Amended August 20, 2014 Christopher J. Godfrey v. State of Iowa Terry Branstad, Governor of the State of Iowa, Individually and in His Official Capacity Kimberly Reynolds, Lieutenant Governor of the State of Iowa, Individually and in Her Official Capacity Jeff Boeyink, Chief of Staff to the Governor of the State of Iowa, Individually and in His Official Capacity Brenna Findley, Legal Counsel to , 847 N.W.2d 578 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 12–2120
Filed June 6, 2014
Amended August 20, 2014
CHRISTOPHER J. GODFREY,
Appellant,
vs.
STATE OF IOWA; TERRY BRANSTAD, Governor of the State of Iowa,
Individually and in His Official Capacity; KIMBERLY REYNOLDS,
Lieutenant Governor of the State of Iowa, Individually and in Her Official
Capacity; JEFF BOEYINK, Chief of Staff to the Governor of the State of
Iowa, Individually and in His Official Capacity; BRENNA FINDLEY, Legal
Counsel to the Governor of the State of Iowa, Individually and in Her
Official Capacity; TIMOTHY ALBRECHT, Communications Director to
the Governor of the State of Iowa, Individually and in His Official
Capacity; and TERESA WAHLERT, Director, Iowa Workforce
Development, Individually and in Her Official Capacity,
Appellees.
Appeal from the Iowa District Court for Polk County, Robert A.
Hutchison, Judge.
A claimant under the Iowa Tort Claims Act appeals a district court
decision dismissing some of his claims. REVERSED AND CASE
REMANDED.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,
Des Moines, for appellant.
George A. LaMarca, Andrew H. Doane, and Phillip J. De Koster of
LaMarca & Landry, P.C., Des Moines, for appellees.
2
Ryan G. Koopmans of Nyemaster Goode P.C., Des Moines, for
amicus curiae National Governors Association.
3
WIGGINS, Justice.
A plaintiff brought an action against the State of Iowa and
individual defendants. The plaintiff named the individual defendants in
their official and individual capacities. The attorney general certified
under Iowa Code section 669.5(2)(a) (2011) that at certain times material
to the plaintiff’s allegations, the individual defendants were acting within
the scope of their employment. Thus, certain immunities under Iowa
Code section 669.14 applied to various counts of the petition. The
district court held the attorney general’s certification was applicable to all
of the plaintiff’s claims. Consequently, the district court dismissed those
counts alleging the individual defendants acted outside the scope of their
employment.
On appeal, we hold the attorney general’s certification is not
applicable to plaintiff’s common law claims alleging the individual
defendants acted outside the scope of their employment. Therefore, we
remand the case back to the district court to allow the fact finder to
decide whether the individual defendants’ actions were within each
individual’s scope of employment.
I. Background Facts and Proceedings.
Christopher J. Godfrey is the workers’ compensation
commissioner. In 2009, Governor Chet Culver appointed him to this
position for a six-year term. Godfrey’s term expires on April 30, 2015.
Prior to July 2011, Godfrey’s salary was $112,068.84.
On December 3, 2010, Governor-elect Terry Branstad demanded
Godfrey’s resignation. Godfrey refused. After Godfrey’s refusal to resign,
Godfrey alleges he had a meeting with the chief of staff to the governor,
Jeffrey Boeyink, and the legal counsel to the governor, Brenna Findley, in
which these individuals attempted to intimidate and harass him into
4
resigning by threatening to reduce his salary. Godfrey again refused to
resign. Subsequently, the Governor reduced Godfrey’s salary to $73,250.
In response to these actions, Godfrey filed an amended petition
alleging causes of action against the State of Iowa; Terry Branstad,
Governor of the State of Iowa, individually and in his official capacity;
Kimberly Reynolds, Lieutenant Governor, individually and in her official
capacity; Jeffrey Boeyink, chief of staff to the governor, individually and
in his official capacity; Brenna Findley, legal counsel to the governor,
individually and in her official capacity; Timothy Albrecht,
communications director to the governor, individually and in his official
capacity; and Teresa Wahlert, director of Iowa Workforce Development,
individually and in her official capacity. The counts relevant to this
appeal are counts VI through XVI: procedural and substantive due
process claims against all defendants under the Iowa Constitution for
Godfrey’s property interest in his employment; procedural and
substantive due process claims against all defendants under the Iowa
Constitution for Godfrey’s liberty interest in his reputation; an equal
protection claim against the State under the Iowa Constitution;
interference-with-contract-relations claims against the individual
defendants; interference-with-prospective-business-advantage claims
against the individual defendants; defamation claims against defendant
Reynolds, defendant Albrecht, defendant Branstad, and defendant
Boeyink; and extortion claims against defendant Findley and defendant
Boeyink. By bringing his suit against defendants individually and in
their official capacities, Godfrey joined his claims against the individual
defendants with his claims against the defendants in their official
capacity. See Iowa R. Civ. P. 1.231 (allowing the joinder of multiple or
alternative claims in a single petition against a single defendant under
5
certain circumstances); id. r. 1.233 (allowing the joinder of multiple
defendants in a single petition under certain circumstances).
The Iowa attorney general provided a certification pursuant to Iowa
Code section 669.5(2)(a) certifying the individual defendants were acting
within the scope of their employment at the time of the allegations
contained in the amended petition. The defendants then moved to
substitute the State of Iowa in place of the individual defendants for
counts VI through XVI pursuant to Iowa Code section 669.5(2)(a). The
relief asked for in the motion was to strike all references to the individual
defendants in counts VI through XVI. The individual defendants did not
ask the court to dismiss any counts of the petition.
Godfrey resisted the motion on two grounds. First, he argued the
individual defendants were not acting within the scope of their
employment, and therefore, were not subject to substitution based on the
attorney general’s certification under section 669.5(2)(a). Second, he
argued the substitution of the State for the named defendants in these
counts did not automatically require dismissal of those counts.
The district court held a hearing on the motion to substitute. At
the hearing, the district court asked Godfrey’s trial counsel if Godfrey
was resisting any of the counts discussed in the partial summary
judgment motion. Counsel responded as follows:
MS. CONLIN: I don’t think so, Your Honor.
We also agree that claims for prejudgment interest and
punitive damages are not proper against the State, but we
don’t think we ever pled them against the State. And if we
did, that was a mistake. So this depends on the Court’s
ruling as to the individual defendants.
In paragraph 4 –incidentally, Your Honor, paragraph 4
of our resistance we withdraw those claims, but I don’t think
we want to withdraw them as to the individual defendants.
6
....
MS. CONLIN: . . . . And so it seems to us that we can
maintain claims for prejudgment interest and for punitive
damages against the individual defendants insofar as they
are still parties to this proceeding.
And if I may say, Your Honor, in connection with our
earlier motion, what the State says is that a state employee
is for all times and all purposes cloaked with immunity for
things like assault and battery. So if a state employee goes
out at lunch, it’s a business lunch, and gets into a quarrel
and knocks somebody down, the State says they are
immune. And I say they are not.
....
MS. CONLIN: I think the State’s position on this is
just untenable, and a state employee is a state employee
when he or she is acting in the scope of employment, but not
otherwise.
Trial counsel’s statements identify a distinction between the claims
Godfrey made against the defendants in their official capacities, i.e., in
their scope of employment where the court could properly substitute the
State, and the claims Godfrey made against the defendants in their
individual capacities. 1
Subsequent to the hearing, the parties agreed the district court
should dismiss counts X through XV in their entirety if (1) the district
court granted the defendants’ motion to substitute the State of Iowa, (2)
the district court found against Godfrey on his claim that substitution of
1In oral argument, Godfrey’s counsel made the same assertion she made in the
district court. Specifically she stated:
I wanted to address some of the issues that you’ve raised. In my
pleading I did not bring the action under the Iowa Tort Claims Act. Did I
file with the Iowa Tort Claims Act people? Absolutely because it seems
as though that was a good thing to do just in case but I didn’t bring it
that way. I brought it at common law. All six of the claims that were
dismissed were brought at common law because I do not think that the
Governor defamed Chris Godfrey in his scope of his employment.
7
the State for the named defendants did not lead to the automatic
dismissal of those counts, and (3) the district court decided the
certification did not allow Godfrey to pursue his actions against the
individual defendants who were not acting within the scope of their
employment. 2 The district court granted the motion to substitute on
counts VI through XVI and dismissed counts X through XV as per the
parties’ agreement.
Godfrey applied for an interlocutory appeal, asking us to review the
district court’s ruling to allow substitution and its dismissal of counts X
through XV in reliance on the attorney general’s certification. We
granted the application.
II. Issues.
The only issue on appeal is whether the attorney general’s
certification pursuant to Iowa Code section 669.5(2)(a) is applicable to
Godfrey’s common law claims alleging the individual defendants acted
outside the scope of their employment.
III. Standard of Review.
Godfrey argues the district court’s finding was an improper
statutory interpretation and this interpretation violated the Iowa
Constitution. We review a district court’s statutory interpretation for
correction of errors at law. See City of Postville v. Upper Explorerland
Reg’l Planning Comm’n, 834 N.W.2d 1, 6 (Iowa 2013).
2Godfrey’s claims in counts X through XV included claims of interference with
contract relations, interference with prospective business advantage, and defamation.
Under Iowa Code section 669.14(4), the Iowa Tort Claims Act does not waive sovereign
immunity for these claims. Thus, if the district court properly substituted the State in
the place of the individual defendants for these claims, Godfrey could not maintain
these claims against the State.
8
IV. Immunity for State Employees Under the Iowa Tort Claims
Act.
The doctrine of sovereign immunity originally prohibited tort suits
against the State of Iowa. Hansen v. State, 298 N.W.2d 263, 265 (Iowa
1980). Sovereign immunity also applied to governmental subdivisions.
See, e.g., Canade, Inc. v. Town of Blue Grass, 195 N.W.2d 734, 736 (Iowa
1972) (recognizing the rule of governmental immunity applied to a claim
of negligence against a municipality). This immunity was jurisdictional;
thus, the courts lacked jurisdiction over tort actions against the State or
its agencies. Lloyd v. State, 251 N.W.2d 551, 555 (Iowa 1977). In 1965,
the general assembly enacted the Iowa Tort Claims Act and thereby
waived the State’s sovereign immunity for certain tort claims against the
State. See 1965 Iowa Acts ch. 79 (codified at Iowa Code ch. 25A (1966),
current version at Iowa Code ch. 669). In 1968, the general assembly
enacted the Municipal Tort Claims Act and similarly waived a political
subdivision’s immunity for certain tort claims against a political
subdivision. See 1967 Iowa Acts ch. 405 (codified at Iowa Code ch. 613A
(1971), current version at Iowa Code ch. 670).
However, prior to the waiver of sovereign immunity under the state
and municipal tort claims acts, an individual could maintain a cause of
action in tort against a government employee in his or her personal
capacity. See Montanick v. McMillin, 225 Iowa 442, 459, 280 N.W. 608,
617 (1938). In Montanick, a plaintiff sued a Wapello County employee for
monetary damages resulting from a car accident in which the employee
was driving a municipal vehicle. Id. at 444–46, 280 N.W. at 609–10. The
plaintiff voluntarily dismissed a cause of action against Wapello County
and proceeded only against the employee in his individual capacity. Id.
at 446, 280 N.W. at 610. We noted the employee’s liability did not relate
9
to his employment, but stemmed from pure tort law. Id. at 452, 280
N.W. at 613.
We then identified a claim against an employee as involving
potentially two separate actions. Id. at 453, 280 N.W. at 613–14. We
recognized under the principle of respondeat superior a party could sue
both the servant and the master. Id. This was an additional remedy to
an injured party. Id. Thus, in theory an injured party could sue both
the employee and the employer, though at this time if the employer was a
governmental body, the employer was immune from suit. See id. at 453,
280 N.W. at 614. However, the exemption of governmental bodies from
liability due to sovereign immunity did not extinguish the primary
remedy that a person “who wrongfully inflicts injury upon another is
liable to the injured person for damages.” Id. at 453, 280 N.W. at 614.
We stated, “[p]ublic service should not be a shield to protect a public
servant from the consequences of his [or her] personal misconduct.” Id.
at 455, 280 N.W. at 615. We also stated, “this general obligation to
injure no man by an act of misfeasance is neither increased nor
diminished by the fact that the negligent party is an employee of a
municipal corporation.” Id. at 458, 280 N.W. at 616. We subsequently
held “an employee of a city, county or state who commits a wrongful or
tortious act, violates a duty which he owed to the one who is injured, and
is personally liable.” Id. at 459, 280 N.W. at 617.
We applied the same reasoning to a claim against a state employee.
Johnson v. Baker, 254 Iowa 1077, 1086–89, 120 N.W.2d 502, 507–09
(1963). In Johnson, we cited a Drake Law Review article as properly
summarizing the law in this area. Id. at 1087–88, 120 N.W.2d at 508.
The article examined governmental immunities and came to the following
conclusion:
10
In summary, if the individual employee is engaged in a
ministerial act he may or may not be liable for his own
negligence. The employee can escape liability under a cloak
of governmental immunity in such cases only if: (1) the
activity is within the scope of the acts which he is authorized
to perform, and (2) the negligence is a matter of nonfeasance.
He may be held liable for his own negligence if: (1) the act
was not within his scope of authority, or (2) for an act of
misfeasance even if it is within his scope of authorization.
J. Robert Hard, Liability of Public Bodies, Officers, and Employees —
Governmental Immunity, 11 Drake L. Rev. 79, 106 (1962). We have never
applied sovereign immunity where state employees commit a tort when
acting outside the scope of their employment.
After the enactment of the state and municipal tort claims acts, we
continued to apply the rule that an employee can be liable for acts
outside the scope of his or her employment. See, e.g., Roberts v.
Timmins, 281 N.W.2d 20, 24 (Iowa 1979). In Roberts, the plaintiff
brought a claim against several municipal employees for preventing him
“from continuing his auto repair business by shutting off his city water
supply, issuing a ‘health denunciation’ and attempting to get a local
utility to cut off his gas and electric service.” Id. at 21. The employees
subsequently filed a motion to dismiss, arguing the plaintiff’s claim failed
because he did not follow the claim procedures under the Municipal Tort
Claims Act. Id. The district court sustained the motion. Id. at 22. On
appeal, we observed a person attempting to recover damages against a
municipality or any of its officers, employees, or agents acting within the
scope of their employment must follow the procedures of the Municipal
Tort Claims Act to proceed. Id. at 24. Nonetheless, taking all well-
pleaded facts as true, we found the plaintiff alleged the “defendants acted
willfully, maliciously and without authorization outside the scope of their
employment”; therefore, the procedures of the Municipal Tort Claims Act
11
did not govern the action. See id. Accordingly, we reversed the district
court and allowed the suit to continue until the evidence showed
otherwise. See id.
In summary, even after the enactment of the state and municipal
tort claims acts, the victim of a tort could sue an employee in his or her
personal capacity for acts outside the scope of his or her employment. 3
V. Certification Under Iowa Code Section 669.5(2)(a).
Prior to the passage of section 669.5(2)(a), the State protected its
employees from the expense of defending a lawsuit by requiring the State
to defend, indemnify, and hold harmless an employee from any claim
against the employee, provided the employee performed the alleged
actions within the scope of his or her employment. 1975 Iowa Acts ch.
80, § 7 (codified at Iowa Code § 25A.21 (1977), current version at Iowa
Code § 669.21) (amending the Iowa Tort Claims Act to provide the State
would defend state employees).
The general assembly added the certification provision in 2006 as
an amendment to the Iowa Tort Claims Act. 2006 Iowa Acts ch. 1185,
§ 107 (codified at Iowa Code § 669.5(2)(a) (2008)). The language of the
certification provision is similar to the language used by Congress in the
Westfall Act. Compare Iowa Code § 669.5(2)(a) (2011), with 28 U.S.C.
§ 2679(d)(1) (2012). We also believe the general assembly’s purpose in
amending the Iowa Tort Claims Act is the same purpose Congress
intended when it passed the Westfall Act.
3The Iowa Code provides, “ ‘[a]cting within the scope of the employee’s office or
employment’ means acting in the employee’s line of duty as an employee of the state.”
Iowa Code § 669.2(1) (emphasis omitted). We need not decide the meaning of this
section to decide this appeal.
12
Congress enacted the Westfall Act in response to the United States
Supreme Court decision in the case of Westfall v. Erwin. See 484 U.S.
292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), superseded by statute,
Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563, as recognized in
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 425, 115 S. Ct. 2227,
2232, 132 L. Ed. 2d 375, 384–85 (1995). In Westfall, the Supreme Court
limited a federal employee’s immunity from suit by finding immunity was
only available to the employee when the employee both acted within the
scope of his or her employment and the alleged wrongful act was
discretionary in nature. Westfall, 484 U.S. at 300, 108 S. Ct. at 585, 98
L. Ed. 2d at 628. Congress responded by expanding immunity under the
Westfall Act, finding the Westfall decision created a threat of increased
personal tort litigation against federal employees. Lamagno, 515 U.S. at
425–26, 115 S. Ct. at 2232, 132 L. Ed. 2d at 385.
Congress enacted the Westfall Act as an act independent of the
Federal Tort Claims Act. Cf. id. at 419–20, 115 S. Ct. at 2229, 132 L. Ed.
2d at 381 (recognizing the Federal Tort Claims Act only came into play if
the Attorney General certified the defendants as acting within the scope
of their employment under the Westfall Act). As one court explained
the purpose of the Westfall Act is to assure that the
decisions and conduct of federal public servants in the
course of their work will not be adversely affected by fear of
personal liability for money damages and of the burden of
defending damage liability claims. Congress thus wished to
grant immunity from both liability and litigation in those
instances in which the employee was acting within the scope
of his or her office or employment. At the same time,
Congress wished to leave undisturbed the rights of those
injured by federal employees who were not acting within the
scope of their office or employment.
Melo v. Hafer, 13 F.3d 736, 744 (3d Cir. 1994).
13
The Westfall Act sets forth the procedure for the Attorney General
to certify an employee was acting within the scope of his or her
employment. When a person or entity sues an employee of the federal
government, the employee delivers the suit papers to the Attorney
General. 28 U.S.C. § 2679(c). The Attorney General then decides
whether to provide the certification. If the Attorney General provides a
certification and the plaintiff filed the action in state court, the action is
removed to federal court. Id. § 2679(d)(2). The Supreme Court
determined the Attorney General’s certification is reviewable. Lamagno,
515 U.S. at 434, 115 S. Ct. at 2236, 132 L. Ed. 2d at 390. If the court
finds the employee’s actions are not within the scope of employment, the
action proceeds as a regular tort claim.
VI. Analysis.
To decide this appeal, we do not need to decide whether the Iowa
attorney general’s certification is reviewable. Rather, we must address
whether the attorney general’s certification is applicable to claims
alleging individual defendants were acting outside the scope of their
employment. Congress enacted the Westfall Act independently of the
Federal Tort Claims Act and set forth the procedure to follow when a
person or entity sues a federal employee. Under the Westfall Act, the
Attorney General may provide his certification in any action, even those
not brought under the Federal Tort Claims Act. See id. at 419–20, 115 S.
Ct. at 2229, 132 L. Ed. 2d at 381 (affirming the Attorney General can
provide a certification in a case that originated as a regular tort case filed
in state court).
The general assembly included a similar certification provision in
the Iowa Tort Claims Act. See Iowa Code § 669.5(2)(a). However, the
first sentence of section 669.5 makes it clear the provisions of section
14
669.5 only apply to suits brought under the Iowa Tort Claims Act. See
id. § 669.5(1) (“A suit shall not be permitted for a claim under this
chapter unless the attorney general has made final disposition of the
claim.” (Emphasis added.)).
By limiting the attorney general’s certification to actions where the
plaintiff claims the employee is acting within the scope of his or her
employment, we preserve one purpose of the certification provision.
Those employees who act within the scope of their employment are
granted immunity from both liability and litigation and will not be
adversely affected by fear of personal liability for money damages and the
burden of defending damage liability claims.
A plaintiff’s claim the state employee was not acting within the
scope of his or her employment is not a claim brought under the Iowa
Tort Claims Act. See id. § 669.2(3)(b) (defining “claim” for purposes of
the Iowa Tort Claims Act as those claims against a state employee where
the employee acts within the scope of his or her employment). Thus, we
conclude the attorney general’s certification can only apply to actions
brought under the Iowa Tort Claims Act and not those brought against
an employee acting outside the scope of employment. Our holding in
this regard also preserves the other purpose of the certification—to leave
undisturbed the rights of those injured by state employees who were not
acting within the scope of their employment.
Applying these principles, we recognize Godfrey has argued his
claims against the individual defendants in their individual capacities do
not derive from actions that occurred within the scope of their
employment. Thus, the attorney general’s certification does not apply to
his claims against the individual defendants in their individual
capacities. These claims against the individual defendants in their
15
individual capacities must proceed outside the Iowa Tort Claims Act until
such time the fact finder establishes that at the time of the alleged
actions, the individual defendants were acting within the scope of their
employment. Generally in a tort action, the fact finder decides whether
an act is within the employee’s scope of employment. See Godar v.
Edwards, 588 N.W.2d 701, 706 (Iowa 1999). However, the State or an
employee may file a motion for summary judgment to resolve this issue.
See Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 501 (Iowa
2013). (“We can resolve a matter on summary judgment if the record
reveals a conflict concerning only the legal consequences of undisputed
facts.”).
If the court can resolve the scope of employment issue by summary
judgment, the court shall substitute the State as the defendant for the
employee. If not, the employee will remain a defendant until the fact
finder establishes that at the time of the alleged actions the employee
was acting within the scope of his or her employment. If the fact finder
establishes the employee was acting within the scope of his or her
employment, the court shall substitute the State as the defendant for the
employee.
Our decision today does not change the way the State has
administered claims against state employees or open the floodgates for
state employees to be sued individually and to pay the defense costs out
of their own pockets when they commit a tort in the scope of their
employment. First, it has always been the law of this State that when a
public employee acts outside the scope of his or her employment, the
employee is personally responsible for the cost of defense and any
damages he or she may have caused. See Montanick, 225 Iowa at 455–
16
57, 280 N.W. at 615; see also 4 Eugene McQuillen, The Law of Municipal
Corporations § 12:269, at 400–13 (3d ed. rev. vol. 2011).
For example, if a judge attends a board of supervisors meeting and
protests the placement of a hog lot near his or her property and in doing
so defames the hog lot owner, the public fisc should not be responsible to
defend that judge or pay damages on behalf of that judge if the hog lot
owner is successful in his suit against the judge. The reason the public
fisc is not at risk is that when the judge made the alleged defamatory
remarks, he or she was not acting within the scope of his or her
employment.
Second, the Iowa Code requires the State to defend, indemnify and
hold harmless any employee whose tort was committed when the
employee was acting in the scope of his or her employment. Iowa Code
§ 669.21. Moreover, we have previously held “[t]he duty to defend is
broader than the duty to indemnify.” First Newton Nat’l Bank v. Gen.
Cas. Co. of Wis., 426 N.W.2d 618, 630 (Iowa 1988). When a state
employee is sued and the employee contends the suit arises out of
actions performed in the employee’s scope of employment, the employee
should deliver the suit papers to the attorney general and ask the State
for indemnity under section 669.21. Section 669.21 requires the State to
indemnify the employee if the employee was acting in the scope of his or
her employment. See Iowa Code § 669.21. Thus, under the example
discussed earlier, if the same judge allegedly makes a defamatory
statement against an individual and a question exists as to whether he
or she made the statement in the scope of his or her employment, the
State has a duty to defend, indemnify and hold harmless the judge until
17
such time as it is finally determined by a court the judge’s actions were
outside the scope of his or her employment. 4
When there is no factual dispute as to whether the employee was
acting within the scope of his or her employment, the certification
procedure relieves the employee of personal liability by substituting the
State as the only defendant. However, when a factual dispute exists as
to whether the state employee was acting within the scope of his or her
employment, the court cannot substitute the State as the defendant until
the court determines the employee acted within the scope of his or her
employment. Otherwise, the attorney general could provide a
certification when the employee was not acting within the scope of his or
her employment and put the public fisc at risk when it has never
previously been at risk.
In summary, where a question of fact exists as to whether a state
employee’s actions were within the scope of his or her employment, the
state employee is going to be defended, indemnified and held harmless
from any damages and should not fear that his or her personal assets
will be at risk, unless it is finally determined the employee was acting
outside the scope of his or her employment. When a state employee acts
outside the scope of his or her employment, the employee should be
responsible for the attorney fees and the damages, not the public fisc.
For these reasons we hold the attorney general’s certification under
Iowa Code section 669.5(2)(a) is not applicable to Godfrey’s claims that
the individual defendants were acting outside the scope of their
employment. In circumstances where the employee’s actions are not
within the scope of their employment, the public fisc should not be used
4This would include defending the judge through any appeals.
18
to pay for that employee’s defense or damages awarded a third party for
that employee’s actions. The legislature has never authorized the
expenditure of public funds to pay for the acts of its employees when
done outside the scope of their employment. We are not going to do so
today. Therefore, Godfrey may proceed on these claims against the
defendants individually until such time it is determined the defendants
were acting within the scope of their employment.
VII. Conclusion and Disposition.
We hold the Iowa Tort Claims Act only applies to torts committed
by state employees when acting within the scope of their employment.
Therefore, the certification provisions of section 669.5(2)(a) do not apply
when state employees commit a tort when acting outside the scope of
their employment. This holding upholds the purpose of the Act by
relieving state employees of personal liability if their tort is committed
when they were acting within the scope of their employment. At the
same time, our holding protects the public fisc by making sure the State
does not have to pay any defense costs or damages arising out of a tort
committed by state employees acting outside the scope of their
employment.
We reverse the judgment of the district court substituting the State
in counts VI through XVI and dismissing counts X through XV in their
entirety. We remand the case back to the district court to allow the fact
finder to decide whether the individual defendants’ actions were within
the scope of their employment for these counts.
REVERSED AND CASE REMANDED.
All justices concur except Waterman and Mansfield, JJ., who
dissent.
19
#12–2120, Godfrey v. State
WATERMAN, Justice (dissenting).
I respectfully dissent for the reasons articulated in Justice
Mansfield’s dissent, which I join. I write separately to elaborate on the
purposes behind the attorney general certification procedure and the
statutory immunities undermined by the majority today. The legislature
provided our public officials certain immunities from suit under the Iowa
Tort Claims Act (ITCA), Iowa Code ch. 669 (2011), and a straightforward,
simple certification procedure to extricate state employees from lawsuits
arising from the performance of their duties. Iowa Code §§ 669.5(2)
(certification), 669.14 (immunities), 669.21 (defense and indemnity). The
intent of the legislature was to allow our state employees to do their jobs
without fear of the expense, distraction, and risk of personal financial
ruin caused by lawsuits.
Certification not only spares the public official the risk of a ruinous
personal judgment, but also the costs of defending a lawsuit. As Voltaire
famously reflected, “ ‘I was never ruined but twice: once when I lost a
lawsuit, and once when I won one.’ ” Aetna Cas. & Sur. Co. v. Leo A. Daly
Co., 870 F. Supp. 925, 941 (S.D. Iowa 1994). Until today, our public
officials sued personally for doing their jobs could quickly avoid the cost
of defending the suit upon the attorney general’s certification that they
were acting within their scope of employment. The majority, however,
remands this case to have the scope-of-employment issue determined by
the fact finder, the jury. Significantly, under the majority’s
interpretation, a plaintiff suing any state official can sidestep the
attorney general’s certification merely by alleging the claim is brought
against the defendant in his or her “individual capacity.” By alleging that
simple phrase, the employee could be denied indemnification for ongoing
20
defense costs. In effect, the majority creates an anticertification loophole
that substitutes plaintiff’s counsel for the attorney general to make the
determination whether the defendant state employee must defend the
lawsuit at his or her own expense. So now the state defendants are likely
to remain personally entangled in costly litigation all the way through
trial.
The majority asserts it is protecting the public fisc by sparing our
state treasury the cost of defending lawsuits naming public officials in
their individual capacity. But, who decides at the threshold of a lawsuit
whether the state employee was acting within the scope of his or her
employment—the Iowa Attorney General, to whom the legislature
entrusted this determination? Or Godfrey’s attorney, based on unproven
allegations in the petition? Who is more likely to protect the public fisc?
The attorney general, who is elected by the people of Iowa and
accountable to the voters? Or a private lawyer for a claimant suing the
State and state employees, whose attorney fee is contingent on a
monetary recovery and increases with the size of the verdict or
settlement? With good reason, our legislature enacted the certification
procedure to empower the attorney general to decide the issue, with
judicial review limited to cases in which the attorney general refuses
certification. See Iowa Code § 669.5(2); see also id. § 13.2 (defining
duties of attorney general). 5
5As relevant, Iowa Code section 13.2 provides:
1. It shall be the duty of the attorney general, except as otherwise
provided by law to:
a. Prosecute and defend all causes in the appellate courts in
which the state is a party or interested.
b. Prosecute and defend in any other court or tribunal, all
actions and proceedings, civil or criminal, in which the state may be a
21
I predict the consequences of today’s decision will be to hamper job
performance by state officials and to deter good people from public
service. Why take a government job if your personal savings could be
lost in a lawsuit? Why give a negative job performance evaluation of
someone you supervise if he can sue you personally for defamation and
take that case all the way to trial?
In this case, for example, the plaintiff has sued the Governor for
making “false, defamatory statements to news organizations, including
WHO-Radio and WHO-TV,” wherein the Governor “blamed Plaintiff for
rising workers’ compensation costs for Iowa businesses.” Because it is
important for public officials to communicate with the public, it has been
the law for the last fifty years that defamation claims are not available
against any public official who was acting in his or her official capacity.
The attorney general, after independently reviewing the matter, found
that the Governor was acting in his official capacity when he went on the
radio and television to make these statements. The defamation claims
were therefore dismissed, with the plaintiff being free to pursue his
constitutional and discrimination claims. However, because the plaintiff
_____________________
party or interested, when, in the attorney general’s judgment, the interest
of the state requires such action, or when requested to do so by the
governor, executive council, or general assembly.
c. Prosecute and defend all actions and proceedings brought by
or against any state officer in the officer’s official capacity.
d. Prosecute and defend all actions and proceedings brought by
or against any employee of a judicial district department of correctional
services in the performance of an assessment of risk.
e. Give an opinion in writing, when requested, upon all questions
of law submitted by the general assembly or by either house thereof, or
by any state officer, elective or appointive. Questions submitted by state
officers must be of a public nature and relate to the duties of such
officer.
22
included a bare allegation that the Governor was acting “individually and
in his official capacity,” the majority now strips the attorney general of
his authority, revives the plaintiff’s defamation claims, and puts the
Governor in the position of having to defend them.
This will create a strong incentive for public officials to clam up
and not participate in press conferences or allow media interviews. Is
this what we want? Is it what the legislature intended? It should be
noted that the decision in this case applies to all branches of
government, including members of the general assembly. Allowing
plaintiffs to sidestep the safeguards of the certification procedure will
have a chilling effect on the willingness of state officials to answer
questions about official actions or pending legislation. The price of the
majority opinion will be less transparency and openness in our state
government.
The majority ignores the admonitions our court reiterated just a
few years ago on the important purposes served by immunities for public
employees:
As recognized at common law, public officers require
this protection [(immunity)] to shield them from undue
interference with their duties and from potentially disabling
threats of liability.
Without such protection, there is the danger that fear
of being sued will dampen the ardor of all but the most
resolute, or the most irresponsible, public officials in the
unflinching discharge of their duties.
Hlubek v. Pelecky, 701 N.W.2d 93, 98 (Iowa 2005) (citations omitted)
(internal quotation marks omitted); cf. Hook v. Trevino, 839 N.W.2d 434,
444 (Iowa 2013) (“We find it equally self-evident that the purpose of
section 669.24 [volunteer immunity] is to encourage people to provide
volunteer services to the state by removing the threat of personal
23
liability.”). The certification procedure and accompanying immunities
help our state officials execute their duties without being intimidated by
the threat of personal liability. We should interpret the ITCA to
effectuate that purpose, not undermine it. See Harden v. State, 434
N.W.2d 881, 884 (Iowa 1989) (“We seek a reasonable interpretation that
will best effect the purpose of the [ITCA] . . . .”); cf. Hlubek, 701 N.W.2d at
98 (recognizing the importance of protecting school officials from
personal liability).
Federal courts likewise have echoed the importance of immunity
for public officials:
The purpose of immunity is to protect “[t]he societal
interest in providing such public officials with the maximum
ability to deal fearlessly and impartially with the public at
large. . . . The point of immunity for such officials is to
forestall an atmosphere of intimidation that would conflict
with their resolve to perform their designated functions in a
principled fashion.”
El Dia, Inc. v. Rossello, 20 F. Supp. 2d 296, 301 (D.P.R. 1998) (quoting
Clinton v. Jones, 520 U.S. 681, 693, 117 S. Ct. 1636, 1644, 137 L. Ed. 2d
945, 960 (1997)), aff’d El Dia, Inc. v. Rossello, 165 F.3d 106, 108 (1st Cir.
1999). The Wisconsin Supreme Court elaborated on the public policies
underlying immunity for public officials:
These considerations have been variously identified in the
cases as follows: (1) The danger of influencing public officers
in the performance of their functions by the threat of
lawsuit; (2) the deterrent effect which the threat of personal
liability might have on those who are considering entering
public service; (3) the drain on valuable time caused by such
actions; (4) the unfairness of subjecting officials to personal
liability for the acts of their subordinates; and (5) the feeling
that the ballot and removal procedures are more appropriate
methods of dealing with misconduct in public offic[e].
Lister v. Bd. of Regents, 240 N.W.2d 610, 621 (Wis. 1976). Each of the
foregoing public policies is undermined by today’s majority decision.
24
The district court correctly upheld the attorney general’s
certification in this case and dismissed the relevant claims against the
defendants personally. I would affirm.
Mansfield, J., joins this dissent.
25
#12–2120, Godfrey v. State
MANSFIELD, Justice (dissenting).
I respectfully dissent. The majority’s understanding of the Iowa
Tort Claims Act is not what the plaintiff argued, is contrary to the
language of the statute, and is unworkable as a practical matter. If we
consider the argument that Christopher Godfrey actually made, both
here and below, I think the district court made the right decision, and I
would affirm.
I. The Majority’s Reading of the Iowa Tort Claims Act.
Let me begin with the majority’s reading of the Iowa Tort Claims
Act (ITCA). According to the majority, a plaintiff who brings an action
against state employees need only add to the case caption that each
employee is being named “individually and in his [or her] official
capacity.” This small insertion then becomes a way for the plaintiff to
have all the benefits of the ITCA while avoiding its adverse consequences.
Having used the “individual and official” language in the case
caption, the plaintiff gets the ball rolling by submitting the entire dispute
to the state appeal board, as the plaintiff did here. See Iowa Code
§ 669.3(2)–(3) (2011) (instructing a plaintiff to file a claim with the
director of the department of management and granting state appeal
board authority over claims). Assuming the board rejects the claim or
doesn’t act, the plaintiff can go to court, as the plaintiff did here. See id.
§ 669.5(1).
Next up is certification. If the attorney general certifies the
defendants were state employees acting within the scope of their office or
employment, the plaintiff gets the best of both worlds. As to any tort
claims that are allowed under the ITCA, the employees are conclusively
deemed to have acted within the scope of employment, the State is
26
substituted as a defendant, and the State is bound by the employees’
actions and has to pay the bill for them. See id. §§ 669.5(2)(a), .21. On
the other hand, with respect to tort claims that are not allowed under the
ITCA because the State hasn’t waived sovereign immunity, the plaintiff
can freely argue the inconsistent position that the state employees were
not acting within the scope of their office or employment. Furthermore,
the plaintiff can take this inconsistent position without any repercussion,
because the State is irrevocably on the hook for the covered claims. See
id.
Now, one might say that a shrewd attorney general could refuse to
make a certification, thereby keeping his or her options open. But this
won’t happen because, in that event, the defendants would file petitions
asking the court to find they were acting within the scope of their
employment. See id. § 669.5(2)(b). And assuming the court grants the
petitions, the plaintiff would again have the best of both worlds. He or
she would be able to argue the defendants were not acting within the
scope of their office or employment with respect to uncovered tort claims,
while benefiting from a prior conclusive determination that with respect
to covered tort claims they were acting within the scope of their office or
employment.
I disagree that the ITCA establishes such a no-lose proposition for
the plaintiff, so long as the plaintiff is astute enough to include six words
in the case caption—“individually and in his [or her] official capacity.”
While the majority’s position is a no-lose for the plaintiff, it is a
lose-lose for the defendants. Instead of getting an early determination
one way or the other that their liability will or will not be covered by the
State, state employees are left hanging until trial or summary judgment
with respect to the uncovered claims. Until the jury renders a verdict, if
27
there is any issue of fact, they won’t know if they are going to have to pay
damages out of their own pockets.
II. How the ITCA Actually Works: The Plaintiff’s Two Options.
In my view, this is wrong. I believe the law is straightforward and
works like this: A plaintiff who believes he or she has been wronged by a
state employee acting outside the scope of employment always has the
option of bringing a stand-alone lawsuit against that employee without
going through the ITCA presuit notice procedures. In that event, the
burden shifts to the defendant to show he or she acted within the scope
of employment and therefore the claim or claims are covered by the ITCA.
See, e.g., Thomas v. Gavin, 838 N.W.2d 518, 519–20 (Iowa 2013); see
also Iowa Code § 669.2(3)–(4) (defining “claim” covered by the ITCA and
“employee of the state”). 6
On the other hand, should the plaintiff choose to follow the ITCA
presuit notice procedures and then file suit based upon that notice, the
plaintiff becomes subject to the attorney general’s certification with
respect to the entire suit.
The statute in my view compels this interpretation by making it
quite clear that certification applies to “suit[s],” not individual causes of
action. See Iowa Code § 669.5. Thus, the ITCA first requires a “claim
made under” the Act to be filed with the department of management. See
id. § 669.3(2). Once the appeal board acts on the claim, or in the event
6In Thomas, for example, the defendants, whom the plaintiff had sued without
going through ITCA procedures, moved for summary judgment. See 838 N.W.2d at 519.
The district court granted summary judgment, finding that the defendants were
employees of the State and that the plaintiffs’ claims fell within the scope of the Act. Id.
at 520. We ultimately reversed the grant of summary judgment. Id. at 527. Similarly,
in McGill v. Fish, a state university employee filed a gross negligence claim against
several coemployees, without going through ITCA procedures. See 790 N.W.2d 113,
116 (Iowa 2010). The State brought a motion to dismiss on behalf of the coemployees
based on failure to exhaust administrative remedies, which the district court denied.
Id. We ultimately reversed the denial of the motion. Id. at 121.
28
the board fails to act within six months, the plaintiff may bring a “suit”
for the “claim.” See id. § 669.5(1). This triggers the attorney general’s
certification power. See id. § 669.5(2)(a). The attorney general can then
certify that a defendant in the “suit” was a state employee acting within
the scope of the employee’s office or employment at the time of the
incident upon which the claim is based. See id. If that occurs, “the suit”
shall be deemed to be an action against the State, and the State shall be
substituted as the defendant in place of the employee. See id. Let me
quote the entire language of the subsection:
Upon certification by the attorney general that a defendant
in a suit was an employee of the state acting within the
scope of the employee’s office or employment at the time of
the incident upon which the claim is based, the suit
commenced upon the claim shall be deemed to be an action
against the state under the provisions of this chapter, and if
the state is not already a defendant, the state shall be
substituted as the defendant in place of the employee.
Id.
In short, the certification process operates on “the suit,” not merely
part of it, as the majority concludes. See id. Certification results in the
state employee ceasing to be “a defendant,” rather than just removing
that employee from some parts of the case, as the majority would have it.
See id. 7
7I recognize the state employee would remain a defendant to the extent any civil
rights claims are asserted against him or her under chapter 216. See Vivian v.
Madison, 601 N.W.2d 872, 878 (Iowa 1999) (“The legislature’s use of the words ‘person’
and ‘employer’ in section 216.6(1), and throughout the chapter, indicates a clear intent
to hold a ‘person’ subject to liability separately and apart from the liability imposed on
an ‘employer.’ ”). That is because those claims are governed by a separate
administrative regime that subjects supervisory employees who commit wrongful
discrimination to personal liability. Id.
29
III. Applying Those Principles Here.
Here, Godfrey filed a petition naming the State and six state
employees, including the Governor and Lieutenant Governor, as
defendants. The body of the petition alleged various acts and causes of
action, but did not indicate whether or not the defendants were acting
within the scope of their office or employment when they committed
those acts. As noted above, the caption listed each defendant followed by
the words, “Individually and in His [or Her] Official Capacity.”
Before bringing this petition in court, Godfrey submitted it in its
entirety to the state appeal board. The amended petition actually says
this. It recites, “On January 9, 2012, within two years of the acts of
which he complains, Plaintiff filed with the State Appeals Board a State
Tort Claims Act claims for the damages herein sought against the above-
named state DEFENDANTS and the State of IOWA.” The transcript of
the appellate oral argument also confirms that Godfrey previously
submitted everything to the state appeal board. 8
For these reasons, I believe that the attorney general’s certification
affects the entire suit except for the civil rights claims. It results in the
state employees no longer being defendants to any tort claims, exactly as
section 669.5(2)(a) provides. And Godfrey has not heretofore disputed
8JUSTICE MANSFIELD: You gave the presuit notice—
MS. CONLIN: I did.
JUSTICE MANSFIELD: Did you include all of the claims including
the defamation and extortion?
MS. CONLIN: Yes, sir, I did.
JUSTICE MANSFIELD: So when you say you didn’t bring it under
the Iowa Tort Claims Act, you followed the Iowa Tort Claims Act
procedure, would that be fair.
MS. CONLIN: I absolutely followed the Iowa Tort Claims Act
procedure before I went to court just in case.
30
that point. Instead, his position in the district court and this court was
that the attorney general’s certification was not conclusive and could be
judicially reviewed. For example, his application for interlocutory review
asserted as follows:
Plaintiff respectfully requests that the Court grant
interlocutory review of the District Court’s ruling and find
that an attorney general’s certification in accordance with
Iowa Code Chapter 669 is not conclusive as to whether the
state defendants were acting within the scope of their
employment for purposes of Plaintiff’s claims and that
judicial review of such certification is necessary and proper
in the first instance, with the matter submitted as a question
of fact for resolution by the jury. 9
IV. Is the Attorney General’s Certification Reviewable?
I now turn to the question that Godfrey actually argued—i.e.,
whether the attorney general’s certification is judicially reviewable. Here
I would follow the well-reasoned opinion of the United States District
Court for the Southern District of Iowa. See Mills v. Iowa Bd. of Regents,
770 F. Supp. 2d 986 (S.D. Iowa 2011). As that opinion demonstrates,
the Iowa legislature intended to give final effect to the attorney general’s
9Consider also the following excerpt from oral argument before this court, where
the court and Godfrey’s counsel discussed the possibility that certification might not
affect Godfrey’s individual capacity or “common law” claims:
JUSTICE WIGGINS: Do you think that this Court could say that
your causes of action and the last five or six counts are barred under the
State Tort Claim Act if--say there is no review of the certification and we
agree with Mr. LaMarca’s argument and we say there is no review, it’s
final as to the State’s Tort Claim Act, couldn’t we also say that as to any
common law action it would not be final after review?
MS. CONLIN: I think that would be true, your Honor.
JUSTICE WIGGINS: Then the burden would be on you to show it
was outside the course of their employment in those other actions?
MS. CONLIN: Yes, your Honor, and I wish I would have thought of
that when I was in the district court but I did not.
31
certifications under the ITCA that state employees were acting in the
scope of their employment. See id. at 994–96.
This system in no way works unfairness on plaintiffs. As I have
already noted, a plaintiff always has the option of suing a state employee
outside the ITCA on an allegation that the employee was not acting in the
scope of state employment. This puts the employee in the position of
having to prove to the satisfaction of an Iowa district court that the
employee was acting in the scope of state employment. Godfrey here
chose not to exercise that option.
On the other hand, if the plaintiff, as here, proceeds under the
ITCA, then the certification process comes into play. Note again the
wording of section 669.5(2)(a). When the attorney general certifies that a
defendant was a state employee acting within the scope of state
employment, the suit “shall” be deemed to be an action against the State
under the provisions of this chapter. Iowa Code § 669.5(2)(a). The
employee is removed from the case, and the State “shall” be substituted.
Id.
This evenhanded system has benefits for the plaintiff. The plaintiff
knows once and for all that a defendant with billions of dollars in assets,
i.e., the State, will pay the bill if he or she prevails. Following
certification, the plaintiff no longer has to worry about proving that a
particular defendant acted in the scope of employment. The system also
has benefits for the employee. The employee is removed from the lawsuit
as an individual defendant and is not subject to liability. And it has
benefits for the State. Certain kinds of claims—e.g., some but not all of
the claims in this case—cannot be pursued.
Under section 669.5(2)(b), as I’ve already mentioned, if the attorney
general refuses to make a certification that a state employee was acting
32
within the scope of his or her employment, the defendant may “petition
the court . . . for the court to find and certify that the defendant was an
employee of the state and was acting within the scope of the defendant’s
office or employment.” Id. § 669.5(2)(b). However, there is no provision
allowing the plaintiff to petition the court for review of the attorney
general’s certification. As the Mills court pointed out, the existence of a
provision within section 669.5 allowing judicial review at the request of
the defendant only is a powerful indicator that the legislature did not
intend to allow judicial review of a certification at the plaintiff’s request.
770 F. Supp. 2d at 995–96 (“This provision makes clear that if the Iowa
legislature had intended to provide for judicial review over the Attorney
General’s certification, it certainly knew how to do so.”); see also Chiodo
v. Section 43.24 Panel, 846 N.W.2d 845, 858–59 (Iowa 2014) (plurality
opinion) (applying this principle).
On first glance, that might seem unfair to the plaintiff. The
defendant can get judicial review but the plaintiff cannot. But on a more
thorough consideration, it isn’t. Again, if the plaintiff believes the
individual defendant was not acting in the scope of state employment,
the plaintiff can always file a garden-variety lawsuit against that
defendant in state court. That lawsuit will go forward against the
individual defendant, unless the defendant in some way asserts the ITCA
is applicable. The defendant’s contention that the ITCA applies would
then be ruled upon by the court. See, e.g., Thomas, 838 N.W.2d at 519–
20; cf. Minor v. State, 819 N.W.2d 383, 405 (Iowa 2012) (finding that a
claim against a department of human services employee was barred for
failure to exhaust administrative remedies under the ITCA, even though
the employee was sued individually).
33
In other words, a plaintiff who believes the defendant was not
acting within the scope of his or her state employment can always get a
judicial determination of that issue. The plaintiff simply has to sue that
defendant in his or her individual capacity in state court without going
through the ITCA. Yet the news for the plaintiff gets even better. Under
our recent decision in Rivera v. Woodward Resource Center, even if the
plaintiff guesses wrong and a judge later determines the defendant was
acting within the scope of state employment, the plaintiff’s deadline for
filing a claim with the director of management under the ITCA is
extended. See 830 N.W.2d 724, 725–26 (Iowa 2013).
So what Godfrey really wanted here was a second mechanism for
judicial review, one not provided by Iowa law. I would deny that effort. I
think section 669.5 is very clear. If the attorney general makes the
certification, the action “shall” be deemed against the State and the State
“shall” be substituted. Iowa Code § 669.5(2)(a). A denial of certification
is reviewable at the request of the employee, but there is no provision for
review of a certification.
V. The Federal Precedents Under the Westfall Act.
Godfrey argues that we should follow the United States Supreme
Court’s interpretation of the Westfall Act, 28 U.S.C. § 2679(d)(1) (2012),
which is part of the federal tort claims system. He cites Walker v. State
for that proposition. 801 N.W.2d 548 (Iowa 2011). Yet in Walker,
although we were interpreting a provision of the ITCA that had the same
wording as the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671–80, we
did not follow the Supreme Court’s interpretation. See 801 N.W.2d at
565–66. Instead, we followed a separate opinion written by Justice
Scalia concurring in the judgment only. See id. (noting that “Justice
Scalia wrote separately to voice his disagreement with the analysis
34
employed by the majority” and concluding “our analys[is] in our prior
discretionary function cases [is] more in line with Justice Scalia’s
analysis”). In short, Walker was a case where we did not track the
majority views of the United States Supreme Court in interpreting Iowa’s
own tort claims act.
In any event, what we have said is that we are guided by
interpretations of the FTCA “when the wording of the two Acts is identical
or similar.” Thomas, 838 N.W.2d at 525. In Thomas and Walker it was.
Id.; Walker, 801 N.W.2d at 565–66. Here it is not.
The Westfall Act, unlike the ITCA, has separate language providing
that the attorney general’s certification is “conclusive” in only one
circumstance—namely removal. It reads in relevant part as follows:
(1) Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office
or employment at the time of the incident out of which the
claim arose, any civil action or proceeding commenced upon
such claim in a United States district court shall be deemed
an action against the United States under the provisions of
this title and all references thereto, and the United States
shall be substituted as the party defendant.
(2) Upon certification by the Attorney General that the
defendant employee was acting within the scope of his office
or employment at the time of the incident out of which the
claim arose, any civil action or proceeding commenced upon
such claim in a State court shall be removed without bond at
any time before trial by the Attorney General to the district
court of the United States for the district and division
embracing the place in which the action or proceeding is
pending. Such action or proceeding shall be deemed to be
an action or proceeding brought against the United States
under the provisions of this title and all references thereto,
and the United States shall be substituted as the party
defendant. This certification of the Attorney General shall
conclusively establish scope of office or employment for
purposes of removal.
(3) In the event that the Attorney General has refused
to certify scope of office or employment under this section,
the employee may at any time before trial petition the court
to find and certify that the employee was acting within the
35
scope of his office or employment. Upon such certification
by the court, such action or proceeding shall be deemed to
be an action or proceeding brought against the United States
under the provisions of this title and all references thereto,
and the United States shall be substituted as the party
defendant.
28 U.S.C. § 2679(d) (emphasis added).
Thus, by specifically stating that certification is conclusive in the
context of removal, the Westfall Act allows for an inference that the
attorney general’s certification is not conclusive in situations other than
removal. The ITCA contains no comparable language. The presence of
the “conclusively” language was critical to the Supreme Court’s decision
in Gutierrez de Martinez v. Lamagno. See 515 U.S. 417, 433–34, 115
S. Ct. 2227, 2235–36, 132 L. Ed. 2d 375, 388–90 (1995). That language
made the statute “reasonably susceptible to divergent interpretation” and
thus allowed the Court to follow the interpretive principle “that executive
determinations generally are subject to judicial review.” Id. at 434, 115
S. Ct. at 2236, 132 L. Ed. 2d at 390.
Notably, four justices dissented in Lamagno and said that “a plain
reading of the text” did not allow for judicial review of the attorney
general’s certification that the defendant was acting within the scope of
his or her federal employment. Id. at 439–40, 115 S. Ct. at 2238–39, 132
L. Ed. 2d at 392–94 (Souter, J., dissenting). But for present purposes, as
the district court emphasized in Mills, we need only focus on the relevant
differences between the ITCA and federal law as revealed by the majority
opinion in Lamagno. Mills, 770 F. Supp. 2d at 994–95. As the Mills
court put it, “[I]t is the final sentence of the removal provision of
§ 2679(d)(2) that creates an ambiguity in the framework of the federal
statute, leaving it open to judicial interpretation.” Id. at 995 (citing
36
Lamagno, 515 U.S. at 434, 115 S. Ct. at 2236, 132 L. Ed. 2d at 390).
And that final sentence is not present in the ITCA.
Furthermore, if you think about it, the different outcome in
Lamagno makes sense. Suppose the federal judge who wrote Mills and I
got into a public spat and said bad things about each other. (That would
never happen, but let’s assume it did for hypothetical purposes.) If he
sued me for defamation in my personal capacity, I would have to defend
the case personally or persuade a court that I was acting in the scope of
my employment. On the other hand, if I sued him for defamation in his
personal capacity, the United States Attorney General could unilaterally
remove the case to federal court under Title 28 of the United States Code
section 2679(d)(2). Then, but for Lamagno, the Attorney General could
certify that this federal judge was acting in the scope of employment,
thereby depriving me of my cause of action because, under both the ITCA
and the FTCA, defamation claims are not available. In short, judicial
review of certification is needed to plug a potential reviewability hole in
the federal system, but not in the state system. 10
The facts of Lamagno illustrate this point. Late at night, in
Colombia, South America, a car driven by an allegedly intoxicated drug
enforcement agent ran into the plaintiff’s vehicle. 515 U.S. at 420–21,
10I acknowledge that the Alaska Supreme Court followed Lamagno in holding
that a certification by the Alaska attorney general under Alaska’s counterpart to the
Westfall Act is judicially reviewable. See State v. Heisey, 271 P.3d 1082, 1088–91
(Alaska 2012). I believe Lamagno does not apply to the ITCA, for the reasons I have
already explained. Regardless, the Alaska Supreme Court did not embrace my
colleagues’ view that certification can never occur when a state employee is named in
his or her individual capacity. See id. at 1085–86 (“When a lawsuit is filed against state
employees, AS 09.50.253(c) allows the Attorney General to determine whether the
individually named defendants were acting within the scope of their employment during
the conduct giving rise to the lawsuit.”). Further, while the Alaska court recognized a
right to judicial review, it emphasized that the review should be performed by a court,
not by a jury, and should always occur before trial. See id. at 1090–91.
37
115 S. Ct. at 2229, 132 L. Ed. 2d at 381. The plaintiff sued the agent in
the United States and maintained the agent had been acting in his
personal capacity. The Attorney General, however, certified the agent
had been acting in the scope of his employment when driving the vehicle.
Id. at 421, 115 S. Ct. at 2230, 132 L. Ed. 2d at 382. At that point, the
lawsuit ended, because the FTCA does not allow claims that arose in a
foreign country, until the United States Supreme Court reversed and
found the Attorney General’s certification reviewable. Id. at 422–23, 115
S. Ct. at 2230–31, 132 L. Ed. 2d at 383.
That situation could not arise under the ITCA. Under the ITCA, if
the defendant is sued in his or her personal capacity outside the
framework of the ITCA, the case goes forward unless and until a court
rules that the defendant was acting in the scope of state employment.
Still, Lamagno leads me to two additional observations regarding
the majority opinion. First of all, if the majority is right, then the entire
United States Supreme Court missed the boat in Lamagno. In a case
where the plaintiff maintained the defendant had not been acting in the
scope of his government employment, the Justices devoted many pages
to debating a single fighting issue—i.e., whether the Attorney General’s
certification could be judicially reviewed or not. My colleagues indicate
that this was wasted effort. So long as the complaint contained some
allegation that the defendant was also being sued individually, the
certification would have no impact. I think this would be a revelation for
the Justices of the United States Supreme Court. To the contrary, the
Westfall Act allows the Attorney General to issue a certification whether
or not the employee has been sued in his individual capacity. See, e.g.,
Winters v. Taylor, 333 Fed. Appx. 113, 116 (7th Cir. 2009) (“The Westfall
Act, 28 U.S.C. § 2679, allows a federal employee sued in an individual
38
capacity to convert the action to one against the United States, thereby
obtaining indirectly the benefit of the United States’ sovereign
immunity.”).
The majority suggests the ITCA should be interpreted differently
because “the first sentence of section 669.5 makes it clear the provisions
of section 669.5 only apply to suits brought under the Iowa Tort Claims
Act.” But as I have already explained, this is a suit under the ITCA. It
contains “a claim under [chapter 669].” See Iowa Code § 669.5(1). 11
My second observation is that although the Lamagno decision went
against the government, it protects government employees in an
important, practical way. It does so by assuring the attorney general’s
certification, if challenged by the plaintiff, will be reviewed by “the
District Court.” Lamagno, 515 U.S. at 436–37, 115 S. Ct. at 2237, 132
L. Ed. 2d at 391. By contrast, as I have already noted, the majority’s
approach here simply renders the certification irrelevant and leaves the
state employee dangling until trial or at best summary judgment, unable
to ascertain whether he or she will or will not have personal liability.
This seems to undermine one purpose of the ITCA, which is to encourage
people to work for the government by providing safeguards if they are
11Furthermore, nothing in the Westfall Act affirmatively indicates the United
States Attorney General’s certification authority extends to cases where a federal
employee has been sued in his or her individual capacity, but the statute has been
uniformly interpreted as granting that authority, because otherwise it would make no
sense. See 28 U.S.C. § 2679(b)(1) (stating that the remedy is exclusive for injury or
property loss “arising or resulting from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment”);
see also, e.g., Hamad v. Gates, 732 F.3d 990, 994–95 (9th Cir. 2013); Sharratt v.
Murtha, 437 F. App’x 167, 169 (3d Cir. 2011); Parham v. Clinton, 374 F. App’x 503, 506
(5th Cir. 2010); Winters, 333 Fed. Appx. at 116.
39
sued. Those safeguards mean little if the plaintiff can simply circumvent
them by adding a few words in the caption of a lawsuit. 12
VI. Defense Costs.
I now turn to the subject of defense costs. Here we come to
another flaw in the majority’s opinion.
The majority says that the attorney general’s certification authority
only extends to claims as defined in section 669.2(3)(b). Such claims, in
the majority’s view, cannot include claims where the state employee is
alleged to have acted in his or her individual capacity. Thus, for
certification purposes, according to the majority, we go claim by claim
and the allegations control.
However, when my colleagues get to the subject of defense costs,
their reading of the statute changes. My colleagues say the State has a
duty to defend the state employee if “a question exists” as to whether he
or she was acting in the scope of employment, even if the plaintiff alleges
the state employee was not acting in the scope of employment. 13
How can this be? How can the certification authority be narrower
than the authority to provide a defense? Iowa Code sections 669.21 and
669.5 incorporate the same definition of claim from Iowa Code section
669.2(3)(b). Thus, section 669.21, which the majority cites but does not
quote, provides that the State “shall defend any employee, and shall
12As the United States Supreme Court has said, “the purpose of the Westfall Act
[is] to shield covered employees not only from liability but from suit.” Osborn v. Haley,
549 U.S. 225, 248, 127 S. Ct. 881, 898, 166 L. Ed. 2d 819, 841 (2007). I think the
general assembly had the same purpose when it enacted section 669.5, modeled after
the Westfall Act, in 2006. See 2006 Iowa Acts ch. 1185, § 107 (codified at Iowa Code
§ 669.5 (2007)).
13Who decides if “a question exists”? The majority does not say, but presumably
this would be the attorney general. According to the majority, the employee “should
deliver the suit papers to the attorney general.”
40
indemnify and hold harmless an employee against any claim as defined
in section 669.2, subsection 3, paragraph ‘b.’ ” Iowa Code § 669.21.
I submit: Either you can go behind the allegations of individual
capacity or you cannot. The majority cannot interpret the same
statute—section 669.2(3)(b)—two different ways in the same opinion.
The majority justifies this contradiction by citing a private
insurance case for the proposition that “[t]he duty to defend is broader
than the duty to indemnify.” First Newton Nat’l Bank v. Gen. Cas. Co. of
Wis., 426 N.W.2d 618, 630 (Iowa 1988). I do not follow the majority’s
reasoning. In First Newton National Bank, we held as a matter of
insurance law that when a lawsuit includes covered and uncovered
claims, the insurer has a duty to defend the entire lawsuit. Id. That
case does not apply here because we are interpreting statutes and do not
get to write the law ourselves. The legislature has defined the duty to
defend and indemnify in section 669.21 based on the definition of claim
in section 669.2(3)(b). We are constrained by those definitions. Either
the statutory definition of claim allows the attorney general to look past
the bare allegations to the underlying facts, or it doesn’t. Chapter 669
will not support an interpretation that the attorney general gets to look
beyond the bare allegations for defense and indemnification purposes but
not for certification purposes.
In any event, First Newton National Bank does not go where the
majority wants to go. That decision only imposes a duty to defend when
a lawsuit includes both covered and uncovered claims, and thus would
not apply to the majority’s example of a state employee who is sued only
in his or her individual capacity. Further, First Newton National Bank
distinguishes the duty to defend from the duty to indemnify, whereas the
majority is talking about something different and wants to distinguish
41
both of those duties from the ability to certify. For all these reasons, the
majority’s private insurance analogy falls apart on careful analysis.
I can understand the majority’s reluctance to reach the logical
conclusion of their reasoning and their desire to limit the collateral
damage from today’s opinion. Still, there should be no doubt that this
reluctance leads them to interpret section 669.2(3)(b) in two different
ways in the same opinion.
VII. Conclusion.
Offering a policy justification for today’s decision, the majority
says:
In circumstances where the employee’s actions are not
within the scope of their employment, the public fisc should
not be used to pay for that employee’s defense or damages
awarded a third party for that employee’s actions. The
legislature has never authorized the expenditure of public
funds to pay for the acts of its employees when done outside
the scope of their employment. We are not going to do so
today.
No one disputes this broad proposition that the public should not pay for
actions taken by state employees outside the scope of their employment,
including the defense of lawsuits against those employees. The majority,
in this regard, is attacking a straw man. The real issue we need to
resolve is who decides the employee’s status.
As I’ve already explained, I believe a plaintiff has two alternatives.
If the plaintiff elects to proceed under the ITCA, then he or she
authorizes the attorney general to decide whether the claims within that
suit are in fact claims against a state employee in the scope of
employment. Public funds will not pay for the defense of the employee
unless the attorney general, an elected official answerable to the citizens
of this State, makes this determination.
42
Alternatively, if the plaintiff wants to have a court decide whether
the state employee acted within the scope of employment, he or she need
only file a run-of-the-mill tort lawsuit against the employee. At that
point, the employee must raise as a defense that he or she was acting
within the scope of state employment. A court would decide whether the
defense is valid.
In short, the ITCA contemplates a quick, early decision by either
the attorney general or a court, depending on how the plaintiff chooses to
bring his or her action. Either way, a third-party decision maker
protects the public fisc. And the plaintiff, by choosing whether to
proceed inside or outside the ITCA, gets to select that decision maker.
I want to note one further inconsistency in the majority opinion.
The majority asserts that “our holding protects the public fisc by making
sure the State does not have to pay any defense costs or damages arising
out of a tort committed by state employees acting outside the scope of
their employment.” Yet just a few paragraphs before, the majority
indicates that if a state employee is sued on an allegation that he or she
acted outside the scope of employment, the public fisc must pay for the
employee’s defense if merely “a question exists” whether he or she acted
in the scope of employment. Since a mere “question” in the eyes of the
attorney general is enough to require the State to provide a defense,
according to the majority, there obviously will be situations where the
employee gets a state-paid defense even though it is later determined he
or she was not acting in the course of employment.
Finally, I would like to close with a practical point.
Notwithstanding the zealous and effective advocacy by both sides before
this court, the attorney general’s certification actually eliminates only a
small part of Godfrey’s case. It has no impact on Godfrey’s civil rights
43
claims, including his allegation that he was discriminated against based
on sexual orientation. Nor does it affect his constitutional claims or his
extortion claim. The certification would only bar Godfrey’s intentional
interference and defamation claims, which are expressly exempt from the
ITCA. See Iowa Code § 669.14(4). The FTCA has comparable
exemptions. See 28 U.S.C. § 2680(h). Presumably, these exemptions are
based on the general notion of giving public officials some leeway in
speaking and acting when they are performing their job duties. My vote
would be to preserve that leeway, by allowing the ITCA to operate as the
legislature intended. Regardless, Godfrey would still have his full day in
court on the discrimination and constitutional claims that are the core of
his lawsuit.
Waterman, J., joins this dissent.