Westfall Act Immunity Is Claim-by-Claim (Not Suit-Wide) and Civil Fifth-Amendment Silence May Support Adverse Inferences in Scope-of-Employment Hearings

I. Introduction

Trey Cholewa v. United States (Sixth Circuit, June 11, 2026) arises from allegations that Dr. Jennifer R. Robinson, a psychiatrist at the John D. Dingell Department of Veterans Affairs Medical Center, engaged in romantic and sexual misconduct with Trey Cholewa, a Marine Corps veteran being treated for severe psychiatric conditions (including PTSD) following multiple combat deployments. Cholewa sued Dr. Robinson and the United States under Michigan tort law, asserting medical malpractice, ordinary negligence, and medical battery.

The litigation’s central procedural question was not the ultimate tort merits but the scope of Dr. Robinson’s immunity under the Westfall Act, 28 U.S.C. § 2679: whether she acted “within the scope of [her] office or employment” such that the United States must be substituted as the defendant and she dismissed from suit. After multiple rounds of motions and a remand, the district court granted Dr. Robinson immunity for non-sexual/non-romantic alleged tortious conduct, but denied immunity for sexual/romantic impropriety.

On appeal, Dr. Robinson pressed two arguments: (1) the district court wrongly drew adverse inferences from her repeated Fifth Amendment invocations at an evidentiary hearing; and (2) Westfall Act immunity, once found for any claim, should extend to the entire suit. The Sixth Circuit affirmed, rejecting both propositions and, in doing so, articulated a particularly important rule: Westfall Act substitution is claim-specific, not automatically suit-wide.

II. Summary of the Opinion

  • Factual findings upheld: The Sixth Circuit held the district court did not clearly err in finding that Dr. Robinson engaged in romantic and sexual misconduct, including by drawing an adverse inference from her civil Fifth Amendment silence where corroborating evidence existed.
  • Michigan scope-of-employment: The court indicated that, under Michigan law, sexual/romantic misconduct by a professional authority figure for personal purposes falls outside the scope of employment, relying principally on Michigan Supreme Court guidance in Hamed v. Wayne County and Zsigo v. Hurley Medical Center, as well as district court application in Tolbert v. United States.
  • Cross-appeal constraint enforced: The plaintiff-appellee (Cholewa) could not seek reversal on a theory different from the appellant’s without filing a cross-appeal, citing El Paso Nat. Gas Co. v. Neztsosie.
  • Key doctrinal holding: The Westfall Act does not create “all-or-nothing” immunity. A federal employee may be substituted out as to within-scope claims while remaining a defendant as to outside-scope claims. The court relied on statutory text and structure (including §§ 2679(d)(4)–(5)), and aligned the Westfall Act with broader immunity practice.

III. Analysis

A. Precedents Cited

1. Prior appellate mandate and factfinding requirement

The panel’s analysis is framed by the prior appeal, Cholewa v. United States (Cholewa I), which reversed because the district court treated Westfall certification as “a pure question of law” based on party stipulations. Citing Osborn v. Haley, Cholewa I required factual findings on whether the alleged acts occurred. On this second appeal, the Sixth Circuit confirmed the remand’s purpose was satisfied by the evidentiary hearing and detailed findings.

2. Standard of review and deference to district court findings

For factual findings supporting Westfall certification decisions, the court applied clear-error review, drawing from Laible v. Lanter, Pledger v. United States, United States v. Sands, United States v. Donadeo, and West v. Fred Wright Constr. Co.. The opinion underscores the institutional role of the trial court in credibility determinations (Fed. R. Civ. P. 52(a)(6)), while acknowledging that legal misunderstandings can “infect” factual findings (citing EMW Women's Surgical Ctr., P.S.C. v. Friedlander, which in turn cited Bose Corp. v. Consumers Union of U.S., Inc.).

3. Fifth Amendment adverse inference in civil proceedings

The Sixth Circuit’s adverse-inference discussion is grounded in the civil/criminal distinction:

  • Mitchell v. United States and Griffin v. California (no adverse inference from silence in criminal cases).
  • Baxter v. Palmigiano (adverse inferences permissible in civil actions, but not as an automatic penalty unsupported by other evidence).
  • The opinion reinforces “corroboration” as the touchstone, analogizing to Sixth Circuit applications such as Hoxie v. Drug Enforcement Administration and Leapers, Inc. v. SMTS, LLC.
  • It also referenced Nat'l Acceptance Co. of Am. v. Bathalter to characterize Fifth Amendment silence as a voluntary tactical choice in civil litigation with permissible consequences.
  • The court’s caution about coercive penalties is consistent with the concerns highlighted in Lefkowitz v. Turley and Garrity v. New Jersey, invoked via Baxter.

4. Michigan scope-of-employment doctrine and sexual misconduct by authority figures

The district court’s Michigan-law approach—left materially undisturbed—rests on the Michigan Supreme Court’s scope test: an employee acts within scope when acting “in furtherance, or the interest, of the employer’s business.” The Sixth Circuit quoted Hamed v. Wayne County and noted its reliance on Barnes v. Mitchell for the proposition that even disobedient acts can be within scope if they further the employer’s interests.

Critically, the panel emphasized that Michigan cases treat sexual assault/misconduct by personnel in trusted institutional roles as categorically outside scope. It pointed to:

  • Hamed v. Wayne County (jailhouse sexual assault: “no question” the assault was beyond scope).
  • Zsigo v. Hurley Medical Center (nurse’s aide sexual misconduct: “clearly not acting within the scope of his employment”).
  • Tolbert v. United States (E.D. Mich. applying Hamed to VA counselor sexual misconduct).

The opinion also discussed and cabined Michigan’s rejection of the “aided-by-agency” theory by referencing Champion v. Nationwide Sec., Inc. (overruled by Hamed on that point).

5. Appellate procedure: cross-appeal doctrine

The court enforced the long-standing rule that an appellee cannot seek to enlarge its rights or change the judgment without cross-appealing. It relied on El Paso Nat. Gas Co. v. Neztsosie and traced the appellee’s ability to defend the judgment on any record-supported ground to United States v. Am. Ry. Express Co.. The opinion also discussed “standing to appeal” in the prudential sense with citations to United States v. Windsor and Deposit Guar. Nat'l Bank v. Roper.

6. Westfall Act “unit of substitution” and claim-by-claim immunity

The Sixth Circuit’s key interpretive move is that Westfall substitution does not operate on an all-or-nothing “entire action” basis whenever any single claim is certified. It parsed 28 U.S.C. § 2679(d), and harmonized it with § 1346(b) and removal concepts (citing § 1441(c) and Weekley v. Guidant Corp.). As persuasive support, it cited:

  • Lyons v. Brown (First Circuit: certification may apply to discrete incidents; remand contemplated partial certification).
  • Jordan v. Carter (S.D. Ohio: implicitly recognizing claim differentiation in substitution analysis).

To buttress the claim-by-claim approach as consistent with immunity doctrine generally, the panel analogized to: Muscogee (Creek) Nation v. Rollin (claim-by-claim sovereign immunity analysis), Doe v. Tennessee (order applying claim-by-claim state sovereign immunity analysis), United States v. Georgia (claim-by-claim approach quoted), and Broidy Cap. Mgmt., LLC v. State of Qatar (Foreign Sovereign Immunities Act). It also invoked the avoidance of irrational statutory constructions via Dan's City Used Cars, Inc. v. Pelkey and noted a similar “rational Congress” framing in Castillo v. Bondi.

B. Legal Reasoning

1. Civil Fifth Amendment silence: adverse inference requires corroboration

The court’s reasoning is a straightforward application of Baxter: civil silence can support adverse inferences when there is independent evidence supporting the fact to be inferred. Here, the district court relied on: (i) an audio recording (with an adverse inference as to authenticity because Dr. Robinson invoked the Fifth rather than rebut authentication), (ii) investigative circumstantial indicators (e.g., call volume anomalies, incomplete documentation, boundary-crossing admissions), and (iii) hearing testimony assessed through credibility findings. The Sixth Circuit treated this as the legally correct “corroborated inference” model, not a coercive penalty for asserting the privilege.

2. Scope-of-employment: personal gratification is not “furtherance” of the employer’s business

Even though the court declined to reach the plaintiff’s non-cross-appealed challenge in full, it signaled agreement with the district court’s core Michigan-law proposition: sexual/romantic exploitation of a patient by a professional authority figure is “independent” conduct intended to serve the employee’s individual interests, and therefore falls outside scope under Hamed. The panel treated Hamed and Zsigo as sufficiently analogous despite factual differences in setting (jail/hospital vs. VA outpatient psychiatry), emphasizing the functional similarity: institutional trust and authority leveraged for sexual misconduct.

3. The Westfall Act does not confer suit-wide immunity based on a single certified claim

This is the opinion’s most broadly consequential legal interpretation. The court read § 2679(d) as allowing partial substitution: the “action” is deemed against the United States “upon such claim,” and related provisions—§ 2679(d)(4) (FTCA procedural treatment) and § 2679(d)(5) (administrative presentment consequences)—only make sense if “action” is understood to mean the action as to the certified claim(s). Otherwise, unrelated claims (e.g., contract claims joined under Rule 18) could be forced into FTCA procedures, creating statutory and doctrinal contradictions.

The court also rejected Dr. Robinson’s “law of the case” argument based on Cholewa I, pointing out that the prior panel expressly disclaimed any position on partial substitution’s consequences and referred to substitution as to the within-scope “claim or claims.”

C. Impact

1. Westfall Act practice: partial substitution is endorsed and operationalized

The opinion meaningfully clarifies litigation mechanics in Westfall Act disputes within the Sixth Circuit: courts may (and sometimes must) segment a lawsuit into within-scope and outside-scope components. The practical effect is that plaintiffs and federal employees should expect more frequent outcomes in which:

  • the United States is substituted for some tort theories or incidents; and
  • the employee remains as an individual defendant for outside-scope conduct.

This reduces pressure toward “all-or-nothing” scope determinations and allows more tailored, fact-sensitive certification outcomes.

2. Evidentiary hearings and Fifth Amendment invocations: tactical consequences

Because Cholewa I required factual findings, the case illustrates that Westfall certification can require mini-trials, including recordings, investigative reports, and live testimony. The Sixth Circuit’s endorsement of adverse inferences (when corroborated) will influence how federal-employee defendants manage parallel civil exposure and potential criminal risk: silence can be costly if the plaintiff can produce independent corroboration.

3. Michigan tort/agency implications in medical settings

Although unpublished and framed partly as an “even if properly before us” discussion, the opinion strongly suggests that, under Michigan law, sexual/romantic conduct by clinicians exploiting a power differential is not within scope. That framing will likely be invoked in future FTCA/Westfall disputes involving healthcare staff and custodial authority figures.

4. Appellate strategy: cross-appeals remain essential

The enforcement of El Paso Nat. Gas Co. v. Neztsosie is a reminder that appellees who want a different judgment—especially on alternative legal theories that the appellant does not advance—must cross-appeal. Substantively strong arguments may be forfeited if not positioned procedurally.

IV. Complex Concepts Simplified

  • Westfall Act (28 U.S.C. § 2679): A law that generally protects federal employees from being personally sued for torts committed within the scope of their federal employment by substituting the United States as the defendant (and routing the case through FTCA rules).
  • Scope of employment: Under Michigan law (as discussed here), conduct is within scope when done in furtherance of the employer’s business. Conduct done solely for personal reasons (like sexual gratification) is outside scope.
  • Adverse inference: In civil cases, a judge (or jury) may infer that a witness’s refused answer would have been unfavorable—so long as there is other evidence supporting that inference.
  • Clear-error review: Appellate courts largely defer to a trial court’s factfinding and credibility determinations, reversing only when a mistake is strongly and firmly apparent from the record.
  • Cross-appeal: If an appellee wants the appellate court to change the judgment (not merely defend it), the appellee must file its own appeal.
  • “Transference” (as referenced in the district court framing): A psychotherapy dynamic where a patient projects feelings onto the therapist; mishandling it may be malpractice, but it does not convert personal sexual/romantic conduct into employer-serving conduct for scope-of-employment purposes.

V. Conclusion

The Sixth Circuit’s decision affirms a nuanced, litigation-shaping principle: Westfall Act immunity is not automatically suit-wide; it can be applied on a claim-by-claim (and incident-by-incident) basis. The court also reinforces that, in civil Westfall certification proceedings, Fifth Amendment silence may support adverse inferences when corroborated by independent evidence, and that evidentiary hearings may be essential to resolve disputed scope-of-employment facts as required by Cholewa I.

In the broader legal landscape, the opinion aligns Westfall Act practice with general immunity doctrine’s claim-specific approach, discourages procedural sandbagging through strict cross-appeal enforcement, and signals that sexual/romantic exploitation by institutional professionals is, under Michigan agency principles as understood here, paradigmatically outside the scope of employment.