                           No. 94-3823


Steve Heuton; Dean Nelson;        *
Larry Winans; and Jerry Whitmore, *
                                  *
       Appellees,                 *
                                  *   Appeals from the United States
        v.                        *   District Court for the
                                  *   Northern District of Iowa.
     David W. Anderson,           *
                                  *
      Appellant.                  *



                   Submitted:   October 19, 1995

                      Filed:    January 29, 1996


Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and DONALD R. ROSS,
     Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     David Anderson appeals the district court's orders refusing to
substitute the United States as party defendant and remanding this
defamation case to Iowa state court. We reverse and remand to the
district court for further proceedings.

                                 I.
     The plaintiffs work as meat inspectors for the United States
Department of Agriculture, Food and Safety Inspection Service
("USDA"), and Anderson is their supervisor. They sued Anderson for
defamation in Iowa state court after he allegedly posted a picture
depicting Heuton as a momma pig and the other plaintiffs as
suckling piglets.
     Pursuant to the Westfall Act, 28 U.S.C. § 2679(d) (1994), the
United States Attorney General removed the case to federal court,
certifying that Anderson was a federal employee acting within the
scope of his employment at the time that the offending picture was
posted. The Attorney General then asserted that the United States
had been substituted as party-defendant by operation of law and
moved to dismiss the case. Following an evidentiary hearing, the
magistrate agreed that Anderson's conduct, assuming that he indeed
engaged in it, fell within the scope of his employment and
recommended that the district court substitute the United States as
party defendant.


     The district court rejected the magistrate's recommendation.
Because Anderson denied posting the picture, the court found that
neither he nor the United States could maintain that his conduct
fell within the scope of his employment.       The district court
further found that if Anderson did in fact post the picture, his
conduct was not within the scope of his employment.      The court
therefore refused to substitute the United States as party
defendant and remanded the case to state court. The district court
stayed the remand order pending this appeal.

                               II.
     In 1988, Congress amended the Federal Tort Claims Act ("FTCA")
in order to undo the effect of the Supreme Court's decision in
Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, 484 U.S. at
297-98, the Court held that a federal employee was immune from a
state tort action only if the employee was acting within the scope
of his employment and the conduct that caused harm was
discretionary. The 1988 FTCA amendments, commonly known as the
Westfall Act, broaden this immunity, providing that an action
against the United States is the only remedy for injuries caused by
federal government employees acting within the scope of their




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employment, regardless of whether the conduct in question was
discretionary. Id. § 2679(d)(1).

     The Westfall Act also establishes a process frequently called
Westfall certification.    After a federal employee is sued in a
state court, the Attorney General reviews the case to determine if
the employee was acting within the scope of his employment when the
allegedly harmful conduct occurred.     Id. § 2679(d)(2).    If the
Attorney General certifies that the employee was acting within the
scope of his employment, the case is removed to federal court. The
Attorney General then notifies the district court that the United
States should be substituted as party defendant for the federal
employee. Id.


     Westfall certification does not conclusively establish that
the United States should be substituted as party defendant.
Martinez v. Lamagno, --- U.S. ---, 115 S. Ct. 2227, 2236 (1995);
Brown v. Armstrong, 949 F.2d 1007, 1011-12 (8th Cir. 1991). If the
plaintiff contravenes a Westfall certificate, the district court
must determine whether the defendant was acting within the scope of
his employment when the conduct in question occurred. Martinez,
115 S. Ct. at 2236-37. If the court finds that the employee was
acting outside of the scope of his employment, the court must
refuse to substitute the United States. Id.

                               III.
                                A.
     Anderson maintains that the district court erroneously refused
to substitute the United States.       In refusing to do so, the
district court relied upon Wood v. United States, 995 U.S. 1122
(1st Cir. 1993) (en banc), which held that, because § 2679(d)(2) of
the Westfall Act speaks of an "act" or "incident" that occurred
"within the scope of employment", the district court must refuse to




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substitute the United States if the Attorney General "den[ies] the
occurrence of the basic incident charged." Id. at 1125-26.

     With respect, we believe that the First Circuit's approach is
contrary to the language of the Westfall Act. We agree with the
dissenting judges in Wood (and with relevant cases from other
courts) that nothing in the Westfall Act gives the district court
the authority to refuse to substitute the United States on the
ground that either the government or the employee denies the
offensive conduct. Wood, 995 F.2d at 1138 (Coffin, dissenting);
Kimbro v. Veltan, 30 F.3d 1501, 1508 (D.C. Cir. 1994); Melo v.
Hafer, 13 F.3d 736, 746-47 (3d Cir. 1994). Indeed, we believe that
such a ruling undermines the purposes of the Westfall Act.


     Congress adopted the Westfall Act to confer immunity on all
federal employees acting within the scope of their employment.
Because it is illogical to assume that Congress intended to protect
guilty employees but desert innocent ones, we decline to follow the
holding in Wood that the immunity provided by the Westfall Act is
available only when the defendant-employee admits engaging in the
harmful conduct. Furthermore, the Westfall Act allows a defendant-
employee to petition the district court for certification and
substitution when the Attorney General decides not to certify a
case, see 28 U.S.C. § 2679(d)(3), and we find it instructive that
this section, unlike § 2679(d)(2), makes no reference to an "act"
or "incident." We again find it implausible that Congress intended
to confer greater protection on an employee whose conduct the
Attorney General refuses to certify than on an employee whom the
Attorney General deems deserving of immunity.

                                B.
     The question of whether Anderson was acting within the scope
of his employment is governed by Iowa law. See Brown, 949 F.2d at
1012, n. 7. In Sandman v. Hagen, 154 N.W.2d 113, 114 (Iowa 1967),


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the Iowa Supreme Court held that an employee acts within the scope
of his employment when his "conduct is of the same general nature
as that authorized or incidental to the conduct authorized," by the
employer; and in Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986),
the court stated that an employee acts within the scope of his
employment "when the employer has the right to direct the means and
manner of doing the work, and has the right of control over the
employee." The district court believed that Jones was inapplicable
because it found that it applied only in cases where an employee
seeks a judgment against his employer based on the doctrine of
respondeat superior.    The court therefore relied on Sandman in
finding that even if Anderson posted the picture, his conduct was
not within the scope of his employment. The court reasoned that
posting a picture like the one involved in this case was neither
"authorized" nor "incidental to conduct authorized" by the USDA.
Sandman, 154 N.W.2d at 114.


     It is true that all the evidence in the record indicates that
posting the picture was unquestionably prohibited by the USDA, but
that does not mean that the act was necessarily outside of the
scope of Anderson's employment. In fact, by prohibiting Anderson
from posting insulting pictures of his subordinates, the USDA
asserted the right to "direct the means and manner of doing the
work," and "the right of control over the employee." Jones, 387
N.W.2d at 355. Furthermore, Sandman indicates that conduct "in
excess of the powers actually conferred on the servant" may fall
within the scope of the employee's employment if the "act is
necessary to accomplish the purpose of the employment and is
intended for such purpose."    Id. at 117.     Determining whether
unauthorized conduct falls within the scope of employment,
therefore, involves a subjective inquiry into the employee's
intent.




                               -5-
     We believe that if Anderson posted the picture he could well
have been acting within the scope of his employment under either
Jones or Sandman.     The USDA Supervisor's Personnel Handbook
indicates that Anderson's duties included communicating with,
evaluating, and disciplining the plaintiffs. At the evidentiary
hearing before the magistrate, Anderson's supervisor, Dr. Dores
Ross, testified that Anderson had previously informed the
plaintiffs that their work was sub-par and that they needed to
carry out their duties more diligently. Anderson was particularly
concerned that the plaintiffs were defying his orders to stop
understaffing the meat inspection line, a practice that violated
USDA guidelines.   Although the precise message conveyed by the
picture is unclear, images of pigs generally connote sloppiness or
slothfulness. The picture could therefore have been a disciplinary
measure or, alternatively, a means of communicating Anderson's
official disapproval of the plaintiffs' performance.


     In the instant case, however, the trial court did not
undertake the subjective inquiry necessary to determine whether
Anderson was acting within the scope of his employment. Indeed,
there was no finding even as to whether Anderson was responsible
for posting the picture. In disputed cases such as this, we agree
with the Wood dissenters (and with other circuits) that the
district court must conduct an evidentiary hearing to determine all
the facts relevant to the immunity question. Wood, 995 F.2d at
1134, 1138 (Coffin, dissenting); Kimbro, 30 F.3d at 1509; Melo, 13
F.3d at 747. The Attorney General's certification acts as prima
facie evidence that Anderson's conduct was within the scope of his
employment. Therefore, at the evidentiary hearing, the plaintiffs
bear the burden of proving that Anderson was not acting within the
scope of his employment. Brown, 949 F.2d at 1012.


     If the district court finds that Anderson did not post the
picture, then he was at all times properly acting within his role


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as supervisor and he is entitled to have the United States
substituted as party defendant. If it finds that he posted the
picture to discipline the plaintiffs or comment officially on their
performance, then his conduct, albeit improper, was "incidental to
the conduct authorized" for supervisors, Sandman, 154 N.W.2d at
114, and the court must also substitute the United States.       In
either instance, the case must be dismissed because the Federal
Tort Claims Act precludes suits against the United States for
defamation. 28 U.S.C. § 2680(h). If, on the other hand, the court
finds that Anderson posted the picture for reasons unrelated to a
desire to do his job as the plaintiffs' supervisor, then it must
decide whether it ought to remand the case to state court or
proceed to try the matter itself. This is a question reserved by
the Supreme Court in Martinez, and as to it we express no view, it
not being properly before us at this time.

                                IV
     For the forgoing reasons, we vacate the order remanding the
case to Iowa state court, and remand the case to the district court
for proceedings consistent with this opinion.


     A true copy.


          Attest:


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




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