                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2000

Brumfield v. Sanders
Precedential or Non-Precedential:

Docket 00-3275




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Filed November 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3275

P. BRIAN BRUMFIELD
       Appellant

v.

SHERRI SANDERS; MICHELLE SHADDAY; BRENDA
DERR-BLAKENEY; M. JANE HUFF; CARLA MEYERS;
UNITED STATES OF AMERICA

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. 98-cv-01482)
District Judge: Honorable Malcolm Muir

Argued: October 6, 2000

Before: BARRY, WEIS, and ROSENN, Circuit Judges.

(Filed November 14, 2000)

       Michael Marrone, Esquire (Argued)
       Marc F. Lovecchio
       Campana, Campana &
        Lovecchio, LLP
       602 Pine Street
       Williamsport, PA 17701
        Counsel for P. Brian Brumfield
       Dulce Donovan, Esquire (Argued)
       Assistant United States Attorney
       Federal Building
       228 Walnut Street
       Harrisburg, PA 17108
        Counsel for United States of
       America

OPINION ANNOUNCING THE JUDGMENT
OF THE COURT

ROSENN, Circuit Judge.

This appeal presents the uncommon scenario of a civil
suit in a state court by a federal employee againstfive of
his fellow employees, all of whom were employed by the
United States Department of Justice, Bureau of Prisons
("BOP"). The plaintiff, P. Brian Brumfield, filed his
complaint in state court alleging that he and allfive
individual defendants were employed by BOP at the
Allenwood Federal Correctional Facility ("FCI Allenwood").
The complaint alleged state tort law claims of conspiracy,
prima facie or intentional tort, abuse of pr ocess and
defamation against all five defendants. Brumfield's claims
are predicated on written affidavits and oral statements
given by the defendants in a 1996 investigation by the BOP
Office of Internal Affairs ("OIA") with respect to Brumfield's
unprofessional conduct.

As a result of the investigation, the war den disciplined
Brumfield, who appealed the warden's action to the Merit
Systems Protection Board ("MSPB"). The appeal was
resolved by agreement. Brumfield then sued the individual
defendants in the Court of Common Pleas, Union County,
Pennsylvania. The defendants removed the case to the
United States District Court for the Middle District of
Pennsylvania pursuant to 28 U.S.C. S 1442(a)(1), which
allows officers of United States agencies to r emove civil
actions against them to a federal district court. Thereafter,
the United States moved under the Westfall Act1 to
_________________________________________________________________

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

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

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substitute itself for the individual defendants, asserting
that the individual defendants were, at all r elevant times,
acting within the scope of their employment. The District
Court dismissed the complaint on the recommendation and
report of the magistrate judge. Brumfield timely appealed.
We affirm, although on the primary issue on appeal we do
so on grounds different than those of the District Court.2

I.

On appeal, the appellant makes three ar guments. First,
he argues that the district court erred in denying
Brumfield's request for discovery on the scope of
employment issue. Second, he contends that the district
court wrongly determined that the individual defendants'
challenged actions occurred within the scope of their
employment. Finally, he maintains that the District Court
erred in predicting that the Pennsylvania Supreme Court
would not recognize a cause of action for prima facie or
intentional tort.

II.

The threshold question in this appeal pertains to whether
the plaintiff 's claim of tortious conduct occurred within the
scope of the individual defendants' employment. Brumfield
acknowledges that a federal employee is absolutely immune
from common law claims of tortious conduct occurring
within the scope of his or her employment. The W estfall
_________________________________________________________________

       Claims Act] for injury . . . resulting fr om the negligent or
wrongful
       act . . . of any employee of the government acting within the scope
       of his office or employment is exclusive of any other civil action
or
       proceeding for money damages arising by r eason of the same
       subject matter against the employee . . . .

28 U.S.C. S 2679.

2. "An appellate court may affirm a r esult reached by the District Court
on different reasons, as long as the record supports the judgement."
Guthrie v. Lady Jane Collieries, Inc., 722 F .2d 1141, 1145 n. 1 (3d Cir.
1983)(citing Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157,
82 L.Ed. 224 (1937)).

                               3
Act, also known as the Federal Employees Liability Reform
and Tort Compensation Act, provides federal employees
acting within the scope of their employment absolute
immunity from damage liability on state law tort claims.
See Melo v. Hafer, 13 F.3d 736, 739 (3d Cir. 1994). Under
the Westfall Act, the Attorney General of the United States
may certify, as was done in this case, that the employee
was acting within the scope of his or her employment, and
request that the United States be substituted as the only
defendant.3 See 28 U.S.C. S 2679(d)(1). However, the
plaintiff correctly argues that certification by the Attorney
General is only prima facie evidence that the alleged
injurious conduct occurred within the scope of the federal
employee's duties. See Schrob v. Catterson, 967 F.2d 926,
929 (3d. Cir. 1992); 28 U.S.C. S 2679(d)(2). Brumfield,
therefore, requested of the District Court that he be
permitted reasonable discovery fr om the individual
defendants. The District Court, however, denied this
request and decided without discovery and without a
hearing on the question that the defendants wer e acting
within the scope of their employment.

In denying discovery, the District Court noted that
Brumfield had already engaged in extensive discovery
relating to the scope of employment of the individual
defendants in the MSPB proceeding and that he should not
be permitted to duplicate those efforts in the present
proceeding. In permitting the gover nment to substitute the
United States as sole defendant, the District Court found
that this argument had considerable merit in light of the
absence of any response by the plaintif f. We believe that the
District Court's rationale in the earlier stage of the
proceedings logically applies with equal for ce to the
plaintiff 's efforts to secur e discovery at this stage.

Moreover, the Attorney General's certification appears to
have been based on the plaintiff 's complaint. The
certification states, in relevant part:

       I have read the complaint and . . . upon the basis of
       the information now available to me with r espect to the
_________________________________________________________________

3. The Attorney General has delegated her certification authority to the
United States Attorneys. See 28 C.F.R.S 510; 28 C.F.R. S 15.3.

                               4
       incidents referred to therein, I am of the opinion that
       the [individual] defendants . . . were acting within the
       scope of their employment . . . pursuant to an official
       government investigation at the time of the conduct
       alleged in the complaint.

Brumfield v. Sanders, 50 F.Supp.2d 381, 385 (W.D. Pa.
1999). In a later affidavit, the Attorney General reiterated
that her conclusion that the individual defendants were
acting within the scope of their employment was based on
the allegations in Brumfield's complaint.4 The District Court
opined:

       Permitting additional discovery when the Attor ney
       General's certification is not based on a dif ferent
       understanding of the facts than is reflected in
       Brumfield's complaint would undermine the intent of
       the Westfall Act to protect federal employees from
       responding to state law tort claims.

Brumfield nowhere contends that the Attor ney General
misunderstood the allegations in the complaint. Our
standard of review of questions concer ning the scope or
opportunity for discovery is for abuse of discr etion. See
Country Floors Inc. v. Gepner & Ford, 930 F.2d 1056, 1062
(3d Cir. 1992). We see no abuse of discretion in the District
Court's refusal to permit additional discovery.

The District Court's discovery ruling does not end the
matter, however, because Brumfield argues that the District
Court erred as a matter of law when it held that the
individual defendants acted within the scope of their
employment during the OIA investigation. It is undisputed
that whether they did or not is a matter of Pennsylvania
state law. Pennsylvania has accepted the Restatement
(Second) of Agency's definition of conduct "within the scope
of employment." See Butler v. Flo-Ron V ending Co., 383 Pa.
Super. 633, 646 (Pa.Super. 1989); Aliota v. Graham, 984
_________________________________________________________________

4. Specifically, the Attorney General based her conclusion on the
allegation that the warden encouraged female employees to report
unprofessional conduct by male supervisors and that the defendants
prepared the challenged written statements at the request of OIA
investigators during the course of an official investigation.

                               5
F.2d 1350, 1358 (3rd Cir. 1993). According to the
Restatement, "conduct is within the scope of employment if,
but only if: (a) it is the kind [the employee] is employed to
perform; (b) it occurs substantially within the authorized
time and space limits [and] (c) it is actuated, at least in
part, by a purpose to serve the master . . . ." Restatement
(Second) Agency S 228.

Brumfield does not dispute that factors (a) and (b) are
met in this case, but he contends that, because the
defendants' accusations were motivated by personal
animosity toward him, they were not intended to "serve the
master." This argument, however , does not comport with
Pennsylvania agency law. This Court has previously held
that under Pennsylvania law, the mere existence of a
personal motivation is insufficient to relieve the employer
from liability where the conduct also benefitted him and
was within the scope of employment generally. Eisenberg v.
Gagnon, 766 F.2d 770, 783 (3rd Cir . 1985) (citing Yaindl v.
Ingersoll-Rand Co., 281 Pa.Super. 560, 575-76 (not followed
on other grounds)(1981)); Restatement (Second) of Agency
S 236 (1958)). Here, the statements and affidavits of the
individual defendants were given at the behest of OIA
officials to assist them in their official investigation.
Personal animosity, if any existed, was subsumed by the
benefit that inured to employees generally at the Allenwood
institution. If the OIA investigation revealed unprofessional
conduct by Brumfield, the District Court noted that
"appropriate discipline could be meted out and
unprofessional conduct by a supervisor halted." Brumfield,
50 F.Supp.2d at 385.

Brumfield also contends that "the course of employment"
does not include commission of unlawful acts or acts
contrary to orders, policies, procedur es and standards of
the BOP.5 Brumfield maintains that the individual
_________________________________________________________________

5. The cases Brumfield cites to support this pr oposition construe the
Pennsylvania Workmen's Compensation Act, specifically, when an injury
occurs "in the course of employment" under the act. See Kozak v. Joseph
Reilly Coal Co., 141 Pa.Super. 413 (1940); Garrahan v. Glaen Alden Coal
Co., 135 Pa.Super. 307 (1939). They do not discuss Pennsylvania's
common law of agency and are not relevant to this case.

                               6
defendants "lied during the course of an official
investigation and lied on false affidavits." Thus, he argues
that their actions were outside the scope of employment
and therefore not protected by the W estfall Act. This
argument too was properly rejected by the District Court.
The Pennsylvania Superior Court has specifically held that
"[the] liability of the employer may extend even to
intentional or criminal acts committed by the servant."
Butler, 383 Pa.Super. at 646. See also, Aliota, 984 F.2d at
1358 ("In the absence of any contrary decisions or
pronouncements by the Supreme Court of Pennsylvania, we
predict that that court would follow [Butler]").

Although the individual defendants were r equired to
provide only truthful responses to questions posed in the
investigation, "an act, although forbidden or done in a
forbidden manner, may be within the scope of
employment." Restatement (Second) of Agency S 230; Aliota,
984 F.2d at 1358. Under Pennsylvania law, even
unauthorized acts may be within the scope of employment
"if they are clearly incidental to the master's business."
Shuman Estate v. Weber, 276 Pa.Super . 209, 216 (1980).
Here, Brumfield's complaint asserts that during the course
of the investigation, the individual defendants wer e
encouraged to come forward and asked to and did sign
affidavits which he alleged contained false facts about him.
Thus, even assuming the statements were false, plaintiff 's
allegation squarely makes the individual defendants'
conduct incidental to BOP's business, and Brumfield
proffered no evidence that the defendants' conduct was not
motivated at least in part by a purpose to serve the BOP.

Finally, according to the Restatement, :

       it may be found to be within the scope of employment
       of a person . . . to accuse another of wrongful conduct
       or report to others the supposed wrongful conduct of
       [another] employee . . . . A servant having a duty to
       make such reports . . . to his employer . . . may subject
       his employer to liability for his untruthful statements.

Restatement (Second) of Agency S 247 cmt. e. See also,
Aliota, 984 F.2d at 1359 (predicting that the Pennsylvania
Supreme Court would adopt Restatement S 247). As the

                                7
district court noted, "[BOP's] policy makes clear that it was
within the scope of Defendants' employment duties to
cooperate with investigators of the [OIA] and provide
potential information regarding any unprofessional conduct
by Brumfield." Brumfield, 50 F . Supp.2d at 384. Thus, the
defendants in this case conformed to the very duty
contemplated by Restatement S 247 comment e, supra. We
therefore conclude that the statements made by the
defendants, even if false, were within the scope of their
employment. Accordingly, the District Court committed no
error in ruling that the defendants' conduct during the OIA
investigation was within the scope of their employment.

III.

The primary and final issue in this appeal is Brumfield's
contention that under Pennsylvania law, the individual
defendants committed an intentional tort as defined in
Section 870 of the Restatement (Second) of T orts and the
District Court therefore erred in dismissing his complaint.
Although the District Court dismissed all of the defendant's
underlying claims against the United States, Brumfield only
argues on appeal that it was error to dismiss his claim for
intentional or prima facie tort as set forth in Count II of his
complaint. This is consistent with his position in the
District Court, where he objected only to the dismissal of
his claim for intentional tort. The District Court r ejected his
objection, predicting that when faced with the question, the
Pennsylvania Supreme Court would not recognize a cause
of action for intentional or prima facie tort as set forth in
the Restatement. Under our analysis of the claim, there is
no need for us to predict whether the Supr eme Court of
Pennsylvania would recognize such a claim.

The Federal Tort Claims Act ("FTCA") bars actions against
the United States for wrongful use of civil pr oceedings and
defamation.6 Claims "arising out of . . . libel, slander,
misrepresentation [or] deceit" ar e excepted from the United
States's general waiver of sovereign immunity. 28 U.S.C.
S 2680(h). Thus, defamation suits against the United States
_________________________________________________________________

6. 28 U.S.C. S 2680(h) creates exceptions to the general waiver of
sovereign immunity set forth in 28 U.S.C. S 1346.

                               8
are prohibited. In fact, cases from other circuits make clear
that an individual who is defamed by a federal employee
acting within the scope of his or her employment has no
remedy due to the protections affor ded by the Westfall Act
and the FTCA. See B & A Marine Co., Inc v. American
Foreign Shipping Co., Inc., 23 F.3d 709, 714-715 (2d Cir.
1994); Alviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989).7

In Count IV of his complaint, charging defamation,
Brumfield alleged, inter alia, that the individual defendants
"sign[ed] affidavits containing false facts" about Brumfield,
"submitted written false statements of alleged misconduct"
by Brumfield, and gave false oral statements about
Brumfield to investigating OIA agents. This claim was
dismissed in the District Court and was not appealed.
Without any additional allegations, Count II incorporates by
reference averments of the complaint, but asserts that the
"defendants' conduct and statements as afor esaid are
actionable as an intentional tort under Pennsylvania law
and pursuant to S 870 of the Restatement (Second) of
Torts." Brumfield's complaint does not allege any
underlying facts in Count II that make his intentional tort
claim different from his alr eady dismissed defamation claim
or his conspiracy claim in Count I. Count IV , the
defamation claim, contained no independent allegations of
defamation but relies entirely on "the previous averments of
the complaint," including Count I and Count II. Thus, the
essence of his intentional tort cause of action is that the
individual defendants made false statements about him
that caused him economic harm and damage to his
reputation. As such, it is precluded byS 2680.

Cases in other jurisdictions support our analysis."In
examining a complaint, we are bound to look beyond the
literal meaning of the language to ascertain the r eal cause
of the complaint." Jimenez-Nieves v. United States, 682 F.2d
1, 6 (1st Cir. 1982). In Jimenez-Nieves , the court rejected a
claim for pecuniary and non-pecuniary damages arising
from the erroneous dishonoring of a Social Security check.
Noting that the dishonoring of the check "implicitly
_________________________________________________________________

7. Of course, defamation committed by a federal employee acting outside
the scope of his or her employment may be actionable.

                               9
communicated defamatory statements about [the] plaintiff,"
then-Judge Breyer concluded that the claim"resound[ed] in
the heartland of the tort of defamation" and was barred by
S 2680. Id. at 6.

In Hoesl v. United States, 451 F. Supp. 1170 (N.D. Cal.
1978), aff 'd on different grounds per curiam, 629 F.2d 586
(9th Cir. 1980), a government employee sued the United
States and a government-employed psychiatrist for an
allegedly negligent report stating that the plaintiff suffered
a mental disability which made him unable to carry out his
responsibilities. In holding that the substance of the
plaintiff 's claim was defamation, the court stated that the
defamation exception to the FTCA could not be avoided "by
attaching a different label to the tort." Id. at 1174.

IV.

In conclusion, it is obvious upon examination of the
complaint in this case, that the anatomy of Counts I, II and
IV of Brumfield's complaint are the same. The effort to
separate them by draping them with differ ent dress and
labels fails to disguise their substantive similarity. For this
reason, Count II, like Counts I and IV, is barred by the
defamation exception to the FTCA.

Accordingly, the District Court committed no error in
dismissing the plaintiff 's entire complaint. The judgment of
the District Court will be affirmed. Costs taxed against the
appellant.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                10
