The Volokh Conspiracy
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From Hockenberry v. U.S., decided today by the Tenth Circuit, in an opinion by Judge Joel Carson, joined by Judges Nancy Moritz and Paul Kelly:
Hockenberry is a Captain in the United States Army and Kalas is an Army Reserve Captain. In 2016, Hockenberry and Kalas were employed as attorneys at Fort Sill near Lawton, Oklahoma. Hockenberry was a special victims prosecutor and Kalas was a civilian legal assistance attorney. Beginning in May 2016, Hockenberry and Kalas became involved in a consensual sexual relationship. In August 2016, Kalas made statements accusing Hockenberry of sexual assault and other misconduct to work colleagues, an officer with the Lawton Police Department, and a Sexual Assault Response Coordinator at Fort Sill. The Army brought formal charges of sexual and physical assault against Hockenberry under the Uniform Code of Military Justice. The charges were referred to a general court-martial [and led to an acquittal on all charges -EV].
Hockenberry sued Kalas in Oklahoma state court for, among other things, libel, but the U.S. "certified under 28 U.S.C. § 2679 that Kalas was acting within the scope of her federal employment when she made such statements":
The United States argued … that, under Army Command Policy and the Army's rules of professional conduct applicable to attorneys, Kalas was required to report to appropriate Army personnel a fellow soldier's sexual assault and other misconduct. It asserted that Army policy also recognizes that victims of sexual assault may confide in friends or family members before making an official report. As to Kalas's report to the Lawton Police Department, the United States claimed that, under Army procedures, persons seeking a Military Protective Order ("MPO") are advised to also seek a civilian protective order. In addition, once an MPO was issued against Hockenberry, the Army was required to notify appropriate civilian authorities because Kalas did not reside on the military installation and an MPO is not enforceable off base….
Based on this theory, the U.S. removed the action to federal court and substituted the U.S. as the defendant. Now the U.S. is generally immune from tort lawsuits under sovereign immunity; and while the Federal Tort Claims Act waives that immunity in part, it expressly excludes libel claims. The substitution of the U.S. as a defendant would thus be fatal to Hockenberry's claims, assuming that Kalas was indeed acting within the scope of federal employment. But the court of appeals concluded that the district court should have conducted an evidentiary hearing on that scope-of-employment (SOE) question, and in particular to evaluate Hockenberry's claims that Kalas's accusations stemmed only from a personal desire to harm Hockenberry:
Hockenberry does not dispute that Army policies require the truthful reporting of sexual assaults and other misconduct. But under Oklahoma law [which is relevant under federal law to the SOE question], whether Kalas's statements were made within the scope of her employment depends on whether they "ar[o]se wholly from some external, independent, and personal motive" on her part "to do the act upon [her] own account."
In Baker v. Saint Francis Hospital (2005Okla. ), for example, the Oklahoma Supreme Court reversed a summary judgment ruling that a daycare employee was acting within the scope of her employment when she hit the head of an infant in her care against a shelf. The court presented the question as whether that act was "in whole or in part a misguided attempt to quiet the infant or … a conscious attempt to harm or injure the child because of [the employee's] own personal irritation or annoyance at the child?"
Here we find no basis for the district court's conclusion that it could decide the SOE issue as a matter of law, … on the ground that only one reasonable conclusion as to Kalas's motivation could be drawn from the facts. If Kalas fabricated her reports of misconduct, a reasonable conclusion could be drawn that she was wholly motivated by an external, personal purpose and therefore acted outside of the scope of her employment in making the statements. In a case presenting fabrication allegations similar to Hockenberry's, another district court considered whether an active member of the Navy acted within the scope of her employment when she accused a fellow sailor of sexual harassment. See Loehndorf v. United States (W.D. Wash. 2014) (unpublished). Applying Washington respondeat superior law, the court described the scope-of-employment issue in that case as follows:
[I]f there was behavior constituting sexual harassment or if [the federal employee] reasonabl[y] perceived that there was, [the employee's] conduct was within the scope of her employment. On the other hand, if [the employee] fabricated the allegations, as [the plaintiff] alleges, her actions were outside the scope of her employment. In that scenario, [the employee] would have had no duty to report to her supervisors, and would have been acting purely in her own self-interest. If this were the case, certification would be improper.
Consistent with the district court's reasoning in Loehndorf, the United States does not contend that false reports of misconduct, lodged solely to damage a fellow soldier's life and career, nonetheless serve the Army's interests. Yet both the United States and the district court assumed the veracity of Kalas's reports in their scope-of-employment analyses….
[T]he district court did not explain why Hockenberry's evidence of fabrication, if believed, did not provide specific facts that would be sufficient to rebut the SOE certification…. In Loehndorf, the district court held an evidentiary hearing and made findings of fact based upon the documentary evidence and testimony (including as to credibility), then ultimately concluded the plaintiff had not met his burden of proving that the employee "fabricated her sexual harassment allegations or otherwise acted outside the scope of her employment." In light of the relevance of the employee's motivation under Oklahoma respondeat superior law and the disputed fact issues apparent from the record, the district court's conclusion that Hockenberry failed to rebut the SOE certification was premature prior to an evidentiary hearing. When Hockenberry's motivation evidence is properly taken into account, more than one reasonable conclusion could be drawn from the facts….