
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2216                                DANIEL AVERSA, ET AL.,                               Plaintiffs, Appellants,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                     Campbell and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            Francis G. Murphy, with whom Kathryn  B. Johnston and Hall,  Hess,            _________________            ____________________     ____________        Kenison, Stewart, Murphy, & Keefe, P.A. were on brief for appellants.        _______________________________________            Richard  A.  Olderman, Attorney,  with  whom  Barbara  L.  Herwig,            _____________________                         ___________________        Attorney,  Civil  Division, Department  of  Justice,  Paul M.  Gagnon,                                                              _______________        United  States  Attorney,  and  Frank W.  Hunger,  Assistant  Attorney                                        ________________        General, were on brief for appellees.                                 ____________________                                   October 21, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.  Daniel   and   Carla                      BOWNES, Senior Circuit Judge.                              ____________________            Aversa filed a  civil action alleging that Patrick  Walsh, an            Assistant  United  States Attorney  in  the  District of  New            Hampshire,   and  Kenneth  Claunch,  Chief  of  the  Criminal            Investigation  Division  of  the  Internal  Revenue  Service,            falsely stated  and implied to  the local  and national  news            media  that   Daniel  Aversa   was  involved   in  laundering            illegally-gotten money,  tax  evasion, drug  trafficking  and            racketeering  activity, and thus  committed slander and other            common  law torts under New Hampshire law and deprived him of            his  right to liberty  guaranteed by the  Constitution of the            United States.  Senior District Judge Martin F. Loughlin, who            presided over the related criminal case, found the statements            to have  been  "totally false,"  "misleading,"  "outrageous,"            "self-serving"  and  "unfair."     In   this  civil   action,            Magistrate  Judge  Lovegreen  and  District  Judge Mary  Lisi            agreed with  Judge Loughlin's condemnation,  adding that  the            defendants'  conduct  showed "extraordinarily  poor judgment"            and was  "lacking in  professionalism."  The  district court,            however, dismissed  the Aversas' lawsuit, finding  that Walsh            and Claunch were  absolutely immune from suit  for the common            law  torts,   and  qualifiedly  immune  from   suit  for  the            constitutional tort.                       The purpose of immunity -- absolute or qualified --            is  not   to  protect  erring  federal   officials  from  the                                         -2-                                          2            consequences of  their injurious  acts, but to  safeguard the            public interest in having responsible  governmental employees            faithfully carry out their  duties without fear of protracted            litigation in unfounded damage suits.  See Wyatt v. Cole, 112                                                   ___ _____________            S.  Ct. 1827, 1833 (1992);  Westfall v. Erwin,  484 U.S. 292,                                        _________________            295  (1988); Harlow v. Fitzgerald, 457  U.S. 800, 807 (1982);                         ____________________            Scheuer  v.  Rhodes, 416  U.S.  232, 241-42  (1974);  Barr v.            ___________________                                   _______            Matteo, 360 U.S. 564, 565 (1959) (plurality opinion); Wood v.            ______                                                _______            United  States,   995  F.2d  1122,  1126   (1st  Cir.  1993);            ______________            Buenrostro v. Collazo, 973  F.2d 39, 42 (1st Cir.  1992).  In            _____________________            obvious  tension  with that  objective  is that  well-founded            damage  suits  promote  the public  interest  in compensating            victims and deterring unlawful conduct.  Harlow, 457 U.S.  at                                                     ______            814, 819; Barr, 360 U.S. at 576.                      ____                      The  law of  immunity seeks  a balance  between the            evils inevitable  in any available alternative.   Harlow, 457                                                              ______            U.S.  at  813; Wood,  995  F.2d  at 1126.    Thus,  a federal                           ____            employee who  allegedly commits  a common  law  tort will  be            absolutely immune from suit  if he acted within the  scope of            his  federal  employment, 28  U.S.C.     2679(b)(1), but  the            plaintiff  can proceed  against  the  government unless  some            exception  to the  Federal Tort  Claims Act  applies.   And a            federal  official  is qualifiedly  immune  from  suit for  an            alleged constitutional tort if his "conduct [did] not violate            clearly established .  . . constitutional  rights of which  a                                         -3-                                          3            reasonable person would have known," Harlow, 457 U.S. at 818,                                                 ______            even  though  his  actions  may  have  been  "despicable  and            wrongful" in some more general sense.  Souza v. Pina, 53 F.3d                                                   _____________            423, 427 (1st Cir. 1995).                          Although we  affirm, we believe that  the false and            misleading information allegedly disseminated to the press in            Aversa's criminal  case deserves more than  condemnation, and            therefore refer the  matter to  the appropriate  disciplinary            bodies.                          I.  FACTUAL AND PROCEDURAL BACKGROUND                        I.  FACTUAL AND PROCEDURAL BACKGROUND                      Except  where otherwise noted,  the following facts            are taken from Aversa's  complaint.  Daniel Aversa ("Aversa")            and  Vincent Mento  ("Mento") were  partners in  a legitimate            real  estate  business.1   In January  of  1989, they  sold a            parcel  of land, splitting the  proceeds.  At  the same time,            Aversa  was experiencing marital  difficulties with  his wife            Carla.   In order to conceal some of his assets from his wife            in  the event of  a divorce, Aversa  asked Mento if  he could            deposit his share of the proceeds, amounting to $55,000, into            Mento's personal bank account.  Mento agreed.                        Both  men   were  aware  that   domestic  financial            institutions were required to report currency transactions in            excess  of $10,000 to the  Secretary of the  Treasury, see 31                                                                   ___                                            ____________________            1.  Vincent and Shirley Mento  were plaintiffs in this action            but did not pursue an appeal.                                         -4-                                          4            U.S.C.   5313(a);  31 C.F.R.    103.22(a)(1),  and wished  to            avoid  causing a  Currency Transaction  Report ("CTR")  to be            filed.   Aversa  therefore  made a  series  of deposits  into            Mento's  account in sums just  under $10,000.2   At the time,            Aversa was unaware that structuring the transactions to avoid            causing a CTR to be filed was a crime under federal law.  See                                                                      ___            31 U.S.C.   5324(a).                      In June  of 1990,  IRS agents contacted  Aversa and            informed him that he  was under investigation for structuring            deposits.   He immediately  met with Assistant  United States            Attorney  Walsh, and  without an attorney  present, explained            that he was  hiding the money from his wife,  that it was not            derived from an illegal source, and that he did not know that            structuring was illegal.  Walsh told Aversa that he and Mento            had been under investigation for some time and that he had no            reason to  believe the  money was  anything but "clean,"  but            said that he did not  need to prove that it was  derived from            an illegal  source or that  Aversa knew that  structuring was            illegal.  Walsh told  Aversa that there was no reason to seek            counsel and encouraged  him to plead guilty because  all that                                            ____________________            2.  Aversa's  purpose in  transferring the  money out  of his            account was to conceal it from his wife, a purpose  we do not            condone.   But Judge  Loughlin found  that  Aversa and  Mento            wished  to avoid a CTR  being filed because  they believed it            would  cause  the  Internal  Revenue Service  to  hold  Mento            responsible  for the taxes on the amount, and that Aversa and            Mento  each reported his share of the proceeds on his own tax            return.                                           -5-                                          5            was needed for  a conviction  was what Aversa  had just  told            him.   In a later  meeting with Aversa's  counsel, Walsh said            that  he  previously  had  been  successful  in   prosecuting            individuals  for structuring  in  Miami, but  that this  case            would be his first involving "clean money," and he planned to            use it to "set a precedent" and "educate the public about the            currency transaction reporting requirements."                      On  June  28, 1990,  Walsh  obtained  an indictment            charging  Aversa and Mento  with conspiracy, structuring, and            making false statements, and  Aversa alone with attempting to            cause  a  domestic financial  institution  to  file a  report            containing a material omission or misstatement of fact.  That            same day, Walsh, Claunch, and the United States Attorney  for            the District of  New Hampshire, Jeffrey R.  Howard (with whom            Aversa alleged  Walsh and Claunch  conspired but who  was not            joined  as a  defendant) issued  a press  release and  held a            press conference  announcing to  the local and  national news            media, which  reported to the  public, that Aversa  and Mento            had been arrested  for money laundering.   Walsh and  Claunch            knew  that Aversa and  Mento were not  involved in laundering            illegally-gotten money,  or in drug trafficking,  tax evasion            or  organized crime,  but  created the  impression that  they            were.   An article in  the Boston Globe dated  June 29, 1990,            reported:                        Walsh  said  money laundering  is usually                      done  for purposes  of tax  evasion, drug                                         -6-                                          6                      dealing or organized crime.  He would not                      say if either of  yesterday's indictments                      are  related  to  these  activities,  but                      added  after the news conference that "it                      would  be   a  fair  statement"   to  say                      authorities are looking into  how [these]                      men amassed the sums of money involved.            Walsh  also stated  that Aversa  faced up  to forty  years in            prison and  added that  the investigation was  continuing and            more charges would be filed.                      A front-page article  in the Concord Monitor  dated            June 29, 1990 reported:                      The   indictments   are   a   sign   that                      prosecutors are serious  about using  the                      money laundering laws, a tool that allows                      them  to charge people for handling money                      illegally  without  having to  prove that                      the  money  was  gained  illegally,  said                      Jeffrey Howard, U.S.A.  attorney for  New                      Hampshire.                      "The  indictments  are important  because                      they are  examples of the  commitment the                      I.R.S.  has made .  . . to  use the money                      laundering  statutes  in order  to ferret                      out  tax  evasion,  drug trafficking  and                      other crimes," he said.                      Prosecutors  declined  to say  how Aversa                      and  Mento  got  the  money or  why  they                      believe   the  men  tried  to  evade  the                      currency laws.                      Claunch  stated  at   the  press  conference   that            "[t]hese  cases represent  the IRS's commitment  to ferreting            out money launderers,"  and that  the IRS wanted  "to send  a            message  that  money  laundering  is going  to  be  detected,            investigated and prosecuted to the full extent."                                           -7-                                          7                      On October 10,  1990, after Judge Loughlin  granted            the government's motion in limine to preclude a defense based                                    __ ______            on ignorance of the  anti-structuring law, Aversa pled guilty            to structuring.  The plea agreement stipulated:                      1.   The  United  States has  no evidence                      that  the  currency  involved   in  these                      transactions   was   obtained   from   an                      unlawful source.                      2.   The  United  States has  no evidence                      that   the   defendant   knew    of   the                      structuring provision, but states  to the                      Court   that   such   knowledge  is   not                      necessary  to  establish  a violation  of                      Section 5324.            Aversa  reserved his right to  appeal the issue  of whether a            conviction  under 31  U.S.C.    5324 required  knowledge that            structuring is illegal.                        On October 17, 1990, following  Mento's conviction,            Walsh  issued a  press release  in which  he stated  that the            currency  transaction  reporting  laws  and  the   laws  that            prohibit   structuring  "were   passed   to  assist   in  the            investigation  of related criminal conduct, such as narcotics            trafficking,  organized crime  and racketeering  activity and            tax  violations," and  that these  convictions would  send "a            strong clear message that persons who violate . . . and evade            those laws  will be vigorously prosecuted."   Walsh made oral            statements to the press stating  and implying that Aversa and            Mento  had  violated the  anti-structuring  law  in order  to            further  an  underlying criminal  enterprise,  and that  they                                         -8-                                          8            could  not  account for  some of  the  money involved  in the            structured  transactions.   No evidence  had been  adduced at            Mento's trial  that there was an  underlying criminal purpose            or that the source of the money  was unexplained.                      At Aversa's and Mento's sentencing,  Judge Loughlin            found  that Aversa  and Mento  would bear  the stigma  of the            "totally false" innuendoes reported in the media for the rest            of their lives.   In a memorandum opinion ruling  on Aversa's            and  Mento's post-conviction motions,3  the judge  noted that            the government had admitted  that Aversa and Mento  were "not            involved in drugs and not laundering ill-gotten gains and not            keeping information  from the United States,"  and found that            the prosecutors' statements to the press were "outrageous and            unfair," "misleading and cruel,"  "self-serving and more than            a little disingenuous," and  "smeared the reputation of these            two men."                        This   court   vacated    Aversa's   and    Mento's            convictions, ruling that  the willfulness requirement  of the            applicable criminal penalty provision,  31 U.S.C.    5322(a),            required the  government to  prove the violation  of a  known            legal duty  or the  reckless disregard  thereof, and  that an                                            ____________________            3.  The motions for writ  of coram nobis were based  on Cheek                                         _____ _____                _____            v.  United  States,  111 S.  Ct.  604  (1991),  decided after            __________________            Mento's  trial.  Judge Loughlin found that in light of Cheek,                                                                   _____            he had erred in  ruling out the defendants'  proposed mistake            of  law defense,  but found  that he  could not  grant relief            under a writ of coram nobis because other relief, in the form                            _____ _____            of an appeal, was available.                                         -9-                                          9            unintentional,  nonreckless  mistake of  law  was  a complete            defense  to a structuring  charge.  United  States v. Aversa,                                                ________________________            984  F.2d 493,  498,  500, 502  (1st  Cir. 1993)  (en  banc),            vacated  sub nom., Donovan v.  United States, 114  S. Ct. 873            _______  ___ ___   _________________________            (1994).4  We  remanded for  a new trial,  but the  government            elected not to proceed again against Aversa.                      The  Aversas then  brought a  civil action  seeking            compensatory and punitive damages against Walsh, Claunch, and            other  unnamed  defendants,  alleging  in Count  I  that  the            defendants,  acting  under  color  of  federal  law, deprived            Aversa  of his Fifth Amendment right to liberty; in Counts II            and  III  that  they  committed  the  torts  of  slander  and            intentional   infliction  of  emotional  distress  under  New            Hampshire law; and  in Count IV that  the defendants' conduct            caused Carla  Aversa to lose  the consortium of  her husband.            The complaint  alleged that Walsh and  Claunch defamed Aversa            for the  purpose of personally benefitting  in their careers,            and   that  their  false  and  misleading  statements  caused            irreparable   harm  to   Aversa's   personal   and   business                                            ____________________            4.   The Supreme Court ordered our judgment in Aversa vacated                                                           ______            and the case remanded for reconsideration in light of Ratzlaf                                                                  _______            v. United States,  114 S. Ct. 655 (1994),  in which the Court            ________________            had held  that the  willfulness  requirement of  31 U.S.C.               5322(a) required knowledge that  structuring is illegal.  Id.                                                                      __            at  663.   Congress  has since  amended  the statute  so that            willfulness  is  no longer  required  for a  violation  of 31            U.S.C.    5324.  See  Pub. L. No.  103-325,   411,  108 Stat.                             ___            2160  (Sept. 23,  1994) (codified as amended at  31 U.S.C.               5322(a) (West Supp. 1996)).                                         -10-                                          10            reputations  and  his business  goodwill,  caused  him to  be            discharged from his  job as an accountant, and  prevented him            from finding other employment as an accountant.  The case was            transferred  from  the  District  of  New  Hampshire  to  the            District of Rhode Island.   Pursuant to the Federal Employees            Liability Reform and Tort  Compensation Act of 1988, commonly            known  as the  Westfall Act,  the Attorney  General certified            that  Walsh  and  Claunch  acted within  the  scope  of their            federal  employment and the  United States  was provisionally            substituted as the party defendant.   28 U.S.C.   2679(d)(1).            Aversa  was permitted to depose  Walsh and Claunch  in aid of            his challenge  to the  scope certification, and  he submitted            the  depositions   and  various   exhibits  to   the  court.5            Thereafter, Magistrate  Judge Lovegreen ruled that  Walsh and            Claunch  were acting  within the  scope of  their employment,            thus converting the common law claims into claims against the            United States under the Federal Tort Claims Act, 28 U.S.C.               2679(d)(1),  1346(b), then  recommended that those  claims be            dismissed for  lack of  subject matter jurisdiction  based on                                            ____________________            5.  The  exhibits included  copies  of  press releases  dated            June 28,  1990, and  October  17, 1990,  a newspaper  article            dated  June 29,  1990,  a transcript  of Aversa's  sentencing            hearing  on  March  14,  1991,  Judge  Loughlin's  memorandum            opinion dated April 29, 1991,  ruling on Aversa's and Mento's            motions  for writ  of coram  nobis, Chapter  7 of  the United                                  _____  _____            States Attorneys' Manual (1988), 28 C.F.R.   50.2, Rule 35 of            the Local  New Hampshire District Court  Rules, Claunch's job            description,   and  an  Internal   Revenue  Policy  Statement            concerning news coverage.                                           -11-                                          11            the  exception  to the  Federal  Tort Claims  Act  for claims            arising  out of  libel  or slander.    28 U.S.C.     2680(h).            Treating the defendants' motion to dismiss the constitutional            claim as a motion for summary judgment, the magistrate  judge            recommended summary judgment in favor of Walsh and Claunch on            the basis that they were qualifiedly immune.                      Magistrate Judge Lovegreen stated in his Report and            Recommendation  that  he was  in  full  agreement with  Judge            Loughlin's  assessment of the  defendants' conduct, and added            that the "defendants' extraordinarily poor judgment in making            these statements should  not go unnoticed."  In  adopting the            magistrate's  Report  and  Recommendation  in  its  entirety,            United  States  District  Judge  Mary  Lisi  found  that  the            defendants'  "publication  of  misleading  information  [was]            lacking in professionalism  and deserving  of the  opprobrium            articulated by Judge Loughlin and Magistrate Lovegreen."                                   II.  DISCUSSION                                   II.  DISCUSSION                              A.  The Common Law Claims                              A.  The Common Law Claims                      As   an  initial  matter,  the  Aversas'  complaint            describes  a claim for slander under New Hampshire law, which            defines the tort as follows:                      In order to  be actionable, the  language                      complained  of  must  tend to  lower  the                      plaintiff   in   the   esteem    of   any                      substantial  and respectable  group, even                      though it may be quite a small  minority.                      The  defamatory meaning must  be one that                      could be ascribed to the words by hearers                      of common and reasonable understanding. .                                         -12-                                          12                      .  .  The threshold  question  .  . .  is                      whether the published  words are  capable                      of  conveying  the defamatory  meaning or                      innuendo   ascribed   to   them  by   the                      plaintiff.            Thomson v.  Cash, 402  A.2d  651, 653  (N.H. 1979)  (internal            ________________            quotation marks  and citations omitted).   We agree  with the            district  court (and  the  Aversas do  not contest)  that the            claims for  intentional infliction of emotional  distress and            loss of  consortium through  "verbal abuse and  slander" also            "arose  out of"  slander within  the meaning  of 28  U.S.C.              2680(h).   See Jiminez-Nieves v. United States, 682 F.2d 1, 6                       ___ _______________________________            (1st  Cir. 1982) (court must look beyond the literal language            to ascertain  the real cause  of the complaint;  heartland of            the  tort  of  defamation  is  injury  to  reputation  by the            implicit or explicit communication of an idea).                        1.   The Westfall Act                      1.   The Westfall Act                      Before 1988, a plaintiff  with a tort claim against            a federal employee could proceed against the  employee in his            or  her personal  capacity, and  if the employee  was "acting            within  the scope of his  office or employment,"  28 U.S.C.              1346(b), could proceed against  the United States, instead of            or in  addition to  the federal  employee, under  the Federal            Tort  Claims Act  (FTCA), 28 U.S.C.     1346,  2671-78, 2680.            Congress, however, expressly excepted certain kinds of claims            from the FTCA's otherwise broad waiver of sovereign immunity,            including  any  claim  arising   out  of  slander  and  other                                         -13-                                          13            specified intentional torts.   28 U.S.C.    2680(h).6   Thus,            while a plaintiff with a claim not excepted from the right to            sue  the  United  States  likely  would  choose  to  sue  the            government rather than  or in addition  to an individual  who            may  be judgment-proof,  a plaintiff  with an  excepted claim            like  the Aversas' would have no choice but to proceed solely            against the employee.   The employee, however, might be found            absolutely immune  from suit according to  federal common law            principles.  See Howard v. Lyons, 360 U.S. 593, 597 (1959).                         ___ _______________                      In  1988, the  Supreme  Court decided  Westfall  v.                                                             ____________            Erwin, 484  U.S. 292  (1988), holding that  absolute immunity            _____            from  state-law  tort  actions   was  available  to   federal            employees only when their conduct was both "within the  scope            of  their official duties and . . . discretionary in nature."                                      ___            Id. at  297-98 (emphasis in  original).  The  Court, however,            __            invited Congress to legislate standards defining the scope of                                            ____________________            6.  The  legislative history  regarding the  intentional tort            exceptions is  scant, but  they  appear to  rest on  concerns            raised by the Department of Justice that those torts would be            "easily   exaggerated"  and  "difficult  to  make  a  defense            against."  See 2 L. Jayson, Personal Injury, Handling Federal                       ___            Tort  Claims     13.06[1][a],   at  13-48-49  n.  1.2  (1995)            (discussing legislative history).  In 1973,  Congress removed            from  the list  assault, battery,  false imprisonment,  false            arrest, abuse of process and malicious prosecution  committed            by investigative or law  enforcement officers, in recognition            of the "manifest injustice" of denying a federal remedy  when            a  federal  agent  intentionally  assaults a  citizen  in  an            illegal raid,  while providing  the remedy  to a  citizen run            down  by a negligent mail truck driver.   See S. Rep. No. 93-                                                      ___            588, 93d Cong., 2d Sess. 1974, reprinted in 1974 U.S.C.C.A.N.                                           _________ __            2789.   Congress has not otherwise amended the exceptions for            intentional torts.                                               -14-                                          14            federal employee immunity, since it was  in the best position            to resolve  the "complex and often  highly empirical inquiry"            whether   the   "contribution   to    effective   government"            sufficiently  "outweighs the  potential  harm  to  individual            citizens" to warrant  immunity in a particular  context.  Id.                                                                      __            at 299-300.                        Congress responded within the year with the Federal            Employees Liability Reform and Tort Compensation Act of 1988,            commonly known as the Westfall Act.  The Westfall Act amended            the  FTCA to  make an  action against  the United  States the            exclusive remedy  for money  damages for injury  arising from            the  "negligent or  wrongful act  or omission"  of a  federal            employee  "acting   within  the   scope  of  his   office  or            employment,"  28 U.S.C.    2679(b)(1),  thus eliminating  the            discretionary   function   requirement  and   making  federal            employees absolutely  immune  from suit  for torts  committed            within the scope of  employment.7  The FTCA is  the exclusive            remedy even when, as here, an exception to the FTCA precludes                                            ____________________            7.  Congress understood prior  immunity law as  not requiring            the  act  to  have   been  discretionary  in  nature,  feared            protracted litigation  in  determining whether  the  employee            exercised  governmental discretion,  and intended  "to return            Federal employees  to  the  status  they held  prior  to  the            Westfall  decision."  See H.R. Rep. No. 100-700, 100th Cong.,            ________              ___            2d Sess. 4,reprinted in 1988 U.S.C.C.A.N. 5945, at 5946-47.                         _________ __                                         -15-                                          15            government liability.  United States v.  Smith, 499 U.S. 160,                                   _______________________            165-67 (1991).8                      The  exclusive remedy  provision  is first  invoked            through  a  certification  by  the Attorney  General  or  her            delegate that  the employee  was acting  within the  scope of            employment.9  28 U.S.C.   2679(d)(1).  Once the certification            is made, the  suit is  "deemed an action  against the  United            States" under the FTCA and  the United States is  substituted            as  the  party  defendant,  id.,  but  the  certification  is                                        __            provisional and  subject to judicial review,  after which the            employee  may be  resubstituted.   Gutierrez  de Martinez  v.                                               __________________________            Lamagno, 115 S. Ct. 2227, 2230-31 (1995).              _______                      2.   State Respondeat Superior Law                        2.   State Respondeat Superior Law                                 __________ ________                      Before the Westfall Act, federal  employee immunity            from suit  for  state  law  torts was  decided  according  to            federal common law.  The Westfall Act provides that a federal                                            ____________________            8.  The  Act provides that  once the  United States  has been            substituted  as the  party  defendant, the  action "shall  be            subject to the limitations and exceptions applicable to . . .            any  action  against  the  United States  filed  pursuant  to            section 1346(b)," 28 U.S.C.    2679(d)(4) (sentence structure            disregarded), and  the legislative  history states that  "any            claim  against  the  government  that  is  precluded  by  the            exceptions set forth in Section 2680 of Title 28, U.S.C. also            is precluded against an employee in [sic] his or her estate."            H.R. Rep. No. 100-700, supra, at 5950.                                     _____            9.  The Attorney General has  delegated her authority to make            scope  of employment  certifications  to  the  United  States            Attorneys  with  respect  to  civil  actions brought  against            federal employees  in their respective districts,  subject to            the supervision  of the Assistant Attorney  General in charge            of the Civil Division.  See 28 C.F.R.   15.3(a).                                      ___                                         -16-                                          16            employee is  immune if he  or she acted "within  the scope of            his  office or  employment," 28  U.S.C.    2679(b)(1), which,            according to the legislative history,  is to be determined by            the  same law that had previously been used only to determine            whether the United  States could be sued under the FTCA:  the            law of respondeat superior of the state in which the incident                   __________ ________            occurred.  See H.R. Rep. No. 100-700, supra, at 5949.                       ___                        _____                      At oral argument, we raised a concern about whether            certain comments  in the recent case of Gutierrez de Martinez                                                    _____________________            v. Lamagno, supra, might indicate that scope of employment is            __________  _____            to  be determined according to federal common law rather than            state  respondeat superior  law.   In  that  case, the  Court                   __________ ________            concluded that a certification by the Attorney General or her            delegate  that the  federal  employee was  acting within  the            scope  of his or her employment is subject to judicial review            for purposes of permanently substituting the United States as            the party defendant.  115 S. Ct. at 2234-36.  Amicus raised a            potential Article  III problem -- that if the court concluded            that the employee acted outside the  scope of employment, and            the plaintiff and defendant  were not of diverse citizenship,            there  would  no longer  be  a  federal question  to  support            subject  matter  jurisdiction once  the federal  employee was            resubstituted.    Id.  at  2236.   A  four-justice  plurality                              __            concluded that Article III nonetheless was satisfied  because            "there was a nonfrivolous  federal question" presented at the                   ___                                         -17-                                          17            outset  of the  case.   Id. at  2236 (emphasis  in original).                                    __            Justice Ginsburg wrote:                       At that  time, the United  States was the                      defendant, and the action was  thus under                      the  FTCA.    Whether  the  employee  was                      acting  within the  scope of  his federal                      employment   is  a   significant  federal                      question  -- and  the  Westfall  Act  was                      designed  to  assure  that this  question                      could  be  aired  in  a   federal  forum.                      Because  a  case under  the  Westfall Act                      thus    "raises    [a]   questio[n]    of                      substantive  federal  law  at   the  very                      outset,"   it  "clearly   'arises  under'                      federal law, as that term is used in Art.                      III."            Id. at 2236 (citations omitted).              __                      After further briefing in which both parties agreed            that the plurality did not mean that  the scope determination            should be  resolved by reference to federal rather than state            law, we reach the same conclusion.  First,  we think that all            the  plurality intended  to address  was  whether there  is a            sufficient federal predicate  to keep a Westfall  Act case in            federal court, once  a determination has  been made that  the            defendant  was not  acting within  the scope  of his  federal            employment.  The answer  was yes, because at the  outset, the            case arose  under a law of the  United States (the FTCA), and            the United States was a  party.  See U.S. Const. art.  III,                                               ___            2.   Second, even if  Justice Ginsburg was  referring in some            measure  to   the  scope  determination,  federal   law  does            determine  whether a  person is  a  federal employee  and the            nature and  contours of his or  her federal responsibilities.                                         -18-                                          18            See  Ezekiel v.  Michel, 66  F.3d 894,  899 (7th  Cir. 1995);            ___  __________________            Platis v.  United  States, 409  F.2d  1009, 1011  (10th  Cir.            _________________________            1969).  But state  law governs whether the person  was acting            within   the   scope    of   that   employment    and   those            responsibilities.   As already noted, the legislative history            is clear  that Congress so  intended, H.R. Rep.  No. 100-700,            supra, at 5949, and although we are the first to grapple with            _____            the  meaning  of  the  plurality's remarks  in  Gutierrez  de                                                            _____________            Martinez,  the  courts of  appeal,  including  our own,  have            ________            concluded that state law  controls.  See Heuton  v. Anderson,                                                 ___ ___________________            75 F.3d 357, 360 (8th Cir. 1996); Haddon v. United States, 68                                              _______________________            F.3d  1420 (D.C. Cir. 1995); Garcia v. United States, 62 F.3d                                         _______________________            126, 127  (5th Cir. 1995); Jamison v. Wiley, 14 F.3d 222, 227                                       ________________            n.4 (4th Cir. 1994);  Schrob v. Catterson, 967 F.2d  929, 934                                  ___________________            (3d Cir.  1992); McHugh v. Univ. of  Vermont, 966 F.2d 67 (2d                             ___________________________            Cir. 1992); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,                        _________________________________            1542  (11th Cir. 1990), cert.  denied, 112 S.  Ct. 62 (1991);                                    ____   ______            Nasuti  v. Scannell, 906 F.2d  802, 805 n.3  (1st Cir. 1990);            ___________________            Arbour  v.  Jenkins, 903  F.2d 416,  421-22 (6th  Cir. 1990);            ___________________            Washington  v. United States,  868 F.2d 332,  334 (9th Cir.),            ____________________________            cert. denied, 493 U.S. 992 (1989).            ____  ______                      In a related vein,  Aversa argues that we indicated            in Nasuti v. Scannell, supra,  that intentional torts are not               __________________  _____            within the scope of employment as a matter of law.  There, we            stated that "the tort charged (assault and battery) is one of                                         -19-                                          19            the   2680(h)  exceptions which  could not  by definition  be            within the scope of employment."  906 F.2d at 813 n.16.  This            remark,  however,  does  not  mean  that  intentional   torts            excepted  by  section  2680(h)   are  outside  the  scope  of            employment as a matter  of federal law regardless of  the law            of  respondeat  superior  of  the  state  in  which the  tort                __________  ________            occurred.    The assault  at issue  in  Nasuti took  place in                                                    ______            Massachusetts, under whose law an assault is within the scope            of employment only if done in response to some conduct of the            plaintiff  that interfered  at the  time with  the employee's            ability to do his or her job.   Id. at 805 n.3 (citing Miller                                            __                     ______            v. Federated Dep't  Stores, Inc., 304 N.E.2d  573, 579 (Mass.            ________________________________            1973)).   Because the  district  court found  no evidence  of            those circumstances,  the assault  on Nasuti was  outside the            scope  of  employment  as  a  matter  of  Massachusetts  law.            Generally,  however, an intentional  tort excepted by section            2680(h)  can  be  within  the scope  of  employment  if state            respondeat superior  law so requires.   See, e.g.,  Henson v.            __________ ________                     ___  ____   _________            NASA,  14 F.3d 1143, 1147-48 (6th Cir. 1994) (under Ohio law,            ____            an employee's acts are  within the scope of employment  if he            acts  within his  authority during  the course  of employment            even  though  acting intentionally  or  maliciously,  but are            outside the scope if the acts are self-serving and  in no way            facilitate the employer's business); Nadler v. Mann, 951 F.2d                                                 ______________            301, 305-06 (11th Cir. 1992) (under Florida law, prosecutor's                                         -20-                                          20            allegedly  slanderous conduct in referring bribery allegation            to  FBI was within scope of employment, but leaking the story            to the press  was not);  Jayson, supra,    9.07[1], at  9-168                                             _____            (that   the  employee's  conduct  was  intentional  does  not            preclude a finding  that he  was acting within  the scope  of            employment).                      3.   Scope of Employment                      3.   Scope of Employment                      We now turn to  the merits.  It is  the plaintiff's            burden to prove the existence of subject matter jurisdiction.            Murphy v. United States,  45 F.3d 520, 522 (1st  Cir.), cert.            _______________________                                 ____            denied, 115 S. Ct. 2581 (1995).  Because it is not in dispute            ______            that  Aversa cannot  sue  the United  States for  defamation,            there  is subject  matter jurisdiction  only if  Walsh and/or            Claunch  acted outside the scope  of his employment.   It was            Aversa's burden to persuade the court that they did.  Nasuti,                                                                  ______            906 F.2d at 813 n. 16.  In ruling  on a motion to dismiss for            lack  of subject matter  jurisdiction under  Fed. R.  Civ. P.            12(b)(1),  the  district court  must  construe the  complaint            liberally,  treating  all  well-pleaded  facts  as  true  and            indulging  all   reasonable  inferences   in  favor   of  the            plaintiff.  Murphy, 45  F.3d at 522.  In  addition, the court                        ______            may consider  whatever evidence  has been submitted,  such as            the depositions  and exhibits  submitted in  this case.   Cf.                                                                      __            Nasuti, 906  F.2d at 808  (trial court  may hold  evidentiary            ______            hearing  to resolve  immunity-related factual disputes).   We                                         -21-                                          21            review the district court's scope of employment determination            de novo.              __ ____                      There is  no New Hampshire case  resolving a scope-            of-employment  question in  a  defamation case,  but we  find            sufficient guidance  in New Hampshire cases  dealing with the            question in the context  of assault and in those  sections of            the Restatement (Second) of Agency that we feel confident the            New Hampshire  Supreme  Court would  follow.   See  Croes  v.                                                           ___  _________            United States, 726 F.2d 31, 32 (1st Cir. 1984).              _____________                      An act is within the scope  of employment under New            Hampshire law  if  it  was  authorized  by  the  employer  or            incidental to  authorized duties; if  it was done  within the            time  and space  limits  of the  employment;  and if  it  was            actuated at least in part by  a purpose to serve an objective            of the employer.  See Daigle v. City of Portsmouth,  534 A.2d                              ___ ____________________________            689, 698-700,  701-02 (N.H.  1987); Richard v.  Amoskeag Mfg.                                                _________________________            Co.,  109 A. 88,  91-92 (N.H. 1920);  Restatement (Second) of            ___            Agency   228(1) (1958).  The conduct is not within the  scope            of  employment  if  it  was  "different  in  kind  from  that            authorized, far  beyond the authorized time  or space limits,            or too little  actuated by  a purpose to  serve the  master."            Restatement, supra,   228(2).                          _____                      As  there was  no  dispute that  Walsh and  Claunch            acted  within the time and space  limits of their employment,            the  magistrate judge  focused on  whether their  conduct was                                         -22-                                          22            authorized  or  incidental  to  authorized  duties,  and  was            intended by them  to serve  their employers.   He found  that            because Walsh  and Claunch  were authorized to  prepare press            releases  and participate  in press  conferences in  order to            keep  the public  informed, and  because Howard  approved the            press  releases,   made  the  decision  to   hold  the  press            conferences, and  was present for the  press conferences, the            statements were either authorized or incidental to authorized            duties.   The magistrate judge  further found that  Walsh and            Claunch  acted  at least  in part  to serve  their employers'            interests in  keeping the public informed  of law enforcement            efforts.                       Aversa  correctly  argues  that Walsh's  defamatory            statements to the press were not authorized.  Walsh testified            that as an Assistant United States Attorney, he  was expected            to  abide  by  the  United  States  Attorneys'  Manual  ("the            Manual") issued  by his employer, the  Department of Justice.            Chapter 7 of the Manual, entitled "Media Relations," provides            that  "fairness  [and] accuracy  . .  .  must prevail  in all            dealings  with the  news media."   Manual,  ch. 7,    1-7.001            (1988).   News  conferences should  not be  held to  announce            indictments  or  arrests except  in  "unusual circumstances,"            such  as to alert the  public about a  fugitive from justice,            and  then "extreme care" should be  taken to avoid statements            branding  an accused as guilty of a  crime of which he or she                                         -23-                                          23            has not been convicted.  Id.  Written news releases "relating                                     __            the essentials  of the  indictment" may be  distributed, and,            with permission  of the United States  Attorney, an Assistant            United States Attorney "may answer legitimate questions about            indictments  or arrests,  either in  press conferences  or in            discussions with individual reporters, but answers should not            go  beyond explanation of what  is in the  public document or            the confines  of 28 C.F.R.   50.2."  Id.  The Manual provides                                                 __            that  28 C.F.R.   50.2 "defines the types of information that            may  be and  the types  of information that  may not  be made            ___  __                                      ___ ___  __            available  to the  news media  about pending  . .  . criminal            cases  by  employees of  the  Department  of Justice."    Id.                                                                      __            (emphasis  in  original).   Employees  are to  adhere  to the            regulation "in both letter and spirit."  Id.                                                       __                      The regulation provides that, among other facts and            circumstances not relevant here, Justice Department employees            may make public the "substance or text of the charge, such as            a[n]  indictment," and  may disclose  "only incontrovertible,            factual  matters."    28 C.F.R.     50.2(b)(3).   Release  of            information that would  be prejudicial or would serve  no law            enforcement function  is prohibited.  Id.    50.2(b)(3), (5),                                                  __            (6).    Statements which  could  "reasonably  be expected  to            influence  the outcome  of a  pending or  future trial,"  and            statements concerning  evidence in  the case, whether  or not                                         -24-                                          24            anticipated  to  be  used  at  trial, are  prohibited.    Id.                                                                      __              50.2(b)(2), (6)(v).                        Walsh also testified that he was subject to Rule 35            of  the  Local  New  Hampshire District  Court  Rules,  which            prohibits any lawyer from releasing information that is not a            matter of public  record, or  is likely to  interfere with  a            fair trial  or otherwise prejudice the  due administration of            justice.  See D.N.H. L.R. 35.                      ___                      Walsh admitted that, in dealing with the news media            regarding  a  criminal case,  he  was not  authorized  to say            anything that was inaccurate  or misleading, not contained in            a public document, or prejudicial to a defendant's right to a            fair trial, or to otherwise contravene the directives of  the            Manual, 28 C.F.R.   50.2, or  Local Rule 35.  The statements,            as represented  in the complaint  and appearing in  the press            releases  and   news   articles  submitted   to  the   court,            transgressedthesepoliciesandrules                                            andthereforewerenot                                                              authorized.                      That Howard approved  the press releases,  made the            decision to call  the press conferences,  and was present  at            the  press conferences does  not change that  result.  Howard            did  not approve in advance any of Walsh's oral statements to            the  press.10    Moreover,  we  do  not  think  that Howard's                                            ____________________            10.  Howard did  approve Walsh's  statements after the  fact.            Judge  Loughlin required Howard's  presence at the sentencing            hearing  and asked  him to  respond to  his criticism  of the            "various innuendoes,  totally false, in the  media that these            crimes were drug related."   Howard stated that he  "stood by                                         -25-                                          25            approval can suffice as authorization  for Walsh's defamatory            statements.   An employee  of the Department  of Justice  who            wishes  to  release information  beyond  that  allowed by  28            C.F.R.     50.2  must  obtain permission  from  the  Attorney            General or Deputy Attorney General,  28 C.F.R.   50.2(9), not            the  United States  Attorney,  and Walsh  did  not seek  such            approval.                        Although an employee's  intentionally tortious  act            was not authorized, it  may nonetheless have been within  the            scope  of  employment if  it  was  "incidental to  authorized            duties."   According to New Hampshire  cases deciding whether            assaults  were within  the scope  of employment,  the conduct            must  meet  three  requirements  in order  to  be  considered            incidental to authorized duties:  (1) the employer authorized            or could  foresee that the  employee would  use a  reasonable            degree  of force  as a  means of  carrying out  an authorized            duty;  (2)  the  employee  used  excessive  force,   although            wrongly, as  a means of accomplishing an authorized duty; and            (3)  the employee's purpose was,  at least in  part, to carry            out an  authorized  duty.    Daigle,  534  A.2d  at  699-702;                                         ______            Richard, 109 A. at  90-91; Rowell v. Boston &  Maine R.R., 68            _______                    ______________________________            N.H. 358, 359  (1895).   See also Restatement,  supra,    229                                     ___ ____               _____            cmt.  b (even though an act  is of an entirely different kind                                            ____________________            the  actions  and  conduct  of the  Assistant  United  States            Attorney in this case throughout."                                         -26-                                          26            than that authorized, it may be  "incidental to an authorized            act" if it is "within the ultimate objective of the principal            and an act which it is not unlikely that such a servant might            do").    If these  conditions are  met,  it follows  that the            employer is  liable for  the employee's negligent  or willful            use  of  excessive  force   although  the  employer  did  not            authorize it and even  forbade it.   See Daigle, 534 A.2d  at                                                 ___ ______            699-700 (police officer's use of excessive force in effecting            arrest was  within scope of  employment); Richard, 109  A. at                                                      _______            91-92  (supervisor's  use  of  excessive  force  in   keeping            employee at her work station was within scope of employment);            Rowell, 68 N.H. at 359 (conductor's use of excessive force in            ______            ejecting  plaintiff from  railroad  car was  within scope  of            employment).   If any one of  the conditions is not  met, the            employee's conduct is outside the scope of employment.  Morin                                                                    _____            v. People's Wet Wash Laundry Co., 156 A. 499, 500 (N.H. 1931)            ________________________________            (although employee's motive in assaulting plaintiff may  have            been to  serve his  employer, assault  was  outside scope  of            employment  because the  employment  implied  no  measure  of            force).                        Here, the Justice Department authorized or at least            could  foresee  that  an  Assistant  United  States  Attorney            permitted to inform the public about arrests, indictments and            convictions would convey to the public a reasonable amount of                                                     __________            negative  information about  the persons involved.   Further,                                         -27-                                          27            although unfortunate, we think that the Department of Justice            reasonably  could anticipate that  an employee entrusted with            that power  might abuse  it.   Analogously, the  Daigle court                                                             ______            stated  that  "excessive  force  in  the  use  of  guns   and            nightsticks  is always foreseeable."  534 A.2d at 700.  True,            there  were policies  and  regulations against  the kinds  of            statements that were made,  but an act which is  forbidden or            done in  a  forbidden manner  may nonetheless  be within  the            scope of employment.   Restatement, supra,   230.   A "master                                                _____            cannot direct a servant to accomplish a result and anticipate            that he  will always use the  means which he directs  or will            refrain from acts which it is natural to expect that servants            may do."  Id.,   230 cmt. b.  See also Danforth v. Fisher, 75                      __                  ___ ____ __________________            N.H. 111, 111-12 (1908) (if employee was serving some purpose            of his  employer, it is  immaterial that he  did it in  a way            that was unexpected).                      We  also   think  that  Walsh   made  the   alleged            statements as  a means, albeit  tortious and contrary  to his            employer's policies and rules,  of accomplishing the  Justice            Department's objective of informing  the public of recent law            enforcement efforts.   To  be sure, Walsh's  suggestions that            Aversa  was involved  in  drug trafficking,  tax evasion  and            racketeering   furthered   no   legitimate  law   enforcement            objective  and  actually misinformed  the  public.   But  his            statements did  inform the public about  a recent prosecution                                         -28-                                          28            under the  anti-structuring laws.  The  New Hampshire Supreme            Court agrees  with the Restatement's view  that "the criminal            or tortious  character of  an employee's  act does  not, ipso                                                                     ____            facto, remove the act from the scope of employment,"  Daigle,            _____                                                 ______            534 A.2d at 700  (citing Restatement, supra,   231),  so long                                                  _____            as  it  is "exerted  in, and  for the  purpose of,  doing the            employer's  business."     Id.    And  that  court  does  not                                       __            necessarily agree with the  Restatement's view that, if these            conditions  are  met, the  degree  of  outrageousness of  the            conduct  may remove  it from  the scope  of employment.   Id.                                                                      __            (referring to Restatement,  supra,   229 cmt. b);  Rowell, 68                                        _____                  ______            N.H.  at 359  (master  is responsible  for  the acts  of  the            servant done as  a means  and for the  purpose of  performing            that  work although done with a wanton or reckless purpose to            accomplish the work in an unlawful manner); Arthur  v. Balch,                                                        ________________            23 N.H. 157, 161  (1851) (employee acted within the  scope of            his employment when he used  a horse he had stolen to  do his            employer's business).                        Finally,  we think  that  Walsh's  statements  were            actuated,  at least  in part,  by an  intention to  serve his            employer.   Daigle, 534  A.2d at  699; Restatement,  supra,                          ______                                   _____            228(1)(c).  This inquiry focuses on the subjective intent  of            the  employee and his notion  of how to  serve his employer's            interests  need  not  be  reasonable or  reflective  of  good                                         -29-                                          29            judgment.11  Aversa points out that  the complaint, which the            district court  was required  to take as  true, alleged  that            Walsh defamed  Aversa for  the purpose  of promoting  his own            career,  and that  Judge  Loughlin  found  at least  some  of            Walsh's  statements  to  have   been  "self-serving."     The            complaint,  however, also  alleged that  Walsh told  Aversa's            attorney that he planned to use the case to "set a precedent"            and  "educate  the  public"  about the  currency  transaction            reporting requirements.  During his deposition, Walsh did not            deny  that  the  media  accurately  reported  his  words  and            testified that  he believed  he was discharging  his duty  to            inform the public in making these statements.  From this, the            district court justifiably could find that Walsh intended, at            least in part and although misguidedly, to serve an objective            of his employer.                      Under  these  circumstances, we  have  little doubt            that  the  New Hampshire  Supreme  Court  would hold  Walsh's            employer responsible for his  defamatory statements.  We find            further  support  for  this conclusion  in  the Restatement's                                            ____________________            11.  In Daigle,  the New  Hampshire Supreme Court  found that                    ______            the police officer was  actuated at least in part to  serve a            law  enforcement   function  in  that  he   believed  it  was            appropriate to beat suspects in the course of serving the law            enforcement   objectives  of   capturing   the   guilty   and            establishing their guilt.  534 A.2d at 700.  See also Concord                                                         ___ ____ _______            Bank  v.  Greg,  14  N.H.   331,  340  (1843)  (principal  is            ______________            chargeable with agent's fraudulent  acts done for the purpose            of effecting  sale for  principal; "[w]ere it  otherwise, the            principal would never be  liable for the frauds of  a special            agent, unless he commissioned him to commit a fraud").                                         -30-                                          30            special  rule  for  defamation,  which embodies  the  general            principle, recognized  in  the New  Hampshire assault  cases,            that an employer should be  held responsible when it entrusts            an employee with a duty particularly susceptible of abuse  to            cause harm:                         A  master  is  subject to  liability  for                      defamatory statements made  by a  servant                      acting within the scope of his employment                      . . . .  If the scope of employment  of a                      servant includes the making of statements                      concerning others which he believes to be                      true  and  privileged,   the  master   is                      subject  to  liability  for   untrue  and                      unprivileged  defamatory  statements made                      by the servant concerning such others, if                      the statements are  otherwise within  the                      scope of the servant's employment.  . . .                      If the  master employs a servant to speak                      for  him, he is  subject to  liability if                      the  servant makes  a mistake  as to  the                      truth of  the words  spoken or as  to the                      justification for speaking them,  or even                      if  he  speaks with  an  improper motive,                      provided that he acts at least in part to                      serve  his  employer's  purposes.     The                      master  may be  liable  even  though  the                      servant knows the statement to be untrue,                      as where the manager  of a store, for the                      purpose  of obtaining an admission from a                      suspected thief, charges such person with                      other similar crimes, although  having no                      belief in his own statements.              Id.,   247 & cmts. a, c.            __                      We also conclude that  the district court correctly            held that  Claunch acted within the scope  of his employment.            One of  his duties was  to inform  the public  about tax  and            other cases in which the  IRS was involved in order  to deter            violations  of the law and  to instill public confidence that                                         -31-                                          31            the IRS prosecuted violators.  The  IRS's policy statement on            news  coverage required Claunch to act with due regard for an            individual's  right to a fair trial and the public's right to            know, and, particularly in view of the "statutory prohibition            on the disclosure of tax information," to strictly limit what            he said  to facts that were  a matter of public  record.  IRS            Policy Statement P-1-181.  Aversa alleged that Claunch stated            that the  case represented the IRS's  commitment to ferreting            out, investigating and prosecuting money launderers.   Aversa            was  indicted  for  and  convicted  of  violating  the  anti-            structuring  law, which  was enacted  as  part of  the "Money            Laundering Control Act  of 1986."   See Pub.  L. No.  99-570,                                                ___            Subtitle  H,  100  Stat.  3207-18  (Oct.  27,  1986).     The            legislative  history,  however,  defines  "money  laundering"            essentially  as  concealing money  from  the  government (not            one's spouse) for the purpose of covering up illegal activity            or evading taxes.   See  H.R. Rep.  No. 746,  99th Cong.,  2d                                ___            Sess., p. 16  (1986).   Aversa was not,  therefore, a  "money            launderer."   Nonetheless,  we have  no doubt  that Claunch's            employer would  be held  responsible for his  statement under            the principles of New Hampshire law set forth above.                      Because Walsh and Claunch acted within the scope of            their employment, the United States was  properly substituted            as the  party  defendant,  and  the common  law  claims  were            properly  dismissed pursuant to the exception to jurisdiction                                         -32-                                          32            under the FTCA for claims arising from libel and slander.  28            U.S.C.   2680(h).                               B.  The Constitutional Claim                             B.  The Constitutional Claim                      A person may sue  a federal official in his  or her            individual   capacity  for   damages   arising   out   of   a            constitutional violation.12  See  Bivens v. Six Unknown Named                                         ___  ___________________________            Agents  of Fed.  Bureau of  Narcotics, 403  U.S.  388 (1971).            _____________________________________            Relying  on Bivens, the Aversas  alleged in Count  I of their                        ______            complaint that Walsh and Claunch deprived Aversa of a liberty            interest guaranteed by  the Due Process  Clause of the  Fifth            Amendment by  making false  and misleading statements  to the            press with willful or reckless  disregard of his rights, thus            causing  his employer  to discharge  him from  his job  as an            accountant, preventing  him from finding other  employment as            an accountant, and damaging his business goodwill.13                                              ____________________            12.  Constitutional  tort  claims  are  not  subject  to  the            Westfall  Act's  exclusive  remedy  provision.   28  U.S.C               2679(b)(2)(A).            13.  Aversa contends that the district court erred in denying            him leave to amend Count  I to add:  (1) that  the defendants            violated a federal statutory right by contravening Rule 35 of            the Local  New Hampshire District  Court Rules, and  (2) that            Aversa  permanently lost  his right  to earn  a living  as an            accountant.    Leave to  amend  "shall be  freely  given when            justice so  requires," Fed. R.  Civ. P. 15,  but need  not be            given  if the  amendment would  not be  "a proper  subject of            relief."   Foman v. Davis, 371  U.S. 178, 182 (1962).   As to                       ______________            the  first  proposed  addition,   a  plaintiff  may  sue  for            violation of a  federal statute under section  1983 or Bivens                                                                   ______            if the statute "create[s] enforceable rights,  privileges, or            immunities," which, in turn, depends on whether the provision            "was intend[ed]  to benefit the putative  plaintiff."  Wilder                                                                   ______            v.  Virginia Hosp. Ass'n, 496  U.S. 498, 508 (1990) (internal            ________________________                                         -33-                                          33                      The  district court  granted  summary  judgment  in            favor  of   Walsh  and   Claunch,  finding  that   they  were            qualifiedly immune from suit.   Summary judgment is proper if            the  "pleadings, depositions, answers to interrogatories, and            admissions  on file,  together with  the affidavits,  if any,            show that there is  no genuine issue as to any  material fact            and  that the moving party is entitled to summary judgment as            a matter  of  law."   Fed.  R. Civ.  P.  56(c).   Because  no            material fact is in dispute, the question before us is one of            pure law.  Our review is de novo and we view the facts in the                                     __ ____            light  most  favorable to  Aversa.   St.  Hilaire v.  City of                                                 ________________________            Laconia, 71 F.3d  20, 24  (1st Cir. 1995),  cert. denied,  64            _______                                     ____  ______            U.S.L.W. 3849 (U.S. June 24, 1996).                      An official  is qualifiedly immune if  his "conduct            [did]   not   violate   clearly  established   statutory   or            constitutional rights of which a reasonable person would have            known."  Harlow v. Fitzgerald, 457 U.S.  800, 818 (1982).  In                     ____________________                                            ____________________            quotation  marks  and citations  omitted).    Local Rule  35,            entitled  "Release  of Information  by Attorneys  in Criminal            Cases," limits the information that may be made public before            and during a  criminal trial, and can be said  to be intended            to protect a criminal defendant's right to  a fair trial.  We            do not reach  the question  whether a civil  cause of  action            could  ever rest on  Local Rule 35,  because we do  not think            that  Rule  35  was  intended  to  protect  against  loss  of            employment or business goodwill.  Thus, denial of the request            to amend was  not error.   The answer  to Aversa's  complaint            about  the denial of his second proposed addition is that the            court considered Aversa's allegations  that he was fired from            his  job  and  lost  future employment  opportunities  as  an            accountant and we consider them here.                                           -34-                                          34            finding  that  the  right  Aversa asserted  was  not  clearly            established, the district court not only relied on the law as            it  was in  1990,  but on  Siegert v.  Gilley,  500 U.S.  226                                       __________________            (1991), which  postdated the  alleged  violation.   Qualified            immunity, however,  must be decided  according to the  law in            effect at the time  of the alleged violation --  "implicit in            the  Harlow  formulation . . .  is a temporal dimension:  the                 ______            right must have been  clearly established at the time  of the            defendants' alleged  improper actions."    Souza v.  Pina, 53                                                       ______________            F.3d  423,  425 (1st  Cir. 1995).    The court's  reliance on            Siegert in its qualified  immunity analysis stemmed from some            _______            confusing language in that very case:                      A    necessary    concomitant   to    the                      determination     of      whether     the                      constitutional   right   asserted  by   a                      plaintiff is "clearly established" at the                      time   the   defendant   acted   is   the                      determination  of  whether the  plaintiff                      has   asserted   a    violation   of    a                      constitutional right at all.  Id. at 232.                                                    __                      Siegert  failed  not  only  to  allege  a                      violation of a constitutional  right that                      was  clearly established  at the  time of                      Gilley's actions, but  also to  establish                      the violation of any constitutional right                      at all.  Id. at 233.                               __                      Some courts have read  this language as requiring a            resolution of  the merits under current  law before beginning            the  analysis  of the  law as  it stood  at  the time  of the            alleged violation.  See DiMeglio v. Haines, 45 F.3d 790, 795-                                ___ __________________            97 (4th  Cir. 1995)  (discussing  various interpretations  of                                         -35-                                          35            Siegert).    But  we think  that  these  statements, read  in            _______            context, simply mean that the plaintiff must assert a clearly            established federal constitutional  (or statutory) right, and            not  merely  a  state law  tort  claim.    The Siegert  Court                                                           _______            concluded that the damage Siegert alleged "may be recoverable            under state tort  law but it is  not recoverable in a  Bivens                                                                   ______            action,"  Siegert,  500 U.S.  at 234,  and  held that  he had                      _______            "failed  to satisfy the  first inquiry in  the examination of            such a claim; he failed to allege the  violation of a clearly            established constitutional right."  Id. at 231.                                                  __                      This is  not to  say that currently  applicable law            cannot be considered  in the  course of, in  addition to,  or            instead of determining the law  in effect at the time  of the            alleged  violation.  See Harlow, 457 U.S. at 818 ("On summary                                 ___ ______            judgment, the judge appropriately may determine, not only the            currently applicable  law, but  whether that law  was clearly            established at the time an action occurred.").   For example,            a court of  appeals may recognize a right  for the first time            in that circuit, but find that it was not clearly established            at  the time of  the alleged violation.   See  Calhoun v. New                                                      ___  ______________            York State Div.  of Parole  Officers, 999 F.2d  647, 655  (2d            ____________________________________            Cir. 1993).  Or a court may look to current Supreme Court law            to determine that, although  the right may now exist,  it was            not  clearly established before.  See St. Hilaire, 71 F.3d at                                              ___ ___________            27-28.   A  court  may also  bypass  the  qualified  immunity                                         -36-                                          36            analysis if it would be futile because current law forecloses            the claim on the merits.   See Hinton v. City of  Elwood, 997                                       ___ _________________________            F.2d  774, 779-80  (10th Cir.  1993).   We follow  the latter            course  in this case because  Aversa failed to  state a claim            under current law.                        Aversa claimed that Walsh  and Claunch deprived him            of his right  to liberty under  the substantive component  of            the Due Process Clause of the Fifth Amendment, which protects            against  "certain   government  actions  regardless   of  the            fairness of the procedures used to  implement them."  Daniels                                                                  _______            v. Williams, 474 U.S. 327, 331  (1986).  See also Pittsley v.            ___________                              ___ ____ ___________            Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied,  502 U.S. 879            ______                            ____  ______            (1991).14    We have  said  that substantive  due  process is            violated  if either  (1)  the government  actor deprived  the            plaintiff  of  an identified  interest  in  life, liberty  or            property  protected  by  the  Fifth  Amendment,  or  (2)  the            government  actor's conduct  "shocks  the conscience."    See                                                                      ___            Brown v. Hot,  Sexy and Safer Prods., Inc.,  68 F.3d 525, 531            __________________________________________            (1st Cir. 1995) (citations omitted), cert. denied, 116 S. Ct.                                                 ____  ______            1044 (1996).    Because Aversa  did  not address  the  latter            theory  below or  in his  brief to this  court, we  limit our            discussion to the former.                                                   ____________________            14.  In  contrast, the  essence of  a procedural  due process            claim is that  a government actor  deprived the plaintiff  of            life,  liberty  or  property  through  procedures  that  were            inadequate in light of  the importance and characteristics of            the affected interest.  Pittsley, 927 F.2d at 6.                                    ________                                         -37-                                          37                      In Paul v.  Davis, 424 U.S.  693 (1976), the  Court                         ______________            indicated that  a  claim  for  defamation  could  rise  to  a            constitutional level if accompanied  by a loss of employment,            but  left unclear whether that loss would have to result from            some  further action  by  the defendant  in  addition to  the            defamation  itself.   In  Siegert v.  Gilley, the  Court made                                      __________________            clear that  it would.   Siegert resigned  from his  job as  a            psychologist  at a federal  hospital in order  to avoid being            terminated, then  began working at an Army hospital.  Because            Army  hospitals  required  "credentialing"  by  a  committee,            Siegert  signed a request form asking the federal hospital to            provide his  new employer with information  regarding his job            performance  and  privileges.     Gilley,  Siegert's   former            supervisor, sent a letter in  response, stating that he could            not recommend  Siegert for privileges as  a psychologist, and            that Siegert was inept,  unethical and the most untrustworthy            individual  he  had  supervised   in  thirteen  years.    The            committee  denied Siegert  credentials.   Thereafter, Siegert            was turned down for  a position at another Army  hospital and            returned  to work at the first Army hospital with provisional            credentials.   After his administrative appeals  were denied,            his  federal employment  was terminated  altogether.   Id. at                                                                   __            228-29.  The Court  found that Gilley's defamatory statements            and their  consequences were not actionable  as a deprivation            of liberty, stating:                                         -38-                                          38                      The  alleged  defamation was  not uttered                      incident to the termination  of Siegert's                      employment  by  the  hospital,  since  he                      voluntarily resigned from his position at                      the hospital, and  the letter was written                      several  weeks  later.    The  statements                      contained in the letter would undoubtedly                      damage  the  reputation  of  one  in  his                      position,    and   impair    his   future                      employment prospects.  But  the plaintiff                      in  Paul  v.   Davis  similarly   alleged                          ________________                      serious   impairment    of   his   future                      employment opportunities as well as other                      harm.  Most defamation plaintiffs attempt                      to show some  sort of damage and  out-of-                      pocket loss which  flows from the  injury                      to their reputation.  But 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.              Id. at 234.  Thus, what may have  been left open by Davis was            __                                                  _____            foreclosed by Siegert -- in order to state a cognizable claim                          _______            that  defamation together  with loss  of employment  worked a            deprivation of a constitutionally-protected liberty interest,            a plaintiff must allege that  the loss of employment resulted            from  some further action by the defendant in addition to the            defamation.   Where it  is the  defendant who  terminated the            plaintiff, the further action is the termination.  But where,            as  here, a  third party  discharges or  refuses to  hire the            plaintiff solely  as a result of  the defendant's defamation,            the plaintiffhas notdescribed a viableconstitutional claim.15                                            ____________________            15.  Aversa  contends that  even  if the  defamation was  not            uttered in conjunction with some other more direct  action by            Walsh or Claunch causing  him to be discharged from  his job,            the defamatory statements stood in the midst of circumstances                                         -39-                                          39                                   III.  CONCLUSION                                   III.  CONCLUSION                      "Although '[s]tatements  to  the press  may  be  an            integral part  of a prosecutor's job,  and . . .  may serve a            vital public function,' that  function is strictly limited by            the prosecutor's overarching duty to  do justice."  Souza, 53                                                                _____            F.3d  at  427.   Those  who wield  the power  to  make public            statements  about criminal  cases must  "be guided  solely by            their sense  of public  responsibility for the  attainment of            justice."    Id.  (quoting Young  v.  United  States  ex rel.                         __            __________________________________            Vuitton  et Fils S.A., 481 U.S. 787, 814 (1987)).  The public            _____________________            statements  asserted  to have  been  made  in  the course  of            Aversa's  criminal  case  have   been  condemned  as   false,            misleading,  self-serving, unjust and unprofessional by every            court to look at them.16                        We therefore refer  the matter of Assistant  United            States Attorney Walsh's conduct to the Office of Professional            Responsibility  of  the Department  of  Justice,  and to  the                                            ____________________            wherein the criminal charges  never should have been brought.            We  previously have  expressed doubt, without  deciding, that            "an alleged constitutional violation for  which the defendant            prosecutor  enjoys  absolute  immunity  [such  as  initiating            criminal charges]  can provide  the 'plus' needed  to satisfy            the  'defamation-plus'  test of  Paul  v. Davis."    Celia v.                                             ______________      ________            O'Malley, 918 F.2d 1017, 1021 (1st Cir. 1990).  In any event,            ________            Aversa  did not present this theory to the district court and            we decline to consider it.            16.  The characterizations  of  the defendants'  conduct  are            quotations from the various  trial judges who have  heard the            proceedings in this and the underlying criminal cases.   This            court makes no findings itself as to the defendants' conduct,            but acts on the basis of the record.                                         -40-                                          40            Professional Conduct Committee  of the New Hampshire  Supreme            Court.  We refer the matter of Agent Claunch's conduct to the            Inspector General of the Department of the Treasury.  We also            refer former  United States Attorney Howard's  conduct to the            Professional Conduct Committee of  the New Hampshire  Supreme            Court.  We  do not  suggest in  any way  to the  disciplinary            bodies what action, if any, should be taken.                      No costs.                                         -41-                                          41
