UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Brenda K. Taite

v. Civil No. 06-cv-428-JM

Paula Morin

O R D E R

Defendant Paula Morin, through the United States Attorney’s

Office for the District of New Hampshire (the “US Attorney”), has

moved for reconsideration of my April 18, 2007 order (document

no. 40) remanding this action back to State court. This action,

which arises under the Federal Tort Claims Act, 28 U.S.C. § 2671

et seq. (the “FTCA”), was before me to review, among other

things, the US Attorney’s certification that Morin was acting

within the scope of her employment at the time and place that the

complained of conduct occurred. My remand order formed the

conclusion that Morin was not acting within the scope of her

employment when the incident giving rise to the claim occurred. 

Defendant now argues that remand of this action is barred by the

recent Supreme Court decision, Osborn v. Haley, __ U.S. __, 127

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1This argument was not raised in defendant’s motion papers

or at the March 8, 2007 hearing.

2

S. Ct. 881 (2007).1 Plaintiff objects.

Defendant correctly cites Osborn for the proposition that

the FTCA’s removal provision conclusively establishes this

court’s jurisdiction to consider the matter, when the Attorney

General certifies that the defendant federal employee was acting

within the scope of his office or employment at the time of the

challenged incident. See id. at 888-89 (holding that “once

certification and removal are effected [pursuant to § 2679(d)

(2)], exclusive competence to adjudicate the case resides in the

federal court”). In reaching that conclusion, the Court

emphasized § 2679(d)(2)’s command that the certification “‘shall

conclusively establish scope of office or employment for purposes

of removal.’” Id. at 895 (quoting 28 U.S.C. § 2679(d)(2)). 

Removal based on § 2679(d)(2) “categorically precludes a remand

to the state court . . . based on the court’s disagreement with

the Attorney General’s scope-of-employment determination.” Id.

While a district court cannot reverse the removal itself,

the court can reverse the Attorney General’s scope of employment

certification. See id. at 892-96 (discussing how certification

establishes jurisdiction but not immunity). The district court

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may still “resubstitut[e] the federal official as defendant for

purposes of trial if the court determines, postremoval, that the

Attorney General’s scope-of-employment certification was

incorrect.” Id. at 894 (emphasis in original). The “principal

question” in Osborn parallels the principal question in the case

at bar: “whether the United States Attorney validly certified

that [Morin] ‘was acting within the scope of [her] employment . .

. at the time of the conduct alleged in the complaint.’” Id. at

896-97 (quoting defendant’s brief). In Osborn, the Court

concluded that the factual determination of whether or not the

defendant employee was entitled to immunity under the FTCA must

be decided by the district court as early in the proceedings as

possible. See id. at 898-901 (requiring court to give the

parties an opportunity to present their version of the facts). 

That factual determination may turn on the credibility of the

various parties involved, and, under the FTCA, the court must

make that decision. See id. at 900-01 (recognizing that judges

have a “greater factfinding role in Westfall Act cases than they

traditionally have in other immunity contexts”).

Consistent with that directive, an evidentiary hearing was

held in this matter to determine the accuracy of the US

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Attorney’s scope-of-employment certification. After carefully

considering the evidence and arguments on both sides, I concluded

that plaintiff was the more credible witness and, as a result,

her version of the events prevailed. Based on the facts

presented at the hearing, I concluded that defendant Morin had

not acted within the scope of her employment when the complained

of conduct occurred, and I resubstituted Morin as the defendant

in this matter. See id. at 901 n.18 (“When Westfall Act immunity

is in dispute, a district court is called upon to decide who the

proper defendant is: the named federal employee, or the United

States.”).

In this case, as in Osborn, the issue of the validity of the

certification “‘goes to the heart of the merits.’” Id. at 900

(quoting Wood v. United States, 995 F.2d 1122, 1136-37 (1st Cir.

1993)). In order to decide the appropriateness of the US

Attorney’s certification here, I was required to make factual

findings that were also determinative of the merits of

plaintiff’s underlying claim of battery. The Court in Osborn

anticipated this situation, but declined to set out the proper

course for the district court to follow in such circumstances. 

The Court recognized:

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2It was undisputed that Morin’s job responsibilities

included stocking supplies, and the evidence showed that

distributing calendars at the beginning of a new fiscal year was

done as part of the regular performance of her job. Although the

parties disputed whether Taite was hit by the calendar, after

considering all the evidence, I concluded that she was struck

with the calendar that Morin was distributing. The critical

issue for purposes of reviewing the scope-of-employment

certification, and determining whether or not the United States

could be substituted for Morin as the defendant in this matter,

turned on whether Morin was acting negligently or intentionally

when the calendar hit Taite. If Morin had testified that she

carelessly tossed the calendar into Taite’s mail box, which flew

farther than expected and inadvertently hit Taite in the face, I

would have found she negligently performed one of her job duties

and would have upheld the US Attorney’s scope of employment

certification. Instead, Morin insisted that she carefully placed

5

The overlap of certification validity and the

merits of the plaintiff’s claim, evident here,

is uncommon. It is unlikely to occur when the

plaintiff alleges negligent conduct.. . . And

even when the plaintiff alleges an intentional

tort, it may be possible to resolve the scopeof-employment question without deciding the merits

of the claim.. . .

Id. at 900 n.15. While it may be uncommon that resolution of the

scope of employment question also necessarily decides the merits

of the claim, that is exactly the situation here. By concluding

that Morin volitionally caused the calendar to hit Taite, which

took the act outside the scope of her employment, the merits of

plaintiff’s underlying claim were necessarily resolved. See

Document no. 1, attachment 2 (Small Claims Complaint alleging

Morin threw a calendar which struck plaintiff in the face).2 

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the calendar into the mailbox, which, as explained thoroughly in

my April 18, 2007 order, comported neither with other evidence

nor with common sense. Because I found that Taite had been hit,

and because Morin denied any carelessness or negligence, Taite

proffered the only plausible explanation as to how she was struck

in the face, which was that Morin threw the calendar at her. The

scope of Morin’s employment, I found, did not include throwing a

calendar at another employee.

3The fact that an evidentiary hearing was held and factual

determinations were made distinguishes this case from Osborn,

where the district court simply rejected the Attorney General’s

certification, accepted plaintiff’s allegations, and failed to

give the parties an opportunity to present facts to resolve the

immunity question. 

6

In interpreting § 2679(d)(2), the Court in Osborn charged

the district court to make such factual determinations. See id.

at 900-01 (discussing how § 2679(d)(2) forecloses plaintiff’s

right to a jury trial). The current posture of this case is

consistent with the hypothetical posture the Court discussed in

Osborn: “if, after full consideration, the District Court

determine[d] that [defendant] in fact engaged in the tortious

conduct outside the scope of [her] employment charged in [the]

complaint,” the court is “‘left with a case without a federal

question to support the court’s subject-matter jurisdiction.’” 

Id. at 896 (quoting Gutierrex de Martinez v. Lamagno, 515 U.S.

417, 434-35 (1995)).3 As in Osborn, the court’s jurisdiction

here is based not on the diversity of the parties but on the

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federal question of whether defendant can avail herself of the

immunity afforded by the FTCA. Osborn reasons that because a

significant federal question was raised at the outset of the

case, its resolution does not necessarily eliminate the court’s

power to exercise supplemental jurisdiction over any remaining

state-law claims. See Osborn at 896 (citing precedent to discuss

the court’s discretionary power to exercise pendent and

supplemental jurisdiction). Because “the District Court would

have discretion, consistent with Article III, to retain

jurisdiction, . . . the Westfall Act’s command that a district

court retain jurisdiction over a case removed pursuant to 

§ 2679(d)(2) does not run afoul of Article III.” Id. at 896.

This language instructs that a district court should

continue to exercise its jurisdiction over actions, like the one

at bar, even when no federal question remains after the court’s

review of certification. Osborn also would appear to instruct

this court to retain jurisdiction, even though the merits of the

state law claim have already been determined. See id. at 894

(establishing federal jurisdiction “for purposes of trial if the

court determines, postremoval, that the scope-of-employment

certification was incorrect” (emphasis in original)). 

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Accordingly, after carefully considering defendant’s argument and

reviewing Osborn v. Haley, I reverse my April 18, 2007 order, but 

only to the extent that the matter was remanded back to small

claims court. 

Conclusion

For the reasons set forth above, defendant’s motion to

reconsider (document no. 44) is granted. Consistent with this

ruling, the clerk’s office is ordered to reopen the case.

This decision results in the very unusual situation in which

a case has been decided on the merits at its initial stage of

review. Neither party has asked for a jury trial, and at this

juncture such a request would be denied. See Fed. R. Civ. P.

81(c) (applying federal procedural rules to removed cases) and

38(b) (governing demands for jury trial); see also Pawlak v. Met.

Life Ins. Co., 87 F.R.D. 717, 718 (D. Mass. 1980) (discussing

when jury demand must be made in removed cases). The only issue

remaining is the question of damages, which shall be determined

following a bench trial on the matter. A trial on the issue of

damages is set for August 30, 2007 at 9:00 a.m. The final

pretrial conference is set for August 20, 2007 at 10:00 a.m. 

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SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 11, 2007

cc: T. David Plourde, Esq.

 Brenda K. Taite

 

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