United States v. 2006-08-10 | 04-56703 | KASHIN VKENT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ALEKSANDR NIKOLAEVICH KASHIN,
Plaintiff-Appellee, No. 04-56703
and D.C. No.
UNITED STATES OF AMERICA, CV-02-02495- Defendant-Appellee, LAB/WMC
v. OPINION
DOUGLAS BARRY KENT,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
June 7, 2006—Pasadena, California
Filed August 10, 2006
Before: Stephen Reinhardt, Stephen S. Trott, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Trott
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COUNSEL
J. Michael Hannon, Thompson O’Donnell, LLP, Washington,
D.C., for the defendant-appellant.
Dana J. Martin, United States Attorney and United States
Department of Justice, Washington, D.C., for the defendant-
appellee.
Sharon L. Papp, General Counsel American Foreign Service
Association, Washington, D.C., for Amicus Curiae American
Foreign Service Association.
OPINION
TROTT, Circuit Judge:
Appellant, Douglas Barry Kent, is a senior foreign service
officer seeking to avoid exposure to personal liability for an
automobile accident that occurred in Russia while he was
driving home from work in his personal vehicle. Kent sought
certification from the Department of Justice that he was acting
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within the scope of employment at the time of the accident,
which, if granted, would substitute the United States for Kent
as the defendant in the action. The Department of Justice
refused to grant the certification. Kent also petitioned the dis-
trict court for certification. The district court, applying the
Restatement (Second) of Agency, concluded that Kent was
not acting within the scope of employment, and denied Kent’s
petition for certification.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse. We conclude in this interlocutory appeal that District
of Columbia law governs the question of whether Kent was
acting within the scope of employment. Applying District of
Columbia law, we hold that Kent was acting within the scope
of employment when he was involved in the automobile acci-
dent. We therefore grant Kent’s petition for certification.
I
In October 1998, Kent served as the Consul General of the
United States to the Republic of Russia in the Far East Con-
sular District—the largest consular district in Russia. As the
Consul General, Kent was the highest ranking United States
representative in that district. He was fully accredited as a
diplomat and entitled to the fullest extent of consular immu-
nity, including immunity from criminal prosecution.
The United States Department of State leased an apartment
for Kent and provided him with a private driver and vehicle
that Kent could use for any purpose, whether work or per-
sonal. When Kent first arrived in Russia, he used the private
driver for all transportation. However, the budget and fiscal
officer at the Moscow Embassy informed Kent that the
Department of State wished to reduce the expenses of its mis-
sions overseas and indicated that the overtime expenses for
Kent’s personal driver were high due to Kent’s late hours at
work. Complying with the request that he reduce expenses,
Kent had his personal vehicle shipped to Russia. The Depart-
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ment of State agreed to reimburse Kent for all mileage that he
drove in his personal vehicle. See 14 Foreign Affairs Manual
(FAM) § 418.10 (formerly 6 FAM § 228.10).
Days after Kent’s vehicle arrived in Russia, Kent was
involved in an automobile accident. Driving home from work
late one evening, Kent stopped at a gym located on his way
home. After leaving the gym, Kent pulled out in front of
another vehicle, which had just picked up a hitchhiker—
Plaintiff, Aleksandr Nikolaevich Kashin. The two vehicles
collided, sending the vehicle in which Kashin was riding
crashing into a third vehicle. Kashin was seriously injured by
the impact with the third vehicle.
Immediately after the accident, the Department of State dis-
patched its duty officer to the accident scene. Pursuant to
orders from the senior regional security officer at the United
States Embassy in Moscow, the duty officer instructed Kent
not to submit to a blood alcohol test on the ground of his dip-
lomatic status—the Department of State prohibits foreign ser-
vice officers from being injected with a needle by a foreign
official. The morning after the accident, the Consulate’s
regional security officer conducted an investigation of the
accident, and the Consulate later hired a local attorney to
resolve the dispute between Kashin and Kent.
The local attorney did not resolve the dispute in Russia.
Kent attributes that failure to international politics:
[P]olitical forces in Russia launched a campaign to
use the accident as an opportunity to discredit the
United States. False allegations that I was intoxi-
cated and that I laughingly escaped the scene of the
accident to a nearby nightclub were promulgated in
both the local and official press. The matter, thus
fraudulently characterized, allegedly was presented
to the Russian Duma which purportedly passed a
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Resolution condemning the United States for the
manner in which it was handling the matter.
In an orchestrated political action, including staged
“rallies” by “citizens” portending outrage at the
United States, comparisons were made between me
and a Georgian diplomat who had collided with a
family in the District of Columbia while driving
drunk, killing one member of the family. The Geor-
gian diplomat was stripped of his diplomatic immu-
nity at the request of the United States and was
criminally prosecuted in Washington, D.C. The Rus-
sian protesters and press were proclaiming the “hy-
pocrisy” of the United States in the Kashin matter,
all borne of a longstanding unhappiness with how
the United States had treated the Georgian diplomat.
After the Russian dispute resolution process failed, Kashin
filed a lawsuit against Kent, the United States, and the Depart-
ment of State in the United States District Court for the East-
ern District of Pennsylvania. The district court dismissed the
United States and the Department of State, concluding that
sovereign immunity insulated them from suit. This dismissal
left Kent as the sole defendant. The district court then trans-
ferred the action to the Eastern District of Virginia due to a
lack of venue in Pennsylvania. The Eastern District of Vir-
ginia transferred the action to the Southern District of Califor-
nia, Kent’s state of domicile.
On January 5, 2004, Kent filed a petition for certification
in the Southern District of California. A month later, Kent
sought from the Department of Justice certification that he
was acting within the scope of employment at the time of the
accident. The Department of Justice denied the certification
request on March 8, 2004.
On August 26, 2004, the district court also denied Kent’s
petition for certification. Although Kent argued that the dis-
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trict court should apply the respondeat superior law of
California—Kent’s state of domicile—the district court
applied instead the general United States tort laws as
embodied in the Restatement (Second) of Agency. Applying
this law, the district court determined that Kent was not acting
within the scope of employment at the time of the accident.
It also denied Kent’s request for an evidentiary hearing.
Kent appeals the district court’s rulings.
II
“The Attorney General’s decision regarding scope of
employment certification is subject to de novo review in both
the district court and on appeal. Where facts relevant to this
inquiry are in dispute, however, we review the district court’s
factual findings for clear error.” Green v. Hall, 8 F.3d 695,
698 (9th Cir. 1993) (per curiam) (citation omitted). “[T]he
party seeking review bears the burden of presenting evidence
and disproving the Attorney General’s decision to grant or
deny scope of employment certification by a preponderance
of the evidence.” Id.
III
We are presented with a single question: Was Kent acting
within the scope of employment when the automobile acci-
dent occurred? Because the Federal Tort Claims Act (FTCA)
is silent on what law to apply when the tort occurs in a foreign
country, and no federal court in the United States has
addressed that issue, we must first determine what law to
apply.
Before proceeding to the choice of law issue, we note that
it is unusual that the United States government is the party
opposing Kent’s petition for certification at the district court
and now on appeal, rather than Kashin, the plaintiff. As the
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Supreme Court aptly noted in a similar case where the tort
occurred in a foreign country,
The federal employee’s claim is one the United
States Attorney has no incentive to oppose . . . : Win
or lose, the United States retains its immunity;
hence, were the United States to litigate “scope of
employment” against its own employee—thereby
consuming the local United States Attorney’s pre-
cious litigation resources—it would be litigating
solely for the benefit of the plaintiff.
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 428 (1995).
Accordingly, win or lose, the government faces no liability in
this action. We can, however, comprehend that the govern-
ment may in some circumstances, possibly as a matter of rela-
tions with foreign sovereigns or their citizens, wish to enforce
its view that its officers or employees should not escape
responsibility for particular tortious conduct committed
abroad. The United States’s reasons for participating in this
case are unknown to us. They are also irrelevant.
IV
A
[1] The FTCA permits suits against the United States for
injuries caused within a government employee’s scope of
employment. See 28 U.S.C. § 1346(b)(1). The Westfall Act
amended the FTCA to provide that if the Attorney General
certifies that a federal government employee was acting
within the scope of employment when the tort occurred, then
the United States shall be substituted as the defendant in a tort
suit against the employee. 28 U.S.C. § 2679(d). Upon certifi-
cation, the government employee is dismissed from the suit,
and is immune from other civil actions arising from the
alleged tort. 28 U.S.C. § 2679(b)(1). If the Attorney General
refuses to certify, the employee may petition the district court
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to certify that he was acting within the scope of employment.
28 U.S.C. § 2679(d)(3). Either party may immediately appeal
the district court’s decision. See Pelletier v. Fed. Home Loan
Bank of San Francisco, 968 F.2d 865, 873 (9th Cir. 1992).
[2] The FTCA, however, does not waive the sovereign
immunity of the United States if the tort was committed in a
foreign country. 28 U.S.C. § 2680(k). Where, as here, the tort
was committed abroad, the scope of employment analysis
remains the same, and, if the Department of Justice or the
court certifies that the employee was acting within the scope
of employment, the United States is substituted as the defen-
dant. However, because the United States retains its sovereign
immunity, the action will be dismissed. Thus, a grant of certi-
fication sounds the death knell for lawsuits involving foreign
torts.
[3] Accordingly, the lynchpin question in FTCA cases is
whether the employee was acting within the scope of employ-
ment at the time of the allegedly tortious act. The law applica-
ble to determine whether a government employee was acting
within the scope of employment is “the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
This law is generally the respondeat superior law of the state
in which the alleged tort occurred. See Green, 8 F.3d at 698-
99. However, Congress expressed its intent that foreign law
not apply. See Sosa v. Alvarez-Machain, 542 U.S. 692, 707
(2004). Thus, where the alleged tort occurred in a foreign
country, the threshold question is what law to apply.
B
Kent argues that we should apply the law from the defen-
dant’s state of domicile, California in this case. The district
court rejected that argument and applied instead the Restate-
ment (Second) of Agency. We disagree with both Kent and
the district court and apply instead District of Columbia law.
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Our decision to apply District of Columbia law relies par-
tially upon the Department of State’s location in the District
of Columbia and partially upon a process of elimination.
[4] Kent’s employer, the Department of State, is located
within the District of Columbia. The Department of State’s
foreign actions are “inextricably bound up with the District of
Columbia in its role as the nation’s capital.” Rasul v. Rums-
feld, 414 F. Supp. 2d 26, 32 (D.D.C. 2006) (internal quotation
marks omitted) (applying District of Columbia respondeat
superior law under the FTCA in a lawsuit filed against the
Secretary of Defense and a number of high-ranking members
of the armed forces where the alleged torts occurred on Guan-
tanamo Bay Naval Base). For example, the decision to send
Kent to Russia and the decision to reduce the expenses of
overseas missions, leading to Kent’s use of his personal vehi-
cle, were most likely made in the District of Columbia—
thereby establishing a nexus, albeit tenuous, to the tort that
occurred in Russia.
[5] We decline to adopt the district court’s rationale under-
lying its decision to apply the Restatement (Second) of
Agency. Recognizing that the FTCA is silent on what law to
apply, the district court looked to the Military Claims Act,
which has a choice of law provision similar to that of the
FTCA. See Kashin v. Kent, 333 F. Supp. 2d 926, 929-30 (S.D.
Cal. 2004). Both statutes are silent on what law to apply if the
alleged tort occurred in a foreign country. However, the regu-
lations promulgated under the Military Claims Act provide,
“In claims arising in a foreign country, liability of the United
States will be assessed by reference to general principles of
tort law common to the majority of United States jurisdic-
tions.” 32 C.F.R. § 536.28(b). The district court concluded,
“In the absence of clear precedent regarding choice of law in
FTCA cases where the act or omission occurred abroad, the
Court looks to the choice of law regulations promulgated pur-
suant to the MCA.” Kashin, 333 F. Supp. 2d at 930. Accord-
ingly, the district court found “that the Restatement (Second)
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of Agency is a standard legal publication containing general
tort principles of the United States.” Id.
We conclude that the regulations enacted under the Military
Claims Act carry no weight as to Congress’s intent concern-
ing the FTCA. The Military Claims Act regulations were pro-
mulgated by the Secretaries of Army and Air Force to fill in
the blank left by Congress. See 32 C.F.R. §§ 536.28(b),
842.51(a)(1). The regulations therefore express the intent of
the Secretaries and, consequently, provide no insight as to the
intentions of Congress concerning the FTCA.
Moreover, District of Columbia law has one substantial
advantage over applying the Restatement in general—it pro-
vides a single, cogent body of law rather than multiple state
and federal decisions that grant sometimes conflicting inter-
pretations to the Restatement. By looking to a single forum’s
interpretation of the scope of employment, we add legitimacy
to the process of determining whether an employee was acting
within the scope of employment; otherwise, courts would
have carte blanche to pick and choose among various conflict-
ing cases from multiple forums.
Applying District of Columbia law also has a substantial
advantage over Kent’s suggestion of applying law from the
defendant’s state of domicile—consistency. If we applied the
respondeat superior law from the defendant’s state of domi-
cile, a lawsuit arising from a single tortious act but implicat-
ing multiple tortfeasors could arrive at conflicting results,
based upon each tortfeasor’s state of domicile. On a close fac-
tual scenario, those tortfeasors domiciled in a state with a
broad interpretation of scope of employment would be pro-
tected from personal liability while those tortfeasors domi-
ciled in states with a narrow interpretation of scope of
employment would be saddled with personal liability, even
though they were involved in the same tortious incident as
their co-tortfeasors.
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[6] Therefore, until Congress provides further guidance, we
conclude that District of Columbia law governs the question
of whether Kent was acting within the scope of employment.
V
The government contends that Kent was not acting within
the scope of employment at the time of the accident. It argues
that Kent’s allegedly tortious conduct did not involve an
activity that Kent was hired to perform—neither driving nor
exercising at the gym was part of Kent’s duties as the Consul
General. The government therefore contends that the district
court properly denied Kent’s petition for certification. We dis-
agree.
A
[7] District of Columbia law concerning the scope of
employment is rooted in the Restatement (Second) of Agency.
See Schecter v. Merchs. Home Delivery, Inc., 892 A.2d 415,
427-28 (D.C. 2006). Restatement § 228 states that an employ-
ee’s conduct is within the scope of employment if “(a) it is of
the kind he is employed to perform; (b) it occurs substantially
within the authorized time and space limits; [and] (c) it is
actuated, at least in part, by a purpose to serve the master.”
“District of Columbia law . . . liberally construes the doctrine
of respondeat superior, at least with respect to the first prong
of the Restatement. . . .” Stokes v. Cross, 327 F.3d 1210, 1216
(D.C. Cir. 2003).
[8] Although “the determination of scope of employment is
dependent upon the facts and circumstances of each case,”
Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29 (D.C.
1979), the District of Columbia Court of Appeal has
announced a general rule:
[W]hatever is done by the employee in virtue of his
employment and in furtherance of its ends is deemed
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by the law to be an act done within the scope of his
employment, and . . . in determining whether the ser-
vant’s conduct was within the scope of his employ-
ment, it is proper to inquire whether he was at the
time engaged in serving his master.
Id. (citation omitted). Several factors are indicative of whether
an employee’s conduct falls within the scope of employment.
District of Columbia v. Davis, 386 A.2d 1195, 1203 (D.C.
1978). The court evaluates “whether the employer at the time
had the right to control and direct the employee in the perfor-
mance of his work.” Id. The court evaluates also “the employ-
ee’s state of mind” to determine whether the employee
subjectively believed that he was acting within the scope of
employment. Id.
Although no reported District of Columbia case has a fac-
tual scenario involving a senior foreign service officer com-
mitting a tort abroad, we conclude that our decision is
governed by the principles announced in District of Columbia
v. Davis, 386 A.2d 1195 (D.C. 1978). In Davis, the Court of
Appeal was presented with the question of whether a police
officer was acting within the scope of employment when he
accidently discharged his service revolver. Id. at 1198-99. The
officer was off duty at the time of the accident and had not
been on active duty that day. Id. at 1201. He was preparing
to take a shower at a private apartment, and, as he unholstered
the revolver, it fired, injuring another individual in the apart-
ment. Id.
Based upon these facts, the Court of Appeal concluded that
the officer was acting within the scope of employment. Id. at
1205. The Court of Appeal focused primarily on police
department regulations governing the officer’s conduct. Id. at
1202. The regulations state,
2:1:4 Members of the force are held to be always on
duty, although periodically relieved from the routine
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performance of it; are always subject to orders from
the proper authorities and to call from citizens; and
the fact that they may be technically off duty shall
not be held as relieving them from the responsibility
of taking proper police action in any matter coming
to their attention requiring such action.
2:3:1 Members of the force, when off duty any place
in the District of Columbia, except in their resi-
dences, shall carry their badges, identification cards
and service revolvers at all times.
2:3:2 When off duty and not in full uniform, mem-
bers of the force shall wear their service revolvers in
such a manner as to conceal them from view.
Id. Pursuant to these regulations, the Court of Appeal found
that the officer was carrying the service revolver because he
was required to do so by his employer, and that, “[b]y wear-
ing it at all times, he was furthering his employer’s function
of maintaining public order.” Id. at 1203.
Additionally, the court found that the police department
had the right to control the officer at the time of the accident.
Id. The court reasoned that “[h]ad there been a disturbance in
the area, there is no doubt that [the officer] could have been
compelled to respond to it, in spite of the fact that he was
technically off-duty.” Id. The court also relied upon the offi-
cer’s state of mind at the time of the accident, finding that the
officer believed “he was, for certain purposes, effectively on
duty at all times.” Id.
Ultimately, the court held that the officer was acting within
the scope of employment because, “[t]hough technically
within the off-duty classification, [the officer] was engaged in
the execution of a function specifically prescribed by the city
—carrying a gun—and the performance of the requirement,
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though negligent, was nevertheless in furtherance of the inter-
ests of the employer.” Id. at 1204-05.
Applying those principles from Davis, we hold that Kent
was acting within the scope of employment at the time of the
automobile accident.
The Department of State considered Kent “to be on duty
twenty-four hours a day, seven days a week.” 14 FAM
§ 418.2-1 (formerly 6 FAM § 228.2-1); see also 3 FAM
§ 4376 (“Because of the uniqueness of the Foreign Service,
employees are considered to be on duty 24 hours a day. . . .”).
Kent, however, has even more compelling facts than the offi-
cer in Davis because Kent was actually engaged in an act—
transportation of a consulate general—that the Foreign Affairs
Manual labels as having a “business purpose”: “Official vehi-
cles may be used for the following business purposes: (1) Any
transportation [of] . . . consulates general is considered busi-
ness use since these officers are considered to be on duty
twenty-four hours a day, seven days a week. . . .” 14 FAM
§ 418.2-1. Conversely, the Davis officer was in a private
apartment preparing for a shower. See 386 A.2d at 1201.
Moreover, the Department of State exercises significant
control over Kent, whether he is at or away from his office.
The Foreign Affairs Manual limits with whom Kent may frat-
ernize, see 3 FAM § 4377 #5, governs the manner in which
Kent operates a vehicle, see 3 FAM § 4377 #20 (prohibiting
“violation of traffic laws, safety regulations or instructions, or
safe driving practices”), and designates how Kent must con-
duct himself at all times, see 3 FAM § 4377 #40 (prohibiting
“immoral, indecent, unethical, criminal, infamous, dishonest,
or notoriously disgraceful conduct”); 3 FAM § 4139.10.
These regulations are not empty threats. Indeed, Kent
received from the Department of State a letter of reprimand
arising from his traffic accident in Russia. The letter, of which
we take judicial notice, warned Kent that his security clear-
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ance would be reduced or revoked if he does not “use better
judgment in the future.”
Kent also carried with him electronic equipment that
enabled the Department of State to contact him at any time.
Had there been a problem at the time Kent was driving home,
the Department of State could have directed Kent to respond.
In fact, Kent stated that he had been “required to attend to the
business of the United States from my residence, or to leave
my residence in the middle of the night on official business.”
Additionally, Kent would not be in this situation if he had
not acted in furtherance of the Department of State’s interest.
As Consul General, Kent was provided with a private vehicle
and a driver to use for any transportation purpose. Kent had
his personal vehicle shipped to Russia only after the Depart-
ment of State specifically requested that he use his personal
vehicle to reduce the overtime expenses of his private driver.
Had Kent ignored the request to reduce expenses and contin-
ued to use his private driver at all times, he would face no per-
sonal liability arising from a traffic accident.
Finally, Kent’s declaration demonstrates that he subjec-
tively believed he was acting within the scope of employment
at the time of the accident. Kent knew, pursuant to Depart-
ment of State regulations, that he was engaged in a business
purpose whenever he traveled. See 14 FAM § 418.2-1. Kent
knew also that he was under the Department of State’s control
at all times, and was subject to being dispatched at any time.
These facts are sufficient to demonstrate that Kent believed he
was acting within the scope of employment at the time of the
accident. See Davis, 386 A.2d at 1203 (concluding that offi-
cer’s “awareness of the fact that he was, for certain purposes,
effectively on duty at all times” militated in favor of conclud-
ing that the officer had acted within the scope of employ-
ment).
“[T]he ultimate question is whether or not it is just that the
loss resulting from the servant’s acts should be considered as
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one of the normal risks to be borne by the business in which
the servant is employed.” Restatement (Second) of Agency
§ 229 cmt. a. In other words, is it just for the risk of loss from
a Consul General’s transportation while stationed in Russia to
be borne by the Department of State? There is little doubt that
the Department of State itself considered the risk of a vehicu-
lar accident caused by Kent’s transportation to be a normal
business risk—it hired a private driver for Kent to use for any
purpose, and was therefore liable for all traffic accidents
caused by Kent’s transportation. The Department of State did
not shift its risk of loss to Kent by requesting that he drive his
personal vehicle to save the Department of State expenses.
[9] Therefore, because Kent was (1) engaged in a business
act; (2) under the control of the Department of State; (3) act-
ing in furtherance of the Department of State’s interest; and
because (4) he subjectively believed he was acting within the
scope of employment, we hold that Kent was acting within
the scope of employment when he was involved in the auto-
mobile accident.
B
Our holding is not affected by two cases that conclude,
under District of Columbia law, that law enforcement agents
were not acting within the scope of employment, despite a
regulation stating that they were always on duty. In District
of Columbia v. Coron, 515 A.2d 435 (D.C. 1986), the Court
of Appeal held that although a police regulation states that
officers are always on duty, an officer is not acting within the
scope of employment when he, after consuming alcohol at a
bar, intentionally physically assaults a person. Id. at 438. The
court found two facts dispositive. First, “the very nature of
[the officer’s] behavior makes it irrelevant whether he was
‘on duty’ at the time of this incident within the meaning of the
police regulations.” Id. Second, “it is of particular importance
that at no time was [the officer’s] conduct in furtherance of
the [employer’s] interests.” Id.
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Neither of those two facts is present in Kent’s situation.
The government does not allege that Kent committed an
intentional tort or that he engaged in reprehensible behavior;
instead, the record suggests that the accident, at most, resulted
from Kent’s inattentive driving. Additionally, Kent was driv-
ing his personal vehicle instead of riding with his private
driver to further the Department of State’s interest in reducing
expenses. No doubt, if Kent had placed his personal interest
ahead of the Department of State’s interest, then Kent would
not find himself in this unenviable position.
Likewise, our decision is not affected by the District Court
for the District of Columbia’s opinion in Smith v. Grimes, 798
F. Supp. 798 (D.D.C. 1992). In Grimes, the district court,
applying District of Columbia law, held that an agent of the
Drug Enforcement Agency (DEA) was not acting within the
scope of employment when he, while intoxicated, drove a
DEA-provided vehicle, causing a traffic accident. Id. at 802.
After finishing work for the day, the agent drove the DEA
vehicle to the Fraternal Order of Police Lodge, where he con-
sumed enough alcohol to become intoxicated. Id. at 800. After
leaving the lodge, the agent’s vehicle collided with another
vehicle. Id. The agent knew that driving the DEA vehicle for
personal purposes violated DEA regulations. Id. at 802. The
court concluded that the agent did not act within the scope of
employment because his conduct “did not further a work-
related purpose nor was it intended to serve such a purpose.”
Id.
Again, Kent’s situation is distinguishable. Not only was
Kent’s use of the vehicle in conformance with Department of
State regulations, those regulations designated his use as a
business use. See 14 FAM § 418.2-1. Additionally, as dis-
cussed above, Kent drove his personal vehicle to serve the
Department of State’s interests, not his personal motives.
C
Our decision is consistent with decisions from other juris-
dictions. In Wilkinson v. United States, 677 F.2d 998, 999-
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1000 (4th Cir. 1982), the Fourth Circuit found that a member
of the Navy was acting within the scope of employment when
he struck a pedestrian with a vehicle that he was driving. The
serviceman had been ordered to drive a rental car from Boston
to Norfolk, Virginia, to pick up and deliver certain items asso-
ciated with the ship. Id. at 999. The accident occurred when
the serviceman had finished his work for the day and was
driving back to his hotel room, intending first to stop for din-
ner. Id. The Fourth Circuit expressed little hesitation in hold-
ing that the serviceman was acting within the scope of
employment, despite his being done with work for the day.
See id.
Like the serviceman in Wilkinson, Kent had finished his
work for the day, was returning to his government provided
lodging, made a stop on the way, and was reimbursed for
mileage. Thus, just as the Wilkinson defendant’s conduct was
within the scope of employment, so was Kent’s conduct.
The government and the district court focused on our deci-
sion in Clamor v. United States, 240 F.3d 1215 (9th Cir.
2001), to support their determination that Kent was not acting
within the scope of employment. In Clamor, the defendant
was a civilian employee of the United States Navy temporar-
ily assigned to work on a ship moored at Pearl Harbor Naval
Base in Hawaii. Id. at 1216. No government quarters were
available on-base, so the government arranged off-base com-
mercial lodging for the defendant and provided him with a
rental car for transportation. Id. After finishing work for the
day, the defendant was driving home and, while still inside
the base, rear-ended a vehicle. Id. We found that (1) the
defendant was not working the entire time he was in Hawaii;
(2) he was off duty when the accident occurred; (3) he was
free to do whatever he wished while off duty; (4) the govern-
ment derived no benefit from his activities once he stopped
working on the ship; and (5) he was not motived by a purpose
to serve the master at the time of the accident. Id. at 1217. We
therefore held that, under Hawaii law, which follows the
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Restatement, the defendant was not acting within the scope of
employment. Id.
Kent’s situation is distinguishable from Clamor. First, we
recognized in Clamor that “[if the defendant] had been on call
around the clock or working until his head hit the pillow, we
might reach a different result.” Id. (internal quotation marks
omitted). Here, there is no dispute that Kent was “on call
around the clock.” See 14 FAM § 418.2-1. Second, unlike the
employee in Clamor, Kent was not free to do whatever he
wished after completing work. The Department of State regu-
lates its employees’ conduct even when they are not at the
office, and Kent is subject to discipline if he does not conform
to the Department of State’s prescribed regulations. See 3
FAM § 4376; 3 FAM § 4139.10. Third, the government still
derived a benefit from Kent once he left the office. He was
one of the primary public faces for the United States in East-
ern Russia—how Kent acted while within Russian society
could have had a substantial impact on the Department of
State. Additionally, because Kent is on duty “24/7” and must
always carry with him equipment by which he can be con-
tacted, his mere presence in Russia provided a benefit to the
Department of State. See Davis, 386 A.2d at 1203 (finding
that the officer furthered his employer’s interest by wearing
a service revolver at all times). Finally, unlike the defendant
in Clamor, Kent’s act of driving his personal vehicle was
actuated to serve his master. Therefore, the factual scenario in
Clamor is inapposite to Kent’s situation.
VI
[10] The district court properly exercised its discretion in
denying Kent’s request for an evidentiary hearing. While the
district court has the discretion to hold an evidentiary hearing,
it “should not do so if the certification, the pleadings, the affi-
davits, and any supporting documentary evidence do not
reveal an issue of material fact.” Gutierrez de Martinez v.
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Drug Enforcement Admin., 111 F.3d 1148, 1155 (4th Cir.
1997).
[11] Claiming that he is a victim of political circumstance,
Kent requested an evidentiary hearing to explore the govern-
ment’s actual motivation underlying its denial of his request
for certification. Even if Kent were correct that the Attorney
General was influenced by political pressure from Russia,
both the district court and this court review de novo the Attor-
ney General’s decision, making the Attorney General’s actual
motivation irrelevant.
CONCLUSION
This is not a scope of employment case where the
employee was off-duty, assaulted an individual in a fit of
rage, or violated company policy. It is also far from the stan-
dard case involving an employee commuting in a company
vehicle. Instead, this case involves a Consul General whom
the Department of State assigned to work in Eastern Russia
and who was on duty at all times. Although Kent could have
utilized his government-provided private vehicle and driver,
he chose to act in the Department of State’s best interests by
shipping his personal vehicle to Russia to reduce the overtime
expenses incurred by his driver.
Now that Kent has been sued in the United States, the
Department of State has not only stopped fighting for a Con-
sul General—who has served the Department of State in
places such as Panama, Albania, Kosovo, Tajikistan, and
Liberia—but it has joined the other team and is litigating for
the benefit of the plaintiff. Although we cannot answer why
the Department of State and the United States Attorney spent
their precious and scarce resources opposing this petition for
certification, see Lamagno, 515 U.S. at 428, we do answer the
legal question involved. Applying District of Columbia law,
we conclude that Kent was acting within the scope of employ-
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ment when he was involved in the automobile accident. We
therefore grant Kent’s petition for certification.
REVERSED.
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