13 F.3d 736 (3rd Cir. 1994), 93-1193, Melo v. Hafer

Docket Nº:93-1193.
Citation:13 F.3d 736
Party Name:James C. MELO, Jr.; Louis Jurik; Donald Ruggerio; Carol Danowitz; James Dicosimo; Lucille Russell; Walter W. Speelman; John Weikel v. Barbara HAFER and James J. West, Esquire, James J. West, Esquire, and The United States [*], Appellants.
Case Date:January 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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13 F.3d 736 (3rd Cir. 1994)

James C. MELO, Jr.; Louis Jurik; Donald Ruggerio; Carol

Danowitz; James Dicosimo; Lucille Russell;

Walter W. Speelman; John Weikel


Barbara HAFER and James J. West, Esquire,

James J. West, Esquire, and The United States [*],


No. 93-1193.

United States Court of Appeals, Third Circuit

January 11, 1994

Argued Sept. 9, 1993.

Sur Petition for Rehearing Feb. 15, 1994.

Page 737

[Copyrighted Material Omitted]

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William Goldstein (argued), Groen, Laveson, Goldberg & Rubenstone, Bensalem, PA, for appellees.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Michael J. Rotko, U.S. Atty., Barbara L. Herwig, Peter R. Maier (argued), Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC, for appellants.

Before: STAPLETON, GREENBERG and ROTH, Circuit Judges.

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STAPLETON, Circuit Judge:

This is an appeal from an order refusing to substitute the United States for James J. West, Esquire, under the Westfall Act. 1 The Westfall Act, also known as the Federal Employees Liability Reform and Tort Compensation Act, provides federal employees acting within the scope of their employment with absolute immunity from damage liability on state law tort claims. The Act accomplishes this by providing that the Federal Tort Claims Act supplies the only remedy against the United States for such claims, and that so long as any employee whose act or omissions gave rise to the plaintiff's claim was "acting within the scope of his [or her] office or employment," any other "civil action or proceeding for money damages ... against the employee ... is precluded." When a federal employee is sued for damages, the Attorney General of the United States may certify that the employee was acting within the scope of his or her office or employment and insist that the United States be substituted for the employee as the defendant.

The district court in this case determined that defendant West's acts, as alleged in the plaintiffs' complaint, did not fall within the scope of his employment as an Acting U.S. Attorney. West and the United States argue that the district court, before deciding the motion to substitute, should have conducted a hearing to determine whether the acts alleged in the complaint actually occurred. Because we conclude that a district court need not accept the allegations of the complaint as true when deciding a motion for substitution under 28 U.S.C. Sec. 2679(d)(1), 2 we will reverse.


The complete factual history of this case, which involves allegations of a conspiracy between West, the Acting U.S. Attorney for the Middle District of Pennsylvania, and Barbara Hafer during her successful election campaign for the office of Auditor General of Pennsylvania, was summarized by this Court in Melo v. Hafer, 912 F.2d 628 (3d Cir.1990), aff'd, --- U.S. ----, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ("Melo I"). We focus

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here on the proceedings with respect to the plaintiffs' state law claims against West.

The plaintiffs, employees of the Office of Auditor General under Hafer's predecessors, filed a complaint alleging that West defamed them and interfered with their contractual relationships by providing Hafer with information indicating that they had been involved in a job-buying scheme. West thereafter filed a motion for summary judgment and an affidavit stating that, although he investigated plaintiffs in the course of his official duties and provided information about them to Donald Bailey, the Auditor General during Hafer's campaign, he did not provide the information about the plaintiffs to Hafer before she was sworn in as Auditor General following her successful campaign. West's affidavit incorporated a letter he had written to Hafer expressly declining to disclose to her information concerning his investigation. An affidavit of Barbara Hafer was also filed in which she denied having received information concerning the plaintiffs from West during her campaign and asserted that her knowledge of West's investigation came to her from other sources. Finally, an affidavit of Donald Bailey was filed in response to West's motion. Bailey swore that only he and two members of his staff knew the information West had conveyed and that they had not disclosed any portion of that information to any third party, including Hafer. Bailey suggested this meant Hafer's information must have come from West.

The Attorney General of the United States filed a motion under Sec. 2679(d)(1) to substitute the United States for West as the defendant with respect to the plaintiffs' defamation and interference with contractual rights claims. The certification accompanying the motion states:

  1. I have read the amended complaint filed in this action and all attachments or exhibits thereto.

  2. On the basis of the information presently available with respect to the occurrences referred to therein, defendant James J. West at all times relevant was acting within the scope of his employment as an employee of the United States.

App. 26.

The district court determined that it lacked authority to review this certification and granted the motion to substitute. The net effect of the substitution was the dismissal of the plaintiffs' state law claims because the United States has not waived its sovereign immunity with respect to claims of defamation and interference with contractual rights. 28 U.S.C. Sec. 2680(h).

In Melo I, we reversed the portion of the district court's order which substituted the United States for West. We held that a district court may review an Attorney General's Sec. 2679(d)(1) certification. 912 F.2d at 642.

When the case was returned to the district court, West renewed his motion for summary judgment on the merits. He and the United States also urged that the United States should be substituted as defendant because the affidavits of record established that he had not provided information about the plaintiffs to Hafer during her campaign and, accordingly, that he had acted at all times within the scope of his employment.

The district court concluded that, in considering the motion for substitution, it was required to accept as true the facts alleged by the plaintiffs in their complaint. The court distinguished between the facts alleged to give rise to liability, facts which are not subject to review by a court deciding a motion for substitution, and other facts relevant to whether the employee acted within the scope of his employment, facts which are reviewable by the court in that context. In drawing this distinction, the district court relied on the following portion of the court's opinion in McHugh v. University of Vermont, 966 F.2d 67, 74 (2d Cir.1992):

The allegations of tortious conduct ... should be read in the light most favorable to the plaintiff. That is to say, the government may not deny that acts were within the scope of employment by denying that the acts occurred. The context of the alleged acts that is relevant to the scope of employment issue is a matter of fact to be

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determined by the district court, however, after an appropriate factual hearing.

App. 106.

The district court then referred to our decision in Schrob v. Catterson, 967 F.2d 929 (3d Cir.1992), indicating that it could "best be understood as calling for a hearing only where there is a genuine factual dispute whether [the] acts [alleged in the complaint], assuming they occurred, fall within the scope of employment." App. 107. The court then called for a hearing, noting that the "powers, privileges, duties, and customary conduct of the U.S. Attorney, in particular as they relate to state political candidates and campaigns and ongoing investigations of state employees, [were] not matters of record." App. 108-09. The necessity of such a hearing was obviated, however, when the parties stipulated "that defendant West would not have been acting within the scope of his employment if, as alleged in the complaint, he had turned over a list of suspected job-buyers within the Auditor General's Office in order to assist Barbara Hafer in her political campaign for Auditor General." App. 111.

The district court denied the renewed motion to substitute "in light of the stipulation that giving the list of employees to defendant Hafer during her campaign--if such conduct occurred--would have exceeded the scope of a U.S. Attorney's employment." The court also denied West's motion for summary judgment on the merits without prejudice to its renewal after the completion of discovery. West and the United States appealed these decisions. As they now acknowledge, we lack jurisdiction to review the denial of West's motion for summary judgment.


We must first confirm that we have jurisdiction to review the district court's order denying the motion for substitution. That order did not terminate proceedings in the district court; nevertheless, we conclude that it is a final order under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and that we accordingly have jurisdiction under 28 U.S.C. Sec. 1291.

In Aliota v. Graham, 984 F.2d 1350 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993), the plaintiffs sued several federal employees for defamation. The United States filed a certification that the defendants were acting within the scope of their employment when they engaged in the conduct in question, and the district court substituted the government for the defendants. Thereafter, however, the plaintiffs moved to strike the substitution of the United States, and the court permitted discovery on the scope of employment issue. Ultimately, the district court...

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