UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN T. VOGRIN; MICHELLE
VOGRIN,
Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,                                           No. 97-2117
Defendant-Appellee,

and

MARK SWARTSWELDER,
Defendant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-97-43-5)

Submitted: January 30, 1998

Decided: April 23, 1998

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stephen T. Vogrin, Michelle Vogrin, Appellants Pro Se. Edward Roy
Hawkens, Robert Stephen Greenspan, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In February 1997, Stephen and Michelle Vogrin commenced an
action in West Virginia state court against Mark Swartswelder, an
employee of the United States Government, Bureau of Alcohol,
Tobacco and Firearms, alleging violations of various common law
torts. The Government filed a notice of removal under 28 U.S.C.A.
§§ 1442(a)(1), 2679(d)(2) (West 1994 & Supp. 1997) and a notice of
substitution. The Government submitted a certificate of scope of
employment signed by the United States Attorney as a delegate of the
Attorney General. According to the certification, Swartswelder was
acting within the scope of his employment when he committed the
alleged tortious acts. Based upon the certificate, the district court dis-
missed all claims against Swartswelder with prejudice and substituted
the Government as the sole defendant. On appeal, the Vogrins con-
tend that the district court erred in permitting the Government to sub-
stitute for Swartswelder, in not reviewing the scope of employment
issue, and in not permitting discovery as to this issue. For the reasons
below, we affirm.

After the case was removed, the Government filed a motion to dis-
miss, contending that the district court was without subject matter
jurisdiction because the Vogrins had not exhausted administrative
remedies under 28 U.S.C. § 2671 (1994). The Vogrins filed a
response and a motion to remand. The Vogrins contended that Swart-
swelder was not acting within the scope of his employment with
regard to the alleged tortious conduct raised in the complaint. Thus,
according to the Vogrins, the Department of Justice's certificate sub-
stituting the United States for Swartswelder was invalid. The Vogrins
stated that if the motion to remand was denied, they did not oppose
the Government's motion to dismiss, conceding that administrative
remedies were unexhausted. However, they requested the dismissal be
without prejudice since they were in the process of filing an adminis-

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trative claim. The Government opposed the motion to remand, argu-
ing certification was proper.

The Vogrins next served a notice of deposition upon the Govern-
ment stating they wanted to depose Swartswelder. The Government
moved for a protective order and/or stay of discovery. The Govern-
ment contended that the district court should determine the scope of
employment issue before discovery was allowed to proceed or, in the
alternative, limit discovery to matters concerning Swartswelder's
scope of employment. The Vogrins did not object to limiting discov-
ery.

The district court granted the motion to dismiss without prejudice
and denied as moot the motion to remand and the motion seeking a
protective order and/or stay of discovery. The court concluded
"[w]ithout addressing the merits of all arguments raised in the motion
to dismiss and the motion to remand, this Court agrees with the par-
ties that this matter should be dismissed for failure to exhaust admin-
istrative remedies."

In Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), the
Supreme Court held that a certificate of scope of employment is con-
clusive for purposes of removal only--not substitution. Accordingly,
a district court is permitted to review the certificate relative to the
matter of substitution. Without such review, the Court held, the scope
of employment issue "however contestable in fact, would receive no
judicial audience," and federal courts would be reduced to "rubber-
stamp work ." Id. at 429.

In Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997), this
Court stated that "the recent Gutierrez decision means that we may
no longer decline to judicially decide whether substitution is proper."
In Maron, the appellant challenged the procedures employed by the
district court in determining the scope of employment issue for pur-
poses of substitution. This Court concluded that the district court
properly found that the appellant had the burden of proof to show by
a preponderance of the evidence that substitution was invalid. In that
case, there was discovery, an evidentiary hearing, a statement by the
district court concerning which law it was applying, and factual find-
ings as to the scope of employment.

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We find the district court did not review the certification as it per-
tains to the scope of employment. The district court denied the
Vogrins' motion to remand as moot, more likely indicating that the
issue was no longer live, not that it was without merit. See Murphy
v. Hunt, 455 U.S. 478, 481 (1982). The court did not employ any of
the procedures discussed in Maron. It did not allocate the burden of
proof or choose which law to apply. Furthermore, there were no fac-
tual findings, and the court did not state that the pleadings revealed
no issue of material fact. See Gutierrez de Martinez v. Drug Enforce-
ment Admin., 111 F.3d 1148, 1155 (4th Cir.) (discovery and an evi-
dentiary hearing are within the discretion of the court and should not
be permitted if the pleadings do not reveal an issue of material fact),
cert. denied, ___ U.S. ___, 66 U.S.L.W. 3108 (U.S. Oct. 20, 1997)
(No. 97-104).

We nonetheless affirm the order of the district court. Fact finding
is a basic responsibility of the district court. In instances where the
district court has failed to make factual findings because of an errone-
ous view of the law, the general rule is to remand the appeal for fur-
ther proceedings. A remand can be avoided if "the record permits
only one resolution of a factual issue." Pullman-Standard v. Swint,
456 U.S. 273, 291-92 (1982). If a thorough review of the record
reveals that any other resolution would be clearly erroneous, then an
appellate court may make factual findings in the first instance. See
Patterson v. Greenwood Sch. Dist. 50, 696 F.2d 293, 295 (4th Cir.
1982).

The Vogrins bore the burden to prove by a preponderance of the
evidence that Swartswelder's alleged wrongful conduct was not
within the scope of employment. See Maron, 126 F.3d at 322. Under
West Virginia law, an employee is acting within the scope of employ-
ment if the employee is acting within the scope of his authority and
in furtherance of his employer's business. See Laslo v. Griffith, 102
S.E.2d 894 (W. Va. 1958). Upon review of the record, we find only
one conclusion supported by the evidence--that Swartswelder was at
all times acting within the scope of employment.

The Vogrins' complaint detailed numerous allegations of alleged
misconduct by Swartswelder, Vogrin's supervisor. Most of the allega-
tions concerned Swartswelder's use of authority in supervising

                    4
Vogrin with regard to responsibilities and tasks. (R. 1). The Vogrins
cited only one incident in support of their contention that Swart-
swelder was acting outside the scope of his employment. Allegedly,
Swartswelder used a government car to go on a golf outing with other
agents during work hours on the day Vogrin was terminated for a sim-
ilar infraction. Vogrin claimed this was intentional infliction of emo-
tional distress. Swartswelder submitted an affidavit stating that his
supervisor invited him to attend the golf outing for the purpose of vis-
iting a retired agent. Clearly, this was within the scope of employ-
ment. Thus, the Vogrins did not meet their burden of proof.

Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid in the decisional process.

AFFIRMED

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