United States Court of Appeals
For the First Circuit
No. 97-2290
OPERATION RESCUE NATIONAL, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich and Cyr, Senior Circuit Judges.
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.
July 1, 1998
ALDRICH, Senior Circuit Judge. On November 15, 1993
Senator Edward M. Kennedy, in Boston, following a campaign
fund-raising luncheon, addressed a group of reporters in
connection with a bill protecting access to clinics serving
women's health, including abortions. The bill, of which he was
the prime sponsor, was to be debated in the Senate the
following day. In the course of his remarks, in answer to a
question regarding this legislation, the Senator stated that
organizations like Operation Rescue National ("Operation
Rescue") had a "national policy [of] firebombing and even
murder." Operation Rescue brought suit for defamation against
the Senator in the Massachusetts Superior Court. Pursuant to
28 U.S.C. 2679(d) of the Federal Tort Claims Act ("FTCA"), the
United States Attorney filed therein a certification to the
effect that Senator Kennedy "was acting within the scope of his
employment as an officer and employee of the United States at
the time of the conduct alleged in the complaint," and moved to
remove the action 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 (1991) (holding that the
exclusivity of remedy provision applies even if government
liability is precluded).
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.
One Erwin suffered injuries allegedly as a result of
the negligence of Westfall and others, employees of the United
States executive branch, in performing official acts the
storage of dangerous chemicals. See Westfall v. Erwin, 484
U.S. 292, 293-94 (1988). He brought suit against the
individual defendants in the state court, but this action was
removed to the district court pursuant to 28 U.S.C.
1442(a)(1). This court held, by summary judgment, that
defendants were absolutely immune because their conduct had
been in the course of their government employment. The Court
of Appeals reversed, holding that government employees were
immune only for conduct of a discretionary character. It
ordered the case remanded for a determination whether
defendants' conduct was of that nature. On defendants'
obtaining certiorari, the Court agreed with the Court of
Appeals. Inter alia, it stated, "[O]fficial immunity comes at
a great cost. . . . [A]bsolute immunity for federal officials
is justified only when 'the contributions of immunity to
effective government in particular contexts outweigh the
perhaps recurring harm to individual citizens.'" Id. at 295-96
(citation omitted). Without laying down standards, the Court
affirmed. In so doing, it remarked that Congress was in the
best position to rule on what was required for immunity. Seeid. at 300.
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 so-called 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.
In a comprehensive Memorandum, Operation Rescue
National v. United States, 975 F. Supp. 92 (D. Mass. 1997), the
district court, in addition to disposing of other matters no
longer involved, considered the following issues: (1) Whether,
as a result of the Westfall Act, the FTCA is to be read as
including the members of Congress; and (2) Whether, if the FTCA
does include Congressmen, its application to these facts is
constitutional. We review its resolutions in the affirmative
de novo, as rulings of law. See, e.g., Inmates of Suffolk
County Jail v. Rouse, 129 F.3d 649, 653, 655 (1st Cir. 1997).
Beginning with the first, we agree with the district court's
result, but approach it differently.
Congressmen as Officers or Employees?
At the time of Westfall v. Erwin, the list of
government employees covered by the FTCA did not include those
of the judicial and legislative branches:
Definitions
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 . . . .
"Employee of the government" includes
officers or employees of any federal agency,
members of the military . . . .
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.
In almost unlimited number, Operation Rescue has shown,
from the Constitution and widespread federal statutes, uses of
the phrase, "officers, members and employees," with "members"
meaning members of Congress. From this it would have us
conclude that when Congress said "officers or employees" here,
it made a deliberate and meaningful omission. We quote its
brief, pp. 7 and 14,
Section 3 of the Westfall Act makes the
FTCA applicable to "officers or employees" of
the "legislative branch[]". A United States
Senator is neither. Congress' historical
practice, since its (sic) 1789, has been to
reference the three classes of persons found
in the halls of Congress as either "Member",
"officer", or "employee". Congress chose
defining, restrictive language, "officers or
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 notinclude United States Senators.
. . . .
Of course the Members of the 100thCongress knew to whom they were referring when
they wrote into the Westfall Act the
restrictive language, "officers or employees"
of the "legislative branch[]".
In writing statutes, Congress chooses
its words carefully . . . .
(Emphases added).
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? We cannot think the Westfall
Congress should be charged with plaintiff's connotation.
Alternatively, Operation Rescue would say that, as a
matter of law, Congressmen are neither "officers" nor "employees"
of the federal government. The district court has compiled
much detail rejecting this assertion that we need not repeat.
See, e.g., Lamar v. United States, 241 U.S. 103 (1916).
Operation Rescue, incomprehensibly, persists.
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, 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?
There is no such legislative history, or Operation
Rescue's counsel would have found it. If, which we consider it
does not, the strict language should be read as Operation
Rescue would have it, this would be a clear case where contrary
circumstances as a whole would surely prevail. Cf. Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 571-74 (1982).
Failing here, Operation Rescue would supplement with
constitutional claims. These have been well answered by the
district court. We pass without comment the contention that
"Congress does not have a general power to legislate," except to
note McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406, 413
(1819), and turn to Operation Rescue's main theme, that this is
an immunity from which Congressmen are uniquely exempt.
Accordingly, Congress could grant immunity from defamation
claims to other federal officers or employees, but it could not
vote such benefits for itself. Further, the Speech or Debate
Clause is a ceiling rather than a floor. For this last, the
basic contention is, by its having given Congressmen some
protection not given to others, the Constitution implicitly
forbad any increase by statute, even when giving greater
protection to others. This is singular logic. We need not
repeat the district court's extensive rejections, with which we
agree.
In all respects the decision below is affirmed.