USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-2216

DANIEL AVERSA, ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________
Campbell and Bownes, Senior Circuit Judges.
_____________________

____________________

Francis G. Murphy, with whom Kathryn B. Johnston and Hall, He

_________________
____________________
_________

Kenison, Stewart, Murphy, & Keefe, P.A. were on brief for appellant
_______________________________________
Richard A. Olderman, Attorney,
_____________________
Attorney,
United

Civil

States

Division, Department
Attorney,

and

with
of

whom

Justice,

Frank W. Hunger,
________________

General, were on brief for appellees.

Barbara L. Herw
_________________

Paul M. Gagn
_____________

Assistant

Attor

____________________

October 21, 1996

____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Aversa filed a

United

Hampshire,

and

falsely stated

media

that

States Attorney

Kenneth

Division

Daniel

common

his

in

Claunch,

of

the

and implied to

Aversa

illegally-gotten money,

racketeering

and

civil action alleging that Patrick

Assistant

Investigation

Daniel

tax

the

of

Internal

was

involved

New

the

Criminal

Revenue

Service,

and national

evasion, drug

activity, and thus

Walsh, an

District of

Chief

the local

Carla

in

news

laundering

trafficking

and

committed slander and other

law torts under New Hampshire law and deprived him of

right to liberty

United States.

guaranteed by the

Constitution of the

Senior District Judge Martin F. Loughlin, who

presided over the related criminal case, found the statements

to have

been

"totally false,"

"self-serving"

Magistrate

and

Judge

"misleading,"

"unfair."

Lovegreen

In

and

this

District

agreed with

Judge Loughlin's condemnation,

defendants'

conduct

and was

"lacking in

however, dismissed

and Claunch were

law

showed "extraordinarily

torts,

and

professionalism."

The

"outrageous,"

civil

Judge Mary

Lisi

adding that

the

poor judgment"

district court,

the Aversas' lawsuit, finding

absolutely immune from suit

qualifiedly

immune

from

action,

that Walsh

for the common

suit

for

the

constitutional tort.

The purpose of immunity -- absolute or qualified --

is

not

to

protect

erring

federal

-22

officials

from

the

consequences of

their injurious

acts, but to

public interest in having responsible

faithfully carry out their

295

Ct. 1827, 1833 (1992);

governmental employees

duties without fear of protracted

litigation in unfounded damage suits.

S.

safeguard the

See Wyatt v. Cole, 112

___ _____________

Westfall v. Erwin,
_________________

(1988); Harlow v. Fitzgerald, 457

____________________

484 U.S. 292,

U.S. 800, 807 (1982);

Scheuer v. Rhodes, 416

___________________

U.S.

232, 241-42

(1974);

Barr v.
_______

Matteo, 360 U.S. 564, 565 (1959) (plurality opinion); Wood v.

______
_______

United States,
______________

995

F.2d

Buenrostro v. Collazo, 973

_____________________

obvious

damage

tension

suits

with that

promote

1122,

1126

(1st

Cir.

F.2d 39, 42 (1st Cir.

objective

the public

is that

interest

victims and deterring unlawful conduct.

1993);

1992).

In

well-founded

in compensating

Harlow, 457 U.S.

______

at

814, 819; Barr, 360 U.S. at 576.

____

The

law of

evils inevitable

U.S.

at

immunity seeks

a balance

in any available alternative.

813; Wood,
____

995

F.2d

at 1126.

Thus,

between the

Harlow, 457
______

a federal

employee who

allegedly commits

absolutely immune from suit

his

federal

employment, 28

plaintiff

can proceed

exception

to the

federal

official

a common

law

tort will

if he acted within the

U.S.C.

against

Federal Tort

is qualifiedly

the

be

scope of

2679(b)(1), but

the

government unless

Claims Act

immune

applies.

from

some

And a

suit for

an

alleged constitutional tort if his "conduct [did] not violate

clearly established .

. . constitutional

-33

rights of which

reasonable person would have known," Harlow, 457 U.S. at 818,

______

even

though

his

actions

may

have

wrongful" in some more general sense.

been

"despicable

and

Souza v. Pina, 53 F.3d

_____________

423, 427 (1st Cir. 1995).

Although we

affirm, we believe that

the false and

misleading information allegedly disseminated to the press in

Aversa's criminal

therefore refer the

case deserves more than

matter to

condemnation, and

the appropriate

bodies.

I.
I.

FACTUAL AND PROCEDURAL BACKGROUND

FACTUAL AND PROCEDURAL BACKGROUND

disciplinary

Except

where otherwise noted,

are taken from Aversa's

and

Vincent Mento

real

estate

complaint.

("Mento") were

business.1

of land, splitting the

Aversa

was experiencing marital

Carla.

in

Daniel Aversa ("Aversa")

partners in

In January

parcel

the following facts

of

a legitimate

1989, they

proceeds.

At

sold a

the same time,

difficulties with

his wife

In order to conceal some of his assets from his wife

the event of

a divorce, Aversa

asked Mento if

he could

deposit his share of the proceeds, amounting to $55,000, into

Mento's personal bank account.

Both

men

were

Mento agreed.

aware

that

domestic

financial

institutions were required to report currency transactions in

excess

of $10,000 to the

Secretary of the

Treasury, see 31
___

____________________

1.

Vincent and Shirley Mento

were plaintiffs in this action

but did not pursue an appeal.

-44

U.S.C.

5313(a);

avoid

causing a

filed.

Aversa

31 C.F.R.

103.22(a)(1),

Currency Transaction

therefore

made a

and wished

Report ("CTR")

series

of deposits

to

to be

into

Mento's

account in sums just

under $10,000.2

At the time,

Aversa was unaware that structuring the transactions to avoid

causing a CTR to be filed was a crime under federal law.

31 U.S.C.

5324(a).

In June

of 1990,

informed him that he

deposits.

Attorney

See
___

that he was

Aversa and

was under investigation for structuring

He immediately

Walsh, and

IRS agents contacted

met with Assistant

without an attorney

United States

present, explained

hiding the money from his wife,

that it was not

derived from an illegal source, and that he did not know that

structuring was illegal.

Walsh told Aversa that he and Mento

had been under investigation for some time and that he had no

reason to

believe the

money was

anything but "clean,"

but

said that he did not

an illegal

illegal.

need to prove that it was

source or that

Walsh told

Aversa knew that

derived from

structuring was

Aversa that there was no reason to seek

counsel and encouraged

him to plead guilty because

all that

____________________

2.

Aversa's

purpose in

transferring the

money out

account was to conceal it from his wife, a purpose

condone.
wished
would

But Judge
to avoid a CTR

cause

responsible
Mento

the

Loughlin found

that

being filed because

Internal

Revenue Service

of his

we do not

Aversa and

Mento

they believed it
to

hold

Mento

for the taxes on the amount, and that Aversa and

each reported his share of the proceeds on his own tax

return.

-55

was needed for

him.

that

a conviction

In a later

he

meeting with Aversa's

previously

individuals

was what Aversa

had

been

for structuring

told

counsel, Walsh said

successful

in

had just

in

Miami, but

prosecuting

that this

case

would be his first involving "clean money," and he planned to

use it to "set a precedent" and "educate the public about the

currency transaction reporting requirements."

On

charging

June

28, 1990,

Aversa and Mento

Walsh

obtained

an indictment

with conspiracy, structuring, and

making false statements, and

Aversa alone with attempting to

cause

institution

domestic financial

to

file a

report

containing a material omission or misstatement of fact.

That

same day, Walsh, Claunch, and the United States Attorney

for

the District of

Aversa alleged

joined

as a

New Hampshire, Jeffrey R.

Walsh and Claunch

defendant) issued

press conference

media, which

reported to the

had been arrested

knew

announcing to

a press

organized crime,

but

held a

national news

public, that Aversa

and Mento

Walsh and

Claunch

involved in laundering

or in drug trafficking,

created the

was not

release and

the local and

Mento were not

illegally-gotten money,

or

conspired but who

for money laundering.

that Aversa and

Howard (with whom

tax evasion

impression that

they

were.

An article in

the Boston Globe dated

June 29, 1990,

reported:

Walsh
done

said

money laundering

for purposes

of tax

is usually

evasion, drug

-66

dealing or organized crime.

He would not

say if either of

yesterday's indictments

are

these

added

related

to

activities,

but

after the news conference that "it

would

be

fair

statement"

authorities are looking into

to

say

how [these]

men amassed the sums of money involved.

Walsh

also stated

prison and

that Aversa

added that

faced up

to forty

the investigation was

years in

continuing and

more charges would be filed.

A front-page article

in the Concord Monitor

June 29, 1990 reported:

The

indictments

are

prosecutors are serious

sign

that

about using

the

money laundering laws, a tool that allows

them

to charge people for handling money

illegally
the

money

without
was

having to

gained

Jeffrey Howard, U.S.A.

prove that

illegally,

said

attorney for

New

Hampshire.

"The

indictments

they are
I.R.S.

are important

examples of the
has made .

laundering

statutes

. . to

because

commitment the
use the money

in order

to ferret

dated

out

tax

evasion,

drug trafficking

and

other crimes," he said.

Prosecutors
and

Mento

believe

declined
got

the

the
men

to say

how Aversa

money or
tried

to

why

they

evade

the

currency laws.

Claunch

"[t]hese

stated

cases represent

out money launderers,"

message

that

money

at

the

press

conference

the IRS's commitment

and that

laundering

to

investigated and prosecuted to the full extent."

-77

to ferreting

the IRS wanted

is going

that

"to send

be

detected,

On October 10,

1990, after Judge Loughlin

granted

the government's motion in limine to preclude a defense based

__ ______

on ignorance of the

to structuring.

1.
that

anti-structuring law, Aversa pled guilty

The plea agreement stipulated:

The

United

the

States has

currency

transactions

was

no evidence

involved

in

these

obtained

from

an

unlawful source.

2.
that

The

United

the

States has

defendant

no evidence

knew

of

structuring provision, but states

Court

that

such

knowledge

the
to the

is

not

necessary

to

establish

a violation

of

Section 5324.

Aversa

reserved his right to

conviction

under 31

appeal the issue

U.S.C.

5324 required

of whether a

knowledge that

structuring is illegal.

On October 17, 1990, following

Walsh

issued a

currency

prohibit

transaction

structuring

investigation

trafficking,

tax

press release

in which

reporting

"were

Mento's conviction,

he stated

laws

and

passed

to

the

that the

laws

assist

in

that

the

of related criminal conduct, such as narcotics

organized crime

violations," and

and racketeering

that these

activity and

convictions would

send "a

strong clear message that persons who violate . . . and evade

those laws

will be vigorously prosecuted."

Walsh made oral

statements to the press stating

Mento

further

had

an

violated the

and implying that Aversa and

anti-structuring

underlying criminal

law

enterprise,

in order

and that

to

they

-88

could

not

structured

account for

transactions.

some of

the

No evidence

money involved

had been

in the

adduced at

Mento's trial

that there was an

or that the source of the money

underlying criminal purpose

was unexplained.

At Aversa's and Mento's sentencing,

found

that Aversa

and Mento

would bear

Judge Loughlin

the stigma

of the

"totally false" innuendoes reported in the media for the rest

of their lives.

and

In a memorandum opinion ruling

Mento's post-conviction motions,3

the government had admitted

the judge

that Aversa and Mento

on Aversa's

noted that

were "not

involved in drugs and not laundering ill-gotten gains and not

keeping information

from the United States,"

and found that

the prosecutors' statements to the press were "outrageous and

unfair," "misleading and cruel,"

a little disingenuous," and

"self-serving and more than

"smeared the reputation of these

two men."

This

court

convictions, ruling that

vacated

Aversa's

legal duty

government to

or the

Mento's

the willfulness requirement

applicable criminal penalty provision,

required the

and

31 U.S.C.

prove the violation

reckless disregard

of the

5322(a),

of a

thereof, and

known

that an

____________________

3.

The motions for writ

v. United States,
__________________
Mento's

trial.

he had erred in
of

law defense,

of coram nobis were based

_____ _____

111 S.

Ct.

604

(1991),

on Cheek
_____

decided after

Judge Loughlin found that in light of Cheek,

_____
ruling out the defendants'
but found

that he

proposed mistake

could not

grant relief

under a writ of coram nobis because other relief, in the form

_____ _____
of an appeal, was available.

-99

unintentional,

defense

984

to a structuring

F.2d 493,

vacated
_______

(1994).4

nonreckless

498,

mistake of

charge.

500, 502

law

was

United States v. Aversa,

________________________

(1st

Cir. 1993)

sub nom., Donovan v. United States, 114

___ ___
_________________________

We

remanded for

a complete

a new trial,

but the

(en

banc),

S. Ct. 873

government

elected not to proceed again against Aversa.

The

Aversas then

brought a

civil action

seeking

compensatory and punitive damages against Walsh, Claunch, and

other

unnamed

defendants,

Aversa

and

defendants,

acting

under

color

in Count

of

federal

that

the

law, deprived

of his Fifth Amendment right to liberty; in Counts II

III

that

intentional

they

caused Carla

of

the

torts

emotional

in Count IV that

Aversa to lose

The complaint

for the

committed

infliction

Hampshire law; and

and

alleging

of

irreparable

false

harm

____________________

to

and

the consortium of

New

her husband.

Claunch defamed Aversa

misleading

Aversa's

under

the defendants' conduct

alleged that Walsh and

their

and

distress

purpose of personally benefitting

that

slander

in their careers,

statements

personal

and

caused

business

4.

The Supreme Court ordered our judgment in Aversa vacated

______

and the case remanded for reconsideration in light of Ratzlaf

_______
v. United States,
________________
had held

114 S. Ct. 655 (1994),

that the

willfulness

requirement of

5322(a) required knowledge that

at

663.

Congress

willfulness
U.S.C.
2160

is

5324.
(Sept. 23,

has since

no longer
See
___

in which the Court

31 U.S.C.

structuring is illegal.
amended

required

Pub. L. No.

the statute

for a

103-325,

1994) (codified as amended at

5322(a) (West Supp. 1996)).

-1010

so that

violation
411,

Id.
__

of 31

108 Stat.

31 U.S.C.

reputations

and

his business

discharged from his

goodwill,

caused

job as an accountant, and

from

the

District

of

New

be

prevented him

from finding other employment as an accountant.

transferred

him to

The case was

Hampshire

to

the

District of Rhode Island.

Pursuant to the Federal Employees

Liability Reform and Tort

Compensation Act of 1988, commonly

known

that

as the

Walsh

federal

Westfall Act,

and

Claunch

employment and the

the Attorney

acted within

United States

substituted as the party defendant.

Aversa

was permitted to depose

his challenge

to the

the

General certified

scope

of their

was provisionally

28 U.S.C.

2679(d)(1).

Walsh and Claunch

scope certification, and

in aid of

he submitted

the

depositions

and

various

Thereafter, Magistrate

Claunch

were acting

exhibits

to

the

Judge Lovegreen ruled that

within the

scope of

court.5

Walsh and

their employment,

thus converting the common law claims into claims against the

United States under the Federal Tort Claims Act, 28 U.S.C.

2679(d)(1),

1346(b), then

dismissed for

lack of

recommended that those

claims be

subject matter jurisdiction

based on

____________________

5.

The

exhibits included

June 28,
dated

1990, and

June 29,

hearing

on

October

1990,

March

copies

14,

for writ

1991,

of coram
_____

press releases

17, 1990,

a transcript

opinion dated April 29, 1991,

motions

of

a newspaper

sentencing

Loughlin's

memorandum

Judge

ruling on Aversa's and Mento's

nobis, Chapter
_____

New Hampshire District Court

description,

and

an

article

of Aversa's

States Attorneys' Manual (1988), 28 C.F.R.

the Local

dated

Internal

7 of

the United

50.2, Rule 35 of

Rules, Claunch's job

Revenue

Policy

Statement

concerning news coverage.

-1111

the

exception

arising

out of

to the

libel

Federal

Tort Claims

or slander.

Act

28 U.S.C.

for claims

2680(h).

Treating the defendants' motion to dismiss the constitutional

claim as a motion for summary judgment, the magistrate

judge

recommended summary judgment in favor of Walsh and Claunch on

the basis that they were qualifiedly immune.

Magistrate Judge Lovegreen stated in his Report and

Recommendation

Loughlin's

that

he was

in

assessment of the

full

agreement with

Judge

defendants' conduct, and added

that the "defendants' extraordinarily poor judgment in making

these statements should

magistrate's

United

Report

States

defendants'

not go unnoticed."

and

District

"publication

lacking in professionalism

Recommendation

Judge

of

Mary

Lisi

misleading

and deserving

In

in

adopting the

its

found

entirety,

that

information

of the

A.
A.

DISCUSSION
DISCUSSION

The Common Law Claims

The Common Law Claims

[was]

opprobrium

articulated by Judge Loughlin and Magistrate Lovegreen."

II.
II.

the

As

describes

an

initial

matter,

the

Aversas'

complaint

a claim for slander under New Hampshire law, which

defines the tort as follows:

In order to

be actionable, the

language

complained

of

must

tend to

lower

the

plaintiff

in

the

esteem

of

any

substantial

and respectable

though it may be quite a small

The

defamatory meaning must

group, even
minority.
be one that

could be ascribed to the words by hearers

of common and reasonable understanding. .

-1212

The threshold

question

whether the published

of

conveying

innuendo

. .

words are

the defamatory

ascribed

to

A.2d

651, 653

is

capable

meaning or

them

by

the

plaintiff.

Thomson v. Cash, 402

________________

quotation marks

district

loss of

"arose

(1st

the

Aversas do

consortium through

with the

not contest)

that the

"verbal abuse and

slander within

(internal

We agree

intentional infliction of emotional

out of"

2680(h).

and citations omitted).

court (and

claims for

(N.H. 1979)

the meaning

distress and

slander" also

of 28

U.S.C.

See Jiminez-Nieves v. United States, 682 F.2d 1, 6

___ _______________________________

Cir. 1982) (court must look beyond the literal language

to ascertain

the

tort

of

the real cause

defamation

of the complaint;

is

injury

to

heartland of

reputation

by the

implicit or explicit communication of an idea).

1.
1.

The Westfall Act

The Westfall Act

Before 1988, a plaintiff

with a tort claim against

a federal employee could proceed against the

or

her personal

within

capacity, and

the scope of his

Tort

addition to

Claims Act

if the employee

office or employment,"

1346(b), could proceed against

or in

employee in his

the federal

was "acting

28 U.S.C.

the United States, instead of

employee, under

(FTCA), 28 U.S.C.

1346,

the Federal

2671-78, 2680.

Congress, however, expressly excepted certain kinds of claims

from the FTCA's otherwise broad waiver of sovereign immunity,

including

any

claim

arising

out

of

slander

and

other

-1313

specified intentional torts.

28 U.S.C.

2680(h).6

Thus,

while a plaintiff with a claim not excepted from the right to

sue

the

United

States

government rather than

likely

would

or in addition

choose

to

sue

the

to an individual

who

may

be judgment-proof,

like

a plaintiff

with an

excepted claim

the Aversas' would have no choice but to proceed solely

against the employee.

absolutely immune

principles.

In

Erwin, 484
_____

from

The employee, however, might be found

from suit according to

federal common law

See Howard v. Lyons, 360 U.S. 593, 597 (1959).

___ _______________

1988, the

U.S. 292

state-law

tort

Supreme

Court decided

(1988), holding that

actions

was

Westfall v.
____________

absolute immunity

available

to

employees only when their conduct was both "within the

of

federal

scope

their official duties and . . . discretionary in nature."

___

Id. at
__

297-98 (emphasis in

original).

The

Court, however,

invited Congress to legislate standards defining the scope of

____________________

6.

The

legislative history

exceptions is

scant, but

regarding the

they

appear to

intentional tort
rest on

concerns

raised by the Department of Justice that those torts would be

"easily

exaggerated"

against."
Tort

and

"difficult

to

make

defense

See 2 L. Jayson, Personal Injury, Handling Federal

___

Claims

13.06[1][a],

at

13-48-49

n.

1.2

(discussing legislative history).

In 1973,

from

false imprisonment,

the list

assault, battery,

Congress removed

arrest, abuse of process and malicious prosecution

by investigative or law

(1995)

false

committed

enforcement officers, in recognition

of the "manifest injustice" of denying a federal remedy

a

federal

agent

illegal raid,
down

intentionally

while providing

assaults a
the remedy

by a negligent mail truck driver.

citizen
to a

when
in

an

citizen run

See S. Rep. No. 93___

588, 93d Cong., 2d Sess. 1974, reprinted in 1974 U.S.C.C.A.N.

_________ __
2789.

Congress has not otherwise amended the exceptions for

intentional torts.

-1414

federal employee immunity, since it was

to resolve

whether

the "complex and often

the

sufficiently

"contribution

"outweighs the

citizens" to warrant

to

in the best position

highly empirical inquiry"

effective

potential

harm

immunity in a particular

government"

to

individual

context.

Id.
__

at 299-300.

Congress responded within the year with the Federal

Employees Liability Reform and Tort Compensation Act of 1988,

commonly known as the Westfall Act.

the

FTCA to

make an

exclusive remedy

the

employee

"acting

employment,"

discretionary

action against

for money

"negligent or

damages for injury

or omission"

within

scope

function

within the scope of

the United

wrongful act

28 U.S.C.

employees absolutely

The Westfall Act amended

the

of

States the

arising from

of a

his

federal

office

2679(b)(1),

thus eliminating

requirement

and

immune

from suit

employment.7

making

for torts

The FTCA is

or

the

federal

committed

the exclusive

remedy even when, as here, an exception to the FTCA precludes

____________________

7.
the

Congress understood prior

act

to

have

been

protracted litigation
exercised

discretionary

to

decision."

the

in

determining whether

governmental discretion,

Federal employees
Westfall
________

in

immunity law as

status

not requiring
nature,
the

and intended
they held

feared
employee

"to return

prior

to

the

See H.R. Rep. No. 100-700, 100th Cong.,

___

2d Sess. 4,reprinted in 1988 U.S.C.C.A.N. 5945, at 5946-47.

_________ __

-1515

government liability.

United States v. Smith, 499 U.S. 160,

_______________________

165-67 (1991).8

The

through

exclusive remedy

certification

delegate that

by

the employee

employment.9

28 U.S.C.

is made, the

suit is

provision

is first

the Attorney

General

was acting

2679(d)(1).

within the

"deemed an action

against the

the United States is

as

id.,
__

party

defendant,

provisional and

employee

but

the

subject to judicial review,

may be

resubstituted.

her

scope of

United

substituted

certification

is

after which the

Gutierrez de Martinez v.
__________________________

Lamagno, 115 S. Ct. 2227, 2230-31 (1995).

_______

2.
2.

or

Once the certification

States" under the FTCA and

the

invoked

State Respondeat Superior Law

State Respondeat Superior Law

__________ ________

Before the Westfall Act, federal

from suit

for

state

federal common law.

law

torts was

employee immunity

decided

according

to

The Westfall Act provides that a federal

____________________

8.

The

Act provides that

substituted

as the

once the

party

United States

defendant, the

has been

action "shall

be

subject to the limitations and exceptions applicable to . . .

any

action

against

the

United States

section 1346(b)," 28 U.S.C.

disregarded), and
claim

against

pursuant

to

2679(d)(4) (sentence structure

the legislative

the

filed

government

history states that

that

is

precluded

"any

by

the

exceptions set forth in Section 2680 of Title 28, U.S.C. also

is precluded against an employee in [sic] his or her estate."
H.R. Rep. No. 100-700, supra, at 5950.
_____

9.

The Attorney General has

scope

of employment

Attorneys

with

federal employees
the supervision

delegated her authority to make

certifications

respect

to

civil

to

the

United

actions brought

in their respective districts,

of the Assistant Attorney

States
against

subject to

General in charge

of the Civil Division.

See 28 C.F.R.
___

15.3(a).

-1616

employee is

his

immune if he

office or

or she acted "within

employment," 28

U.S.C.

according to the legislative history,

the

the scope of

2679(b)(1), which,

is to be determined by

same law that had previously been used only to determine

whether the United

States could be sued under the FTCA:

the

law of respondeat superior of the state in which the incident

__________ ________

occurred.

See H.R. Rep. No. 100-700, supra, at 5949.

___
_____

At oral argument, we raised a concern about whether

certain comments

in the recent case of Gutierrez de Martinez

_____________________

v. Lamagno, supra, might indicate that scope of employment is

__________ _____

to

be determined according to federal common law rather than

state

respondeat superior
__________ ________

law.

In

that

case, the

Court

concluded that a certification by the Attorney General or her

delegate

scope

that the

federal

employee was

acting within

the

of his or her employment is subject to judicial review

for purposes of permanently substituting the United States as

the party defendant.

115 S. Ct. at 2234-36.

Amicus raised a

potential Article

III problem -- that if the court concluded

that the employee acted outside the

scope of employment, and

the plaintiff and defendant

were not of diverse citizenship,

there

subject

would

no longer

matter

resubstituted.

be

federal question

jurisdiction once

Id.
__

at

2236.

the federal

to

employee was

four-justice

concluded that Article III nonetheless was satisfied

"there was a nonfrivolous

___

support

plurality

because

federal question" presented at the

-1717

outset

of the

case.

Id. at
__

2236 (emphasis

in original).

Justice Ginsburg wrote:

At that

time, the United

States was the

defendant, and the action was

the

FTCA.

acting

Whether

within the

employment

is
-- and

designed

to

could

be

Because
thus

in

"raises

it

Act

that this
a

the

"clearly

forum.

Westfall Act

questio[n]
law

was

question

federal

[a]

federal

federal

Westfall

case under

substantive
outset,"

the

was

his federal

significant

assure

aired

employee

scope of

question

the

thus under

at

the

'arises

of
very
under'

federal law, as that term is used in Art.

III."

Id. at 2236 (citations omitted).

__

After further briefing in which both parties agreed

that the plurality did not mean that

should be

resolved by reference to federal rather than state

law, we reach the same conclusion.

the

plurality intended

to address

sufficient federal predicate

federal court, once

defendant

employment.

case arose

was not

was

we think that all

whether there

to keep a Westfall

acting within

The answer

party.

is a

Act case in

been made that

the scope

of his

was yes, because at the

under a law of the

Second, even if

First,

a determination has

the United States was a

2.

the scope determination

the

federal

outset, the

United States (the FTCA), and

See U.S. Const. art.

___

Justice Ginsburg was

III,

referring in some

measure

to

determine

nature and

the

scope

whether a

determination,

person is

contours of his or

federal

law

federal employee

does

and the

her federal responsibilities.

-1818

See
___

Ezekiel v. Michel, 66
__________________

F.3d 894,

Platis v. United States, 409

_________________________

F.2d

899 (7th

1009, 1011

Cir. 1995);

(10th

Cir.

1969).

But state

within

the

law governs whether the person

scope

responsibilities.

is clear

of

that

employment

was acting

and

those

As already noted, the legislative history

that Congress so

intended, H.R. Rep.

No. 100-700,

supra, at 5949, and although we are the first to grapple with

_____

the

meaning

Martinez,
________

the

of

the

plurality's remarks

courts of

concluded that state law

appeal,

controls.

in

including

Gutierrez de
_____________

our own,

have

See Heuton v. Anderson,

___ ___________________

75 F.3d 357, 360 (8th Cir. 1996); Haddon v. United States, 68

_______________________

F.3d

1420 (D.C. Cir. 1995); Garcia v. United States, 62 F.3d

_______________________

126, 127

(5th Cir. 1995); Jamison v. Wiley, 14 F.3d 222, 227

________________

n.4 (4th Cir. 1994);

Schrob v. Catterson, 967 F.2d

929, 934

___________________

(3d Cir.

1992); McHugh v. Univ. of Vermont, 966 F.2d 67 (2d

___________________________

Cir. 1992); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,
_________________________________

1542

(11th Cir. 1990), cert.

____

Nasuti v. Scannell, 906 F.2d

___________________

Arbour v. Jenkins, 903

___________________

denied, 112 S.
______

802, 805 n.3

F.2d 416,

Washington v. United States,

____________________________

Ct. 62 (1991);

(1st Cir. 1990);

421-22 (6th

868 F.2d 332,

Cir. 1990);

334 (9th Cir.),

cert. denied, 493 U.S. 992 (1989).

____ ______

In a related vein,

in Nasuti v. Scannell, supra,

__________________ _____

Aversa argues that we indicated

that intentional torts are not

within the scope of employment as a matter of law.

There, we

stated that "the tort charged (assault and battery) is one of

-1919

the

2680(h)

exceptions which

could not

within the scope of employment."

remark,

excepted

however,

by

does

section

employment as a matter

not

2680(h)

by definition

906 F.2d at 813 n.16.

mean

are

that

intentional

outside

the

of federal law regardless of

be

This

torts

scope

of

the law

of

respondeat
__________

occurred.

superior
________

The assault

of

the

state

at issue

in

in

which the

Nasuti took
______

tort

place in

Massachusetts, under whose law an assault is within the scope

of employment only if done in response to some conduct of the

plaintiff

that interfered

at the

ability to do his or her job.

time with

the employee's

Id. at 805 n.3 (citing Miller

__
______

v. Federated Dep't Stores, Inc., 304 N.E.2d

________________________________

573, 579 (Mass.

1973)).

no evidence

Because the

those circumstances,

scope

of

employment

Generally,

2680(h)

can

district

court found

the assault

as

matter

however, an intentional

be

within

on Nasuti was

the scope

of

of

outside the

Massachusetts

law.

tort excepted by section

of

employment

if state

respondeat superior
__________ ________

NASA,
____

law so requires.

See, e.g.,
___ ____

Henson v.
_________

14 F.3d 1143, 1147-48 (6th Cir. 1994) (under Ohio law,

an employee's acts are

acts

within his

even

though

within the scope of employment

authority during

acting intentionally

the course

or

if he

of employment

maliciously,

outside the scope if the acts are self-serving and

but are

in no way

facilitate the employer's business); Nadler v. Mann, 951 F.2d

______________

301, 305-06 (11th Cir. 1992) (under Florida law, prosecutor's

-2020

allegedly

to

slanderous conduct in referring bribery allegation

FBI was within scope of employment, but leaking the story

to the press

(that

the

was not);

employee's

preclude a finding

Jayson, supra,
_____

conduct

that he

was

9.07[1], at

intentional

was acting within

9-168

does

the scope

not

of

employment).

3.
3.

Scope of Employment
Scope of Employment

We now turn to

the merits.

It is

the plaintiff's

burden to prove the existence of subject matter jurisdiction.

Murphy v. United States,

_______________________

45 F.3d 520, 522 (1st

denied, 115 S. Ct. 2581 (1995).

______

that

Aversa cannot

there

is subject

Claunch

sue

Cir.), cert.
____

Because it is not in dispute

the United

States for

defamation,

only if

Walsh and/or

matter jurisdiction

acted outside the scope

of his employment.

It was

Aversa's burden to persuade the court that they did.

Nasuti,
______

906 F.2d at 813 n. 16.

lack

In ruling

of subject matter

12(b)(1),

the

liberally,

indulging

all

plaintiff.

may consider

jurisdiction under

district court

treating

all

reasonable

Murphy, 45
______

on a motion to dismiss for

must

construe the

well-pleaded

inferences

F.3d at 522.

whatever evidence

Fed. R.

In

facts

as

in

favor

Civ. P.

complaint

true

and

of

the

addition, the court

has been submitted,

such as

the depositions

Nasuti, 906
______

hearing

and exhibits

F.2d at 808

to resolve

submitted in

(trial court

this case.

may hold

Cf.
__

evidentiary

immunity-related factual disputes).

We

-2121

review the district court's scope of employment determination

de novo.
__ ____

There is

of-employment

no New Hampshire case

question in

sufficient guidance

resolving a scope-

defamation case,

in New Hampshire cases

question in the context

but we

find

dealing with the

of assault and in those

sections of

the Restatement (Second) of Agency that we feel confident the

New Hampshire

Supreme

Court would

follow.

See
___

Croes v.
_________

United States, 726 F.2d 31, 32 (1st Cir. 1984).

_____________

An act is within the scope

Hampshire law

if

incidental to

authorized duties; if

time

and space

it

limits

was

authorized

of the

actuated at least in part by

of employment under New

by

the

it was done

employment;

employer

or

within the

and if

it

was

a purpose to serve an objective

of the employer.

689, 698-700,

Co.,
___

701-02 (N.H.

109 A. 88,

Agency

of

See Daigle v. City of Portsmouth,

___ ____________________________

employment

if

authorized, far

or too little

it

acted

the

Restatement (Second) of

The conduct is not within the

was

"different

in

beyond the authorized time

actuated by

Restatement, supra,
_____

As

1987); Richard v. Amoskeag Mfg.

_________________________

91-92 (N.H. 1920);

228(1) (1958).

a purpose to

kind

scope

from

that

or space limits,

serve the

master."

228(2).

there was

no

dispute that

within the time and space

magistrate judge

534 A.2d

focused on

Walsh and

Claunch

limits of their employment,

whether their

conduct was

-2222

authorized

or

incidental

intended by them

because Walsh

releases

to

to serve

keep

the public

press

releases,

in press

the

because Howard

to

was

that

prepare press

conferences in

decision

and

He found

were authorized to

informed, and

made

duties,

their employers.

and Claunch

and participate

authorized

hold

order to

approved the

the

press

conferences, and

was present for the

press conferences, the

statements were either authorized or incidental to authorized

duties.

Claunch

The magistrate judge

acted

interests in

at least

further found that

in part

to serve

keeping the public informed

Walsh and

their employers'

of law enforcement

efforts.

Aversa

correctly

argues

that Walsh's

statements to the press were not authorized.

Walsh testified

that as an Assistant United States Attorney, he

to

abide

by

Manual") issued

the

United

States

Attorneys'

by his employer, the

defamatory

was expected

Manual

("the

Department of Justice.

Chapter 7 of the Manual, entitled "Media Relations," provides

that

"fairness

[and] accuracy

. .

must prevail

in all

dealings

with the

(1988).

News

indictments

such

and

or

news media."

conferences should

arrests except

as to alert the

ch. 7,

1-7.001

not be

held to

announce

in

"unusual circumstances,"

public about a

then "extreme care" should be

branding

Manual,

an accused as guilty of a

-2323

fugitive from justice,

taken to avoid statements

crime of which he or she

has not been convicted.

the essentials

of the

with permission

Id.
__

Written news releases "relating

indictment" may be

of the United States

distributed, and,

Attorney, an Assistant

United States Attorney "may answer legitimate questions about

indictments

or arrests,

either in

press conferences

or in

discussions with individual reporters, but answers should not

go

beyond explanation of what

the confines

that

may
___

of 28 C.F.R.

28 C.F.R.

be and
__

50.2."

Id.
__

public document or

The Manual provides

50.2 "defines the types of information that

the types

available

to the

cases

employees of

by

is in the

of information that

news media

the

about pending

Department

may not
___ ___

. .

be made
__

. criminal

of Justice."

Id.
__

(emphasis

in

original).

Employees

are to

regulation "in both letter and spirit."

adhere

to the

Id.
__

The regulation provides that, among other facts and

circumstances not relevant here, Justice Department employees

may make public the "substance or text of the charge, such as

a[n]

indictment," and

factual

matters."

may disclose

28 C.F.R.

information that would

enforcement function

(6).

the outcome

statements concerning

50.2(b)(3).

Release

be prejudicial or would serve

is prohibited.

Statements which

influence

"only incontrovertible,

could

of a

Id.
__

evidence in

no law

50.2(b)(3), (5),

"reasonably

pending or

of

be expected

future trial,"

the case, whether

to

and

or not

-2424

anticipated

to

be

used

at

trial, are

prohibited.

Id.
__

50.2(b)(2), (6)(v).

Walsh also testified that he was subject to Rule 35

of

the

Local

New

Hampshire District

Court

Rules,

which

prohibits any lawyer from releasing information that is not a

matter of public

fair trial

justice.

record, or

is likely to

or otherwise prejudice the

interfere with

due administration of

See D.N.H. L.R. 35.

___

Walsh admitted that, in dealing with the news media

regarding

criminal case,

anything that was inaccurate

he

was not

authorized

to say

or misleading, not contained in

a public document, or prejudicial to a defendant's right to a

fair trial, or to otherwise contravene the directives of

Manual, 28 C.F.R.

50.2, or

Local Rule 35.

as represented

in the complaint

releases

news

and

articles

The statements,

and appearing in

submitted

the

to

the

the press

court,

transgressedthesepoliciesandrules
andthereforewerenot
authorized.

That Howard approved

decision to call

the press releases,

the press conferences,

made the

and was present

the

press conferences does

did

not approve in advance any of Walsh's oral statements to

the

press.10

Moreover,

not change that

we

do

not

result.

at

think

Howard

that Howard's

____________________

10.

Howard did

Judge
hearing

approve Walsh's

Loughlin required Howard's

and asked

"various innuendoes,

him to

statements after the

presence at the sentencing

respond to

his criticism

totally false, in the

crimes were drug related."

of the

media that these

Howard stated that he

-2525

fact.

"stood by

approval can suffice as authorization

statements.

wishes

to

C.F.R.

An employee

of the Department

release information

50.2

must

beyond

obtain permission

General or Deputy Attorney General,

the

United States

for Walsh's defamatory

Attorney,

that

from

of Justice

allowed by

the

28 C.F.R.

and Walsh

did

who

28

Attorney

50.2(9), not

not seek

such

approval.

Although an employee's

was not authorized, it

scope

of

employment if

intentionally tortious

act

may nonetheless have been within

the

it

was

"incidental to

authorized

duties."

According to New Hampshire

assaults

must

were within

meet

three

the scope

requirements

incidental to authorized duties:

or could

degree

duty;

foresee that the

of force

(2)

the

wrongly, as

(3)

as a

authorized

N.H. 358, 359

in order

to

the conduct

be

considered

(1) the employer authorized

use a

carrying out

excessive

reasonable

an authorized

force,

although

a means of accomplishing an authorized duty; and

Richard, 109 A. at
_______

cmt.

used

the employee's purpose was,

out an

of employment,

employee would

means of

employee

cases deciding whether

duty.

at least in

Daigle,
______

534

A.2d

part, to carry

at

699-702;

90-91; Rowell v. Boston & Maine R.R., 68

______________________________

(1895).

See also Restatement,

___ ____

b (even though an act

supra,
_____

229

is of an entirely different kind

____________________

the

actions

and

conduct

of the

Assistant

United

States

Attorney in this case throughout."

-2626

than that authorized, it may be

"incidental to an authorized

act" if it is "within the ultimate objective of the principal

and an act which it is not unlikely that such a servant might

do").

If these

employer is

use

of

conditions are

liable for

excessive

it follows

the employee's negligent

force

authorize it and even

met,

although

forbade it.

the

that the

or willful

employer

did

not

See Daigle, 534 A.2d

___ ______

at

699-700 (police officer's use of excessive force in effecting

arrest was

91-92

within scope of

(supervisor's

use

employment); Richard, 109

_______

of

excessive

force

in

A. at

keeping

employee at her work station was within scope of employment);

Rowell, 68 N.H. at 359 (conductor's use of excessive force in

______

ejecting

plaintiff from

employment).

railroad

If any one of

car was

within scope

the conditions is not

of

met, the

employee's conduct is outside the scope of employment.

Morin
_____

v. People's Wet Wash Laundry Co., 156 A. 499, 500 (N.H. 1931)
________________________________

(although employee's motive in assaulting plaintiff may

been to

serve his

employment

employer, assault

because the

employment

was

implied

outside scope

no

measure

have

of

of

force).

Here, the Justice Department authorized or at least

could

foresee

that

an

Assistant

United

States

Attorney

permitted to inform the public about arrests, indictments and

convictions would convey to the public a reasonable amount of

__________

negative

information about

the persons involved.

-2727

Further,

although unfortunate, we think that the Department of Justice

reasonably

could anticipate that

that power

might abuse

stated

that

nightsticks

there

it.

"excessive

an employee entrusted with

Analogously, the

force

in

is always foreseeable."

were policies

and

statements that were made,

the

use

Daigle court
______

of

guns

534 A.2d at 700.

regulations against

but an act which is

and

True,

the kinds

of

forbidden or

done in

forbidden manner

scope of employment.

may nonetheless

Restatement, supra,
_____

be within

230.

the

A "master

cannot direct a servant to accomplish a result and anticipate

that he

will always use the

means which he directs

or will

refrain from acts which it is natural to expect that servants

may do."

Id.,
__

230 cmt. b.

See also Danforth v. Fisher, 75

___ ____ __________________

N.H. 111, 111-12 (1908) (if employee was serving some purpose

of his

employer, it is

immaterial that he

did it in

a way

that was unexpected).

We

statements as

also

think

that

a means, albeit

employer's policies and rules,

Walsh

made

the

alleged

tortious and contrary

to his

of accomplishing the

Justice

Department's objective of informing

the public of recent law

enforcement efforts.

Aversa

was involved

racketeering

objective

and

statements did

To

in

furthered

be sure, Walsh's

drug trafficking,

no

legitimate

actually misinformed

the

inform the public about

-2828

suggestions that

tax evasion

law

public.

and

enforcement

But

his

a recent prosecution

under the

anti-structuring laws.

Court agrees

or tortious

The

New Hampshire Supreme

with the Restatement's view

character of

that "the criminal

an employee's

act does

not, ipso
____

facto, remove the act from the scope of employment,"

_____

Daigle,
______

534 A.2d at 700

so long

as

it

(citing Restatement, supra,

_____

is "exerted

employer's

in, and

business."

Id.
__

necessarily agree with the

conditions

conduct

are

met, the

may remove

at 359

(master

And

purpose of,

doing the

that

does

court

not

Restatement's view that, if these

degree

it from

(referring to Restatement,

N.H.

for the

231),

of

the scope

supra,
_____

is responsible

outrageousness of

the

of employment.

Id.
__

229 cmt. b);

for

Rowell, 68
______

the acts

of

the

servant done as

that

a means

and for the

purpose of

performing

work although done with a wanton or reckless purpose to

accomplish the work in an unlawful manner); Arthur v. Balch,

________________

23 N.H. 157, 161

(1851) (employee acted within the

his employment when he used

scope of

a horse he had stolen to

do his

employer's business).

Finally,

actuated,

at least

we think

in part,

that

Walsh's

by an

intention to

Daigle, 534
______

228(1)(c).

This inquiry focuses on the subjective intent

employee and his notion

interests

need

not

be

699; Restatement,

of how to

reasonable or

were

serve his

employer.

the

A.2d at

statements

supra,
_____

of

serve his employer's

reflective

of

good

-2929

judgment.11

Aversa points out that

district court

Walsh defamed

was required

Aversa for

career,

and that

Walsh's

statements

Judge

to

the complaint, which the

to take as

the purpose

Loughlin

have

been

true, alleged

of promoting

found

at least

"self-serving."

that

his own

some

of

The

complaint,

however, also

alleged that

Walsh told

Aversa's

attorney that he planned to use the case to "set a precedent"

and

"educate

the

public"

reporting requirements.

deny

that

the

testified that

media

about the

currency

transaction

During his deposition, Walsh did not

accurately

he believed

reported

his

he was discharging

inform the public in making these statements.

words

and

his duty

to

From this, the

district court justifiably could find that Walsh intended, at

least in part and although misguidedly, to serve an objective

of his employer.

Under

that

the

these

New Hampshire

circumstances, we

Supreme

employer responsible for his

Court

have

little doubt

would hold

Walsh's

defamatory statements.

We find

further

support

for

this conclusion

in

the Restatement's

____________________

11.

In Daigle,
______

the New

the police officer was

law

enforcement

Hampshire Supreme Court

found that

actuated at least in part to

function

in

that

he

serve a

believed

it

was

appropriate to beat suspects in the course of serving the law

enforcement

objectives

of

establishing their guilt.

Bank v. Greg,
______________

14

N.H.

capturing

534 A.2d at 700.

331,

chargeable with agent's fraudulent

of effecting

sale for

principal would never be

the

340

(1843)

guilty

See also Concord

___ ____ _______
(principal

is

acts done for the purpose

principal; "[w]ere it

otherwise, the

liable for the frauds of

a special

agent, unless he commissioned him to commit a fraud").

-3030

and

special

rule

for

defamation,

principle, recognized

in

which embodies

the New

that an employer should be

the

Hampshire assault

general

cases,

held responsible when it entrusts

an employee with a duty particularly susceptible of abuse

cause harm:

master

is

subject to

liability

defamatory statements made

by a

for

servant

acting within the scope of his employment

. . . .

If the scope of employment

of a

servant includes the making of statements

concerning others which he believes to be
true

and

subject

privileged,
to

unprivileged

liability
defamatory

the
for

master

is

untrue

and

statements made

by the servant concerning such others, if

to

the statements are

otherwise within

scope of the servant's employment.

If the

him, he is

the

servant makes

truth of

subject to

liability if

a mistake

the words

as to

spoken or as

justification for speaking them,

he

. . .

master employs a servant to speak

for

if

the

speaks with

an

the

to the
or even

improper motive,

provided that he acts at least in part to

serve
master

his

employer's

may be

liable

purposes.

The

even

the

though

servant knows the statement to be untrue,

as where the manager
purpose

of a store, for the

of obtaining an admission from a

suspected thief, charges such person with

other similar crimes, although

having no

belief in his own statements.

Id.,
__

247 & cmts. a, c.

We also conclude that

held that

One of

the district court correctly

Claunch acted within the scope

his duties was

other cases in which the

to inform

of his employment.

the public

about tax

IRS was involved in order

and

to deter

violations

of the law and

to instill public confidence that

-3131

the IRS prosecuted violators.

news

The

IRS's policy statement on

coverage required Claunch to act with due regard for an

individual's

right to a fair trial and the public's right to

know, and, particularly in view of the "statutory prohibition

on the disclosure of tax information," to strictly limit what

he said

to facts that were

Policy Statement P-1-181.

that the

a matter of public

record.

Aversa alleged that Claunch stated

case represented the IRS's

commitment to ferreting

out, investigating and prosecuting money launderers.

was

indicted

structuring

for

and

convicted

law, which

Subtitle

H,

100

of 1986."

Stat.

legislative

history,

essentially

as

of

was enacted

Laundering Control Act

IRS

as

part of

See Pub.
___

3207-18

however,

violating

(Oct.

defines

concealing money

from

27,

anti-

the "Money

L. No.

99-570,

1986).

"money

the

the

Aversa

The

laundering"

government (not

one's spouse) for the purpose of covering up illegal activity

or evading taxes.

See

H.R. Rep.

No. 746,

99th Cong.,

2d

___

Sess., p. 16

(1986).

launderer."

Nonetheless,

employer would

Aversa was not,

be held

we have

therefore, a

no doubt

responsible for his

"money

that Claunch's

statement under

the principles of New Hampshire law set forth above.

Because Walsh and Claunch acted within the scope of

their employment, the United States was

as the

properly

party

defendant,

and

properly substituted

the common

law

claims

were

dismissed pursuant to the exception to jurisdiction

-3232

under the FTCA for claims arising from libel and slander.

U.S.C.

2680(h).

B.
B.

The Constitutional Claim

The Constitutional Claim

A person may sue

individual

capacity

for

constitutional violation.12

a federal official in his

damages

See
___

arising

on Bivens, the Aversas

______

out

or her

of

Bivens v. Six Unknown Named

___________________________

Agents of Fed. Bureau of Narcotics, 403

_____________________________________

Relying

28

U.S.

alleged in Count

388 (1971).

I of their

complaint that Walsh and Claunch deprived Aversa of a liberty

interest guaranteed by

Amendment by

the Due Process

making false

and misleading statements

press with willful or reckless

causing

his employer

Fifth

to the

disregard of his rights, thus

to discharge

accountant, preventing

Clause of the

him from

his job

him from finding other

as an

employment as

an accountant, and damaging his business goodwill.13

____________________

12.

Constitutional

Westfall

Act's

tort

claims

exclusive

remedy

are

not

subject

provision.

28

to

the

U.S.C

2679(b)(2)(A).

13.

Aversa contends that the district court erred in denying

him leave to amend Count

I to add:

(1) that

the defendants

violated a federal statutory right by contravening Rule 35 of

the Local
Aversa

New Hampshire District

permanently lost

accountant.
justice so

Leave to

his right
amend

requires," Fed. R.

Court Rules, and

to earn

"shall be
Civ. P. 15,

(2) that

a living

freely

as an

given when

but need

not be

given

if the

relief."
the

first

amendment would

Foman v. Davis, 371

______________
proposed

violation of a

not be

"a proper

subject of

U.S. 178, 182 (1962).

addition,

plaintiff

may

As to
sue

for

federal statute under section

1983 or Bivens
______

if the statute "create[s] enforceable rights,

privileges, or

immunities," which, in turn, depends on whether the provision

"was intend[ed]

to benefit the putative

v. Virginia Hosp. Ass'n, 496

________________________

plaintiff."

Wilder
______

U.S. 498, 508 (1990) (internal

-3333

The

district court

granted

summary

judgment

in

favor

of

Walsh

and

Claunch,

qualifiedly immune from suit.

the

that

they

were

Summary judgment is proper if

"pleadings, depositions, answers to interrogatories, and

admissions

on file,

show that there is

and

finding

together with

the affidavits,

no genuine issue as to any

if any,

material fact

that the moving party is entitled to summary judgment as

a matter

of

law."

Fed.

R. Civ.

P.

56(c).

Because

no

material fact is in dispute, the question before us is one of

pure law.

light

most

Our review is de novo and we view the facts in the

__ ____

favorable to

Laconia, 71 F.3d
_______

20, 24

Aversa.

St. Hilaire v. City of

________________________

(1st Cir. 1995),

U.S.L.W. 3849 (U.S. June 24, 1996).

cert. denied,
____ ______

64

An official

[did]

not

is qualifiedly immune if

violate

clearly

established

his "conduct

statutory

or

constitutional rights of which a reasonable person would have

known."

Harlow v. Fitzgerald, 457 U.S.

____________________

800, 818 (1982).

In

____________________

quotation

marks

and citations

entitled

"Release

omitted).

of Information

Local Rule

by Attorneys

35,

in Criminal

Cases," limits the information that may be made public before

and during a

criminal trial, and can be said

to protect a criminal defendant's right to

do not reach
could
that

the question

ever rest on
Rule

35

was

whether a civil

Local Rule 35,

intended

to

employment or business goodwill.

to amend was
about

not error.

a fair trial.
cause of

because we do
protect

We

action

not think

against

loss

of

Thus, denial of the request

The answer

to Aversa's

complaint

the denial of his second proposed addition is that the

court considered Aversa's allegations

his

to be intended

job

and

lost

future employment

accountant and we consider them here.

that he was fired from

opportunities

as

an

-3434

finding

that

the

right

Aversa asserted

was

not

clearly

established, the district court not only relied on the law as

it

was in

1990,

(1991), which

but on

Siegert v. Gilley,
__________________

postdated the

alleged

500 U.S.

violation.

immunity, however,

must be decided

effect at the time

of the alleged violation --

226

Qualified

according to the

law in

"implicit in

the

Harlow
______

formulation . . .

right must have been

defendants' alleged

F.3d

423,

is a temporal dimension:

clearly established at the time

improper actions."

425 (1st

Cir. 1995).

Siegert in its qualified

_______

The court's

reliance on

immunity analysis stemmed from some

necessary

concomitant

to

determination

of

whether

constitutional

right

asserted

the
the
by

plaintiff is "clearly established" at the

time

the

defendant

determination
has

asserted

of

acted

failed

not

only

clearly established

the

plaintiff

violation

of

Id. at 232.
__

to

violation of a constitutional
was

is

whether the

constitutional right at all.

Siegert

of the

Souza v. Pina, 53
______________

confusing language in that very case:

the

allege

right that

at the

time of

Gilley's actions, but

also to

establish

the violation of any constitutional right

at all.

Id. at 233.
__

Some courts have read

this language as requiring a

resolution of

the merits under current

law before beginning

the

of the

at

analysis

alleged violation.

97 (4th

Cir. 1995)

law as

it stood

the time

of the

See DiMeglio v. Haines, 45 F.3d 790, 795___ __________________

(discussing

-3535

various interpretations

of

Siegert).
_______

But

we think

that

these

statements, read

in

context, simply mean that the plaintiff must assert a clearly

established federal constitutional

not

merely

state law

tort

(or statutory) right, and

claim.

The Siegert
_______

Court

concluded that the damage Siegert alleged "may be recoverable

under state tort

action,"

"failed

Siegert,
_______

law but it is

500 U.S.

to satisfy the

not recoverable in a

at 234,

and

first inquiry in

such a claim; he failed to allege the

established constitutional right."

held that

Bivens
______

he had

the examination of

violation of a clearly

Id. at 231.
__

This is

not to

cannot be considered

say that currently

in the

course of, in

instead of determining the law

alleged

violation.

applicable law

addition to,

in effect at the time

or

of the

See Harlow, 457 U.S. at 818 ("On summary

___ ______

judgment, the judge appropriately may determine, not only the

currently applicable

law, but

whether that law

established at the time an action occurred.").

a court of

appeals may recognize a right

was clearly

For example,

for the first time

in that circuit, but find that it was not clearly established

at

the time of

the alleged violation.

See
___

York State Div. of Parole Officers, 999 F.2d

____________________________________

Cir. 1993).

Calhoun v. New
______________

647, 655

(2d

Or a court may look to current Supreme Court law

to determine that, although

the right may now exist,

it was

not

clearly established before.

27-28.

court

may also

See St. Hilaire, 71 F.3d at

___ ___________

bypass

the

qualified

immunity

-3636

analysis if it would be futile because current law forecloses

the claim on the merits.

See Hinton v. City of Elwood, 997

___ _________________________

F.2d

774, 779-80

course

(10th Cir.

in this case because

1993).

We follow

Aversa failed to

the latter

state a claim

under current law.

Aversa claimed that Walsh

of his right

to liberty under

and Claunch deprived him

the substantive component

of

the Due Process Clause of the Fifth Amendment, which protects

against

"certain

government

actions

fairness of the procedures used to

v. Williams, 474 U.S. 327, 331

___________

regardless

implement them."

(1986).

violated

plaintiff

We have

if either

of

said

(1)

that substantive

the government

an identified

interest

the

Daniels
_______

See also Pittsley v.

___ ____ ___________

Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied,

______
____ ______

(1991).14

of

due

502 U.S. 879

process is

actor deprived

in

life, liberty

the

or

property

protected

government

by

the

actor's conduct

Fifth

Amendment,

"shocks

or

(2)

the conscience."

Brown v. Hot, Sexy and Safer Prods., Inc.,

__________________________________________

the

See
___

68 F.3d 525, 531

(1st Cir. 1995) (citations omitted), cert. denied, 116 S. Ct.

____ ______

1044 (1996).

theory

Because Aversa

below or

in his

did

not address

brief to this

court, we

the

latter

limit our

discussion to the former.

____________________

14.

In

contrast, the

claim is that
life,

liberty

essence of

a government actor
or

property

a procedural

due process

deprived the plaintiff

through

procedures

that

of
were

inadequate in light of

the importance and characteristics of

the affected interest.

Pittsley, 927 F.2d at 6.

________

-3737

In Paul v. Davis, 424 U.S.

______________

indicated that

claim

for

defamation

constitutional level if accompanied

but

some

693 (1976), the

could

rise

Court

to

by a loss of employment,

left unclear whether that loss would have to result from

further action

defamation

itself.

by

the defendant

in

addition to

In

Siegert v. Gilley, the

__________________

the

Court made

clear that

it would.

psychologist

at a federal

terminated, then

Army

hospitals

Siegert

Siegert resigned

hospital in order

required

"credentialing"

by

to avoid being

Because

committee,

signed a request form asking the federal hospital to

new employer with information

performance

and

privileges.

supervisor, sent a letter in

not recommend

individual

he

Gilley,

had

was turned down for

Siegert's

former

a psychologist, and

unethical and the most untrustworthy

supervised

denied Siegert

regarding his job

response, stating that he could

Siegert for privileges as

that Siegert was inept,

returned

job as

began working at an Army hospital.

provide his

committee

from his

in

thirteen

credentials.

years.

The

Thereafter, Siegert

a position at another Army

hospital and

to work at the first Army hospital with provisional

credentials.

his

After his administrative appeals

federal employment

228-29.

and their

The Court

was terminated

were denied,

altogether.

Id. at
__

found that Gilley's defamatory statements

consequences were not actionable

of liberty, stating:

-3838

as a deprivation

The

alleged

defamation was

not uttered

incident to the termination

employment

by

the

of Siegert's

hospital,

since

he

voluntarily resigned from his position at

the hospital, and
several

weeks

the letter was written

later.

The

statements

contained in the letter would undoubtedly

damage

the

position,

reputation
and

impair

employment prospects.
in

Paul v.
Davis
________________

serious

of

But

one
his

of

his

future

the plaintiff

similarly

impairment

in

his

alleged
future

employment opportunities as well as other

harm.

Most defamation plaintiffs attempt

to show some

sort of damage and

pocket loss which

flows from the

to their reputation.
damage

flows from

out-ofinjury

But so long as such

injury caused

by the

defendant to a plaintiff's reputation, it

may be

recoverable under state

but it

is not

recoverable

in a

tort law
Bivens
______

action.

Id. at 234.

Thus, what may have

been left open by Davis was

__

_____

foreclosed by Siegert -- in order to state a cognizable claim

_______

that

defamation together

with loss

of employment

worked a

deprivation of a constitutionally-protected liberty interest,

a plaintiff must allege that

from

the loss of employment resulted

some further action by the defendant in addition to the

defamation.

Where it

is the

defendant who

terminated the

plaintiff, the further action is the termination.

as

here, a

third party

plaintiff solely

discharges or

as a result of

refuses to

But where,

hire the

the defendant's defamation,

the plaintiffhas notdescribed a viableconstitutional claim.15

____________________

15.

Aversa

contends that

even

if the

defamation was

uttered in conjunction with some other more direct

not

action by

Walsh or Claunch causing

him to be discharged from

his job,

the defamatory statements stood in the midst of circumstances

-3939

III.
III.

CONCLUSION
CONCLUSION

"Although '[s]tatements

integral part

to

the press

may

of a prosecutor's job,

and . . .

may serve a

vital public function,' that

be

an

function is strictly limited by

the prosecutor's overarching duty to

F.3d

at

427.

statements

Those

who wield

about criminal

their sense

of public

justice."

Id.
__

do justice."

the power

cases must

to

make public

"be guided

responsibility for the

Aversa's

(quoting Young v. United States ex rel.

__________________________________

asserted

criminal

misleading,

solely by

attainment of

Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)).

_____________________

statements

Souza, 53
_____

to have

case

have

been

made

been

in

The public

the course

condemned

as

of

false,

self-serving, unjust and unprofessional by every

court to look at them.16

We therefore refer

the matter of Assistant

United

States Attorney Walsh's conduct to the Office of Professional

Responsibility

of

the Department

of

Justice,

and to

the

____________________

wherein the criminal charges

We

previously have

never should have been brought.

expressed doubt, without

"an alleged constitutional violation for

prosecutor

enjoys

criminal charges]
the

absolute

immunity

can provide

'defamation-plus'

which the defendant

as

initiating

the 'plus' needed

to satisfy

Paul v. Davis."
______________

Celia v.
________

test of

[such

O'Malley, 918 F.2d 1017, 1021 (1st Cir. 1990).

________
Aversa

deciding, that

In any event,

did not present this theory to the district court and

we decline to consider it.

16.

The characterizations

quotations from the various

of

the defendants'

conduct

trial judges who have

are

heard the

proceedings in this and the underlying criminal cases.

This

court makes no findings itself as to the defendants' conduct,

but acts on the basis of the record.

-4040

Professional Conduct Committee

Court.

of the New Hampshire

We refer the matter of Agent Claunch's conduct to the

Inspector General of the Department of the Treasury.

refer former

United States Attorney Howard's

Professional Conduct Committee of

Court.

Supreme

We

do not

suggest in

to the

bodies what action, if any, should be taken.

No costs.

conduct to the

the New Hampshire

any way

We also

Supreme

disciplinary

-4141