# Jonathan Mullane v. Federico A. Moreno

> Court of Appeals for the Eleventh Circuit · May 14, 2025

URL: https://www.frixlaw.com/law-library/cases/11050497

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 14, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11050497

## How later opinions describe it (automated extraction)

- explaining that an employee acts outside the scope of employment when he “steps aside” from his role to “accomplish some purpose of his own”
- 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)
- stating that any discovery permitted should be “circumscribed as narrowly as possi- ble” when a scope-of-employment certificate is challenged

## Opinion text

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[DO NOT PUBLISH]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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21-13468 Opinion of the Court 15

“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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11050497. Public record. Not legal advice.