Appeal from the United States District Court for the Central District of California. D.C. No. CV-89-0969-RMT. Robert M. Takasugi, District Judge, Presiding.
Before: Mary M. Schroeder and Stephen Reinhardt, Circuit Judges, and Samuel P. King, Senior District Judge.*fn* Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Appellee Robert J. Pelletier brought this lawsuit to challenge certain regulatory actions that resulted in his dismissal as managing officer of Pioneer Savings and Loan Association and his subsequent inability to find comparable employment in the savings and loan industry. As to defendant Behrens, Pelletier alleged both Bivens*fn1 and common law tort claims. Behrens now appeals the district court's denials of his motion to dismiss the Bivens claims based on qualified immunity and his motion to substitute the United States in his place as to the common law tort claims, pursuant to the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA). We affirm in part and reverse in part. With respect to the qualified immunity issue, because Behrens has not previously appealed any denial of qualified immunity, we have jurisdiction to consider his appeal. We hold that Pelletier's allegations were sufficient to survive a motion to dismiss. With respect to the substitution issue, however, we conclude that the district court improperly applied a narrow "scope of authority" test rather than the broader "scope of employment" test required by the FELRTCA. Under the broader rule, we hold that as a matter of law Behrens was acting within the scope of his employment when he took the actions complained of by Pelletier. Accordingly, Behrens is entitled to substitution.
This case arises out of the early years of the savings and loan crisis. On March 29, 1984, the Federal Home Loan Bank Board (FHLBB) formally approved a de novo application for insurance of accounts made by South Coast Savings and Loan Association (South Coast). The FHLBB imposed a number of requirements on South Coast as conditions of regulatory approval. In particular, the FHLBB directed South Coast to "provide for the employment of a qualified full-time executive managing officer, subject to approval by the Principal Supervisory Agent." Resolution No. 84-164, Par. 10(p) (March 29, 1984).*fn2 In early 1985, South Coast was succeeded in interest by Pioneer Savings and Loan Association (Pioneer). On March 18, 1985, Pioneer named appellee Robert J. Pelletier as its managing officer and, pursuant to Resolution No. 84-164, requested approval from the FHLBB.
Prior to accepting the position at Pioneer, Pelletier had served as Senior Vice President in charge of the Major Loan Division of the Beverly Hills Savings and Loan Association (BHSL).*fn3 In that capacity, Pelletier also sat on BHSL's Senior Loan Committee, which was responsible for evaluating and approving loans that exceeded dollar limits or fell outside of other criteria established by BHSL's Board of Directors. On April 23, 1985, shortly after Pioneer had requested FHLBB approval of Pelletier as its managing officer, the FHLBB declared BHSL insolvent and placed the institution in receivership. A continuing investigation by the Federal Savings and Loan Insurance Corporation (FSLIC) into the failure of BHSL raised questions regarding the conduct of a number of BHSL's senior officers, including Pelletier.
Appellant John W. Behrens, a Supervisory Agent of the FHLBB, took over the South Coast/Pioneer file from another Supervisory Agent in or about April, 1986.*fn4 On May 8, 1986, in a confidential letter on FHLBB letterhead, Behrens informed Pioneer that the FHLBB would be unable to proceed with the application for approval of Pelletier as Pioneer's managing officer until the investigation of BHSL was complete. The letter read as follows:
This is in response to the application by Pioneer Savings, requesting approval for Mr. Robert Pelletier to become managing officer of the association. We wish to advise you that an inquiry is currently being conducted by the Federal Savings and Loan Insurance Corporation (FSLIC) into the failure of Beverly Hills Savings and Loan Association, and because of Mr. Pelletier's previous employment with that institution this office is unable at this time to proceed with the application until that inquiry is complete. In this regard, we believe it would be appropriate if Mr. Pelletier would step aside from the management of the association at this time and until such time as the investigation into the failure of Beverly Hills savings is complete.
In view of the foregoing, we believe it is imperative that the Board of Directors initiate a search for a new managing officer without delay. We ask that you keep this office advised as to your progress in this regard.
Upon receipt of the letter from Behrens, Pioneer requested Pelletier's resignation. When Pelletier refused to resign, Pioneer fired him. Despite numerous attempts, Pelletier subsequently has been unable to obtain comparable employment in the savings and loan industry. Pelletier alleges that several positions were tentatively offered to him, but that those offers were all withdrawn when the prospective employers learned of the circumstances surrounding Pelletier's departure from Pioneer.
In February, 1989, Pelletier filed suit against Behrens, the Federal Home Loan Bank of San Francisco, the FHLBB, and the United States, asserting that the decision to direct Pioneer to terminate Pelletier was made summarily and without process, and that since Pelletier's dismissal from Pioneer the defendants had made a concerted and successful effort to prevent Pelletier from securing employment in the financial services industry. Pelletier alleged that this conduct on the part of the defendants violated his fifth amendment right to procedural due process and deprived him of his constitutionally protected liberty interest in employment within the financial services industry. In addition, Pelletier alleged common law tort claims for interference with contractual rights, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.*fn5
Behrens filed a motion to dismiss, or in the alternative for summary judgment. He contended that Pelletier's constitutional tort claims were barred by the statute of limitations and that, in any event, judicial creation of a Bivens remedy was preempted by the extensive federal regulation of the savings and loan industry. In the alternative, Behrens argued that he was entitled to qualified immunity from liability for the actions described. As to Pelletier's common law tort claims, Behrens argued that the United States should be substituted in his place as defendant, pursuant to the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA), Pub. L. No. 100-694, 102 Stat. 4563 (1988) (amending Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680). As required by the FELRTCA, Behrens submitted a scope of employment certification prepared by the Attorney General. 28 U.S.C. § 2679(d)(1).
The district court agreed that to the extent Pelletier sought relief for the loss of his job at Pioneer in 1986, his constitutional tort claims, as well as his claims for infliction of emotional distress, were barred by the statute of limitations.*fn6 However, the court denied Behrens's motion to dismiss Pelletier's constitutional claims as time-barred to the extent that Pelletier alleged continuing efforts to prevent him from securing employment in the savings and loan industry. Similarly, the court denied Behrens's motion to dismiss Pelletier's common law claims for infliction of emotional distress to the extent that those claims alleged continuing torts. The court also denied Behrens's motion to dismiss Pelletier's claims for intentional interference with contractual rights and negligence. The court declined to rule on Behrens's motion for summary judgment, on the ground that it would be premature to do so before discovery had been conducted.
Behrens timely appealed the district court's partial denial of his motion to dismiss Pelletier's constitutional and common law tort claims.*fn7 However, because it was unclear from the district court's order whether or not the court had ruled on Behrens's request for substitution of the United States as defendant with respect to Pelletier's common law tort claims, we vacated submission of the case and remanded to allow the district court to address the substitution issue. On limited remand, the district court denied Behrens's motion for substitution on the ground that removal of Pelletier from his position as managing officer was not within the scope of Behrens's authority as defined in ...