the Ninth Circuit has noted, California "defines the scope of employment very broadly." Doggett v. United States, 875 F.2d 684, 687 (1984), rev'd on other grounds by United States v. Olson, 546 U.S. 43, 44 (2005). Under California law, "[t]he key issue . . . is whether the act was committed in the course of carrying out the employer's business." Billings, 57 F.3d at 800 (citing Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 967-69 (1986)).
The only evidence that Shasta County submits to show that the employees acted outside the scope of their employment are the allegations of plaintiffs' verified complaint. Even if the court were to find that it is appropriate to consider plaintiffs' allegations as evidence, the allegations do not contradict the certification.
All plaintiffs allege is that the Army Corps "knowingly participated in [a] 'piling on' process," whereby bureaucrats like Jensen ask their "bureaucrat associates at other state, local and federal agencies to assert concurrent and overlapping jurisdiction in order to drive persons such as Plaintiffs into submission." The operative complaint says nothing about the actions of the individual employees. (TAC ¶¶ 28-29.) Without even a suggestion that the Army Corps employees engaged in activities beyond their usual duties, there is no indication that the Army Corps employees acted outside the scope of their employment. Accordingly, Shasta County has not met its burden to produce evidence that certification was improper. See Jackson v. Tate, 648 F.3d 729, 732-33 (9th Cir. 2011) ("The United States . . . must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment." (citation omitted, emphasis in original)).
The real issue here, as the court sees it, seems to be whether the use of the Westfall Act is even appropriate. By its terms, the statute does not apply when civil actions are brought against federal employees "for a violation of the Constitution of the United States, or . . . brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized." 28 U.S.C. § 2679(2). Section 1983 is one such statute. The court has been unable to locate, and no party has cited, any case where a plaintiff brought claims against a defendant under § 1983, and the defendant then sought indemnification or contribution from a federal employee as a joint tortfeasor. It does seem, nevertheless, that when a defendant in a § 1983 action brings indemnity and contribution claims against a federal employee alleging that the employee also violated the plaintiff's constitutional rights, the exception should apply.
In this case, however, there are no such allegations. As mentioned above, all that plaintiffs allege is that the Army Corps participated in the "piling on" of violations. The TAC contains no allegations regarding specific actions taken by the individual Army Corps employees or any allegations that the Army Corps or individual Army Corps employees violated plaintiffs' rights. In its Third-Party Complaint, Shasta County merely repeats without agreeing with plaintiffs' allegations regarding the "piling on," and adds that the specific Army Corps employees "were involved in the inter-agency enforcement actions" and that "[t]o the extent that any such inter-agency conspiracy to deprive [plaintiffs'] constitutional rights existed, . . . [the employees] would have participated in the conspiracy." (Notice of Removal Ex. A. ("Third-Party Compl.") ¶¶ 32-33 (Docket No. 1).)
First, if the term "pile on" is some kind of a term of art which is supposed to suggest a conspiracy with state actors to violate constitutional rights, it is a term with which the court is not familiar and the dictionaries that the court has consulted do not contain the term. Second, hypothetical statements about what would have occurred if there was a conspiracy do not amount to plausible allegations that the Army Corps employees were engaged in a conspiracy with state actors to violate plaintiffs' constitutional rights.
Neither plaintiffs nor Shasta County have alleged that the Army Corps employees come within the § 2679(2) exception, or any other exception, to the Westfall Act. Accordingly, the court will deny Shasta County's motion to challenge the United States' certification of scope of federal employment. If at some point in time there is a plausible allegation that would bring the federal employees within such exception to the Westfall Act, Shasta County may bring a new motion. Unless and until that occurs, the United States will remain substituted in place of the individual employees and the claims against the individual employees will not be reinstated.
IT IS THEREFORE ORDERED that Shasta County's motion to challenge the United States' certification of the scope of federal employment be, and the same hereby is, DENIED WITHOUT PREJUDICE.
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WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE