The Foreign Service Journal, October 2006

interpretationandconcluded thatKentwas not actingwithin the scopeof his job. AFSA hadrepeatedlyandunsuccessfullyurged the Department of State tosupportKent’s inter- pretation of governing law and regulation conveying that employees and, in partic- ular, chiefs of missions and principal offi- cers, are onduty 24/7while stationedover- seas. HadKent beencertifiedas actingwith- in the “scope of employment,” he would have beendismissed fromthe lawsuit and, because the federal government generally cannot be sued for torts that occurredover- seas, the case would have been dismissed in its entirety. Kent appealed to the 9th Circuit. BecauseAFSAviewed this case as establish- ing an important precedent to the extreme jeopardy of our members, the Governing Board voted unanimously to provide $5,000 toward Kent’s legal defense. (See Foreign Service Journal , “FS Know-How,” January 2005). We submitted a declara- tion in support of Kent at the district court level and filed an amicus brief. AFSA repeatedly implored the depart- ment to request that the U.S. Attorney’s Office reconsider its position thatKentwas not acting within the scope of his job, in light of the unique circumstances of employment for Foreign Service employ- ees and its implications for all department personnel overseas. This case’s implications in the context of a “more expeditionary” Foreign Service are clear. In reversing theDistrict Court’s failure to certify Kent, the 9th Circuit applied District of Columbia law and found that under the circumstances of the case Kent was actingwithin the scope of his employ- mentwhen the car accident occurred. The court stated that “Although the determi- nation of scope of employment is depen- dent upon the facts and circumstances of each case ... theDistrict of ColumbiaCourt of Appeals has announced a general rule: (W)hatever is done by the employee in virtue of his employment and in further- ance of its ends is deemed by the law to be anact donewithin the scopeof his employ- ment, 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.” The court ruled in Kent’s favor because it found that he was 1) engaged in a business act (the FAM authorizedhimtouse a government vehi- cle and driver 24/7); 2) under the control of theDepartment of State; 3) acting in fur- theranceof theDepartment of State’s inter- est (by driving himself to save money for the government); and 4) subjectively believed he was acting within the scope of his employment. In a conclusion that was particularly revealing of the judges’ opinionof the gov- ernment’s position, the court stated: “Now thatKenthasbeensued intheUnitedStates, the Department of State has not only stopped fighting for a consul general — whohas served theDepartment of State in places such as Panama, Albania, Kosovo, Tajikistan and Liberia—but it has joined the other teamand is litigating for the ben- efit of the plaintiff. Although we cannot answer why the Department of State and theUnitedStatesAttorney spent their pre- cious and scarce resources opposing this petition for certification ...wedoanswer the legal questions involved. ApplyingDistrict of Columbia law, we conclude that Kent was acting within the scope of employ- ment.” The 9th Circuit Court of Appeals decision can be found at http://caselaw. lp.findlaw.com/data2/circs/9th/0456703p. pdf. The government may request that the 9thCircuit reviewthe case enbanc or peti- tion the Supreme Court for certiorari; i.e., the government can decide to appeal this decision. AFSA joins the court in its sin- cere hope that the government will stop spending“itspreciousandscarceresources” fighting against a loyal employee. We also hope that the Department of State and the U.S. Attorney’s Office will recognize the uniquenatureoftheForeignServiceandtake thesefactorsintoconsiderationindetermin- ing future scope-of-employment issues. All that said, AFSAreiterates thedepart- ment’swarning that all employees overseas need toensure that theyhave adequateper- sonal/automobile liability insurance cover- age. Inmany instances thiswill require sig- nificantly more coverage than the mini- mum required by regulation or post pol- icy. Noone shouldhave toexperiencewhat Doug Kent has gone through. Tribute to Victims of 1998 East Africa Bombings On Aug. 7, the eighth anniversary of the East Africa embassy bombings, AFSA President Tony Holmes attended a memorial ceremony at the State Department. Holmes spoke during the ceremony, as did Under Secretary of State for Management Henrietta Fore, Under Secretary of State for Political Affairs Nicholas Burns and Ambassadors Prudence Bushnell and John Lange. The Aug. 7 attack killed 224 people, including 12 American employees of Embassy Nairobi, and injured more than 5,000. In his remarks, Holmes highlighted and paid tribute to the critical role played by local employees in Kenya and Tanzania, as well as all other U.S. embassies worldwide. A F S A N E W S CG on Duty • Continued from page 71 AFSA NEWS BRIEFS “We conclude that Kent was acting within the scope of employment.” — The 9th Circuit Court of Appeals OC T OB E R 2 0 0 6 / F OR E I GN S E R V I C E J OU R N A L 75 AUSTIN TRACY