April 30, 1993
[SYSTEMS NOTE:  This appendix is only available through the
                 Clerk's Office in Boston.]

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 91-1323 

                      THERESA H. WOOD,

                    Plaintiff, Appellee,

                             v.

                 UNITED STATES OF AMERICA,

                    Defendant, Appellee.

                                        

                     CHARLES D. OWENS,

                   Defendant, Appellant.

                                        

No. 91-1324

                      THERESA H. WOOD,

                    Plaintiff, Appellee,

                             v.

                 UNITED STATES OF AMERICA,

                   Defendant, Appellant.
                                        

                        ERRATA SHEET

Please make  the following  correction  in the  opinion in  the
above case release on April 28, 1993:

The following two-page Appendix  (Excepts from the Federal Tort
Claims Act, 28 U.S.C.   1346,  et. seq.) should be affixed to the
end of the opinion.

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 91-1323 

                      THERESA H. WOOD,

                    Plaintiff, Appellee,

                             v.

                 UNITED STATES OF AMERICA,

                    Defendant, Appellee.

                                        

                     CHARLES D. OWENS,

                   Defendant, Appellant.

                                        

No. 91-1324

                      THERESA H. WOOD,

                    Plaintiff, Appellee,

                             v.

                 UNITED STATES OF AMERICA,

                   Defendant, Appellant.
                                        

       APPEALS FROM THE UNITED STATES DISTRICT COURT

             FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Walter Jay Skinner, U.S. District Judge]
                                                    
                                       

                           Before

                    Breyer, Chief Judge,
                                       
               Coffin, Senior Circuit Judge,
                                           
 Torruella, Selya, Cyr, Boudin, and Stahl, Circuit Judges.
                                                         
                                        

Mark  W. Pennak,  Attorney,  Appellate  Staff, Civil  Division,
              
Department  of Justice,  with  whom Stuart  M. Gerson,  Assistant
                                                  
Attorney  General, Wayne  A.  Budd, United  States Attorney,  and
                               
Barbara L.  Herwig, Attorney,  Appellate  Staff, Civil  Division,
               
Department of Justice, were on brief for appellants.
Stuart DeBard for appellee.
            

                                        

                       April 28, 1993
                                        

                      OPINION EN BANC
                                        

          BREYER, Chief Judge.   The Westfall Act provides a
                             

federal employee with immunity from an ordinary tort suit if
                                                            

the  suit arises out of acts performed "within the scope of"

the  defendant  employee's  "office  or  employment."    The

immunity attaches  when the Attorney General  files with the

court a certificate stating that

          the defendant employee was acting within
                                           
          the scope of his office or employment at
                                                  
          the  time of  the incident out  of which
                                                  
          the claim arose.
                          

28 U.S.C.    2679(d)(1) (emphasis added).   Upon filing this

certificate,  the Attorney  General can  remove the  case to

federal court (if it started in state court), substitute the

United States as defendant,  and, effectively, immunize  the

employee from any personal liability.  28 U.S.C.   2679(d).

          This   appeal  focuses  on  whether  the  Attorney

General  may issue  a Westfall  Act certificate  that simply

denies that  any injury-causing action occurred.   Suppose a

plaintiff  claims that  a  federal employee  committed  acts

clearly outside the scope of  employment, as here, where the

plaintiff  has   alleged  sexual  harassment   amounting  to

"assault  and battery."   Can  the Attorney  General certify

that  there  simply was  no such  event?   To  rephrase this

question using the statutory terms underlined above: Can the

certificate grant immunity simply by denying  the occurrence

                            -4-

of any "incident out of which  the claim arose?"  Would such

a certificate fall within the scope of the immunity statute?

          The  legal question  is  important,  for, where  a

plaintiff alleges a serious intentional tort, say assault or

rape, and also presents enough evidence to survive a summary

judgment  motion, the  answer  will affect  the  plaintiff's

right  to a  jury  trial.   A  "yes" answer  means  that the

Attorney  General  and  the   trial  judge  (reviewing   the

certificate) will decide whether  or not the alleged assault

occurred.  A  "no" answer reserves the basic  factual issues

for a  jury, in effect, maintaining  the plaintiff's Seventh

Amendment right to a trial by jury in "Suits at common law."

U.S. Const. amend. VII. 

          In our view, the answer is "no."  This "no" answer

finds support in the  statutory language, read together with

related  provisions; the  legislative history;  the relevant

case  law  background;  and   direct  precedent  from  other

circuits.  We find nothing to suggest that Congress intended

a  contrary result.  We therefore conclude that the Westfall

Act certificate  cannot deny the  basic "incident"  charged,

though  (as we  shall explain in  Part III)  the certificate

need  not accept  the  plaintiff's version  of  just how  it
                                                        

                            -5-

occurred.

                             I

                         Background
                                   

          Theresa  Wood, the plaintiff,  worked as secretary

to the  federal employee  defendant, Charles Owens,  an Army

Major.   She  filed a  federal court  complaint  against the

United States and Major Owens.   The complaint alleges  that

in October 1987 Major Owens told Mrs. Wood that he wanted to

go to a  hotel with her;  that later in  1987 he called  her

into  his office, "grabbed  her arm, pulled  her toward him,

caressed her arm,  took lint  from her blouse  and said,  'I

like you, I like you  a lot and I  want to be intimate  with

you;'" that in January 1988, he told her that he "would like

to have a relationship  together -- a sexual one;"  and that

in February 1988 he told her that she was not  right for the

job  and would have to  leave.  Eventually,  for reasons not

here relevant,  the district  court dismissed  the complaint

insofar as it  charged violations  by the  United States  of

various  specified provisions of federal and state law.  The

complaint,  however,  also set  forth  state  law claims  of

assault and  battery, and  civil  rights violations  against

Major Owens.  See Mass. Gen. L. ch. 12,   11I.  The district
                 

                            -6-

court  did not dismiss these state law claims, over which it

retained diversity jurisdiction.  28 U.S.C.   1332.

          The United States Attorney then filed (in what had

become  a  state  law,  diversity  action)  a  Westfall  Act

certificate.   See  28  C.F.R.    15.3 (delegating  Attorney
                  

General's  certification  authority  to  the  United  States

Attorney).   It said that Owens, "at all times referenced in

the  . . . Complaint,"  was "acting within  the scope of his

office  as a commissioned officer of the Armed forces of the

United States."  In  an accompanying affidavit, Owens simply

denied Wood's factual allegations.  He said,

          I never  spoke in a  sexually suggestive
          manner  to plaintiff  nor did  I  at any
          time ever proposition or  otherwise make
          any sexual advances towards plaintiff.

The  United  States  Attorney,  denying  that  any  relevant

incident  had occurred,  asked the  court to  substitute the

United  States   for  Owens   as  defendant,  28   U.S.C.   

2679(d)(1),  and (because  of  federal preemption  of  state

civil  rights law  and  a special  law preserving  sovereign

immunity  for intentional  torts) to  dismiss  the resulting

claims against the United States.  See 42 U.S.C.   2000e-16;
                                      

28 U.S.C.   2680(h).

          The   district   court   would  not   permit   the

substitution   because  it   believed   the   Westfall   Act

                            -7-

certificate  was  inadequate.    It  pointed  out  that  the

complaint  alleged facts,  which  (if  true)  showed  Owens'
                  

actions fell  outside his  "scope of office  or employment."

See  28  U.S.C.     2671  (defining  "scope  of  office   or
   

employment" to  mean a  military officer's "line  of duty");

Lutz v. United States,  685 F.2d 1178, 1182 (9th  Cir. 1982)
                     

("line  of duty" is defined  by the relevant  state's law of

respondeat  superior);  Miller  v.  Federated  Dep't Stores,
                                                            

Inc.,  364 Mass.  340,  348,  304  N.E.2d  573,  579  (1973)
    

(Massachusetts law of respondeat superior places intentional
                                         

tort  outside line of  duty, or scope  of employment, unless
             

committed to stop  victim's interfering with employee's  job

performance); Doe v. United States, 618 F. Supp. 503, 505-06
                                  

(D.S.C. 1984) (sexual harassment  outside the line of duty),

aff'd, 769  F.2d  174  (4th  Cir. 1985);  Turner  v.  United
                                                            

States, 595 F. Supp. 708, 710 (W.D. La. 1984) (same).   And,
      

the court added, the  government did not deny that  the acts

would have fallen outside the "scope of employment" had they

occurred.

          On  appeal, a  panel  of this  court affirmed  the

district court, for  similar reasons.  Sitting  en banc, we,

too,  affirm  the district  court's  determination, but  for

somewhat different reasons.

                            -8-

                             II

                   Denying the "Incident"
                                         

          Congress  did not  directly consider  the question

before  us:     whether   or  not  the   Attorney  General's

certificate can simply  deny that  any "incident"  occurred.

The  statute's language,  history,  and precedent,  however,

convince us that the  certificate cannot deny the occurrence

of the basic incident charged.

                             A

                     The Statute Itself
                                       

          1.   The  Provision's Language.   The Westfall Act
                                        

itself says that, to  provide immunity, the Attorney General

must certify that the  defendant employee was "acting within
                                                     

the scope  of his  office or employment  at the time  of the
                                                            

incident  out  of  which  the  claim  arose."     28  U.S.C.
        

  2679(d)(1).   The dissent reads these  words as permitting

the  Attorney General  to  obtain immunity  for any  alleged
                                                   

working-hour tort  simply by  denying that  anything unusual

occurred "at the time."  But, it seems to us more natural to
                     

read these  words as speaking of  an action "at the  time of
                                                            

the  incident,"  thus  assuming  some  kind  of   "incident"
             

occurred.

          After all, the basic point of immunity doctrine is

                            -9-

to provide  government employees with a  defense for conduct

that  falls into  certain categories.    See, e.g.,  Barr v.
                                                         

Matteo, 360  U.S. 564,  573-74 (1959); Mitchell  v. Forsyth,
                                                           

472  U.S. 511,  525 (1985); Harlow  v. Fitzgerald,  457 U.S.
                                                 

800, 818 (1982).  The doctrine normally comes into play, not

when the defendant denies the conduct charged, but  when the

defendant asks  a court  to characterize  the conduct.   The
                                        

point   of   the   certificate   is   to   assert   such   a

characterization,  namely to  claim  that a  (hypothetically

conceded) "incident" involved activity  that was "within the

scope of employment."

          2.   The  Statutory  Scheme.     The   surrounding
                                     

statutory provisions  support  our natural  reading  of  the

provision's language, for they reveal that Congress intended

the  Westfall  Act  to  immunize employees  from  claims  of

wrongdoing of a particular type, not claims of wrongdoing at
                               

a  particular  time.   The "type"  consists  of the  sort of
                   

wrongdoing for  which employers, typically,  are vicariously

liable  under  principles  of  respondeat   superior.    The
                                                    

statutory  scheme does not  concern claimed  wrongdoing that

falls  outside  respondeat  superior's  traditional  bounds,
                                    

regardless of when the wrongdoing allegedly occurred.
                  

          The statutory  scheme  involves both  the  Federal
                                              

                            -10-

Tort  Claims  Act's waiver  of  sovereign  immunity and  the

Westfall Act's  creation of  employee immunity.   The waiver

enables tort plaintiffs to bring against a special employer,

namely  the federal  government, the  same kind  of ordinary
                               

tort  action  that plaintiffs  often  bring  against private
                                                            

employers,  namely  an  action  claiming  that  an  employee

wrongfully  hurt  the plaintiff  and  that  the employer  is

liable under  the doctrine of respondeat  superior.  Section
                                                  

1346(b) of the Federal  Tort Claims Act, which is  a general

waiver of sovereign immunity, seeks to permit just this type

of action.  It says:

          [T]he  [federal] district  courts .  . .
          shall  have  exclusive  jurisdiction  of
          civil  actions  on  claims  against  the
          United States, for money  damages, . . .
          for injury . . . caused by the negligent
          or  wrongful  act  or  omission  of  any
          employee . .  . while acting  within the
                                                  
          scope of his office or employment, under
                                                  
          circumstances  where the  United States,
                                                  
          if a private person, would be  liable to
                                                  
          the claimant in accordance with  the law
                      
          of the  place where the  act or omission
          occurred.

28 U.S.C.    1346(b) (emphasis  added).  But  see 28  U.S.C.
                                                 

  2680 (limiting the waiver in various ways).

          The  Westfall Act  goes  on to  create  a type  of

respondeat  superior immunity  for  federal  employees  that
                    

roughly tracks the federal government's  respondeat superior
                                                            

                            -11-

liability.  The Westfall Act sets forth a Basic Statement of

employee  immunity  which  (edited to  emphasize  our point)

says,

          [1] The remedy against the United States
          provided by section [] 1346(b) . . . 
                                        

          [2]  for  injury  .   .  .  arising   or
          resulting from the negligent or wrongful
          act or  omission of  any employee .  . .
          while  acting  within the  scope  of his
                                                  
          office or employment
                              

          [3]  is exclusive  of  any  other  civil
          action . . . for money damages by reason
          of  the same subject  matter against the
                                      
          employee whose act or omission gave rise
          to the claim . . . .

28 U.S.C.    2679(b)(1) (emphasis  added).  Part  1 of  this

statement  cross-references  Section  1346(b)'s   waiver  of

sovereign immunity.   Part 2 uses  language almost identical

to that in Section  1346(b).  And, Part 3's  operative words

granting immunity from actions  seeking damages by reason of

the "same subject matter" would  therefore seem to refer, in

a  general way,  to  the respondeat  superior  circumstances
                                             

found in the kind of suit that Section 1346(b) describes. 

          The  Westfall Act  subsection now  before  us uses

similar language.   It  provides for substitution  where the

Attorney General certifies that

          the defendant employee was acting within
          the scope of his office or employment at
          the  time of the  incident out  of which

                            -12-

          the claim arose . . . 
                   

28  U.S.C.    2679(d)(1)  (emphasis  added).   The  language

"acting within the scope of his office or employment" tracks

the language  of Section  1346(b).   The  reference to  "the

claim," appearing right after  the Basic Statement, seems to

refer to the Basic  Statement's kind of claim.   And, as  we

have  said, the Basic Statement,  in turn, refers to Section

1346(b), which creates liability if there is  1) an "injury"

2) "caused by" 3)  an employee's "negligent or wrongful  act

or omission," where 4) the employee  acted "within the scope

of office or employment," and 5) "under circumstances" where

state  law  would make  a  private  employer liable  for  an

employee's "act or omission."

          The  federal  government's  liability   under  the

Federal Tort Claims Act is not perfectly congruent  with the

federal  employee's immunity  under the  Westfall Act.   The

sovereign   immunity   waiver   contains    exceptions   and

limitations  that the  Westfall  Act does  not contain  (but

outside of Section  1346(b)).  See,  e.g., United States  v.
                                                        

Smith, 111  S. Ct.  1180, 1185 (1991)  (exception for  torts
     

"arising in a foreign country,"  28 U.S.C.   2680(k)); Kelly
                                                            

v.  United  States,  924  F.2d  355,  362  (1st  Cir.  1991)
                  

("discretionary  function" exception, 28  U.S.C.   2680(a));

                            -13-

Nasuti v. Scannell, 906  F.2d 802, 805, 806 (1st  Cir. 1990)
                  

(limitation for co-employee plaintiff,  5 U.S.C.    8116(c),

and exception for assault and battery, 28 U.S.C.   2680(h));

Hamrick  v. Franklin,  931 F.2d 1209,  1212 (7th  Cir. 1991)
                    

(exception for libel and interference  with contract rights,

28  U.S.C.    2680(h)).   And,  the  federal government  may

escape liability under Section 1346(b), even if the employee

is immune, by asserting  state or federal law defenses.   28

U.S.C.    2674.    Nonetheless, the  language  of the  basic

"government-liability-creating"   and   "employee-liability-

removing"  provisions   makes  clear   that  both   sets  of

provisions involve  the same  basic kind  of case,  namely a
                                        

respondeat superior kind of case.  And that fact is critical
                   

here.  Since  Congress intended to limit  grants of immunity

to job-related, respondeat  superior, kinds of  cases, there
                                    

is  no  reason  to apply  the  Westfall  Act  in cases  that

concededly do  not involve any kind  of potential respondeat
                                                            

superior liability.  Nor,  is there any reason to  interpret
        

that  Act as  taking from  the jury  its traditional  job of

deciding whether an egregious  tort (well outside the "scope

of employment"), in fact, occurred.

          There  is, then,  no  reason to  give the  statute

before us  other than  its natural  reading, a  reading that

                            -14-

requires the  Attorney  General  to  assume  (for  immunity-
                                           

asserting  purposes), not  to deny,  the occurrence  of some
                                  

"incident" underlying  the plaintiff's claim.   The Attorney

General need not  deny the  incident to obtain  the kind  of
            

job-related immunity the statute seeks  to bestow.  And, the

Attorney  General  should  not   be  able,  by  denying  the
                         

incident, to obtain  employee immunity for a tort claim that

is not  job-related,  regardless  of  whether  the  Attorney

General believes the claim to be true or false.  

          3.   Purpose.     One  can  imagine  why  Congress
                      

decided  to link  employee immunity  to respondeat  superior
                                                            

principles as described.  Federal employee tort immunity has

a public,  not a  private,  objective, namely  the need  for

public employees faithfully to  discharge their duties.  See
                                                            

Gregoire v. Biddle, 177  F.2d 579, 581 (2d Cir.  1949); Barr
                                                            

v.  Matteo, 360 U.S. 564, 571 (1959); Westfall v. Erwin, 484
                                                       

U.S. 292, 296  (1988).   It aims at  avoiding "exposure"  to

"personal  liability" in  order  to  prevent "a  substantial

diminution  in  the vigor  of  Federal  law enforcement  and

implementation."    H.R. Rep. No. 700, 100th Cong., 2d Sess.

3, reprinted  in 1988 U.S.C.C.A.N.  at 5947.   The resulting
                

immunity reflects a balancing of judgments, on the one hand,

about  the  likelihood  that potential  tort  liability will

                            -15-

adversely affect  job performance  and, on the  other, about

the potential harm such  immunity might cause potential tort

plaintiffs.    That  balance  may differ  as  between  cases

inside, and outside,  the scope of  employment.  After  all,

one might believe that employees  often can change their job

performance to  avoid, even unfounded, suits  based on, say,

negligent  performance of  that job,  but that  they  lack a

comparable ability to avoid, in a similar way, false charges

of  an egregious tort (e.g.,  murder or assault).   And, the

possible  effect  of  such  non-duty-related  suits  on  job

performance  might  seem  too  uncertain,  or  too  weak,  a

justification for  depriving a plaintiff  of her right  to a

jury  trial  in cases  involving  non-duty-related egregious

torts.  Cf.  Granfinanciera, S.A. v. Nordberg,  492 U.S. 33,
                                             

53  (1989) (Congress may substitute statutory non-jury trial

action for common law jury trial action where former "action

inheres in, or lies against,  the Federal Government in  its

sovereign  capacity.").   Hence,  the  statute, as  enacted,

simply   reflects   different  Congressional   judgments  in

different circumstances.

          As the  dissent suggests,  pp. 31, 34,  infra, our
                                                       

interpretation means  that sometimes  Driver  A, who  admits

negligence will receive immunity, while less culpable Driver

                            -16-

B,  who denies the existence  of any accident  at all, would

not  receive immunity.   But,  this could  be so  only where

Driver  A can  claim that  the underlying  incident is  job-

related,  while  Driver  B  cannot  make  this  claim,  even

hypothetically, for  argument's sake.  This  result does not

seem anomalous given  immunity's job-related public purpose.

And, it  is that  public purpose, not  relative culpability,

that controls the shape of the legal doctrine.

                            -17-

                             B

                          History
                                 

          The Westfall  Act's history offers  direct support

for  our  reading  of   the  Act.    First,  the   House  of

Representatives Report suggests that Congress did not intend

the Westfall Act to confer immunity for tort  claims outside

the respondeat superior  context.  It  simply says that  the
                       

Act  permits  substitution  of  the United  States  for  the

defendant employee 

          whenever the Attorney General determines
          that the act or omission alleged to have
          caused   the  claimant's   injuries  was
          within  the  scope  of   the  employee's
          office or employment.

H.R. Rep. No.  700, 100th  Cong., 2d Sess.  9, reprinted  in
                                                            

1988  U.S.C.C.A.N. at  5952.   The Report  thereby seems  to

assume the Section 1346(b) elements of an act that caused an

injury. 

          Second,  the Report  says  that the  Act does  not

permit   substitution   where   the   conduct   alleged   is

"egregious:"

          [T]he United States will incur vicarious
          liability only  for .  . .  torts . .  .
          committed  within the  "scope  of .  . .
          employment."  If an employee  is accused
          of  egregious  misconduct,  rather  than
                                   
          mere negligence or  poor judgment,  then
          the United States may not be substituted
          as  the  defendant,  and the  individual

                            -18-

          employee remains liable.

Id.  at 5, 1988 U.S.C.C.A.N. at 5949 (emphasis added).  This
   

language suggests  that the Act  does not allow  an immunity
                                         

certificate simply  to deny, say, an  alleged killing, rape,

assault, or some  other "egregious  misconduct" that  occurs

during working hours.  It suggests that the Act requires the

certificate to explain, instead, why the alleged  misconduct

was not so "egregious" as to place it outside the employee's

"scope of employment."   The dissent's interpretation of the

Act is inconsistent with this statement in the Report.

          Third,  Congress  intended  the  Westfall  Act  to

restore  approximately the  federal  employee tort  immunity

that  existed prior to the Supreme Court case of Westfall v.
                                                         

Erwin, 484 U.S.  292 (1988).  See  H.R. Rep. No.  700, 100th
                                 

Cong., 2d  Sess. 3-4 (1988), reprinted  in 1988 U.S.C.C.A.N.
                                          

5945, 5946-47.  We have examined the pre-Westfall Act cases.

The  leading immunity  cases all  involved "incidents"  that

defendants conceded  to have occurred.   Gregoire v. Biddle,
                                                           

177  F.2d 579 (2d Cir.  1949); Barr v.  Matteo, 360 U.S. 564
                                              

(1959); Westfall v.  Erwin, 484  U.S. 292 (1988).   And,  in
                          

every  other case  we have  found, the  parties conceded  or

assumed for immunity-conferring  purposes the occurrence  of

some  kind of harm-causing "act or omission."  We could find

                            -19-

no   contrary   example  of   either   an   ordinary  or   a
  

"constitutional"  tort case  in  which a  claim of  immunity

rested on a denial that any incident occurred.  See  Chagnon
                                                            

v.  Bell, 642 F.2d 1248, 1256 (D.C. Cir. 1980) ("doctrine of
        

immunity assumes official  error"), cert.  denied, 453  U.S.
                                                 

911  (1981); Scheuer  v.  Rhodes, 416  U.S. 232,  242 (1974)
                                

("Implicit in the idea that officials have some immunity . .

. is a recognition that they may err."); see also Heidelberg
                                                            

v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (distinguishing
         

the defense of "absolute immunity" from  "failure to state a

claim").   Nothing  in the  Westfall Act's  history suggests

that Congress wanted to  change the pre-existing practice in

this respect.

          Fourth,   the   Westfall  Act   changed  "official

immunity"  by overriding  the Supreme Court's  limitation of

the doctrine to "discretionary  functions," 484 U.S. at 296-

97, and by extending to  all federal employees a  procedural

protection   (the    certification   procedure)   previously

available only to government  drivers.  28 U.S.C.    2679(d)

(1982) (amended by the Westfall Act).  The former purpose is

irrelevant  here.   The  latter  offers  added support,  for

Driver's Act  immunity cases, like common  law cases, turned

on  whether the  "incident" (essentially  an  auto accident)

                            -20-

fell within the  "scope of employment,"  not on whether  any

basic  incident occurred.   See,  e.g., Henderson  v. United
                                                            

States, 429 F.2d 588, 590 (10th Cir. 1970) (looking at "time
      

of  the accident").    Moreover, those  cases indicate  that

Driver's Act "immunity," like Westfall Act "immunity," arose

in a respondeat superior context.  See id. 
                                          

          We recognize  that the Driver's  Act tied employee

immunity to  the  government's Section  1346(b),  respondeat
                                                            

superior liability  more explicitly  than does the  Westfall
        

Act,  for, in the context  of removal, the  Drivers Act said

that  if the  federal court  finds  (before trial)  that the

plaintiff would  have no Section 1346(b)  remedy against the

United States,  the "case  shall  be remanded  to the  State

court."    28  U.S.C.     2679(d)  (1982).    This  language

indicates  that the  Driver's Act  would not  have protected
                                            

drivers against claims of  "egregious torts," whether or not

they allegedly occurred during the driver's work hours.  See
                                                            

Henderson, 429  F.2d at  590 (state law  respondeat superior
                                                            

principles define "scope of employment); Miller v. Federated
                                                            

Dep't  Stores,  364   Mass.  at  348,  304  N.E.2d   at  579
             

(intentional tort  is normally outside  scope of  employment

unless committed  to prevent  victim  interference with  job

performance); McGowan v. Williams,  623 F.2d 1239, 1242 (7th
                                 

                            -21-

Cir.  1980)  ("the  federal  driver"  can be  sued  "in  his

individual  capacity"  if  he  acted outside  his  scope  of

employment).  The Westfall  Act, while copying much Driver's

Act  language, leaves  out this  specific remand  provision.

But  it apparently does so  for a reason  not here relevant,

namely  to   make  clear  that  the   United  States,  after

substitution, can  assert various defenses that  may, or may

not, have been available  to the employee.  See  28 U.S.C.  
                                               

2674;  H.R. Rep. No. 700, 100th Cong., 2d Sess. 5, reprinted
                                                            

in 1988 U.S.C.C.A.N at  5948 ("ordinary tort defenses .  . .
  

available to the United  States").  We therefore do  not see

how one could find much of significance in this difference.

                             C

                      Direct Precedent
                                      

          We  have  found one  circuit  court  case and  one

district  court  case directly  on  point.    In  McHugh  v.
                                                        

University of  Vermont,  966 F.2d  67  (2d Cir.  1992),  the
                      

plaintiff  claimed  that  a federal  employee  had  sexually

harassed her.   The Attorney  General filed  a Westfall  Act

certificate.   The Second  Circuit overruled the certificate

because the  Act does not  permit the government  to certify

that  the   alleged  incident   is  "within  the   scope  of

employment" simply "by denying that the acts occurred."  Id.
                                                            

                            -22-

at 74.  It added (as do we, in Part III) that the Government

need  not  accept the  plaintiff's  version  of the  alleged
                                           

incident,  for it can argue that the "context of the alleged

acts"  places them  within the "scope  of employment."   Id.
                                                            

The  trial  court,  it   explained,  may  hold  a  pre-trial

evidentiary hearing to resolve factual disputes  relevant to

"context."  Id.   Our holding  here essentially follows  the
               

Second Circuit.

          In Jackson  v. United States, 751 F. Supp. 911 (D.
                                      

Colo. 1990),  the plaintiff  alleged that the  defendant, an

Army psychotherapist had engaged  in sexual intercourse with

her during  treatment.   The district  court held  invalid a

Westfall Act certificate that simply denied that the alleged

event had taken place.  See id. at 913.  
                               

          Language,  context, history, and precedent lead to

the same  general  conclusions.   1) The  immunity that  the

Westfall Act  confers upon federal employees  arises in, and

is confined  to, a  certain context, namely  the "respondeat
                                                            

superior"  context, described roughly  in Section 1346(b) of
        

the Federal  Tort Claims Act.   2) To permit  a Westfall Act

certificate  simply  to deny  that  anything occurred  would

extend a form of this  immunity well outside the "respondeat
                                                            

                            -23-

superior" context to  "egregious" torts allegedly  committed
        

at  work.   It would  permit, to  a significant  degree, the

Attorney General  and district judge (rather  than the jury)

to decide whether allegations of such non-work-related torts

were  true  or false.   3)  We  therefore conclude  that the

certificate cannot assert "immunity" simply by  denying that

anything occurred.   We read  the statute to  mean what  its

words  naturally  say, namely  that  the Attorney  General's

certificate must assume the existence of an "incident out of

which the claim arose."  

                            III

        What "Incident" Must the Certificate Assume?
                                                   

          We  are aware  of one  important question  that we

have not yet  asked or answered.   Given our interpretation,

could a plaintiff, through artful pleading, transform a job-

related tort into a non-job-related tort simply by alleging,

say an "off-duty" state of mind (such as "malicious" intent)

or  by alleging  that  a negligent  action  was carried  out

intentionally?    If so,  will  federal  employees lose,  in

practice, the  job-related  immunity that  Congress  clearly

intended the Westfall Act to provide?

          Consider,  for example,  an  accident  victim  who

might  normally file  a suit  charging negligence.   Suppose

                            -24-

that such a victim also claimed  that the defendant employee

acted  with   a  state  of  mind   that,  under  traditional

respondeat superior doctrine, would place the action outside
                   

the  "scope   of  employment,"  say,  an   "intentional"  or

"deliberate" state of  mind.  See Miller  v. Federated Dep't
                                                            

Stores, 364  Mass. at 348,  304 N.E.2d  at 579  (intentional
      

tort  is  normally  outside  "scope  of  employment"  unless

committed   to   prevent   victim   interference   with  job

performance).  Or, suppose  that the victim alleged detailed

facts  indicating that, at the  time, the employee  was on a

"frolic of his own."   Weiner v. Mairs, 234 Mass.  156, 158,
                                      

125 N.E. 149, 150 (1919).   To force the Attorney General to

accept  all such facts as valid might often prevent her from

removing the  case from  state court, from  substituting the

United States  as defendant,  and from freeing  the employee

from the burden of the lawsuit.  

          This   problem,  however,  does   not  require  an

interpretation  that would  permit the  Attorney General  to

deny the basic "incident."   Rather, we can (and  do) insist

that  the  certificate  assume  some  kind  of  harm-causing
                                                            

incident, while leaving the Attorney General free to dispute
        

characterizations of the  incident and subsidiary  immunity-

related facts.   The Second Circuit held  precisely the same

                            -25-

in McHugh.   966 F.2d at  74.  Moreover, we  previously held
         

that  the  Attorney  General's  certificate  may  contest  a

plaintiff's incident-describing  and incident-characterizing

facts  and that  the  court  may  resolve any  such  factual

conflicts, relevant to immunity, prior  to trial.  In Nasuti
                                                            

v. Scannell,  906 F.2d 802  (1st Cir. 1990),  the plaintiff,
           

injured  while  riding in  the  back of  a  government truck

driven by federal employee Scannell, sued Scannell, claiming

that Scannell had intentionally injured him by driving fast,
                               

thereby jostling him,  and throwing him  from side to  side,

"in spite  of" Nasuti's  "entreaties" to stop.   We  assumed

that these  factual allegations, if true,  would have placed

Scannell's  actions outside the  "scope of  his employment."

See Miller, 364 Mass. at 348, 304 N.E.2d at 579 (intentional
          

torts normally outside "scope of employment").  But, we held

the   immunity  certificate   valid,  pending   a  pre-trial

evidentiary  hearing that  would resolve  the key  immunity-

related factual dispute, namely whether Scannell intended to
                                                         

harm  Nasuti.   See  id. at  808.   The  Attorney  General's
                        

certificate  in Nasuti did not deny the existence of a harm-
                      

causing  incident.    It  denied  related  descriptions  and

characterizations of that incident.  By way of contrast  the

certificate  before us  denies  the existence  of any  harm-

                            -26-

causing incident at all.

          We recognize an obvious problem with the line that

we, like the  Second Circuit, have tried to draw.  How clear

is the line?   Will  we later  have to  answer questions  in

particular  factual  circumstances   about  the   difference

between denying facts that amount to a "characterization" or

"description"  and  denying that  any  harm-causing incident

occurred at all?   Compare Unwin v. Campbell, 863  F.2d 124,
                                            

133 (1st Cir. 1988)  (extent of defendant's participation in

incident is part of qualified immunity inquiry) with Domegan
                                                            

v.  Fair, 859  F.2d 1059,  1065 (1st  Cir. 1988)  (denial of
        

causation is  not part  of immunity  inquiry) and  Bonitz v.
                                                         

Fair, 804 F.2d 164, 167 (1st Cir. 1986) (same), overruled on
                                                            

other  grounds,  Unwin v.  Campbell, 863  F.2d  at 132.   We
                                   

concede this kind of administrative problem would likely not

arise  were we to read  the statute either  1) as permitting

the certificate to deny the  "incident" in its entirety,  or

2) as insisting that  the certificate accept the plaintiff's

alleged  account  as totally  valid.    But, we  nonetheless

believe  the  problem is  the  least  potential  evil.   The

administrative problem is not insuperable.  Cases that raise

this kind of  issue seem  rare.  Moreover,  we have  already

pointed  out  the more  serious  harm  that would  accompany

                            -27-

either  of the  other choices,  namely unduly  expanding, or

constricting,  the practical  scope  of  the  immunity  that

Congress  intended to confer.   And, we cannot  find in this

administrative  consideration  justification for  imposing a

major restraint upon the plaintiff's  right to a jury trial.

Consequently,  we believe that  our "middle  ground" adheres

more faithfully to the statute itself.

                            -28-

                             IV

                       Other Matters
                                    

          We add two final,  unrelated points.  First, after

oral  argument  in  this  case the  Fourth  Circuit  decided

Johnson v. Carter, No. 90-3077 (4th Cir., Jan. 15, 1993), in
                 

which  it held  that  courts cannot  review the  validity of

Westfall  Act certificates.  Id.  at 7.   We previously have
                                

held to the contrary.   Kelly v. United States,  924 F.2d at
                                              

357; Nasuti, 906  F.2d at 812.  The Government  has asked us
           

not   to  assess   our  previous   holding  in   respect  to

reviewability.  And, we shall not do so.

          Second,  the  Government  originally   appealed  a

totally separate issue, whether or not federal law preempted

certain  of Wood's state law  claims.  The  panel refused to

consider that aspect  of the  appeal on the  ground that  an

interlocutory appeal  did not lie from  the district court's

decision of that question.  See Zayas-Green  v. Casaine, 906
                                                       

F.2d 18, 22 (1st Cir.  1990).  We have accepted the  panel's

decision  on that matter in this en banc proceeding.  Hence,

we have not decided the preemption issue on the merits.  The

Government  remains free to raise the issue on appeal from a

final judgment.

                            -29-

          Applying our basic determination of the law to the

case  before   us,  we   find  that  the   Government  here,

impermissibly,  has rested  its  certificate  simply upon  a

denial that any "incident" took place.  We do not see how it

could  characterize the  incidents at  issue in  a way  that

would  bring them within defendant's "line  of duty," and it

has  not tried to  do so.  We  consequently believe that the

district court's decision denying substitution and dismissal

was correct, and that decision is

          Affirmed.
                  

                            -30-

    COFFIN, Senior Circuit Judge, SELYA  and BOUDIN, Circuit
                                                            

Judges,  dissenting.1    In  this  case  a  federal  employee
     

charged  with  an  intentional  tort said  that  the  alleged

incidents never  occurred, and the Attorney  General issued a

"scope of employment" certificate  under the Westfall Act, 28

U.S.C.    2679, accepting  the employee's version  of events.

In  our  view, the  Attorney  General's  scope of  employment

certificate must be respected unless  and until set aside  by

the district court; and the certificate can be set aside only

if the  judge determines--in this case,  after an evidentiary
            

hearing  to decide  whether the incidents  occurred--that the

employee engaged in improper conduct outside the scope of his

employment.

                             I.

    In the Westfall Act,  Congress told the Attorney General

to  determine whether  to  certify that  a federal  employee,

against  whom a civil suit has been filed, was acting "within

the scope  of his  office or employment  at the  time of  the

incident out  of which the claim arose . .  . ."  28 U.S.C.  

2679(d)(1), (2).  Where  this certificate issues, the statute

directs that the  case, if initially brought  in state court,

shall be removed to federal court  and in any event that "the

United States  shall be substituted as  the party defendant."

                   

    1This opinion represents the work, as well as the views,
of all three judges so we have signed it jointly.

                            -28-
                             28

Id.   The  statute makes the certificate "conclusive"  so far
 

as it  is used to remove  a case to federal  court.     Id.  
                                                         

2679(d)(2).  The statute does not address, and thereby leaves

open, the possibility that  where the Attorney General grants

a  certificate, it may be  reviewed so far  as it substitutes

the United States for the employee. 

    On   February   8,   1990,   the   U.S.   Attorney   for

Massachusetts,  who  is  delegated  authority to  issue  such

certificates,  28  C.F.R.     15.3,  issued  a  Westfall  Act

certificate in this  case affirming that  Owens at all  times

referenced in the complaint was "acting with the scope of his

office . . . ."   The  United States then  substituted itself

for Owens.  Needless to say, the government has never claimed

that the incidents,  if they occurred as  Wood alleged, would

be behavior within the  scope of Owens' duties.   Rather, the

certificate amounts  to an  assertion that  Owens was at  all

times acting within the scope  of his employment because,  in
                                                       

the Attorney General's view,  the incidents did not occur  as

alleged by Wood.

    Accordingly,  we  now  face  a situation  in  which  the

Attorney General's delegate has  issued a certificate and the

plaintiff  has sought to set  it aside.   One option--that of

simply  assuming   the  certificate  to  be   true  (and  the

complaint's allegations  false)--we reject.   This court  has

held that the grant  of a scope certificate is  reviewable as

                            -29-
                             29

to substitution because any other reading could foreclose the

plaintiff's  claim without a  judicial determination.  Nasuti
                                                            

v.  Scannell, 906 F.2d 802 (1st Cir. 1990).2  The government,
           

after initially resisting such district court review, has now

accepted its necessity.

    We are  equally confident that the  opposite alternative

must be rejected: the district court cannot proceed merely by

assuming  the  complaint's allegations  to  be  true and  the

certificate  false.    Such  an  assumption  would  give  the

plaintiff complete control over the certification process and

permit the  certificate to be nullified  without any judicial

finding.    The  statute  permits a  certificate  where  "the

defendant employee was acting within the scope of his  office

or employment at  the time of the  incident . . . ."   In our

view, this language speaks not to what plaintiff or defendant

may  allege  but  rather  to  the  actual  events  and  their
          

connection to the employee's office or employment.

    Finally,  to  us it  is of  no  moment that  the statute

refers to "the incident out of which the claim arose."  It is

an  accident of  language--a  reflection of  the most  common

case--that the  statute posits a  "happening."  In  this case

the  Attorney  General   concluded,  as   evidenced  by   the

certificate,  that the  events claimed  by plaintiff  did not

                   

    2That  is  so,  for  example,  where  the  Westfall  Act
mandates substitution  but  the tort  is  one for  which  the
United States has not waived its sovereign immunity.

                            -30-
                             30

occur, at least in the form alleged  by Wood.  But it is  not

difficult  to find here  a set of  "incidents" or occurrences

conceded  by   everyone:    Owens  did   have  a  supervisory

relationship with Wood,  met and talked  with her on  various

occasions  and danced with her at an official function.  What

is  disputed is  precisely what  was said  and done  on these

occasions,  much  as  a   government  driver  and  a  private

plaintiff  might  give two  quite  different  versions of  an

accident.

    Indeed, we think  the Westfall Act  would apply even  if

there were less of an "incident" than is indisputably present
              

in this case.   For example, surely the statute  applies with

the same force whether  a postal service driver says  that he

did not hit the plaintiff's car or that he did so but was not

at fault.   "Incident," in  other words,  must encompass  the

possibility  that something  did not  happen as  well  as the

possibility that it did.

    Against  this background, we confront a single question:

should the judge or  the jury make the  initial determination

as to  what  did or  did not  occur and  its relationship  to

Owens'  office or  employment?   The  case  is peculiar  only

because  the  same issue  happens to  be  common both  to the

validity  of  the  certificate  and  to  the  merits  of  the

controversy  between  plaintiff  and  defendant.    If  Owens

molested  Wood, the certificate is  invalid and he is liable;
                                              

                            -31-
                             31

if it never happened  and he maintained a  proper supervisor-

employee relationship,  then  his behavior  toward  Wood  was

within the scope of his employment and he has no liability.
                                     

                            II.

    Although the question  of who should decide  is not free

from doubt, we believe that the Attorney General's

certificate cannot be set aside unless and until the district

judge concludes that Wood's version of events  is correct and

therefore that  Owens could not  have been acting  within the

scope of his employment.  This course appears to us to be the

one most consistent  with statutory language,  with Congress'

policy,  with Supreme  Court  and other  precedent, and  with

sound administration of the statute.  Each of these points is

addressed in turn.

    We  start  with   the  statute's  language,  as   proper

interpretation   requires.    See   Landreth  Timber  Co.  v.
                                                       

Landreth,  471  U.S.  681,  685  (1985).   The  Westfall  Act
       

operates automatically, upon the  filing of a certificate, to

remove the case and  to substitute the United States  for the

employee.   The  statute provides  that "upon  certification,

[the]  action . . . shall proceed" against the United States,

28  U.S.C.   2679(d)(4).  The certificate, in other words, is

an official act  with legal consequences unless  and until it

is  set   aside.    The   official  act  is   reviewable,  by

implication,   but  it  is  operative  until  found  invalid,

                            -32-
                             32

protected by the same presumption of validity that ordinarily

attaches  to  official  action.   See  Citizens  to  Preserve
                                                            

Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); United
                                                            

States  v.  Chemical  Foundation,  Inc., 272  U.S.  1,  14-15
                                     

(1926).  

    The certificate  filed by  the Attorney General  in this

case  is not facially  invalid.  As  we have noted,  there is

nothing in the statute that requires the  Attorney General or

the court to accept the plaintiff's version of events as true

without   scrutiny  (and   such   a  requirement   would   be

sufficiently  odd that a  court could not  lightly infer it).

Nor  is  there  anything  that prevents  a  certificate  from

issuing where the "incident" charged in the complaint did not

occur  and  the defendant  engaged  only  in proper  behavior

occurring  wholly   within  the   scope  of  his   office  or

employment.  In sum, so far as the statute is concerned, this
                                         

is a proper certificate, unless  and until a factual  finding

in Wood's favor undermines the premise of the certificate.

    It  is even  clearer  that  the  congressional  policies

underlying the statute support the government's position.  At

present,  Owens is  not presumed  to be a  molester; he  is a

military  officer who  has  been accused  of making  improper

advances to an employee  whom he supervised in the  course of

his official duties.  To issue his certificate,  the Attorney

General must have  concluded that in  this case the  advances

                            -33-
                             33

were not  made.    Where the  Attorney General  has issued  a

scope  certificate, Congress intended  to spare employees not

only from liability for  misconduct related to their official

duties but also from the burden and expense of defending such
              

suits.3 

    In  other  words,  the  Westfall  Act  is  not a  simple

immunity statute saying that  certain misconduct is protected

against  liability and  leaving the  employee to  assert that

immunity in litigation.  Rather, by its precise terms and its

underlying  policy, the statute meant to lift the case into a

federal  forum and  relieve the  employee  from the  cost and

effort of defending  the case if the  Attorney General issues
                               

the certificate.4  A certificate having issued in this  case,

surely  Owens should  not  be deprived  of  the advantage  of

having the  government defend the  case, a protection  that a

negligent postal employee would gain as a matter of course.

    Turning  to precedent,  the  Supreme Court  has not  yet

                   

    3The  Supreme  Court  has  been  equally  concerned,  in
fashioning  immunity  doctrine, with  "the  general costs  of
subjecting officials to  the risks  of trial--distraction  of
officials  from  their  governmental  duties,  inhibition  of
discretionary action,  and  deterrence of  able  people  from
public service."   Harlow  v. Fitzgerald,  457 U.S. 800,  816
                                       
(1982).

    4The statute directs "substitution" of the United States
for   the   defendant  immediately   upon  issuance   of  the
certificate, it removes  the case if pending  in state court,
and it gives  the defendant  who is denied  a certificate  an
immediate right to challenge  this decision before the judge.
28 U.S.C.    2679(d)(1), (2),  (3).  See  also H.R. Rep.  No.
                                             
700, 100th Cong., 2d Sess. 2 (1988).

                            -34-
                             34

addressed  the issue in this case, but it has spoken recently

and emphatically about the procedures for  resolving immunity

questions.  The single thread  that runs through these recent

decisions is that  immunity-related issues should  be decided
                                                            

by the  judge and  at the earliest  opportunity.5  It  is, as
                                              

the  Supreme Court has said, not  only immunity from ultimate

liability after trial  but also immunity  from the burden  of

going to trial at all that matters.  Mitchell v. Forsyth, 472
                                                       

U.S.  511, 526 (1985).   If the  certificate in  this case is

invalidated without  a factual  finding, Owens will  face the

burden  of going to trial even though the evidentiary hearing

might show  that at all  times he conducted  himself properly

and within the scope of his office.

    As for circuit court  precedent relating to the Westfall

Act  itself, our  own Nasuti  decision directly  supports the
                           

view that  "where the facts underlying  the scope certificate

are  disputed,  .  .  . the  matter  [must]  be independently

resolved by the court . . . ."  906 F.2d at 813.   Although a

panel  decision  is  not binding  on  an  en  banc court,  we
                                                 

continue  to find the  reasoning in Nasuti  persuasive and do
                                         

                   

    5See, e.g., Hunter v. Bryant, 112 S. Ct. 534, 537 (1991)
                                
("Immunity  ordinarily should  be decided  by the  court long
before trial."); Siegert v. Gilley, 111 S. Ct. 1789,  1793-94
                                 
(1991) (same); Anderson v.  Creighton, 483 U.S. 635, 646  n.6
                                    
(1987) ("qualified immunity questions  should be resolved  at
the earliest possible stage");  Mitchell v. Forsyth, 472 U.S.
                                                  
511, 526 (1985) (same);  Davis v. Scherer, 468 U.S.  183, 195
                                        
(1984)  (same);  Harlow  v.  Fitzgerald, 457  U.S.  800,  818
                                      
(1982)(same).

                            -35-
                             35

not  think  the case  distinguishable from  this one.   Other

circuits,  in accord with  Nasuti, have held  or assumed that
                                

the district judge may resolve facts that arise in the course

of  a challenge  to  a certificate.    See, e.g.,  Schrob  v.
                                                        

Catterson,  967  F.2d  929,  936 (3d  Cir.  1992);  Brown  v.
                                                        

Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991).   
        

    The  only circuit "precedent" to  the contrary is a very

brief statement in McHugh v. University of  Vermont, 966 F.2d
                                                  

67 (2d Cir. 1992).  With respect, this statement is buried at

the end of a  long opinion addressed to different  issues and

may  well  be  qualified  by the  sentence  that  immediately

follows.  Id. at 74.   It is by no means clear that the court
           

thought it was deciding the issue presented in this case, and

it certainly gave  no reasons for deciding it one  way or the

other, which  strongly reinforces  the inference that  it did

not intend to decide the issue at all.

    Finally, while this is the least weighty  of reasons, we

think that the  reading urged  by the government  is the  one

most consistent with sound administration of the statute.  It

seems quite  likely that  the evidentiary hearing  before the

district  judge  would  be  an efficient  course:  if  Owens'

version  of  events were  accepted  after  the hearing,  that

finding would  sustain  the certificate  and  (by  collateral

estoppel) dispose of Wood's  claim on the merits at  the same

time.  If instead Wood's version were accepted, then we think

                            -36-
                             36

Owens would similarly  be bound  by the result;  he would  be

resubstituted  as a  defendant,  and the  case would  proceed

before  a jury  on other  unadjudicated issues,  such as  the

issue of damages.6

    By contrast,  under  the majority's  approach,  district

courts--and ultimately this court--will continue to engage in

difficult, time-wasting controversies  (like this one)  about

precisely which  facts pertaining to the  scope of employment
                     

issue are for the district judge and which  are for the jury.

Hair   splitting  distinctions  and  anomalous  results  will

multiply.7    If  Congress  commanded this  course,  then  it

should be  obeyed.  But  there is no reason  to inflict these

hardships  upon  ourselves  and  the  judicial  process  when

Congress' statute  and its policy  both look in  the opposite

direction.

                            III.

                   

    6If  the  employee is  content  to  have the  government
substitute itself  for him  to  defend his  conduct, then  we
think   that  his   interests   and   the  government's   are
sufficiently  aligned  for  collateral  estoppel  to  operate
against him.  See Montana v. United States, 440 U.S. 147, 154
                                         
(1979) (one who assists  in the prosecution or defense  of an
action  in aid  of  some  interest  of  his  own  is  bound);
Restatement (Second) of Judgments   39.

    7For example, suppose Wood said she had been offensively
touched but Owens said he touched her only accidentally as he
was handing her a  stack of correspondence.  If  the Attorney
General  then  granted  a  certificate,  there  would  be  an
"incident" and a clear scope of employment issue.  Presumably
the certificate  could not be  set aside  without a  district
court factual  finding.    Why  this  case  should  follow  a
different procedural course is hard to understand.

                            -37-
                             37

         The  arguments  against the  resolution  we propose

should be  faced  head on.    The main  adverse  consequence,

perhaps the  only practical argument against  our reading, is

that it  deprives the plaintiff of trial  by jury on an issue

that  goes to  the heart  of the  merits, as  well as  to the

validity  of the  certificate.   That  common issue,  turning

directly  on credibility in this case, may be well suited for

jury resolution.  This is not a small objection; the right to

jury  trial  as at  common law  is  preserved by  the Seventh

Amendment  itself.   While the  Seventh Amendment  ex proprio
                                                            

vigore  does not apply in this case, courts are protective of
     

jury trial,  e.g., Pernell v.  Southall Realty, 416  U.S. 363
                                             

(1974), and do not  lightly read an ambiguous statute  to cut

off the opportunity of a litigant to obtain a jury.8

    Yet under the Westfall Act the inevitable and deliberate

effect of what  Congress has done is to supplant the jury for
                                   

all  cases within the  ken of  that statute,  including cases

where the scope question goes to the heart of the merits.  In

the  ordinary tort  claim  arising when  a government  driver

negligently runs  into another  car, jury trial  is precisely

what  is  lost   to  a  plaintiff  when   the  government  is

substituted  for the  employee.   Because claims  against the

                   

    8The Seventh  Amendment does not apply  because there is
no constitutional right to a trial by jury against the United
States.   See Lehman v.  Nakshian, 453 U.S.  156, 160 (1981).
                                
Through the  statute and  the certificate, Congress  has made
this suit at present one against the United States.

                            -38-
                             38

United  States  are not  normally subject  to jury  trial, 28

U.S.C.    2402, neither  the plaintiff's claim  of negligence

nor the question  of damages is submitted to a  jury.  A case

of "deliberate" harm, such  as might arise if a  prison guard

or an FBI agent  were sued for assault, could  equally result

in a bench trial on the merits.  See 28 U.S.C.   2680(h).
                                   

    Policy concerns would be quite different if the Attorney

General's certificate were  allowed to preclude any  judicial

adjudication of  Wood's claim.   However, the  government has

abandoned its earlier position  (which we rejected in Nasuti)
                                                           

that its certificate  is conclusive and now disowns  a recent

circuit  decision  that reaches  such  a  result, Johnson  v.
                                                        

Carter, 983  F.2d 1316 (4th Cir. 1993).  Under our reading of
     

the statute, the plaintiff simply gets an adjudication on one

issue by the  trial judge  instead of a  jury, with  adequate

discovery  and full opportunity  to present and cross-examine

witnesses, which is the  way that plaintiffs normally proceed

against  the government.    And given  that substitution  has

occurred, this is  a case against  the government unless  and
                

until the certificate is set aside.  

    With  respect,  the  more  technical  arguments  of  the

majority seem to  us unpersuasive.   In framing the  Westfall

Act, Congress no doubt had in mind the classic  case in which

"the  wrongdoing" (if it occurred) was the type for which the

government  would  be responsible  under  respondeat superior
                                                            

                            -39-
                             39

doctrine.    But  a claim  of  perfect  symmetry between  the

certifiable  conduct (under the  Westfall Act) and government

liability (under the Federal Tort Claims Act) is refuted, and

definitively so, by United  States v. Smith, 111 S.  Ct. 1180
                                          

(1991).   Smith  held  that the  Westfall  Act immunizes  the
              

employee  for conduct within the scope  of employment even if
                                                            

there is no  remedy against the United States.   Id. at 1185.
                                                  

Accord, H. Rep. No. 700, supra, p. 6.
                             

    Similarly, it seems to us beside the point that Congress

plainly did not intend to grant immunity to employees who act

egregiously.   Owens  has not  been  found to  have  molested
                                         

anyone;  he is  charged  with misconduct,  just  as a  postal
                      

employee might  be accused  of  negligent driving  or an  FBI

agent of assault during the arrest of a suspect.  If Owens is

found by the district judge to have engaged in harassment, he

will  not have immunity and will be personally liable.  Until

that  happens, the  certificate  affords him  the  procedural

advantages of government substitution and representation.

    The majority also  relies upon the  House Report on  the

Westfall  Act, which states that "[i]f an employee is accused

of  egregious  misconduct,  rather than  negligence  or  poor

judgment, then the  United States may  not be substituted  as

the  defendant, and the  individual employee remains liable."

H. Rep. No. 700, supra, p. 5.  There is no hint that Congress
                     

meant to  place any weight on  the word "accused."   From the

                            -40-
                             40

prior  and succeeding  sentences, it  appears that  the House

Report  was simply  assuring readers  that the  United States

would  not take  on the  burden of  paying for  the egregious

torts  of employees  plainly committed  outside the  scope of

employment.   See id.   That result will  be achieved whether
                    

the judge  or jury makes  the initial  determination of  what

happened.

    Finally,  the  majority's broadest  but  we  think least

persuasive argument is its  intimation that Congress would be

dismayed  to  discover that  its  statute  applied to  Owens.

Certainly Congress  would be shocked if  harassment were held

to  be covered by official immunity, but no one is suggesting

that it is.  Congress  could not be shocked to  discover that

its statute  might apply where intentional  harm was charged,

since intentional  harm clearly is  covered in some  cases.9 

The  reality  is that  Congress in  this  case, as  with many

statutes, probably did not  think one way or the  other about

unusual applications, and it is an illusion to think that one

knows just what Congress  would have thought if it  had faced

the precise issue in this case.

    In such cases, the court's job is not to speculate about

                   

    9Notably, the Federal Tort  Claims Act itself waives the
government's  sovereign  immunity  for  claims   of  assault,
battery  and false imprisonment  by law enforcement officers.
28  U.S.C.     2679(h).    It  must  be  undisputed  that  an
individual FBI agent,  if sued for assault during  an arrest,
could obtain a valid Westfall Act certificate.

                            -41-
                             41

legislative intent that never  existed.  Rather, our  task is

to  piece out the statutory edifice as best we can, "giv[ing]

coherence to what Congress has done within the bounds imposed

by a fair reading  of [the] legislation."  Achilli  v. United
                                                            

States,  353  U.S.  373, 379  (1957).    And  if Congress  is
     

displeased when it sees how its general language  and purpose

have been fitted  to the case, it is  always open to Congress

to refine its statute.

  Having stated our view as to what the statute requires, we

want to make clear that the charge made by Wood against Owens

is a very serious one involving--if the allegations are true-

-multiple abuses of Owens'  position as a government official

as  well as  continuing sexual harassment.   Nothing  in this

opinion  should  suggest that  Wood's  version  of events  is

unsubstantial  or implausible.  We  simply do not  know:  The

Attorney General's certificate  may be well founded or it may

rest on a faulty  factual premise.  Our concern is  simply to

have the validity of  the certificate and the correctness  of

its  premise  determined  swiftly   and  at  the  outset,  in

accordance with Congress' statutory plan.

  For the reasons stated,  we would vacate the order  of the

district court and remand the case for an evidentiary hearing

to  determine whether Owens, in  his conduct vis  a vis Wood,

acted solely within the scope of his office or employment.

                            -42-
                             42
