U-Haul International, Inc. v. Estate of Albright

Nathan Albright and Steven Wamser acted as counsel for the National Labor Relations Board in an action against U-Haul. U-Haul sued Albright and Warnser, alleging that they improperly obtained privileged information and used it against U-Haul during the proceedings. The United States Attorney for Nevada certified under the Westfall Act, 28 U.S.C. § 2679 (d), that Wamser was acting within the course and scope of his employment at the time of the alleged conduct. Accordingly, the United States Attorney filed a notice of removal and sought to substitute the United States as the defendant for Wamser. The government then moved to dismiss the claims against Wamser, in part because U-Haul had failed to exhaust its claims as required by the Federal Tort Claims Act (FTCA). 28 U.S.C. § 2675 (a). U-Haul challenged Wamser’s certification and opposed the government’s motion to dismiss.

The district court upheld Wamser’s certification and went on sua sponte to substitute the United States as a defendant for Albright, even though the government never certified Albright or intervened on his behalf. The district judge concluded that Albright was acting within his scope of employment…