UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

S. REBECCA DACHMAN,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,
                                                                         No. 96-2817
Defendant-Appellee,

and

WILLIAM DAVID SCHWIETERMAN,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-96-1261-PJM)

Argued: December 4, 1997

Decided: July 23, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven L. Zelinger, Washington, D.C., for Appellant.
George Levi Russell, III, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Stephen L. Neal, Jr., Washing-
ton, D.C., for Appellant. Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Dr. Rebecca Dachman appeals the district court's dismissal of her
case, its decision to substitute the United States as defendant, and its
finding that Dr. William Schwieterman was acting within the scope
of his employment when he filed criminal charges against her. We
affirm.

I

On July 15, 1994, Schwieterman, the acting Branch Chief in the
Food and Drug Administration's Clinical Trials Branch and Dach-
man's immediate supervisor, received a death threat on his voicemail.
He promptly reported this incident to his supervisors and they
instructed him to contact the police. Schwieterman informed his
supervisors that he believed Dachman left the message. On July 18,
1994, before the police or the FDA had completed their investiga-
tions, Schwieterman filed an Application for a Statement of Charges
in the District Court of Maryland for Montgomery County. Based on
that application Dachman was arrested on July 22, 1994. On Decem-
ber 20, 1994, the state entered a nolle prosequi . The FDA subse-
quently concluded that the claim against Dachman was unsubstan-
tiated.

On February 26, 1996, Dachman filed this action in a state court
against Schwieterman alleging malicious prosecution, negligence, and
abuse of process. On April 22, 1996, the United States filed a petition
of removal and moved to be substituted as the party defendant, certi-

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fying that Schwieterman was acting within the scope of his employ-
ment and, therefore, the plaintiff's sole remedy was against the United
States. 28 U.S.C. § 2679. The district court granted this motion
despite the plaintiff's opposition and then, based on this ruling, dis-
missed the complaint for lack of subject matter jurisdiction, because
Dachman had not exhausted her administrative remedies pursuant to
28 U.S.C. § 2675.

II

Both the district court and this court review the Attorney General's
certification of the scope of employment de novo . Gutierrez de Marti-
nez v. Lamango, 515 U.S. 417 (1995); Gutierrez de Martinez v. Drug
Enforcement Admin., 111 F.3d 1148, 1152 (4th Cir. 1997) (on remand
from the Supreme Court); McHugh v. Univ. of Vermont, 966 F.2d 67,
71-74 (2d Cir. 1992). In Maron v. United States , 126 F.3d 317, 322-
23 (4th Cir. 1997), we held that the plaintiff has the burden of proving
by a preponderance of the evidence that the government employee
was not acting within the scope of his employment.

Dachman claims that the district court erred when it failed to con-
duct a de novo review of the scope of employment issue and when it
denied her further discovery on material issues of fact concerning
Schwieterman's employment. Dachman misunderstands the district
court's actions. The district court applied the correct standard of
review to the issue, and properly held that further discovery on the
scope of employment issue was unnecessary.

The district court did not merely accept the government's certifica-
tion as conclusive. The court made a thorough inquiry into the issue
that spans 40 pages in the joint appendix. During this inquiry in
response to Dachman's motion for reconsideration, the court under-
took its duty to determine whether Schwieterman was acting within
the scope of his employment. After both sides had an opportunity to
present their case, the district court reached its decision. We find that
the court met its obligation to conduct a de novo review of the issue.
The district court's review was not the kind of rubber stamp
denounced in Gutierrez de Martinez, 515 U.S. at 429.

Dachman claims that further discovery is required on a number of
disputed facts. The core facts of this case, however, are undisputed.

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Schwieterman received a threat that he correctly took seriously. The
threat was received on the employer's premises during working hours.
Further, there is no dispute that Schwieterman contacted his supervi-
sors about the threat, that they instructed him to call the police, and
that this initial call was within the scope of his employment. Later his
supervisor excused him from work during business hours so that he
could file an application for a statement of charges in the state district
court. His supervisor concluded her affidavit by stating: "At all times
relevant to the aforementioned incident Dr. Schwieterman was autho-
rized by me to conduct himself the way he did." A.82. Although
Dachman disputes the details, there is no dispute that Schwieterman
called security guards to remove Dachman from his office two days
prior to the death threat. After listening to all the undisputed facts, the
court decided that further discovery on the certification issue was
unnecessary.

III

Dachman also asserts that the district court erroneously determined
that Schwieterman was acting within the scope of his employment
under Maryland law. Both parties agree that Maryland law controls
this issue. Under Maryland law an act is within the scope of employ-
ment if it is authorized. Sawyer v. Humphries , 322 Md. 247, 255, 587
A.2d 467, 470-71 (Md. 1991). An act is authorized if it "was incident
to the performance of the duties entrusted to [the servant] by the mas-
ter, even though in opposition to [the master's] express and positive
orders." Id. at 255, 470 (quoting Hopkins Chem. Co. v. Read Drug &
Chem. Co., 124 Md. 210, 214, 92 A. 478, 479-80 (Md. 1914). In
applying this test a court determines if the conduct is of the kind that
the servant is employed to perform, occurs during a period not unrea-
sonably disconnected from the authorized period of employment in a
locality not unreasonably distant from the authorized area, and is
actuated at least in part by a purpose to serve the master. Id. at 255,
471.

Dachman maintains Schwieterman acted outside the scope of his
employment. She claims that filing criminal charges was not the kind
of work that Schwieterman was employed to perform and that he filed
the charges to satisfy his personal motives. She also claims that he did
not act with the authorization of his supervisors and that Schwieter-

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man disregarded applicable written procedure by filing the criminal
charges.

Dachman's analysis of Schwieterman's actions is incorrect.
Schwieterman was employed by the FDA as a doctor, and we agree
that he was not hired to file criminal charges against other employees.
Part of his job, however, was to ensure workplace safety. FDA proce-
dures required Schwieterman to report possible criminal conduct or
general misconduct. Schwieterman followed all applicable procedures
by reporting the incident to his supervisors and the police. Dachman
concedes Schwieterman's initial report to the police was within the
scope of his employment. While the applicable FDA procedures do
not address the filing of criminal charges, we hold that filing criminal
charges after contacting the police about a death threat was a foresee-
able step and is not an act which takes Schwieterman's conduct out-
side the scope of his employment.

Dachman places great weight on the fact that Schwieterman did not
wait for the police or the FDA to finish their investigations before he
filed criminal charges. Dachman's reliance on this fact is misplaced.
There is no exhaustion requirement in the FDA procedures, nor did
Schwieterman's supervisors tell him to wait for the investigations to
finish before filing charges. Filing criminal charges before the investi-
gations were complete was still an authorized act done in furtherance
of the FDA's legitimate business interest of safety.

AFFIRMED

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