                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                                      No. 98-51036

GREGORY A. SCHRADER,
                                                                        Plaintiff-Appellee,
                                          versus
JOHN A. SANDOVAL, ETC., ET AL.,
                                                                            Defendants,
JOHN A. SANDOVAL, in his Individual Capacity,
                                                                     Defendant-Appellant.


                      Appeal from the United States District Court
                          for the Western District of Texas
                                 (A-97-CV-896-SS)


                                   November 23, 1999
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
POLITZ, Circuit Judge:*

       Lieutenant John A. Sandoval appeals the district court’s denial of the
government’s motion to substitute the United States as defendant in this action.

Finding as a matter of law that Sandoval was acting within the scope of his
employment when he allegedly performed a medical examination on a patient in

an intentionally rough manner, we reverse the decision of the district court and

remand for further proceedings consistent herewith.

   *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                BACKGROUND
      Gregory Schrader, an inmate at a federal prison in Bastrop, Texas, allegedly

strained his hemorrhoids while lifting a heavy object in connection with assigned

prison duties. He allegedly injured himself again a few days later while performing
similar duties, and was sent to the prison clinic where he was examined by the

defendant. Sandavol is employed by the Public Health Service as a Physician’s

Assistant in the Commissioned Officer Corps. His duties include treating inmates.

Sandoval diagnosed Schrader with external hemorrhoids, assessed the situation as
a non-emergency, and told Schrader to return the following morning for sick call.
      Apparently believing he was suffering from something more serious,
Schrader discussed the details of his examination with his supervisor upon

returning to work. His supervisor suggested that Schrader discuss his situation with
the Warden at an “open house” that was to take place during lunch that day.

Schrader spoke with the Warden who said he would look into the matter. Later that
day, Shrader was re-examined by Sandoval at the direction of the Warden.
According to Schrader, during this examination defendant Sandoval, without

warning, “rammed his finger into [Schrader’s] rectum, bodily lifting [him] off the

floor.” When Schrader asked why he was being so rough, Schrader contends that
Sandoval replied, “You shouldn’t have gone to the Warden.”

       Schrader filed a Bivens1 action naming Sandoval as defendant and alleging

that Sandoval violated his eighth amendment right to be free from cruel and

  1
   Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
                                         2
unusual punishment by intentionally assaulting him during the second examination.
Under the Public Health Service Act,2 the government filed a Notice of Substitution

certifying that at all relevant times Sandoval acted within the scope of his

employment, and it sought to substitute the United States in place of Sandoval as
the party defendant. Because certification by the Attorney General or her designee,

here an assistant United States Attorney, is not conclusive on the issue, the district

court conducted an evidentiary hearing. The district court found that Sandoval’s

actions were motivated by personal animosity towards Schrader because of
Schrader’s complaints to the Warden and denied the substitution.3 Schrader timely
appealed.
                                       ANALYSIS

          We have jurisdiction to review the district court’s order under the “collateral
order” doctrine of 28 U.S.C. § 1291.4 The denial of the motion to substitute the

United States in place of Sandoval denied Sandoval’s statutory immunity from suit.
Thus, the order is appealable before final judgment, for “[t]he entitlement... is an
immunity from suit rather than a mere defense to liability; and... it is effectively




      2
       42 U.S.C. § 233.
  3
   Sandoval categorically denies both intentionally inflicting pain upon Schrader and stating
that his actions were in retaliation for plaintiff’s complaint to the Warden. For purposes of
the government’s motion to substitute, however, the district court assumed the facts to be as
Schrader alleged. Thus, for purposes of this appeal, we work from the same assumption.
      4
     Mitchell v. Forsyth, 472 U.S. 511 (1985); Rodriguez v. Sarabyn, 129 F.3d 760 (5th
Cir. 1997); Mitchell v. Carlson, 896 F.2d 128 (5th Cir. 1990) (citing Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949)).
                                             3
lost if a case is erroneously permitted to go to trial.”5 Further, immediate review
is appropriate because our decision turns solely on a question of law. At the

hearing, the district judge made no factual findings with respect to the allegations

in the complaint but accepted as true Schrader’s version of the facts for purposes
of the government’s motion. Our review, therefore, is limited to the legal

consequences that flow from Schrader’s allegations. It is well established that when

an immunity defense turns upon an issue of law rather than on disputed facts, the

denial of a motion to substitute is an appealable “final judgment” within the
meaning of 28 U.S.C. § 1291.6
         Section 233(a) of the Public Health Service Act7 provides immunity from suit
for a PHS employee who causes personal injury to a patient “resulting from the

performance of medical, surgical... or related functions,” provided that the
employee was acting within the scope of his employment at the time of the incident

causing such injury. Consequently, if the employee’s actions occurred within the
course of his duties, a plaintiff’s sole remedy is to proceed against the United States



  5
    Mitchell v. Forsyth, 472 U.S. at 526. Rodriguez v. Sarabyn (concluding that a denial
of immunity under the Westfall Act is immediately appealable); Mitchell v. Carlson (same).
   6
    Behrens v. Pelletier, 516 U.S. 299 (1996) (clarifying Johnson v. Jones, 515 U.S. 304
(1995), and reaffirming that a summary judgment denying a claim of qualified immunity is
immediately appealable when the decision is based on an issue of law); Meyer, et al. v.
Austin Indep. Sch. Dist., 161 F.3d 271, 274 (5th Cir. 1998) (concluding that this court “can
consider a claim... that the legal conclusion the district court drew was incorrect”); Stem v.
Ahearn, 908 F.2d 1,3 (5th Cir. 1990) (recognizing that a denial of qualified immunity on
summary judgment is immediately reviewable only when the defense “turns upon an issue
of law and not of fact”).
   7
       42 U.S.C. § 233(a).
                                              4
under the Federal Tort Claims Act. Unlike the Westfall Act,8 which contains an
exception to the FTCA for a federal employee’s constitutional violations that cause

personal injury to another,9 section 233(a) provides that the FTCA shall be the

exclusive remedy for any civil action that arises out of a PHS employee’s conduct.10
Thus, Schrader may not maintain a separate Bivens action against Sandoval in his

individual capacity but, rather, must proceed under the FTCA as long as Sandoval

was acting within the course of his employment when the alleged injury-causing

conduct occurred.11
         Scope of employment certification by the Attorney General is provided by
42 U.S.C. § 233(c). Like the analogous provision in the Westfall Act, once it is
established that the employee was acting within the scope of his or her employment

at the time of the alleged incident, the United States is to be substituted as the
defendant. Certification by the Attorney General under the Westfall Act has been

held to be non-binding and subject to judicial review.12 Because we perceive no

    8
   28 U.S.C. §§ 2671-2680 (1988).The official name of the Westfall Act is the Federal
Employees Liability Reform and Tort Compensation Act of 1988.
   9
       28 U.S.C. § 2679 (b)(2)(A).
  10
    Section 233(a) specifically provides that the FTCA, “shall be exclusive of any other civil
action or proceeding by reason of the same subject-matter against the officer or employee
(or his estate) whose act or omission gave rise to the claim.” 42 U.S.C. § 233(a) (emphasis
added).
   11
     Carlson v. Green, 446 U.S. 14 (1980) (noting that section 233(a) preempts a Bivens
claim and that the FTCA is a plaintiff’s sole remedy under that section).
        12
        Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995) (holding that
certification by the Attorney General, “does not conclusively establish as correct the
substitution of the United States as defendant in place of the employee.); Garcia v. United
States, 62 F.3d 126 (5th Cir. 1995) (en banc); Rodriguez v. Sarabyn.
                                              5
reason to distinguish between the immunity-conferring provisions of the two
statutes, we conclude that certification by the Attorney General or her designee

under 42 U.S.C. § 233(c) is likewise reviewable by this court and subject to the

same principles of law as is scope certification under the Westfall Act.
            We review de novo the question whether Sandoval was acting within the

scope of his employment at the time of the alleged injury and apply the law of the

state where his conduct occurred.13 Texas respondeat superior principles govern

our analysis. Under Texas law, an employee’s intentional tort is within the scope
of his employment if the act is done, “(1) within the employee’s general authority,
(2) in furtherance of the employer’s business, and (3) for the accomplishment of the
objective for which the employee was employed.”14 Even intentional acts motivated

by personal animosity towards the recipient can result in liability if the act was
foreseeable given the nature of the employee’s duties and is closely connected with

the performance of another act by the employee that can be imputed to the
employer.15 Unquestionably, the performance of a rectal examination was within

       13
      Rodriguez, 129 F.3d at 766; Palmer v. Flaggman, 93 F.3d 196 (5th Cir. 1996);
Williams v. United States, 71 F.3d 502 (5th Cir. 1995); Garcia, 62 F.3d at 127.
   14
    Rodriguez, 129 F.3d at 767 (citing Robertson Tank Lines, Inc. v. Van Cleave, 468
S.W.2d 354, 357 (Tex. 1971)); Palmer, 93 F.3d at 199; Williams, 71 F.3d at 506; Texas &
P. Ry. Co. v. Hagenloh, 247 S.W.2d.236, 239-40 (Tex. 1952).
  15
    Rodriguez, 129 F.3d at 767 (“An employer is liable for the foreseeable intentional and
malicious acts of its employee done within the scope of employment, even if not
authorized.”) (citations omitted); Williams, 71 F.3d at 506 n.10 (“[A]n employee’s willful
and malicious actions made in the scope of his employment, or any acts which are so
connected with and immediately grow out of another act of the employee imputable to the
employer, are imputed to the employer....”); Houston Transit Co. v. Felder, 208 S.W.2d
880 (Tex. 1948) (stating the rule that when an employee’s intentional harmful actions are so
closely connected to the performance of a work-related duty, both acts are treated as one
                                             6
Sandoval’s general authority as a physician’s assistant. The rectal examination was
in furtherance of the Warden’s business because the Warden specifically ordered

Sandoval to re-examine Schrader and because the Warden is ultimately responsible

for ensuring that prisoners receive medical treatment when necessary. Finally, the
diagnosis and treatment of an inmate’s medical conditions are among the purposes

for which Sandoval is employed.

       Despite the presence of these factors, the district court found that Sandoval

had not acted within the scope of his employment at the time of the alleged
incident. This finding appears to be based on Sandoval’s testimony that none of his
supervisors had ever given him permission to inflict pain upon a prisoner who
complained to the Warden about his medical treatment. This conclusion, however,

is contrary to our prior cases construing scope of employment in the federal
immunity context, and contrary to Texas law determining employer liability under

respondeat superior. Because Sandoval allegedly performed the examination in an
unnecessarily rough manner does not take his actions outside the scope of his
employment.16 As a rectal examination is usually an uncomfortable experience, it

is foreseeable that such an exam could be performed, on occasion, in a manner that

inflicts pain upon the recipient. It is also foreseeable that Sandoval could have been
agitated at having to perform a second examination at the Warden’s behest. Even

assuming that Sandoval intended to injure Schrader, inasmuch as the Warden


indivisible tort that may be imputed to the employer).
  16
   Durand v. Moore, 879 S.W.2d 196 (Tex. App. 1994); Houston Transit Co. v. Felder,
208 S.W.2d 880 (Tex. 1948).
                                            7
specifically requested the second examination, Sandoval’s actions were the result
of both his own and his employer’s motives, thereby rendering his conduct within

the scope of his employment.17 Further, the precise way in which Schrader was

allegedly injured could not be more closely connected with Sandoval’s
performance of his authorized duty as a physician’s assistant to perform a

medically necessary rectal exam of an inmate.18

            We conclude and hold, therefore, assuming Sandoval intentionally injured

Schrader while performing the second examination, that his actions were
nonetheless within the scope of his employment, and that the government’s
substitution motion should have been granted.
            The order of the district court is REVERSED, the motion to substitute the

United States as defendant is GRANTED, and the matter is REMANDED for
further proceedings consistent herewith.




  17
    Howard v. American Paper Stock Co., 523 S.W.2d 744, 747 (Tex. App. 1975) (“If the
purpose of serving the master’s business actuates the servant to any appreciable extent his
acts are within the scope of the employment.”).
       18
     Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446 (Tex. App. 1996) (finding that
alleged sexually assaultive acts of fast-food restaurant managers were not closely connected
to their employment-related duties to hold employer liable);Houston Transit Co., 208
S.W.2d at 881 (concluding that bus driver’s striking of motorist with money-change box
during argument over motor vehicle accident was closely connected to his work-related duty
to obtain motorist’s information after accident occurred).
                                             8
