concurring:
I concur in the result although differing with the majority as to the route by which that result was reached in two respects. First, B & A argues that if the government continues to be immune from an action for intentional tort (libel being such a tort) there is no remedy against the United States. If it is only the existence of such remedy which precludes an action against the employee pursuant to 28 U.S.C. § 2679(b)(1), then the statutory preclusion should be inoperative and the action against the defendant employees should lie. Were this not so, B & A contends, federal employees acting within the scope of their employment could commit intentional torts with impunity leaving their victims without recourse. Although this contention has logical consistency and appeal as far as it goes, it does not go far enough in that it fails to take account of 28 U.S.C. §§ 2679(d)(1), (4) and 1346(b).
Effective November 18,1988, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act (“The Act” or “The Westfall Act” or “The Liability Reform Act”), P.L. 100-694. The declared purpose of that Act was to protect federal employees from the potential liability to which they were exposed as a result of the decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which dramatically changed the law by which the personal liability of federal employees was governed. Prior to Westfall federal employees were absolutely immune from personal liability for common law torts so long as they were acting within the scope of their employment at the time the injury occurred. Westfall decided that federal employees must have been acting within the scope of their employment and, in addition, must have been acting in the exercise of governmental discretion. 484 U.S. at 297-98, 108 S.Ct. at 584-85. Included in the opinion in Westfall was the observation that Congress was in the best position to determine the extent to which federal employees should be personally liable for common law torts and that legislative consideration of the matter would be useful. Id. at 300, 108 S.Ct. at 585-86. Congress responded to that suggestion and enacted the West-fall Act.
Section 5 of that Act amended 28 U.S.C. § 2679(b) to read in relevant part as follows:
(b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for ... personal injury ... resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his ... employment is exclusive of any other civil action or proceeding for money damages ... against the employee whose act or omission gave rise to the claim.... Any other civil action or proceeding for money damages arising out of ... the same subject matter against the employee ... is precluded_
Section 6 of that Act amended 28 U.S.C. § 2679(d) to provide in subdivision (4) thereof that:
... any action against the United States filed pursuant to section 1346(b) of this title ... shall be subject to the limitations and exceptions applicable to those actions. (Emphasis added).
Pursuing the reference to 28 U.S.C. § 1346(b) reveals that that section provides in relevant part:
(b) Subject to the provisions of chapter 171 of this title, the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his ... employment_
To complete the statutory analysis, it only remains to be noted that chapter 171 of title *71728 of the United States Code contains within it § 2680(h) which provides that § 1346(b) shall not apply to any claims arising out of libel, slander and other intentional torts.
With this statutory framework clearly in mind, I turn to a consideration of United States v. Smith, 499 U.S. 160, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). The issue before the Court in that case was stated to be “whether the Liability Reform Act immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government.” 499 U.S. at 165, 111 S.Ct. at 1184-85. In deciding that the Act confers such immunity, the Court based its conclusion upon sections 5 and 6 of the Liability Reform Act, i.e. 28 U.S.C. §§ 2679(b)(1) = and 2679(d)(4), respectively. As mentioned above, section 2679(b)(1) provides that an action against the Government under the FTCA is the exclusive remedy and precludes an action against the employee acting within the scope of his employment. Section 2679(d)(4) provides that actions against the Government pursuant to § 1346(b) (the FTCA) are “subject to the limitations and exceptions applicable to those actions.” The Court then went on to say:
One of these “exceptions” — expressly designated as such under § 2680 — is the provision barring Government liability for [libel and other intentional torts. § 2680(h) ].
499 U.S. at 166, 111 S.Ct. at 1185.
It is the “limitations and exceptions” language in § 2679(d)(4) of the Westfall Act which persuaded the Court that Congress intended to immunize federal employees acting within the scope of their employment— even if there is no remedy against the United States.1
It is significant to note that 28 U.S.C. § 2680 reads: “The provisions of this chapter and section 134.6(b) of this title shall not apply to” a wide variety of claims, including libel. (Emphasis added). As has been indicated, § 1346(b) authorizes actions against the United States “[sjubject to the provisions of chapter 171” — that is to say — subject to the exceptions listed in § 2680. A specific reference to the opening clause in § 2680 was superfluous given the Smith Court’s reliance on § 2679(d)(4) which referenced § 1346(b) which embraced § 2680 and all the other sections of chapter 171. The statutory route leading to this conclusion, although somewhat circuitous, is nevertheless clearly marked.
Second, I do not agree with that portion of Section V of the court’s opinion which holds that “in the absence of a certification by the Attorney General, the statute permits the court to certify ... § 2679(d)(3).” Insofar as that statement suggests that the statute authorizes the court to certify sua sponte, I find nothing in § 2679(d)(3) which supports it. That statute provides, in relevant part, as follows:
(3) In the event that the Attorney General has refused to certify scope of ... employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his ... employment. ... A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure....
Although the statute does not authorize a sua sponte certification by the court, I would nevertheless find the requirement for a certification by the Attorney General provided pursuant to §§ 2679(d)(1) and (2) was satisfied here. The record reflects that the district court ordered the United States Government to show cause why the United States should not be substituted as the party defendant in the action pursuant to 28 U.S.C. *718§ 2679. In a letter response the Government asserted that the FTCA precluded recovery against the government employee where the Government itself would be immune from suit after citing 28 U.S.C. §§ 2679(b)(1), 2679(d)(4) and United States v. Smith, supra. The letter went on to state that:
As a result, sovereign immunity is extended to protect the government employee from personal liability arising while acting within the scope of his employment. Accordingly, in the instant case, the plaintiff cannot seek to sidestep the language and purpose of the Act by seeking recovery against these private defendants.
The Government then requested that it not be substituted as the party defendant because “substitution would not advance the litigation in any meaningful way and would only delay the required dismissal of this action.”
A “certification” is defined as a “formal assertion in writing of some fact.” Black’s Law Dictionary 206 (5th ed. 1979). To regard the letter of the United States Attorney as anything other than an assertion and thus a certification that the defendants were employees acting within the scope of their employment would be to exalt form over substance.2
I am constrained to disagree as well with the majority’s view that the defendant’s brief in response to the order to show cause which referred to AFS and Marshall as Government employees acting within the scope of their employment was sufficient compliance with the certification requirement imposed by 28 U.S.C. § 2679(d)(3). See f.n. 3, supra. Although permitting an employee to petition the court at any time before trial to find and certify that he was acting within the scope of his employment, the statute also requires that “[a] copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure.” That Rule, as it was then in effect,3 provided that service upon the United States is made by delivering a copy to the local United States Attorney and by sending a copy by registered or certified mail to the Attorney General of the United States at Washington, D.C. Thus, service upon both the local United States Attorney and the Attorney General is required. See McGregor v. United States, 933 F.2d 156 (2d Cir.1991). In its footnote 4, the majority would hold that the brief of AFS and Marshall served as a “petition” which the Government could have disregarded or moved to set aside but chose, instead, “to waive the defect in service and defend on the merits against being substituted.” Assuming that the brief may be regarded as a petition (which I would question),4 the record does *719not reflect that it was ever served upon the Government and hence could have been disregarded or made the object of a motion to set it aside. The record is plainly barren of any suggestion that service was made upon the Attorney General in Washington, D.C. There is no indication in the record that the Government was ever even aware of the service requirement let alone that it was defective. The majority can, therefore, only speculate that the Government waived the defect or chose to “defend on the merits” in a matter to which it was never made a party but merely showed cause why it would not be. In any event, it is well settled that the United States Attorney has no power to waive any conditions or limitations imposed by statute for suits against the United States. Munro v. United States, 303 U.S. 36, 41, 58 S.Ct. 421, 423-24, 82 L.Ed. 633 (1938); Battaglia v. United States, 303 F.2d 683 (2d Cir.), cert. dismissed, 371 U.S. 907, 83 S.Ct. 210, 9 L.Ed.2d 168 (1962); City of New York v. McAllister Brothers, 177 F.Supp. 679 (S.D.N.Y.1959), aff'd, 278 F.2d 708 (2d Cir.1960); Fugle v. United States, 157 F.Supp. 81 (D.C.Mont.1957).
. The Court also noted that 28 U.S.C. § 2679(b)(2) provides that the FTCA is not the exclusive remedy in a Bivens action in which the plaintiff seeks damages for a “constitutional tort'' committed by a federal employee or in an action pursuant to a federal statute that authorizes an action against a federal employee, and concluded that Congress knew how to preserve tort liability of federal employees when it desired to do so and that inferring a third exception for intentional torts was not warranted. 499 U.S. at 166-67, 111 S.Ct. at 1185 (citing Andrus v. Glover Construction Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910, 64 L.Ed.2d 548 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”)).
. The Government's request that it not be substituted as the party defendant in the interests of judicial expediency should have been denied. 28 U.S.C. § 2679(d)(1). That procedural misstep, even if it had been avoided, would not have affected the result in any event.
. Effective December 1, 1993, the provisions of Rule 4(d)(4) are now to be found in Rule 4(i)(l)(A) and (B).
. The only references to the matter in the brief of AFS and Marshall are to the Government’s response to the Order to Show Cause, viz., at JA 150a:
Because Captain Marshall and AFS are Government employees acting within the scope of their employment, plaintiff cannot sue for libel. (See United States' Brief at 3.)
At JA 154a the defendants’ brief reads:
Plaintiff also claims that the United States has not certified that defendants were acting within the scope of their employment and, therefore, the Government cannot be substituted as a party defendant. The United States in its brief recognized that defendants Eire Government employees acting within the scope of their employment:
The [FTCA] also requires that this action be dismissed as against the private defendants. The [FTCA] is the exclusive means of recovery for a tort claim arising from an act of a Government employee acting within the scope of his employment.
(United States' Brief at 3.) The United States, therefore, takes the position that AFS and Captain Marshall acted within the scope of their employment and that the action must be dismissed.
It would appear that the defendants' argument relies upon the Government's assertion as a certification that they were employees acting within the scope of their employment. The only other allusion in their brief which can be dubiously characterized as a petition appears at JA 154a-155a:
Moreover, even where the United States refuses to certify that persons are employees of the *719Government acting within the scope of their employment, the FTCA "permits the employee to seek a judicial determination that he was acting within the scope of his employment." 28 U.S.C. § 2679(d)(3); Smith, 499 U.S. at 164 n. 5, 111 S.Ct. at 1184 n. 5. Once this Court makes such a ruling, plaintiff's claim of libel against AFS and Captain Marshall must be dismissed as a matter of law. 28 U.S.C. § 2679(b)(1).