dissenting:
I respectfully dissent.
I would hold that the Attorney General’s certification that Admiral Carter was acting within the scope of his employment precludes consideration of that issue by the courts. In addition, even if consideration is not precluded, I would hold that the district court did not give proper weight in making its factual findings either to the Virginia presumption in favor of finding acts of an agent to be within the scope of employment, or the Navy Regulation putting Admiral Carter on duty “at all times.” Therefore, I would hold those findings to be clearly erroneous.
I
By the plain language of 28 U.S.C. § 2679(d)(2), no discretion is given to the district court. If the Attorney General certifies that the defendant employee was acting within the scope of his employment, “the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2).
*187The courts of appeal are split regarding this issue. The First, Third, Sixth, and Eleventh Circuits follow the course taken by the district court and do not defer to the Attorney General’s determination.1 See S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538 (11th Cir.1990); Melo v. Hafer, 912 F.2d 628 (3d Cir.1990), cert. granted, apparently on other grounds, — U.S. —, 111 S.Ct. 1070, 112 L.Ed.2d 1176 (1991); Nasuti v. Scannell, 906 F.2d 802 (1st Cir.1990); Arbour v. Jenkins, 903 F.2d 416 (6th Cir.1990). The Fifth and Tenth Circuits follow Congress’ express language and give conclusive effect to the Attorney General’s certification. See Mitchell v. Carlson, 896 F.2d 128 (5th Cir.1990); Aviles v. Lutz, 887 F.2d 1046 (10th Cir.1989).2 In my opinion, a sufficient reason for reversal is the district court’s failure to give conclusive effect to the Attorney General’s certification of scope of office or employment.3
II
Even if the district court had the authority to disregard the Attorney General’s certification of scope of office or employment, I conclude that its factual finding that Admiral Carter’s actions were outside the scope of employment was clearly erroneous.
As the majority correctly states, Virginia’s rules of respondeat superior govern the determination of whether Admiral Carter was acting within the scope of his employment. Maj. op. at 184. In Virginia, once the employment relationship has been established (and it is conceded here), the party opposing a finding of respondeat superior has the burden of proving the employee was outside of the scope of employment when the incident occurred. See, e.g., Slaughter v. Valleydale Packers, Inc., 198 Va. 339, 343-44, 94 S.E.2d 260, 263-64 (1956); Alvey v. Butchkavitz, 196 Va. 447, 453, 84 S.E.2d 535, 539 (1954) (“We have repeatedly held that where the relationship of master and servant has been established the burden is on the master to prove that the servant was not acting within the scope of his employment when he committed the act complained of....)”; Crowell v. Duncan, 145 Va. 489, 501, 134 S.E. 576, 579 (1926) (“Where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority, the doubt will be resolved against the master. . . .”). Admiral Carter established that he was employed by the United States. Therefore, the burden was on Johnson to prove that Admiral Carter’s actions were outside of the scope of employment. The district court thus erred in not applying the Virginia presumption to this case.
In Virginia an act is deemed to be within the scope of employment if:
(1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and
(2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or from *188some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, “and did not arise wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.”
Kensington Assoc. v. West, 234 Va. 430, 432, 362 S.E.2d 900, 901 (1987) (citations omitted).
It cannot be said from anything in this record that Admiral Carter’s summoning of a base police officer arose “wholly from some external, independent, and personal motive” on his part. Undisputed contemporaneous written records corroborate that Admiral Carter had previously and consistently expressed his displeasure with the conduct of the base police, and that he took action to remedy the situation. Upon taking command of the Atlantic Fleet, Admiral Carter became aware of problems with the quality of life of naval personnel on the bases around Norfolk and attempted to improve the situation. The conduct of the base police had been a concern of his for quite some time. As early as November 16, 1988, he expressed his concerns to Rear-Admiral Pappas about reports he had heard concerning rude conduct by base police. He expressed those concerns on numerous occasions. On November 22, 1988, Admiral Carter noted that Rear Admiral Pappas “[t]old me results [of] looking into discourtesy.... Stories on police hard to pin down. Not many H.L. complaints. People may feel its their word against police so its no use.” On February 2, 1989, Carter noted that he had told Pappas that “MG Doran USAF is another who has had probs w/ police discourtesy to his guests on base. Realize many of police are great, but evidence is there are a few out of line. Need identify correct.” Carter’s notes indicate an increasing level of frustration with the inability to correct the problems of police rudeness because of difficulties in identifying the personnel who were causing the problems. Therefore, it is not surprising that he took direct and immediate action when his wife was able to identify a policeman who had acted rudely.
Both the majority and the district court gave controlling weight to the fact that the “incident occurred in Admiral Carter’s garden where, dressed in casual civilian clothing, he was engaged in a quintessential civilian activity.” Maj. op. at 185. The majority decision even admits that if the incident had occurred in Admiral Carter’s office “during the work week” and was conducted pursuant to regulations, “there is no question but he would have been acting within the scope of his authority.” Maj. op. at 185. Where and when Admiral Carter exercises his authority is of no moment, however. By Navy Regulations, Admiral Carter, while on active service, is “at all times subject to naval authority” and “may ... exercise authority over all persons who are subordinate to [him].” 32 C.F.R. § 700.811(a) (1990). Therefore, Admiral Carter had the authority to summon a base police officer at any time. If he so chose, Admiral Carter could direct movements of the Atlantic Fleet from his garden, dressed in civilian clothing. His attire and location do not determine whether his acts were within the scope of his authority. He patently had the authority to summon Johnson to his home and he exercised that authority.
The allegedly tortious incident can not be looked at in isolation from the context in which it occurred. As we stated in Wallen v. Domm, 700 F.2d 124, 126 (4th Cir.1983), a pre-Westfall Act common law immunity case:
Few government officials are authorized to commit torts as a part of their line of duty, but to separate the activity that constitutes the wrong from its surrounding context — an otherwise proper exercise of authority — would effectively emasculate the immunity defense. Once the wrongful acts are excluded from an exercise of authority, only innocuous activity remains to which immunity would be available. Thus, the defense would apply only to conduct for which it is not needed.
We also made clear that “[application of the immunity is not affected by whether the injury was committed in good faith, negligently, or even intentionally.” Wallen v. Domm, 700 F.2d 124, 126 (4th Cir.1983).
*189The district court “found it incredible that the United States Attorney could make an affidavit that the words of the Admiral that the policeman who had stopped the Admiral’s daughter for speeding was ‘a liar/ were words spoken while the Admiral was acting within the scope of his employment as an employee of the United States.” But the district court improperly looked at the words spoken in isolation from the surrounding acts. The question is, was the underlying conversation between Johnson and Admiral Carter “an otherwise proper exercise of authority” by Admiral Carter, not, as the majority holds, whether Admiral Carter spoke improperly during the conversation.
In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court stated it is “the relation of the act complained of to ‘matters committed by law to his control or supervision’ — which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from suit.” 360 U.S. 564, 573-74, 79 S.Ct. 1335, 1340-41, 3 L.Ed.2d 1434 (1959) (citation omitted). Control of the base policies was a matter committed by law to Admiral Carter’s control or supervision, therefore, in my opinion, his activities were within the scope of his employment.
I should also add that I think the district court erred in holding that “to substitute the United States as the sole defendant, and to then dismiss the plaintiff’s claims ... [would] completely ignore any semblence of constitutional ‘due process’ to the plaintiff on his claim of alleged slander and libel.” The Supreme Court, in United States v. Smith, — U.S. —, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991), while it did not phrase its reasoning in constitutional terms, expressly rejected recovery on that very account and held that government employees are immunized from suit “even when an FTCA exception precludes recovery against the Government.” — U.S. at —, 111 S.Ct. at 1184-85.
III
The fact that I have not addressed at any length the Feres doctrine or the Civil Service Reform Act should not indicate that I agree with either part of the majority decision with respect to those theories, for I do not.
Briefly, I think the Feres doctrine should apply for the reasons stated in United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985), in construing Feres, for I think the claim here is “... the type of claim[] that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." (italics in original). I further agree with Judge Murnaghan’s language in his concurrence in Thigpen v. United States, 800 F.2d 393, 403 (4th Cir.1986) where he states that “[a]fter Shearer, then, the Feres doctrine must mean that no waiver of sovereign immunity may be found with respect to any claim, whether brought by a serviceman or a civilian, that challenges a military ‘decision of command’ relating to the effective management of military personnel and resources.” With respect to the Civil Service Reform Act, that Act was not mentioned until appeal and should not be considered by us. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir.1970).
As I have indicated above, however, I am of opinion that we should not reach either the Feres doctrine or the Civil Service Reform Act, for Admiral Carter should not be subjected to a claim for liability in a civil court in this case because of the provisions of the Westfall Act.
IV
This case involves much more than merely the construction of the federal statute and the Virginia law on scope of employment. It has to do with the ability and obligation of one of the principal officers of the United States to perform his duty unhampered by having to answer for the same in a civil court. No one can seriously contend that Admiral Carter would not have the authority to order the movement of ships and aircraft from the same garden involved here (which is owned by the government) on N.O.B. Norfolk at any *190hour of the day or night, for, pursuant to Navy Regulations “while on active service” he might “exercise authority over all persons who are subordinate” to him. It is just as true, and even the majority admits, that Admiral Carter had authority over the base policeman of N.O.B. Norfolk who is involved in this case. Since Admiral Carter had authority to control the base policeman in the performance of his (Admiral Carter’s) duty, then he had the authority to perform that duty other than in a manner entirely in accord with public sensibilities (even if the words charged were uttered, which is admitted for argument).
The manner in which Admiral Carter performed his duty should not be subject to review by a civil court under the Westfall Act upon proper certification, as here, and that is what the Westfall Act is all about. I am of opinion that it should be, and it is, entirely within the province of Congress to provide, as it has, that the employment of certain officers and servants of the United States, such as Admiral Carter, is of such importance to the nation that their acts within the scope of their office or employment are shielded from liability unless Congress has specifically provided otherwise. I am further of opinion that it is entirely within the province of Congress to provide that the certification of the Attorney General conclusively establishes not only the scope of office or employment for the purposes of removal but also conclusively establishes that “[u]pon certification” “[s]uch action” “shall be deemed to be an action ... brought against the United States ... [which] shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2). And I also would construe literally and within the authority of Congress the provisions of § 2679(b)(1) that “[a]ny other civil action or proceeding [except under §§ 1346(b) and 2672] for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.”
An analogy close to home will serve to make my point. 28 U.S.C. § 452 provides that the courts of the United States will always be in session. And there is not a one of us who has not in practice applied for and received injunctive or other like extraordinary relief from a judge, state or federal, at his home, and not on the bench or in his office. And the hour of the day or night does not make any difference, nor do Saturdays, Sundays, or holidays, as we all know. Why a judge, when at home, can issue an order of unquestionable validity, but Admiral Carter should be forbidden to take precisely the same action as an officer of the executive rather than the judicial branch, is not reasonably explainable, I think.
The Court, indeed, has discussed the principle at issue here in the course of its opinion in the famous case of Cunningham v. Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890) at page 56, 10 S.Ct. at 665:
Important cases are often argued before the judge at any place convenient to the parties concerned, and a decision of the judge is arrived at by investigations made in his own room, wherever he may be, and it is idle to say that this is not as much the performance of judicial duty as the filing of the judgment of the clerk, and the announcement of the result in open court.
In Cunningham, the Court, without benefit of a statute, discharged from state custody the deputy marshal who was held on a state murder charge for killing an assailant apparently bent upon taking the life of Mr. Justice Field. The incident took place in the dining car of a train between Los Angeles and San Francisco while Mr. Justice Field was going from one place of holding court to another. But since, in the words of the Court, important cases may be decided in a judge’s “own room” wherever he may be and this, “in the performance of judicial duty”, I think “it is idle” to suggest that Admiral Carter’s reprimand of the base policeman, which the majority admits would have been valid if administered in Admiral Carter’s office, and pursuant to regulation, was invalid merely because it was administered in the Admiral’s garden on the base at N.O.B. Norfolk. Any such decision can only serve to hamstring one of the principal officers of the United States in the performance of his duty.
*191ORDER
Oct. 9, 1991.
Upon a request for a poll of the court, a majority of the judges in regular active service voted to rehear this case en banc.
It is accordingly ORDERED that the opinion of the panel, decided the eighth day of July, 1991, 939 F.2d 180, shall be, and it hereby is, vacated.
It is FURTHER ORDERED that the clerk will see that the case is placed on the en banc calendar in the regular course of business.
. These courts believed there would be potential separation of powers problems if the Attorney General’s scope certification was given conclusive effect. I do not agree.
We recently held that, in ordinary circumstances, a reduction in sentence for assisting the government can only occur upon motion of the government as stated in the sentencing guidelines. United States v. Francois, 889 F.2d 1341 (4th Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990). We found no separation of powers problem with vesting absolute discretion in the prosecutor in deciding whether to file a motion or not.
. The Ninth Circuit held that § 2679(d) did not apply if to do so would deprive the plaintiff of his remedy against the government. Smith v. Marshall, 885 F.2d 650 (9th Cir.1989). But the Supreme Court rejected the Ninth Circuit approach and reversed sub nom. United States v. Smith, — U.S. —, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). The Court held that “Congress recognized that the required substitution of the United States as the defendant in tort suits filed against Government employees would sometimes foreclose a tort plaintiffs recovery altogether.” — U.S. at —, 111 S.Ct. at 1185.
.The majority states that the government conceded that certification by a United States Attorney is subject to review for substitution purposes. While the government’s position is unnecessarily ambivalent, it should be relieved of a concession improvidently made. See Denny v. Seaboard Lacquer, Inc., 487 F.2d 485, 492 (4th Cir.1973).