Embassy Law Web Log   
Washington, DC, USA      

Protection for Embassy Personnel

On August 10, 2006, the United States Court of Appeals for the Ninth Circuit reversed the decision of the lower courts in the matter of Alexsandr Nikolaevich Kashin and the United States of America v. Douglas Barry Kent, docket no. 04-56703. The civil suit brought against Douglas Barry Kent, a senior foreign service officer serving in the Far East Division of the United States Department of State, in the United States District Court was the result of a car accident in Russia. The Federal Tort Claims Act, FTCA, permits agents of the United States acting within the scope of their employment to avoid personal liability by requesting that the United States be substituted for them in a civil action. Kent was driving home from his gym at the time of the accident and requested this certification from the Attorney General and the District Court, but both had denied the request.

The appeals court reviewed both this request and the jurisdiction under which it was considered. Under FTCA, the applicable law is generally the law of torts at the place where the tort occurred. The statute is silent on what law applies when the tort occurs outside the United States. On appeal, the court found that District of Columbia law should apply. As the location of Kent's employer, D.C. law is not only a logical choice, but also provides as single body of law as well as continuity in cases of multiple defendants.

The Court of Appeals additionally disagreed with the government's denial of certification on the basis that Kent was not hired to drive or exercise at the gym. The Court found that D.C. law holds that if the conduct was of the kind one is employed to perform, within the time and space limits of the employment and was intended to serve the employer, then such employees would be acting within the scope of their employment.

The District of Columbia law also considers whether the employer had the right to control or direct the employee at the time. The court found that due to the nature of the Foreign Service--which it compared it to that of police services--Kent was on duty 24 hours a day, seven days a week and was always in contact with the State Department. The State Department also strictly controls the actions of its employees outside the workplace, regulating their personal behavior and demeanor when posted abroad.

Additionally, transporting someone at Kent's level is considered a business purpose by the State Department. The Court of Appeals also points out that Kent had decided to drive himself, rather than have the State Department incur the overtime fees of his driver, because this served the interests of the departmental budget. Further, Kent believed he was acting in the interest of his employer and within the scope of his employment.

Due to these factors the Court of Appeals granted Kent's petition for certification. The court commented that it was unclear why the United States wished to litigate such an issue against one of its own employees. Since to the tort occurred abroad, foreign sovereign immunity would ultimately protect the United States, although the media fire storm in Russia would likely persist.   --   By Sally Laing, law student, formerly legal assistant at Berliner, Corcoran & Rowe, LLP, Washington, DC.