Eleventh Circuit Clarifies Act-By-Act Westfall Analysis and Reaffirms Broad Judicial Immunity

1. Introduction

In Jonathan Mullane v. Federico A. Moreno, the Eleventh Circuit confronted a kaleidoscope of tort allegations arising from a sour internship at the U.S. Attorney’s Office for the Southern District of Florida (USAO). The plaintiff, Jonathan Mullane—a law student—claimed that his supervisor (AUSA Alison Lehr), the Acting U.S. Attorney, an SEC lawyer, and U.S. District Judge Federico A. Moreno conspired to end his internship, defame him in the legal press, and derail his burgeoning career. The district court dismissed all claims, substituted the United States under the Westfall Act, and found Judge Moreno absolutely immune. On appeal, the Eleventh Circuit largely affirmed but carved out a critical exception: a federal employee’s Westfall immunity must be assessed act by act, not in blanket fashion.

2. Summary of the Judgment

Substitution under the Westfall Act. The panel agreed that most alleged conduct by Lehr, Greenberg and Roberts fell within the scope of their federal employment, warranting substitution of the United States. However, one discrete act—Lehr’s alleged e-mailing of a hearing transcript to the media—was deemed plausibly outside that scope.
Judicial Immunity. Judge Moreno’s scheduling of a hearing, recusal, and subsequent letter to the University of Miami School of Law were held to be “judicial acts” protected by absolute judicial immunity, even after recusal.
Jurisdiction & Voluntary Dismissal. Mullane’s Rule 41(a)(1)(A)(i) dismissal of claims against the United States produced a final, appealable order; the so-called “Ryan rule” did not bar appellate review.
Disposition. Affirmed in part, reversed in part, and remanded solely to determine (a) whether Lehr in fact sent the transcript to the press, and (b) whether limited discovery is warranted on that narrow issue.

3. Analysis

3.1 Precedents Cited

Westfall v. Erwin, 484 U.S. 292 (1988) – Established federal-employee immunity when actions are both discretionary and within scope.
Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act) – Statutory response making FTCA the exclusive remedy for torts “arising out of” acts within scope.
Osborn v. Haley, 549 U.S. 225 (2007) – Clarified substitution procedure; U.S. remains defendant until a scope challenge is resolved.
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) – Certification is judicially reviewable.
Nadler v. Mann, 951 F.2d 301 (11th Cir. 1992) – Antecedent Eleventh Circuit decision finding that an AUSA’s leak to the press was outside employment scope; heavily relied upon here.
Florida respondeat superior cases such as Iglesia Cristiana La Casa del Señor, 783 So. 2d 353 (Fla. App. 2001), forming the operative state-law test.
Judicial immunity authorities: Bradley v. Fisher, 80 U.S. 335 (1871); Stump v. Sparkman, 435 U.S. 349 (1978).

3.2 Legal Reasoning

(a) Act-by-Act Scope Inquiry. The panel stressed statutory language—“act or omission” and “incident”—to conclude that courts must parse each discrete action when reviewing a certification. Relying on First, Fourth, Sixth, and Second Circuit precedents, the court rejected an “all-or-nothing” approach.

(b) Florida Test Applied. Florida follows the Restatement (Second) of Agency: (1) nature of the act; (2) time/space limits; (3) purpose to serve employer. Most of Lehr’s alleged tasks—evaluating an intern, communicating with the law school, overseeing potential conflicts—fit comfortably. But transmitting a transcript to the media, from a personal account, about a non-USAO civil case, is (i) not of a kind AUSA’s perform, (ii) outside USAO time/space, and (iii) served no USAO interest.

(c) Judicial Immunity Axis. Whether Judge Moreno’s post-recusal letter was “judicial” turned on functionality. Canon 3(B)(5) of the Code of Conduct directs judges to act upon lawyer misconduct. Reporting an almost-lawyer’s possible misdeeds was deemed part and parcel of the court’s obligation to safeguard the integrity of the bar.

(d) Rule 41 and Appellate Jurisdiction. The panel harmonized recent circuit precedent (Baxter v. Santiago-Miranda) to hold that dismissing “all claims against one party” equals dismissal of an “action,” yielding final judgment notwithstanding the disfavored “Ryan rule.”

3.3 Impact

Westfall Litigation. Plaintiffs can now argue for piecemeal re-substitution—keeping some state-law claims alive personally against the employee—even when most conduct was within scope.
Federal Employees. Prosecutors and agency lawyers must recognise that discretionary acts such as media outreach or personal email communications can cost them absolute immunity.
District Courts. Must conduct granular, fact-sensitive inquiries; may allow tightly-focused discovery on disputed acts (the panel endorsed a limited, controlled discovery model).
Judiciary. Reinforces that judges retain immunity for proactive ethics reporting, even after recusal, so long as the conduct is tethered to the proceeding and judicial functions.
Procedural Strategy. Shows the power—and risk—of voluntary Rule 41 dismissals to generate appellate jurisdiction; practitioners must assess whether a Westfall-substituted United States defendant truly adds value when sovereign-immunity exceptions loom.

4. Complex Concepts Simplified

Westfall Act Certification: A formal statement by the Attorney General (or delegate) that the employee was acting within the scope of federal employment. Creates prima facie immunity and substitutes the United States as defendant.
Scope-of-Employment Test (Florida): Ask three things: (1) Was the act the type the employee was hired to do? (2) Was it roughly within work time & place? (3) Did the employee intend, at least partly, to serve the employer? If any factor fails, immunity can falter.
Act-by-Act Analysis: The court must examine each discrete alleged wrongdoing separately; one act can be inside scope, another outside. Immunity is not monolithic.
Judicial Immunity: Absolute protection for judges performing “judicial acts” within jurisdiction—even if they err or act maliciously. Function, not form, governs; tasks tied to supervising proceedings or the legal profession qualify.
Rule 41(a)(1)(A)(i) Dismissal: Allows a plaintiff to dismiss an “action” before the defendant files an answer or summary-judgment motion. In multi-defendant suits, dismissing all claims against a single defendant counts as dismissing an “action.”

5. Conclusion

Mullane sets a prominent precedent: Westfall immunity is not an indivisible shield but a garment sewn from individual threads of conduct. Courts within the Eleventh Circuit must now pick at those threads—affirming immunity where acts serve the sovereign, yet exposing federal employees to personal liability when they stray into private vendettas or media grandstanding. Simultaneously, the opinion fortifies judicial immunity, recognising that a judge’s duty to police ethics may extend beyond the moment of recusal. The interplay of these two doctrines—granular Westfall analysis and robust judicial immunity—will shape tort litigation against federal actors, refine discovery practice, and influence ethical oversight for years to come.