Absolute Immunity for Federal Officials Case Law

In Westfall v. Erwin (1988) 484 U.S. 292 [108 S. Ct. 580, 98 L. Ed. 2d 619], the court reversed a summary judgment for the defendants, federal employees who worked as supervisors at an Army depot, in a state court negligence action arising from a workplace injury to a civilian employee. The court held that "absolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature." (Westfall, 484 U.S. at 297-298.) The Westfall court observed that "official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official. Moreover, absolute immunity contravenes the basis tenet that individuals be held accountable for their wrongful conduct." (Westfall, supra, 484 U.S. at p. 295.) The court further observed that "the central purpose of official immunity, promoting effective government, would not be furthered by shielding an official from state-law tort liability without regard to whether the alleged tortious conduct is discretionary in nature. When an official's conduct is not the product of independent judgment, the threat of liability cannot detrimentally inhibit that conduct." (Westfall, supra, 484 U.S. 292, 296-297.) In the case before it, the Westfall court held, summary judgment was improper because the plaintiff had asserted the defendants' duties only required them "'to follow established procedures and guidelines'" and that they were "'not involved in any policy-making work . . . .'" the defendants, who had the burden of proving they were immune, had not presented "any evidence relating to their official duties or to the level of discretion they exercise." ( Westfall, supra, 484 U.S. at p. 299.) The application of Westfall to federal officials was superseded in 1988 by the enactment of the Federal Employees Liability Reform and Tort Compensation Act. That act eliminated the discretionary conduct requirement and conferred absolute immunity on federal employees for common law tort claims, relegating claimants to an action against the government under the Federal Tort Claims Act (FTCA). (28 U.S.C. 2679(b), (d); see Pani v. Empire Blue Cross Blue Shield (2d Cir.1998) 152 F.3d 67, 72.) However, "the Westfall test remains the framework for determining when nongovernmental persons or entities are entitled to the same immunity." (Pani, supra, at p. 72; accord, Midland Psychiatric Assocs. v. United States (8th Cir. 1998) 145 F.3d 1000, 1005 ["It is well established that Westfall still articulates the more restrictive federal common-law rule limiting official immunity to discretionary conduct."]; Beebe v. Washington Metro. Area Transit Auth. (D.C. Cir. 1997) 327 U.S. App. D.C. 171, 129 F.3d 1283, 1289 [" . . . Westfall remains the common law rule . . . ."].) Tribal immunity emanates from the common law. As previously noted, the United States Supreme Court has described tribal immunity as "the common-law immunity from suit traditionally enjoyed by sovereign powers." ( Santa Clara Pueblo v. Martinez, supra, 436 U.S. 49, 58 [98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106].) The Ninth Circuit Court of Appeals similarly has stated: "A necessary first step in the [tribal immunity] analysis is determining the scope of sovereign immunity at the common law." (In re Greene (9th Cir.1992) 980 F.2d 590, 593.) Davis v. Littell (9th Cir. 1968) illustrates that the extension of common law immunity to tribal officials is founded on the need to protect such officials from the detrimental effect that the prospect of liability would have on their performance of their official duties. Westfall illustrates that, for this need to justify immunity, those official duties must involve the kind of discretionary decisions that are "the product of independent judgment," and that therefore would truly be inhibited by the threat of liability. (Westfall, supra, 484 U.S. 292, 296-297.) Viewed in light of Westfall, Davis, rather than undermining Baugus v. Brunson (E.D.Cal. 1995) as defendants contend, supports Baugus's conclusion that the "tribal officials" to whom immunity should extend are those who perform a high-level or governing role in the affairs of the tribe. Such individuals are required to make the kind of discretionary judgments which Davis and Westfall recognize cannot be made effectively without immunity.