United States Court of Appeals

For the First Circuit

No. 00-1672

DAVRIC MAINE CORPORATION, AND JOSEPH RICCI

Plaintiffs, Appellants,

v.

UNITED STATES POSTAL SERVICE, AND JOSEPH LEONTI

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. Chief District Judge]

Before

 Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass &

MacColl, L.L.C., John S. Campbell, and Campbell & McArdle, P.A., were

on brief, for appellant.

Hasley B. Frank, Assistant United States Attorney, with whom Jay

P. McCloskey, United States Attorney, was on brief, for appellee.

January 26, 2001
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LYNCH, Circuit Judge. In the course of deciding on a site

for a new postal facility, Joseph Leonti, the plant manager of the

Portland, Maine, United States Postal Service center, made illconsidered statements about one of the sites that had been under

consideration. The owner of the site, the Davric Maine Corporation,

felt that it and the site had been defamed. Davric and the man who

owns it, Joseph Ricci, filed suit in federal court against both the

Postal Service and Leonti for defamation and tortious interference

under state law, and in addition claimed that a constitutional tort had

been committed. 

The district court dismissed the claims against the Postal

Service on the ground that the Postal Service enjoys sovereign immunity

from suit absent a waiver, and that its immunity had not been waived as

to defamation or tortious interference claims. The court also

dismissed the state law tort claims against the official on the ground

that the official had been acting within the scope of his employment,

and dismissed the constitutional tort claim for failure to state a

claim. Plaintiffs appeal. This case presents an interesting question

of first impression about the relation and interaction between the

Postal Reorganization Act, 39 U.S.C. § 101 et seq., and the Federal

Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. We affirm the

district court's dismissal based on the conclusion that these Acts,
1 The Postal Service thereafter disclaimed any firm

intention to move to the Lewiston/Auburn area and reopened

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taken together, do not waive the Postal Service's immunity for state

defamation or tortious interference claims. We also affirm the

dismissal of the claims against Leonti.

I.

For the purposes of a motion to dismiss, we accept as true

the facts alleged in the complaint. See Day v. Massachusetts Air Nat'l

Guard, 167 F.3d 678, 680 (1st Cir. 1999); Duckworth v. Pratt & Whitney,

Inc., 152 F.3d 1, 3 (1st Cir. 1998). The Postal Service in Maine

entered into a search for a new location for its processing and

distribution center. One site under consideration was a parcel in

Scarborough Downs owned by Davric. The Postal Service entered into

initial negotiations to purchase the site, but soon focused on a

different site, one on Rand Road, as its preferred site. Joseph Ricci,

the indirect owner of Davric, and Tony Armstrong, Davric's real estate

broker, became outspoken critics of the Rand Road site, charging that

the site was environmentally sensitive and alleging other mischief

behind the Postal Service's preference for the Rand Road site. The

Postal Service eventually rejected the Rand Road site.

After rejecting that site, the Postal Service again reviewed

several possible sites, including the Davric site, and ultimately

announced a plan to move the center to Lewiston,1 rather than settling
consideration of greater Portland area sites.

2 Plaintiffs also alleged violations of the National

Environmental Policy Act, 42 U.S.C. § 4321 et seq., and Maine's

Site Location of Development Act, 38 M.R.S.A. §§ 481-490. The

dismissal of these counts was not appealed.

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on the Davric site. Plaintiffs maintain that the Davric site was

preferable and that this rejection of the site was in retaliation for

their outspoken opposition to the Rand Road site.

It is in the course of defending this decision that the

alleged defamation took place. In a series of meetings with Postal

Service employees to explain the site selection process, Joseph Leonti,

the plant manger of the current distribution center, said that the

Davric site was environmentally contaminated and that its development

posed serious wetlands problems. In one instance, Leonti allegedly

linked Ricci and Davric to organized crime, claiming that there were

dead horses and bodies buried on the site, and "maybe even Jimmy Hoffa

could be buried there." Plaintiffs say that all of these descriptions

are untrue. These meetings also included presentation materials

prepared in part by the Postal Service, allegedly defamatory as well.

Plaintiffs then filed this suit,2 contending that these false

statements have diminished the value of Davric's property and will

continue to do so, and that they have also caused substantial damages

to Ricci's reputation.

II.
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Sovereign immunity presents a threshold issue for Davric's

suit for damages against the Postal Service. The Postal Service argues

that under § 409(c) of Title 39, codifying the Postal Reorganization

Act, all state-law tort claims against the Postal Service must be

brought under the Federal Tort Claims Act. However, the Postal Service

says, the FTCA explicitly exempts most intentional torts, including

defamation and tortious interference, from its waiver of sovereign

immunity. See 28 U.S.C. § 2680(h). Therefore, the Postal Service

concludes, the defamation and interference claims must be dismissed.

Davric responds that the Postal Reorganization Act's general "sue and

be sued" provision, see 39 U.S.C. § 401(1), governs all suits against

the Postal Service not cognizable under the FTCA, and since defamation

suits are not cognizable under the FTCA, they fall under the PRA's

general waiver of sovereign immunity.

These contending constructions of the statutory scheme

present a close question. The text of the individual sections does not

present a clear answer, but the structure of the scheme argues against

Davric's position. The legislative history of these provisions affords

little guidance. Absent evidence of Congressional intent to have the

Postal Service, a quasi-public entity, held liable for intentional

torts under state law, the exclusion from the FTCA's waiver of

sovereign immunity controls.
3 39 U.S.C. § 401 reads in relevant part, "The Postal

Service shall have the following general powers: (1) to sue and

be sued in its official name. . ."

4 39 U.S.C. § 409, entitled "Suits by and against the

Postal Service," provides in relevant part, "(c) The provisions

of chapter 171 and all other provisions of title 28 relating to

tort claims [the FTCA] shall apply to tort claims arising out of

activities of the Postal Service."

5 The full text of 28 U.S.C § 2679(a) provides that

"[t]he authority of any federal agency to sue and be sued in its own

name shall not be construed to authorize suits against such federal

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Enacted in 1970, the PRA established the Postal Service as

a quasi-public entity that was to compete on essentially level ground

with private enterprise. To that end, § 401(1) provides that the

Postal Service can "sue and be sued," generally waiving the immunity

from suit it would otherwise have as a public entity.3 See 39 U.S.C.

§ 401(1). See also Loeffler v. Frank, 486 U.S. 549, 556 (1988) ("By

launching 'the Postal Service into the commercial world' and including

a sue-and-be-sued clause in its charter, Congress has cast off the

Service's 'cloak of sovereignty' and given it the 'status of a private

commercial enterprise.'") ( citing Library of Congress v. Shaw, 478 U.S.

310, 317 n.5 (1986)). However, § 409 of the PRA provides that tort

suits brought against the Postal Service are governed by the provisions

of the FTCA.4 See 39 U.S.C. § 409(c); see also 28 U.S.C. § 2679(a)

(providing that claims against "sue and be sued" agencies must be

brought through the FTCA where "cognizable" under the FTCA).5 Finally,
agency on claims which are cognizable under section 1346(b) of this

title, and the remedies provided by this title in such cases shall be

exclusive."

6 28 U.S.C. § 2680 reads in relevant part, "The

provisions of this chapter and section 1346(b) of this title

shall not apply to -- * * * (h) Any claim arising out of

assault, battery, false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights," with limited exception for law enforcement officials.

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§ 2680 lists exceptions to the FTCA's waiver of sovereign immunity,

including the exemption of most state intentional torts.6 See 28 U.S.C.

§ 2680(h).

The issue turns on how these provisions are characterized,

that is, whether state intentional torts such as defamation fall within

the scope of the FTCA but are excepted from its waiver of sovereign

immunity and so suit cannot be brought under the PRA, or whether they

simply fall outside of its scope as a result of their exception and so

suit under the PRA is permissible. While murky on this point, the

structure of the statutory scheme, taken altogether, suggests the

former interpretation.

By its terms, § 409(c) of the PRA limits the scope of the

more general waiver of sovereign immunity contained in § 401(1). For

state tort claims arising out of the activity of the Postal Service, §

409(c) compels the application of the FTCA and its attendant

provisions. Read in context, then, § 409(c) of the PRA is best
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understood to waive the immunity from suit that the Postal Service

would otherwise enjoy as a federal entity only insofar as that immunity

would have been waived under the FTCA. Such a reading accords with the

language in 28 U.S.C. § 2679(a) providing that for claims that fall

within the purview of the FTCA, claims against sue-and-be-sued agencies

are to be treated like a claim against any other federal agency. Two

distinct avenues for interpreting § 409(c) both arrive at this

conclusion.

First, the reference in PRA § 409(c) to "chapter 171 and all

other provisions of title 28 relating to tort claims" can be read to

incorporate the FTCA in its entirety as the exclusive vehicle for

bringing state tort claims against the Postal Service, including the

FTCA's waiver of immunity from suit in § 1346(b), its attendant

procedural requirements, the exclusiveness of its remedy compelled by

§ 2679(a), and its exceptions, as provided in § 2680. On this

approach, the question becomes simply whether the claim presented is a

state tort claim "arising out of the activities of the Postal Service"

under § 409(c). If so, then the claim is governed by the FTCA as a

whole, including its exception of defamation and interference claims

from its waiver of sovereign immunity.

Davric argues that once the claim falls outside the scope of

the FTCA's waiver of sovereign immunity, it then must fall back within

the ambit of the PRA's more general waiver. The best basis in the
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statutory language for this claim is the introduction to the exceptions

provision, which states that the provisions of the FTCA "shall not

apply" to defamation suits. See 28 U.S.C. § 2680. If the FTCA shall

not apply to defamation claims, Davric says, then defamation claims are

not cognizable under the FTCA and hence the general waiver of immunity

in the PRA applies. However, attention to the remainder of § 2680

makes clear that this reading is not tenable. Section 2680(b) excepts

any claim "arising out of the loss, miscarriage, or negligent

transmission of letters or postal matter" from the FTCA's waiver of

sovereign immunity. Following Davric's proposed construction of the

statutory scheme, this provision, § 2680(b), would be rendered mere

surplusage, as suits against the Postal Service for loss of postal

matter could then simply be brought under the PRA's waiver of sovereign

immunity rather than under the FTCA. Since this outcome is not

conceivably within Congress's intent, Davric's suggested construction

of the statutory scheme must be rejected, and the best reading of the

statutory scheme affords the Postal Service with the protections

afforded all other federal agencies by the exceptions to the FTCA's

waiver of immunity, including the exception for state intentional tort

claims.

Alternatively, PRA § 409(c) can be read to incorporate each

individual provision of Title 28 relating to state tort claims directly

into the PRA's general waiver of sovereign immunity. On this approach,
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§ 409(c) compels the application of the exceptions provision, 28 U.S.C.

§ 2680, to tort claims arising out of the activity of the Postal

Service. Section 409(c) limits the scope of the general waiver of

sovereign immunity in § 401(1), and by this reference incorporates the

exceptions provided in the FTCA. Hence, plaintiffs' defamation and

tortious interference claims must be dismissed, as they fall within

these incorporated exceptions. 

Davric argues that prior interpretations of sue-and-be-sued

waivers by the Supreme Court compel a broader reading of the waiver of

immunity in the PRA. First, in Loeffler, the Supreme Court held that

sovereign immunity did not bar recovery of prejudgement interest

against the Postal Service in a Title VII action. 486 U.S. at 565. In

reaching this conclusion, the Court noted that the PRA, including the

sue-and-be-sued provision in § 401(1), reflected Congress's "general

design that the Postal Service 'be run more like a business than its

predecessor.'" Id. at 556 (citation omitted). Given that the purpose

of such sue-and-be-sued clauses is to enable such agencies to engage in

commercial and business transactions on equal footing with the private

sector, Davric argues that courts ought to construe such clauses

liberally and impose exceptions on their waiver reluctantly, in order

to effectuate that purpose. See Loeffler, 486 U.S. at 554, citing

Federal Housing Admin. v. Burr, 309 U.S. 242, 245 (1940). 
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In F.D.I.C. v. Meyer, 510 U.S. 471 (1994), the Supreme Court

held that the predecessor of the FDIC, an agency authorized to "sue and

be sued," could be sued in a Bivens constitutional tort action. While

recognizing that § 2679(a) of the FTCA sought to put sue-and-be-sued

agencies on the same footing as other federal agencies with respect to

"claims which are cognizable" under the FTCA, id. at 476, the Court

concluded that constitutional torts were not cognizable under the FTCA

and therefore such an action against the FDIC was not barred, id. at

477-78. Again the Court emphasized that sue-and-be-sued clauses should

be read broadly. Id. at 481. Davric argues that under the reasoning

of Meyer, and in light of the direction in Meyer and Loeffler to

construe clauses such as § 401(1) broadly, the fact that defamation

claims are excepted from the FTCA should be interpreted to render them

not cognizable under the FTCA and therefore within the scope of the

general sue-and-be-sued waiver of the PRA. 

While Davric is correct that both of these opinions contain

language suggesting that sue-and-be-sued clauses should be construed

broadly to effectuate their purpose, a closer look at the reasoning of

these opinions shows they do not aid Davric. In each case where courts

have allowed tort cases to proceed against sue-and-be-sued agencies

outside of the procedures and limitations of the FTCA, the plaintiffs

advanced federal claims -- either federal constitutional torts or
7 Another case interpreting the scope of the PRA's sueand-be-sued clause, Franchise Tax Bd. v. United States Postal

Serv., 467 U.S. 512 (1984), did not involve a tort at all, but

rather a statutory wage garnishment procedure to assist the

state in collecting its tax revenues. As such it did not

involve the FTCA at all.

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federal statutory torts.7 See Meyer, 510 U.S. 471 (federal

constitutional tort); Global Mail Ltd. v. United States Postal Serv.,

142 F.3d 208 (4th Cir. 1998) (claim under Lanham Act); Federal Express

Corp. v. United States Postal Serv., 141 F.3d 536 (6th Cir. 1998)

(same); United States v. Q Int'l Courier, Inc., 131 F.3d 770 (8th Cir.

1997) (same).

Plaintiffs ask this court to extend this reasoning to those

state common law torts excepted by § 2680, such as the defamation and

interference claims they advance in this case. However, the reasoning

of the Supreme Court in Meyer is explicitly premised on the fact that

the Bivens claim presented in that action arose under federal rather

than state law. Meyer reasoned that the constitutional tort was not

cognizable under the FTCA because it did not fall within the scope of

the waiver of sovereign immunity in § 1346(b), as that waiver was

limited to claims where "a private person" would be liable "in

accordance with the law of the place where the act or omission

occurred." Meyer, 510 U.S. 477-78. The Court has consistently held

that this reference to "the law of the place" means the law of the

state, which provides the source of substantive liability under the
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FTCA. Id. at 478 (citing cases). Since by definition "federal law,

not state law, provides the source of liability" for a federal

constitutional tort claim, it is not cognizable under the FTCA and

therefore the claim can fall within the general sue-and-be-sued waiver.

Id. at 477-78. 

Davric's argument fails. As the defamation and tortious

interference claims Davric advances clearly arise under the law of the

place -- i.e., Maine's substantive law of tort liability -- they are

claims that are cognizable under the FTCA. Since the claims are

cognizable under the FTCA, all the requirements and limitations upon

which the FTCA's waiver of sovereign immunity is conditioned apply.

Indeed, many of the cases relied upon by Davric make clear that the

FTCA governs state tort claims against the Postal Service. See, e.g.,

Loeffler, 486 U.S. at 562; Federal Express, 151 F.3d at 540-41; Global

Mail, 142 F.3d at 214-15. Hence the defamation and tortious

interference claims must be dismissed.

Section 2680(h) of the FTCA embodies an understandable policy

against compelling the public fisc to bear the costs of intentional

torts committed by public employees. The extent to which this policy

rationale extends to quasi-public agencies is not immediately evident.

More importantly, however, that determination is properly one of

legislative policy judgment. Cf. Westfall v. Erwin, 484 U.S. 292, 300

(1988) (noting that Congress is "in the best position to provide
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guidance" on complex questions of sovereign immunity). In the absence

of any evidence that Congress did not intend to afford quasi-public,

sue-and-be-sued agencies the protection of the exemption from suit for

state intentional torts, and in light of the judicial policy of

construing waivers of sovereign immunity narrowly, we cannot find that

the statutory scheme indicates that the Postal Service has waived its

immunity from suit for defamation or tortious interference claims.

Therefore, Davric's claims against the Postal Service were properly

dismissed.

III.

Davric also appeals the dismissal of defendant Joseph Leonti.

Plaintiffs sued Leonti individually on all three claims. The district

court dismissed the defamation and tortious interference claims against

Leonti, substituting the United States as party defendant for Leonti

under the Westfall Act, see 28 U.S.C. § 2679(d), and dismissed the

constitutional tort claim against Leonti for failure to state a claim.

Plaintiffs appeal.

A.

First, plaintiffs challenge the substitution of the United

States for Leonti on the defamation and tortious interference claims.

The defendants moved to substitute the United States for Leonti as a

defendant pursuant to 28 U.S.C. § 2679(d)(1), which provides that

"[u]pon certification by the Attorney General that the defendant
8 The Attorney General has delegated her certification

authority under this statute to the United States attorneys. 28

C.F.R. § 15.3(a).

9 Because the Supreme Court has held that 28 U.S.C. §

2679(b)(1) immunizes federal employees from suit even when an

FTCA exception precludes recovery against the United States, the

substitution in this case effectively dismisses the claim. See

United States v. Smith, 499 U.S. 160, 165 (1991); Nasuti v.

Scannell, 906 F.2d 802, 810 n.14 (1st Cir. 1990).

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employee was acting within the scope of his office or employment at the

time of the incident out of which the claim arose," the action "shall

be deemed an action against the United States . . . and the United

States shall be substituted as the party defendant." Id. The motion

was accompanied by a certification from the United States Attorney8 that

Leonti was acting within the scope of employment at the time of the

alleged incidents. The district court granted the motion as to the

tortious interference and defamation claims (though not as to the

alleged constitutional torts, as they fall outside the scope of the

FTCA), substituted the United States, and dismissed the claims.9 Davric

appeals, arguing that while the court recognized that the certification

is provisional and subject to judicial review, the plaintiffs were

unable to make the requisite factual showing that Leonti was acting

outside the scope of his employment because they were not allowed to

pursue discovery on the issue.

The law of immunity strikes a balance between the public

interest in having injurious acts compensated and the competing public
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interest in safeguarding the ability of responsible governmental

employees to "faithfully carry out their duties without fear of

protracted litigation in unfounded damages suits." See Aversa v. United

States, 99 F.3d 1200, 1203 (1st Cir. 1996). In 1988 Congress amended

the FTCA to reinforce federal employees' individual immunity from tort

actions with the Federal Employees Liability Reform and Tort

Compensation Act of 1988. These amendments -- commonly known as the

"Westfall Act" because they were a response to Westfall v. Erwin, 484

U.S. 292 (1988) -- afford federal employees who allegedly commit a

common law tort absolute immunity where they were acting within the

scope of employment, see 28 U.S.C. §§ 2679(b)(1) and 2679(d), but allow

the suit to proceed against the federal government unless some

exception to the FTCA applies, Aversa, 99 F.3d at 1203. 

The mechanism through which the federal employee is protected

in these circumstances is certification by the Attorney General under

28 U.S.C. § 2679(d) that the employee was acting within the scope of

employment. Once such a certification is made, the court dismisses the

federal employee from the case, and substitutes the United States as

defendant. This certification, however, does not conclusively

establish that the United States should be substituted, but rather is

provisional and subject to judicial review. See Gutierrez de Martinez

v. Lamagno, 515 U.S. 417, 434 (1995). Upon a showing that the employee

was acting outside the scope of employment, as determined by the
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applicable state law, that employee may be re-substituted. Aversa, 99

F.3d at 1208. Plaintiffs challenge the certification here that Leonti

was acting within the scope of his employment, and appeal the denial of

their efforts to conduct discovery in order to uncover the facts

necessary to show that Leonti was not acting within the scope of

employment. 

Where a plaintiff asserts that a defendant acted outside the

scope of his or her employment despite the Attorney General's

certification to the contrary, the burden of proof is on the plaintiff.

See Day v. Massachusetts Air Nat'l Guard, 167 F.3d 678, 685 (1st Cir.

1999); Lyons v. Brown, 158 F.3d 605, 610 (1st Cir. 1998). State law

controls the determination of whether a federal employee was acting

within the scope of employment. See Lyons, 158 F.3d at 609; Aversa, 99

F.3d at 1208-09. 

In order to strike the substitution of the United States,

plaintiffs here must show that, under Maine law, Leonti was acting

outside the scope of his employment at the time of the incident out of

which the claims arose. Maine courts apply § 228 of the Restatement

(Second) of Agency on the issue of scope of employment. See Bergeron

v. Henderson, 47 F. Supp. 2d 61, 65 (D. Me. 1999), citing McLain v.

Training and Dev. Corp., 572 A.2d 494, 497 (Me. 1990). Under Maine law

an employee's actions are within the scope of employment if they are of

the kind that he is employed to perform, they occur within authorized
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time and space limits, and they are actuated by a purpose to serve the

employee's master. See Restatement (Second) of Agency § 228, at 504

(1958), cited in Bergeron, 47 F. Supp. 2d at 65. Under the Restatement

(Second), an action may be within the scope of employment although

"forbidden, or done in a forbidden manner," see Restatement (Second) §

230, or even "consciously criminal or tortious," see id. § 231.

Actions "relating to work" and "done in the workplace during working

hours" are typically within the scope. See id. §§ 229, 233, 234.

Whether the motivation of the employee is to serve the master's

interest or his or her own private purposes is often an important

element in this determination. See id. §§ 228, 235-236; see also

Lyons, 158 F.3d at 609. Where seemingly work-related acts taken by the

federal employee are done with a private purpose on the employee's part

to retaliate or discriminate against the plaintiff, they may fall

outside the scope of employment under Maine law; where the acts were

done in good faith to serve the employer's interest, even if the

federal employee's judgment was mistaken, then the conduct is likely

within the scope of employment. See Lyons, 158 F.3d at 610.

The district court refused to re-substitute Leonti for the

United States as party defendant, affirming the magistrate judge's

conclusion that the plaintiffs had not produced any evidence to find

that Leonti was acting outside the scope of his employment under Maine

law. We affirm this determination. Disputes over Westfall
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certifications arise in two distinct procedural contexts. First, the

Attorney General's certification might accept the plaintiff's

characterization of the incidents at issue, but nevertheless certify

that the relevant incident occurred while the employee was acting

within the scope of employment. On the other hand, this court has also

held that the Attorney General may dispute the plaintiff's

characterization of the incident and other subsidiary, immunity-related

facts, though the certificate must assume some harm-causing incident.

See Wood v. United States, 995 F.2d 1122, 1126 (1st Cir. 1993) (en

banc). Where the movant contends that, even accepting the allegations

of the complaint as true, the defendant acted within the scope of

employment, the motion to substitute may be decided on the face of the

complaint (akin to a motion to dismiss); where the movant contests the

facts as pled, the motion may be decided by reference to affidavits and

other evidence outside the pleadings (akin to a summary judgment

motion); and where the plaintiff demonstrates that a genuine issue of

material fact exists with respect to the scope of employment, the

district court may hold an evidentiary hearing to resolve the material

factual disputes about the immunity-related facts. See Taboas v.

Mlynczak, 149 F.3d 576, 581 (7th Cir. 1998); see also Day, 167 F.3d at

686; Lyons, 158 F.3d at 610.

Davric's complaint alleges that Leonti made defamatory

statements about the Davric property and Ricci at a series of meetings
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at the Postal facility with Postal Service employees during work hours.

The complaint presents a number of statements, allegedly defamatory and

made in an angry tone. The complaint also alleges that at one point,

a Postal Service official informed Leonti that he was "on his own" with

regard to one of the defaming statements. For the purposes of this

motion, the defendants do not contest any of these alleged facts, but

instead contend that Leonti's actions in these incidents, even as

characterized in the complaint, arose while he was acting within the

scope of his employment.

While it is true that where plaintiff's proffer "so warrants"

and the facts alleged "are in controversy" a district court may hold

evidentiary hearings to resolve scope-of-employment issues, see Lyons,

158 F.3d at 610, that is not this situation. Here, Davric's complaint

contains allegations about the content, tone, and location of the

defaming statements. Yet Davric has not advanced any viable theory

that Leonti was not acting within the scope of his employment under

Maine law when making these statements. Plaintiffs argue in their

brief that Leonti "exceeded the scope of his employment in the

avalanche of derogatory comments he directed at Plaintiffs" and

in the "series of highly defamatory charges" he directed at

plaintiffs, "made in a very angry fashion." However, even if

true, the mere fact that Leonti made statements that were
10 Davric's brief makes a passing reference that Leonti

may have been motivated by "personal animus" in making the

defamatory statements. However, the brief does not adequately

argue that Leonti had a private purpose in defaming the

plaintiffs independent from his duties as an employee of the

Postal Service so as to render his actions outside the scope of

employment, nor does the brief or the complaint suggest any

reason for Leonti to have such animus toward the plaintiffs

apart from those duties. Plaintiffs never allege Leonti had any

personal motive to malign them, nor do they allege any

relationship or incident with Leonti that may have created

personal animus. Indeed, their theory that he retaliated

against them because of their interference in the Postal

Service's site selection process belies any personal motive.

Since plaintiffs do not present such allegations or argument, we

do not consider the issue.

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defamatory does not render his actions outside the scope of

employment. Plaintiffs place particular emphasis on the alleged

statement by a senior Postal Service official to Leonti in

regard to one of the defamatory statements that he was "on his

own on that one." Again, even if true, the fact that the Postal

Service did not endorse all of Leonti's opinions as expressed

does not render the statements outside the scope of employment.10

Cf. Aversa, 99 F.3d at 1211 (under New Hampshire law and the

Restatement, statements of government employee were with scope

of employment even when they plainly were not authorized).

Rather, under the Westfall Act, the relevant analysis

must be made under Maine law, and under Maine law, even
11 Davric's attorney offered a Rule 56(f) affidavit

indicating that plaintiffs believed discovery would reveal that,

as alleged in the complaint, Leonti was advised in front of nonclients by a Postal Service attorney that he was "on his own"

with regard to one of the defamatory statements, and also that

discovery might uncover videotapes of the meetings at which the

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accepting the allegations of the complaint as true, Leonti's

actions were within the scope of employment. Leonti was director

of the distribution center. He was at a meeting of Postal Service

employees called during work hours and at work for the purpose of

explaining the Postal Service's site selection process. While some of

Leonti's statements may have amounted to defamation, Davric provides no

reason to believe that the statements did not further, and were not

intended to further, the Postal Service's purposes in justifying its

site selection process to its own employees. Cf. Restatement (Second)

§ 228(1)(c). Actions taken in the workplace to serve the purposes of

the employer are prototypical actions within the scope of employment

under the Restatement principles outlined above. 

Nor is Davric's argument that discovery was necessary

availing. Davric does not say what facts, if discovered, would lead to

a viable theory that Leonti was acting outside of the scope of

employment. Indeed, the only specific facts on which Davric indicates

it sought discovery were already alleged in the complaint, and do not

undermine the determination that Leonti was acting within the scope of

his employment.11 In order for discovery of immunity-related facts to
alleged defamatory statements were made. These facts are

already alleged in the complaint, and were not disputed by the

defendants for the purposes of the motion to substitute.

Moreover, there is no suggestion that either the content of the

purported videotapes or the confirmation of the statement by the

Postal Service attorney would show that Leonti was not acting at

his place of employment performing his duties as director of the

distribution center in furtherance of the purposes of the Postal

Service in the incidents out of which the claim arose. 

12 Davric's complaint also included the Postal Service in

this count, but the Postal Service was dismissed from the count

by the district court because Bivens actions are not available

against federal agencies. See Meyer, 510 U.S. at 486. Davric

does not appeal this dismissal.

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be warranted, the plaintiff must indicate what sort of facts he or she

hopes to discover that would create a material factual dispute and

could support a viable theory that the individual defendant was acting

outside the scope of employment. Davric fails to do so, and so we

affirm the substitution of the United States for Leonti on the

defamation and tortious interference claims.

B.

Davric also sued Leonti in his individual capacity for

damages for a violation of plaintiffs' constitutional rights, claiming

that Leonti's actions constitute a constitutional tort under Bivens v.

Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).12 The

district court dismissed the claim against Leonti on the grounds that

a plaintiff may not recover for an alleged constitutional tort for

defamation unless his damages resulted from some action taken by the
13 Plaintiffs' brief also makes a passing reference that

"the allegations are sufficiently clear to assert that Defendant Leonti

violated the Plaintiff's First Amendment rights by attempting to punish

them for their Whistle Blowing . . ." To the extent that this

suggests a Bivens claim for an unconstitutional retaliation for

the exercise of First Amendment rights, plaintiffs have failed

to adequately present this argument either here or before the

district court, and so it is waived. Therefore we do not reach

the question of whether such an allegation would state a claim

for a Bivens action.

-24-

defendant apart from the alleged defamation, and Davric failed to

allege any such additional steps undertaken by Leonti. On appeal,

Davric argues that Leonti deprived plaintiffs of due process in making

the allegedly defamatory statements, both because it deprived them of

"an identified interest in life, liberty or property protected by the

Fifth Amendment" and because his conduct "shocks the conscience."13

While the plaintiffs fail to identify expressly what

"identified interest in life, liberty or property" Leonti's actions

deprived them of, they go on to cite several cases regarding harm to

"good name" or "reputation." See, e.g., Goss v. Lopez, 419 U.S. 565,

574 (1975); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

Therefore we assume the protected interest Davric asserts is in

plaintiffs' reputations.

Defamation alone does not constitute a constitutional tort

under Bivens. In order to recover in a Bivens action, the plaintiff

has to suffer a loss that results from some further action by the

defendant in addition to the defamation itself. As the Supreme Court
-25-

held in Siegert v. Gilley, "so long as such damage flows from injury

caused by the defendant to a plaintiff's reputation, it may be

recoverable under state tort law but it is not recoverable in a Bivens

action." 500 U.S. 226, 234 (1991). See also Paul v. Davis, 424 U.S.

693, 701 (1976) ("stigma" to reputation alone is an injury to neither

liberty nor property sufficient to invoke Due Process Clause); Aversa,

99 F.3d at 1215-16. To hold otherwise would effectively elevate state

common law torts to constitutional status. 

Here, Davric identifies no damages resulting to either its

properties or Ricci apart from the alleged reputational harms, and

identifies no additional actions undertaken by Leonti that might have

caused additional damages. Plaintiffs' suggestion that Leonti's

actions "shock the conscience" also must fail -- Leonti's conduct

simply fails even to approach the sort of "extreme or intrusive

physical conduct" which is the gravamen of this doctrine. See, e.g.

Brown v. Hot, Sexy and Safer Prod., Inc., 68 F.3d 525, 531 (1st Cir.

1995), cert. denied, 516 U.S. 1159 (1996). Thus while Davric's claims

may adequately state a state tort claim, they fail to state a

constitutional claim cognizable in a Bivens action. The Bivens claim

was properly dismissed.

IV.

The decision of the district court dismissing the action is

affirmed.