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Reply #44: Westfall v. Erwin led to the Westfall Act of 1988 and "Westfall certification" [View All]

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JackRiddler Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Feb-04-09 01:22 PM
Response to Reply #43
44. Westfall v. Erwin led to the Westfall Act of 1988 and "Westfall certification"
I found a good discussion of the history in a case brief, here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=8th&navby=case&no=952633p




In 1988, Congress amended the Federal Tort Claims Act ("FTCA")

to reinforce federal employees' immunity from tort actions. These

amendments -- commonly known as the Westfall Act because they were

a response to Westfall v. Erwin, 484 U.S. 292, 300 (1988) --

provide that an action against the United States is the only remedy

for injuries caused by federal employees acting within the scope of

their employment. 28 U.S.C. SS 2679(d)(1).


Here is the SS 2679 statute:

http://www.law.cornell.edu/uscode/28/usc_sec_28_00002679----000-.html




The Westfall Act also

establishes a process frequently called Westfall certification.

After a federal employee is sued in a state court, the Attorney

General reviews the case to determine if the employee was acting

within the scope of his or her employment when he or she engaged in

the allegedly harmful conduct. 28 U.S.C. SS 2679(d)(2). The

Attorney General may then file a Certification of Scope of

Employment, a document certifying that the employee was acting

within the scope of his or her employment, and may remove the case

to federal court. Id. The Attorney General then notifies the

federal court that the United States should be substituted as

party-defendant for the federal employee. Id.



Although Westfall certification acts as prima facie evidence

that the defendants were acting within the scope of their

employment, Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.

1991), it does not conclusively establish that the United States

should be substituted as party-defendant. Gutierrez de Martinez v.

Lamagno, 115 S. Ct. 2227, 2236 (1995); Brown, 949 F.2d at 1011-12.

If the plaintiff challenges the certification, the district court

must independently review the case and determine whether the

defendant was in fact acting within the scope of his or her

employment. Gutierrez de Martinez, 115 S. Ct. at 2236-37

(plurality opinion). If the court finds that the employee was

acting outside the scope of his or her employment, the court must

refuse to substitute the United States. Id. If the court agrees

with the certification, then the case proceeds against the United

States under the FTCA. 28 U.S.C. SS 2679(d)(4).



For a DU debate on how Westfall relates (or doesn't) to Yoo, see here starting at Post 38:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x4927701#4928703

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