2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-2000

Brumfield v. Sanders

Precedential or Non-Precedential:

Docket 00-3275

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Recommended Citation

"Brumfield v. Sanders" (2000). 2000 Decisions. Paper 235.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/235
Filed 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 Brumfield 
 Dulce 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 civil 

suit in a state court by a federal employee againstfive of 

his fellow employees, all of whom were employed by the 

United States Department of Justice, Bureau of Prisons 

("BOP"). The plaintiff, P. Brian Brumfield, filed his 

complaint in state court alleging that he and allfive 

individual defendants were employed by BOP at the 

Allenwood Federal Correctional Facility ("FCI Allenwood"). 

The complaint alleged state tort law claims of conspiracy, 

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 statements 

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 disciplined 

Brumfield, who appealed the warden's action to the Merit 

Systems Protection Board ("MSPB"). The appeal was 

resolved by agreement. Brumfield then sued the individual 

defendants in the Court of Common Pleas, Union County, 

Pennsylvania. The defendants removed the case to the 

United States District Court for the Middle District of 

Pennsylvania pursuant to 28 U.S.C. S 1442(a)(1), which 

allows officers of United States agencies to r emove civil 

actions against them to a federal district court. Thereafter, 

the United States moved under the Westfall Act1 to 

_________________________________________________________________ 

1. The relevant provision of the W estfall Act states: 

 The remedy against the United States pr ovided by [the Federal Tort 

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substitute itself for the individual defendants, asserting 

that the individual defendants were, at all r elevant times, 

acting within the scope of their employment. The District 

Court dismissed the complaint on the recommendation and 

report of the magistrate judge. Brumfield timely appealed. 

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. First, 

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 district 

court wrongly determined that the individual defendants' 

challenged actions occurred within the scope of their 

employment. Finally, he maintains that the District Court 

erred in predicting that the Pennsylvania Supreme Court 

would not recognize a cause of action for prima facie or 

intentional tort. 

II. 

The threshold question in this appeal pertains to whether 

the plaintiff 's claim of tortious conduct occurred within the 

scope of the individual defendants' employment. Brumfield 

acknowledges that a federal employee is absolutely immune 

from common law claims of tortious conduct occurring 

within the scope of his or her employment. The W estfall 

_________________________________________________________________ 

 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 eason 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 supports the judgement." 

Guthrie v. Lady Jane Collieries, Inc., 722 F .2d 1141, 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)). 

 3 
Act, also known as the Federal Employees Liability Reform 

and Tort Compensation Act, provides federal employees 

acting within the scope of their employment absolute 

immunity from damage liability on state law tort claims. 

See Melo v. Hafer, 13 F.3d 736, 739 (3d Cir. 1994). Under 

the Westfall Act, the Attorney General of the United States 

may certify, as was done in this case, that the employee 

was acting within the scope of his or her employment, and 

request that the United States be substituted as the only 

defendant.3 See 28 U.S.C. S 2679(d)(1). However, the 

plaintiff correctly argues that certification by the Attorney 

General is only prima facie evidence that the alleged 

injurious conduct occurred within the scope of the federal 

employee's duties. See Schrob v. Catterson, 967 F.2d 926, 

929 (3d. Cir. 1992); 28 U.S.C. S 2679(d)(2). Brumfield, 

therefore, requested of the District Court that he be 

permitted reasonable discovery fr om the individual

defendants. The District Court, however, denied this 

request and decided without discovery and without a

hearing on the question that the defendants wer e acting 

within the scope of their employment. 

In denying discovery, the District Court noted that

Brumfield had already engaged in extensive discovery 

relating to the scope of employment of the individual 

defendants in the MSPB proceeding and that he should not 

be permitted to duplicate those efforts in the present 

proceeding. In permitting the gover nment to substitute 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 believe 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 stage. 

Moreover, the Attorney General's certification appears 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 espect to the 

_________________________________________________________________ 

3. The Attorney General has delegated her certification authority to the 

United States Attorneys. See 28 C.F.R.S 510; 28 C.F.R. S 15.3. 

 4 
 incidents referred to therein, I am of the opinion that 

 the [individual] defendants . . . were acting 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. Pa. 

1999). In a later affidavit, the Attorney General reiterated 

that her conclusion that the individual defendants were 

acting within the scope of their employment was based on 

the allegations in Brumfield's complaint.4 The District Court 

opined: 

 Permitting additional discovery when the Attor ney 

 General's certification is not based on a dif ferent 

 understanding of the facts than is reflected in 

 Brumfield's complaint would undermine the intent of 

 the Westfall Act to protect federal employees from 

 responding to state law tort claims. 

Brumfield nowhere contends that the Attor ney General 

misunderstood the allegations in the complaint. Our

standard of review of questions concer ning the scope or 

opportunity for discovery is for abuse of discr etion. See 

Country Floors Inc. v. Gepner & Ford, 930 F.2d 1056, 1062 

(3d Cir. 1992). We see no abuse of discretion in the 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 the 

individual defendants acted within the scope of their 

employment during the OIA investigation. It is undisputed 

that whether they did or not is a matter of Pennsylvania 

state law. Pennsylvania has accepted the Restatement 

(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 

_________________________________________________________________ 

4. Specifically, the Attorney General based her conclusion on the 

allegation that the warden encouraged female employees to report 

unprofessional conduct by male supervisors and that the defendants 

prepared the challenged written statements at the request of OIA 

investigators during the course of an official investigation. 

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

Restatement, "conduct is within the scope of employment if, 

but only if: (a) it is the kind [the employee] is employed to 

perform; (b) it occurs substantially within the authorized 

time and space limits [and] (c) it is actuated, at least in 

part, by a purpose to serve the master . . . ." Restatement 

(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 "serve 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 him and 

was within the scope of employment generally. Eisenberg 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 Agency 

S 236 (1958)). Here, the statements and affidavits of the 

individual defendants were given at the behest of OIA 

officials to assist them in their official investigation. 

Personal animosity, if any existed, was subsumed by the 

benefit that inured to employees generally at the Allenwood 

institution. If the OIA investigation revealed unprofessional 

conduct by Brumfield, the District Court noted that

"appropriate discipline could be meted out and 

unprofessional conduct by a supervisor halted." Brumfield, 

50 F.Supp.2d at 385. 

Brumfield also contends that "the course of employment" 

does not include commission of unlawful acts or acts 

contrary to orders, policies, procedur es and standards of 

the BOP.5 Brumfield maintains that the individual 

_________________________________________________________________ 

5. The cases Brumfield cites to support this pr oposition construe the 

Pennsylvania Workmen's Compensation Act, specifically, 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 case. 

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defendants "lied during the course of an official 

investigation and lied on false affidavits." Thus, he argues 

that their actions were outside the scope of employment 

and therefore not protected by the W estfall Act. This 

argument too was properly rejected by the District Court. 

The Pennsylvania Superior Court has specifically held that 

"[the] liability of the employer may extend even to

intentional or criminal acts committed by the servant." 

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 to 

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 employment 

"if they are clearly incidental to the master's business." 

Shuman Estate v. Weber, 276 Pa.Super . 209, 216 (1980). 

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 sign 

affidavits which he alleged contained false facts about him. 

Thus, even assuming the statements were false, plaintiff '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 the BOP. 

Finally, according to the Restatement, : 

 it may be found to be within the scope of employment 

 of a person . . . to accuse another of wrongful conduct 

 or report to others the supposed wrongful conduct 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 also, 

Aliota, 984 F.2d at 1359 (predicting that the Pennsylvania 

Supreme Court would adopt Restatement S 247). As the 

 7 
district court noted, "[BOP's] policy makes clear that it was 

within the scope of Defendants' employment duties to 

cooperate with investigators of the [OIA] and provide 

potential information regarding any unprofessional conduct 

by Brumfield." Brumfield, 50 F . Supp.2d at 384. Thus, 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 committed no 

error in ruling that the defendants' conduct during the OIA 

investigation was within the scope of their employment. 

III. 

The primary and final issue in this appeal is Brumfield's 

contention that under Pennsylvania law, the individual 

defendants committed an intentional tort as defined in 

Section 870 of the Restatement (Second) of T orts and the 

District Court therefore erred in dismissing his complaint. 

Although the District Court dismissed all of the defendant's 

underlying claims against the United States, Brumfield only 

argues on appeal that it was error to dismiss his claim for 

intentional or prima facie tort as set forth in Count II of his 

complaint. This is consistent with his position in the 

District Court, where he objected only to the dismissal of 

his claim for intentional tort. The District Court r ejected his 

objection, predicting that when faced with the question, the 

Pennsylvania Supreme Court would not recognize a cause 

of action for intentional or prima facie tort as set forth in 

the Restatement. Under our analysis of the claim, there is 

no need for us to predict whether the Supr eme Court of 

Pennsylvania would recognize such a claim. 

The Federal Tort Claims Act ("FTCA") bars actions against 

the United States for wrongful use of civil pr oceedings and 

defamation.6 Claims "arising out of . . . libel, slander, 

misrepresentation [or] deceit" ar e excepted from the United 

States's general waiver of sovereign immunity. 28 U.S.C. 

S 2680(h). Thus, defamation suits against the United States 

_________________________________________________________________ 

6. 28 U.S.C. S 2680(h) creates exceptions to the general waiver of 

sovereign immunity set forth in 28 U.S.C. S 1346. 

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

that an individual who is defamed by a federal employee 

acting within the scope of his or her employment has no 

remedy due to the protections affor ded by the Westfall Act 

and the FTCA. See B & A Marine Co., Inc v. American

Foreign Shipping Co., Inc., 23 F.3d 709, 714-715 (2d Cir. 

1994); Alviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989).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 misconduct" 

by Brumfield, and gave false oral statements about 

Brumfield to investigating OIA agents. This claim was 

dismissed in the District Court and was not appealed. 

Without any additional allegations, Count II incorporates by 

reference averments of the complaint, but asserts that the 

"defendants' conduct and statements as afor esaid are 

actionable as an intentional tort under Pennsylvania law 

and pursuant to S 870 of the Restatement (Second) of 

Torts." Brumfield's complaint does not allege any 

underlying facts in Count II that make his intentional tort 

claim different from his alr eady dismissed defamation claim 

or his conspiracy claim in Count I. Count IV , the 

defamation claim, contained no independent allegations of 

defamation but relies entirely on "the previous averments of 

the complaint," including Count I and Count II. Thus, the 

essence of his intentional tort cause of action is that the 

individual defendants made false statements about him 

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 arising 

from the erroneous dishonoring of a Social Security check. 

Noting that the dishonoring of the check "implicitly 

_________________________________________________________________ 

7. Of course, defamation committed by a federal employee acting outside 

the scope of his or her employment may be actionable. 

 9 
communicated defamatory statements about [the] plaintiff," 

then-Judge Breyer concluded that the claim"resound[ed] in 

the heartland of the tort of defamation" and was barred 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 United 

States and a government-employed psychiatrist for an 

allegedly negligent report stating that the plaintiff 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 avoided "by 

attaching a different label to the tort." Id. at 1174. 

IV. 

In conclusion, it is obvious upon examination of the 

complaint in this case, that the anatomy of Counts I, II and 

IV of Brumfield's complaint are the same. The effort to 

separate them by draping them with differ ent dress and 

labels fails to disguise their substantive similarity. For this 

reason, Count II, like Counts I and IV, is barred by the 

defamation exception to the FTCA. 

Accordingly, the District Court committed no error in 

dismissing the plaintiff 's entire complaint. The judgment of 

the District Court will be affirmed. Costs taxed against the 

appellant. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 10