Post-Filing FTCA Presentment Cannot Cure Jurisdiction; Limited Discovery on Westfall Act Certifications Requires a Factual Divergence from the Complaint

Court: United States Court of Appeals for the Third Circuit

Date: October 17, 2025

Case: Scott Lykens v. Colette S. Peters, et al., No. 25-1393 (3d Cir.)

Disposition: Affirmed (non-precedential)

Introduction

This Third Circuit decision, while non-precedential, offers a clear and practical roadmap for litigants navigating Federal Tort Claims Act (FTCA) suits arising from alleged misconduct by federal employees—here, Bureau of Prisons (BOP) officials—especially where removal and substitution under the Westfall Act are in play.

Scott Lykens, a former federal prisoner, alleged that BOP officials miscalculated his First Step Act time credits, causing an overdetention of approximately 45 days. He sued individual BOP officials in Pennsylvania state court, asserting a separate state-law false imprisonment count for each day of alleged overdetention and seeking substantial damages. The United States removed and then certified that the officials acted within the scope of their employment, prompting substitution of the United States and an FTCA posture. The government moved to dismiss for lack of subject-matter jurisdiction on the ground that Lykens did not first present his claim administratively as required by 28 U.S.C. § 2675(a).

On appeal, Lykens did not pursue the exhaustion issue. Instead, he challenged (1) the government’s removal before formal substitution, (2) the timeliness of removal under 28 U.S.C. § 1446(b), and (3) the district court’s acceptance of the Westfall Act scope-of-employment certification without permitting limited discovery. The Third Circuit rejected each challenge and affirmed dismissal without prejudice for lack of subject-matter jurisdiction because the FTCA’s administrative presentment requirement was not satisfied before suit.

Summary of the Opinion

Removal before substitution: Even if premature, any defect was cured by subsequent substitution of the United States well before judgment. Under Caterpillar Inc. v. Lewis and Osborn v. Haley, retention of the case in federal court was proper once the substitution occurred.
Timeliness of removal: The Westfall Act expressly authorizes removal “at any time before trial,” displacing the 30-day deadline in the general removal statute. See 28 U.S.C. § 2679(d)(2).
Scope-of-employment certification and discovery: The government’s certification—though succinct—was prima facie sufficient. Limited discovery is warranted only if the certification rests on a materially different factual understanding than the complaint. General allegations of illegality (even intentional or criminal acts) do not defeat scope-of-employment under Pennsylvania law when the conduct is incidental to job duties.
FTCA administrative presentment: The FTCA’s pre-suit presentment requirement is jurisdictional and cannot be waived or cured by a late-filed administrative claim after litigation begins. Because Lykens undisputedly failed to present his claim to the BOP before filing suit, dismissal for lack of jurisdiction was required.

Detailed Analysis

1) Procedural Background and Framing

Lykens pled guilty to federal tax offenses and served approximately 15 months. After release, he sued individual BOP officials in state court for false imprisonment, alleging a 45-day overdetention due to misapplication of First Step Act time credits. Anticipating substitution under the Westfall Act, the United States removed the case to federal court. The United States Attorney’s Office, via a delegated official consistent with 28 C.F.R. § 15.3, certified that the named employees acted within the scope of their employment. The United States then moved to dismiss on the ground that the FTCA provides the exclusive remedy and requires administrative presentment before suit—a step Lykens had not taken.

The magistrate judge recommended dismissal for lack of jurisdiction and rejection of the remand motion. The district court largely adopted the recommendation and dismissed without prejudice. On appeal, Lykens focused on alleged removal defects and the certification, but not on exhaustion.

2) Removal and Substitution: Prematurity and Timeliness

Premature removal does not doom the case if cured before judgment. The court acknowledged that removal by the United States before formal substitution “put the cart before the horse,” but any error was harmless because the jurisdictional prerequisites were satisfied before judgment. The Supreme Court’s decision in Caterpillar Inc. v. Lewis holds that an error in failing to remand an improperly removed case is not fatal if federal jurisdictional requirements are met when judgment is entered. Here, the government’s later, proper substitution cured any earlier defect.

Osborn v. Haley confirms federal forum once the certification issues. The Third Circuit emphasized Osborn’s teaching that, for forum purposes, an Attorney General (or delegate) certification under the Westfall Act is dispositive; the statute provides for removal and substitution that “assure” a federal forum. The United States effected substitution long before judgment, indeed before briefing on the remand motion concluded. Retention was therefore proper.

“Any time before trial” means what it says. On timeliness, the Westfall Act expressly allows removal at any time before trial, 28 U.S.C. § 2679(d)(2), which displaces the 30-day clock in § 1446(b) in this context. Because trial had not begun, removal was timely under the Westfall Act regardless of § 1446(b)’s general deadline.

3) Challenging the Westfall Act Certification: When is Limited Discovery Appropriate?

Certifications are reviewable but ordinarily need no reasons. The Supreme Court (Gutierrez de Martinez v. Lamagno) and Third Circuit (Schrob; Melo) have long held that Westfall certifications are judicially reviewable and not conclusive—but they typically state no reasons and are still given prima facie effect.

Melo II’s procedure governs: The district court should first examine whether the certification states its basis. If the certification rests on a different factual understanding than the complaint, the plaintiff may obtain reasonable, targeted discovery and must then come forward with competent evidence that the employee acted outside the scope of employment. If the plaintiff cannot proffer such evidence, substitution must be ordered; if the plaintiff does proffer such evidence, the court should conduct an evidentiary hearing on the scope question.

Brumfield controls when the certification tracks the complaint: Where the certification makes clear it is based on the complaint (as here, by stating the certifier read the complaint and made the determination based on the information in it), limited discovery is not unlocked absent a showing that the certification is premised on a different factual narrative than the complaint. Mere conjecture that discovery might unearth wrongdoing is insufficient.

Alleged intentional or criminal conduct does not, by itself, defeat “scope of employment.” Under Pennsylvania law (McGuire ex rel. Neidig v. City of Pittsburgh; Restatement (Second) of Agency § 228; Butler v. Flo-Ron; Shuman Estate v. Weber), conduct may be within the scope of employment if: (a) it is of the kind the employee is employed to perform, (b) occurs substantially within authorized time and space limits, and (c) is actuated at least in part by a purpose to serve the employer. Even unauthorized, intentional, or criminal acts can fall within the scope if they are clearly incidental to the employer’s business.

Application to the pleadings: Lykens alleged that officials misapplied First Step Act credits and even “lied” or “falsified” documents to cover up errors. But the conduct he alleged—calculating credits, maintaining records, communicating about credits—falls within BOP officials’ ordinary job functions. Thus, even taking his allegations as true for the scope inquiry, they remained “clearly incidental” to BOP duties and within scope under Pennsylvania law. Because the certification did not rest on a different set of facts than the complaint, the district court did not abuse its discretion in denying limited discovery and in accepting the certification’s prima facie effect.

4) FTCA Administrative Presentment: A Jurisdictional Prerequisite Not Cured by Post-Filing Efforts

Exclusive remedy and mandatory presentment. Once the United States is substituted under the Westfall Act, the FTCA governs as the exclusive remedy for damages arising from the alleged tortious acts of federal employees acting within the scope of employment. The FTCA requires a claimant to first present the claim to the appropriate agency and receive a final denial (or wait six months) before filing suit. See 28 U.S.C. § 2675(a).

Jurisdictional, non-waivable, and not curable post hoc. Citing Lightfoot v. United States and Roma v. United States, the court reiterated that § 2675(a)’s presentment requirement is jurisdictional and cannot be waived. A post-filing administrative claim does not cure the defect in the pending action. Because Lykens undisputedly failed to present his claim to BOP before filing suit, the district court lacked subject-matter jurisdiction and properly dismissed without prejudice.

Precedents and Authorities Cited, and Their Influence

Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996): Errors in removal that do not affect federal jurisdiction at the time judgment is entered are not fatal. This principle allowed the Third Circuit to treat any premature removal as harmless once the United States properly substituted before judgment.
Osborn v. Haley, 549 U.S. 225 (2007): Westfall Act certification and substitution are dispositive for ensuring a federal forum. The decision supports retention in federal court once the certification issued.
28 U.S.C. § 2679(d)(2): Westfall Act removal may occur “at any time before trial,” overriding § 1446(b)’s 30-day limit in this context.
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995): Westfall certifications are judicially reviewable and not conclusive; however, certifications often lack stated reasons and still carry prima facie weight.
Schrob v. Catterson, 967 F.2d 929 (3d Cir. 1992) and Melo v. Hafer, 912 F.2d 628 (3d Cir. 1990) and 13 F.3d 736 (3d Cir. 1994) (Melo II): Third Circuit guidance on how district courts should evaluate challenges to certifications, when to allow limited discovery, and how to hold evidentiary hearings if necessary.
Brumfield v. Sanders, 232 F.3d 376 (3d Cir. 2000): Affirmed denial of limited discovery where the Attorney General’s certification tracked the complaint; clarified that generic allegations do not unlock discovery and that unauthorized or intentional misconduct can still lie within scope.
McGuire ex rel. Neidig v. City of Pittsburgh, 285 A.3d 887 (Pa. 2022): Pennsylvania’s scope-of-employment test (Restatement (Second) of Agency § 228) governs the scope inquiry for these state-law tort claims.
Butler v. Flo-Ron Vending Co., 557 A.2d 730 (Pa. Super. Ct. 1989) and Shuman Estate v. Weber, 419 A.2d 169 (Pa. Super. Ct. 1980): Intentional or criminal acts can be within scope if incidental to employment.
Lightfoot v. United States, 564 F.3d 625 (3d Cir. 2009) and Roma v. United States, 344 F.3d 352 (3d Cir. 2003): FTCA presentment is jurisdictional and not subject to waiver; post-filing presentment does not cure the defect in the pending action.
Ario v. Underwriting Members of Syndicate 53, White-Squire v. U.S. Postal Service, CNA v. United States: Standards of review applied by the Third Circuit (plenary for jurisdiction and remand, clear error for facts, abuse of discretion for discovery).

Legal Reasoning: How the Court Reached Its Decision

Removal defects cured: Even if the United States removed before it was formally a party, subsequent Westfall substitution occurred before judgment. Caterpillar and Osborn allowed the court to treat any earlier defect as cured; thus, there was no reversible error in denying remand.
Statutory timeliness under the Westfall Act: Section 2679(d)(2) expressly authorizes removal at any time before trial in cases covered by certification. This specific provision controls over the general 30-day removal rule in § 1446(b).
Certification challenge failed: The government’s two-sentence certification stated that the certifier read the complaint and determined the employees acted within the scope of their employment. Under Melo II and Brumfield, that suffices as prima facie evidence. Lykens did not demonstrate that the certification rested on a different understanding of the facts than his complaint. Nor did he proffer specific competent evidence to suggest conduct outside the scope of employment. Allegations of intentional wrongdoing remained within scope under Pennsylvania law because they were incident to BOP officials’ job duties concerning time-credit calculation and recordkeeping. Denial of limited discovery was therefore not an abuse of discretion.
FTCA’s jurisdictional bar foreclosed the suit: With United States substitution, the FTCA provided the exclusive remedy. Lykens did not present his claim administratively before filing suit, a non-waivable, jurisdictional prerequisite under § 2675(a). His belated administrative filing months after suit could not cure the jurisdictional defect in the extant action. Dismissal without prejudice was therefore required and appropriate.

Impact and Practical Implications

For plaintiffs contemplating damages suits against federal employees

Exhaust first, then sue: Under § 2675(a), you must present your claim to the appropriate federal agency and wait for a final denial (or 6 months of inaction) before filing an FTCA suit. Filing first and presenting later will lead to dismissal for lack of jurisdiction.
Expect federal forum: If you sue federal employees for state-law torts, the United States will likely certify scope and remove under the Westfall Act. Removal can occur at any time before trial—even beyond § 1446(b)’s 30 days.
Challenging certification is a high bar: Limited discovery is not available simply because you allege illegality. You must identify a concrete factual divergence between your complaint and the certification or present competent evidence suggesting the conduct was outside the scope. Allegations tied to ordinary job functions (like calculating time credits) typically stay within scope, even if you characterize them as intentional or criminal.
Future hurdles beyond exhaustion: Even after proper presentment, FTCA claims must navigate exceptions (e.g., the discretionary function exception) and prove the elements of the tort (e.g., false imprisonment). For BOP-related overdetention claims, litigants should anticipate government defenses grounded in statutory mandates and policy discretion.

For the government and courts

Certifications and efficient case management: This opinion reinforces Melo II and Brumfield’s staged approach: prima facie certification, targeted discovery only upon a specific factual divergence, and an evidentiary hearing only where necessary. The approach curbs fishing expeditions while preserving judicial review when warranted.
Removal clarity: The decision underscores Osborn’s assurance of a federal forum for certified Westfall cases and clarifies that § 2679(d)(2)’s “any time before trial” language displaces general removal timing limits.
Non-precedential but instructive: Although not binding, the opinion offers a concise, practitioner-friendly synthesis of Third Circuit doctrine on Westfall certification challenges and FTCA presentment.

Contextual note for First Step Act credit litigation

Claims for miscalculation of First Step Act time credits often arise while a prisoner seeks release via habeas corpus. After release, damages claims against individual officers will nearly always be recast as FTCA suits via Westfall substitution. This case highlights the necessity of completing FTCA administrative presentment before suit to avoid jurisdictional dismissal.

Complex Concepts Simplified

FTCA (Federal Tort Claims Act): The statute that allows people to sue the United States for certain torts committed by federal employees acting within the scope of their employment. It requires a pre-suit administrative claim to the relevant agency.
Administrative Presentment (§ 2675(a)): Before suing under the FTCA, you must submit your claim to the agency, stating the facts and a sum certain in damages. You cannot file suit until the agency denies the claim or six months pass without a decision. Filing first and presenting later does not fix jurisdiction in that case.
Westfall Act (§ 2679): Provides that the United States is substituted as the defendant when federal employees are sued for acts within the scope of their employment. The Attorney General or a delegate issues a certification to that effect. The Act also authorizes removal to federal court “at any time before trial.”
Scope-of-Employment Certification: A formal statement by the Attorney General (or delegate) that the employee acted within the scope of federal employment. It is prima facie correct but subject to judicial review. Limited discovery is allowed only if the certification relies on facts different from the complaint or the plaintiff offers competent contrary evidence.
Scope of Employment (Pennsylvania law): Conduct is within scope if it is the kind the employee is hired to perform, occurs within time/space limits of the job, and is motivated at least in part by serving the employer. Even unauthorized or intentional misconduct may be within scope if incidental to employment.
Removal: Moving a case from state court to federal court. In Westfall cases, removal can happen any time before trial upon certification, superseding the standard 30-day removal rule.
Jurisdictional Requirement: A rule that goes to the court’s power to hear a case. If unmet (e.g., FTCA presentment), the court must dismiss; the defect cannot be waived or cured in that pending action by later developments.

Key Takeaways

FTCA presentment is a jurisdictional prerequisite that must be satisfied before suit; a post-filing administrative claim does not cure the defect in the pending action.
In Westfall Act cases, the United States may remove “at any time before trial,” so § 1446(b)’s 30-day limit does not apply.
Westfall certifications are judicially reviewable, but they are prima facie valid; limited discovery is permitted only upon a concrete factual divergence or competent contrary evidence.
Under Pennsylvania law, even intentional or criminal acts can be within the scope of employment when they are incidental to the employee’s job functions.
Any prematurity in removal is harmless if substitution occurs before judgment and federal jurisdiction is proper at that time.

Conclusion

The Third Circuit’s opinion provides a crisp reaffirmation of three interlocking doctrines that shape litigation against federal employees: (1) the Westfall Act’s removal and substitution mechanics ensure a federal forum and can be invoked at any time before trial; (2) challenges to scope-of-employment certifications are tightly cabined to genuine factual disputes, not speculation, and do not invariably permit discovery; and (3) most importantly, the FTCA’s pre-suit administrative presentment requirement is jurisdictional and not curable by post-filing administrative efforts within the same action.

For FTCA practitioners—and especially for claimants alleging overdetention tied to First Step Act credits—the case underscores the imperative to complete administrative presentment before filing a lawsuit and to anticipate Westfall substitution and removal. While non-precedential, the decision synthesizes and applies Supreme Court and Third Circuit authority in a way that will guide district court practice and litigant strategy in this recurring class of cases.