The Foreign Service Journal, January 2005

foreign country, the U.S. govern- ment (but not also the consul gener- al) is not liable. The court grants the motion. A Last Resort The FSO is left in the lurch. He must retain his own attorney at his own expense. Furthermore, even though he was assured by a con- sulate employee that he was cov- ered by automobile liability insur- ance for the first 30 days after the import date of his private vehicle, he is told this is a mistake. Effectively, he had no insurance. Now he must defend himself and live with the possibility that, unless he can prove that he was not at fault, a very sizable judgment may be entered against him that would exhaust and overwhelm his person- al assets and probably force him into bankruptcy. The last arrow in the FSO’s quiver is the Certification Statute of the Federal Tort Claims Act, Title 28, United States Code, Section 2679(d). This statute is of great import to Foreign Service person- nel, wherever they are stationed and whatever their duties. It provides that whenever a federal employee is sued for negligence, the attorney general of the United States may certify that the employee was acting within the scope of employment. If that certification is issued, and unless it is challenged and over- turned by the court, the United States will then be substituted as the sole defendant in the proceeding. If the attorney general refuses to issue a certification, the employee may petition the court to issue its own certification on the grounds that the employee acted within the scope of his or her employment. If the court so certifies, it may order that the United States be substituted as the defendant in the same manner, and to the same effect, as if the attorney general had originally issued a certi- fication. In the case we are discussing, the attorney general declines to issue a certification, based on a recommen- dation from the Department of State. When the FSO learns that this will be the government’s posi- tion, he files a petition for certifica- tion with the court in California, whither the case has been trans- ferred after a nightmarish and expensive merry-go-round of legal proceedings, which includes an 22 F O R E I G N S E R V I C E J O U R N A L / J A N U A R Y 2 0 0 5 F S K N O W - H O W u