Copyright (c) 1995 Journal of Legislation
Journal of Legislation
LEGISLATIVE REFORM: THE WESTFALL ACT AND SCOPE OF EMPLOYMENT: THE ROLE OF THE ATTORNEY GENERAL
21 J. Legis. 125
Juan R. Balboa *
A. The Statute
In response to the Supreme Court's decision in Westfall v. Erwin, 1 which changed the effect of civil litigation against federal employees, Congress enacted the Westfall Act. 2 Before Westfall, the common law general rule 3 applicable to federal employees stated "that they were absolutely immune from personal liability in state common law tort actions for harm that resulted from activities within the scope of their employment." 4 Westfall modified the general rule, allowing "absolute immunity from state-law tort actions . . . only when . . . the conduct is discretionary in nature." 5 In Westfall, plaintiff William Erwin, a federal employee, received chemical burns after exposure to toxic soda ash at an Army Depot. Claiming that the ash was stored improperly, Erwin and his wife sued the Depot supervisors in state court alleging negligence. The suit was removed to the United States District Court. The Court dismissed the claim holding that the defendants, federal employees, were absolutely immune from state torts while acting within the scope of their employment. The Court of Appeals reversed and held that immunity applies only to the discretionary acts of the defendants. The Supreme Court upheld the Court of Appeals' reversal, concurring with the Circuit Court's modified "scope of employment" rule.
The Westfall modification to the general rule, which added the discretionary requirement, increased federal employees' potential for being held civilly liable for their tortious behavior on the job. Congress ...
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