No. 94-3823

 

Steve Heuton; Dean Nelson; *

Larry Winans; and Jerry Whitmore, *

*

 Appellees, *

* Appeals from the United States

 v. * District Court for the

 * Northern District of Iowa.

David W. Anderson, *

*

 Appellant. *

 

Submitted: October 19, 1995

 Filed: January 29, 1996 

Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and DONALD R. ROSS,

Circuit Judges. 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

David Anderson appeals the district court's orders refusing to

substitute the United States as party defendant and remanding this

defamation case to Iowa state court. We reverse and remand to the

district court for further proceedings.

I.

The plaintiffs work as meat inspectors for the United States

Department of Agriculture, Food and Safety Inspection Service

("USDA"), and Anderson is their supervisor. They sued Anderson for

defamation in Iowa state court after he allegedly posted a picture

depicting Heuton as a momma pig and the other plaintiffs as

suckling piglets. 

 
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Pursuant to the Westfall Act, 28 U.S.C. § 2679(d) (1994), the

United States Attorney General removed the case to federal court,

certifying that Anderson was a federal employee acting within the

scope of his employment at the time that the offending picture was

posted. The Attorney General then asserted that the United States

had been substituted as party-defendant by operation of law and

moved to dismiss the case. Following an evidentiary hearing, the

magistrate agreed that Anderson's conduct, assuming that he indeed

engaged in it, fell within the scope of his employment and

recommended that the district court substitute the United States as

party defendant. 

The district court rejected the magistrate's recommendation.

Because Anderson denied posting the picture, the court found that

neither he nor the United States could maintain that his conduct

fell within the scope of his employment. The district court

further found that if Anderson did in fact post the picture, his

conduct was not within the scope of his employment. The court

therefore refused to substitute the United States as party

defendant and remanded the case to state court. The district court

stayed the remand order pending this appeal. 

II.

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

in order to undo the effect of the Supreme Court's decision in

Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, 484 U.S. at

297-98, the Court held that a federal employee was immune from a

state tort action only if the employee was acting within the scope

of his employment and the conduct that caused harm was

discretionary. The 1988 FTCA amendments, commonly known as the

Westfall Act, broaden this immunity, providing that an action

against the United States is the only remedy for injuries caused by

federal government employees acting within the scope of their
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employment, regardless of whether the conduct in question was

discretionary. Id. § 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 employment when the

allegedly harmful conduct occurred. Id. § 2679(d)(2). If the

Attorney General certifies that the employee was acting within the

scope of his employment, the case is removed to federal court. The

Attorney General then notifies the district court that the United

States should be substituted as party defendant for the federal

employee. Id. 

Westfall certification does not conclusively establish that

the United States should be substituted as party defendant.

Martinez v. Lamagno, --- U.S. ---, 115 S. Ct. 2227, 2236 (1995);

Brown v. Armstrong, 949 F.2d 1007, 1011-12 (8th Cir. 1991). If the

plaintiff contravenes a Westfall certificate, the district court

must determine whether the defendant was acting within the scope of

his employment when the conduct in question occurred. Martinez,

115 S. Ct. at 2236-37. If the court finds that the employee was

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

refuse to substitute the United States. Id.

III.

A.

Anderson maintains that the district court erroneously refused

to substitute the United States. In refusing to do so, the

district court relied upon Wood v. United States, 995 U.S. 1122

(1st Cir. 1993) (en banc), which held that, because § 2679(d)(2) of

the Westfall Act speaks of an "act" or "incident" that occurred

"within the scope of employment", the district court must refuse to
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substitute the United States if the Attorney General "den[ies] the

occurrence of the basic incident charged." Id. at 1125-26.

 With respect, we believe that the First Circuit's approach is

contrary to the language of the Westfall Act. We agree with the

dissenting judges in Wood (and with relevant cases from other

courts) that nothing in the Westfall Act gives the district court

the authority to refuse to substitute the United States on the

ground that either the government or the employee denies the

offensive conduct. Wood, 995 F.2d at 1138 (Coffin, dissenting);

Kimbro v. Veltan, 30 F.3d 1501, 1508 (D.C. Cir. 1994); Melo v.

Hafer, 13 F.3d 736, 746-47 (3d Cir. 1994). Indeed, we believe that

such a ruling undermines the purposes of the Westfall Act. 

Congress adopted the Westfall Act to confer immunity on all

federal employees acting within the scope of their employment.

Because it is illogical to assume that Congress intended to protect

guilty employees but desert innocent ones, we decline to follow the

holding in Wood that the immunity provided by the Westfall Act is

available only when the defendant-employee admits engaging in the

harmful conduct. Furthermore, the Westfall Act allows a defendantemployee to petition the district court for certification and

substitution when the Attorney General decides not to certify a

case, see 28 U.S.C. § 2679(d)(3), and we find it instructive that

this section, unlike § 2679(d)(2), makes no reference to an "act"

or "incident." We again find it implausible that Congress intended

to confer greater protection on an employee whose conduct the

Attorney General refuses to certify than on an employee whom the

Attorney General deems deserving of immunity. 

B.

The question of whether Anderson was acting within the scope

of his employment is governed by Iowa law. See Brown, 949 F.2d at

1012, n. 7. In Sandman v. Hagen, 154 N.W.2d 113, 114 (Iowa 1967),
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the Iowa Supreme Court held that an employee acts within the scope

of his employment when his "conduct is of the same general nature

as that authorized or incidental to the conduct authorized," by the

employer; and in Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986),

the court stated that an employee acts within the scope of his

employment "when the employer has the right to direct the means and

manner of doing the work, and has the right of control over the

employee." The district court believed that Jones was inapplicable

because it found that it applied only in cases where an employee

seeks a judgment against his employer based on the doctrine of

respondeat superior. The court therefore relied on Sandman in

finding that even if Anderson posted the picture, his conduct was

not within the scope of his employment. The court reasoned that

posting a picture like the one involved in this case was neither

"authorized" nor "incidental to conduct authorized" by the USDA.

Sandman, 154 N.W.2d at 114.

It is true that all the evidence in the record indicates that

posting the picture was unquestionably prohibited by the USDA, but

that does not mean that the act was necessarily outside of the

scope of Anderson's employment. In fact, by prohibiting Anderson

from posting insulting pictures of his subordinates, the USDA

asserted the right to "direct the means and manner of doing the

work," and "the right of control over the employee." Jones, 387

N.W.2d at 355. Furthermore, Sandman indicates that conduct "in

excess of the powers actually conferred on the servant" may fall

within the scope of the employee's employment if the "act is

necessary to accomplish the purpose of the employment and is

intended for such purpose." Id. at 117. Determining whether

unauthorized conduct falls within the scope of employment,

therefore, involves a subjective inquiry into the employee's

intent. 
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We believe that if Anderson posted the picture he could well

have been acting within the scope of his employment under either

Jones or Sandman. The USDA Supervisor's Personnel Handbook

indicates that Anderson's duties included communicating with,

evaluating, and disciplining the plaintiffs. At the evidentiary

hearing before the magistrate, Anderson's supervisor, Dr. Dores

Ross, testified that Anderson had previously informed the

plaintiffs that their work was sub-par and that they needed to

carry out their duties more diligently. Anderson was particularly

concerned that the plaintiffs were defying his orders to stop

understaffing the meat inspection line, a practice that violated

USDA guidelines. Although the precise message conveyed by the

picture is unclear, images of pigs generally connote sloppiness or

slothfulness. The picture could therefore have been a disciplinary

measure or, alternatively, a means of communicating Anderson's

official disapproval of the plaintiffs' performance.

In the instant case, however, the trial court did not

undertake the subjective inquiry necessary to determine whether

Anderson was acting within the scope of his employment. Indeed,

there was no finding even as to whether Anderson was responsible

for posting the picture. In disputed cases such as this, we agree

with the Wood dissenters (and with other circuits) that the

district court must conduct an evidentiary hearing to determine all

the facts relevant to the immunity question. Wood, 995 F.2d at

1134, 1138 (Coffin, dissenting); Kimbro, 30 F.3d at 1509; Melo, 13

F.3d at 747. The Attorney General's certification acts as prima

facie evidence that Anderson's conduct was within the scope of his

employment. Therefore, at the evidentiary hearing, the plaintiffs

bear the burden of proving that Anderson was not acting within the

scope of his employment. Brown, 949 F.2d at 1012.

If the district court finds that Anderson did not post the

picture, then he was at all times properly acting within his role
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as supervisor and he is entitled to have the United States

substituted as party defendant. If it finds that he posted the

picture to discipline the plaintiffs or comment officially on their

performance, then his conduct, albeit improper, was "incidental to

the conduct authorized" for supervisors, Sandman, 154 N.W.2d at

114, and the court must also substitute the United States. In

either instance, the case must be dismissed because the Federal

Tort Claims Act precludes suits against the United States for

defamation. 28 U.S.C. § 2680(h). If, on the other hand, the court

finds that Anderson posted the picture for reasons unrelated to a

desire to do his job as the plaintiffs' supervisor, then it must

decide whether it ought to remand the case to state court or

proceed to try the matter itself. This is a question reserved by

the Supreme Court in Martinez, and as to it we express no view, it

not being properly before us at this time.

IV

For the forgoing reasons, we vacate the order remanding the

case to Iowa state court, and remand the case to the district court

for proceedings consistent with this opinion.

A true copy.

Attest:

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