UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT SHVERN; RYAN WHELAN;

TWO RADICAL TECHNOLOGIES,

INCORPORATED,

Plaintiffs-Appellees,

v.

DONALD DESROSIERS; CYNTHIA

TRAEGER; A. JEFFERSON OFFUTT,

Doctor; ANNE MARCHANT, Doctor,

Defendants-Appellants, No. 99-2159

and

GEORGE MASON UNIVERSITY; ALAN

MARTEN, Doctor; MCKINLEY

BOWMAN, JR.; GEORGE MASON

UNIVERSITY, Police Department;

PETER DENNING, Doctor; JOHN

HANKS,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-98-1064-A)

Argued: September 27, 2000

Decided: November 22, 2000

Before WILKINSON, Chief Judge, and NIEMEYER and

LUTTIG, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Eugene Thro, Assistant Attorney General, ARGUED:

OFFICE OF THE ATTORNEY GENERAL, Newport News, Virginia, for Appellants. Chanda Lynn Kinsey, KINSEY, LYNCH &

FILIPOUR, Fairfax, Virginia, for Appellees. ON BRIEF: ON BRIEF: ON BRIEF: Mark L.

Earley, Attorney General of Virginia, Ronald C. Forehand, Senior

Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Newport News, Virginia, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In 1997, Robert Shvern and Ryan Whelan were charged with various state law computer crimes involving the George Mason University computer system. The charges were based largely on the

investigative efforts of Donald Desrosiers, the systems manager for

the School of Information Technology. Ultimately all charges against

Shvern and Whelan were dismissed for lack of evidence. Following

the arrests, however, Desrosiers and the other defendants allegedly

made defamatory statements about Shvern and Whelan.

Shvern and Whelan filed suit in federal court, alleging numerous

state and federal claims. The district court refused the defendants'

request to certify to the Virginia Supreme Court the question of

whether sovereign immunity barred these contentions. The district

court also held that neither common law sovereign immunity nor the

Virginia Tort Claims Act (VTCA), Va. Code Ann. § 8.01-195.3

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(Michie 2000), barred this suit. Desrosiers and the other defendants

appeal.

The defendants ask this court to certify to the Virginia Supreme

Court the question of whether sovereign immunity bars a suit against

a state employee accused of committing an intentional tort while participating in an administrative or judicial proceeding. We decline to

do so because Virginia case law is clear on this point: state employees

are not entitled to the protection of sovereign immunity when accused

of an intentional tort. See Tomlin v. McKenzie , 468 S.E.2d 882, 884

(Va. 1996); Fox v. Deese, 362 S.E.2d 699, 706 (Va. 1987); Elder v.

Holland, 155 S.E.2d 369, 372-73 (Va. 1967). See also Coppage v.

Mann, 906 F. Supp. 1025 (E.D. Va. 1995). Certification exists to

enable federal courts to ascertain unsettled state law. See Boyter v.

Comm'r of Internal Revenue Serv., 668 F.2d 1382, 1385 n.5 (4th Cir.

1981). This device should not be deployed to request state courts to

modify state law which is already clear.

In the alternative, the defendants claim the district court erred in

ruling that under Virginia law, sovereign immunity does not bar the

plaintiffs' intentional tort claims. Specifically, they argue that clause

six of the VTCA, concerning immunity for acts taken during the "institution or prosecution of any judicial or administrative proceeding,"

bars the instant suit. Va. Code Ann. § 8.01-195.3(6).

The district court concluded that this argument failed because the

defendants were accused of intentional torts committed outside the

scope of employment. State employees are not immunized for acts

constituting gross negligence or intentional torts. See Coppage, 906

F. Supp. at 1025; Burnham v. West, 681 F. Supp. 1169, 1172 (E.D.

Va. 1988); Nat'l R.R. v. Catlett Volunteer Fire Co., Inc., 404 S.E.2d

216, 219 n.2 (Va. 1991). The district court correctly concluded that

the complaint alleged intentional acts, and that if these allegations

were proven, Desrosiers and the other defendants would not be entitled to sovereign immunity.

Moreover, individual state employees are not immunized for acts

taken outside the scope of employment. See Messina v. Burden, 321

S.E.2d 657, 661 (Va. 1984); Burnham, 681 F. Supp. at 1172; Fox, 362

S.E.2d at 699. The district court held that the intentional acts alleged

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by the plaintiffs all involved activities that were outside the scope of

the defendants' employment. According to the district court, the

defendants were responsible for investigating threats to and maintaining the integrity of GMU's computer network. As the district court

noted, the defendants' official duties did not require them to speak to

the press or other third parties. Thus, the allegedly defamatory statements made by Desrosiers and Offutt to the press, by Marchant to her

ethics class, and by Traeger to a representative of On Call Paging,

Inc., were all actions outside the scope of the defendants' employment. Based on this conclusion, the district court held that the defendants' alleged actions were not a part of a judicial or administrative

proceeding and therefore were outside the scope of the sovereign

immunity defense.

We have reviewed the submissions of the parties and have heard

oral argument. Finding no error, we affirm the judgment.

AFFIRMED

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