Sobitan v. Glud

589 F.3d 379

Babajide SOBITAN, Plaintiff-Appellant, v. Lori GLUD, et al., Defendants-Appellees.

No. 07-3119.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 2008.

Reargued May 14, 2009.

Decided December 9, 2009.

Millicent A. Hoffman, Attorney (argued), David C. Layden, Attorney (argued), Jenner & Block, Chicago, IL, Babajide Sobitan, Post, TX, for Plaintiff-Appellant.

Samuel B. Cole, Attorney (argued), Thomas P. Walsh, Attorney, Office of the United States Attorney, Chicago, IL, Sharon Swingle, Attorney (argued), Department of Justice, Washington, DC, for Defendants-Appellees.

Before RIPPLE, MANION and TINDER, Circuit Judges.

RIPPLE, Circuit Judge.

Babajide Sobitan was detained at O'Hare International Airport by a United States Customs and Border Protection Enforcement officer for illegally reentering the United States. He subsequently was prosecuted for illegal reentry and was convicted.

In 2006, Mr. Sobitan instituted this action against Lori Glud, the customs officer who had arrested him, and against John Podliska, the Assistant United States Attorney who prosecuted his case. In his complaint, Mr. Sobitan alleged that both-failed to inform him of his consular rights under Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention"), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. The Government filed a motion for substitution and dismissal under the Federal Employees Liability Reform and Tort Compensation Act ("Westfall Act"),¹ 28 U.S.C. § 2679. The district court granted the motion and dismissed the action. Mr. Sobitan appealed, and we now affirm the judgment of the district court.

I BACKGROUND

Mr. Sobitan is a Nigerian citizen. In 2003, he attempted to enter the United States at O'Hare International Airport, where he was detained and arrested by Ms. Glud for illegally reentering the United States. He subsequently was prosecuted by Mr. Podliska. Neither Ms. Glud nor Mr. Podliska informed Mr. Sobitan of his right to consular notification provided by Article 36 of the Vienna Convention.² Mr. Sobitan was convicted on the charge.

In 2006, Mr. Sobitan filed a complaint against Ms. Glud and Mr. Podliska in which he sought compensatory and punitive damages for their alleged failure to inform him of his rights under Article 36 during his arrest, as well as his subsequent detention and prosecution.³ The Government filed a motion for substitution and dismissal under the Westfall Act, 28 U.S.C. § 2679(b).

The district court granted the Government's motion. It substituted the United States as the defendant and dismissed Mr. Sobitan's claim with prejudice. It held that, under the Westfall Act, the Government was the proper defendant. Specifically, it rejected Mr. Sobitan's argument that his Vienna Convention claim arose under a federal statute and therefore was excepted from the Westfall Act's coverage. See 28 U.S.C. § 2679(b)(2). Because the Westfall Act mandated that the Government be substituted for the individual defendants, the district court continued, Mr. Sobitan was required to adhere to the procedural requirements set forth in the Federal Tort Claims Act, 28 U.S.C. § 2675(a) ("FTCA"). The district court found that Mr. Sobitan had failed to exhaust his administrative remedies before instituting his action as required by 28 U.S.C. § 2675(a). The court therefore dismissed with prejudice Mr. Sobitan's complaint.

II DISCUSSION

On appeal, Mr. Sobitan claims that the district court erred in substituting the Government as a defendant pursuant to the Westfall Act. Mr. Sobitan acknowledges that the Act provides for the substitution of the United States as a party in any action brought "for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). He argues, however, that his action falls within the exception set forth in § 2679(b)(2) for actions "brought for a violation of a statute of the United States." Id. § 2679(b)(2)(B). According to Mr. Sobitan, the term "statute" encompasses "treaty." Therefore, because his action seeks relief for violations of his rights under a treaty, specifically the Vienna Convention, the substitution provision of the Westfall Act does not apply to his action. We begin our consideration of Mr. Sobitan's argument with the language of the Act. See, e.g., Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322, 1324-25 (7th Cir.1997) ("As with all issues of statutory interpretation, the appropriate place to begin our analysis is with the text itself, which is the most reliable indicator of congressional intent." (citations omitted)).

A. The Westfall Act

We recently have observed that "[t]he principles that must guide our inquiry" into a statute's meaning "are well settled but worth repeating." United States v. Webber, 536 F.3d 584, 593 (7th Cir.2008). Specifically,

[i]n analyzing the language of a statute, we give the words their ordinary meaning unless the context counsels otherwise. McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) (explaining that "statutory language must always be read in its proper context"). When the plain wording of the statute is clear, that is the end of the matter. BedRoc, Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (noting that the task of statutory interpretation "ends there [if] the text is unambiguous"). The "plain meaning" of a statute, however, is often illuminated not only by its language but also by its structure. Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Marie O. v. Edgar, 131 F.3d 610, 622 (7th Cir.1997). "Context, not just literal text, will often lead a court to Congress' intent in respect to a particular statute." City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 127, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) (Breyer, J., concurring); Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 856 (7th Cir.2002) (noting that a statute must be "construed in its proper context").

Webber, 536 F.3d 584, 593-94 (parallel citations omitted). We, therefore, turn our attention to the statutory text.

Section 2679 of Title 28 provides in relevant part:

(b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government—

(A) which is brought for a violation of the Constitution of the United States, or

(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.

. . .

(d)(1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

. . .

(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

28 U.S.C. § 2679.

Section 2679(b)(1) shelters federal employees from liability "for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission" of the employee "while acting within the scope of his office or employment"; it accomplishes this by transforming the action against the employee into one against the federal Government. There are only two discrete categories of cases to which this protection does not apply: (1) a claim "brought for a violation of the Constitution of the United States," and (2) a claim "brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized." 28 U.S.C. § 2679(b)(2).

When a claim of wrongful conduct is brought against a government official in his individual capacity, and the claim does not fall within the specified exceptions to immunity in § 2679(b)(2), the Attorney General's certification that the defendant was acting within the scope of his employment requires substitution of the United States as a defendant. The suit then proceeds as though it had been filed against the United States under the FTCA. As such, it is subject to the "limitations and exceptions" applicable to cases brought pursuant to the FTCA. 28 U.S.C. § 2679(d)(4).

B. Substitution

In this case, the parties agree on most aspects of the Westfall Act's application to the facts as alleged in Mr. Sobitan's complaint. The parties agree that Mr. Sobitan's action is "for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" and, therefore, falls within the general coverage of the ...