Terry et al v. Newell et al
ORDER granting 61 Motion for Substitution. (See document for further details). Signed by Judge David G Campbell on 11/15/13. (LAD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kent Terry, et al.,
William Newell, et al.,
The United States has moved to substitute itself as a defendant with respect to the
cross-claim of Defendants Lone Wolf Trading Company, LLC and Andrew L. Howard
(“Cross-Claimants”) against Defendants Emory Hurley, William Newell, David Voth,
Hope McAllister, Tonya English, William McMahon, and George Gillett (“Cross-
Defendants”). Doc. 61. For the reasons set forth below, the Court will grant the United
Cross-Claimants allege that their cross-claim arises out of the “same transaction or
set of occurrences” as described in Plaintiffs’ complaint (doc. 48, ¶ 54), and that “[b]ut
for [Cross-Defendants’] actions in soliciting and encouraging the assistance of [Cross-
Claimants] in making the sales of weapons, Cross-Claimants would not have made” the
sales that are the subject of the Plaintiffs’ complaint (id., ¶ 67).
The Federal Employees Liability Reform and Tort Compensation Act (“Westfall
Act”) provides that a claim against the United States under the Federal Tort Claims Act is
the exclusive remedy for persons seeking to recover damages for any “negligent or
wrongful act or omission of any employee of the Government while acting within the
scope of his office or employment.” 28 U.S.C. § 2679(b)(1). All other “civil action[s] or
proceeding[s] . . . against the employee or the employee’s estate [are] precluded without
regard to when the act or omission occurred.” Id. Under the Westfall Act, “federal
employees receive absolute immunity from suit for their negligent or wrongful act[s] or
omission[s] while acting within the scope of [their] office or employment.” Jackson v.
Tate, 648 F.3d 729, 735 (9th Cir. 2011) (internal quotations omitted). The Westfall Act
grants the Attorney General authority to certify that a federal employee was acting within
the scope of his or her employment at the time in question. If the Attorney General
makes such a certification, the United States must be substituted as the defendant. Id. at
735. The Attorney General has delegated authority to certify scope of employment to
any Director of the Torts Branch, Civil Division. See 28 C.F.R. § 15.4(a).
A Director of the Torts Branch, Civil Division, has certified that the actions taken
by Cross-Defendants were within the scope of their employment. The Court concludes,
therefore, that the United States must be substituted in place of Cross-Defendants with
respect to the cross-claim filed by Cross-Claimants.
IT IS ORDERED that the United States’ motion for substitution (Doc. 61) is
Dated this 15th day of November, 2013.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?