Terry et al v. Newell et al

Filing 70

ORDER granting 61 Motion for Substitution. (See document for further details). Signed by Judge David G Campbell on 11/15/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kent Terry, et al.,

No. CV-12-02659-PHX-DGC
Plaintiffs,

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v.

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ORDER

William Newell, et al.,

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Defendants.

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The United States has moved to substitute itself as a defendant with respect to the

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cross-claim of Defendants Lone Wolf Trading Company, LLC and Andrew L. Howard

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(“Cross-Claimants”) against Defendants Emory Hurley, William Newell, David Voth,

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Hope McAllister, Tonya English, William McMahon, and George Gillett (“Cross-

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Defendants”). Doc. 61. For the reasons set forth below, the Court will grant the United

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States’ motion.

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Cross-Claimants allege that their cross-claim arises out of the “same transaction or

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set of occurrences” as described in Plaintiffs’ complaint (doc. 48, ¶ 54), and that “[b]ut

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for [Cross-Defendants’] actions in soliciting and encouraging the assistance of [Cross-

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Claimants] in making the sales of weapons, Cross-Claimants would not have made” the

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sales that are the subject of the Plaintiffs’ complaint (id., ¶ 67).

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The Federal Employees Liability Reform and Tort Compensation Act (“Westfall

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Act”) provides that a claim against the United States under the Federal Tort Claims Act is

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the exclusive remedy for persons seeking to recover damages for any “negligent or

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wrongful act or omission of any employee of the Government while acting within the

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scope of his office or employment.” 28 U.S.C. § 2679(b)(1). All other “civil action[s] or

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proceeding[s] . . . against the employee or the employee’s estate [are] precluded without

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regard to when the act or omission occurred.” Id. Under the Westfall Act, “federal

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employees receive absolute immunity from suit for their negligent or wrongful act[s] or

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omission[s] while acting within the scope of [their] office or employment.” Jackson v.

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Tate, 648 F.3d 729, 735 (9th Cir. 2011) (internal quotations omitted). The Westfall Act

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grants the Attorney General authority to certify that a federal employee was acting within

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the scope of his or her employment at the time in question. If the Attorney General

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makes such a certification, the United States must be substituted as the defendant. Id. at

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735. The Attorney General has delegated authority to certify scope of employment to

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any Director of the Torts Branch, Civil Division. See 28 C.F.R. § 15.4(a).

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A Director of the Torts Branch, Civil Division, has certified that the actions taken

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by Cross-Defendants were within the scope of their employment. The Court concludes,

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therefore, that the United States must be substituted in place of Cross-Defendants with

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respect to the cross-claim filed by Cross-Claimants.

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IT IS ORDERED that the United States’ motion for substitution (Doc. 61) is
granted.
Dated this 15th day of November, 2013.

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