                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 99-3832
                                ________________

Gregory T. Kassuelke,                    *
                                         *
            Appellant,                   *
                                         *       Appeal from the United States
      v.                                 *       District Court for the
                                         *       District of Minnesota.
Alliant Techsystems, Inc., a             *
Delaware Corporation; David              *
Fisher; United States of America,        *
substituted for John Lutz,               *
                                         *
            Appellees.                   *

                                ________________

                                Submitted: June 12, 2000
                                    Filed: September 19, 2000
                                ________________

Before HANSEN and HEANEY, Circuit Judges, and MILLS,1 District Judge.
                       ________________

HANSEN, Circuit Judge.




      1
        The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
       Gregory Kassuelke attempts to appeal the district court's2 grant of the United
States' motion for an order substituting it as a defendant in this case. We dismiss the
appeal for lack of appellate jurisdiction.

                                            I.

       Kassuelke was employed as an engineer with Alliant Techsystems, Inc. (Alliant),
a company that manufactures military munitions for the United States government, as
well as other countries. Prior to the termination of his employment in 1998, Kassuelke
had been assigned to a specific development program under a United States
government contract supervised by government employee, John Lutz. Kassuelke felt
that Lutz bore personal animosity toward him and was responsible for his termination.



      Kassuelke filed a civil complaint in Minnesota state district court against Alliant,
David Fisher (Alliant's program manager), and John Lutz (the government employee).
The claims against Lutz are the only claims relevant to this appeal. Kassuelke asserted
claims of reprisal discrimination and intentional interference with contractual relations
against Lutz.

       Lutz removed the case to federal district court, and the United States moved for
an order substituting itself as a defendant. The United States attorney certified that
Lutz had been acting within the scope of his employment at the time of the alleged
incident. See 28 U.S.C. § 2679(d). Kassuelke opposed the substitution motion,
asserting that Lutz had acted out of personal animosity and not within the scope of his
employment with the government.



      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
                                            2
       The district court granted the United States' motion to substitute itself as a
defendant. By letter, Kassuelke asked the court for permission to file a motion to
reconsider and to grant an evidentiary hearing. The district court denied the letter
request for reconsideration of the substitution order, concluding that no evidentiary
hearing was necessary because Kassuelke did not initially request a hearing but chose
to rely only on general allegations in the complaint to oppose the motion. Kassuelke
appeals, asserting that Lutz's actions were not within the scope of his employment and
there is therefore no basis for substituting the United States as a defendant.

                                          II.

     Before addressing the merits of Kassuelke's argument, we must determine
whether we have jurisdiction to entertain this interlocutory appeal.

      We have jurisdiction over final orders and certain types of interlocutory
      orders. See 28 U.S.C. §§ 1291, 1292. In general, a pretrial order
      dismissing less than all of a plaintiff's claims is interlocutory and cannot
      be appealed unless it includes the grant or denial of an injunction, see §
      1292(a)(1); or the district court has certified a controlling issue of law
      under 28 U.S.C. § 1292(b); or the court has directed entry of a partial
      final judgment with the determination required by Rule 54(b) of the
      Federal Rules of Civil Procedure; or the interlocutory order is appealable
      under the narrow, judicially created "collateral order" doctrine.

Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685, 687-88 (8th Cir. 1999).

       Kassuelke does not appeal from a final order as required for jurisdiction under
§ 1291. No injunction is at issue to invoke jurisdiction under § 1292(a)(1), and the
district court has not certified an issue for appeal pursuant to § 1292(b). Nor has the
court entered a partial final judgment pursuant to Rule 54(b). The only remaining
potential basis for appellate jurisdiction is the collateral order doctrine.


                                           3
       To qualify for immediate appeal under the collateral order doctrine, an order
must conclusively decide a disputed question that is important and distinct from the
case's merits, and the decision must be effectively unreviewable on appeal from a final
judgment. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949);
Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998) (citing Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978)). Here, the district court granted substitution of
the government as a defendant pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1).
The Westfall Act, officially named the Federal Employee Liability Reform and Tort
Compensation Act of 1988, amended the Federal Tort Claims Act and was designed
"to extend immunity to federal employees from liability for tortious conduct occurring
within the scope of employment." Taboas v. Mlynczak, 149 F.3d 576, 578 n.1 (7th
Cir. 1998).

       Several circuits have held that a denial of a substitution motion is immediately
appealable under the collateral order doctrine because it is in essence a denial of
qualified immunity for the government employee. See, e.g., Lyons v. Brown, 158 F.3d
605, 607 (1st Cir. 1998) (noting that denials of qualified immunity are ordinarily
subject to immediate appeal and that "qualified immunity in federal civil rights actions
and Westfall Act immunity are treated in the same fashion"); Taboas, 149 F.3d at 579
("A denial of the United States' motion for substitution under the Westfall Act is
immediately appealable under the collateral order doctrine."); Rodriguez v. Sarabyn,
129 F.3d 760, 764 (5th Cir. 1997) (noting the court has jurisdiction to review the denial
of a certification that a defendant's acts were within the scope of employment under the
collateral order doctrine). The entitlement of immunity from suit, rather than a mere
defense to liability for money damages, "is effectively lost if a case is erroneously
permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Because "the
district court's decision is effectively unreviewable on appeal from final judgment,"
immediate review is necessary. Id. at 527.




                                           4
       The issue before us, however, is the grant of a substitution motion, not a denial.
A grant of qualified immunity does not satisfy the Cohen test for immediate
interlocutory appeal because the issue may be effectively appealed after a final
judgment--immunity is not lost where it has been granted. See Erickson v. Holloway,
77 F.3d 1078, 1081(8th Cir. 1996). Similarly, a grant of a substitution motion may be
effectively appealed after final judgment without the government employee losing any
immunity to which he may have been entitled. See Maron v. United States, 126 F.3d
317, 321 n.4 (4th Cir. 1997) (noting that a grant of substitution does not satisfy the
Cohen test for interlocutory review under the collateral order doctrine). Thus, the grant
of a substitution motion is not immediately appealable prior to final judgment.

                                          III.

      Accordingly, we dismiss Kassuelke's appeal for lack of jurisdiction.

      A true copy.

             Attest:

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




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