1 16-1375-cv(L) Bowles v. O’Connell UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 30 th day of March, two thousand seventeen. PRESENT: REENA RAGGI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges

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---------------------------- ---------------------------- -------------- BRIAN M. BOWLES, Plaintiff-Appellee , v. Nos. 16-1375-cv (L) 16-1402-cv (CON) UNITED STATES OF AMERIC A, ROSI O’CONNELL, DENNIS O’CONNELL, Defendants-Appellants

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT, EDWA RD HIMMELFARB, Attorney, UNITED STATES OF AMERICA: Appellate Staff, Civil Division, United States Department of Justice, for Eric S. Miller, United States Attorney for the District of Vermont, Burlington, Vermont and Benjamin C. Mizer, Principal Depu ty Assistant Attorney General, United States Department of Justice, Washington, D.C.2 APPEARING FOR APPELLANTS, JOHN D. WILLEY, JR., Boylan Associates, ROSI and DENNIS O’CONNELL: P. C., Springfield, Vermont.
APPEARING FOR APPELLEE: DAVID BOND, Strouse & Bond, PLLC, Burlington, Vermont. Appeal from an order of the United Stat es District Court for the District of Vermont (Christina Reiss, Chief Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the order entered on Febr uary 29, 2016, is AFFIRMED in part and REVERSED in part. Defendants, the United States of Ameri ca, Rosi O’Connell (“O’Connell”), and Dennis O’Connell (collectively, “defendant s”), appeal from so mu ch of the district court’s order as struck, in part, the United St ates Attorney General’ s certification under the Federal Employees Liab ility Reform and Tort Comp ensation Act of 1988 (the “Westfall Act”), Pub. L. No . 100–694, 102 Stat. 4563 (1 988) (codified at 28 U.S.C. § 2671 et seq. ) that O’Connell was acting within the scope of her employment by the United States Postal Service (“USPS”) when she made allegedly defamatory statements to third parties reporting that her former co-worker, plaintiff Brian M. Bowles, had assaulted her. 1 Bowles argues that we lack jurisdic tion over this appeal, and that, in any event, certification was not warranted as to any of O’Connell’s allegedly defamatory

1 The certification was made by the United States Attorney for the District of Vermont as the Attorney General’s delegate. See Osborn v. Haley , 549 U.S. 225, 230–31 (2007).3 statements. 2 We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessa ry to explain our decision to affirm in part and reverse in part. 1. Appellate Jurisdiction Under the Westfall Act, the United States may remove a state court civil case against a federal employee to federal cour t and substitute itself as the proper party defendant upon certification by the Attorney General that the employee was acting within the scope of her employment at the time of the alleged claim. See 28 U.S.C. § 2679(d); Osborn v. Haley , 549 U.S. 225, 233–34 (2007). The certification is subject to de novo judicial review, and the district court may st rike such certification to the extent it finds that the defendant employee was not in fact acting within the scope of her employment. See Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 420 (1995); McHugh v. Univ. of
Vt. , 966 F.2d 67, 74–75 (2d Cir. 1992). Because decertification effectively denies the employee Westfall Act immunity “not simply from liability, but from suit,” it is deemed a “final decision” reviewable unde r the collateral-order doctrine. Osborn v. Haley , 549 U.S. at 238. Bowles does not dispute th is proposition generally. He argues it is inapplicable here, contending that the cha llenged order is intertwined with the merits because false reporting was not within the scope of O’Co nnell’s employment, and the statements’ falsity is at issue.

2 Bowles does not cross-appeal , but only defends the district court’s decision to strike portions of the governme nt’s certification.4 The argument fails because, as Osborn instructs, on certification review, the scope of employment inquiry addresses whether O’Co nnell’s allegedly defamatory statements were made “on duty at the tim e and place of an ‘incident’ alleged in a complaint.” Id. at 247 (internal quotation marks om itted). The truth or falsity of the statements is not then at issue. “Were it otherwise, a federal em ployee would be stripped of suit immunity not by what the court finds, but by what the compla int alleges,” and it “would make scant sense to read the Act as leavi ng an employee charged with an intentional tort to fend for himself when he denies wrongdoing and asserts [that] he engaged only in proper behavior occurring wholly within the scope of his office or employment.” Id. at 247–48 (internal quotation marks and footnote omitted); see also id . at 250–51 (explaining that government is not required to accept as true plaintiff’s allegations that defendant acted “maliciously” or for purposes of “retaliation” in defendin g Westfall Act certification). Whether certain of O’Connell’s statements were made in the scope of her employment thus does not address the merits of the defa mation claim, but the threshold question of whether O’Connell—rather than the United St ates—need defend claims relating to those

statements. 3 See id. at 238–39 (“By rejecting the Atto rney General’s certification, the district court subjects the employee to the burd en of defending a suit . . . , a burden from

3 Bowles does not argue that interlocutory review is unwarranted insofar as claims relating to some of O’Connell’s statements may proc eed to trial, nor would such an argument warrant any different conclusion. See New York State Nat’l Org. for Women v. Pataki , 261 F.3d 156, 160 (2d Cir. 2001) (noting, in context of qualified immunity, that partial denial of immunity qualifies as collateral order); see also Lyons v. Brown , 158 F.3d 605, 607 (1st Cir. 1998 ) (concluding, in Westfall Act cas e, that interlocutory appeal lies “from a denial of immunity even if granting it would not resolve the entire case”).5 which the Westfall Act spares him.” (alterati ons and internal quotation marks omitted)); see also Wuterich v. Murtha , 562 F.3d 375, 381–83 (D.C. Cir. 2009) (deeming decision denying Westfall Act certificat ion pending discovery in de famation case subject to review as collateral order). We therefore conclude that the immunity determination is distinct from the merits and that we possess appellate jurisdiction to re view the district court’s order insofar as it struck the scope-of-employmen t certification in part. 2. Scope-of-Employment Certification The United States appeals from only so much of the district court’s decertification order as pertained to O’Connell’s statements reporting (1) the allege d April 2012 assault to a substitute postmaster, and (2) the Oc tober 2012 assault allegedly committed by Bowles to postal supervisors and the police. The O’Connells join in this challenge and further appeal decertification for statements (3) to non-supervisory co-workers regarding the April 2012 incident, and (4) to a news paper reporter regarding both incidents. Bowles defends the decertification of all thes e statements by reiterating his argument that false statements were outside the scope of O’Connell’s employment. We review the district court’s legal conclusions regarding the denial of immunity de novo , and its factual findings for clear error. See Leitner v. Westchester Cmty. Coll. , 779 F.3d 130, 134 (2d Cir. 2015) (federal sovereign immunity); Bello v. United States , 93 F. App’x 288, 289–90 (2d Cir. 2004) (Westfall Act immunity specifically).6 The Attorney General’s certification to the district court constitutes “ prima facie evidence that the employee was acting within the scope of his employment.” Wuterich v. Murtha , 562 F.3d at 381 (internal quotation marks om itted). Thus, “[t]he United States . . . must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact , and not simply as a lleged by the plaintiff, engaged in conduct beyond th e scope of his employment.” Osborn v. Haley , 549 U.S. at 231 (emphasis in original). Whether the employee was in fact acting within the scope of his or her employment for purposes of the We stfall Act is determined by reference to “principles of respondeat superior of the state in which the alleged tort occurred.” Saleh v. Bush , 848 F.3d 880, 888 (9th Cir. 2017) (internal q uotation marks omitted); see McHugh v. Univ. of Vt. , 966 F.2d at 75. Vermont adopts the scope-of-employment standard in the Restatem ent (Second) of Agency, see Doe v. Forrest , 176 Vt. 476, 483, 853 A.2d 48, 54 (2004), whic h recognizes employee conduct as within the scope of employment only if, (a) it is of the kind [the individual] is employed to perform; (b) it occurs substantially within the auth orized time and space limits [of the employment]; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) if force is intentionally us ed . . . the use of force is not unexpectable by the master. Restatement (Second) of Agen cy § 228(1) (1958). While conduct must take place within these parameters to be within the scope of empl oyment, the employer need not7 “specifically authorize the precise action the [employee] took.” Sweet v. Roy , 173 Vt. 418, 431–32, 801 A.2d 694, 704 (2002). a. Veracity of the Alleged Misstatements Insofar as Bowles relies on his own allegati ons of falsity to ar gue that O’Connell’s statements were outside the scope of her employment, we have already explained why that disputed merits issue does not govern certification review. See Osborn v. Haley , 549 U.S. at 248–51; Wuterich v. Murtha , 562 F.3d at 384–87. To the extent Justice Breyer took a different view, see Osborn v. Haley , 549 U.S. at 254 (Breyer, J., concurring in part and dissenting in part) (“[W]her e the incident, if it took place at all, must have fallen outside the scope of employment, the Ac t does not permit certification.” (emphasis in original)), it was not adopted by the Osborn majority, see id. at 248 (majority opinion) (rejecting view that “employee charged with an intentional tort” shou ld be left “to fend for himself when he denies wrongdoing”); id. at 249–50 (stating that applicability of Westfall Act should not be controlled by “the plaintiff’s allegations”), whose decision controls here, see generally Balintulo v. Daimler AG , 727 F.3d 174, 19 0 (2d Cir. 2013) (“Lower courts are . . . without authority to ‘reinterpret’ the [Supr eme] Court’s binding precedent . . . .”). In any event, Vermont does not deem conduct outside the scope of employment simply because, if proved, it would constitute an intentional tort. See Restatement (Second) of Agency § 231 (“An act may be within the scope of employment although consciously criminal or tortious.”); accord Sweet v. Roy , 173 Vt. at 432, 801 A.2d at 704–05.8 Accordingly, this court, like the district court, declines to hold that Bowles’s allegations of falsity remove O’Connell’s reports from the scope of her employment. b. Statements to Postmaster Relie f Regarding April 2012 Incident The district court upheld the government ’s certification inso far as O’Connell, pursuant to USPS policy, reported the alleged April 2012 assault to her supervisors, but it held certification unwarranted insofar as O’Connell also reported the assault to her postmaster relief, whom the district court app ears to have considered a non-supervisory USPS employee. We cannot agree. Bowles does not dispute that instan ces of co-worker violence must be reported to supervisors, and the r ecord indicates that th e postmaster relief performs the same supervisory duties as the postmaster in the latter’s absence. Moreover, an individual repor ting such an incident to th e postmaster relief would be no less “actuated . . . by a purpose to serve” her employer than one repor ting the incident to other supervisory employees. See Restatement (Second) of Agency § 228(2). Accordingly, we reverse decertification as to O’Connell’s report to the postmaster relief. c. Statements to Police Officers and Supervisors Regarding the October 2012 Incident The district court deemed O’Connell’s repor ts of the October 2012 incident to be outside the scope of her employment because the alleged assault occurred at her home after work hours, and O’Connell characterized the incident as “not a postal issue.” J.A. 291. We conclude that decertification was unwarranted insofar as O’Connell reported the incident to police and supervisors. US PS policy requires postal employees to report9 to such persons acts of violence by a co-wor ker, even if the co-worker has already been terminated, and whether or not the incident occurs at work. The propriety of the government’s scope certification thus turned on the time and place not of the alleged assault but of her reports, see Restatement (Second) of Agency § 228(1)(b), and on whether those reports to police officers a nd supervisors served the purpose of her employer, see id. § 228(1)(c). O’Connell’s quoted st atement is not a concession to the contrary because, at the same time, she stated that “she felt she should let [her employer] know since [the assault] may possibly invo lve the former [Highw ay Contract Routes] driver who she had [workplace] problems with before.” J.A. 133. We therefore reinstate the certification as to reports of the October 2012 in cident to police and supervisors. d. Statements to Co-Workers Regarding April 2012 Incident At the same time, we affirm decertific ation with regard to statements to non-supervisory co-workers. The O’Connells cite no USPS polic y requiring alleged assaults by co-workers to be reported not only to supervisors but also to all other co-workers. Nor do they provide any basis fo r O’Connell to think that Bowles posed a threat of physical harm to persons other than herself. e. Statements to Newspaper Repo rter Regarding Both Incidents We similarly affirm decertification as to statements regarding both alleged assaults that O’Connell made to a newspaper reporter. While O’Connell, as postmaster, served as USPS’s local media representative, she was specifically advi sed by her superiors not to10 speak to the media with respect to th e assaults she attributed to Bowles. We therefore identify no error in the district court’s conc lusion that, in discussing the alleged assaults with a newspaper reporter, O’Connell was ac ting in a personal capacity, and not serving her employer’s interests. 3. Conclusion We have considered the parties’ other arguments and conclude that they are without merit. Accordingly, we AFFIRM the district court’ s order insofar as it denied Westfall Act certification and substituti on as to O’Connell’s statements to non-supervisory co-workers regarding the April 2012 inci dent and to a newspaper reporter regarding both incidents, and we REVERSE that order insofar as it denied such certification and substitution as to O’Conne ll’s statements to the postmaster relief regarding the April 2012 incident, and her st atements to police officers and supervisors regarding the October 2012 incident. We REMAND for further proceedings consistent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court