No. 95-2633


Linda Kendall Anthony and          *
Isaiah B. Anthony, Jr.,            *
                                   *
      Appellants,                  *
                                   * Appeal from the United States
        v.                         * District Court for the
                                   * Eastern District of Arkansas.
Marvin Runyon, Postmaster General; *
Bonnie Eldridge; Greg Tolliver;    *
Oscar Wade; Bonnie Wilson; and     *
the United States of America,      *
                                   *
      Appellees.                   *




                  Submitted:   January 12, 1996

                   Filed:      February 9, 1996

                                                                     *
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES,
     District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Linda and Isaiah Anthony appeal the order of the district
court substituting the United States for the defendants named in
their complaint and dismissing their case. We affirm.




      *
       The HONORABLE JOHN B. JONES, United States District
     Judge for the District of South Dakota, sitting by
     designation.
                               I.
     Linda and Isaiah Anthony are employees of the United States
Postal Service. The Anthonys sued Bonnie Wilson, Craig Tolliver,
and Oscar Wade (all of them Postal Service supervisors), Bonnie
Eldridge (the Postmaster for Little Rock, Arkansas), and Marvin
Runyon (the United States Postmaster General) in Arkansas state
court.   The Anthonys claimed that Bonnie Wilson defamed them
"during and in the course of her employment." (She allegedly told
other postal employees that Mr. Anthony was a homosexual and that
Mrs. Anthony had contracted AIDS through contact with him.) The
Anthonys asserted that the other defendants were responsible for
supervising Ms. Wilson.


     Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), the
defendants filed a notice of removal in federal district court.
They attached a Certification of Scope of Employment (in which the
U.S. Attorney certified that all of the defendants were acting
within the scope of their federal employment when the allegedly
injurious conduct occurred) and the sworn declarations of all of
the defendants except Mr. Runyon. Three days later, the defendants
and the United States filed, in the federal court, a motion to
substitute the United States for the named defendants and to
dismiss the complaint (hereinafter "motion to substitute and
dismiss").

     Four days later still, the Anthonys filed an amended complaint
in the state court.      The new complaint deleted all of the
defendants except Bonnie Wilson and dropped the allegation that
Ms. Wilson defamed the Anthonys "during and in the course of her
employment." The next day, the United States filed a notice of
removal in the state court.      The Anthonys then filed, in the
federal court, a response to the motion to substitute and dismiss.
In their response, the Anthonys asserted that Ms. Wilson's



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defamatory remarks were not within the scope of her employment, and
requested an evidentiary hearing on the scope-of-employment issue.


     The district court ruled on the motion to substitute and
dismiss without holding a hearing. In its order, the court refused
to consider the Anthonys' amended state-court complaint because it
was filed after the defendants filed the notice of removal in the
federal court; the court also disregarded the new allegations in
the Anthonys' response to the motion to substitute and dismiss.
The court substituted the United States as party-defendant, finding
that the defendants were acting within the scope of their
employment when the alleged misconduct occurred. The court then
dismissed the complaint for failure to state a claim because the
United States is immune from defamation suits.           28 U.S.C.
§ 2680(h).    On the same day that the order was docketed, the
Anthonys submitted several affidavits to support their allegation
that Ms. Wilson was not acting in the scope of her employment.


     The Anthonys next filed a motion for reconsideration in the
federal court. The court denied the motion.

                               II.
     In 1988, Congress amended the Federal Tort Claims Act ("FTCA")
to reinforce federal employees' immunity from tort actions. These
amendments -- commonly known as the Westfall Act because they were
a response to Westfall v. Erwin, 

, 300 (1988) --
provide that an action against the United States is the only remedy
for injuries caused by federal employees acting within the scope of
their employment. 28 U.S.C. § 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 or her employment when he or she engaged in
the allegedly harmful conduct.      28 U.S.C. § 2679(d)(2).     The


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Attorney General may then file a Certification of Scope of
Employment, a document certifying that the employee was acting
within the scope of his or her employment, and may remove the case
to federal court.   

General then notifies the
federal court that the United States should be substituted as
party-defendant for the federal employee. 

certification acts as prima facie evidence
that the defendants were acting within the scope of their
employment, Brown v. Armstrong, 

, 1012 (8th Cir.
1991), it does not conclusively establish that the United States
should be substituted as party-defendant. Gutierrez de Martinez v.
Lamagno, 

, 2236 (1995); 

.
If the plaintiff challenges the certification, the district court
must independently review the case and determine whether the
defendant was in fact acting within the scope of his or her
employment.    Gutierrez de 

(plurality opinion).   If the court finds that the employee was
acting outside the scope of his or her employment, the court must
refuse to substitute the United States. 

court agrees
with the certification, then the case proceeds against the United
States under the FTCA. 28 U.S.C. § 2679(d)(4).

                               III.
     On appeal, the Anthonys argue that   the district court erred by
failing to consider the allegations       contained in the amended
state-court complaint and by failing      to hold a hearing on the
scope-of-employment issue. We discuss     each of their arguments in
turn.

                                A.
     The Anthonys first argue that the district court erroneously
refused to consider their amended state-court complaint. The court
ignored the new complaint because it was filed after the defendants


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filed a notice of removal in the federal court. The court reasoned
that filing the notice of removal in the federal court effected the
removal, and, therefore, that the "plaintiffs' attempt to amend
their complaint in state court is without significance, and is not
part of the record in this Court." The Anthonys contend, however,
that the removal did not become effective until the defendants
filed the notice of removal in the state court.        Because the
Anthonys filed their amended complaint the day before that notice
of removal was filed, they argue that the district court was bound
to consider it. We agree.


     The Westfall Act does not set out the steps necessary to
effect removal to federal court. The statute simply states that a
state-court action against a federal employee acting in the scope
of his or her employment "shall be removed ... at any time before
trial by the Attorney General to the district court." 28 U.S.C.
§ 2679(d)(2).   But the statute that sets forth general removal
procedure, 28 U.S.C. § 1446, indicates quite specifically when
removal is effected. The statute states that "[p]romptly after the
filing of such notice of removal [in the federal court] ... the
defendant ... shall file a copy of the notice with the clerk of
[the] State court, which shall effect the removal."     28 U.S.C.
§ 1446(d) (emphasis added).


     Despite the seeming clarity of this statute, courts have
adopted three rules regarding when removal is effected.        Most
courts hold that removal is effected by filing a copy of the notice
of removal in the state court. See 14A Charles A. Wright et al.,
Federal Practice and Procedure:    Jurisdiction 2d § 3737 at 550
(1985); see also Usatorres v. Marina Mercante Nicaraguenses, 

, 1286-87 (11th Cir. 1985) (per curiam). Some courts,
including the United States District Court for the Eastern District
of Arkansas, have held that removal is effected simply by filing
the notice of removal in the federal court. First Nat'l Bank v.


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Johnson & Johnson, 

, 363 (E.D. Ark. 1978). (The
district court evidently followed this rule.)       Finally, a few
courts have held that the state and federal courts have concurrent
jurisdiction until the notice of removal is filed with the state
court. See 14A Wright, Federal Practice § 3737 at 550-51. The
Anthonys claim that we adopted this third approach in Metro North
State Bank v. Gaskin, 

(8th Cir. 1994), but we disagree
with their interpretation of that case. In Metro North, we quoted
Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 

,
437 (1974), for the proposition that federal, rather than state,
law governs the proceedings of a case after it has been removed.
Metro 

.      The case does not discuss when
removal becomes effective.


     Although we have never addressed this issue (perhaps we never
had occasion to do so because the statute was clear to litigants),
we think that the removal statute leaves little room for creative
interpretation.    The only rule that logically follows from
28 U.S.C. § 1446(d) is that removal is effected when the notice of
removal is filed with the state court and at no other time.
Therefore, the amended complaint was properly before the district
court, and we find that the district court erred in refusing to
consider it.


     The defendants argue that 28 U.S.C. § 1446(d) should not apply
to this case because it was removed pursuant to the Westfall Act.
They point out that some parts of § 1446 conflict with the Westfall
Act's removal procedure. For example, under § 1446(b), a notice of
removal must be filed with the federal court no more than thirty
days after the defendant receives the initial complaint, but under
the Westfall Act a case against a federal employee may be removed
"at any time before trial." 28 U.S.C. § 2679(d)(2); see Green v.
Hill, 

, 696 n.3 (11th Cir. 1992) (per curiam), noting
that § 1446(b) does not apply to cases under the Westfall Act. We


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disagree with the defendants, however, that it follows from this
conflict that we should not apply the rule established in § 1446(d)
to determine when removal is effected. Unlike § 1446(b), § 1446(d)
does not conflict with any provision of the Westfall Act.
Furthermore, contrary to the situation that the defendants posit,
the Westfall Act does not speak to the issue at hand. We therefore
hold that the rule set out in § 1446(d) determines when removal is
effected under the Westfall Act.


     Even if the Anthonys had filed their amended complaint after
the case was effectively removed, we believe that the district
court should have considered the new allegations contained in the
response to the motion to substitute and dismiss.        The court
acknowledged that the plaintiffs, "in their response ... now allege
that one employee made defamatory statements about plaintiffs,
which were not made within the scope of employment." The court
declined to consider these new allegations because the plaintiffs
"have not asked to amend their complaint." But the court was on
notice that the plaintiffs were opposing the motion, and was
therefore not entitled to disregard the allegations in the response
simply because they contradicted the Anthonys' earlier allegations
or because they did not come in the form of an amended complaint.

                                B.
     The Anthonys next contend that the district court erred by
denying their request for an evidentiary hearing on the
scope-of-employment issue. As we noted above, when a plaintiff
challenges a Westfall certificate, the district court must
determine independently whether the defendants were acting within
the scope of their federal employment when the allegedly wrongful
acts occurred.    Gutierrez de 

(plurality opinion); 

. Although we have
indicated that it may be necessary for the court to conduct an
evidentiary hearing to resolve the scope-of-employment issue,


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, a hearing is not required in every case.

case the district court apparently substituted the
United States without a hearing because the Anthonys' initial
state-court complaint indicated that the defendants were acting
within the scope of their federal employment. The court noted that
"the complaint as pending in this Court alleges that defendant
Bonnie Wilson, while in the course of her employment ... made
untrue and malicious statements concerning the plaintiffs." We
have already held that the court should have considered the amended
state-court complaint and the Anthonys' response to the motion to
substitute and dismiss. The court, therefore, erred when it based
the decision not to hold a hearing on the initial complaint alone.


     We may affirm on any ground, however, and the government urges
us to affirm, even if the court erred, because the Anthonys failed
to rebut the presumption provided by the Westfall certificate that
Ms. Wilson was acting in the scope of her employment. We agree.
We have held that after defendants file a Westfall certificate and
move to substitute the United States, plaintiffs have "the burden
of coming forward with specific evidence in rebuttal." 

; see also Forrest City Mach. Works, Inc. v. United
States, 

, 1088 (8th Cir. 1992) ("the appellants have
not come forward with any evidence contradicting the government's
scope-of-employment certification"). Here, the Anthonys failed to
submit any evidence indicating that the defendants were not acting
within the scope of their employment; they instead "relied on their
complaint." 

.


     Under different circumstances, we might be concerned that the
Anthonys did not know how much time they had to submit the required
evidence. We have held that courts may not decide motions based on
material outside the pleadings unless both parties are on notice


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that such material will be considered.      See, e.g., Angel v.
Williams, 

, 788-89 (8th Cir. 1993). Here, however, we
think that the Anthonys had adequate notice that they should have
submitted evidence long before the district court ruled on the
motion to substitute and dismiss. The local rules direct parties
to provide supporting factual material "[i]f a motion requires
consideration of facts not appearing of record," Local R. C-7(c)
(E.D. Ark.) (Brown clearly establishes that this was such a
motion), and give parties opposing a motion eleven days to file
this supporting material, Local R. C-7(b) (E.D. Ark.).


     In this case, the government filed its motion to substitute
and dismiss on April 21, 1995, but the Anthonys did not file their
affidavits until May 30, 1995, well after the eleven-day deadline
expired.    Because the Anthonys failed to offer any rebuttal
evidence, the presumption established by the scope-of-employment
certification carried the day for the defendants, and there was no
reason for the court to conduct an evidentiary hearing on that
issue. The court therefore correctly decided that the case should
proceed against the United States and should be dismissed because
the United States has not waived sovereign immunity for defamation.
28 U.S.C. § 2680(h).

                               IV.
     The Anthonys finally suggest that the district court abused
its discretion by denying their motion for reconsideration in light
of their affidavits. Although the federal rules do not provide for
such a motion, Fed. R. Civ. P. 59(a) and Fed. R. Civ. P. 60(b)(2)
do give the district court the discretion to vacate a judgment or
order and to reopen a case in certain limited circumstances,
including when new evidence emerges. We have held, however, that
for a movant to succeed on the ground of newly discovered evidence,
that evidence must be truly new, in the sense that it was
previously unavailable; a motion for reconsideration should not be


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used "as a vehicle to introduce new evidence that could have been
adduced during pendency of the [previous] motion." Hagerman v.
Yukon Energy Corp., 

, 414 (8th Cir. 1988),
cert. denied, 

(1988), quoting Rothwell Cotton Co. v.
Rosenthal & Co., 

, 251 (7th Cir. 1987) (internal quotes
omitted); see also Whitlock v. Midwest Acceptance Corp., 

, 653 n.1 (8th Cir. 1978). Because the Anthonys do not allege
that they could not have produced affidavits rebutting the
presumption that the defendants were acting within the scope of
their employment before the court decided the motion to substitute
and dismiss, it was not an abuse of discretion to deny the motion
for reconsideration.

                                V.
     For the foregoing reasons, we affirm the decision of the
district court.


     A true copy.


          Attest:


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




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