Shvern v. Desrosiers ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT SHVERN; RYAN WHELAN;
TWO RADICAL TECHNOLOGIES,
INCORPORATED,
Plaintiffs-Appellees,
v.
DONALD DESROSIERS; CYNTHIA
TRAEGER; A. JEFFERSON OFFUTT,
Doctor; ANNE MARCHANT, Doctor,
Defendants-Appellants, No. 99-2159
and
GEORGE MASON UNIVERSITY; ALAN
MARTEN, Doctor; MCKINLEY
BOWMAN, JR.; GEORGE MASON
UNIVERSITY, Police Department;
PETER DENNING, Doctor; JOHN
HANKS,
Defendants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-98-1064-A)
Argued: September 27, 2000
Decided: November 22, 2000
Before WILKINSON, Chief Judge, and NIEMEYER and
LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Eugene Thro, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Newport News, Vir-
ginia, for Appellants. Chanda Lynn Kinsey, KINSEY, LYNCH &
FILIPOUR, Fairfax, Virginia, for Appellees. ON BRIEF: Mark L.
Earley, Attorney General of Virginia, Ronald C. Forehand, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Newport News, Virginia, for Appellants.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1997, Robert Shvern and Ryan Whelan were charged with vari-
ous state law computer crimes involving the George Mason Univer-
sity computer system. The charges were based largely on the
investigative efforts of Donald Desrosiers, the systems manager for
the School of Information Technology. Ultimately all charges against
Shvern and Whelan were dismissed for lack of evidence. Following
the arrests, however, Desrosiers and the other defendants allegedly
made defamatory statements about Shvern and Whelan.
Shvern and Whelan filed suit in federal court, alleging numerous
state and federal claims. The district court refused the defendants'
request to certify to the Virginia Supreme Court the question of
whether sovereign immunity barred these contentions. The district
court also held that neither common law sovereign immunity nor the
Virginia Tort Claims Act (VTCA), Va. Code Ann. § 8.01-195.32
(Michie 2000), barred this suit. Desrosiers and the other defendants
appeal.
The defendants ask this court to certify to the Virginia Supreme
Court the question of whether sovereign immunity bars a suit against
a state employee accused of committing an intentional tort while par-
ticipating in an administrative or judicial proceeding. We decline to
do so because Virginia case law is clear on this point: state employees
are not entitled to the protection of sovereign immunity when accused
of an intentional tort. See Tomlin v. McKenzie , 468 S.E.2d 882, 884
(Va. 1996); Fox v. Deese, 362 S.E.2d 699, 706 (Va. 1987); Elder v.
Holland, 155 S.E.2d 369, 372-73 (Va. 1967). See also Coppage v.
Mann, 906 F. Supp. 1025 (E.D. Va. 1995). Certification exists to
enable federal courts to ascertain unsettled state law. See Boyter v.
Comm'r of Internal Revenue Serv., 668 F.2d 1382, 1385 n.5 (4th Cir.
1981). This device should not be deployed to request state courts to
modify state law which is already clear.
In the alternative, the defendants claim the district court erred in
ruling that under Virginia law, sovereign immunity does not bar the
plaintiffs' intentional tort claims. Specifically, they argue that clause
six of the VTCA, concerning immunity for acts taken during the "in-
stitution or prosecution of any judicial or administrative proceeding,"
bars the instant suit. Va. Code Ann. § 8.01-195.3(6).
The district court concluded that this argument failed because the
defendants were accused of intentional torts committed outside the
scope of employment. State employees are not immunized for acts
constituting gross negligence or intentional torts. See Coppage, 906
F. Supp. at 1025; Burnham v. West, 681 F. Supp. 1169, 1172 (E.D.
Va. 1988); Nat'l R.R. v. Catlett Volunteer Fire Co., Inc., 404 S.E.2d
216, 219 n.2 (Va. 1991). The district court correctly concluded that
the complaint alleged intentional acts, and that if these allegations
were proven, Desrosiers and the other defendants would not be enti-
tled to sovereign immunity.
Moreover, individual state employees are not immunized for acts
taken outside the scope of employment. See Messina v. Burden, 321
S.E.2d 657, 661 (Va. 1984); Burnham, 681 F. Supp. at 1172; Fox, 362
S.E.2d at 699. The district court held that the intentional acts alleged
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by the plaintiffs all involved activities that were outside the scope of
the defendants' employment. According to the district court, the
defendants were responsible for investigating threats to and maintain-
ing the integrity of GMU's computer network. As the district court
noted, the defendants' official duties did not require them to speak to
the press or other third parties. Thus, the allegedly defamatory state-
ments made by Desrosiers and Offutt to the press, by Marchant to her
ethics class, and by Traeger to a representative of On Call Paging,
Inc., were all actions outside the scope of the defendants' employ-
ment. Based on this conclusion, the district court held that the defen-
dants' alleged actions were not a part of a judicial or administrative
proceeding and therefore were outside the scope of the sovereign
immunity defense.
We have reviewed the submissions of the parties and have heard
oral argument. Finding no error, we affirm the judgment.
AFFIRMED
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