United States 9th Circuit Court of Appeals Reports

KASHIN v. KENT, 457 F.3d 1033 (9th Cir. 2006) Aleksandr
Nikolaevich KASHIN, Plaintiff-Appellee, and United States
of America, Defendant-Appellee, v. Douglas Barry KENT,
Defendant-Appellant. No. 04-56703. United States Court of
Appeals, Ninth Circuit. Argued and Submitted June 7, 2006.
Filed August 10, 2006. Page 1034

J. Michael Hannon, Hannon Law Group, LLP, Washington, DC,
for the defendant-appellant.

Dana J. Martin, United States Attorney and United States
Department of Justice, Washington, DC, for the
defendant-appellee.

Sharon L. Papp, General Counsel American Foreign Service
Association, Washington, DC, for Amicus Curiae American
Foreign Service Association.

Appeal from the United States District Court for the
Southern District of California; Larry A. Burns, District
Judge, Presiding. D.C. No. CV-02-02495-LAB/ WMC.

Before REINHARDT, TROTT, and WARDLAW, Circuit Judges.

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 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 district 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 accident. 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
Consular 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 immunity, 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
personal. 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 missions 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 Department of State agreed to reimburse Kent
Page 1035 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
dispatched 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 diplomatic status — the Department
of State prohibits foreign service 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 intoxicated 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 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 Georgian diplomat was stripped of his
diplomatic immunity at the request of the United States
and was criminally prosecuted in Washington, D.C. The
Russian protesters and press were proclaiming the
“hypocrisy” 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 Department of State in the United States District Court
for the Eastern 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 transferred the action to the
Eastern District of Virginia due to a lack of venue in
Pennsylvania. The Eastern District of Virginia transferred
the action to the Southern District of California, 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.
Page 1036

On August 26, 2004, the district court also denied Kent’s
petition for certification. Although Kent argued that the
district 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.

Ill

We are presented with a single question: Was Kent acting
within the scope of employment when the automobile accident
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 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 precious litigation resources
— it would be litigating solely for the benefit of
the plaintiff.

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 428, 115
S.Ct. 2227, 132 L.Ed.2d 375 (1995). Accordingly, win or
lose, the government faces no liability in this action. We
can, however, comprehend that the government may in some
circumstances, possibly as a matter of relations 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

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 certification, the government
employee is dismissed from the suit, and is immune from
other Page 1037 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 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).

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 defendant. However,
because the United States retains its sovereign immunity,
the action will be dismissed. Thus, a grant of
certification sounds the death knell for lawsuits involving
foreign torts.

Accordingly, the lynchpin question in FTCA cases is
whether the employee was acting within the scope of
employment at the time of the allegedly tortious act. The
law applicable 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-Ma-chain, 542 U.S. 692, 707, 124 S.Ct. 2739, 159
L.Ed.2d 718 (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
defendant’s state of domicile, California in this case. The
district court rejected that argument and applied instead
the Restatement (Second) of Agency. We disagree with both
Kent and the district court and apply instead District of
Columbia law. Our decision to apply District of Columbia
law relies partially upon the Department of State’s
location in the District of Columbia and partially upon a
process of elimination.

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. Rumsfeld, 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 Guantanamo 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 vehicle, were most
likely made in the District of Columbia — thereby
establishing a nexus, albeit tenuous, to the tort that
occurred in Russia.

We decline to adopt the district court’s rationale
underlying 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 Page 1038 foreign
country. However, the regulations 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 jurisdictions.” 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
pursuant to the MCA.” Kashin, 333 F.Supp.2d at 930.
Accordingly, the district court found “that the Restatement
(Second) 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
concerning the FTCA. The Military Claims Act regulations
were promulgated 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 provides a single, cogent body of law rather than
multiple state and federal decisions that grant sometimes
conflicting interpretations 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 conflicting 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 domicile, a lawsuit arising from a single tortious
act but implicating multiple tortfeasors could arrive at
conflicting results, based upon each tortfeasor’s state of
domicile. On a close factual scenario, those tortfeasors
domiciled in a state with a broad interpretation of scope
of employment would be protected from personal liability
while those tortfeasors domiciled 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 cotortfeasors.

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 disagree.

A

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
employee’s conduct is within the scope of employment if
Page 1039 “(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).

Although “the determination of scope of employment is
dependent upon the facts and circumstances of each case,”
Penn Cent. Tramp. 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 by the
law to be an act done within the scope of his employment,
and . . . in determining whether the servant’s conduct was
within the scope of his employment, 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 performance of his work.” Id. The court
evaluates also “the employee’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
factual scenario involving a senior foreign service officer
committing 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 apartment. 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
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 residences,
shall carry their badges, identification cards and service
revolvers at all times.

2:3:2 When off duty and not in full uniform, members 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 wearing it at all times, he was furthering his
employer’s function of maintaining public order.” Id. at
1203. Page 1040

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 officer’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, though
negligent, was nevertheless in furtherance of the interests
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 officer 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 vehicles
may be used for the following business purposes: (1) Any
transportation [of] . . . consulates general is considered
business 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 fraternize, 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 conduct 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 clearance 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 Department of State specifically requested
that he use his personal vehicle to Page 1041 reduce the
overtime expenses of his private driver. Had Kent ignored
the request to reduce expenses and continued to use his
private driver at all times, he would face no personal
liability arising from a traffic accident.

Finally, Kent’s declaration demonstrates that he
subjectively believed he was acting within the scope of
employment at the time of the accident. Kent knew, pursuant
to Department 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 officer’s “awareness of
the fact that he was, for certain purposes, effectively on
duty at all times” militated in favor of concluding that
the officer had acted within the scope of employment).

“[T]he ultimate question is whether or not it is just that
the loss resulting from the servant’s acts should be
considered as 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
vehicular 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.

Therefore, because Kent was (1) engaged in a business act;
(2) under the control of the Department of State; (3) acting
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
automobile 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.

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 driving his personal vehicle instead
of riding with his private driver to further the Department
of State’s interest Page 1042 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 DEAprovided 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 consumed 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 discussed 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
jurisdictions. In Wilkinson v. United States, 677 F.2d 998,
999-1000 (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 associated 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 dinner. Id. The Fourth Circuit
expressed little hesitation in holding 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
decision 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
temporarily 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 commercial 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, rearended 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 government derived no benefit from
his activities once he stopped working on the Page 1043
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
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 regulates 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 Eastern
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
contacted, 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

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 affidavits, and any
supporting documentary evidence do not reveal an issue of
material fact.” Gutierrez de Martinez v. Drug Enforcement
Admin., Il l F.3d 1148, 1155 (4th Cir.1997).

Claiming that he is a victim of political circumstance,
Kent requested an evidentiary hearing to explore the
government’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 Attorney 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 standard
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
Consul 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 Page 1044 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, 115 S.Ct.
2227, we do answer the legal question involved. Applying
District of Columbia law, we conclude that Kent was acting
within the scope of employment when he was involved in the
automobile accident. We therefore grant Kent’s petition for
certification.

REVERSED.