GovernmentExecutive.com

The Supreme Court heard arguments Monday about the extent of federal employees' immunity from on-the-job lawsuits.

Under the 1988 Westfall Act, federal employees are immune from suits so long as the Attorney General certifies that they were doing their job when the incident in question occurred. The government then substitutes itself as the defendant.

In the case argued Monday, Osborn v. Haley, the high court must decide whether the Attorney General can certify an act as job-related simply by denying that the incident ever occurred. If an employee is sued for an act clearly not in his or her job description, can the government defend the employee anyway if they believe in the employee's innocence?

The nine justices peppered both sides with questions Monday morning in the case, which began in Kentucky in the spring of 2002. In Osborn v. Haley, government contractor Pat Osborn sued a Forest Service employee for allegedly convincing her employer, the Land Between the Lakes Association Inc., to fire her. Osborn claimed the employee, Barry Haley, did this after she confronted him for not hiring her for an open contracting officer position with the Forest Service.

"The reason he wasn't acting outside the scope of his employment [could be] that he didn't do what you said he did," Associate Justice David Souter told Osborn's attorney.

One difference between the employee themselves sitting as defendant and the government doing so involves jurisdiction. Employees' cases could be heard by a state court, but the government's involvement brings the case to the federal level.

Justice Antonin Scalia asked Osborn's attorney why "would it make any sense to give a federal employee the benefit of a trial in a federal court when he committed the act...and yet deprive him of the federal court" when the government believes him or her to be innocent.

Osborn's attorney, Eric Grant, argued that the "he-didn't-do-it defense" was not the same as certifying that the act was actually in the scope of employment.

In an analysis of the case, professor Mary Phelan D'Isa of the T.M. Cooley Law School in Lansing, Mich., said the decision will determine the federal government's ability to overcome state jurisdiction for actions against federal employees it wants to defend.

"Any decision of these issues will be of significant importance to the United States because it may dictate how it responds to and defends allegations of wrongdoing by government employees," D'Isa said.