Operation Rescue v. United States, 147 F.3d 68, 1st Cir. (1998)
Operation Rescue v. United States, 147 F.3d 68, 1st Cir. (1998)
Operation Rescue v. United States, 147 F.3d 68, 1st Cir. (1998)
3d 68
Paul F. Galvin with whom Randal C. Fritz was on brief for appellants.
John F. Daly with whom Mark B. Stern, Attorneys, Appellate Staff,
Stephen W. Preston, Deputy Assistant Attorney General, Donald K. Stern,
United States Attorney, and Frank W. Hunger, Assistant Attorney
General, were on brief for appellee.
Before BOUDIN, Circuit Judge, ALDRICH and CYR, Senior Circuit
Judges.
BAILEY ALDRICH, Senior Circuit Judge.
to the United States District Court. The removal was effected and the district
court thereupon granted the United States' motion for its substitution for
Senator Kennedy as a defendant immunized by the FTCA. Because the FTCA
excepts liability for defamation, see id. 2680(h), the court thereafter granted
summary judgment for the United States, leaving Operation Rescue with no
claim against either it or the Senator. See id. 2679(b)(1) (providing that an
action against the United States is the exclusive remedy); United States v.
Smith, 499 U.S. 160, 166-67, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (holding
that the exclusivity of remedy provision applies even if government liability is
precluded).
2
We affirm those actions, but, before proceeding further, we review the Westfall
Act, so-called, the first step in producing this result, starting with the history
leading to its enactment.
This Congress promptly did by the Federal Employees Liability Reform and
Tort Compensation Act of 1988, Pub.L. No. 100-694, 102 Stat. 4563, the socalled Westfall Act. Beside removing the Westfall v. Erwin discretionary
requirement, it increased the scope of the FTCA by adding employees of the
judicial and legislative branches to those of the executive branch.
as Officers or Employees?
Definitions3
7
As used in this chapter and sections 1346(b) and 2401(b) of this title, the term
"Federal agency" includes the executive departments, the military
departments....
The Westfall Act added the words "the judicial and legislative branches" to
follow "the executive departments" in the first paragraph. It made no change in
the second.
10
11
employees" of the "legislative branch[ ]", when it wrote its 1988 Westfall Act.
So choosing, Congress identified a readily identified body of congressional
personnel which does not include United States Senators.
12
....
13
Of course the Members of the 100th Congress knew to whom they were
referring when they wrote into the Westfall Act the restrictive language,
"officers or employees" of the "legislative branch[ ]".
14
15
(Emphases added).
16
Aside from the final sentence, the rest is fiction. A voting Congressman who
went beyond reading "FEDERAL EMPLOYEES LIABILITY" in the Westfall
Act title would not find the claimed-to-be restrictive language even once. The
Act's expressly declared purpose was to "protect Federal employees from
personal liability for common law torts"; the phrase "Federal employee"
occurred ten times, and the word "officer" and the phrase "officers and
employees" never. See Westfall Act 2, 102 Stat. 4563-64. How many astute
legal minds who bothered to go further and read the FTCA, and saw there the
phrase "officers or employees", would have thought of Operation Rescue's
omission argument?4 We cannot think the Westfall Congress should be charged
with plaintiff's connotation.
17
18
We add that even were this correct, circumstances speak louder than words. We
ask a simple question--Why would Congressmen vote to exclude themselves
from a universal grant of immunity given to all others; to all employees below
them; to all officers, up to the president, above them? The district court noted
some, concededly weak, post-Westfall Act legislative history favoring
inclusion of Congressmen. We think it more important to look to contemporary
legislative history. Here we find nothing relevant. Like the famous dog that
remained silent,6 the silence is telling. If the Westfall Act clearly and carefully
intended to exclude Congressmen from the FTCA's otherwise universal
benefits, would there not have been, at the least, some Congressmen who
would have remonstrated?
19
20
21
E.g., plaintiff did not appeal from the finding that the Senator was acting within
the scope of his employment when he made his remarks
28 U.S.C. 2671
We note, in passing, that when written, this phrase did not "omit" members
because the legislative branch was not then in the Act
It would even disregard common meanings given in all dictionaries. See e.g.,
Webster's New Int'l Dictionary 1690-91 (2d ed.1954) (defining "office" as "any
position or place in the employment of government, esp. one of trust or
authority" and "officer" as "one who holds an office"); cf. Black's Law