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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 21-102-DLB-CJS

JASON LAIBLE, et al. PLAINTIFFS

v. MEMORANDUM OPINION AND ORDER

TIMOTHY LANTER, et al. DEFENDANTS

* * * * * * * * * * *
I. INTRODUCTION
This matter is before the Court upon several pending motions: a Motion to Remand
filed by Plaintiffs (Doc. # 8); a Motion to Dismiss filed by Defendants (Doc. # 10); a Motion
to Stay filed by Defendants (Doc. # 11); a Peti tion for a Westfall Act Certification filed by
Defendants (Doc. # 34); and a Motion for Leave to File a Sur-Reply filed by Plaintiffs.
(Doc. # 52). An Oral Argument on the pending motions was held on May 25, 2022. (See
Doc. # 63). Jacqueline Greene and Roula Allouch appeared for Plaintiffs; Aaron Herzig,
Spencer Cowan, and Ken Foisy appeared for Defendants; and Tiffany Fleming appeared
for the United States. ( Id.). The Court heard arguments from all parties with respect to
all pending motions.
In addition to the Oral Ar gument, all pending motions have been fully briefed (Docs.
# 9, 12, 15, 16, 17, 40, 44, 49, 51, 53, and 61 ), and are thus ripe for the Court’s review.
Having considered the arguments made, and fo r the reasons stated herein, Plaintiffs’
Motion to Remand (Doc. # 8) is DENIED, Defendants’ Petition for a Westfall Act
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Certification (Doc. # 34) is DENIED, Plaintiffs’ Motion for Leave to File a Sur-Reply (Doc. #
50) is GRANTED, and all other pending Motions are DENIED AS MOOT.
II. FACTUAL AND PR OCEDURAL BACKGROUND
This case stems from an August 2020 in cident in Newport, Kentucky, which
resulted in the deaths of Raymond and Gayle Laible and in serious injuries to Steven and
Maribeth Klein. (Doc. # 1-1 ¶ 3). During the afternoon of August 7, 2020, the Laibles
were dining on the sidewalk patio of a Newpor t restaurant located at the corner of Fifth
Street and Monmout h Street. ( Id. ¶ 81). The Kleins were walking together on the
sidewalk near the same corner. (Id. ¶ 82). Meanwhile, across the river, officers from the
Cincinnati Police Department (“CPD”) were working in conjunction with federal law
enforcement agencies to apprehend Mason Meyer. (Id. ¶¶ 16-19).
Mr. Meyer had been under investigation by law enforcement for drug and gun
trafficking (id. ¶ 17), and in August 2020, Mr. Me yer had outstanding state and federal
warrants. (See Doc. # 58-1 at 2). A task force l ed by the federal Bu reau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”) sought out to arrest Mr. Meyer on August 7,
2020, but Mr. Meyer evaded capt ure and fled in a vehicle owned by Austin Lagory, a
friend of Mr. Meyer’s and a defendant in this action. (See generally id.; Doc. # 1-1 ¶¶ 24-
27). The CPD’s role in the task force operation was to “conduct a felony traffic stop with
assistance from CPD K9s per [their Standard Operating Procedures]” in the event of Mr.
Meyer’s escape. (Doc. # 58-1 at 4). Accordingly, when Mr. Meyer fled, CPD Sgt. Timothy
Lanter initiated a pursuit, following Mr. Meyer’s vehicle, and Sgt. Lanter later directed K9
units led by Ofc. Brett Thomas and Spc. Michael Harper to join him. (Doc. # 1-1 ¶¶ 27
and 31). Spc. Harper was unable to get cl ose enough to engage in the pursuit, and so
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Sgt. Lanter and Ofc. Thomas, both driving marked Cincinnati Police vehicles, chased Mr.
Meyer. (Id. ¶ 42; Doc. # 40-1 at 8). Meanwhile, Sgt. Donald Scalf supervised the pursuit
via radio as the designated Officer-in-Charge (“O IC:”), but he did not actively engage in
the pursuit. (Doc. # 1-1 ¶ 29) . ATF Resident Agent In C harge (RAC) Frank Occhipinti
assisted Sgt. Scalf by confirming Mr. Meyer’s location using cell phone tracking data, and
at this point, radio communications were changed from a CPD/ATF joint channel to a
CPD-only general dispatch channel. (Doc. # 44-1 at 1). Via the CPD radio channel, Sgt.
Scalf, as OIC, authorized Sgt. Lanter to purs ue Mr. Meyer into Kentucky if Mr. Meyer
crossed the Ohio River. (Doc. # 1-1 ¶¶ 34-35 and id. at 4).
The pursuit began on the west side of Cin cinnati near the Price Hill neighborhood
and continued through the Price Hill Incline District before Mr. Meyer circled back toward
downtown Cincinnati on the Sixth Street Expressway and then got on the interstate. (Id.
¶¶ 38-44). On the interstate, Mr. Meyer’s ca r struck a vehicle, but Mr. Meyer continued
toward downtown Cincinnati, with his car a nd the police cruisers reaching speeds over
100 miles per hour. ( Id. ¶¶ 47-49 and 53). From there, Mr. Meyer led Sgt. Lanter and
Ofc. Thomas off the interstate and onto Second Street in Cincinnati, before crossing the
Roebling Suspension Bridge into Covington, Kentucky. ( Id. ¶¶ 63 and 66). Mr. Meyer
and the officers passed eleven cars on the Roebling Bridge, crossing into oncoming lanes
as they dodged traffic. (Id. ¶ 66). The chase continued through Covington, with the cars
weaving through downtown Covington, and Sgt. Lanter authorized the CPD officers to go
the wrong way down Covington’s one-way streets without requesting clearance from Sgt.
Scalf. (Id. ¶ 73; Doc. # 40-1 at 11).
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After making a loop down and up Garrard Street in Covington through Sanford
Alley, Mr. Meyer turned onto the Fourth Street Bridge in Covington to cross into Newport.
(Doc. # 1-1 ¶ 73). Mr. Meyer’s vehicle nearly struck several cars and a motorcycle on the
bridge (id. ¶ 79), and he continued to head straight onto Fifth Street in Newport. ( Id. ¶
80). Still at a high rate of speed, Mr. Meyer then ran a red light at the corner of Fifth Street
and Monmouth Avenue in Newport, losing control of his vehicle shortly thereafter, came
onto the sidewalk, and crashed into the restaurant located on the corner. (Id. ¶ 83). Gayle
and Raymond Laible were directly impacted by Mr. Meyer’s car, and Steven and Maribeth
Klein were thrown several yards onto the asphalt after being impacted by debris. (Id. ¶¶
84-85).
Mrs. Laible was pronounced dead on the scene, and Mr. Laible was taken to a
Cincinnati hospital, where he was later pronounced dead. ( Id. ¶¶ 89-90). Mr. and Mrs.
Klein suffered various injuries, including road rash. ( Id. ¶¶ 91-92). After the crash, Mr.
Meyer was taken into custody along with two passengers in the car. (See generally Doc.
# 40-1). Mr. Meyer was charged with two counts of Murder for the deaths of Mr. and Mrs.
Laible, and one count each of Wanton Endangerment and Fleeing or Evading Police, in
addition to the previously out standing drug and gun charges. ( Id. at 11). Mr. Meyer
remains incarcerated, as he pleaded guilty to the Murder counts and received a life
sentence. (Docs. # 1-1 ¶ 10 and 34 at 8).
Jason Laible, as Executor of the Estates of Raymond and Gayle Laible, and
Steven and Maribeth Klein filed this lawsuit in August 2021 in Campbell Circuit Court.
(See id.). The lawsuit alleges counts of negligenc e resulting in inju ry, wrongful death,
and negligent supervision against Sgt. Lanter, Ofc. Thom as, Sgt. Scalf, the City of
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Cincinnati, and Mr. Meyer; and negligent entrustment against Mr. Lagory with respect to
Mr. Meyer’s driving of his vehicle. (Id. ¶¶ 138-164). The lawsuit also seeks a declaration
of rights with respect to an under/uninsured motorists insurance policy issued by
Travelers Casualty Insurance Company of America to Mr. and Mrs. Klein. ( Id. ¶¶ 165-
170).
Shortly after Plaintiffs filed suit, the individual CPD Defendants and the City of
Cincinnati (collectively, “City Defendants”) removed the case to this Court. (Doc. # 1). In
their Notice of Removal, the City Defendants rely upon 28 U.S.C. § 1442, which provides
federal officers with a right of removal. (See id.). The City Defendants assert that as part
of the ATF-led task force, the CPD officers are federal office rs for purposes of removal.
(See id. ). In the last paragraph, they mention briefly that they “have several federal
defenses to Plaintiffs’ claims, including federal-employee immunity under the Federal Tort
Claims Act. See 28 U.S.C. § 2679.” (Id. ¶ 8). Plaintiffs took issue with that last paragraph,
filing a Motion to Remand soon after, arguing that the Court lacks subject-matter
jurisdiction due to the City Defendants’ failure to obtain a certification under 28 U.S.C. §
2679, which is a statute more co mmonly known as the Westfall Act.
1 ( See Doc. # 8).
According to Plaintiffs, without Westfall ce rtification, the Cit y Defendants have no
colorable federal defense, which inhibits their right of removal, which in turn strips the
Court of subject-matter jurisdiction. (See id.).
Over the following severa l weeks, briefing continued on the Motion to Remand,
and the City Defendants filed a Motion to Dismiss (Doc. # 10) and a Motion to Stay (Doc.

1 A Westfall certification, explained in depth at infra part III(D), is a federal employment
certification that can be issued by the Department of Justice and reviewed by the court on
subsequent petition by a defendant. If a defendant obtains a Westfall certification, the defendants
are substituted by the United States in the action under the Federal Tort Claims Act. See id.
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# 11). While these Motions were pending, Plai ntiffs effected service of process against
all Defendants, including Mr. Meyer and Mr. Lagory. During that time, the United States
became involved in the case, as it declined to issue a Westfall cert ification to the City
Defendants. (Doc. # 30). The City Defendants t hen petitioned this Court to issue the
certification (Doc. # 34), and that Petition was fully briefed, including a Response filed by
the United States. (Doc. # 44). Then, more recently, after all the previously detailed
briefing, Plaintiffs filed a Motion for Leave to file a Sur-Reply (Doc. # 50), and the City
Defendants filed a Motion for Leave to File an Operational Plan written by the ATF which
detailed the August 2020 operation to apprehend Mason Meyer. (Doc. # 52). The Court
conducted a telephonic hearing on April 28, 2022 regarding the ATF Operational Plan
and conducted an in camera review of the document. (Doc . # 57). After reviewing the
Operational Plan, the Court ordered a redacted copy filed into the open record (id.), and
gave Plaintiffs leave to file a brief Res ponse to the document. (Doc. # 61). With
procedural history in mind, the Court is now prepared to adjudicate all of these Motions,
beginning with the Motion to Remand.
III. ANALYSIS
A. Motion to Remand (Doc. # 8)
The City Defendants have removed this matter from Campbell Circuit Court by 28
U.S.C. § 1442(a)(1), which prov ides that any lawsuit directed against any officer of the
United States “for or relating to any act under color of such office ” may be removed to
federal court. (See Doc. # 1). The statute, originally passed in 1948, recognizes a federal
officer’s right to removal as “essential to the preeminence of the Federal Government on
those matters entrusted to it under the Constitution.” 157 Cong. Rec. H1371-01 (daily ed.
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Feb. 28, 2011) (statem ent of Rep. Lungren). 2 However, the statute’s roots date well
before 1948, as “[t]he first such removal provision was included in an 1815 customs
statute.” Willingham v. Morgan, 395 U.S. 402, 405 (1969). A brief look at the statute’s
history provides insight as to its purpose, which has informed the Court’s decision in this
case, in part.
In the first half of the 19th century, many states were hostile toward federal laws
on trade and revenue.
3 More specifically, during the War of 1812, the federal government
enacted an all-encompassing trade embargo against Great Br itain which was greatly
unpopular in New England, leadi ng many northeastern states to pass laws outlawing
federal officials from enforcing the embargo. Mays v. City of Flint, 871 F.3d 437, 443 (6th
Cir. 2017) (citing Watson v. Phillip Morris Cos. , 551 U.S. 142 (2007)). In response,
Congress enacted an earlier version of § 1442 to provide a federal forum to federal
officers, in “an attempt to protect federal officers from interference by hostile state courts.”
Willingham, 395 U.S. at 405.
Later, in the years leading up to t he Civil War, South Carolina passed a law
declaring federal tariff laws to be unconsti tutional and directing state authorities to

2 The statute has been amended three times since its original enactment but has
substantively remained the same. A 1996 amendment expanded the statute’s language to
include agencies, persons acting under officers of the United States, and suits brought in official
and individual capacities. See Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, §
206, 110 Stat. 3847, 3847 (1996). A 2011 amendment expanded the scope of the statute by
adding “or relating to,” and otherwise clarified that it applies to pre-suit discovery. See Removal
Clarification Act of 2011, Pub. L. No. 112-51, § 2, 125 Stat. 545 (2011); see also H.R. Rep. No.
112-17(I), at 6 (2011), reprinted in 2011 U.S.C.C.A.N. 420, 425 (noting that the addition of “relating
to” “intended to broaden the universe of acts that enable Federal officers to remove to Federal
court.”). Lastly, a 2013 amendment clarified the applicability of the statute to law enforcement
officers in criminal prosecutions. See National Defense Authorization Act for Fiscal Year 2013,
Pub. L. No. 112-239, § 1087, 126 Stat. 1632, 1970 (2013).

3 Elizabeth M. Johnson, Note, Removal of Suits Against Federal Officers: Does the
Malfeasant Mailman Merit a Federal Forum?, 88 COLUM. L. REV. 1098, 1099-1100 (1988).
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prosecute federal agents who enforced tariffs. Watson, 551 U.S. at 148. Congress then
enacted another removal statute, which according to Senator Daniel Webster, would “give
a chance to the [federal] officer to defend himself where the authority of the [federal] law
was recognized,” as opposed to state courts which were frequently inimical toward federal
law. Id. (quoting 9 Cong. Deb. 461 (1833)). At the turn of the century, removal statutes
were used to provide federal forums to prohibition agents and revenue officers who were
often involved in violent scuffles with bootl eggers and organized cr ime syndicates who
ran the country’s underground liquor market, as at that ti me, alcohol regulation was
provided for by the internal revenue laws. Id. at 150.
When enforcing those laws became violent, many federal officials were charged
with crimes in state courts. Id. For example, in Tennessee v. Davis, a federal revenue
officer raided an illegal distillery in 1878, and was ambushed by a mob of armed men.
100 U.S. 257, 261 (1880). The f ederal officer returned fire, killing one of the attackers,
and was then charged with murder in a Tennessee state court. Id. As many Tennesseans
were less-than-friendly toward federal officers raiding unregulated distilleries, it seemed
unlikely that the Tennessee c ourts (and a Tennessee jury) w ould provide a fair forum,
and so the officer sought to remove the case to federal court. See Watson, 551 U.S. at
149 (citing Davis, 100 U.S. at 263). The statute in its current form was codified in 1948,4
and in short, exists to protect the federal government from interference “that would occur
if a federal officer could be tried in state court for a state offense related to the operation”
of the federal government, in addition to mitigating “local prejudice against unpopular

4 The Watson court noted that even though the current law was passed in 1948, its intent
remains the same as federal officer removal statutes before 1948, so case law on § 1442’s
predecessor statutes remains instructive. See 551 U.S. at 148-49.
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federal laws or federal officials.” Mays, 871 F.3d at 443 (internal quotations omitted). In
other words, as the Supreme Court stated in Davis:
A more important question can hardly be imagined. Upon its answer may
depend the possibility of the general government’s pres erving its own
existence. As was said in Martin v. Hunter, ‘the general government must
cease to exist whenever it loses the power of protecting itself in the exercise
of its constitutional powers.’ It can only act through its officers and agents,
and they must act within the States.

If, when thus acting, and within the scope of their authority, those officers
can be arrested and brought to trial in a State court, for an alleged offence
against the law of the State, yet warr anted by the Federal authority they
possess, and if the general government is powerless to interfere at once for
their protection, – if their protection mu st be left to the action of the State
court, – the operations of the general government may at any time be
arrested at the will of one of its members.

100 U.S. 257, 262-63 (quoting Martin v. Hunter’s Lessee, 14 U.S. 304, 363 (1816)).
The case currently before the Court implicates no such great question of
federalism – the federal governm ent’s authority is not being challenged by a state law,
and federal officers are not being persecut ed (or prosecuted) for following federal
directives, and the Court sees that as important to note at the outset. The Court
recognizes that the City Defenda nts in this case were oper ating under a plan written by
the ATF, which spells out who the participants were in the operation in question, and what
specific roles each would play. Howeve r, an operational plan – an organizational and
procedural document – is not t he be-all-end-all of a complic ated, multi-jurisdictional
investigation, nor does it signify words direct ly from the proverbial mouth of the federal
government. The City Defendants have argued in essence that anyone who participates
in a task force or who may be mentioned in an operational plan is a federal officer for
purposes of removal. Howeve r, applying § 1442 in that way w ould result in the statute
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being applied in a way that was never intended by those who drafted it. Just because a
federal agency is involved in a situation doesn ’t make everyone else involved a federal
officer, and to say otherwise would expand § 1442 far beyond the purpose which
Congress intended in enacting it. The law’s hi story, replete with dr amatic stories of
criminal prosecutions and courts writing about existential thre ats to the federal
government, makes that clear . Thus, with its history and purpose in mind, the Court
moves to § 1442’s mechanics and its specific application to the case at hand.
Unlike other removal statutes, § 1442 c onfers subject-matter jurisdiction onto the
federal courts, as it serves as a bypass to the well-pleaded complaint rule by allowing
removal based on the existence of a federal defense. Mesa v. California, 489 U.S. 121,
136 (1989) (citing Verlinden B.V. v. Cent. Bank of Nigeria , 461 U.S. 480, 491 (1983)).
The Supreme Court has labeled § 1442 as “a pure[ly] jurisdictional statute,” reasoning
that when a federal official raises a federal defense in st ate court, a federal question
arises, thus invoking the federal court’s Article III “arising under” jurisdiction. Id. at 136-
37. However, the mere raising of a federal defense isn’t automatically sufficient, as
§ 1442 and case law interpreting it contain s pecific elements and a standard of review.
See infra part III(A)(1). Be fore diving into those elements , though, the Court notes that
the statute also differs from other removal statutes in that one defendant can remove the
entire cause of action without th e consent of other defendants. Howes v. Childers, 426
F. Supp. 358, 359 (E.D. Ky. 1977) (“When a single federal officer timely removes a case
to federal court under 28 U.S.C. § 1442(a)(1), the entire case is thereby removed[.]”
(internal citations omitted)); see also Bennett v. MIS Corp., 607 F.3d 1076, 1084 n.7 (6th
Cir. 2010) (Section 1442 “author izes removal of the entire case even if only one of the
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controversies it raises involves a federal officer or agency[.]” (internal quotations omitted)
(emphasis added) (alteration in original)).
Thus, even though the Notice of Removal in the case was filed by all the City
Defendants, removal is proper (a nd remand is thus denied) if only one of them satisfies
§ 1442’s requirements. After considering the arguments made befor e the Court orally
and in the written filings, the Court concludes that for purposes of removal, Sgt. Scalf was
a federal officer acting under color of federal office during the incident in question, and
that he otherwise satisfies all § 1442’s requirements. See infra part III(A)(1)-(4). As such,
for the reasons that follow, the entire case has been properly removed to this Court, and
Plaintiffs’ Motion to Remand is denied.
1. Standard of Review
As is the case with other removal statutes, under 28 U.S.C § 1442(a)(1), the
removing party bears the burden of establishing federal jurisdiction under § 1442. Mays,
871 F.3d at 442 (citing Eastman v. Marine Mech. Corp. , 438 F.3d 544, 549 (6th Cir.
2006)). However, unlike other removal statut es, § 1442’s language “must be ‘liberally
construed.’” Watson, 551 U.S. at 147 (quoting Colorado v. Symes , 286 U.S. 510, 517
(1932)); see also Willingham, 395 U.S. at 407 (noting that § 1442’s purpose “should not
be frustrated by a narrow, grudging interpretation[.]”).
Conversely, though, the Sixth Circuit has written that § 1442 is like other removal
statutes in that “all doubts shoul d be resolved against removal.” Mays, 871 F.3d at 442
(quoting Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007 )). The Sixth Circuit’s
position on § 1442’s construction in Mays differs from the positions of most other circuits,
and some district courts within the Sixth Circuit have even departed from Mays, as other
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circuits’ positions seem to more alig n with the Supreme Court’s holdings in Watson and
Willingham.5 Nonetheless, however, Mays remains the most recent published Sixth
Circuit opinion on the issue, and it has been affirmed by a more recent opinion, so this
Court is compelled to follow it. See Nappier v. Snyder , 728 F. App’x 571, 572 (6th Cir.
2018) (referring to Mays as “controlling”). Thus, in an effort to reconcile Mays, this Court
will follow the example of Doe v. ProMedica Health Systems, Inc., in which the Northern
District of Ohio noted Mays’ conflict with Watson and made a decision “with both principles
in mind.” No. 3:20-CV-1581, 2020 WL 7705713, at *2 (N.D. Ohio Dec. 14, 2020) (internal
citations omitted). Accordingly, while doubts will be resolved against removal,
§ 1442 must be applied broadly and with liberal construction – in other words, in a manner
by which doubts arise less frequently. More specifically, there are three prongs a
defendant must satisfy to successfully remo ve a case under § 1442, and the Court will
apply each prong broadly, in accord with Watson and Willingham, but if even one prong
is not satisfied, the Court will apply Mays and recognize that th e case must then be
remanded.6

5 See, e.g., Ohio v. Meade, No. 2:21-CV-5587, 2022 WL 486294 (S.D. Ohio Feb. 17, 2022)
(not citing Mays); Johnson v. Tyson Foods, Inc., No. 21-CV-1161, 2021 WL 5107723, at *2 (W.D.
Tenn. Nov. 3, 2021) (citing a rule from a Seventh Circuit case which states that “[t]he presumption
against removal in ordinary diversity jurisdiction cases does not extend to the federal officer
removal statute,” directly inapposite to Mays); Cherokee Nation v. McKesson Corp. (In re Nat’l
Prescription Opiate Litig.), 327 F. Supp. 3d 1064, 1069 (N.D. Ohio 2018) (disregarding Mays and
noting that “the Sixth Circuit has endorsed ‘the broad scope of the federal officer removal statute,’
and thus this Court interprets the statute broadly and in favor of removal[.]” (quoting Bennett, 607
F.3d at 1084).

6 A similar approach was taken by the Doe court in a different Order resolving a Motion to
Remand, as that Court noted that by applying Watson to Mays, “the doubt is not so easily
resolved.” See Doe v. ProMedica Health Sys., Inc. , No. 3:20-cv-1581, 2020 WL 7705627, at *2
(N.D. Ohio Oct. 30, 2020).

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To successfully remove a case under § 1442, a removing defendant must show
that (1) he or she is a federal officer or a person acting under a federal officer; (2) that the
actions in question must have been performed under color of federal office; and (3) that
he or she has raised a colorable federal offense. 28 U.S.C. § 1442; see also Mays, 871
F.3d at 442-43 (applying statute to non-government employee); Abernathy v. Kral, 779 F.
App’x 304, 307 (6th Cir. 2019) (applying statute to a government employee).7
2. Federal Officer or a Person Acting Under a Federal Officer
a. Sgt. Scalf is a federal officer for purposes of removal
because he is a deputized Task Force Officer with the ATF
and was otherwise acting under the ATF’s authority at the
time in question.
First, § 1442 requires that the removing defendant be “any officer (or any person
acting under that officer) of the United States or of any agency thereof[.]” 28 U.S.C. §
1442(a)(1). Section 1446, which is the definitions statute within Chapter 89 of Title 28,
does not provide a definiti on of “federal officer.” See 28 U.S.C. § 1446. However, the
United States Code’s overall definitions statute defines “officer” as “any person authorized
by [federal] law to perform the duties of the office[.]” 1 U.S.C. § 1. Accordingly, it follows
that deputized task force officers are federal officers for removal purposes, as they are
specifically authorized by federal law to perform proscribed duties of the office or position
into which they are deputized. See, e.g., Meade, 2022 WL 486294, at *3 (designating a

7 Because a question exists as to whether the City Defendants are federal officers, the Court
has combined the first prongs from Mays and Abernathy into one. Other courts have referred to
the first prong as establishing that a defendant is “a person within the meaning of the statute.”
Johnson, 2021 WL 5107723, at *2 (quoting Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir.
2018)). “A person within the meaning of the statute” would be the United States, an agency of
the United States, an officer of the United States, an officer of an agency of the United States, or
a person acting under any of those. See 28 U.S.C. § 1442(a)(1). Because none of the City
Defendants are agencies of the United States, the Court has distilled the statute into the stated
first prong.
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state officer deputized as a Special Deputy U.S. Marshal as “both a federal officer and a
state officer” for removal purposes) (citing Texas v. Kleinert, 855 F.3d 305, 312 (5th Cir.
2017)). Here, Sgt. Scalf was a deputized Task Force Officer with the ATF (Doc. # 40-1
at 8), and as such, he is likely a federal officer per se for removal purposes, especially
considering that he carried an ATF badge, wore an ATF uniform, attended ATF trainings,
worked from an ATF field office, and received pay from the federal government. (Doc. #
34 at 9). Otherwise, however even if Sgt. Scalf were not a federal officer per se, he was
nonetheless acting under the ATF during the incide nt giving rise to this lawsuit, which
would also satisfy the first prong.
For an individual to be “acting under” a fe deral official or agency for purposes of
§ 1442, their activity “must involve an effort to assist, or to help carry out, the duties or
tasks of the federal superior.” Watson, 551 U.S. at 152 (citing Davis v. S. Carolina, 107
U.S. 597, 600 (1883) (emphasis in original). The Sixth Circuit has interpreted Watson to
hold that “the acting-under relationship typically involves subjection, guidance, or control.”
Mays, 871 F.3d at 444 (internal quot ations omitted). In ot her words, an “acting-under”
relationship arises “where the government is functioning as the defendant’s superior.” Id.
However, Mays’ reasoning indicates that its rule may not be as stringent as its
language suggests, as the court pointed out myriad detailed factors about the relationship
between the government and the defendants. Id. at 438. The Mays defendants, who
were individuals tasked with testing water in Flint, Michigan through a state agency,
argued that because their work was governed by EPA regulations, they were “acting
under” the EPA. Id. Among the factors th at the court mentioned as weighing against
removal (under Watson) were that no “delegation of legal authority” existed between the
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government and the defendants, id. at 445, that the federal government “was not involved
in the key action underlying” the case, id. at 446, and that there were no “specific actions
or inactions alleged . . . that the [federal government] required the [] [d]efendants to take
or refrain from taking.” Id. In short, while the Mays court began its analysis with a very
broad statement, it provided reasoning that suggested many specific factors are
applicable to the analysis, and thus assistive in removal.
Furthermore, cases beyond the Sixth Circuit align with Mays’ reasoning. In
Maryland v. Soper, the Supreme Court wrote in 1926 that a private individual acting as a
federal agent’s driver in a dist illery raid “has the same right to the benefit” of a removal
statute as the federal agents. 270 U.S. 9, 30 (1926). While that case is almost 100 years
old, it is nonetheless in structive, as it cites Davis v. South Carolina , upon which the
Supreme Court relied in Watson, as previously cited. Otherwise, “[c]ourts have also found
this element satisfied where a private contractor provided the government with a product
that it needed or performed a job that the government would otherwise have to perform.”
Buljic v. Tyson Foods, Inc. , 22 F.4th 730, 739 (8th Cir. 2021) (citing Jacks v. Meridian
Res. Co., LLC, 701 F.3d 1224, 1231 (8th Cir. 2012)); see also Watson, 551 U.S. at 153-
54 (applying the same reasoning). For these reasons, the Court will analyze Sgt. Scalf’s
involvement under the “liberal construction” commanded by the Supreme Court in Watson
and as demonstrated by other courts, while keeping an eye out for “subjection, guidance,
or control” as written in Mays.
In United States v. Scurry, notably similar facts to the instant case played out in a
different context within the Sixth Circuit. 834 F. A pp’x 178 (6th Cir. 2020). In Scurry, a
criminal defendant was convicted of assaulting a federal office r in violation of 18 U.S.C.
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§ 111(a)(1), which includes anyone who “assist s” a federal officer as falling under the
definition of “federal officer.” Id. at 182. The officer Scurry assaulted was an Akron police
officer serving on an ATF task force, which was investigating Scurry for gun crimes. Id.
at 181. The Akron police officers and the ATF officers were acting under an Operational
Plan, which noted that the Akron police officers were to conduct a traffic stop on Scurry’s
vehicle after he left a residence. Id. Scurry engaged in an altercation with an Akron police
officer during the traffic stop and was charged with assaulting a federal officer. Id.
Even though Scurry isn’t exactly on point, as the Scurry court only determined that
the Akron officer was “assisting” the ATF, which was sufficient under the relevant statute
in that case, the Court still takes note of the operative facts that the Sixth Circuit relied on:
that “the ATF task force did not have it s own marked units and depended on the Akron
police for law enforcement encounters like traf fic stops,” that the Akron officer was
mentioned in the ATF Operational Plan, and that the Akron officer’s “participation was a
key component of the ATF task force’s plan.” See id. at 183-85. If all these things suggest
“assistance,” it seems to follow naturally that they would also suggest “acting under,” and
many of those facts, in addition to others, are present in this case.
First, the facts similar to Scurry are as follows: that Sgt. Scalf was acting under an
ATF Operational Plan (Doc. # 58-1); he was s pecifically named in the Operational Plan
(id. at 5); and he was the Officer-in-Charge (OIC) during the pursuit of Mr. Meyer’s vehicle,
indicating that he was a “key component” of the operation. (D oc. # 40-1 at 9); Scurry,
834 F. App’x at 185. Additionally, however, facts provided by Frank Occhipinti, the
Resident Agent in Charge (RAC) of the ATF’s Cincinnati Field Office, show that Sgt. Scalf
was acting under Agent Occhipint i’s direction. Sgt. Scalf was present at the ATF’s pre-
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operation briefing, which occurred in pers on, and Agent Occhipinti specifically
remembered his presence, while not remembering if other CPD officers were there. (Doc.
# 44-1 at 1). Sgt. Scalf “was well-versed in ATF policy,” and played a specific role of
“surveillance” in the operation, during which he sat in an ATF vehicle. (Id. at 3). All these
facts suggest that Sgt. Scalf “provided the government with a produc t that it needed or
performed a job that the government would otherwise have to perform” – surveillance and
specific support during the operation to arrest Mason Meyer. Buljic, 22 F.4th at 739.
Otherwise, Agent Occhipinti wrote in his affidavit about a specific moment in time
during which the operation was “turn[ed] over to CPD” and as a result, that they “switched
radio frequencies from a joint ATF/CPD Tact ical channel to a CPD Primary dispatch
channel, to signify the turnover to CPD.” 8 (Doc. # 44-1 at 3). Sgt. Scalf was on both
channels, later identifying himself as the OIC on the CPD channel, while maintaining his
surveillance role on the ATF/CPD joint channel. ( Id.). While the specific delegation of
authority will be more instructive to the later question regarding the Westfall Act, see infra
part II(D), the Court finds it nonetheless instructive that Occhipinti mentions this transfer
of power from the ATF to the CPD. Power must first exist to be transferred or delegated.
If Occhipinti delegated power from the ATF to the CPD, and Sgt. Scalf was on both sides
of the delegation (signified by the switch in radio frequencies), then the ATF must have
delegated him some power to begin with. In Mays, the Sixth Circuit repeatedly mentions
“delegation of legal authority” as weighing in favor of “acting under” a federal agency. 871

8 Notably, Sgt. Lanter and Ofc. Thomas would have joined the operation after or around the
time that the channel was switched, but Sgt. Scalf remained on both channels. While this fact is
more relevant to the Westfall Act analyses for all three officers, it also illustrates a stark difference
between the federal capacities of Lanter and Thomas versus that of Scalf, and that difference
(among others) is why the Court relies upon Scalf for satisfying § 1442’s jurisdictional
prerequisites.
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F.3d at 444. Here, seeing that the ATF del egated legal authority to Sgt. Scalf, and that
he played an important role in the operation while acting directly under the ATF (and not
under the CPD until the change in command), t he Court concludes that he satisfies the
first element of federal officer removal under 28 U.S.C. § 1442.
3. Under Color of Federal Office
Second, a removing defendant must establish t hat he was acting “in an official or
individual capacity, for or relating to any act under color of such offi ce or on account of
any right, title, or authority claimed under any Act of Congress for the apprehension or
punishment of criminals.” 28 U.S.C. § 1442(a)(1 ). Before 2011, all federal courts used
the test from Jefferson County v. Acker to decide the second pr ong, which required a
“‘causal connection’ between the charged conduct and the asserted official authority.”
527 U.S. 423, 431 (1999) (quoting Willingham, 395 U.S. at 409). However, as previously
stated, § 1442 was amended in 2011 to “broaden the universe of acts that enable federal
officers to remove to federal court.” See supra note 1; see also Ohio State Chiropractic
Ass’n v. Humana Health Plan, Inc., 647 F. App’x 619, 624 (6th Cir. 2016) (acknowledging
the amendment but stopping short of analyzing it). As the Southern District of Ohio noted
in Ohio v. Meade, a circuit split has emerged since 2011, as some courts have interpreted
the amendment as expanding the Jefferson County test, while others adhere to it. 2022
WL 486294, at *4.
The Sixth Circuit has indica ted that it will adhere to the Jefferson County test,
requiring only “a causal connection between the charged conduct and asserted official
[federal] authority.” Abernathy, 779 F. App’x at 307 (quoting Jefferson Cnty., 527 U.S. at
431). In other words, the acts in question must be “under color of federal authority and in
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enforcement of federal law, and [the federal official] must by direct averment exclude the
possibility that it was based on acts or conduct of his not justified by his federal duty.”
Mesa, 489 U.S. at 132 (quoting Soper, 270 U.S. at 33). In Meade, the court concluded
that the defendant was not acting under color of federal office when he deviated from the
specific duties delegated to him by the US Marshals Serv ice, which was the federal
agency in question in that case . 2022 WL 486294, at *4. In Jefferson County , the
Supreme Court focused its inquiry on the word “for,” inquiring as to whether the lawsuit
(in terms of the remedy sought) was “for” actions taken under color of federal office. 527
U.S. at 432-33. In that case, Jefferson County had sued federal judges seeking to collect
on an occupational tax levied by the county, and the judges contested the tax’s validity.
Id. at 429. The Supreme Court reasoned that because the judges held court and earned
income in Jefferson County, which “gave rise to the tax liability” in question, the judges
“ha[d] shown the essential nex us between their activity ‘und er color of office’ and the
county’s demand” which gave rise to the lawsuit. Id. at 433. Thus, a distillation of the
actions giving rise to the lawsuit and the remedies sought are necessary to begin.
In their Complaint, originally filed in Campbell Circuit Court, Plaintiffs write with
respect to Sgt. Scalf that he was the OIC of the pursuit (Doc. # 1-1 ¶ 33), and that he
authorized Sgt. Lanter and Ofc. Thomas to chase Mr. Meyer into Kentucky. ( Id. ¶ 35).
Sgt. Scalf did not directly participate in the pu rsuit, but Plaintiffs all ege that he “failed to
maintain control of the pursuit.” ( Id. ¶¶ 68 and 76). In the counts alleged, Sgt. Scalf is
mentioned in Count One for personal injuries , Count Two for wrongful death, and Count
Three for negligent supervision and training. ( Id. at ¶¶ 138-159). Consequently, the
critical question for this element is whether a causal connection exists between the parts
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of the lawsuit which concern Sgt. Scalf and t he federal duties previously outlined under
the first element. The Court concludes that there is a sufficient nexus, and that the second
element is satisfied, for the foregoing reasons.
From the start, it is appar ent that the second element isn’t as straightforward as
the first. While Plaintiffs did not brief or argue on the second element, the Court surmises
that an argument exists as to whether the lawsuit actually concerns Sgt. Scalf’s federal
activities, which largely took place before pur suit began – during his surveillance role in
the operation, and during his day-to-day work as a deputized ATF agent. See supra part
III(A)(1)(a). The Court will address this argument as part of its independent duty to ensure
that subject-matter jurisdiction is present. Ky. Press Ass’n v. Kentucky , 454 F.3d 505,
508 (6th Cir. 2006) (quoting Mt. Healthy City Sch. Bd. of. Ed. v. Doyle, 429 U.S. 274, 278
(1977)).
While Sgt. Scalf’s federal duties extended we ll before the initiation of the pursuit,
just like the federal judges in Jefferson County, Sgt. Scalf would not have been involved
in the pursuit but for thos e federal duties, which plac ed him on the scene and involved
him in the operation. However, even this fact alone may not be sufficient. Justice Scalia,
concurring in part in Jefferson County, chided the Court for essentially imposing what he
identified as a “but for” test for the “under color” element, writing that “‘but for’ causation .
. . is not enough.” 527 U.S. at 446 (Scalia, J., concurring in part). Some courts have
agreed with Justice Scalia, rejecting that “but for” causation is not sufficient to satisfy the
second element. See, e.g., Georgia v. Westlake , 929 F. Supp. 1516, 1521 (M.D. Ga.
1996). However, in making his argument, Justice Scalia relied upon Maryland v. Soper,
which held that “the statute does not require that the prosec ution must be for the very
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acts which the officer admit s to have been done by him under federal authority. It is
enough that his acts or his pr esence at the place in perfo rmance of his official duty
constitute the basis[.]” 270 U.S. at 33; see also Mesa, 489 U.S. at 131-32 (quoting the
same). Thus, because Sgt. Scalf’s ATF duties predicated his participation in the Meyer
operation, it seems that Soper’s holding is satisfied. Without being present on the scene
as an ATF deputy, it seems highly unlikely that Sgt. Scalf would have been the OIC of the
pursuit – in fact, the CPD Crit ical Incident Review identifies at least one other officer,
Christopher Vogelpohl, who may have filled that role in Scalf’s absence. (Doc. # 40-1 at
4).
Furthermore, even Justice Scal ia wrote “that the officer should have to identify as
the gravamen of the suit an act that was, if not require d by, at least closely connected
with, the performance of his official functions.” Jefferson Cnty., 527 U.S. at 447 (Scalia,
J., concurring in part). The gravamen of the su it with respect to Sgt. Scalf is his alleged
failure to oversee Sgt. Lanter and Ofc. Thomas. Plaintiffs mention that twice in their
Complaint, writing that Sgt. Scalf “failed to maintain control of the pursuit.” (Doc. # 1-1 ¶¶
68 and 76). After identifying that gravamen, Scalia’s partial concurrence would instruct
us to determine if that gravamen is “required by [or] closely connected with” Sgt. Scalf’s
federal duties. Jefferson Cnty., 527 U.S. at 447. As previously stated, Sgt. Scalf’s duties
in the operation were primar ily surveillance-related, but he was nonetheless on scene
with ATF agents and RAC Occhipinti when the pursuit began. (Doc. # 44-1). The ATF
Operational Plan specifically provides that if “Agents/TFOs are unable to pin the vehicle,
CPD uniform officers will attempt to conduct a felony traffic stop with assistance from CPD
K9s per [their Standard Operating Procedures].” (Doc. # 58-1 at 4). While Sgt. Scalf is
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listed by name under “Personnel and Assignm ents,” there are ot herwise two general
listings for “CPD marked units” and “CPD K9.” (Id. at 5). Sgt. Lanter, operating a marked
unit, and Ofc. Thomas, a K9 unit, would fall under these categories, but how did they
specifically become involved in the operation? Sgt. Scalf brought them in.
In the CPD Critical Incident Review, we l earn that Sgt. Scalf, as a member of the
Organized Crime Investigative Squad (“OCIS”), “met to discuss the joint investigation of
Mr. Meyer’s activities,” where “the group devel oped a plan to arrest Mr. Meyer[.]” (Doc.
# 40-1 at 8). The plan t hat the group developed was la ter recorded as the ATF
Operational Plan, which as previously stat ed, accounts for marked CPD units to assist
with traffic stops. ( See Doc. # 58-1). During the week of July 24, 2020, Sgt. Scalf
approached Sgt. Lanter, presumably on behalf of the ATF and the OCIS, and “requested
assistance from the [CPD] Gang Unit with a drug and firearm trafficking investigation
involving Mr. Meyer.” (Doc. # 40-1 at 9). At that point, when Sgt. Scalf reached out to
Sgt. Lanter, on behalf a joint operation between the ATF and CPD, he was acting under
color of his federal office, and a chain of command was established. Thus, the allegations
relating to Sgt. Scalf’s supervision of Sgt. Lanter (and Ofc. Thomas, by extension), which
are the gravamen of the portions of the lawsuit relating to Sgt. Scalf, are at least “closely
connected with,” if not “required by” his federal duties. Jefferson Cnty., 527 U.S. at 447.
Thus, a sufficient causal connection exists between the two, and the second element is
satisfied.
4. Colorable Federal Defense
Lastly, a removing defendant must show that he has raised a colorable federal
defense. Bennett, 607 F.3d at 1088 (citing Jefferson Cnty., 527 U.S. at 431). In this
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context, a federal defense “nee d only be plausible; its ultimate validity is not to be
determined at the time of removal.” City of Cookeville v. Upper Cumberland Elec.
Membership Corp., 484 F.3d 380, 391 (6th Cir. 2007) (quoting Magnin v. Teledyne Cont’l
Motors, 91 F.3d 1424, 1427 (11th Cir. 1996)). For example, in Jefferson County, the
Supreme Court determined the defendant’s def ense to be plausible for purposes of
removal, even though the trial c ourt later rejected it. 527 U.S. at 431. In other words,
“one of the most important reas ons for removal is to have the validity of the defense of
official immunity tried in a f ederal court . . . [and] we therefore do not require the officer
virtually to win his case before he can have it removed.” Id. (internal quotations omitted).
Most of the briefing on the Motion to Remand has centered around this issue:
whether the City Defendants can rely upon an in vocation of Westfall Act immunity as a
colorable federal defense without a Westfall certification by the Attorney General.
Plaintiffs have vehemently argued that an uncertified defendant cannot remove a case
under § 1442, as an uncertified defendant has no colorable federal defense. However,
unfortunately for Plaintiffs, after reviewing the arguments and the law, the Court has
concluded that the Cit y Defendants can establish a colo rable federal defense, and that
the third element is thus satisfied.
But before moving into the standalone me rits of the City De fendants’ colorable
federal defense, the Court first points out the differences between removal mechanisms
in the Westfall Act and in § 1442, and how cases interpreting Westfall are either
inapplicable or distinguishable from the fact s at hand. During oral argument and in
briefing on the Motion to Remand, Plaintiffs relied heavily on Osborn v. Haley, 549 U.S.
225 (2007), which held that a Westfall certification by the Attorney General is conclusive
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for purposes of remand, even if the district court later determines that the Attorney
General was incorrect and then decertifies the case. Indeed, Osborn does state that the
Westfall Act “gives the named defendant no right to remove an uncertified case” (Doc. #
8 at 3) (quoting 549 U.S. at 252 n.17), but that statement does not account for § 1442.
Under the Westfall Act, the Attorney General c an opt to remove a case to federal court
after certification, but the Act provides no such right to a defendant, as after certification,
the United States is substituted in the case for the defendant. See 28 U.S.C. § 2679.
Conversely, § 1442 provides removal ri ghts to defendants, but makes no mention
of the Attorney General. Thus, the sentence in Osborn cited by Plaintiffs in their Motion
to Remand and brought up again by Plaintiffs ’ counsel during oral argument isn’t
instructive to the § 1442 anal ysis. In other words, Osborn does not apply to removals
under § 1442, and in no way discusses whether raising Westfall pre-certification
constitutes a colorable federal defense, other than the footnote cited by Plaintiffs, which
also reads “but see 28 U.S.C. § 1442.” 549 U.S. at 252 n.17. Rule 1.2(c) of the Bluebook
states that a “but see” citation indicates authority that “clearly supports a position contrary
to the main proposition.” T he Bluebook: A Uniform System of Citation R. 1.2(c), at 59
(Columbia L. Rev. Ass’n et al. eds., 20t h ed. 2015). If § 1442 stands contrary to the
proposition that a defendant cannot remove an uncertified case under Westfall, it seems
that the Osborn footnote may actually suggest that a defendant can remove an uncertified
case under § 1442. For this reason, and in addition to the distinctions pointed out above,
Osborn is not helpful to Plaintiffs’ argument at this stage.
Otherwise, Plaintiffs rely upon two out-of- circuit district cour t cases, both citing
Osborn, to support their proposition, but neither is assistive. In Dold-Apger v. Friends of
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the San Pedro River, Inc., No. 11-CV-397, 2012 WL 2952413 (D. Ariz. July 19, 2012), the
District of Arizona approv ed a Magistrate Judge’s Re port and Recommendation which
recommended remand of an action removed under § 1442. However, in establishing their
federal defense, the defendants in Dold-Apger primarily relied upon an agreement they
entered into with the Bureau of Land Management, and the argument regarding Westfall
certification was actually made by the United States, and not the defendants. See id. at
ECF Nos. 35, 46. The specific issue of whether an uncertified case can be removed
under § 1442 wasn’t addressed at all in t he Report and Recommendation, which the
district court adopted. See Dold-Apger v. Friends of the San Pedro River, Inc. , No. 11-
CV-397, 2011 WL 8317910 (D. Ariz. Oct. 14, 2011) report and recommendation adopted
in full by Dold-Apger , 2012 WL 2952413. Otherwise, the Dold-Apger court relies upon
the quote from Osborn, previously distinguished by this Court, see supra part II(A)(4), and
cites a district court case from Kansas, also relied upon by Plaintiffs. In short, it appears
that the Dold-Apger court mentioned the certification i ssue in response to the United
States, a nonparty, beyond the c onfines of the R&R which it was adopting, and the
paragraph is hardly central to the broader holding of the case. For that reason, the Court
is not convinced that the case is helpful to Plaintiffs.
Both Plaintiffs and the Dold-Apger court also cite to Vandeventer v. Guimond, 494
F. Supp. 2d 1255 (Dist. Kan. 2007). In Vandeventer, the parents of two children killed in
a plane crash sued county airport inspectors w ho were allegedly negligent in inspecting
the airplane involved in the crash. Id. at 1256. From the outse t, the federal connection
is clearly more attenuated than the facts in the instant case, and after finding that the
defendants were not “acting und er” the FAA as they argued, the court considered the
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colorable defense element arguendo. Id. at 1267-68. In rejecting the third element, the
Vandeventer court first noted that it had already determined that the defendants were not
acting under the FAA, and sec ond, that “the Westfall Act does not provide either an
independent basis for removal, nor a colorable federal defense to liability[.]” Id. at 1267.
This Court agrees with the Vandeventer court that the Westfall Act does not provide an
independent basis for removal (by defendant s), as previously discussed, but the
Vandeventer court’s reasoning to support the proposit ion that Westfall cannot provide a
colorable federal defense is flawed.
First, the Vandeventer court cited the Westfall Ac t, and wrote that “[a]bsent a
certification . . . § 2679(d)(3) ‘directs that the case must be remanded to the state court in
which the action commenced.’” 494 F. Supp. 2d at 1267 (quoting Osborn, 549 U.S. at
242-43). However, the Vandeventer court’s reading of the Westfall Act is misguided, as
the last two sentences of subsection (d)(3) of the Westfall Act begin with these words: “In
the event the petition is filed in a civil action or pr oceeding pending in a State court, the
action or proceeding may be removed without bond by the Attorney General . . . .” 28
U.S.C. § 2679(d)(3) (emphasis added). The next sentence reads: “If, in considering the
petition, the district court determines that the employee was not acting within the scope
of his office or employment, the action or proceeding shall be remanded to the State
court.” Id. In other words, that part of the stat ute, relied upon by Vandeventer, is
applicable in the event that (1) th e petition for certification is f iled in state court, (2) that
the Attorney General removes the case, and (3 ) that the federal cour t later declines to
issue certification. In Vandeventer, no petition had been filed at all, and in the instant
case, the petition for the Westfall certificati on was filed in federal court, the case was
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removed not by the Attorney General, but by the defendants, and no decision on the
petition had been made at the ti me of filing of the Notice of Remand. Thus, the
Vandeventer court was incorrect in reading the We stfall Act to require remand without
certification upon removal under § 1442. As such, subsection (d)(3) of the Westfall Act
and the Vandeventer court’s reading of it are not assist ive to Plaintiffs here. Beyond
Vandeventer and Dold-Apger, the Court has found no case to suggest that an uncertified
Westfall petition for immunity facially disq ualifies § 1442 removal. Thus, the Court will
evaluate Defendants’ argument in favor of the third prong on its own merit.
As previously stated, a colorable f ederal defense “need only be plausible; its
ultimate validity is not to be deter mined at the time of removal.” City of Cookeville, 484
F.3d at 391 (quoting Magnin, 91 F.3d at 1427). Furthermore, defenses which implicate
immunity (but which aren’t yet conclusively established) are frequently considered in the
context of § 1442, as the stat ute “is [generally] m eant to ‘ensure a federal forum in any
case where a federal official is entitled to raise a defense arising out of his official duties.’”
Winters v. Diamond Shamrock Chem. Co. , 149 F.3d 387, 400 (5th Cir. 1998) (quoting
Arizona v. Manypenny , 451 U.S. 232, 241 (1981)). In ot her words, “one of the most
important reasons for removal is to have the validity of the defense of official immunity
tried in a federal court . . . [and] [w]e therefore do not require the officer virtually to win his
case before he can have it removed.” Jefferson Cnty. , 527 U.S. at 431 (internal
quotations omitted). Generally, the third prong “erects a low bar and merely requires that
the defendant’s assertion is both ‘defens ive’ and ‘based in federal law.’” In re Nat’l
Prescription Opiate Litig., 327 F. Supp. 3d at 1077 (quoting Mesa, 489 U.S. at 129-30).
Because the right to have a federal defense liti gated in federal court is so central to §
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1442, the consideration “is not to be frustrated by a grudgingly narrow interpretation of
the removal statute.” Winters, 149 F.3d at 398.
Considering the “low bar” applicable to the third prong, it seems apparent to the
Court that Westfall immunity, even uncertified, is a sufficiently colorable federal defense,
especially considering the important federal policy questions implicated. In Mesa, the
Supreme Court noted that the defendants were being prosecuted for state crimes under
state law even though they were postal work ers who were on duty when the criminal
incident occurred. 489 U.S. at 123. In determining that those defendants could not aver
a colorable federal defense, the Court reasoned through pre-1948 cases that established
the third prong’s roots in a need to have feder al issues decided in federal court. Id. at
127-29. One of those cases cited is Mayor v. Cooper , which upheld a Civil War-era
removal statute with the Court holding that “[n]or is it any objection that questions are
involved which are not all of a Federal character. [But] [i]f one of the latter exist, if there
be a single such ingredient in the mass, it is sufficient.” 73 U.S. 247, 252 (1867). Westfall
Act certification is certainly of a federal character, as even Osborn recognizes that
Westfall immunity raises a “significant feder al question,” writing that if raised in a
complaint, the issue of Westfall certification itself would bestow Article III jurisdiction onto
the federal court. See 549 U.S. at 244-45 (citing Verlinden, 461 U.S. at 493).
Furthermore, finding uncertified Westfall ques tions to not be sufficiently colorable
would fall beneath the spirit of § 1442, as a Westfall certification equates to determining
immunity for individual defenda nts. The Westfall Act is t he exclusive remedy for tort
actions against the United States, and it is the exclusive method by which an individual
defendant can obtain federal immunity through the United States. See 28 U.S.C. § 2679.
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Requiring an individual defendant to obtain certification essentially amounts to requiring
that defendant to win his immuni ty argument on the merits, an d the law is clear that it
“do[es] not require the officer virtually to win his case before he can have it removed.”
Jefferson Cnty., 527 U.S. at 431. For these r easons, and because Westfall’s removal
rights and § 1442’s removal rights are separate from one another, the Court finds that the
City Defendants’ filing of a Westfall petition in this Court is a sufficiently colorable federal
defense for removal purposes. Sgt. Scalf accordingly satisfies the third element.
Because Sgt. Scalf has satisfied all three elements of § 1442, and because only
one defendant must do so before removing the entire action, the Court finds that removal
was proper with respect to all defendants.9 Plaintiffs’ Motion to Remand (Doc. # 8) is thus
denied.
B. Motion to Stay (Doc. # 11)
The City Defendants’ Motion to Stay is denied as moot, as pleadings in this matter
have continued beyond the filing of the Motion.
C. Motion for Leave to File a Sur-Reply (Doc. # 50)
The Local Rules of the United States Dis trict Court for the Eastern District of
Kentucky provide that a motion is deemed finally submitted to the C ourt after a reply is
filed. See Joint Ky. Civ. Prac. R. 7.1. Otherwise, the filing of a sur-reply is not expressly
permitted by the Federal Ru les, but they “may be allowed in the appropriate
circumstances, especially ‘[w]hen new subm issions and/or arguments are included in a
reply brief, and a nonmovant’s ability to respond to the new evidence has been vitiated.’”
Key v. Shelby Cnty., 551 F. App’x 262, 265 (6th Cir. 2014) (quoting Seay v. Tenn. Valley

9 For the same reason, the Court need not address the three elements of § 1442 with
respect to Defendants Lanter and Thomas.
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Auth., 339 F.3d 454, 481 (6th Cir. 2003)). Sur-replies are generally “highly disfavored, as
they usually are a strategic effort by the nonmoving part y to have the last word on a
matter.” Loomis v. Unum Grp. Corp. , 539 F. Supp. 3d 898, 905 (E.D. Tenn. 2021)
(internal quotations omitted). Lastly, sur-replies are more appropriate where a reply brief
raises new evidence that the court relies upon in deciding the issue, versus when a reply
brief merely raises new argumen ts based upon existing facts. See Mirando v. Dep’t of
Treasury, 766 F.3d 540, 549 (6th Cir. 2014) (distinguishing Seay on these grounds and
upholding a district court’s denial of leave to file a sur-reply).
In this case, Plaintiffs Motion for Leave to File a Sur-Reply (Doc. # 50) stems from
briefing on the City Defendants’ Petition for Westfa ll Certification. (Doc. # 34). In their
Motion, Plaintiffs argue that the City Defendants “raised new arguments and made
misstatements in their reply brief, necessitati ng a sur-reply.” (Doc . # 50 at 2). More
specifically, Plaintiffs asse rt that the City De fendants raised a new argument regarding
assistance to federal agencies, and that they misstated a position that Plaintiffs had
conceded that they were acting within the scope of the ATF Task Force. ( Id.). Plaintiffs
additionally posit that the Cit y Defendants misrepresented thei r own failure to meet the
burden of proof. (Doc. # 50-1 at 2). None of Plaintiffs ’ arguments are based upon the
City Defendants’ raising of new evidence.
The Court sees that the City Defendants did not mention assistance to federal
agencies in their initial Petition. (Doc. # 34). Even though the argument was not assistive
to the Defendants, see infra part II(D)(3), because the Court did address it in this Order,
the Court will grant Plaintiffs’ Motion (Doc. # 50) and consider their sur-reply.

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D. Petition for Westfall Certification (Doc. # 34)
28 U.S.C. § 2679, commonly known as t he Westfall Act, provides an exclusive
remedy for any common law tort action brought against “any employee of the Government
while acting within the scope of his office or employment.” 28 U.S. C. § 2679(a)-(b)(1).
The statute’s “exclusive remedy” is the Fede ral Tort Claims Act ( FTCA), and it provides
that upon a certification by the Department of Justice 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 . . . [the action] shall be dee med an action against the United States . . .
and the United States shall be substituted as the party defendant.” Id. at (d)(1). In other
words, “federal employees have absolute immunity from personal liability for common law
torts committed within the scope of their employment.” 1 Jayson and Longstreth,
Handling Federal Tort Claims § 4.11 (2022).
However, when the Department of Justice refuses to issue a Westfall certification,
a defendant may petition the court to issue the certification. Id. at (d)(3). The Westfall
Act also contains a removal provision, separate and distinct from the previously analyzed
removal statute at 18 U.S.C. § 1442, supra part III(a), which allows the United States to
remove an action to federal court. See Osborn v. Haley, 549 U.S. 225, 249, 260 (2007)
(discussing differences between the Westfall Ac t’s removal rights granted to the United
States and § 1442’s removal applying to defendants); see also id. at 252, n.17 (pointing
out inapplicability of each statute to the other).
In this case, the Department of Justice, by the United States Attorney for the
Eastern District of Kentucky, has refused to certify the City Defendants under the Westfall
Act. (Doc. # 30). That refusa l led the City Defendants to file a Petition for this Court to
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review the decision (Doc. # 34), and that Peti tion has been fully briefed by all parties,
including the United States, which opposes certification. (Docs. # 40, 44, and 49). Thus,
the Petition is ripe for the Court’s review. Upon reviewing the filings and considering the
arguments made orally before the Court, the C ourt has determined that the Petition will
be denied with respect to all Defendants, and the United States’ decision is affirmed.
1. Standard of Review
To prevail on court review of a Westfall certification, a defendant must establish
that he was a federal employee acting wit hin the scope of his employment by a
preponderance of the evidence. Osborn v. Haley , No. 5:03-CV-192-TBR, 2011 WL
1832812, at *4 (W.D. Ky. May 13, 2011) (citing Borneman v. United States, 213 F.3d 819,
827 (4th Cir. 2000) (on remand from Osborn, 549 U.S. at 225); see also S.J. & W. Ranch,
Inc. v. Lehtinen, 913 F.2d 1538, 1543 (11th Cir. 1990) (referring to the burden of proof as
“the burden of altering the status quo”).
Westfall certification is a legal question, but the district court should still “identify
and resolve disputed issues of fact necessary to its decision before entering the order.”
Singleton v. United States, 277 F.3d 864, 870 (6th Cir. 2002). If necessary, the court may
hold an evidentiary hearing to resolve any issues of fact. Dolan, 514 F.3d at 593 (citing
Singleton, 277 F.3d at 870-71). However, in this case, no issues of fact exist at this stage.
The Court did not conduct an evidentiary heari ng, but it held an Oral Argument, and the
Court has considered the evidence presented by all parties, including affidavits (e.g., Doc.
# 44-1), the ATF Operational Plan (Doc. # 58-1), and the CPD Critical Incident Review
(Doc. # 40-1). While Plaintiffs have moved in the alternative for a delay in the Westfall
decision to allow for additional discovery (Doc. # 40 at 23), the Court agrees with
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Defendants (Doc. # 49 at 14) that it has sufficient evidence to make the determination at
this time, as depositions would not provide any more information th an what is currently
available in the record. Lastly, no case la w suggests that the Westfall determination for
one defendant applies to all defendants, and so the Court will analyze the law with respect
to each individual defendant.
As previously stated, the Westfall Act provides for substitution when (1) the
defendant is an employee of the federal government, and (2) when he was acting within
the scope of his employment at the time of t he incident in question. 28 U.S.C. § 2679.
While the question of scope is most often the critical question in Westfall certification
cases, the first question as to employment st atus is also necessary when status is
potentially at issue, as the Westfall Act is part of the FTCA, and the FTCA only applies to
government employees. Id. at (b)(1); 28 U.S.C. § 2671 (defining “employee of the
government”). Nonethel ess, however, the status inqui ry and the scope inquiry remain
separate. See U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC , 899 F.3d 236,
249 (4th Cir. 2018).
2. Employee Status
28 U.S.C. § 2671, the FTCA’s def initions statute, provi des that an “employee of
the government” includes “officers or employees of any federal agency . . . and persons
acting on behalf of a federal agency in an official capacity, temporarily or permanently in
the service of the United St ates, whether with or without compensation[.]” Otherwise,
another federal statute, 5 U.S.C § 3374, provides that a “state or local government
employee on detail to a federal agency . . . is deemed an employee of the agency for the
purpose of . . . the Federal Tort Claims Act[. ]” Thus, an indivi dual defendant can be
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deemed an employee of t he federal government for FTCA pur poses by either statute.
After reviewing the statutes, applicable case law, and the evidence, the Court concludes
that Sgt. Scalf is a federal employee under 5 U.S.C § 3374, while Sgt. Lanter and Ofc.
Thomas are not federal employees and are thus ineligible for the FTCA’s protections.
a. As a deputized ATF Task Force Officer, Sgt. Scalf is
covered by 5 U.S.C § 3374 and is thus an employee of the
federal government for FTCA purposes.

As previously stated, 5 U.S.C § 3374 provides that a local government employee
“on detail” to a federal agency is considered to be a federal employee for FTCA purposes
“during the period of assignment .” 5 U.S.C. § 3371, the def initions statute for that
subchapter, does not provide a definition of “detail” or “assignment,” but case law makes
clear that when applied to la w enforcement, § 3374 refers to cross-deputized state and
local officers. Thus, Sgt. Scalf is cover ed by the statute, and because he remained a
deputized ATF Task Force officer during the time of the incident in question, he is a
federal employee for FTCA purposes.
First, the Sixth Circuit has previously held that lo cal police officers who are
deputized federal task force members are “feder al employee[s] for purposes of the
FTCA.” Petty v. United States , 80 F. App’x 986, 989 (6th Cir. 2003) (citing 5 U.S.C. §
3374). The Sixth Circuit’s holding tracks with the statute’s purpose, as it was enacted “to
facilitate the temporary assignment of per sonnel between the Federal Government and
state and local governments[.]” Intergovernm ental Personnel Act of 1970, Pub. L. 91-
648, 84 Stat. 1909, 1909 (1971). Otherwise, § 3374 is cited in the United States Code
by 21 U.S.C. § 878, which provides for the deputization of local law enforcement officers
by the Drug Enforcement Administration and states that deputized D EA officers are not
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federal employees, but otherwise are subject to § 3374(c), which deems them employees
for FTCA purposes.
Because of § 878’s referencing of § 3374 , courts within the Sixth Circuit and
elsewhere have equated § 3374’s usage of “assignm ent” and “on detail” to deputization
in a law enforcement context, including the DEA and other federal agencies. E.g., United
States v. Goree, 47 F. App’x 706, 710-11 (6th Cir. 2002) (citing § 3374 and § 878 and
finding an on-duty, deputized DEA task force officer to be “on detail” within § 3374); Petty,
80 F. App’x at 989 (referring to a deputized local police officer as a federal employee “by
virtue of his assignment to an FBI-operated task force”); Robertson v. Lucas, 753 F.3d
606, 614 n.3 (6th Cir. 2014) (citing § 878 and § 3374 in a Westfall Act context, noting that
two Ohio officers were federal empl oyees by nature of their deputization).
10 Thus, by
nature of Sgt. Scalf’s deputization by the ATF, he is considered to be a federal employee
for FTCA purposes. Additionally, Sgt. Scalf’s ATF deputization continued through August
7, 2020, and so he was “on detail” during the in cident which gave rise to this lawsuit,
bringing him fully within the confines of § 3374.
Conversely, however, the Court was unab le to find any case demonstrating a
scenario in which a non-deputized local officer was considered to be a federal employee
under § 3374, meaning that Ofc. Thomas is in no way affected by the statute. While Sgt.

10 See also Ellis v. Ficano, 73 F.3d 361 (6th Cir. 1995) (unreported table case) (upholding a
district court’s determination that deputized DEA task force members were federal employees
under the FTCA); Pettiford v. City of Greensboro, 556 F. Supp. 2d 512, 534-35 (M.D.N.C. 2008)
(citing § 3374 as “set[ting] forth procedures by which local law enforcement officers may be
deputized as federal agents” and finding cross-deputiz ed local officers to be federal employees
(collecting cases)); Aikman v. Cnty. of Westchester , 691 F. Supp. 2d 496, 498 (S.D.N.Y. 2010)
(citing § 3374 and § 878, holding that “state and local law enforcement officers designated as
federal task force members are treated as federal employees for the purposes of any federal tort
liability statute.”).
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Lanter was a deputized US Marshal, his specia l deputization was lim ited to Operation
Triple Beam, a task force put together by the Southern Ohio Fugitive Apprehension Strike
Team. (Doc. # 1-3). ATF RAC Occhipinti wrote in his Affidavit that Operation Triple Beam
had no connection to the operation to appr ehend Mr. Meyer (Doc. # 44-1), and the ATF
Operational Plan makes no menti on of Operation Triple Beam or of the US Marshals.
(Doc. # 58-1). The deputization documents provided by Sgt. Lanter make no mention of
the ATF or of the Northern K entucky Drug Strike Force, and furthermore, Sgt. Lanter’s
special deputization r eads that he is “not authorized to participate in federal drug
investigations unless deputized by DEA or FBI.” (Doc. # 1-3). Wh ile the operation to
apprehend Mr. Meyer included drug and gun trafficking (Doc. # 58-1 at 2), it seems highly
unlikely, if not impossible, that Sgt. Lanter’s deputation would be invoked by the Northern
Kentucky Drug Strike Force based on the clear limitation included in Sgt. Lanter’s special
deputization documents. For these reasons , even though Sgt. Lant er was a deputized
federal officer, he was not “on detail” durin g the incident in question – meaning that §
3374 is inapplicable to him.
b. Sgt. Lanter and Ofc. Thom as were not “acting on behalf”
of the ATF during the operation to apprehend Mr. Meyer.

However, even without § 3374, Sgt. Lanter and Ofc. Thom as can still establish
federal employee status for FTCA purposes by showing that they were “acting on behalf”
of the ATF, under 28 U.S.C § 2671. The City Defendants have asserted that by nature
of their assistance to the ATF, Sgt. Lanter and Ofc. Thomas were acting on behalf of the
ATF. (Doc. # 49 at 6). Unfortunately, t heir argument is unavailing, and Sgt. Lanter and
Ofc. Thomas are not federal employees.
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28 U.S.C. § 2671 provides t hat a federal employee incl udes “persons acting on
behalf of a federal agency in an official capacity, temporarily or permanently in the service
of the United States, w hether with or without compensation [.]” In short, this provision
allows “even private individuals who are not on the Government’s payroll [to] be
considered employees for purposes of est ablishing the Government’s liability under the
statute.” Patterson & Wilder Constr. Co. v. United States, 226 F.3d 1269, 1274 (11th Cir.
2000). In Logue v. United States, the Supreme Court comm ented that “the language is
designed to cover special situations such as the ‘dollar-a-year’ man who is in direct
service of the Government without pay, or an employee fo another employer who is
placed under direct supervision of a feder al agency pursuant to contract or another
arrangement.” 412 U.S. 521, 531 (1973). “Direct supervision” is the key phrase in that
quote; otherwise in Logue, the Supreme Court applied traditi onal principles of principal-
agent law to the question.11 412 U.S. at 527-28. In other words, while many factors play
into the determination, “the crit ical factor in making this det ermination is the authority of
the principal to control the detailed physical performance of the contractor.” Id.; see also
Fries v. United States, 170 F.2d 726, 731-32 (6th Cir. 1948) (deciding an FTCA employee
status question based on whether a federal or state entity was in physical control of an
employee during an incident), cert. denied, 336 U.S. 954 (1949).

11 While the Logue Court dealt specifically with whether a government contractor is
considered to be a government employee under the FTCA, the Court’s analysis also applies to
the “acting on behalf of” language. See 412 U.S. at 531 (“But we are not persuaded that
employees of a contractor with the Government, whose physical performance is not subject to
governmental supervision, are to be treated as ‘acting on behalf of’ a federal agency simply
because they are performing tasks that would otherwise be performed by salaried employees of
the Government.”).
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Here, neither Sgt. Lanter nor Ofc. Thomas were placed under the direct
supervision of the ATF or of the federal gov ernment. Neither officer has provided any
evidence that they were supervised or direct ed by the federal government, especially to
the degree that it could “control t he[ir] detailed physical performance.” Logue, 412 U.S.
at 527-28. While Sgt. Lanter has written that he “assisted with the federal investigation
of Mason Meyer” (Doc. # 1-3) , and Ofc. Thomas has writt en that he was “following the
orders of Deputized Officers of the United States and supporting the federal investigation
of Meyer” (Doc. # 1-4), neither averment is sufficient. Assisting with an investigation does
nothing more than acknowledge that one is “performing ta sks that would otherwise be
performed by salaried employ ees of the federal governm ent,” which is an argument
expressly rejected by Logue. 412 U.S. at 531-32. Furthermore, RAC Occhipinti wrote in
his Affidavit that he did not provide any direction or orders to Sgt. Lanter and Ofc. Thomas,
further illustrating a lack of federal control over both. (Doc. # 44-1 at 4).
Ofc. Thomas’ following orders is likewise un helpful to his argument, as the chain
of command that led to him being involv ed in the pursuit began and ended with the
Cincinnati Police Department. Thomas was in a CPD uniform at a CPD training facility
on August 7, 2020, when Sgt. Lanter requested his assistance via a CPD radio channel.
(Doc. # 40-1 at 6). At that time, it is unclear whether th e ATF was even still involved in
the operation at all, and Ofc. Thomas may not have even known that he was assisting in
an ATF joint operation. Additionally, as previously stated, Sgt. Lanter was not “on detail”
within his special deput ization to the US Marshals, as the ATF operation exceeded
Lanter’s deputization powers, and so it is disingenuous for Ofc. Thomas to aver that he
was “following orders of Deputized Officers of the United States” when he answered Sgt.
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Lanter’s call. (Doc. # 1-4). To equate every request of a deputized officer as being within
the scope of their deputization would be the same as a federal judge’s every word being
a court order – in other words, context matters, and the context here does not show that
Ofc. Thomas was under direction of the federal government.
Because Sgt. Lanter and Ofc. Thomas cannot demonstrate by a preponderance
of the evidence that they we re federal employees within the FTCA, the Westfall Petition
is denied with respect to each of t hem without further analysis. However, because Sgt.
Scalf satisfied the first prong, the Court will continue to analyze the second prong with
respect to Sgt. Scalf.
3. Scope of Employment
The second prong of the Westfall certif ication analysis requires the Court to
determine whether each Defendant was “act ing within the scope of his office or
employment” when the allegedly tortious conduct occurred. 28 U.S.C § 2679(b)(1).
Unlike the first prong, when evaluating t he scope of employment, a court applies the
substantive laws of the forum state. Dolan, 514 F.3d at 593. The evidentiary standard
remains a preponderance of the evidence. Osborn, 2011 WL 1832812, at *4.
Kentucky courts have adopted the Restatement (Third) of Agency’s approach to
scope of employment questions. Papa John’s Int’l, Inc. v. McCoy , 244 S.W.3d 44, 52
(Ky. 2008); see also Hensley v. Traxx Mgmt. Co. , 622 S.W.3d 652, 657 (Ky. Ct. App.
2020). The Restatement (Third) test is as follows:
(1) An employer is subject to vicarious liability for a tort committed by its
employee acting within the scope of employment.
(2) An employee acts within the sc ope of employment when performing
work assigned by the employer or engaging in a course of conduct
subject to the employer’s control. An employee’s act is not within the
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scope of employment when it occu rs within an independent course
of conduct not intended by the employee to serve any purpose of the
employer.
(3) For purposes of this section,
(a) An employee is an agent whose principal controls or has the
right to control the manner and means of the agent’s
performance of work, and
(b) The fact that work is perfo rmed gratuitously does not relieve
a principal of liability.

Papa John’s , 244 S.W.3d at 657 (quoting Restat ement (Third) of Agency § 7.07,
Employee Acting Within Scope of Employment (2006)). Other Kentucky courts have
phrased the test differently, writing that the inquiry is “whether the master had the right or
power to control the servant in the performance of the act which caused the injury.”
Louisville/Jefferson Cnty. Metro Gov’t v. Braden, 519 S.W.3d 386, 393 (Ky. Ct. App. 2017)
(quoting Horne v. Hall, 246 S.W.2d 441, 443 (Ky. 1951)). Nonetheless, it seems that the
critical questions are (1) whether the employee was perfo rming work assigned by the
employer or engaging in a course of conduct subject to the employer’s control, and (2)
whether the principal controlled or had the right to contro l the manner and means of the
agent’s performance of work. Papa John’s , 244 S.W.3d at 657 (internal quotations
omitted). After considering these rules and the arguments made by the parties, the Court
concludes that Sgt. Scalf was not operating within the scope of any employment by the
federal government. 12

12 Even assuming arguendo that Sgt. Lanter and Ofc. Thomas satisfied the first prong, they
would fail under the second prong for the same reasons as Sgt. Scalf.
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1. Sgt. Scalf was not acting within the scope of his office or
employment with the federal government when the
pursuit and the accident occurred.

Before moving into the merits of Sgt. Scalf’s scope of employ ment, the Court is
compelled to briefly discuss the differences between the question here and the question
previously discussed regarding removal and juri sdiction. The Court recognizes that it
may seem counterintuitive for Sgt. Scalf to be a federal officer for purposes of removal,
but not for Westfall and FTCA purposes. Howe ver, the two inquiries are completely
different from one another. The removal statut e exists to provide a proper forum for
adjudication of applicable cases, and the inquiry focuses on the defendant’s relationship
with the federal government. The Westfall inquiry focuses on the allegedly tortious act’s
relationship with the federal gov ernment – at the time of t he incident out of which the
claim arose, as the Westfall Act reads: “arising or resulting from the negligent or wrongful
act or omission of any em ployee of the Government while acting within the scope of his
office or employment[.]” 28 U.S.C § 2679(b)(1) (emphasis added). In contrast, the federal
officer removal statute is significantly broad er, as it only requires a “causal connection
between the charged conduct and the asserted official authority,” Abernathy, 779 F. App’x
at 307 (internal quotations omitted), and courts are instructed to construe the statute
liberally. Watson, 551 U.S. at 147. No such instru ctions are given with respect to a
Westfall certification. The scope of employment test requires a closer connection than a
mere causal connection, and because the te sts are different, t he outcomes can (and
have) also differed.
The claims against Sgt. Scalf in this lawsuit arise from his alleged failure to
“maintain control of the pursuit” (Doc. # 1-1¶¶ 68 and 76), as he served as the OIC during
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the pursuit. ( Id. ¶ 33). It is unclear where Sgt. Sc alf was physically located during the
pursuit, as the Critical Incident Review says that he arrived on the crash scene only after
the accident occurred. (Doc. # 40-1 at 9). However, we know that Sgt. Scalf was on radio
with Sgt. Lanter, as he authorized Sgt. Lanter to continue the pursuit into Kentucky. (Id.).
Sgt. Scalf could argue that during this time, he was performing work assigned by the
federal government, as the ATF Operational Plan provided that “CPD uniform officers will
attempt to conduct a felony traffic stop” (Doc. # 58-1), but such an argument would be
unavailing, as there is no ev idence to suggest that during the pursuit, the ATF or the
federal government had any control over Sgt. Scalf.
Kentucky law is clear that for purposes of scope of employment, an “employee is
an agent whose principal controls or has the right to control the manner and means of the
agent’s performance of work .” Papa John’s , 244 S.W.3d at 657 (internal quotations
omitted) (emphasis added). All the facts in this case unequivocally point to authority
resting squarely in the hands of the Cincinnati Police Department during the pursuit and
subsequent accident.
First, the ATF Operational Plan itself is cl ear that “CPD uniform officers will attempt
to conduct a felony traffic stop with assi stance from CPD K9s per [their Standard
Operating Procedures].” (Doc. # 58-1 at 4). In Braden, the Kentucky Court of Appeals
recognized that the Louisville Metro Police Department’s standard operating procedures
would constitute “power to control the servant in the performance of the act which caused
the injury[.]” 519 S.W.3d at 395 (quoting Horne, 246 S.W.2d at 443.
13 Additionally, the

13 However, the Braden court also noted that such an assumption made arguendo would not
override another Kentucky statute regarding indemnification, which is not at issue in this case, so
the court’s arguendo assumption remains instructive. 519 S.W.3d at 395.
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Operational Plan notes that “Any vehicle pursuits will be initiated and monitored by CPD
pursuit policy. ATF will not initiate any pursuits[,]” and that the “ATF will assist [with traffic
stops] as needed.” (Doc. # 58-1 at 4). In part icular, the Court finds the last sentence to
be extremely relevant, as if the ATF was assisting the CPD with traffic stops, the language
would imply that the CPD, not the ATF would have overs een traffic stops. The Critical
Incident Review supports this conclusion, as it notes that RAC Occhipinti confirmed Mr.
Meyer’s location via cell phone tracking while Sgt. Scalf monitored the pursuit, and RAC
Occhipinti broadcast the confirmation on a CPD- only radio channel. (Doc. # 44-1 at 3).
In other words, RAC Occhipinti, on behalf of the ATF, assisted t he CPD in effectuating
the traffic stop – and not the ot her way around. (Doc. # 40-1 at 9). RAC Occhipinti’s
affidavit also notes that when the pursu it began, the team “switched radio frequencies
from a joint ATF/CPD tactical channel to a CPD primary dis patch channel, to signify the
turnover to CPD.” (Doc. 44-1 at 3). While the changing of a radio station isn’t entirely
dispositive, it is instructive, as if the ATF were controlli ng the pursuit, they would need a
communication channel to do so . With the radio channel being changed to one without
ATF presence, it seems clear that CPD, not the ATF was in charge after that point.
However, most fatal to Sgt. Scalf’s scope of employment determination is that he
declared himself as Officer-in-Charge (OIC ) after the pursuit began, notifying the CPD
command center that he was doing so, and approving Sgt. Lanter ’s request to continue
the chase into Kentucky. (Doc. # 40-1 at 9). After the accident occurred, no formal
investigation was conducted by the ATF. (Doc. # 34-3). The CPD conducted a lengthy
investigation, compiling its Critical Incident Review, and in that document, only CPD
policies are referenced, which accords with the ATF Operational Pl an’s provision that
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CPD policy would govern the pursuit. (Doc. # 58- 1 at 4). All in all, the Court sees no
evidence – let alone a preponderance of the evidence – to suggest that any entity besides
the Cincinnati Police Department retained control over Sgt. Scalf after the pursuit began,
and especially not to the level of “the right to control the manner and means of the agent’s
performance of work” required by Kentucky law. Papa John’s, 244 S.W.3d at 657 (internal
quotations omitted).
None of the City Defendants satisfy both required prongs of the test under the
Westfall Act, 28 U.S.C § 2679, and their Petition for Westfall Act Certification (Doc. # 34)
is denied.
E. Motion to Dismiss (Doc. # 10)
The City Defendants have filed a Motion to Dismiss (Doc. # 10), which alleges that
Plaintiffs have not successfully stated a claim under the FTCA, and that the Plaintiffs have
failed to name the United States as a party. However, the Court has determined that the
FTCA does not apply to this case, supra part III(D), and so the arguments contained in
the City Defendants’ Motion to Dismiss ha ve been mooted. The Motion is thus denied
as moot.
IV. CONCLUSION
As the Court stated at t he Oral Argument on these Motions, in any case,
jurisdictional questions are prerequisite to every other question presented. While the
case’s posture after the filing of this Order is not likely to be the outcome any of the parties
expected, the Court is confident that it is the correct ou tcome. Jurisdiction has been
conferred on to the federal court by 28 U.S.C. § 1442, which also allowed the City
Defendants to remove the action. After establishing subject-matter jurisdiction, the Court
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determined that the United Stat es was correct in declining to issue a Westfall Act
certification to the City Defendants. Thus, t he case will remain in this Court, with each
City Defendant proceeding as an individual, and the United States is dismissed from the
action.
Accordingly, for the reasons stated herein,
IT IS ORDERED that:
(1) Plaintiffs’ Motion to Remand (Doc. # 8) is DENIED;
(2) Defendants’ Motion to Dismiss (Doc. # 10) is DENIED AS MOOT;
(3) Defendants’ Motion to Stay (Doc. # 11) is DENIED AS MOOT;
(4) Defendants’ Petition for Westfall Act Certification (Doc. # 34) is DENIED;
(5) Plaintiffs’ Motion for Leave to File a Sur-Reply (Doc. # 52) is GRANTED; and
(6) The parties shall file a Joint Status Report within twenty (20) days from
the date of entry of this Order setting forth a proposed case schedule for discovery going
forward. A case schedule will be set by subsequent Order.
This 3rd day of June, 2022.

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