*

The HONORABLE JOHN B. JONES, United States District

Judge for the District of South Dakota, sitting by 

designation.

 

No. 95-2633

 

Linda Kendall Anthony and *

Isaiah B. Anthony, Jr., *

 *

 Appellants, *

 * Appeal from the United States

 v. * District Court for the

 * Eastern District of Arkansas.

Marvin Runyon, Postmaster General; * 

Bonnie Eldridge; Greg Tolliver; * 

Oscar Wade; Bonnie Wilson; and *

the United States of America, * 

 *

 Appellees. *

 

Submitted: January 12, 1996

Filed: February 9, 1996 

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES,*

District Judge. 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Linda and Isaiah Anthony appeal the order of the district

court substituting the United States for the defendants named in

their complaint and dismissing their case. We affirm.
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I. 

Linda and Isaiah Anthony are employees of the United States

Postal Service. The Anthonys sued Bonnie Wilson, Craig Tolliver,

and Oscar Wade (all of them Postal Service supervisors), Bonnie

Eldridge (the Postmaster for Little Rock, Arkansas), and Marvin

Runyon (the United States Postmaster General) in Arkansas state

court. The Anthonys claimed that Bonnie Wilson defamed them

"during and in the course of her employment." (She allegedly told

other postal employees that Mr. Anthony was a homosexual and that

Mrs. Anthony had contracted AIDS through contact with him.) The

Anthonys asserted that the other defendants were responsible for

supervising Ms. Wilson. 

Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), the

defendants filed a notice of removal in federal district court.

They attached a Certification of Scope of Employment (in which the

U.S. Attorney certified that all of the defendants were acting

within the scope of their federal employment when the allegedly

injurious conduct occurred) and the sworn declarations of all of

the defendants except Mr. Runyon. Three days later, the defendants

and the United States filed, in the federal court, a motion to

substitute the United States for the named defendants and to

dismiss the complaint (hereinafter "motion to substitute and

dismiss"). 

Four days later still, the Anthonys filed an amended complaint

in the state court. The new complaint deleted all of the

defendants except Bonnie Wilson and dropped the allegation that

Ms. Wilson defamed the Anthonys "during and in the course of her

employment." The next day, the United States filed a notice of

removal in the state court. The Anthonys then filed, in the

federal court, a response to the motion to substitute and dismiss.

In their response, the Anthonys asserted that Ms. Wilson's
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defamatory remarks were not within the scope of her employment, and

requested an evidentiary hearing on the scope-of-employment issue.

The district court ruled on the motion to substitute and

dismiss without holding a hearing. In its order, the court refused

to consider the Anthonys' amended state-court complaint because it

was filed after the defendants filed the notice of removal in the

federal court; the court also disregarded the new allegations in

the Anthonys' response to the motion to substitute and dismiss.

The court substituted the United States as party-defendant, finding

that the defendants were acting within the scope of their

employment when the alleged misconduct occurred. The court then

dismissed the complaint for failure to state a claim because the

United States is immune from defamation suits. 28 U.S.C.

§ 2680(h). On the same day that the order was docketed, the

Anthonys submitted several affidavits to support their allegation

that Ms. Wilson was not acting in the scope of her employment.

The Anthonys next filed a motion for reconsideration in the

federal court. The court denied the motion. 

II.

In 1988, Congress amended the Federal Tort Claims Act ("FTCA")

to reinforce federal employees' immunity from tort actions. These

amendments -- commonly known as the Westfall Act because they were

a response to Westfall v. Erwin, 484 U.S. 292, 300 (1988) --

provide that an action against the United States is the only remedy

for injuries caused by federal employees acting within the scope of

their employment. 28 U.S.C. § 2679(d)(1). The Westfall Act also

establishes a process frequently called Westfall certification.

After a federal employee is sued in a state court, the Attorney

General reviews the case to determine if the employee was acting

within the scope of his or her employment when he or she engaged in

the allegedly harmful conduct. 28 U.S.C. § 2679(d)(2). The
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Attorney General may then file a Certification of Scope of

Employment, a document certifying that the employee was acting

within the scope of his or her employment, and may remove the case

to federal court. Id. The Attorney General then notifies the

federal court that the United States should be substituted as

party-defendant for the federal employee. Id. 

Although Westfall certification acts as prima facie evidence

that the defendants were acting within the scope of their

employment, Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.

1991), it does not conclusively establish that the United States

should be substituted as party-defendant. Gutierrez de Martinez v.

Lamagno, 115 S. Ct. 2227, 2236 (1995); Brown, 949 F.2d at 1011-12.

If the plaintiff challenges the certification, the district court

must independently review the case and determine whether the

defendant was in fact acting within the scope of his or her

employment. Gutierrez de Martinez, 115 S. Ct. at 2236-37

(plurality opinion). If the court finds that the employee was

acting outside the scope of his or her employment, the court must

refuse to substitute the United States. Id. If the court agrees

with the certification, then the case proceeds against the United

States under the FTCA. 28 U.S.C. § 2679(d)(4).

III.

On appeal, the Anthonys argue that the district court erred by

failing to consider the allegations contained in the amended

state-court complaint and by failing to hold a hearing on the

scope-of-employment issue. We discuss each of their arguments in

turn.

A.

The Anthonys first argue that the district court erroneously

refused to consider their amended state-court complaint. The court

ignored the new complaint because it was filed after the defendants
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filed a notice of removal in the federal court. The court reasoned

that filing the notice of removal in the federal court effected the

removal, and, therefore, that the "plaintiffs' attempt to amend

their complaint in state court is without significance, and is not

part of the record in this Court." The Anthonys contend, however,

that the removal did not become effective until the defendants

filed the notice of removal in the state court. Because the

Anthonys filed their amended complaint the day before that notice

of removal was filed, they argue that the district court was bound

to consider it. We agree.

The Westfall Act does not set out the steps necessary to

effect removal to federal court. The statute simply states that a

state-court action against a federal employee acting in the scope

of his or her employment "shall be removed ... at any time before

trial by the Attorney General to the district court." 28 U.S.C.

§ 2679(d)(2). But the statute that sets forth general removal

procedure, 28 U.S.C. § 1446, indicates quite specifically when

removal is effected. The statute states that "[p]romptly after the

filing of such notice of removal [in the federal court] ... the

defendant ... shall file a copy of the notice with the clerk of

[the] State court, which shall effect the removal." 28 U.S.C.

§ 1446(d) (emphasis added).

Despite the seeming clarity of this statute, courts have

adopted three rules regarding when removal is effected. Most

courts hold that removal is effected by filing a copy of the notice

of removal in the state court. See 14A Charles A. Wright et al.,

Federal Practice and Procedure: Jurisdiction 2d § 3737 at 550

(1985); see also Usatorres v. Marina Mercante Nicaraguenses, 768

F.2d 1285, 1286-87 (11th Cir. 1985) (per curiam). Some courts,

including the United States District Court for the Eastern District

of Arkansas, have held that removal is effected simply by filing

the notice of removal in the federal court. First Nat'l Bank v.
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Johnson & Johnson, 455 F. Supp. 361, 363 (E.D. Ark. 1978). (The

district court evidently followed this rule.) Finally, a few

courts have held that the state and federal courts have concurrent

jurisdiction until the notice of removal is filed with the state

court. See 14A Wright, Federal Practice § 3737 at 550-51. The

Anthonys claim that we adopted this third approach in Metro North

State Bank v. Gaskin, 34 F.3d 589 (8th Cir. 1994), but we disagree

with their interpretation of that case. In Metro North, we quoted

Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423,

437 (1974), for the proposition that federal, rather than state,

law governs the proceedings of a case after it has been removed.

Metro North, 34 F.3d at 592. The case does not discuss when

removal becomes effective.

Although we have never addressed this issue (perhaps we never

had occasion to do so because the statute was clear to litigants),

we think that the removal statute leaves little room for creative

interpretation. The only rule that logically follows from

28 U.S.C. § 1446(d) is that removal is effected when the notice of

removal is filed with the state court and at no other time.

Therefore, the amended complaint was properly before the district

court, and we find that the district court erred in refusing to

consider it.

The defendants argue that 28 U.S.C. § 1446(d) should not apply

to this case because it was removed pursuant to the Westfall Act.

They point out that some parts of § 1446 conflict with the Westfall

Act's removal procedure. For example, under § 1446(b), a notice of

removal must be filed with the federal court no more than thirty

days after the defendant receives the initial complaint, but under

the Westfall Act a case against a federal employee may be removed

"at any time before trial." 28 U.S.C. § 2679(d)(2); see Green v.

Hill, 954 F.2d 694, 696 n.3 (11th Cir. 1992) (per curiam), noting

that § 1446(b) does not apply to cases under the Westfall Act. We
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disagree with the defendants, however, that it follows from this

conflict that we should not apply the rule established in § 1446(d)

to determine when removal is effected. Unlike § 1446(b), § 1446(d)

does not conflict with any provision of the Westfall Act.

Furthermore, contrary to the situation that the defendants posit,

the Westfall Act does not speak to the issue at hand. We therefore

hold that the rule set out in § 1446(d) determines when removal is

effected under the Westfall Act.

Even if the Anthonys had filed their amended complaint after

the case was effectively removed, we believe that the district

court should have considered the new allegations contained in the

response to the motion to substitute and dismiss. The court

acknowledged that the plaintiffs, "in their response ... now allege

that one employee made defamatory statements about plaintiffs,

which were not made within the scope of employment." The court

declined to consider these new allegations because the plaintiffs

"have not asked to amend their complaint." But the court was on

notice that the plaintiffs were opposing the motion, and was

therefore not entitled to disregard the allegations in the response

simply because they contradicted the Anthonys' earlier allegations

or because they did not come in the form of an amended complaint.

B.

The Anthonys next contend that the district court erred by

denying their request for an evidentiary hearing on the

scope-of-employment issue. As we noted above, when a plaintiff

challenges a Westfall certificate, the district court must

determine independently whether the defendants were acting within

the scope of their federal employment when the allegedly wrongful

acts occurred. Gutierrez de Martinez, 115 S. Ct. at 2236-37

(plurality opinion); Brown, 949 F.2d at 1011-12. Although we have

indicated that it may be necessary for the court to conduct an

evidentiary hearing to resolve the scope-of-employment issue,
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Brown, 949 F.2d at 1012, a hearing is not required in every case.

Id.

In this case the district court apparently substituted the

United States without a hearing because the Anthonys' initial

state-court complaint indicated that the defendants were acting

within the scope of their federal employment. The court noted that

"the complaint as pending in this Court alleges that defendant

Bonnie Wilson, while in the course of her employment ... made

untrue and malicious statements concerning the plaintiffs." We

have already held that the court should have considered the amended

state-court complaint and the Anthonys' response to the motion to

substitute and dismiss. The court, therefore, erred when it based

the decision not to hold a hearing on the initial complaint alone.

We may affirm on any ground, however, and the government urges

us to affirm, even if the court erred, because the Anthonys failed

to rebut the presumption provided by the Westfall certificate that

Ms. Wilson was acting in the scope of her employment. We agree.

We have held that after defendants file a Westfall certificate and

move to substitute the United States, plaintiffs have "the burden

of coming forward with specific evidence in rebuttal." Brown, 949

F.2d at 1012; see also Forrest City Mach. Works, Inc. v. United

States, 953 F.2d 1086, 1088 (8th Cir. 1992) ("the appellants have

not come forward with any evidence contradicting the government's

scope-of-employment certification"). Here, the Anthonys failed to

submit any evidence indicating that the defendants were not acting

within the scope of their employment; they instead "relied on their

complaint." Brown, 949 F.2d at 1012.

Under different circumstances, we might be concerned that the

Anthonys did not know how much time they had to submit the required

evidence. We have held that courts may not decide motions based on

material outside the pleadings unless both parties are on notice
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that such material will be considered. See, e.g., Angel v.

Williams, 12 F.3d 786, 788-89 (8th Cir. 1993). Here, however, we

think that the Anthonys had adequate notice that they should have

submitted evidence long before the district court ruled on the

motion to substitute and dismiss. The local rules direct parties

to provide supporting factual material "[i]f a motion requires

consideration of facts not appearing of record," Local R. C-7(c)

(E.D. Ark.) (Brown clearly establishes that this was such a

motion), and give parties opposing a motion eleven days to file

this supporting material, Local R. C-7(b) (E.D. Ark.).

In this case, the government filed its motion to substitute

and dismiss on April 21, 1995, but the Anthonys did not file their

affidavits until May 30, 1995, well after the eleven-day deadline

expired. Because the Anthonys failed to offer any rebuttal

evidence, the presumption established by the scope-of-employment

certification carried the day for the defendants, and there was no

reason for the court to conduct an evidentiary hearing on that

issue. The court therefore correctly decided that the case should

proceed against the United States and should be dismissed because

the United States has not waived sovereign immunity for defamation.

28 U.S.C. § 2680(h).

IV.

The Anthonys finally suggest that the district court abused

its discretion by denying their motion for reconsideration in light

of their affidavits. Although the federal rules do not provide for

such a motion, Fed. R. Civ. P. 59(a) and Fed. R. Civ. P. 60(b)(2)

do give the district court the discretion to vacate a judgment or

order and to reopen a case in certain limited circumstances,

including when new evidence emerges. We have held, however, that

for a movant to succeed on the ground of newly discovered evidence,

that evidence must be truly new, in the sense that it was

previously unavailable; a motion for reconsideration should not be
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used "as a vehicle to introduce new evidence that could have been

adduced during pendency of the [previous] motion." Hagerman v.

Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988),

cert. denied, 488 U.S. 820 (1988), quoting Rothwell Cotton Co. v.

Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (internal quotes

omitted); see also Whitlock v. Midwest Acceptance Corp., 575 F.2d

652, 653 n.1 (8th Cir. 1978). Because the Anthonys do not allege

that they could not have produced affidavits rebutting the

presumption that the defendants were acting within the scope of

their employment before the court decided the motion to substitute

and dismiss, it was not an abuse of discretion to deny the motion

for reconsideration.

V.

For the foregoing reasons, we affirm the decision of the

district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.