1

The Honorable Jimm Larry Hendren, United States District

Judge for the Western District of Arkansas.

___________

No. 96-1887

___________

James W. Lawson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

United States of America, *

*

Appellee. *

___________

 Submitted: December 10, 1996

 Filed: December 24, 1996 ___________

Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges. ___________

WOLLMAN, Circuit Judge.

James Lawson appeals from the district court's1 order granting

the government's motions to substitute the United States as the

named defendant and to dismiss. We affirm.

Lawson is an administrative law judge in the Fort Smith,

Arkansas, office of the Social Security Administration, Office of

Hearings and Appeals. Two employees of that office wrote a letter

complaining about Lawson's job performance and sent it to the chief

administrative law judge presiding over a case involving Lawson

that was pending before the Merit Systems Protection Board. Copies

of this letter were also sent to various government officials.

Lawson sued the two employees in Arkansas state court alleging that

certain statements in the letter were libelous. 
 2

Lawson relies on Haddon v. United States, 68 F.3d 1420 (D.C.

Cir. 1995), as support for his scope-of-employment argument. Not

only is this case factually distinguishable, it involves District

of Columbia law. Id. at 1423.

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The United States Attorney for the Western District of

Arkansas certified that the employees' actions were taken within

the scope of their employment, removed the case to the district

court, and moved to substitute the United States as the named

defendant. See 28 U.S.C. § 2679(d). The government also moved to

dismiss the lawsuit on the ground that the United States has not

waived its sovereign immunity for claims of libel. See 28 U.S.C.

§ 2680(h). Following a hearing, the district court granted the

government's motions and dismissed Lawson's suit.

On appeal, Lawson objects to the district court's substitution

of the United States as the named defendant, arguing that the two

employees were not acting within the scope of their employment when

they wrote and sent the letter. Lawson does not object to the

ultimate dismissal of the United States under 28 U.S.C. § 2680(h).

To substitute the United States as the named defendant

pursuant to the Westfall Act, the Attorney General must certify

that the named individual defendants were acting within the scope

of their employment with regard to the conduct forming the basis of

the lawsuit. See 28 U.S.C. § 2679(d)(2); Heuton v. Anderson, 75

F.3d 357, 359-60 (8th Cir. 1996). The plaintiff is free to

challenge this certification, but bears the burden of coming

forward with specific facts rebutting the certification. See

Anthony v. Runyon, 76 F.3d 210, 214-15 (8th Cir. 1996); Heuton, 75

F.3d at 360; Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.

1991). State law determines whether the employees were acting

within the scope of their employment. See Heuton, 75 F.3d at 360;

Brown, 949 F.2d at 1012 n.7.2 We review the scope-of-employment

determination de novo. See McAdams v. Reno, 64 F.3d 1137, 1144

(8th Cir. 1995).
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Under Arkansas law, an employee "acts within the scope of

employment or in the line of duty when he acts for his employer's

benefit or furthers his employer's interest." Piper v. United

States, 887 F.2d 861, 863 (8th Cir. 1989) (citing Orkin

Exterminating Co. v. Wheeling Pipeline Inc., 567 S.W.2d 117, 119

(Ark. 1978)). The Arkansas Supreme Court has also stated that

whether the employee is acting within the scope of employment is

dependent upon whether "the subject individual is carrying out the

object and purpose of the enterprise, as opposed to acting

exclusively in his own interest." Razorback Cab of Fort Smith,

Inc. v. Lingo, 802 S.W.2d 444, 446 (Ark. 1991); see J.B. Hunt

Transport, Inc. v. Doss, 899 S.W.2d 464, 469 (Ark. 1995) (citing

Razorback Cab).

We agree with the district court that by attempting to report

Lawson's alleged job-related improprieties, the two employees were

not acting exclusively in their own interest but were acting for

the benefit of the Social Security Administration and furthering

its purpose. Because the two employees were acting within the

scope of their employment, the United States was properly

substituted as the named defendant.

The judgment is affirmed.

A true copy.

Attest:

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