Appendix — Aliota v. Graham

| uprema Court, U.S

| EIBED

* | MAY 19 1933

92-1863.

UNITED STATES SUPREME COURT

OFFICE OF THE curpx

No.

LOUIS J. ALIOTA and PAULETTE ALIOTA,

Vv.

JACK D. GRAHAM, WILLIAM D. SHOEMAKE,

KATHRYN FOWELLS, JANET WELLS, JOYCE BALL

UNITED STATES OF AMERICA,

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 91-3757 AND 92-3020

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

OF APPELLEES, LOUIS J. ALIOTA and PAULETTE ALIOTA

|

| Timothy D. McNair, Esquire

(814) 868-8541

VENDETTI, TALARICO and McNAIR

3820 Liberty Street

Erie, PA 16509

Wor

TABLE OF CONTENTS

1. Opinion of the United States District Court .............. Al

2. Opinion of the United States Court of Appeals

We TIE Be ND San eecs cha cn cescccksexucecicccdocas.cccines Al5

3. Order of the United States Court of Appeals

for the Third Circuit on Motion for Reargument

Se ME ccasienedsistirabinteaineceucor ce A37

hy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LOUIS J. ALIOTA and

PAULETTE ALIOTA,

Plaintiffs,

UNITED STATES OF AMERICA,

Defendant.

CIVIL ACTION NO. 90-244E

MEMORANDUM OPINION

COHILL, Chief Judge.

Presently before us is a Supplemental

Motion for Remand and to Strike Substitution of

the United States as a Defendant filed by

plaintiffs Louis J. and Paulette Aliota. For the

following reasons, we hold that the original

defendants were not acting within the scope of

their employment and therefore, we do not have

jurisdiction under the Federal Employees Reform

2mi Tort Compensation Act of 1988, 28 U.S.C. §

2679. We will remand this case to the Court of

Common Pleas of Erie County.

Facts

This defamation action arose from the

following incident described in the Complaint:

one work day, Kathryn Fowells, a pharmacist at

the Veterans Affairs Medical Center in Erie,

Pennsylvania (“Erie VA Medical Center”), alleg-

edly said something to one Tim Nies, a

pharmaceutical company representative, to the

effect that Mr. Aliota had been removed from his

duties as a registered pharmacist at the Erie VA

Medical Center due to his involvement ina “drug

scandal.” Complaint, 19. The Complaint states

that it was Jack D. Graham, Director of the Erie

VA Medical Center, and William D. Shoemake,

Associate Director of the Erie VA Medical

Center, who supplied this “gossip” to Kathryn

Fowells. Complaint, 44 11, 12. The Complaint

further asserts that Messrs. Graham and Shoemake

intentionally conspired to circulate those

rumors, knowing them to be false. Complaint, 14

11-12. “Janet Wells is a pharmacist and Joyce

Bell is a pharmacy technician at the Erie VA

Medical Center. Notice of Removal, 11 6-7. The

VA Medical Center employees were original

i

defendants in this action.

On September 24, 1990, plaintiffs com-

menced this action by the filing of a Praecipe

for Issuance of Writ of Summons in the Court of

Common Pleas of Erie County, Pennsylvania, at

No. 4116-A-1990.

On October 6, 1990, the government removed

this case to this Court based on 28 U.S.C. § 2679

which provides that a tort case against a federal

employee can be removed from state to federal

court upon certification by the Attorney General

that the employee was acting within the scope of

his or her employment. The plaintiff subse-

quently filed the Complaint. After that,

plaintiffs filed a Motion to Remand for Failure

to Comply with 28 U.S.C. § 2679, asserting that

the Attorney General had failed to certify that

the Erie VA Medical Center employees were acting

within the scope of their employment.

On December 17, 1990, the original defen-

dants Jack D. Graham, William D. Shoemake,

Kathryn Fowells, Janet Wells, and Joyce Ball,

filed a Notice of Substitution of the United

ao as a Defendant. Attached with that notice

‘iy |

was a Certification of Scope of Employment

signed by Thomas W. Corbett, Jr., United States

Attorney for the Western District of Pennsylva-

nia, acting as a designate of the Attorney

General, certifying that the Erie va Medical

Center Employees were acting within the scope of

their employment as employees of the United

States.

On December 26, 1990, this Court entered an

Order approving the substitution. The United

States then filed a motion to dismiss. This

Court then entered an Order on March 27, 1991,

denying plaintiffs’ Motion to Remand for Failure

to Comply with 28 U.S.C. § 2679 as being moot

since the Certification of Scope of Employment

had been filed.

On April 17, 1991, plaintiffs filed

Supplemental Motion for Remand and to Strike

Substitution of United States as a Defendant.

Pursuant to plaintiffs’ request, we scheduled an

evidentiary hearing with respect to that motion

on May 29, 1991. At the hearing, plaintiffs

requested leave to take the depositions of the

original defendants, and the government he

i

quested leave to take the plaintiffs’ deposi-

tions. That same day, this Court entered a

written order outlining the discovery param-

eters.

Now for our determination is the issue of

whether the original defendants were acting

within the scope of their employment with

respect to the incident concerning Mr. Aliota.

Discussion

Title 28 U.S.C. § 2679 was enacted to

provide federal employees absolute immunity for

activities within the scope of their employment.

Melo v. Hafer, 912 F.2d 628, 639 (3d Cir. 1990),

cert. granted, 112 L-Ed.2d 1176 (1991). The

provision at issue establishes:

Upon certification by the Attorney General

that the defendant employee was acting

within the scope of his office of employ-

ment at the time of the incident out of

which the claim arose, any civil action or

proceeding commenced upon such claim ina

State court shall be removed...to the

district court. ...Such action or proceed-

ing shall be deemed to be an action or

proceeding brought against the United

States under the provisions of this title

and all references thereto, and the United

States shall be substituted as the party

defendant. This certification of the

ee

Attorney General shall conclusively estab-

lish scope of office or employment for

purposes of removal.

28 U.S.C. § 2679(d)(2). In Melo v. Hafer, 912

F.2d at 642, the Court of Appeals for the Third

Circuit held that a district court may review the

government’s certification that the actions of

the defendants were within the scope of their

employment. We reviewed the Petition for Writ

of Certiorari and all other pleadings that were

filed with the United States Supreme Court in the

Melo v. Hafer case. The issue of whether the

United States Attorney’s determination that

employees were acting within the scope of their

employment is subject to review was not raised.

The government suggests that before we can

reach the scope of employment issue, plaintiffs

must first prove that there were defamatory

statements made. We disagree because this issue

is the very substance of the case. In this

Memorandum Opinion we are merely concerned with

the scope of employment which will or will not

give this Court’s jurisdiction pursuant to

Federal Employees Reform and Tort Compensation

Act of 1988, 28 U.S.C. § 2679. :

Plaintiffs do, however, bear the burden of

proving that the employee’s conduct was not

encompassed by the scope of employment. S.J. &

W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1543

(llth Cir, 1990), reh’g denied en banc, 925 F.2d

1477 (llth Cir. 1991). Whether an employee’s

actions are within the scope of employment for

purposes of 28 U.S.C. § 2679 is governed by the

law of the state where the incident occurred.

Id. at 1542.

Pennsylvania courts have adopted § 228 of

the Restatement (Second) of the Agency to define

scope of employment:

(1) Conduct of a servant is within the scope

of employment if, but only if: (a) it is of

the kind he is employed to perform; (b) it

occurs substantially within the authorized

time and space limits; (c) it is actuated,

at least in part, by a purpose to serve the

master, and (d) if force is intentionally

used by the servant against another, the

use of the force is not unexpectable by the

master. (2) Conduct of a servant is not

within the scope of employment if it is

different in kind fromthat authorized, far

beyond the authorized time or space limits,

or too little actuated by a purpose to serve

that matter.

See = Vv j O., 383 Pa. Super.

PNG 557 A.2d 730 (Pa. Super. 1989), appeal

denied 523 Pa. 646, 567 A.2d 650 (1989).

In applying § 228, we find that the Erie VA

Medical Center employees were not acting within

the scope of their employment. We recognize that

the alleged incident took place during the work

day on the premises of the Erie VA Medical

Center. We must, however, examine the other

aspects of § 228.

The alleged statements relative to §

228(1)(a), if made, clearly fall outside the

scope of employment. The plaintiff alleged that

Messrs. Graham and Shoemake informed Ms.

Fowells, who, in turn, informed Tim Nies, that

Mr. Aliota was involved in a “drug scandal.”

These do not comprise tasks that those original

defendants were required to perform. In

considering Ms. Fowells’ job description as a

pharmacist, it provides that “Contacts include

patients, Allied Health Care personnel, manu-

facturer representatives, private physicians

and other VA employee” and that the purpose of

the contacts is the “Factual exchange of

information, offer recommendations to provide

service, to resolve problems -*id to offer the

an

best possible information in the application of

pharmaceutical expertise.” Pakutz Aff., ex. B,

p. 4. The allegations of this lawsuit do not

state that the original defendant passed on

factual] information. This case is a defamation

action! Therefore, we conclude the alleged

conduct of the individual defendants was not

conduct that they were employed to perform.

With respect to § 228(1)(c), the individual

defendants were obviously not motivated by a

purpose to serve the interests of the Erie VA

Medical Center. Indeed, Mr. Graham informed the

employees to refer questions about Mr. Aliota to

Mr. Graham, because the incident “was nobody’s

business.” Deposition of Joyce Ball, p. 29. See

also Deposition of Kathryn Fowells, p. 37. The

alleged incident was contrary to the direction

Mr. Graham, so it is clear that it was not for

the purpose of serving the interests of the Erie

VA Medical Center.

Our conclusion is supported by a comparison

of this case to two other cases that the

government cites. In Michelson v. Exxon

, 629 F.Supp. 418,

422 (W.D.Pa. 1986), aff'd, 808 F.2d 1005 (3d Cir.

1987), the court held that the agents of the

defendant corporation were acting within the

scope of their employment with respect to a

memorandum that one of its employees wrote. In

that case, plaintiff William L. Michelson, a

materials inspector of Exxon, Was assigned tu

conduct a locomotive inspection. Those present

at the inspection included various Exxon

trainees and officials and one Gustavo Arias, an

employee of Carbocol. Mr. Arias was not

impressed by plaintiff's actions and attitude at

the inspection, so he telephoned J.P. Kelly, an

Exxon employee and complained. Mr. Kelly

documented the phone conversation in a memoran-

dum which was sent to his superiors at Exxon. The

memorandum stated that Mr. Arias criticized

plaintiff for his lack of knowledge about

locomotive, his attention to minor details, and

his “arrogant attitude.” The memorandum also

noted that, not being present, Mr. Kelly could

not verify the accuracy of Mr. Arias’ state-

ments.

In that case the Court stated that there was

no doubt that defendant’s agents were acting

within the scope of their authority in their

actions regarding the Kelly memorandum. [d. at

422. “The memo is from an employee to other

employees concerning the performance of a third

employee in transacting company business.” Id.

Additionally, in Chuy v. Philadelphia

Eagles Football Club, 595 F.2d 1265 (3d Cir.

1979), Chuy was a professional football player

with the Philadelphia Eagles. The Philadelphia

Eagle’s team physician, Dr. James Nixon, made a

statement-to the press to the effect that Chuy

was suffering from a fatal disease, while he

allegedly knew the statement to be false. The

court determined that Dr. Nixon was acting

within the scope of his employment because the

Philadelphia Eagles had the right to control,

and actually did control, the substance of Dr.

Nixon’s statements to the press concerning the

physical condition of the team’s players. Jd.

at 1276.

The case at issue, in comparison, involved

alleged gossip-spreading and character-smear-

> ng which are definitely not tasks that the Erie

K

VA Medical Center Employees were authorized to

or employed to perform. We therefore conclude

that the original defendants were not acting

within the scope of their employment and

therefore, this Court does not have jurisdic-

tion. We will remand this case to the Court of

Common Pleas of Erie County.

/s/ Maurice B. Cohill, Jr.

Maurice B. Cohill, Jr.

Chief Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LOUIS J. ALIOTA and

PAULETTE ALIOTA,

Plaintiffs,

Vv.

UNITED STATES OF AMERICA,

Defendant.

CIVIL ACTION NO. 90-244E

ORDER

AND NOW, to-wit, this 30th day of August,

1991, for the reasons stated in the foregoing

Memorandum Opinion, it is ORDERED. ADJUDGED, and

DECREED that Plaintiffs’ Louis J. and Paulette

Aliota’s Supplemental Motion for Remand and to

Strike Substitution of the United States as a

Defendant be and hereby is GRANTED. Accord-

ingly, this case be and hereby is REMANDED to the

Court of Common Pleas of Erie County, Pennsyl-

vania.

‘5 / woe ae

. Maurice B. Cohill, Jr.

wy) Chief Judge

cc:

Timothy D. McNair, Esq.

Bifulco, Bender, Scarpitti,

Moore & McNair

1300 Baldwin Bldg.

Erie, PA 16501

Pamela J. Grimm

Assistant United States Attorney

Filed January 22, 1993

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 91-3757 and 92-3020

LOUIS J. ALIOTA and PAULETTE ALIOTA,

Vv.

JACK D. GRAHAM, WILLIAM D. SHOEMAKE,

KATHRYN FOWELLS, JANET WELLS, JOYCE BALL,

UNITED STATES OF AMERICA,

Appellants in No. 91-3757

IN RE: UNITED STATES OF AMERICA,

JACK D. GRAHAM, WILLIAM D. SHOEMAKE,

KATHRYN FOWELLS, JANET WELLS and

JOYCE BALL,

Petitioners in No. 92-3020

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

(D.C. Civil No. 90-00244E)

Argued

June 25, 1992

Before: BECKER, HUTCHINSON, and ALITO,

Circuit Judges

(Opinion Filed: January 22, 1993)

THOMAS W. CORBETT, JR.

United States Attorney

BONNIE R. SCHLUETER

Office of United States Attorney

633 United States Post Office &

Courthouse

Pittsburgh, PA 15219

STUART M. GERSON

Assistant Attorney General

BARBARA L. HERWIG

Civil Division

MALCOLM L. STEWART (Argued)

ROBERT V. ZENER

CHRISTINE N. KOHL

Appellate Section

Civil Division, Room 3617

Department of Justice

Washington, D.C. 20530

Attorneys for Appellants/Petitioners

TIMOTHY D. McNAIR, ESQ. (Argued)

VENDETTI, TALARICO and McNAIR

3820 Liberty Street

Erie, PA 16509

Attorneys for Appellees/ Respondents

OPINION OF THE COURT

ALITO, Circuit Judge:

The United States has appealed and has filed a

mandamus petition seeking review of a district

court order in a defamation action that was

originally begun in state court against five federal

pit

employees in their individual capacities. After the

case was removed to federal court and the United

States was substituted for the original defendants

pursuant to a provision of the Federal Employees

Liability Reform and Tort Compensation Act of

1988 (the “Westfall Act’), 28 ~=@U..S.C.

§ 2679(d)(1988), the district court resubstituted

the original defendants and remanded the case to

state court. We hold that the district court's

resubstitution decision is appealable under the

coliateral order doctrine; that the remand was

prohibited by 28 U.S.C. § 2679(d)(2)(1988) and is

reviewable by mandamus; and that the district

court applied incorrect legal standards in

concluding that the originally named individual

defendants were not acting within the scope of

their employment when they allegedly engaged in

the conduct in question. We will therefore vacate

the order of the district court and remand for

further proceedings.

I.

Louis J. Aliota served as chief of the pharmacy

at the Veterans Affairs Medical Center in Erie,

Pennsylvania, from 1980 until 1989. In 1989,

Aliota was relieved of his duties as chief of the

pharmacy and placed in another position.

In October 1990, Aliota and his wife began a

civil action in the Court of Common Pleas for Erie

County against five employees of the Medical

Center. These individuals are Jack D. Graham, the

director of the Medical Center; William D.

Shoemake, the associate director of the Medical

Center; and Joyce Ball, Kathryn Fowells, and

Janet Wells, three other Medical Center employees.

The plaintiffs subsequently served a motion stating

that their suit was based on slander and

conspiracy arising from statements made by the

defendants during September and October 1989.

Represented by the Department of Justice. the

defendants filed a notice of removal to the United

States District Court for the Western District of

Pennsylvania. In that notice, counsel for the

defendants stated:

Plaintiffs’ counsel represented to undersigned

counsel in a telephone conversation . . . that the

allegedly slanderous statements at issue were

made by defendants at the Erie VA Medical

Center to a pharmaceutical company

representative in the course’ of __ that

representative's regular business visit to the Erie

VA Medical Center.

. . . Plaintiffs’ cause of action, if any, appears to

arise from actions taken by defendants in the

course of their employment and, therefore, is

subject to federal jurisdiction pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 2679.

The plaintiffs subsequently filed a complaint in

the federal court, alleging that “[o]Jn or about

September 23, 1989, Defendant Kathryn Fowells

made statements to one Tim Nies to the effect that

Plaintiff Louis J. Aliota had been removed from his

duties due to his involvement in a ‘drug scandal’.”

The complaint further alleged that “Defendants

Jack D. Graham and William D. Shoemake

communicated the aforementioned defamatory

statement to Kathryn Fowells with knowledge that

it was false and with the intent to injure Plaintiff

in his reputation.” The complaint did not contain

NY

any specific allegations concerning the remaining

defendants.

The United States Attorney for the Western

District of Pennsylvania, exercising authority

delegated by the Attorney General of the United

States, certified that the five individual defendants

were acting within the scope of their employment

when they allegedly engaged in the conduct in

question. The district court then ordered that the

United States be substituted as the sole defendant

and that the claims against the individual

defendants be dismissed.

The plaintiffs subsequently filed a motion to

remand the case and to strike the substitution of

the United States as the defendant, arguing that

the individual defendants had not been acting

within the scope of their employment. At an

evidentiary hearing on this motion, both sides

requested leave to take depositions. The court

granted these requests, and after the depositions

were completed, the court held that none of the

defendants had been acting within the scope of

their employment when they allegedly made the

defamatory statements. The court therefore entered

an order striking the substitution and remanding

the case to the state court. The United States filed

a notice of appeal, as well as a petition for

mandamus seeking review of the remand.

Il.

We first address the question whether the

portion of the district court's order resubstituting

the originally named defendants in place of the

United States is reviewable by means of an appeal

filed under 28 U.S.C. § 1291 (1988). This question

may be divided into two subquestions: first,

whether review of this portion of the district

court's order is barred by 28 U.S.C. § 1447{(d)

(1988), which restricts review of remand orders,

and second, whether this portion of the district

court's order is “final” within the meaning of 28

U.S.C. § 1291 (1988).

A. We hold that review of the question of

resubstitution is not barred by 28 U.S.C.

§ 1447(d)(1988). This provision concerns appellate

review of “[aJn order remanding a case to the State

court from which it was removed. . . .” 28 U.S.C.

§ 1447(d)(1988). This provision says nothing about

orders directing the resubstitution of parties.

Accordingly, unless the question of resubstitution

is viewed as somehow inextricably linked to the

question of remand, 28 U.S.C. § 1447(d)(1988)

does not bar review.

The Supreme Court considered a closely related

issue in Waco v. United States Fidelity & Guar.

Co., 293 U.S. 140 (1934). In Waco, the district

court in a removed case issued a single order that

dismissed a cross-claim and remanded the case to

the state court for lack of diversity jurisdiction.

The Supreme Court held that the portion of the

district court's order dismissing the cross-claim

was appealable despite the restriction on appellate

review of remand orders contained in the statutory

predecessor of 28 U.S.C. § 1447(d)(1988).' The

Supreme Court wrote (id. at 143):

True, no appeal lies from the order of remand;

but in logic and in fact the decree of dismissal

preceded that of remand and was made by the

1. Judicial Code of 1911, ch. 3, § 28, 36 Stat. 1094, 1095

(1911).

District Court while it had control of the cause.

Indisputably this order is the subject of an

appeal; and, if not reversed or set aside, is

conclusive upon the petitioner

See also In re TMI Litigation Cases, 940 F.2d 832,

841-42 (3d Cir. 1991), cert. denied, Gumby ov.

General Pub=--Utils. Co., 112 S. Ct. 1262 (1992).

Applying this reasoning, we conclude that review

of the question of resubstitution in the present

case is not barred by 28 U.S.C. § 1447(d)(1988).

This question is separate from and _ logically

precedes the question of remand. We note that the

Fifth Circuit reached the same conclusion in

Mitchell v. Carlson, 896 F.2d 128, 132-33 (5th Cir.

1990).

B. We also hold that the order of the district

court, insofar as it resubstituted the originally

named defendants, was “final” within the meaning

of 28 U.S.C. § 1291 (1988) because it fell within

the collateral order doctrine of Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949). In order

to fall within this exception to the general finality

requirement, “[t}he order must _ conclusively

determine the disputed question, resolve an

important issue [that is] completely separate from

the merits of the action, and be effectively

unreviewable on appeal from a final judgment.”

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978). See also Lauro Lines S.R.L. v. Chasser, 490

U.S. 495, 498 (1989); Mitchell v. Forsyth, 472 U.S.

511, 524-25 (1985). In addition, the order must

involve a claim of right that is “too important to

be denied review.” Cohen, 337 U.S. at 546.

We believe that the district court's decision

concerning the resubstitution question in this case

satisfies all of these requirements. First, the

district court's determination represented its final

word on the resubstitution. Second, the question

of resubstitution is completely separate from the

merits of the defamation action. Third, the district

court’s decision that the individual defendants

should be resubstituted would be effectively

unreviewable on appeal irom a final judgment.

Such is the case when an order involves “an

asserted right the legal and practical value of

which would be destroyed if it were not vindicated

before trial.” United States v. MacDonald, 435 U.S.

850, 860 (1978) (footnote omitted). See also Lauro

Lines, 490 U.S. at 498-99. The denial of a

government official's motion to dismiss an action

based upon a claim of absolute immunity is

effectively unreviewable on appeal from a final

judgment because “the essence of absolute

immunity is its possessor's entitlement not to have

to answer for his conduct in a civil damages

action.” Forsyth, 472 U.S. at 525. An order

granting resubstitution effectively denies a federal

employee's claim to absolute immunity. As we

recognized in Melo v. Hafer, 912 F.2d 628, 639 (3d

Cir. 1990), affd, 112 S. Ct. 358 (1991), the

primary purpose of the Westfall Act was to ensure

that federal employees enjoyed “a status of

absolute immunity for activities within their scope

of employment.” See also Schrob v. Catterson, 967

F.2d 929, 934 (3d Cir. 1992). It therefore follows,

in our view, that a resubstitution order, like an

order denying a claim of absolute immunity, is

effectively unreviewable on appeal from a final

judgment.’

2. In addition, an order denying “a substantial claim of

?

In Mitchell v. Carlson, the Fifth Circuit held that

a resubstitution order is appealable under the

“collateral order” doctrine and reasoned as follows:

(896 F.2d at 133):

The district court's order resubstituting [a federal

employee] as defendant effectively denied [her]

immunity from suit if she was entitled to such

immunity under the Westfall Act. Under the Act,

once the United States Attorney certifies that the

federal employee acted within the scope of her

employment, the plaintiff properly can proceed

only against the United States as defendant. The

federal employee remains immune from suit. By

reviving the suit against her, the district court

subjected [her] to the burden of defending a suit

in state court, a burden from which she is

entitled to be immune.

We agree with this reasoning and thus hold that

the resubstitution order is appealable under the

collateral order doctrine.®

III.

A. We now come to the most difficult question

in this case, i.e., whether the order of remand is

reviewable despite the restriction imposed by 28

U.S.C. § 1447(d)(1988). With certain specified

exceptions not pertinent here, this provision

states:

absolute isamunity” is too important to be denied immediate

review. Forsyth, 472 U.S. at 525.

3. We note that our recent opinion in Schrob, 967 F.2d at

936, stated that “[i]n the event that a substitution is set aside,

the defendant may probably appeal under the collateral order

doctrine.”

10

An order remanding a case to the State court

from which it was removed is not reviewable on

appeal or otherwise... .

While this language is “seemingly unequivocal,”

it has been held to permit “appellate consideration

of certain categories of remand orders.” In re TMI,

940 F.2d at 841. Most notably, in Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976), the Supreme Court held that 28 U.S.C.

§ 1447(d)(1970), did not preclude the court of

appeals from reviewing by means of mandamus an

order of the district court remanding a removed

case solely because of the district court's crowded

docket. The Supreme Court held that 28 U.S.C.

§ 1447(d) (1970), had to be read together with 28

U.S.C. § 1447(c) (1970), which required a district

court to remand a case if it appeared that the case

had been “removed improvidently and without

jurisdiction.“* “This means,” the Supreme Court

then reasoned (423 U.S. at 346), “that only

remand orders issued under § 1447(c) and

invoking the grounds specified therein — that

removal was improvident and without jurisdiction

— are immune from review under § 1447(d).” The

Court added (id. at 351): “[Wle are not convinced

that Congress ever intended to extend carte

blanche authority to the district courts to revise

the federal statutes governing removal by

remanding cases on _ grounds that seemed

justifiable to them” but were not legally

permissible. Because a crowded district court

docket was not a permissible ground for remand,

4. 28 U.S.C. § 1447(c) (1988) now provides that a case must

be remanded if “it appears that the district court lacks subject

matter jurisdiction.”

%

11

the Court held that the remand order in that case

was reviewable.

Based on similar reasoning, we have held that

a variety of remand orders are reviewable. See In

re TMI, 940 F.2d at 838-48; Foster v. Chesapeake

Ins. Co., Ltd., 933 F.2d 1207, 1210-11 (3d Cir.),

cert. denied, 112 S. Ct. 302 (1991); Air-Shields,

Inc. v. Fullam, 891 F.2d 63, 65-66 (3d Cir. 1989);

Hewlett v. Davis, 844 F.2d 109, 115 (3d Cir. 1988);

Levy v. Weissman, 671 F.2d 766, 768-69 (3d Cir.

1982). But see Gravitt v. Southwestern Bell Tel.

Co., 430 U.S. 723 (1977) (Thermtron does not apply

where district court remands based on statutory

grounds even if it employs erroneous principles in

reaching its conclusion).

B. In order to apply the teaching of Thermtron

to the present case, it is necessary to understand

the background of the Westfall Act and its

provisions relating to the removal of actions filed

in state court.

Before the Supreme Court's decision in Westfall

v. Erwin, 484 U.S. 292 (1988), the United States

took the position that federal employees were

absolutely immune from suits for damages under

state tort law whenever their conduct fell within

the scope of their official duties. See id. at 296.

In Westfall, however, the Supreme Court held that

this immunity applied only to conduct that was

discretionary in nature. Id. at 300. At the same

time, the Court observed ({id.):

Congress is in the best position to provide

guidance for the complex and often highly

empirical inquiry into whether absolute tmmunity

is warranted in a particular context. Legislated

standards governing the immunity of federal

ie Ad eae

12

employees involved in State-law tort actions

would be useful.

Congress quickly responded by enacting the

Westfall Act. As we explained in Melo v. Hafer, 912

F.2d 628, 639 (3d Cir. 1990), affd, 112 S. Ct. 358

(1991):

The primary purpose of [the Westfall Act] was “to

return Federal employees to the Status they held

prior to the Westfall decision,” that is, a status

of absolute immunity for activities within their

scope of employment. See H.R. Rep. No. 100-700,

100th Cong., 2d sess., reprinted in 1988 U.S.

Code Cong. & Admin. News 5945, 5947... .

In the Federal Torts Claims Act, Congress

consented to suits against the United States for

certain torts committed by federal employees

“while acting within the scope of [their] office or

employment.” 28 U.S.C. § 2672 (1988 & Supp. II

1990). Under 28 U.S.C. § 2679( b)(1) (1988), this

remedy “is exclusive of any other civil action or

proceeding for money damages... arising out of

or relating to the same subject matter against the

employee or the employee's estate.”

Whenever such an action is filed against a

federal employee, the Department of Justice must

provide representation. 28 U.S.C. § 2679(c) ( 1988).

If the action is commenced in federal court and

the Attorney General certifies that the employee

was acting within the scope of his or her office or

employment at the time in question, the United

States must be substituted as the defendant. 28

U.S.C. § 2679(d)(1)(1988). If the action is

commenced in state court and the Attorney

General makes a similar certification, the action

13

“shall be removed without bond at any time before

trial by the Attorney General” to the appropriate

district court, and the United States must then be

substituted as the defendant. 28 U.S.C.

§ 2679(d)(2)(1988). Moreover, this provision states

that “It}his certification of the Attorney General

shall conclusively establish scope of office or

employment for purposes of removal.” Id. (emphasis

added).

If the Attorney General refuses to certify that an

employee was acting within the scope of the

employee's office or employment, a_ different

procedure is followed. The employee may petition

the court to make such a certification. 28 U.S.C.

§ 2679(d)(3)(1988). If the case was filed in state

court, the Attorney General may remove it without

bond to the appropriate district court. Id. If the

district court, in considering the petition,

determines that the employee was not acting

within the scope of the employee's office or

employment, the case must be remanded. Id. If the

district court holds that the employee was acting

within the scope of the employee's office or

employment, the United States must _ be

substituted as the defendant. Id.

From this statutory scheme, we conclude that

when a tort suit against a federal employee is filed

in state court and the Attorney General certifies

that the employee was acting within the scope of

the employee's office or employment and removes

the case, the district court has no authority to

remand the case on the ground that the Attorney

General's certification was erroneous. We believe

that this conclusion is dictated by the plain

language of 28 U.S.C. § 2679(d)(2)(1988) stating

that the Attorney General's certification “shall

14

conclusively establish scepe of office or

employment for purposes of removal” (emphasis

added).

This conclusion is also supported by our opinion

in Melo, 912 F.2d at 641. In that case we held

that 28 U.S.C. § 2679(d)(2)(1988) does not

preclude a district court from resubstituting the

original defendants for the purpose of trial if the

court concludes after removal that the Attorney

General's certification was incorrect. See 912 F.2d

at 639-42. We strongly suggested, however, that

the Attorney General's certification is conclusive

Jor the purposes of establishing a forum in which

the case would proceed. We stated (id. at 641)

(emphasis added) that “[tJhere are significant

policy reasons why Congress would choose to give

the government an unchallengeable right to have a

federal forum for tort suits brought against its

employees,” but we found “no suggestion in [the

Westfall Act] that once the federal forum has been

secured, Congress was inclined to make the

Attorney General's right to substitute the

government for the employee unreviewable.”

Furthermore, if the portion of 28 U.S.C.

§ 2679(d)(2) quoted above allowed a district court

to remand a removed action on the ground that

the Attorney General's certification was erroneous,

this language would be essentially meaningless.

The Attorney General's certification would not

“conclusively establish scope of office or

employment” for any purpose — not for purpose

of trial or removal. The Attorney General's scope

certification would simply provide a temporary

basis for removal until the district court reviewed

it. This would mean that a state case in which the

Attorney General certified scope of employment

@

15

and removed the case under 28 _ U.S.C.

§ 2679(d)(2)(1988) would be treated in essentially

the same way as a state case in which the

Attorney General refused to certify scope of

employment but removed the case following an

employee's petition for court ccrufcation under 28

U.S.C. § 2679(d)(3)(1988). We are convinced that

the language of 28 U.S.C. § 2679(d)(2)(1988) was

not intended to give the Attorney General's scope

certification such a limited effect.®

C. In light of the statutory scheme set out

above, we hold that review of the remand in this

case is not barred by 28 U.S.C. § 1447(d)(1988).

Just as the Supreme Court in Thermtron held that

28 U.S.C. § 1447(d)(1970) must be read together

with 28 U.S.C. § 1447(c)(1970), we hold that 28

U.S.C. § 1447(d)(1988) must be read together with

28 U.S.C. § 2679(d)(2)(1988). This latter,

5. In Schrob v. Catterson, 967 F.2d 929, 934 n.8 (3d Cir.

1992), we stated, citing Snodgrass v. Jones, 957 F.2d 482,

484 (7th Cir. 1992), that “it may well be that a case may be

remanded to the state court if it is later determined that the

employee had not been acting within the scope of

employment.” In Snodgrass, the action was first removed and

then remanded to the state court prior to the enactment of

the Westfall Act. See 957 F.2d at 484. The Attorney General

then refused to certify scope of employment, but the employee

petitioned for court certification, and the United States

removed this petition to federal court under 28 U.S.C.

§ 2679(d)(3)(1988) (957 F.2d at 484). The district court then

held that the employee was not acting within the scope of

employment, and the court of appeals affirmed. In light of

Snodgrass, our footnote in Schrob must be understood to

mean that a removal case may be remanded when the Attorney

General refuses to certify scope of employment, the removal

occurs after the employee petitions for court certification, and

the court holds that the employee was not acting within the

scope of his or her employment.

ee

16

subsequently enacted provision expresses

Congress's intent that subject matter jurisdiction

is conclusively established upon the Attorney

General's certification. Since subject matter

jurisdiction has been conclusively established,

there is no jurisdictional question to be resolved

by the district court. “Because the District Court

remanded a properly removed case on grounds that

he had no authority to consider, he exceeded his

Statutorily defined powers; and issuance of the

writ of mandamus was not barred by § 1447(d).”

Thermtron, 423 U.S. at 351 (emphasis added).

The decision here stands in marked contrast to

the normal jurisdictional decisions made in

connection with remand. Normally, the district

court will be called upon by the relevant statute

to make a_ preliminary determination, such as

whether there is complete diversity, that will in

turn determine whether or not there is jurisdiction.

In the present case, however, there is no

preliminary determination for the district court to

make. Thus the present case falls outside of the

type of cases § 1447(d) was intended to cover. See

In re TMI, 940 F.2d at 844 (noting that the

constitutional decision at issue there was different

from the normal remand decision (existence of

diversity or a federal question) that involved

reference to a well-established body of law); see

also id. ai 845-46 (discussing the jurisprudential

concerns associated with the inability to review a

constitutional decision).

It does not follow from our decision that anytime

the district court misinterprets a jurisdictional

Statute we have authority to review the remand

decision. See, e.g., Gravitt v. Southwestern Bell Tel.

Co., supra. Such an exception would obviously

17

swallow the rule. Here, however, Congress, by

expressly stating that the attorney general's

certification is “conclusive” as to jurisdiction, has

prohibited a district cuouri from using iis

disagreement with the attorney general's scope of

employment certification to deny jurisdiction and

so send the case back to the state court where it

originated. Thus, our holding is limited to the

narrow situation where the district court has relied

on a factor in its jurisdictional analysis that

Congress intended to exclude from consideration

of the jurisdictional issue. Only in that narrow

class of cases, in order to give meaning to the

legislative prohibition against the district court's

considering a particular factor in its jurisdictional

analysis, can we imply congressional intent to

authorize appellate review of a remand order.

For these reasons, we believe that we are not

barred by 28 U.S.C. § 2679(d)(2) from reviewing

the remand order in this case. Moreover, we

believe that mandamus is appropriate to prevent

a remand based on the prohibited ground on

which the district court relied. See, e.g.,

Thermtron, 423 U.S. at 352-53. In the words of

the First Circuit in Nasuti v. Scannell, 906 F.2d

802, 811 (lst Cir. 1990) (footnote omitted), “the

district court’s remand order was a departure so

lacking in statutory basis, amd so clearly contrary

to Congressional policy as expressed in _ the

Westfall Act, as to require our review by

mandamus.”

6. In Nasuti, the district court had remanded a removed case

despite the Attorney General's scope certification without

determining whether the individual defendants had in fact

acted within the scope of their employment. The court of

18

IV.

This brings us to the question whether the

district court was correct in concluding that the

originally named defendants were not acting within

the scope of their employment when they allegedly

defamed the plaintiffs. In our second opinion in

Schrob, 967 F.2d at 934-36, which was handed

down well after the district court's decision in this

case, we explained the procedures that a district

court should follow in deciding a question of this

type. We wrote that the Attorney General's scope

certification is prima facie evidence that the

employee's challenged conduct fell within the

scope of employment and that a plaintiff

challenging the certification therefore has the

burden of coming forward with specific facts

rebutting it. Id. at 936. We added (id.):

If the facts can be determined without an

evidentiary hearing, the court can rvle on a

pretrial motion to substitute or to set aside the

substitution based on the certification, pleadings,

documentary evidence, and affidavits. . . . On

the other hand, if there is a genuine issue of fact

material to the scope of employment question,

the district court should permit discovery and

conduct a hearing, if necessary. But the district

court should ensure that both the discovery and

the hearing are circumscribed as Narrowly as

appeals held that this remand order was reviewable, but the

court went on to state that review would not be available if

the district court, prior to remanding the case, had determined

that the employees had not been acting within the scope of

their employment. For the reasons explained above, we

disagree with this latter conclusion.

jas

19

possible, although these are matters within its

discretion.

From this discussion, it follows that our

standard of review in an appeal concerning

resubstitution must vary depending on _ the

procedure that the district court follows. If the

district court decides the question of scope of

employment based on the pleadings or affidavits,

we must apply the standard of review applicable

to a dismissal under Fed. R. Civ. P. 12(b)(6) or

12(c) or the standard applicable to an order

granting summary judgment. On the other hand,

if the court decides disputed questions of material

fact after conducting an evidentiary hearing, the

court's findings must be accepted unless clearly

erroneous. See Fed. R. Civ. P. 52(a). No matter

which procedure the district court follows,

however, the question whether an employee was

acting within the scope of employment given a

particular set of facts is a question of law subject

to plenary review. Washington v. United States,

868 F.2d 332, 334 (9th Cir.), cert. denied, 493 U.S.

992 (1989). This legal question is one of state law.

28 U.S.C. § 1346(b)(1988); Schrob, 967 F.2d at

934. Thus, Pennsylvania law governs here.

In Butler v. Flo-Ron Vending Co., 557 A.2d 730,

736 (Pa. Super.), appeal denied, 567 A.2d 650

(1989), the Pennsylvania Superior Court adopted

the general standard set forth in Restatement

(Second) of Agency § 228 for determining whether

an employee's conduct is within the scope of

employment. In the absence of any contrary

decisions or pronouncements by the Supreme

Court of Pennsylvania, we predict that that court

ue) would follow this holding. See Northern Ins. Co. v.

aia

20

Aardvark Assoc., 942 F.2d 189, 193 (3d Cir. 1991).

Moreover, we will presume that the Supreme Court

of Pennsylvania would also follow related

provisions of the Restatement (Second) of Agency,

including Section 247, which directly addresses an

employer's liability for defamatory statements

made by an employee.

Applying the standards set out above, we cannot

Sustain the decision of the district court. It is not

entirely clear whether the district court employed

a procedure analogous to summary judgment or

whether it made findings regarding what it viewed

as genuine issues of material fact. In any event,

the district court did not discuss the facts relating

to each of the individual defendants. Moreover, the

court's short discussion appears to have been

based on legally erroneous premises.

The court apparently reasoned that an

employee's conduct cannot be within the scope of

employment if the employer instructed the

employee not to engage in that conduct. Thus, the

district court observed that Medical Center

employees could not have been acting within the

scope of their employment in discussing the reason

for Aliota’s removal because the Medical Center

director had instructed employees to refer all

questions concerning this matter to him. This

reasoning is directly contrary to the rule set out

in Restatement (Second) of Agency § 230, which

States: “An act, although forbidden, or done in a

forbidden manner, may be within the scope of

employment.”

In a similar vein, the district court apparently

reasoned that Kathryn Fowells was not acting

within the scope of her employment when she

; allegedly made defamatory statements about Aliota

a |

21

to Nies, a manufacturer's representative, because

her job description called for her to provide

“factual information” to such representatives. The

cuuri wroie (emphasis in originai):

The allegations of this lawsuit do not state that

[Fowells] passed on factual information. This case

is a defamation action! Therefore, we conclude

the alleged conduct of the individual defendants

was not conduct that they were employed to

perform.

This reasoning conflicts with Restatement (Second)

of Agency § 230, which was discussed above. It

also conflicts with comments to Restatement

(Second) of Agency § 247, which deal specifically

with defamation. One of these comments states:

If the master employs a servant to speak for him,

he is subject to liability if the servant makes a

mistake as to the truth of the words spoken or

as to the justification for speaking them, or even

if he speaks with an improper motive, provided

that he acts at least in part to serve his

employer's purposes. The master may be liable

even though the servant knows the statement to

be untrue... .

Restatement (Second) of Agency § 247, cmt. c. See

also id. cmt. a.’

7. This comment states:

If the scope of employment of a servant includes the

making of statements concerning others which he

believes to be true and privileged, the master is subject

to liability for untrue and unprivileged defamatory

statements made by the servant concerning such

others, if the statements are otherwise within the

scope of the servant's employment.

22

In light of what we have said, we must vacate

the decision of the district court. We will remand

this case for a_ redetermination whether, in

accordance with the procedures and standards we

have set out, the originally named individual

defendanis were acting within the scope of their

employment when they allegedly made defamatory

statements.

Restatement (Second) of Agency § 247, cmt. a.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Sor the Third Circuit

UNITED STATES COURT OF APPEALS

LOUIS J. ALIOTA and PAULETTE ALIOTA,

Ve

JACK D. GRAHAM, WILLIAM D. SHOEMAKE,

KATHRYN FOWELLS, JANET WELLS, JOYCE BALL,

UNITED STATES OF AMERICA,

Appellants in No. 91-3757

IN RE: UNITED STATES OF AMERICA,

JACK D. GRAHAM, WILLIAM D. SHOEMAKE,

KATHRYN FOWELLS, JANET WELLS and

JOYCE BALL,

Petitioners in No. 92-3020

Present: SLOVITER, Chief Judge

BECKER, STAPLETON, MANSMANN, GREENBERG,

HUTCHINSON, SCIRICA, COWEN, NYGAARD,

ALITO, ROTH and LEWIS, Circuit Judges

The petition for rehearing filed by

appellees in the above-entitled case having

Ss

—

been submitted to the judges who

participated in the decision of this court

and to alii the other avaiiabie circuit

judges of the circuit in regular active

service, and no judge who concurred in the

decision having asked for rehearing, and

a majority of the circuit judges of the

circuit in regular active service not

having voted for rehearing by the Court in

banc, the petition for rehearing is denied.

BY THE COURT,

s/ Samuel A. Alito

Circuit Judge

DATED: Feb. 18, 1993