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. e du/thir dc ir c uit_2000/235Filed November 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3275

P. BRIAN BRUMFIELD Appellant

v.

SHERRI SANDERS; MICHELLE SHADDAY; BRENDA DERR-BLAKENEY; M. JANE HUFF; CARLA MEYERS;

UNITED STATES OF AMERICA

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. 98-cv-01482) District Judge: Honorable Malcolm Muir

Argued: October 6, 2000

Before: BARRY, WEIS, and ROSENN, Circuit Judges.

(Filed November 14, 2000)

Michael Marrone, Esquire (Argued)
Marc F. Lovecchio Campana, Campana & Lovecchio, LLP
602 Pine Street Williamsport, PA 17701
Counsel for P. Brian BrumfieldDulce Donovan, Esquire (Argued)

Assistant United States Attorney Federal Building

228 Walnut Street Harrisburg, PA 17108
Counsel for United States of
America

OPINION ANNOUNCING THE JUDGMENT

OF THE COURT

ROSENN, Circuit Judge.

This appeal presents the uncommon scenario of a civ il suit in a state court by a federal employee against five of his fellow employees, all of whom were employed by the United States Department of Justice, Bureau of Pris ons ("BOP"). The plaintiff, P. Brian Brumfield, filed h is complaint in state court alleging that he and allfi ve individual defendants were employed by BOP at the Allenwood Federal Correctional Facility ("FCI Allen wood"). The complaint alleged state tort law claims of cons piracy, prima facie or intentional tort, abuse of pr ocess and defamation against all five defendants. Brumfield's claims are predicated on written affidavits and oral state ments given by the defendants in a 1996 investigation by the BOP Office of Internal Affairs ("OIA") with respect to Brumfield's unprofessional conduct.

As a result of the investigation, the war den disci plined Brumfield, who appealed the warden's action to the Merit Systems Protection Board ("MSPB"). The appeal was resolved by agreement. Brumfield then sued the indi vidual defendants in the Court of Common Pleas, Union Coun ty, Pennsylvania. The defendants removed the case to th e United States District Court for the Middle Distric t of Pennsylvania pursuant to 28 U.S.C. S 1442(a)(1), wh ich allows officers of United States agencies to r emov e civil actions against them to a federal district court. T hereafter,
the United States moved under the Westfall Act1 to

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1. The relevant provision of the W estfall Act stat es:

The remedy against the United States pr ovid ed by [the Federal Tort

2substitute itself for the individual defendants, as serting

that the individual defendants were, at all r eleva nt times, acting within the scope of their employment. The Di strict Court dismissed the complaint on the recommendation and report of the magistrate judge. Brumfield timely ap pealed. We affirm, although on the primary issue on appeal we do so on grounds different than those of the District Court.2

I.

On appeal, the appellant makes three ar guments. Fi rst, he argues that the district court erred in denying Brumfield's request for discovery on the scope of employment issue. Second, he contends that the dist rict court wrongly determined that the individual defend ants' challenged actions occurred within the scope of the ir employment. Finally, he maintains that the District Court erred in predicting that the Pennsylvania Supreme C ourt would not recognize a cause of action for prima fac ie or
intentional tort.

II.

The threshold question in this appeal pertains to w hether the plaintiff 's claim of tortious conduct occurred within the scope of the individual defendants' employment. Bru mfield acknowledges that a federal employee is absolutely immune
from common law claims of tortious conduct occurrin g within the scope of his or her employment. The W es tfall

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Claims Act] for injury . . . resulting fr om the negligent or wrongful act . . . of any employee of the government acting within the scope of his office or employment is exclusive of any other civil action

or proceeding for money damages arising by r ea son of the same subject matter against the employee . . . .

28 U.S.C. S 2679.

2. "An appellate court may affirm a r esult reached by the District Court on different reasons, as long as the record support s the judgement." Guthrie v. Lady Jane Collieries, Inc., 722 F .2d 11 41, 1145 n. 1 (3d Cir. 1983)(citing Helvering v. Gowran, 302 U.S. 238, 245 , 58 S.Ct. 154, 157, 82 L.Ed. 224 (1937)).

3Act, also known as the Federal Employees Liability Reform

and Tort Compensation Act, provides federal employe es acting within the scope of their employment absolut e immunity from damage liability on state law tort cl aims. See Melo v. Hafer, 13 F.3d 736, 739 (3d Cir. 1994). Under the Westfall Act, the Attorney General of the Unite d States may certify, as was done in this case, that the emp loyee was acting within the scope of his or her employmen t, and request that the United States be substituted as th e only defendant.3 See 28 U.S.C. S 2679(d)(1). However, t he plaintiff correctly argues that certification by th e Attorney General is only prima facie evidence that the alleg ed injurious conduct occurred within the scope of the federal employee's duties. See Schrob v. Catterson, 967 F.2 d 926, 929 (3d. Cir. 1992); 28 U.S.C. S 2679(d)(2). Brumfi eld, therefore, requested of the District Court that he be permitted reasonable discovery fr om the individual defendants. The District Court, however, denied thi s request and decided without discovery and without a hearing on the question that the defendants wer e a cting within the scope of their employment.

In denying discovery, the District Court noted that Brumfield had already engaged in extensive discover y relating to the scope of employment of the individu al defendants in the MSPB proceeding and that he shoul d not be permitted to duplicate those efforts in the pres ent proceeding. In permitting the gover nment to substi tute the United States as sole defendant, the District Court found that this argument had considerable merit in light of the absence of any response by the plaintif f. We belie ve that the District Court's rationale in the earlier stage of the proceedings logically applies with equal for ce to the plaintiff 's efforts to secur e discovery at this s tage.

Moreover, the Attorney General's certification appe ars to have been based on the plaintiff 's complaint. The certification states, in relevant part:

I have read the complaint and . . . upon the basis of
the information now available to me with r e spect to the

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3. The Attorney General has delegated her certifica tion authority to the United States Attorneys. See 28 C.F.R.S 510; 28 C.F .R. S 15.3.

4incidents referred to therein, I am of the o pinion that

the [individual] defendants . . . were actin g within the scope of their employment . . . pursuant to an official government investigation at the time of the conduct alleged in the complaint.

Brumfield v. Sanders, 50 F.Supp.2d 381, 385 (W.D. P a. 1999). In a later affidavit, the Attorney General r eiterated
that her conclusion that the individual defendants were acting within the scope of their employment was bas ed on the allegations in Brumfield's complaint.4 The Dist rict Court opined:

Permitting additional discovery when the Att or ney General's certification is not based on a di f ferent understanding of the facts than is reflected in Brumfield's complaint would undermine the in tent of the Westfall Act to protect federal employee s from responding to state law tort claims.

Brumfield nowhere contends that the Attor ney Gener al misunderstood the allegations in the complaint. Our standard of review of questions concer ning the sco pe or opportunity for discovery is for abuse of discr eti on. See Country Floors Inc. v. Gepner & Ford, 930 F.2d 1056 , 1062 (3d Cir. 1992). We see no abuse of discretion in th e District Court's refusal to permit additional discovery.

The District Court's discovery ruling does not end the matter, however, because Brumfield argues that the District
Court erred as a matter of law when it held that th e individual defendants acted within the scope of the ir employment during the OIA investigation. It is undi sputed that whether they did or not is a matter of Pennsyl vania state law. Pennsylvania has accepted the Restatemen t (Second) of Agency's definition of conduct "within the scope of employment." See Butler v. Flo-Ron V ending Co., 383 Pa. Super. 633, 646 (Pa.Super. 1989); Aliota v. Graham, 984

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4. Specifically, the Attorney General based her con clusion on the allegation that the warden encouraged female employ ees to report unprofessional conduct by male supervisors and that the defendants prepared the challenged written statements at the r equest of OIA investigators during the course of an official inve stigation.

5F.2d 1350, 1358 (3rd Cir. 1993). According to the

Restatement, "conduct is within the scope of employ ment if, but only if: (a) it is the kind [the employee] is e mployed to perform; (b) it occurs substantially within the aut horized time and space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master . . . ." Res tatement (Second) Agency S 228.

Brumfield does not dispute that factors (a) and (b) are met in this case, but he contends that, because the defendants' accusations were motivated by personal animosity toward him, they were not intended to "se rve the master." This argument, however , does not comport with Pennsylvania agency law. This Court has previously held that under Pennsylvania law, the mere existence of a personal motivation is insufficient to relieve the employer from liability where the conduct also benefitted hi m and was within the scope of employment generally. Eisen berg v. Gagnon, 766 F.2d 770, 783 (3rd Cir . 1985) (citing Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 575-76 (not followed on other grounds)(1981)); Restatement (Second) of A gency S 236 (1958)). Here, the statements and affidavits of the individual defendants were given at the behest of O IA officials to assist them in their official investig ation. Personal animosity, if any existed, was subsumed by the benefit that inured to employees generally at the A llenwood institution. If the OIA investigation revealed unpr ofessional conduct by Brumfield, the District Court noted that "appropriate discipline could be meted out and unprofessional conduct by a supervisor halted." Bru mfield, 50 F.Supp.2d at 385.

Brumfield also contends that "the course of employm ent"
does not include commission of unlawful acts or act s contrary to orders, policies, procedur es and stand ards of
the BOP.5 Brumfield maintains that the individual

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5. The cases Brumfield cites to support this pr opo sition construe the Pennsylvania Workmen's Compensation Act, specifical ly, when an injury occurs "in the course of employment" under the act. See Kozak v. Joseph Reilly Coal Co., 141 Pa.Super. 413 (1940); Garrahan v. Glaen Alden Coal Co., 135 Pa.Super. 307 (1939). They do not discuss Pennsylvania's common law of agency and are not relevant to this c ase.

6defendants "lied during the course of an official

investigation and lied on false affidavits." Thus, he argues that their actions were outside the scope of employ ment and therefore not protected by the W estfall Act. T his argument too was properly rejected by the District Court. The Pennsylvania Superior Court has specifically he ld that "[the] liability of the employer may extend even to intentional or criminal acts committed by the serva nt." Butler, 383 Pa.Super. at 646. See also, Aliota, 984 F.2d at 1358 ("In the absence of any contrary decisions or pronouncements by the Supreme Court of Pennsylvania , we predict that that court would follow [Butler]").

Although the individual defendants were r equired t o provide only truthful responses to questions posed in the investigation, "an act, although forbidden or done in a forbidden manner, may be within the scope of employment." Restatement (Second) of Agency S 230; Aliota, 984 F.2d at 1358. Under Pennsylvania law, even unauthorized acts may be within the scope of employ ment "if they are clearly incidental to the master's bus iness." Shuman Estate v. Weber, 276 Pa.Super . 209, 216 (19 80). Here, Brumfield's complaint asserts that during the course of the investigation, the individual defendants wer e encouraged to come forward and asked to and did sig n affidavits which he alleged contained false facts a bout him. Thus, even assuming the statements were false, plai ntiff 's allegation squarely makes the individual defendants ' conduct incidental to BOP's business, and Brumfield proffered no evidence that the defendants' conduct was not motivated at least in part by a purpose to serve th e BOP.

Finally, according to the Restatement, :

it may be found to be within the scope of em ployment of a person . . . to accuse another of wrong ful conduct or report to others the supposed wrongful co nduct of [another] employee . . . . A servant having a duty to make such reports . . . to his employer . . . may subject his employer to liability for his untruthful statements.

Restatement (Second) of Agency S 247 cmt. e. See al so, Aliota, 984 F.2d at 1359 (predicting that the Penns ylvania Supreme Court would adopt Restatement S 247). As th e

7district court noted, "[BOP's] policy makes clear t hat it was

within the scope of Defendants' employment duties t o cooperate with investigators of the [OIA] and provi de potential information regarding any unprofessional conduct by Brumfield." Brumfield, 50 F . Supp.2d at 384. Th us, the defendants in this case conformed to the very duty contemplated by Restatement S 247 comment e, supra. We therefore conclude that the statements made by the defendants, even if false, were within the scope of their employment. Accordingly, the District Court committ ed no error in ruling that the defendants' conduct during the OIA investigation was within the scope of their employm ent.

III.

The primary and final issue in this appeal is Brumf ield's contention that under Pennsylvania law, the individ ual
defendants committed an intentional tort as defined in Section 870 of the Restatement (Second) of T orts a nd the District Court therefore erred in dismissing his co mplaint. Although the District Court dismissed all of the de fendant's underlying claims against the United States, Brumfi eld only argues on appeal that it was error to dismiss his c laim for intentional or prima facie tort as set forth in Cou nt II of his complaint. This is consistent with his position in the District Court, where he objected only to the dismi ssal of
his claim for intentional tort. The District Court r ejected his objection, predicting that when faced with the ques tion, the Pennsylvania Supreme Court would not recognize a ca use of action for intentional or prima facie tort as se t forth in the Restatement. Under our analysis of the claim, t here is no need for us to predict whether the Supr eme Cour t of Pennsylvania would recognize such a claim.

The Federal Tort Claims Act ("FTCA") bars actions a gainst the United States for wrongful use of civil pr ocee dings and defamation.6 Claims "arising out of . . . libel, sl ander, misrepresentation [or] deceit" ar e excepted from t he United States's general waiver of sovereign immunity. 28 U .S.C. S 2680(h). Thus, defamation suits against the Unite d States

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6. 28 U.S.C. S 2680(h) creates exceptions to the ge neral waiver of sovereign immunity set forth in 28 U.S.C. S 1346.

8are prohibited. In fact, cases from other circuits make clear

that an individual who is defamed by a federal empl oyee acting within the scope of his or her employment ha s no remedy due to the protections affor ded by the West fall Act and the FTCA. See B & A Marine Co., Inc v. American Foreign Shipping Co., Inc., 23 F.3d 709, 714-715 (2 d Cir. 1994); Alviles v. Lutz, 887 F.2d 1046 (10th Cir. 19 89).7

In Count IV of his complaint, charging defamation, Brumfield alleged, inter alia, that the individual defendants "sign[ed] affidavits containing false facts" about Brumfield, "submitted written false statements of alleged misc onduct" by Brumfield, and gave false oral statements about Brumfield to investigating OIA agents. This claim w as dismissed in the District Court and was not appeale d. Without any additional allegations, Count II incorp orates by reference averments of the complaint, but asserts t hat the
"defendants' conduct and statements as afor esaid a re actionable as an intentional tort under Pennsylvani a law and pursuant to S 870 of the Restatement (Second) o f Torts." Brumfield's complaint does not allege any underlying facts in Count II that make his intentio nal tort claim different from his alr eady dismissed defamat ion claim or his conspiracy claim in Count I. Count IV , the defamation claim, contained no independent allegati ons of defamation but relies entirely on "the previous ave rments of the complaint," including Count I and Count II. Thu s, the
essence of his intentional tort cause of action is that the
individual defendants made false statements about h im that caused him economic harm and damage to his reputation. As such, it is precluded byS 2680.

Cases in other jurisdictions support our analysis." In examining a complaint, we are bound to look beyond the literal meaning of the language to ascertain the r eal cause of the complaint." Jimenez-Nieves v. United States, 682 F.2d 1, 6 (1st Cir. 1982). In Jimenez-Nieves , the court rejected a claim for pecuniary and non-pecuniary damages arisi ng from the erroneous dishonoring of a Social Security check. Noting that the dishonoring of the check "implicitl y

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7. Of course, defamation committed by a federal emp loyee acting outside the scope of his or her employment may be actionabl e.

9communicated defamatory statements about [the] plai ntiff,"

then-Judge Breyer concluded that the claim"resound[ ed] in
the heartland of the tort of defamation" and was ba rred by
S 2680. Id. at 6.

In Hoesl v. United States, 451 F. Supp. 1170 (N.D. Cal. 1978), aff 'd on different grounds per curiam, 629 F.2d 586 (9th Cir. 1980), a government employee sued the Uni ted States and a government-employed psychiatrist for a n allegedly negligent report stating that the plainti ff suffered a mental disability which made him unable to carry out his responsibilities. In holding that the substance of the plaintiff 's claim was defamation, the court stated that the defamation exception to the FTCA could not be avoid ed "by attaching a different label to the tort." Id. at 11 74.

IV.

In conclusion, it is obvious upon examination of th e complaint in this case, that the anatomy of Counts I, II and IV of Brumfield's complaint are the same. The effor t to separate them by draping them with differ ent dress and labels fails to disguise their substantive similari ty. For this reason, Count II, like Counts I and IV, is barred b y the defamation exception to the FTCA.

Accordingly, the District Court committed no error in dismissing the plaintiff 's entire complaint. The j udgment of the District Court will be affirmed. Costs taxed ag ainst the appellant.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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