Jonathan Mullane v. Federico A. Moreno

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13468

____________________

JONATHAN MULLANE,

Plaintiff-Appellant,

versus

FREDERICO A. MORENO,

DOES 1 through 10,

Inclusively, in their individual and official capacities,

UNITED STATES OF AMERICA,

Defendants-Appellees,

ALISON W. LEHR, et al.,

Inclusively, in their individual and official capacities,

Defendants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-21339-AKK

____________________

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2 Opinion of the Court 21-13468

Before JORDAN and BRASHER, Circuit Judges, and GERAGHTY,∗ Dis-

trict Judge.

GERAGHTY, District Judge:

This case concerns an internship gone awry. Plaintiff Jona-

than Mullane, a law student at the University of Miami, interned at

the United States Attorney’s Office (USAO) for the Southern Dis-

trict of Florida. In Mullane’s telling, his USAO supervisor, frus-

trated by Mullane’s airing of workplace grievances, unlawfully con-

spired with the United States Attorney and a federal judge to ter-

minate Mullane’s internship and to spread defamatory statements

about him to media outlets. This lawsuit followed. It presents the

question of whether a federal prosecutor’s alleged acts fall within

the scope of her employment and thus afford her absolute immun-

ity from common-law tort claims under the Westfall Act. We also

consider whether a federal judge’s act of reporting Mullane’s al-

leged misconduct to his law school is entitled to judicial immunity.1

I.

A.

In 1988, the Supreme Court decided Westfall v. Erwin, 484

U.S. 292 (1988), holding that absolute immunity from state-law tort

actions shielded federal employees when their conduct was both

∗ Honorable Sarah E. Geraghty, United States District Judge for the Northern

District of Georgia, sitting by designation.

1 As to any issues not discussed, we summarily affirm.

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21-13468 Opinion of the Court 3

“within the scope of their official duties and . . . discretionary in na-

ture.” Id. at 297-98. The Westfall Court also invited Congress to

legislate the contours of federal employee immunity because it was

“in the best position to provide guidance for the complex and often

highly empirical inquiry into whether absolute immunity is war-

ranted in a particular context.” Id. at 299-300.

Congress’ answer was the Federal Employees Liability Re-

form and Tort Compensation Act of 1988, commonly known as

the “Westfall Act.” The Westfall Act amended the Federal Tort

Claims Act (FTCA) by making an FTCA suit against the United

States the exclusive remedy for damages “arising or resulting from

the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employ-

ment . . . .” 28 U.S.C. § 2679(b)(1). In so doing, Congress removed

the discretionary function requirement, granting “federal employ-

ees absolute immunity from common-law tort claims arising out

of acts they undertake in the course of their official duties.” Osborn

v. Haley, 549 U.S. 225, 229 (2007).

The Westfall Act specifies the procedural mechanism for in-

voking its protection. “When a federal employee is sued for

wrongful or negligent conduct, the Act empowers the Attorney

General to certify that the employee ‘was acting within the scope

of his office or employment at the time of the incident out of which

the claim arose.’” Id. at 229-30 (quoting 28 U.S.C. § 2679(d)(1), (2)).

Upon certification, the suit is “deemed an action against the United

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4 Opinion of the Court 21-13468

States” under the FTCA and the United States is substituted as the

party defendant. 28 U.S.C. § 2679(d)(1).

The Attorney General’s certification, however, is subject to

judicial review. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995); Omnipol, A.S. v. Multinational Def. Servs., LLC, 32 F.4th 1298,

1305 (11th Cir. 2022). It serves as prima facie evidence that the con-

duct at issue occurred within the scope of employment, Omnipol,

32 F.4th at 1305, and the burden of proving that an employee acted

outside the scope of employment is on the plaintiff. Flohr v. Macko-

vjak, 84 F.3d 386, 390 (11th Cir. 1996). If a plaintiff successfully chal-

lenges the Attorney General’s certification, the employee is resub-

stituted as the defendant in the action. Lamagno, 515 U.S. at 434-

35.

The determination of whether an employee’s actions fall

within the scope of his employment is “governed by the law of the

state where the incident occurred.” Omnipol, 32 F.4th at 1305

(quoting S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th

Cir. 1990)). “The test for scope of employment is an objective one,

based on all the facts and circumstances.” Council on Am. Islamic

Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006) (cleaned

up). Because such a determination poses a mixed question of law

and fact, the district court reviews the Attorney General’s certifica-

tion de novo. Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992).

B.

In early 2018, Jonathan Mullane, a second-year law student

at the University of Miami, interned at the U.S. Attorney’s Office

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21-13468 Opinion of the Court 5

(USAO) for the Southern District of Florida. During the same pe-

riod, Mullane filed a civil action, acting pro se, against Barclays Bank

(Barclays) in Florida state court. On February 15, 2018, Barclays

removed the case to the U.S. District Court for the Southern Dis-

trict of Florida. See Mullane v. Barclays Bank Delaware, Inc., Civ. Ac-

tion No. 1:18-cv-20596-RNS (S.D. Fla.). The case was assigned to

Judge Federico A. Moreno. Thus, as Mullane was interning at the

USAO, his lawsuit was proceeding before a judge located in the

same district.

Mullane alleges that his supervisor at the USAO, Assistant

U.S. Attorney (AUSA) Alison Lehr, engaged in misconduct by as-

signing him to work on an asset forfeiture case. The forfeiture case

sought the seizure of assets from a purported money laundering

scheme involving a Venezuelan state-owned oil company. By hap-

penstance, Mullane’s father, a criminal defense attorney, served as

lead counsel to an alleged co-conspirator in the scheme and Mul-

lane had previously assisted his father by translating confidential

documents in the case. According to Mullane, he disclosed these

potential conflicts of interests to AUSA Lehr, but she tasked him

with the asset forfeiture case anyway.

Later, in an alleged bid to hide this misconduct, Lehr and her

boss, acting U.S. Attorney Benjamin Greenberg, purportedly at-

tempted to “quietly” terminate Mullane. Mullane asserts that

when he refused to leave voluntarily, Lehr and Greenberg enlisted

Judge Moreno, who was presiding over Mullane’s civil action

against Barclays, to falsely accuse Mullane of misconduct in court.

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6 Opinion of the Court 21-13468

These allegations of misconduct would, in Mullane’s words, pro-

vide the “pretext” and “good cause” for his firing.

In April 2018, Judge Moreno scheduled a hearing in Mul-

lane’s civil case. At the hearing, Judge Moreno questioned Mullane

about Mullane’s prior visit to his chambers and an ex parte conver-

sation that Mullane initiated with Judge Moreno’s law clerk regard-

ing the lawsuit. In particular, Judge Moreno expressed concern

that Mullane identified himself as working for the USAO when ap-

proaching the law clerk with an inquiry about a personal civil mat-

ter. Protesting that characterization, Mullane argued that he only

represented himself as a USAO intern because Judge Moreno’s

clerk asked where he worked. Judge Moreno expressed doubt

about Mullane’s candor during the hearing and again when ruling

on Mullane’s subsequent motion for his recusal. In granting Mul-

lane’s motion for recusal, Judge Moreno “reserve[d] the right upon

further investigation to refer the matter to . . . the University of Mi-

ami School of Law.” Specifically, Judge Moreno stated he would

seek the courthouse’s security footage to confirm the accuracy of

Mullane’s claim that he was dressed in beach attire on the day he

accessed Judge Moreno’s chambers. Judge Moreno ultimately sent

a letter to the University of Miami School of Law explaining his

concerns about Mullane and attaching documents from the civil

case as well as a Law360 article about the incident. 2 In the suit

2 The court may consider documents attached to Mullane’s complaint as ex-

hibits in resolving a motion to dismiss without converting the motion to one

for summary judgment. See Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir.

2014) (stating that documents attached to a complaint can generally be

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21-13468 Opinion of the Court 7

before us, Mullane contends that Judge Moreno’s “false allega-

tions” of misconduct were intended “to assist Defendants Green-

berg and Lehr by providing them with a spurious excuse” to termi-

nate his employment.

According to Mullane, following the hearing, AUSA Lehr

forwarded, from her personal email address, a copy of the hearing

transcript and related documents to Law360, a legal publication,

and Above the Law, a website covering legal issues. Lehr also sub-

mitted a negative and allegedly defamatory employment evalua-

tion to Mullane’s law school, which referred to the hearing before

Judge Moreno. Per Mullane, the defamatory statements contained

in the documents Lehr forwarded were “republished” in national

legal publications. As a result, Mullane suffered reputational harm

and was “forced to withdraw” from his law school.

The consequences for Mullane did not end there. Mullane

claims that Lisa Roberts, a lawyer at the SEC, had promised him

full-time employment following his completion of law school. But

after the incidents described above, Roberts allegedly joined Lehr,

Greenberg, and Judge Moreno’s unlawful scheme to retaliate

against Mullane. Specifically, Mullane asserts, Roberts prompted

considered by a court in ruling on a motion to dismiss); Taylor v. Appleton, 30

F.3d 1365, 1367 n.3 (11th Cir. 1994) (concluding that an exhibit attached to the

complaint was “part of the pleadings,” and thus could be relied upon by the

district court without converting the defendant’s motion to dismiss into one

for summary judgment).

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8 Opinion of the Court 21-13468

the SEC to withdraw its offer of employment and falsely repre-

sented that he had failed his SEC background check.

C.

Mullane brought this suit asserting nineteen claims against

Judge Moreno, Lehr, Greenberg, and Roberts, including several

common-law tort claims sounding in defamation, tortious interfer-

ence, intentional infliction of emotional distress, fraud, invasion of

privacy, and breach of fiduciary duty. Defendants moved to dis-

miss Mullane’s claims on various grounds. Simultaneously, the At-

torney General moved, pursuant to the Westfall Act, to substitute

the United States as the party defendant for Mullane’s claims as-

serted against Lehr, Greenberg, and Roberts. The Attorney Gen-

eral certified that Lehr, Greenberg, and Roberts were acting within

the scope of their federal employment during the incidents alleged

in Mullane’s complaint.

In addition to contesting Defendants’ arguments for dismis-

sal, Mullane challenged the Westfall Act certification, contending

that Defendants’ alleged misconduct fell outside the scope of their

employment. Alternatively, he requested limited discovery to

probe the sufficiency of the Attorney General’s scope-of-employ-

ment certification.

The district court, applying Florida law, held that Defend-

ants’ actions were within the scope of their federal employment.

Accordingly, the court substituted the United States as the party

defendant for the state-law tort claims asserted against Lehr,

Greenberg, and Roberts. The remainder of Mullane’s claims were

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21-13468 Opinion of the Court 9

dismissed on several grounds, including that Judge Moreno was en-

titled to absolute judicial immunity.

Mullane appeals the district court’s dismissal of his claims

and its substitution of the United States as defendant pursuant to

the Westfall Act. We affirm the district court’s thorough and well-

reasoned forty-four-page decision, except as to its analysis of

whether AUSA Lehr acted within the scope of her employment

during certain incidents alleged by Mullane.

II.

We review de novo a district court’s dismissal for failure to

state a claim, accepting all alleged facts as true and construing them

in the light most favorable to the plaintiff. Butler v. Sheriff of Palm

Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012). We also review

our jurisdiction de novo. Allen v. AT&T Mobility Servs., 104 F.4th

212, 215 (11th Cir. 2024).

III.

Following the substitution of the United States for Lehr,

Greenberg, and Roberts, on July 30, 2021, Mullane voluntarily dis-

missed, without prejudice, all his claims against the United States

pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). This ap-

peal followed. Because “how a party drops a claim or a defendant

can trigger appellate jurisdictional issues[,]” we are obligated, as an

initial matter, to ensure that we have jurisdiction. Baxter v. Santi-

ago-Miranda, 121 F.4th 873, 883 (11th Cir. 2024).

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10 Opinion of the Court 21-13468

Aside from a few narrow exceptions inapplicable here, our

jurisdiction is confined to “final decisions of the district courts.” 28

U.S.C. § 1291. “A final decision is typically one that ends the litiga-

tion on the merits and leaves nothing for the court to do but exe-

cute its judgment.” Acheron Cap., Ltd. v. Mukamal, 22 F.4th 979, 986

(11th Cir. 2022) (quoting Mayer v. Wall St. Equity Grp., Inc., 672 F.3d

1222, 1224 (11th Cir. 2012)). Generally, “an order adjudicating

fewer than all the claims in a suit, or adjudicating the rights and

liabilities of fewer than all the parties, is not a final judgment from

which an appeal may be taken.” Lloyd Noland Found., Inc. v. Tenet

Health Care Corp., 483 F.3d 773, 777 (11th Cir. 2007).

Pursuant to Rule 41(a)(1), a plaintiff “may dismiss an action

without a court order by filing . . . a notice of dismissal before the

opposing party serves either an answer or a motion for summary

judgment[.]” Fed. R. Civ. P. 41(a)(1)(A)(i). “Rule 41(a)’s reference

to the voluntary dismissal of ‘an action’ refers to ‘the whole case’

instead of particular claims.” Esteva v. UBS Fin. Servs. Inc., 60 F.4th

664, 675 (11th Cir. 2023). This Court recently confirmed that, “in

a multi-defendant lawsuit, an ‘action’ can refer to all the claims

against one party.” Baxter, 121 F.4th at 884 (quoting Rosell v. VMSB,

67 F.4th 1141, 1144 n.2 (11th Cir. 2023)).

Here, in granting Defendants’ motion to dismiss, the district

court dismissed Mullane’s claims against all Defendants other than

the United States. Mullane later voluntarily dismissed all claims—

the “action”—against the United States, the sole remaining defend-

ant in the case. As such, Mullane’s voluntary dismissal was valid

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21-13468 Opinion of the Court 11

under Rule 41(a)(1) and left no claims pending in the district court.

See Baxter, 121 F.4th at 884. We therefore have jurisdiction to con-

sider his appeal. 3

IV.

We now turn to Mullane’s challenge of the district court’s

determination that Lehr, Greenberg, and Robert’s actions fall

within the scope of their federal employment. That inquiry is gov-

erned by the respondeat superior law of the state where the allegedly

3 This Court has sometimes held, pursuant to the “Ryan rule,” that voluntary

dismissals without prejudice are not final, appealable judgments. See Ryan v.

Occidental Petroleum Corp., 577 F.2d 298, 303 (5th Cir. 1978). “The purpose of

this rule is to prevent a party from voluntarily dismissing its remaining claims

without prejudice after a non-final adverse district court order has been en-

tered in order to manufacture a final judgment.” Equity Inv. Partners, LP v.

Lenz, 594 F.3d 1338, 1341 n.2 (11th Cir. 2010). Several decisions since Ryan

have cast doubt on its core holding. See Corley v. Long-Lewis, Inc., 965 F.3d

1222, 1231 (11th Cir. 2020) (holding “that an order granting a motion to vol-

untarily dismiss the remainder of a complaint under Rule 41(a)(2) qualifies as

a final judgment for purposes of appeal” (cleaned up)); Lenz, 594 F.3d at 1341

n.2 (declining to follow Ryan’s rule because there was no indication that the

parties had attempted “to manufacture a final judgment to pursue an immedi-

ate appeal”); State Treasurer of State of Michigan v. Barry, 168 F.3d 8, 18 (11th

Cir. 1999) (Cox, J., concurring) (arguing that Ryan was wrongly decided). We

decline to apply the Ryan rule here because there is no indication that Mullane

attempted to manufacture jurisdiction by voluntarily dismissing his claims

against the United States. Instead, he likely recognized the inevitable: He was

precluded from pursuing his state-law tort claims against the United States by

the “intentional tort exception” to the FTCA’s waiver of sovereign immunity.

See 28 U.S.C. § 2680(h); see generally Levin v. United States, 568 U.S. 503, 507

(2013) (referring to 28 U.S.C. § 2680(h) as the “intentional tort exception”).

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12 Opinion of the Court 21-13468

unlawful acts occurred. Omnipol, 32 F.4th at 1305 (quoting S.J. &

W. Ranch, 913 F.2d at 1542). Under Florida law, which mirrors the

RESTATEMENT (SECOND) OF AGENCY (1958), an employee’s conduct

is within the scope of his employment if “(1) the conduct is of the

kind he was employed to perform, (2) the conduct occurs substan-

tially within the time and space limits authorized or required by the

work to be performed, and (3) the conduct is activated at least in

part by a purpose to serve the master.” Iglesia Cristiana La Casa Del

Senor, Inc. v. L.M., 783 So. 2d 353, 357 (Fla. Dist. Ct. App. 2001); see

McGhee v. Volusia Cnty., 679 So. 2d 729, 732 (Fla. 1996). “Stated an-

other way, the issue is ‘whether the employee was doing what his

employment contemplated.’” Nadler, 951 F.2d at 305 (quoting Mor-

rison Motor Co. v. Manheim Servs. Corp., 346 So.2d 102, 104 (Fla. Dist.

Ct. App. 1977)). An employee’s intentional torts fall within the

scope of employment “where the employee’s tortious conduct is

undertaken in furtherance of the employer’s interests.” Grippa v.

Rubin, 133 F.4th 1186, 1200 (11th Cir. 2025) (quoting Fields v. Deve-

reux Found., Inc., 244 So. 3d 1193, 1196 (Fla. 2d Dist. Ct. App. 2018)).

As our precedents suggest, the scope-of-employment in-

quiry proceeds on an act-by-act basis. See Nadler, 951 F.2d at 305-06

(determining that most of an AUSA’s actions were within the scope

of employment, but that one action—leaking a criminal investiga-

tion to the press—was not); Bennett v. United States, 102 F.3d 486,

489 (11th Cir. 1996) (“The question of whether a given act falls

within the scope of employment is highly fact-specific[.]” (empha-

sis added)). Our approach in this regard is consistent with the text

of the Westfall Act, which attaches immunity to a federal

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21-13468 Opinion of the Court 13

employee’s “wrongful act or omission” or an “incident out of

which the [plaintiff’s] claim arose[.]” 28 U.S.C. §§ 2679(b)(1), (d)(1),

(d)(2). Thus, in a multi-act or multi-incident case where the Attor-

ney General’s certification is challenged, a district court should

evaluate whether each separate “act” or “incident” falls within the

scope of the defendant’s federal employment. See Lyons v. Brown,

158 F.3d 605, 608-09 (1st Cir. 1998) (concluding that the Westfall

Act’s scope-of-employment determination does not call for an “all

or nothing judgment” and must be analyzed at the level of individ-

ual “acts or incidents”); Jamison v. Wiley, 14 F.3d 222, 236-37 (4th

Cir. 1994) (reviewing the district court’s Westfall Act findings on

the scope-of-employment issue on an act-by-act basis); Arbour v. Jen-

kins, 903 F.2d 416, 422 (6th Cir. 1990) (observing that most of the

acts alleged in a suit against several postal workers likely fell within

their scope of employment, but that at least one, locking someone

in a maintenance garage, might not); Bowles v. United States, 685 F.

App’x 21, 25-26 (2d Cir. 2017) (finding that Westfall Act certification

was appropriate as to some allegedly defamatory statements, but

not others).

In this case, the district court reviewed the Attorney Gen-

eral’s certification under the proper de novo standard of review.

Omnipol, 32 F.4th at 1306. Accepting the allegations in Mullane’s

complaint as true, the district court examined certain acts that De-

fendants were alleged to have taken and concluded they fell within

the scope of their employment under Florida law. Beginning with

Lehr, the court found that her submission of an allegedly defama-

tory performance review was part of her responsibilities as

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14 Opinion of the Court 21-13468

Mullane’s supervisor, and served, at least in part, the USAO’s inter-

ests. Next, the court determined that Roberts served the SEC’s in-

terests by reporting concerns about Mullane’s alleged misconduct,

which prompted the SEC to withdraw its offer of employment.

Further, the court held that none of Mullane’s allegations sug-

gested that Greenberg defamed him or acted outside of the scope

of his employment. We agree that the conduct discussed by the

district court fell within the scope of Defendants’ employment.

However, there are other actions—alleged by Mullane to be

defamatory or otherwise unlawful—that the district court did not

appear to consider. In particular, Mullane asserts that after his

hearing before Judge Moreno, AUSA Lehr forwarded, from her

personal email address, a copy of the hearing transcript and other

documents to at least two media outlets. He further contends that

the documents contained defamatory representations, and as such,

Lehr’s transmission of them constituted libel per se.

While we do not decide whether Mullane’s allegations are

sufficient to state a claim for libel, we conclude that the alleged act

of sending the press documents pertaining to Mullane’s personal

civil suit—as pled in the complaint—is outside the scope of Lehr’s

employment. Sharing with media outlets a hearing transcript in-

volving a USAO intern’s civil case —unrelated to a case the USAO

is investigating or prosecuting—is not an act “of the kind” an AUSA

is “employed to perform[.]” Iglesia Cristiana, 783 So. 2d at 357.

That conduct is neither “of the same general nature as” acts that

federal prosecutors are usually authorized to take, nor is it

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“incidental to . . . conduct authorized.” Hennagan v. Dep’t of High-

way Safety & Motor Vehicles, 467 So. 2d 748, 750 (Fla. Dist. Ct. App.

1985); RESTATEMENT (SECOND) OF AGENCY § 229 (1958). Moreover,

Mullane’s allegation that Lehr forwarded the documents from a

personal email address plausibly suggests, at this preliminary stage,

that her purported conduct occurred outside “the time and space

limits authorized” by her employer. Iglesia Cristiana, 783 So. 2d at

357.

It is also not apparent how emailing the press a transcript,

centered on an intern’s alleged misconduct in a civil pro se matter,

would serve the interests of the USAO. See id.; Hennagan, 467 So.

2d at 751 (“The purpose of the employee’s act, rather than the

method of performance thereof, is said to be the important consid-

eration.”). To the contrary, such an action, if it occurred, appears

more consistent with a “purely personal” motive, either to publicly

highlight Mullane’s alleged misconduct, or perhaps simply to share

news of an unusual courtroom exchange. Bennett, 102 F.3d at 489

(“[W]hen an employee undertakes an act purely personal in nature,

no respondeat superior liability may be imposed.”); see Trabulsy v.

Publix Super Mkt., Inc., 138 So. 3d 553, 555 (Fla. Dist. Ct. App. 2014)

(explaining that an employee acts outside the scope of employment

when he “steps aside” from his role to “accomplish some purpose

of his own”). Of course, had Lehr merely sent the transcript to her

colleagues to alert them of the incident involving Mullane and

Judge Moreno, her actions would have aligned with her responsi-

bility to supervise Mullane. But based on Mullane’s allegations,

which we must accept at this stage, Lehr did not act to further the

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16 Opinion of the Court 21-13468

USAO’s interests when she sent the hearing transcript and related

documents to the media.

Our decision in Nadler v. Mann, 951 F.2d 301 (11th Cir. 1992),

supports the conclusion that, based on the allegations of the com-

plaint, Lehr’s alleged transmission of the hearing transcript falls

outside the scope of her federal employment. The Nadler court

confronted the Westfall Act following an electoral contest between

a state judge seeking re-election and an AUSA—coincidentally also

at the Southern District of Florida’s USAO—challenging the in-

cumbent judge’s seat. Shortly before the primary election, the

AUSA, Frederick Mann, received a call from a public official claim-

ing that the judge, Joseph Nadler, had accepted a bribe in a case

pending before him. Nadler, 951 F.2d at 303. Mann relayed the

allegations to a fellow AUSA and the Department of Justice’s Public

Integrity Section. Id. He also arranged a meeting between the FBI

and the accuser. Id. The court agreed with Mann that because an

AUSA has a duty “to make an alleged violation of federal law

known to” investigating agencies, the steps he took to initiate a

criminal investigation fell within the scope of his employment as

an AUSA. Id. at 305-06.

But Mann was alleged to have gone a step further. Accord-

ing to Nadler, Mann defamed him by leaking the story of the FBI’s

investigation of the public official’s bribery accusation to the Miami

Herald. Id. at 306. In Nadler, we held that an AUSA who “leaks

information regarding a criminal investigation to the news media

. . . simply is not ‘doing what his employment contemplated.’” Id.

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21-13468 Opinion of the Court 17

As such, Mann could not receive the Westfall Act’s protection with

respect to that specific conduct.

So too here. While some of Lehr’s alleged actions fall within

the scope of her employment, sending Mullane’s hearing transcript

to members of the press does not. In fact, Lehr’s purported con-

duct is even further afield from an AUSA’s role than Mann’s actions

in Nadler. Lehr is alleged to have shared documents regarding an

intern’s personal civil matter. Unlike Mann, her alleged conduct did

not involve a criminal case that the U.S. Attorney’s Office might po-

tentially investigate or prosecute.

Accordingly, we affirm the district court’s decision as to the

Westfall Act certification except as to its determination that all of

Lehr’s alleged acts were within the scope of her federal employ-

ment. If true, the sending of the hearing transcript and related doc-

uments to the media would fall outside the scope of Lehr’s employ-

ment. Lehr would thus not be entitled to protection under the

Westfall Act with respect to that alleged act.

V.

We next address Mullane’s argument that the district court

erred in granting Judge Moreno judicial immunity with respect to

the letter he sent to the University of Miami. Mullane contends

Judge Moreno is not entitled to immunity for sending the letter be-

cause he had recused himself from the civil case and thus was op-

erating outside of the court’s jurisdiction. But the Supreme Court

has long held that “judges . . . are not liable to civil actions for their

judicial acts, even when such acts are in excess of their jurisdiction,

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18 Opinion of the Court 21-13468

and are alleged to have been done maliciously or corruptly.” Brad-

ley v. Fisher, 80 U.S. 335, 351 (1871). 4

The only question left to us then is whether Judge Moreno’s

actions here were judicial acts. We agree with the district court

that all of Judge Moreno’s actions relating to scheduling and con-

ducting the April 10th hearing as well as his subsequent recusal or-

der are plainly judicial acts entitled to immunity. However,

whether the letter to Mullane’s law school constitutes a judicial act

is a question warranting closer inspection.

“The relevant cases demonstrate that the factors determin-

ing whether an act by a judge is a ‘judicial’ one relate to the nature

of the act itself, i.e., whether it is a function normally performed by

a judge, and to the expectations of the parties, i.e., whether they

dealt with the judge in his judicial capacity.” Stump v. Sparkman,

435 U.S. 349, 362 (1978). Judge Moreno was acting within the ex-

pectations of the parties when he sent the letter because he had

announced in his order granting Mullane’s motion for his recusal

that “the Court reserves the right upon further investigation to re-

fer the matter to the Florida Bar, the University of Miami School of

4 We find unconvincing Mullane’s argument that the April 10, 2018, hearing

in the civil case constituted a criminal contempt hearing triggering the applica-

bility of Federal Rule of Criminal Procedure 42 and removing Judge Moreno’s

jurisdiction entirely. Judge Moreno’s suggestion that he “may have a rule to

show cause why [Mullane] shouldn’t be held in contempt” did not convert the

hearing into a separate criminal contempt proceeding. At no point, moreover,

was Judge Moreno acting in “clear absence of all jurisdiction over the subject-

matter.” Bradley, 80 U.S. at 351.

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21-13468 Opinion of the Court 19

Law, and the United States Attorney for any action they deem ap-

propriate.”

The district court rightly looked to the Code of Conduct for

United States Judges in finding the letter to be a judicial act. “The

Code of Conduct is the law with respect to the ethical obligations

of federal judges[.]” United States v. Microsoft Corp., 253 F.3d 34, 113

(D.C. Cir. 2001). Canon 3(B)(5) of the Code of Conduct, as appli-

cable during the relevant time, instructed judges to “take appropri-

ate action upon learning of reliable evidence indicating the likeli-

hood that. . . a lawyer violated applicable rules of professional con-

duct.” Judicial Conference of the United States, Code of Conduct

for United States Judges (effective prior to March 12, 2019), availa-

ble at https://www.uscourts.gov/sites/default/files/2024-

12/guide-vol02a-ch02-2014-03-19.pdf. Canon 1 further demanded

that “a judge should maintain and enforce high standards of con-

duct and should personally observe those standards, so that the in-

tegrity and independence of the judiciary may be preserved.” Id.

As the Code of Conduct makes clear, taking proper action in re-

sponse to attorney misconduct is an important function federal

judges perform to maintain the integrity of the judiciary and the

legal profession.

Indeed, it has long been the law that disbarring an attorney

as a sanction is a judicial act entitled to immunity as a necessary

tool for the preservation of the integrity of the legal profession. See

Bradley, 80 U.S. at 354 (“It is a power which should only be exer-

cised for the most weighty reasons, such as would render the

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20 Opinion of the Court 21-13468

continuance of the attorney in practice incompatible with a proper

respect of the court for itself, or a proper regard for the integrity of

the profession.”). But this case is unique in that Judge Moreno

found himself dealing with a not-quite-yet attorney practicing law

in a pro se capacity who could neither be disbarred nor be disci-

plined, but who had the clear intention of imminently practicing

law in Florida. Under the circumstances, Judge Moreno’s observa-

tion of Mullane’s behavior during the civil case could reasonably

trigger his obligations under the Code of Conduct to take proper

action to preserve the integrity of the judiciary and legal profession

by reporting Mullane’s behavior. See, e.g., Barett v. Harrington, 130

F.3d 246, 257-58 (6th Cir. 1997) (holding judge’s letters to prosecu-

tors regarding a litigant’s potentially criminal behavior to be judi-

cial acts and noting that “the functional approach . . . necessitates

abstracting the nature of the act from the particular act at issue, i.e.,

looking at ‘the particular act’s relationship to a function normally

performed by a judge’”) (cleaned up and emphasis in original).

From Judge Moreno’s perspective, Mullane, a soon-to-be

lawyer, had engaged in improper ex parte communications with

Judge Moreno’s clerk about his personal legal matter and gained

entry into Judge Moreno’s chambers through ambiguously declar-

ing his association with the U.S. Attorney’s Office, a potentially se-

rious transgression for an attorney. Mullane, moreover, never con-

tacted opposing counsel to inform them of the improper commu-

nications after the fact.

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21-13468 Opinion of the Court 21

Further, in his letter to Mullane’s law school, Judge Moreno

stated that Mullane made a “blatant misstatement in a ‘verified

pleading’” because he represented in his motion for Judge

Moreno’s recusal that he had been dressed in beach attire when he

gained access to Judge Moreno’s chambers, but Judge Moreno pur-

ported to have viewed contradictory security footage showing

Mullane in proper business attire. Mullane protests that the district

court improperly credited Judge Moreno’s assertions in this regard.

But whether Mullane actually made a misrepresentation in a court

filing is beside the point as far as the judicial immunity analysis is

concerned. What matters is whether Judge Moreno’s act was judi-

cial in nature. See Stump, 435 U.S. at 362. Here, Judge Moreno’s

observations of Mullane stemmed from a judicial proceeding over

which he presided, and Judge Moreno acted to report what he

deemed an intentional misrepresentation by a litigant who was

seeking to become a lawyer. An intentional misrepresentation of

this kind is “incompatible with a proper respect of the court for it-

self, or a proper regard for the integrity of the profession.” Bradley,

80 U.S. at 354. “A judge who should pass over in silence an offence

of such gravity would soon find himself a subject of pity rather than

of respect.” Id. Accordingly, Judge Moreno’s letter to the law

school reporting Mullane’s alleged misrepresentation to the court

was a judicial act entitled to judicial immunity.

VI.

We remand this case to the district court for further pro-

ceedings consistent with this opinion. Although we find that the

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22 Opinion of the Court 21-13468

district court erred in part in its analysis of whether Lehr acted

within the scope of her employment, we do not reverse its order

substituting the United States as the defendant for claims asserted

against Lehr. The Supreme Court has held that even where a

Westfall Act certification is challenged, the United States “must re-

main the federal defendant in the action unless and until the Dis-

trict Court determines that the employee, in fact, and not simply as

alleged by the plaintiff, engaged in conduct beyond the scope of his

employment.” Osborn, 549 U.S. at 231.

As such, prior to any potential re-substitution of Lehr, the

district court must decide, in the first instance, whether the rele-

vant acts alleged by Mullane did in fact occur. 5

AFFIRMED in part, REVERSED in part, and REMANDED.

5 The district court may have occasion to consider whether and to what extent

discovery should be allowed related to the Westfall Act certification of Lehr.

This court has not yet established a standard for deciding whether a plaintiff is

entitled to discovery to challenge such a certification. See Omnipol, 32 F.4th at

1310 (Jordan, J., concurring). If discovery is permitted, it should be limited in

scope. See U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Virginia, LLC, 899 F.3d

236, 251 (4th Cir. 2018) (noting that a district court may “permit limited dis-

covery or conduct an evidentiary hearing to resolve competing factual claims

concerning the scope-of-employment issue” (quotation omitted)); Wuterich v.

Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (explaining that if a plaintiff pleads

sufficient facts to plausibly allege that a defendant acted outside the scope of

employment, the plaintiff “may, if necessary, attain ‘limited discovery’ to re-

solve any factual disputes” (quoting Stokes v. Cross, 327 F.3d 1210, 1214, 1216

(D.C. Cir. 2003))); Schrob v. Catterson, 967 F.2d 929, 936 (3d Cir. 1992) (stating

that any discovery permitted should be “circumscribed as narrowly as possi-

ble” when a scope-of-employment certificate is challenged).