Scott Lykens v. Colette Peters

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 25-1393

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SCOTT LYKENS,

Appellant

v.

COLETTE S. PETERS; JAMES PETRUCCI;

STEPHEN SPAULING; JANE DOES 1-20

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 4:24-cv-01385)

District Judge: Honorable Joseph F. Saporito, Jr.

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Submitted Pursuant to Third Circuit LAR 34.1(a)

October 14, 2025

Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges

(Opinion filed: October 17, 2025)

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OPINION *

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PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Scott Lykens appeals pro se from the District Court’s order dismissing his

complaint for lack of subject-matter jurisdiction. We will affirm.

I.

Lykens pled guilty to federal tax crimes and was sentenced to 15 months’

imprisonment in April 2022. He surrendered himself to the custody of the United States

Bureau of Prisons (“BOP”) a few weeks later, and he was released from prison in March

2023. Lykens initiated this matter in July 2024 by filing a complaint in the Court of

Common Pleas of Centre County, Pennsylvania. He alleged that three named and other

unnamed BOP officials deliberately miscalculated the time credits he should have been

entitled to under the First Step Act, thereby wrongfully imprisoning him for 45 days

beyond his expected release date in violation of Pennsylvania law. For each of those

days, Lykens brought one count of false imprisonment and sought damages in excess of

$500,000 (or $22.5 million in total).

The United States, anticipating that it would be substituted for the BOP defendants

pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988

(“the Westfall Act”), 28 U.S.C. § 2671 et seq., entered its appearance and removed the

case to the United States District Court for the Middle District of Pennsylvania on

August 16, 2024, under the general removal statute, 28 U.S.C. § 1441. Lykens moved to

remand the case to state court one week later, arguing, inter alia, that the government

lacked standing to remove because it was not a party. The Middle District’s United

States Attorney’s Office subsequently certified that the BOP defendants were acting

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within the scope of their employment at the time of the events from which Lykens’

common-law tort claims stem. 1 The government then filed a motion to dismiss the

complaint on several grounds, only one of which is relevant here. Because sovereign

immunity shields the United States and its employees from liability, the government

asserted that the exclusive remedy for Lykens’ claims is the limited waiver of immunity

contained within Section 2674 of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §

2671 et seq. The FTCA, however, obliges plaintiffs to exhaust administrative remedies

before filing suit. See id. § 2675(a). As Lykens had never presented his claims to the

BOP, the government contended that the District Court lacked subject-matter jurisdiction

to adjudicate them.

Lykens did not meaningfully respond to the government’s exhaustion argument.

Instead, he disputed that the BOP defendants were acting within the scope of their

employment. In his view, the BOP defendants failed to comply with mandatory

1

Federal regulations authorize the Attorney General to delegate his or her

certification authority to United States Attorneys. See 28 C.F.R. § 15.3. In this case, the

former United States Attorney for the Middle District of Pennsylvania further delegated

such authority to the chief of his Office’s civil division, who issued the scope-of-

employment certification in question. Per the Westfall Act, “[u]pon” such certification,

the pending “action or proceeding shall be deemed to be an action or proceeding brought

against the United States . . ., and the United States shall be substituted as the party

defendant.” 28 U.S.C. § 2679(d)(1), (2). Notwithstanding the Act’s seemingly

mandatory language, this Court and the United States Supreme Court have long

recognized that substitution is not automatic and that certifications are subject to

challenge and judicial review. See De Martinez v. Lamagno, 515 U.S. 417, 432-34 & n.9

(1995); Schrob v. Catterson, 967 F.2d 929, 934-36 (3d Cir. 1992) (citing, inter alia, Melo

v. Hafer, 912 F.2d 628, 642 (3d Cir. 1990)).

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provisions of the First Step Act and unambiguous Bureau policy concerning the

application of time credits and “then violated state and federal criminal law in an effort to

cover up their failures.” See ECF Doc. 12 at 1-4. Lykens requested limited discovery of

a few specific items: his inmate file; revisions to a spreadsheet used to track time credits;

“potentially sensitive” materials used to implement a computer program for automatically

calculating credits; and electronic communications invoking his name, the First Step Act,

or variations on the phrase “time credits.” See id. at 4-5. He also asked to depose each

defendant for up to two hours.

The parties’ motions were referred to the Honorable Daryl F. Bloom, the Middle

District’s Chief United States Magistrate Judge, who prepared a report recommending

that the District Court grant the government’s motion to dismiss for want of jurisdiction

and dismiss Lykens’ motion as moot. Among Judge Bloom’s conclusions was that “the

certification filed by the United States operates as prima facie evidence that the

defendants were acting within the scope of their employment,” and that “Lykens has not

controverted the certification.” See ECF Doc. 14 at 12-13. The District Court partially

adopted the report over Lykens’ objections and dismissed the case without prejudice. 2

The court agreed that Lykens’ failure to first present to the BOP “an administrative tort

2

The District Court declined to adopt Judge Bloom’s recommendation to dismiss

Lykens’ remand motion as moot, instead finding his challenge to the government’s

substitution meritless under the FTCA.

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claim of any sort” precluded its exercise of jurisdiction. See ECF Doc. 18 at 18-21. 3 The

court then summarily adopted the portion of the report addressing the disputed

certification. Lykens appeals.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review of District Court orders denying motions to remand and dismissing

complaints for lack of subject-matter jurisdiction, and we review findings of fact for clear

error. See Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of

Acct., 618 F.3d 277, 287 (3d Cir. 2010), as amended (Dec. 7, 2010); White-Squire v.

U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citing CNA v. United States, 535

F.3d 132, 139 (3d Cir. 2008)). “Our standard of review of questions concerning the

scope or opportunity for discovery is for abuse of discretion.” Brumfield v. Sanders, 232

F.3d 376, 380 (3d Cir. 2000) (citing Country Floors Inc. v. Gepner & Ford, 930 F.2d

1056, 1062 (3d Cir. 1992)).

III.

Lykens does not address exhaustion on appeal. He asserts that the District Court

committed reversible error in three respects: first, by not rejecting the United States’

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In reaching its conclusion, the District Court noted that Lykens had failed to

address the government’s exhaustion arguments. Lykens’ only discussion of the issue,

which he offered in his reply brief in support of his objections, was to inform the court

that he had filed a claim with the BOP in late November 2024—five months after filing

suit. The court found this belated act insufficient to cure the jurisdictional defect.

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notice of removal sua sponte for lack of standing to remove the action to federal court;

second, by not finding removal to be untimely beyond the 30-day period set forth in

28 U.S.C. § 1446(b) and then remanding; and third, by uncritically accepting the

government’s scope-of-employment certification. We address each in turn.

Lykens’ contention that the United States put the cart before the horse in removing

the case on the BOP defendants’ behalf before filing its notice of substitution is well-

taken. But it is well-settled that a District Court’s “error in failing to remand a case

improperly removed is not fatal to the ensuing adjudication if federal jurisdictional

requirements are met at the time judgment is entered.” See Caterpillar Inc. v. Lewis, 519

U.S. 61, 64 (1996). Whatever statutory or representational defect existed at the time of

removal in this case, it was cured when the United States formally requested substitution,

which, “[f]or purposes of establishing a forum to adjudicate the case,” is “dispositive.”

See Osborn v. Haley, 549 U.S. 225, 242 (2007) (citing 28 U.S.C. § 2679(d)(2)). As the

government effected its cure long before final judgment was entered—and, indeed,

before briefing on Lykens’ motion to remand had even concluded—the District Court did

not err in retaining jurisdiction.

The plain language of the Westfall Act also forecloses Lykens’ second argument.

While the general removal statute obliges a defendant to file a notice of removal within

30 days after receiving a copy of the initial pleading or service of the summons, as

appropriate, see 28 U.S.C. § 1446(b), the Westfall Act provides that civil actions covered

by an Attorney General’s certification “shall be removed . . . at any time before trial,” see

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28 U.S.C. § 2679(d)(2) (emphasis added). Trial had not commenced in this case by the

time the government filed its notice of substitution under the Westfall Act.

Lykens’ third argument fares no better than his first two. “Ordinarily, scope-of-

employment certifications occasion no contest.” De Martinez, 515 U.S. at 421. That

may explain why they “customar[ily] state[] no reasons for the . . . determination.” See

id. Here, though, “substitution of the United States would cause demise of the action” if

Lykens in fact failed to exhaust administrative remedies before filing suit because a

proper certification would “disarm” him completely. See id. at 422, 427. The Supreme

Court was cognizant of that consequence when it held that the bare fact of certification

“does not conclusively establish as correct the substitution of the United States as

defendant in place of the employee.” See id. at 434. Where the propriety of the

certification is in question, judicial review is essential.

We summarized the steps that District Courts should take when confronted with

contested certifications more than three decades ago in Melo v. Hafer, 13 F.3d 736 (3d

Cir. 1994) (“Melo II”). The court should begin by reviewing “[t]he Attorney General’s

certification” to determine whether it “state[s] the basis for his or her conclusion.” See

id. at 747 (emphasis added). 4 If it does, the certification “will focus the subsequent

proceedings on the motion for substitution and . . . can be given the prima facie effect in

4

We anticipated, for instance, that some certifications would address “cases in

which the plaintiff alleges conduct which is beyond the scope of the defendant’s

employment, but which the Attorney General determines did not occur.” See Melo II,

13 F.3d at 747.

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those proceedings that Congress intended it to have.” Id. When a certification “is based

on a different understanding of the facts than is reflected in the complaint,” we instructed

that “the plaintiff should be permitted reasonable discovery and should then be called

upon to come forward . . . with competent evidence supporting the facts upon which he

would predicate liability, as well as any other facts necessary to support a conclusion that

the defendant acted beyond the scope of his employment.” Id. at 747. In the event the

plaintiff “fails to tender such evidence,” the Westfall Act “requires that substitution be

ordered.” Id. If, on the other hand, limited discovery produces “competent evidence that

would permit a conclusion contrary to that found in the certification,” the government

and the defendants, “after discovery if desired,” would be “entitled to an evidentiary

hearing at which both sides will tender their evidence on all disputes material to the scope

of employment issue.” Id. At that point, the District Court would do what District

Courts do best: “resolve all issues of fact or law relevant” to the scope-of-employment

question and make a finding one way or another. See id. at 747-48.

Adhering to custom, the government’s certification in this case comprises just two

sentences. The first sentence identifies the author, who notes the statutory and regulatory

authorities by which decision-making power under the Westfall Act has been delegated to

him and certifies that he has read Lykens’ complaint. The second states that, “[o]n the

basis of the information now available with respect to the allegations therein, I find that

the individual defendants . . . were acting within the scope of their employment as

employees of the United States at the time of the conduct alleged in the Complaint.” See

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ECF Doc. 7-1. Lykens asserts that the District Court erred in imbuing this statement with

the rebuttable presumption of truth and for failing to permit limited discovery to probe its

accuracy. In response, the government echoes Judge Bloom’s analysis that “Lykens fails

to offer ‘specific facts’ to show that the certification was incorrect or ‘based on a

different understanding of the facts than is reflected in the complaint.’” C.A. Doc. 16

at 13 (quoting Melo II, 13 F.3d at 747). The government has the better argument.

The instant certification varies only slightly from the one we considered in

Brumfield. In affirming the order denying limited discovery on a scope issue in that case,

we remarked that the Attorney General’s certification “appears to have been based on the

plaintiff’s complaint” given her statement that she read the pleadings and reached her

opinion “upon the basis of the information now available to [her] with respect to the

incidents referred to therein.” See Brumfield, 232 F.3d at 380 (citation omitted). There,

as here, the plaintiff did not contend that the certification turned upon a misunderstanding

of the complaint’s allegations, which is the key the unlocking limited discovery. See

Melo II, 13 F.3d at 747.

Lykens believes that discovery is likely to produce evidence that the BOP

defendants “knowingly and willfully” broke the law by lying to Congress and falsifying

official documents. See C.A. Doc. 7 at 9-10. Even if that were true, it would not

undermine the government’s certification that the named defendants were acting within

the scope of their employment at the time of the events alleged. What matters for

purposes of determining the scope of one’s employment under Pennsylvania law is

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whether the conduct at issue (a) “is of the kind [the employee] is employed to perform”;

(b) “occurs substantially within the authorized time and space limits”; and (c) “is

actuated, at least in part, by a purpose to serve the master.” See McGuire ex rel. Neidig

v. City of Pittsburgh, 285 A.3d 887, 892 (Pa. 2022) (quoting RESTATEMENT (SECOND) OF

AGENCY § 228 (1958)). Thus, “even unauthorized acts”—including “intentional or

criminal” conduct—“may be within the scope of employment ‘if they are clearly

incidental to the [employer’s] business.’” See Brumfield, 232 F.3d at 381 (quoting Butler

v. Flo-Ron Vending Co., 557 A.2d 730, 736 (Pa. Super. Ct. 1989); Shuman Estate v.

Weber, 419 A.2d 169, 173 (Pa. Super. Ct. 1980)).

Judge Bloom accurately explained the foregoing precepts in his report and applied

them to Lykens’ allegations. The “specific facts” Lykens set forth in his complaint fall

well short of rebutting the government’s certification. See Schrob, 967 F.2d at 936.

Assuming, arguendo, the BOP defendants testified falsely or fabricated documents with

respect to their obligations under the First Step Act, such conduct still would have fallen

within the scope of their employment with the Bureau. The same is true of Lykens’ other

averments, all of which center on the calculation of time credits. The District Court did

not err in adopting Judge Bloom’s report in this regard.

All that remains is exhaustion. “The FTCA precludes suit against the United

States unless the claimant has first presented the claim to the relevant Federal agency and

the claim has been finally denied.” Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir.

2009); see 28 U.S.C. § 2675(a). “The final denial requirement is ‘jurisdictional and

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cannot be waived.’” Lightfoot, 564 F.3d at 627; accord Roma v. United States, 344 F.3d

352, 362 (3d Cir. 2003). Lykens’ failure to present his claim to the Bureau of Prisons

before filing suit is undisputed, and his overdue filing with the agency, the status of

which is unclear, cannot remedy his mistake post hoc in these proceedings.

Accordingly, we will affirm the judgment of the District Court.

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