Rosenbaum v. USA

Filing 66

Order on Motion for Miscellaneous Relief, Order on Motion to Amend/Correct

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

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MARK A. ROSENBAUM,
Case No. 3:06-00144-RJB
Plaintiff,

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ORDER ON
DEFENDANTS’ MOTION
TO AMEND CAPTION

v.
TIMOTHY A. BURGESS, DEBORAH M.
SMITH, STEVE SKROCKI, TIM
BLEICHER, and JOHN DOE I,
Defendants.

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ORDER ON PLAINTIFF’S
AMENDED MOTION
FOR EVIDENTIARY
HEARING

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This matter comes before the court on Defendants’ Motion to Amend Caption (Dkt. 4) and

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Plaintiff’s Amended Motion for Evidentiary Hearing (Dkt. 45-1). The court has considered the pleadings

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filed in support of and in opposition to the motions, the oral argument of counsel, and the file herein.
PROCEDURAL AND FACTUAL HISTORY

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Many of the facts underlying this civil action for unlawful imprisonment are in dispute. For the

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purposes of these motions, the court assumes the truth of Plaintiff’s version of the facts, which are outlined

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below, and Defendant’s submissions insofar as they are not contested. The issue presented to the court

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does not concern the merits of the underlying civil claim , which is limited to a claim for false

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imprisonment, and only concerns whether the actions allegedly taken taken by Defendants were within their

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scope of employment.

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On May 12, 2004, Plaintiff was summoned to the U.S. Attorney’s conference room to meet with

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Defendants Timothy Burgess and Deborah Smith. Dkt. 48 at 5. At the time Defendant Burgess was the

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United States Attorney for the District of Alaska while Defendant Smith served as his First Assistant.

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Defendant Steve Skrocki, the District Office Security Manager, arrived shortly thereafter accompanied by

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two armed FPS officers, Tim Bleicher and “John Doe”. Id. Defendant Burgess informed Plaintiff that he

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would be placed on home duty for an indefinite period of time because he was a disruption to the

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functioning of the office. Dkt. 45-4, Exh. 20 at 27. Plaintiff felt he was not free to leave at this time and

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was asked to accompany Defendant Timothy Bleicher, a supervisor for the Federal Protective Service

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(“FPS”), as well as Defendant Skrocki and John Doe, an unnamed individual employed by the FPS. Dkt.

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48 at 6. Together they proceeded to Plaintiff’s office, where he was allowed to pack up his belongings.

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Id. Plaintiff was escorted from the U.S. Attorney’s Office by way of the Federal Building elevator, and

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proceeded to Plaintiff’s car in the Federal Building garage where Plaintiff was asked to get into his vehicle

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and leave. Id.

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As a United States Attorney at the time, Defendant Burgess’s authority over the operations fo the

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U.S. Attorney’s office was broad. His managerial capacity included the “ability to restrict access to the

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Office beyond the reception area, including access by employees.” Dkt. 52 at 3. Further, “U.S. Attorneys

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and their delegees, including District Office Security Manager and First Assistants, can request Federal

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Protective Services (‘FPS’) officers to escort individuals out of the Office, including employees who are

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subject to discipline or termination.” Id. Defendant Smith, as First Assistant, and Defendant Skrocki, as

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District Office Security Manager, were also allowed to escort individuals out of the Office, including

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employees who are subject to discipline. Id.

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As FPS officers, Defendants Bleicher and Doe provided security and law enforcement services to

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tenant agencies in the Anchorage federal building. Dkt 54 at 2. Their job duties and responsibilities

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included “proving [sic] escort services for tenant agencies, at the request of the tenant agency.” Id. Escort

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services are sometimes requested by a tenant agency when the agency decides to discipline an employee.

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Id.

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On May 11, 2006, Plaintiff filed a civil action in Superior Court for the State of Alaska, Third

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Judicial District at Anchorage. Dkt. 12. On June 13, 2006, the United States filed a Notice of Removal.

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Included in the notice as Exhibit B was a certification by Phyllis J. Pyles, director of the torts branch of the

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United States Department of Justice, that Defendants were acting within the scope of their respective

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employment as employees of the United States at the time of the conduct alleged. Dkt. 1-3. Such

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certifications are known as “Westfall Certification.”

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The Notice of Removal stated that the case was removed pursuant to the Westfall Act, which

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provides that, upon certification by the Attorney General that a defendant employee was acting within the

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scope of his federal employment at the time of the incident out of which the claim arose, any civil action or

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proceeding commenced upon such claim in a state court shall be removed at any time before trial to the

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district court of the United States for the district in which the action is pending. Dkt. 1-1, at 1-2.

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Concurrent with the Notice of Removal, the United States filed a Notice of Substitution, under 28

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U.S.C. § 2679(d)(2), and moved to amend the caption of the case to substitute and name the United States

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as a party defendant in place of the individual defendants. Dkt. 4-1. Plaintiff opposed the motion to amend

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the caption and substitute and name the United States as a proper defendant, and requested that the court

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remand the case to state court. Dkt. 13. Prior to ruling on the Defendants’ motion, however, plaintiff

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requested a continuance (Dkt. 14) to permit him to challenge the Westfall Certification by engaging in

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limited discovery (Dkt. 12) and by presenting evidence at an evidentiary hearing (Dkt. 13).

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On September 18, 2006, before ruling on the other pending motions, this court allowed limited

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discovery on issues regarding the authority of Defendants to engage in the conduct alleged in ¶¶ 4-9 of the

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complaint. Dkt. 29 at 6. This court did not permit discovery into issues relating to Defendants’ alleged

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animus toward plaintiff. Id.

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On January 5, 2006, following limited discovery, Plaintiff filed an amended motion for evidentiary

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hearing. Dkt. 45-1. Defendant responded (Dkt. 51) and Plaintiff filed a reply (Dtk. 60) and an amended

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reply (Dkt. 63). On February 2, 2007, the court issued a minute order based on the parties’ agreement

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that remand to state court is precluded under the United States Supreme Court decision in Osbourne v.

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Haley, 2007 WL 135830 (Jan. 22, 2007). Dkt. 61. The following two motions are now pending.

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MOTION TO AMEND CAPTION (Dkt. 4-1)

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Defendants argue that, pursuant to 28 U.S.C. § 1442 and 28 U.S.C. § 2679(d)(2) (commonly

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referred to as the Westfall Act), following certification by the Attorney General that the defendant

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employee was acting within the scope of his federal employment at the time of the incident, the United

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States is to be substituted as the party defendant in place of the individually named defendants.

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Plaintiff argues that he has carried his burden of establishing that the Defendants’ alleged detention

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of Plaintiff was not within the scope of Defendants’ employment and that Plaintiff contends that

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substitution would be improper under the Westfall Act.
AMENDED MOTION FOR EVIDENTIARY HEARING (Dkt. 45-1)

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Plaintiff contends that a evidentiary hearing is necessary to determine whether or not the

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Government’s certification was in error.
Defendants argue that an evidentiary hearing is only necessary if this court concludes that there is a

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genuine issue of material fact relating to the scope of employment issue. Defendants assert that the only

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possible issue of fact remaining concerns the motivation behind defendants’ actions. Because such

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motivation was incidental to the Defendants’ job duties, defendants contend the conduct at issue is within

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the scope of employment and that no material issue of fact remains.

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LEGAL STANDARD

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Under the Westfall Act, upon certification by the Attorney General that the defendant federal

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employee was acting within the scope of his office or employment at the time of the incident out of which

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the claim arose, any civil action or proceeding commenced upon such claim in a United States district court

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is deemed an action against the United States and the United States is to be substituted as the party

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defendant. 28 U.S.C. § 2679(d)(1).
Certification by United States Attorney General that federal employees were acting within scope of

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their employment is conclusive for purposes of removal under the Westfall Act, but does not restrict

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federal courts from inquiring into the issue of scope of employment. 28 U.S.C. § 2679(d)(2); Gutierrez de

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Martinez v. Lamagno, 515 U.S. 417, 432 (1995). The Attorney General’s certification that a federal

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employee acted within the scope of employment is reviewable in court for the purposes of substitution.

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Gutierrez de Martinez, 515 U.S. at 434. If the court determines that the federal employee acted within his

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or her scope of employment, amending the caption and substituting the United States as defendant is

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proper. 28 U.S.C. § 2679(b)(2).

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For purposes of the WestfallAct the court reviews de novo whether a government employee was

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acting within their scope of his employment. Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993). Scope of

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employment determinations are made according to the principles of respondeat superior of the state in

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which the alleged tort occurred. Id. at 698-99. Because the incident at issue occurred in Alaska, the

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substantive law of Alaska applies here. The party seeking review bears the burden of presenting a

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preponderance of evidence contrary to Attorney Generals’ certification. Id. at 698.

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When faced with a challenge to a scope of employment certification, a district court in this circuit is

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authorized but not required to conduct an evidentiary hearing to resolve disputed factual questions.

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Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 874 (9th Cir. 1992) (citing Meridian Int'l Logistics,

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939 F.2d at 745). For instance, in McLachlan v. Bell, 261 F.3d 908, 910-11 (9th Cir. 2001), an

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evidentiary hearing was properly denied when the evidence, in the light viewed most favorable to the

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plaintiff, supported a dismissal.

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DISCUSSION

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Under Alaska law, employers are ordinarily held vicariously liable for acts performed by their

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employees within their scope of employment. Domke v. Alyeska Pipeline Service Co., Inc., 137 P.3d 295,

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300 (Alaska 2006). In determining whether an employee has acted within his scope of employment, Alaska

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courts apply a flexible multi-factored test. Id. The test adopts the factors set forth in the Restatement

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(Second) Of Agency:

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(1) conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not
unexpected by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that
authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to
serve the master.

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Id.; Restatement (Second) Of Agency, § 228 (1958). See also Restatement (Second) Of Agency, §§ 229-

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236 (1958). However, the factors are not prerequisites and have only been adopted as relevant

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considerations to be used when determining the scope of liability. Doe v. Samaritan Counseling Center,

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791 P.2d 344, 346 (Alaska 1990); Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 764 n.14 (Alaska

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1973) (rejecting the argument that factors are a prerequisite) .

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1.

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The first factor looked to in analyzing the scope of employment is whether the activity performed is

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Type of Action Performed

of the kind the employee is employed to perform. Restatement (Second) Of Agency, § 228 (1958).

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Plaintiff contends that falsely imprisoning an individual whom one has a vendetta against does not fall

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within Defendants’ scope of employment. Defendants contend that they were performing an assigned task

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and that the motivation behind performing this task is irrelevant to its determination.

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The Alaskan Supreme Court addressed this issue in Laidlaw Transit, Inc. v. Crouse, 53 P.3d 1093

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(Alaska 2002). The suit was brought against a transportation company in the wake of an accident. The

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employee bus driver responsible for the accident was found to have been under the influence of marijuana

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at the time of the accident. The defendant in Laidlaw sought to avoid liability by arguing that the actions

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taken by the driver were outside her scope of authority because a company policy explicitly prohibited

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smoking marijuana.

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The court disagreed and held that, as a matter of law, the driver's conduct occurred within the

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scope of her employment. Id. at 1099. The court concluded that the driver had been specifically employed

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to drive a school bus; the fact that she performed that activity while under the effects of marijuana did not

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mean she acted outside the scope of her employment. Id. It merely demonstrated the recklessness with

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which she performed her assigned task. Id. Further, the court noted that "[a] wrongful act committed by

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an employee while acting in his employer's business does not take the employee out of the scope of

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employment, even if the employer has expressly forbidden the act." Id.

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Laidlaw represents the principle that motivation is not a relevant consideration in the determination

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of this factor. When analyzing this factor, the court focuses on the act being performed, not the motivation

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behind that act. Here, the defendants’ motivations, while perhaps relevant to the third factor of the scope

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of employment analysis, are not relevant in determining if the activity performed is of the kind the

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employee is employed to perform. As explained below, each defendants was performing an activity of the

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kind he or she was employed to perform.

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Timothy Burgess
Plaintiff alleges that Defendant Burgess was actively involved in the planning that involved

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assigning Plaintiff to home duty. Plaintiff further alleges that, in the process of planning, Defendant

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Burgess took measures to ensure that Plaintiff was falsely imprisoned as he was escorted from the federal

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building. As a United States Attorney, it was within Defendant Burgess’s scope of employment to restrict

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access to the Office beyond the reception area, including access by employees. Dkt. 52 at 3. Furthermore,

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U.S. Attorneys and their delegees, including District Office Security Managers and First Assistants, can

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request FPS officers to escort individuals out of the office. Id. Defendant Burgess is accused of planning

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to have Plaintiff escorted from the U.S. Attorney’s office. The fact that he may have performed such an

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action recklessly, or with a vendetta, is immaterial; his action was of the kind he was employed to perform.

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Deborah Smith

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Plaintiff alleges that Defendant Smith was involved in the planning that involved assigning Plaintiff

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to home duty. Defendant Smith, as a delegee of the U.S. Attorney and First Assistant, also had authority

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to request FPS officers to escort individuals out of the office. Dkt. 52 at 3. Therefore, her actions were

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also of the kind she was employed to perform.

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Steve Skrocki
Plaintiff alleges that Defendant Skrocki was involved in the planning that involved assigning

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Plaintiff to home duty. Plaintiff further alleges that Defendant Skrocki exceeded his scope of authority

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when he followed through on the instructions given to him to direct FPS Officers to escort the plaintiff.

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Defendant Skrocki, as a delegee of the U.S. Attorney and District Office Security Manager, had authority

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to request FPS officers to escort individuals out of the office. Dkt. 52 at 3. Therefore, his actions were

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also of the kind he was employed to perform.

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Timothy Bleicher and John Doe

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The job duties and responsibilities of defendants Bleicher and Doe, as FPS officers, include

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providing “escort services for tenant agencies, at the request of the tenant agency.” Dkt. 54 at 2. At issue

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in this case is the manner in which the officers escorted Plaintiff through the Federal Building on May 12,

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2006. Because the officers were employed to provide escort services, the actions at issue were therefore

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of the kind defendants Bleicher and Doe were employed to perform.

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2.

Authorized Time And Space Limits

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For conduct to be considered within the employee’s scope of employment it must be “substantially

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within the authorized time and space limits.” Restatement (Second) Of Agency, § 228(1)(b) (1958). In

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Alaska, the presence of the word “substantially” has lead to a broad interpretation of this factor. In Doe v.

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Samaritan Counseling Center, a patient alleged that she went to the therapist for counseling and, during

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two of her sessions, she was kissed and fondled by the counselor. After the patient cancelled her sessions,

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the two allegedly met and had sexual intercourse. The sexual intercourse served as the foundation for the

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suit and took place away from the employer’s premises roughly one month after counseling ended. The

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court, in reversing a summary judgment in favor of the employer, also noted that summary judgment in

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favor of the employee would be improper. Samaritan Counseling Center, 791 P.2d at 349. The court

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held that a material issue of fact remained concerning this factor and that a trier of fact might reasonably

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conclude that the actions took place outside the employer’s authorized time and space limits. Id.

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Here, Plaintiff states that, for two reasons, the actions were not within the authorized time and

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space limits. First, Plaintiff argues that some of the actions took place outside of the U.S. Attorney’s

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office, but inside the Federal Building, and therefore exceeded the spacial limits of authority. Second,

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Plaintiff argues that since the actions at issue took place after working hours, when the U.S. Attorney’s

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office was closed to the public, the actions exceed the authorized time limits.

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The authority to make personnel decisions does not appear to have any spacial limit. However,

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even if the authority to make such a decision was confined to the U.S. Attorney’s office, it would not be

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violated in this case by defendants Burgess, Smith, or Skrocki because the decision to have Plaintiff

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escorted from the building actually took place within the U.S. Attorney’s office. Plaintiff even notes that

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there is no evidence that there were plans to extend his detention beyond the door of the U.S. Attorney’s

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Office. Dkt. 63 at 5. Further, even if instructions were given to the FPS officers to escort Plaintiff to the

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Federal Building parking garage, it would remain a reasonable exercise of their authority as U.S. Attorney

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and assistants. The only action that took place outside the U.S. Attorney’s office was when Plaintiff was

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escorted to his car by FPS officers. FPS officers had authority to provide escort services within the

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Federal Building. The parking garage can certainly be considered part of the federal building. Because

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they did not leave the Federal Building, the FPS officers did not exceed the spacial limits of their authority.

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The time limits on authority were also not exceeded. Although the U.S. Attorney’s offices were no

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longer open to the public at the time the events took place, it does not follow that Defendants exceeded

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their authority in this respect. Plaintiff has produced no evidence showing that the decision-making

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authority given to defendants Burgess and Smith ceased exactly at five o’clock each evening or that the

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other defendants had no authority to perform their assigned tasks after five o’clock. Just because the doors

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of the U.S. Attorney’s Office were closed to the public does not mean that each Defendant no longer had

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authority to do his or her job. Since conduct occurred substantially within the authorized time and space

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limits , the second factor has also been met by defendants.

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3.

“Motivation to Serve” Test

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The third relevant factor to be considered in determining the scope of employment is whether the

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action was performed, at least in part, with a purpose to serve the master. This factor, also known as the

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“motivation to serve” test, was initially discussed in detail by Samaritan Counseling Center, where the

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court held that when “tortious conduct arises out of and is reasonably incidental to the employee’s

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legitimate work activities, the ‘motivation to serve’ test will have been satisfied.” Samaritan Counseling

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Center, 791 P.2d at 348. VECO, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999) clarified Samaritan

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Counseling Center, stating that a broad interpretation of the holding would be improper and that a minimal

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amount of motivation to serve the employer is required in order to satisfy the motivation to serve test.

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VECO, 970 P.2d at 924 n. 36. Samaritan Counseling Center suggests that an employee has the

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motivation to serve his employer while performing an act that he is authorized to perform. The

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Restatement (Second) of Agency, which Alaska finds relevant to this analysis, even notes that “If,

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therefore, the servant does the very act directed, or does the kind of act which he is authorized to perform

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... there is an inference that he is acting within the scope of employment.” Restatement (Second) of Agency

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§ 235, cmt. a (1958).

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Two recent Alaska Supreme Court decisions have discussed the application of this factor. In

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Laidlaw, the Alaskan Supreme Court found that the conduct had the requisite amount of motivation to

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serve the employer because the conduct at issue, driving the bus, was the very function that the driver was

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hired to perform. Laidlaw, 53 P.3d at 1099. Therefore, the driver’s actions both arose out of and were

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incidental to his legitimate work activities. Id. While the court did not provide much reasoning for its

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holding, it appears to imply that it would have been impossible for the driver to drive the school bus

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without any motivation to serve the employer because the two issues are so intertwined.

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The Alaska Supreme Court found that a material issue of fact remained on this factor in Ondrusek

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v. Murphy, 120 P.3d 1053 (Alaska 2005). However, in Ondrusek, the court also did not determine that

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the first Restatement factor was met. Because there was uncertainty concerning whether the activity

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performed was of the kind the employee is employed to perform, there was also uncertainty over whether

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the tortious conduct arose out of or was reasonably incidental to legitimate work activities.

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As discussed under the first factor, the actions taken by Defendants in the present case both arose

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out of and were reasonably incidental to their legitimate work activities. Ondrusek provides no authority

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because there is no issue in this case whether Defendants were performing an activity of the kind they were

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employed to perform. Like Samaritan Counseling Center, the actions rose above the ‘reasonably

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incidental’ standard; the actions were in fact the Defendants’ legitimate work activities. The actions were

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so intimately intertwined with Defendants’ job duties that they cannot be separated. This conclusion, while

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based on Alaskan law, is also consistent with the general principles of the law of agency. See, e.g., Ninth

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Circuit Model Civil Jury Instruction 6.5.

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Plaintiff’s theory is that Defendants’ actions were performed with improper motive or evil intent,

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and that this motive or intent takes the conduct outside of the scope of employment. That theory is not

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correct, where the alleged motive is inextricably linked with the job duties that Defendants’ were

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authorized to perform. Defendants were authorized to perform these duties; how any why they performed

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them does not render these actions outside the scope of employment. Accordingly, the motivation to serve

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test has been satisfied.

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4.

Use of Force

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The fourth factor in the Restatement’s test requires that if force is intentionally used by the servant

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against another, the use of force must not be unexpected by the master. Restatement (Second) of Agency

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§ 228(1)(d). Any force implied during the course of the events on May 12, 2004, was part of and

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incidental to the authority of Defendants to restrict access and escort individuals from the premises and

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was therefore not unexpected by the United States.

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5.

Conclusion

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Considering the factors relevant to determining scope of employment under Alaskan law, the court

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concludes that all defendants were acting within their scope of employment during the events of May 12,

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2004 and the United States should be substituted as a defendant in place of the individual defendants.

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Neither further discovery not an evidentiary hearing is necessary because no material issues of fact remain

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on the scope of employment issue.

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Therefore, it is hereby ORDERED that Defendants’ Amended Motion to Amend Caption (Dkt.4-

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1) is GRANTED. Plaintiff’s Motion for Evidentiary Hearing (Dkt. 45-1) is DENIED. The clerk will

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amend the caption to substitute and name the United States as a defendant in place of individual defendants

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Burgess, Smith, Skrocki, Bleicher and Doe.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record via the
CM/ECF system.
DATED this 23rd day of February, 2007.

A

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Robert J. Bryan
United States District Judge

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ORDER
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