Robert J. Pelletier v. Federal Home Loan Bank of San Francisco, and John W. Behrens

Appellee Robert J. Pelletier brought this lawsuit to challenge certain regulatory actions that resulted in his dismissal as managing officer of Pioneer Savings and Loan Association and his subsequent inability to find comparable employment in the savings and loan industry. As to defendant Beh-rens, Pelletier alleged both Bivens and common law tort claims. Behrens now appeals the district court’s denials of his motion to dismiss the Bivens claims based on qualified immunity and his motion to substitute the United States in his place as to the common law tort claims, pursuant to the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA). We affirm in part and reverse in part. With respect to the qualified immunity issue, because Behrens has not previously appealed any denial of qualified immunity, we have jurisdiction to consider his appeal. We hold that Pelletier’s allegations were sufficient to survive a motion to dismiss. With respect to the substitution issue, however, we conclude that the district court improperly applied a narrow “scope of authority” test rather than the broader “scope of employment” test required by the FELRTCA. Under the broader rule, we hold…