# Appendix — Aliota v. Graham

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 817

## Text

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0894%3A2. Public record. Not legal advice.