Osborn v. Haley: Argument Recap

The following recap was written by Gia Kim of Akin Gump; we previously published her preview of this case here.

In the first argument of the “November” sitting, Osborn v. Haley, No. 05-593, the Court sought to clarify the scope of the Attorney General’s authority to certify that a federal employee is entitled to immunity under the Westfall Act by denying that the alleged incident ever happened – as well as the procedural and jurisdictional problems presented by a district court’s overturning of the certification and subsequent remand to state court.

Justice Ginsburg opened the questioning of Eric Grant, counsel for petitioner Pat Osborn, by observing that the question of immunity is a threshold question of federal law – a federal law “gateway” – that would provide Article III jurisdiction. Grant responded that incident-denying certifications fail to raise a question of federal law because such certifications invoke a factual defense, not a legal scope-of-employment determination. Several Justices then pressed Grant to explain how an incident-denying certification, which amounts to a defense that the employee was on duty and acting within the scope of his employment at the time of the alleged incident, can be meaningfully distinguished from any other scope-of-employment certification. Further, several Justices expressed the view that the line between incident-denying certifications (which the petitioner argues are unauthorized by the Act) and incident-characterizing certifications (which the petitioner acknowledges are permissible) is difficult to draw. This skepticism regarding incident-denying certifications as a distinct category colored the Justices’ questioning on the district court’s ability to remand, notwithstanding the Act’s provision that the Attorney General’s certification “conclusively” establishes scope of employment “for purposes of removal.” In response to Grant’s contention that an incident-denying certification does not satisfy the Act’s definition of “certification,” Justice Alito remarked that the district court’s authority to remand would turn on the Attorney General’s ability to draw the line between incident-denying and incident-characterizing certifications, a “very nuanced decision in some instances.”

The Court then considered the question on which it had requested briefing, namely, whether the Sixth Circuit had jurisdiction to review the district court’s remand order, notwithstanding 28 U.S.C. § 1447(d). Chief Justice Roberts stated that given Congress’s concern to provide a federal forum for a federal employee’s immunity defense, and the Act’s “conclusively” language, it would be “illogical” to allow such suits to proceed in state court. Grant responded that Congress, in other statutes, expressly created exceptions to § 1447(d), and that the district court’s remand order in this case clearly fell within the category of remands rendered unreviewable by § 1447(d). Justice Breyer then turned the questioning back to the issue of incident-denying certifications. Having apparently accepted the respondents’ arguments that the lower courts had mischaracterized the certification as solely “incident-denying,” Justice Breyer had Grant concede that the respondents had in fact argued in the alternative that an incident may have occurred, but was within the scope of respondent Barry Haley’s employment. Justice Breyer then questioned whether the government’s alternative argument rendered this case distinguishable from the First Circuit’s 1993 en banc decision in Wood v. United States (authored by then Chief-Judge Breyer), the leading case to hold that the Act does not permit incident-denying certifications, and the source of the incident-denying/incident-characterizing distinction much debated in this case. Grant stated that the government had abandoned this argument on appeal.

Douglas Hallward-Driemeier, assistant to the Solicitor General, argued on behalf of respondents. Near the outset, Chief Justice Roberts questioned the persuasiveness of an analogy between the Westfall Act and the federal officer removal statute – a major argument in the respondents’ briefs. The Justices tested Hallward-Driemeier on the limits of the Attorney General’s authority to certify scope of employment. Justice Breyer inquired whether respondents were arguing that the Attorney General could issue a purely incident-denying certification, as in Wood. Hallward-Driemeier replied that while respondents took the position that certification would be permissible in a Wood-type case, in practice most cases would present a much closer question as to scope of employment. When asked about the proper procedure if the district court overturns a certification, Hallward-Driemeier asserted that the employee should be resubstituted as defendant, and that the suit should proceed in federal court as a pendent claim. After several Justices suggested that the federal court would have discretion to dismiss or remand a pendent claim, Hallward-Driemeier explained that Congress could mandate that the federal court exercise its pendent jurisdiction.

On the issue of the remand order’s reviewability, Justice Scalia queried whether respondents’ sought-for exception to § 1447(d) – that this particular remand was unauthorized rather than merely erroneous – would subvert the statute’s goal of putting an end to jurisdictional “ping-pong.” Justice Souter pointed out that because the Act does not expressly prohibit remand, any remand order would be erroneous, instead of unauthorized, and therefore unreviewable under § 1447(d).

On rebuttal for petitioner, Grant emphasized that the Court has consistently distinguished immunity defenses from defenses on the merits, and that incident-denying certifications go to the merits. When Justice Ginsburg asked whether it would make sense to require the wholly innocent employee to proceed in state court, while granting the negligent employee a federal forum, Grant replied that the former employee would prevail on the merits in state court.