Rodriguez v. Sarabyn

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 96-50463
____________________

ROBERT RODRIGUEZ,

Plaintiff-Appellee,

v.

CHARLES (Chuck) SARABYN, ET AL,

Defendants,

CHARLES (CHUCK) SARABYN; ROGER M SOLOMON,
PH.D.; TED ROYSTER,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
November 24, 1997
Before POLITZ, Chief Judge; KING, Circuit Judge; and DUPLANTIER,*
District Judge.

KING, Circuit Judge:

Defendants-appellants bring this interlocutory appeal to

challenge the district court’s order finding that they were not

acting within the scope of their federal employment. We affirm

in part and vacate in part the district court’s order and remand

this case for further proceedings.

*
District Judge of the Eastern District of Louisiana,
sitting by designation.

1
 I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Posture

This litigation stems from the Bureau of Alcohol, Tobacco,

and Firearms (ATF) raid on the Branch Davidian compound in Waco,

Texas on February 28, 1993. In February 1995, plaintiff-appellee

Robert Rodriguez, an ATF agent, filed suit against the United

States, the ATF, several ATF officials in their individual

capacities, and Roger M. Solomon for allegedly tortious

statements related to the raid made to the media and in

subsequent investigations. Only three of the individual

defendants are party to this interlocutory appeal: two ATF

officials, Ted Royster and Charles Sarabyn, and Solomon, a

psychiatrist who did work for the ATF.1 The United States filed

a motion in the district court to substitute the United States

for the ATF officials and dismiss the claims under the Federal

Tort Claims Act (FTCA). 28 U.S.C. §§ 2679(d)(1), 2680(h). With

its motion, the Government submitted official certifications that

the ATF officials acted within the scope of their employment in

relation to Rodriguez’s allegations. However, Sarabyn was

excepted from this certification for fifty-four days that he had

been terminated from the ATF. All of the individual defendants

moved for certification and substitution of the United States,

including Sarabyn for the above fifty-four-day period. The

1
All the individual defendants initially brought this
appeal, but prior to oral argument, all but three filed motions
to dismiss their appeals which this court granted. Therefore, we
will discuss the issues and facts only in relation to the three
individuals still pursuing their appeals.

2
district court denied all motions because it found that under

Texas law the ATF officials did not act within the scope of their

employment and that under federal law Solomon was an independent

contractor and not an employee. The court also denied subsequent

motions by the defendants to reconsider, including one making a

judicial estoppel argument. The individual defendants appealed,

and the United States filed an amicus brief.

B. Stipulated Facts

The issue before us on appeal is whether the individual

defendants were acting within the scope of their employment with

the United States when they made the allegedly defamatory

statements. For the purposes of this determination, all parties

except Sarabyn stipulated to the facts that follow.2

On February 28, 1993, the ATF raided the Branch Davidian

compound to serve search and arrest warrants. On the morning of

the raid, Rodriguez went to the compound in an undercover

capacity and spoke to the Branch Davidian leader, David Koresh.

During his meeting with Koresh, Koresh left to take a phone call,

and upon his return, he was visibly shaken and nervous and said

that the ATF and National Guard were coming for him. Rodriguez

concluded that Koresh was aware of the impending ATF raid.

Rodriguez left the compound and reported the events to James

Cavanaugh, the Deputy Tactical Director for the raid. He told

2
The fact that Sarabyn did not stipulate to these facts is
immaterial due to our resolution of his appeal.

3
Cavanaugh that Koresh knew that the ATF was coming. In response

to Cavanaugh’s questions, Rodriguez said that he did not see any

guns or anyone hurrying around the compound. Rodriguez then

called Sarabyn, the Tactical Coordinator for the raid, and told

him that Koresh knew they were coming. He told him that when he

left, the Branch Davidians were praying in the compound.

The operation went forward, and the ATF attempted to serve

the warrants at the compound. The ATF agents were met with a

hail of gunfire, and four agents were killed and twenty were

wounded in the firefight. Subsequent to the raid, Sarabyn and

Royster made statements to investigators, the media, or Congress

about the events that were inconsistent with what Rodriguez

reported the morning of the raid. Sarabyn and Royster were

authorized to speak to the media by the ATF and were required by

the ATF to make statements to investigators and to Congress. Of

the statements to Congress and the investigators, the defendants

knew they were expected to be truthful and candid and were not

authorized to mislead, lie, or otherwise cover-up the truth.

Solomon made statements to one of the three official

investigations and to an ATF official.

Sarabyn was the Assistant Special Agent in Charge of the

ATF’s Houston Division and the Tactical Coordinator for the raid.

After speaking with Rodriguez on the morning of the raid, he told

the ATF agents to “hurry up” because Koresh knew that the ATF was

coming. He later denied knowing that Koresh knew of the imminent

raid and denied making the statement to hurry up. He also has

4
said that Rodriguez did not tell him that Koresh knew they were

coming.

Royster was the Special Agent in Charge of the ATF’s Dallas

Division and rode in a helicopter during the raid. On the day of

the raid, he heard Sarabyn say, “They know we’re coming.” Later,

he denied knowing that the ATF had lost the element of surprise.

Royster also told the ATF agents that he supervised in the Dallas

office that surprise had not been lost, and at the direction of

ATF Associate Director Daniel Hartnett, he told other agents that

surprise had not been lost.

Solomon is a clinical psychologist who is a full-time

employee for the Washington State Patrol. He also works as a

consultant for railroads and various law enforcement agencies on

critical incident trauma and peer support. In the four years

prior to the raid on the Branch Davidian compound, Solomon

conducted peer support workshops for the ATF once or twice a

year, and during that same period he conducted approximately

fifty seminars for other law enforcement agencies. The materials

used in his seminars were provided by Solomon. Solomon’s

contract consisted of a Blanket Purchase Agreement with the ATF,

under which he was to provide counseling on an “as needed” basis.

This counseling occurred over the phone or in person and was

billed by the hour or by the day plus expenses. Solomon could

refuse requests asking him to respond to a particular location to

provide services. The government never withheld income tax or

social security from Solomon’s payments or provided the health,

5
retirement, or workmen’s compensation benefits to which other

government employees are entitled. The ATF did not consider

Solomon to be an employee.

On February 28, 1993, Solomon was asked to come to Waco to

provide his services to agents and their families in the

aftermath of the raid. In April 1993, ATF Deputy Associate

Director Edward D. Conroy asked Solomon to contact Rodriguez for

counseling. Solomon contacted Rodriguez, but Rodriguez did not

wish to participate in a group debriefing or talk to anyone.

II. JURISDICTION

Certification of scope of employment by the Attorney

General or her designate is reviewable by the courts. Gutierrez

de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). We have

jurisdiction to review the district court’s denial of the

certification of the defendants’ acts being within the scope of

their employment under the collateral order doctrine allowing

immediate review under 28 U.S.C. § 1291 from orders denying

government employees immunity. Mitchell v. Forsyth, 472 U.S.

511, 524-30 (1985); Mitchell v. Carlson, 896 F.2d 128, 133 (5th

Cir. 1990).

6
 III. DISCUSSION

Unlike the normal tort action, the plaintiff here does not

wish to impose vicarious liability upon the employer. In order

to preserve his claims, Rodriguez argues that the individual

defendants were not acting within the scope of their employment.

If the individual defendants are found to have been acting in the

scope of their employment, the United States is automatically

substituted for the defendants, who are then dismissed from the

action pursuant to the Federal Employees Liability Reform and

Tort Compensation Act of 1988 (commonly known as the Westfall

Act). See 28 U.S.C. § 2679(b); Lamagno, 515 U.S. at 422. Once

the substitution occurs, the FTCA applies, and some claims may be

dismissed for lack of subject-matter jurisdiction because the

United States has not waived its sovereign immunity. 28 U.S.C.

§ 2680.3 Therefore, Rodriguez may be left without a remedy for

the allegedly tortious acts of the defendants. See id. § 2679(b)

(making the FTCA the exclusive remedy for compensation for

tortious acts of federal employees in the scope of their

employment); Lamagno, 515 U.S. at 422; Aversa v. United States,

99 F.3d 1200, 1207-08, 1213 (1st Cir. 1996) (applying New

Hampshire law and holding that defamatory statements made by

3
The FTCA waives the United States’ sovereign immunity from
suits based upon tort claims. 28 U.S.C. § 2674. However,
section 2680(h) excludes from this waiver without qualification
libel, slander, misrepresentation, deceit, and interference with
contract rights. Id. § 2680(h). The FTCA also excludes assault,
battery, false imprisonment, false arrest, abuse of process, and
malicious prosecution from its waiver of sovereign immunity
unless the employee is a law enforcement officer. Id.

7
Assistant U.S. Attorney and Internal Revenue Service employee

were within the scope of their employment and affirming the

substitution of the United States and the dismissal of the suit

for lack of subject-matter jurisdiction under the FTCA).

Although this result may seem unduly harsh, Congress has

recognized that its scheme leaves some plaintiffs without a

remedy against any party. See H. REP. NO. 100-700, at 6 (1988),

reprinted in 1988 U.S.C.C.A.N. 5945, 5950. “[S]uits against

Federal employees are precluded even where the United States has

a defense which prevents actual recovery. Thus, any claim

against the government that is precluded by the exceptions set

forth in Section 2680 . . . also is precluded against an employee

[or] his or her estate.” Id. This result was intended by

Congress despite the Westfall Acts’s purpose--to provide an

appropriate remedy while protecting federal employees. Federal

Employees Liability Reform and Tort Compensation Act of 1988,

Pub. L. No. 100-694, sec. 2(b), 102 Stat. 4563, 4564. As the

Supreme Court observed in Westfall v. Erwin, 484 U.S. 292, 300

(1988), “Congress is in the best position to provide guidance for

the complex and often highly empirical inquiry into whether

absolute immunity is warranted in a particular context.” In

Westfall, the Supreme Court applied the immunity of the FTCA only

to acts committed by federal employees within the scope of their

employment that required the exercise of government discretion.

Id. at 299. After Westfall, Congress passed the Westfall Act to

immunize all acts done within the scope of the federal employee’s

8
employment without any additional requirements. See H. REP. NO.

100-700, at 4 (“Federal employees will be immune for personal

liability for actions taken in the course and scope of their

employment.”), reprinted in 1988 U.S.C.C.A.N. at 5947; id. at 2-4

(noting that the legislation’s goal is to restore federal

employee immunity to its state prior to the Supreme Court’s

Westfall decision), reprinted in 1988 U.S.C.C.A.N. at 5946-47;

Aversa, 99 F.3d at 1207 n.7.

A. Solomon’s Status

The district court found that Solomon was an independent

contractor and not a federal employee and therefore denied his

motion for certification under the Westfall Act. We agree.

1. Standard of Review and Applicable Law

The FTCA only applies to an employee of the government,

which is defined to include “officers or employees of any federal

agency . . . and persons acting on behalf of a federal agency in

an official capacity, temporarily or permanently in the service

of the United States, whether with or without compensation.”

28 U.S.C. § 2671. Neither the FTCA nor the Westfall Act applies

to the actions of an independent contractor. See United States

v. Orleans, 425 U.S. 807, 813-14 (1976); Broussard v. United

States, 989 F.2d 171, 174 (5th Cir. 1993). Whether Solomon was

an employee of the ATF or an independent contractor is a question

of federal law. Cavazos ex rel. Cavazos v. United States, 776

F.2d 1263, 1264 (5th Cir. 1985). The ultimate determination of

9
his status is a conclusion of law to be reviewed de novo. Cf.

Donovan v. Tehco, Inc., 642 F.2d 141, 143 n.4 (5th Cir. 1981)

(considering whether individuals were employees or independent

contractors under the Federal Labor Standards Act).

2. Independent Contractor Versus Employee

The critical factor in distinguishing an independent

contractor from an employee “‘is the power of the Federal

Government “to control the detailed physical performance of the

contractor.”’” Broussard, 989 F.2d at 174 (quoting Orleans, 425

U.S. at 814 (quoting Logue v. United States, 412 U.S. 521, 528

(1973))). In Broussard, this circuit recognized that, while this

may be “the most critical factor,” it is not the only factor.

989 F.2d at 175. If this were the only factor considered, then

no professional who exercises professional judgment could be

considered a federal employee under the FTCA. Id. In Logue, the

Supreme Court relied upon the Restatement (Second) of Agency

which lists other factors besides control in determining whether

a person is an employee or independent contractor. 412 U.S. at

527 & n.5 (citing RESTATEMENT (SECOND) OF AGENCY § 2 (1957)); see also

Broussard, 989 F.2d at 175. In addition to control, § 220 of the

Restatement lists the following factors which may evidence the

existence of an employee relationship: (1) the work does not

require one who is highly educated or skilled; (2) the work is

typically done by an employee in the locale, rather than an

independent contractor; (3) the employer supplies the tools,

instrumentalities, or place of work; (4) the employment is for a

10
considerable period of time with regular hours; (5) the method of

payment is by the hour or month; (6) the work is full-time

employment by one employer; (7) the work is part of the

employer’s regular business; and (8) the parties believe they

have created an employment relationship. RESTATEMENT (SECOND) OF

AGENCY, supra, § 220(2) & cmt. h, referenced in id. § 2 cmt. a.

3. Applying the Law to Solomon

Considering the above factors in relation to Solomon, who is

a professional, we agree with the district court that he is an

independent contractor. The value of Solomon’s work derives from

his education and skill. The evidence does not suggest that the

services of the type supplied by Solomon are typically supplied

by an employee in the relevant locale. Solomon supplies the

materials upon which his seminars are based. His affiliation

with the ATF has been for a period of years, but other than the

seminars, it has been on an as-needed basis with no regular or

set hours. He is a full-time employee of the Washington State

Patrol, not the federal government. Although Solomon was paid by

the hour, his professional services are a type that is commonly

measured by the hour, rather than by the job; this factor

therefore has little weight in determining whether he is an

employee. Additionally, the Blanket Purchase Agreement does not

set any price for Solomon’s services; it only requires that the

government get at least the best price he offers to anyone. His

services are not part of the ATF’s regular business, and the ATF,

according to the stipulated facts, did not consider him an

11
employee. All of these factors taken together demonstrate that

Solomon is an independent contractor and not an employee of the

United States.

In Broussard, this court held that a doctor employed by an

independent contractor to the federal government is not an

employee of the federal government. 989 F.2d at 176. Solomon

argues that because he is not like the doctor in Broussard (i.e.,

he is paid directly by the government, the government selected

him, and his contract does not explicitly deny the government

supervisory control), he is an employee. However, the government

selects its independent contractors and would be expected to pay

them directly. To accept his argument would suggest that

individuals are rarely independent contractors. Additionally,

the Restatement describes the extent of control as determined by

agreement. RESTATEMENT (SECOND) OF AGENCY, supra, § 220(2)(a) (“the

extent of control which, by the agreement, the master may

exercise over the details of the work”); id. cmt. h (“an

agreement for close supervision or de facto close supervision of

the servant’s work”). In Solomon’s case, his contract is silent

on control, which suggests an independent contractor relationship

under the Restatement.

4. “Acting on Behalf of” the United States

Solomon also argues that the “persons acting on behalf of

the federal government in an official capacity” language of

§ 2671 includes him. The Supreme Court considered and rejected a

similar argument in Logue. 412 U.S. at 531-32. The “acting on

12
behalf of” language was meant to cover the “dollar-a-year” man

who is in government service without pay or an individual who is

directly supervised by a federal agency pursuant to an agreement.

Id. Solomon fits neither of the above descriptions.

Additionally, to apply the “acting on behalf of” language to an

independent contractor because he was asked to provide a service

for the government, as urged by Solomon, would make the

distinction between employees and independent contractors

virtually meaningless. Cf. id. at 532. Under such an expansive

construction of the language, all independent contractors would

be “acting on behalf of” the United States and would make the

explicit exclusion of independent contractors from the FTCA in

§ 2671 meaningless. See 28 U.S.C. § 2671.

Because we affirm the district court’s denial of Solomon’s

motion for certification on the grounds that he is not a federal

employee, we need not consider whether he was acting in the scope

of his “employment.”

B. Sarabyn and Royster’s Scope of Employment

The district court reviewed the Attorney General’s

certification of Sarabyn and Royster and found that they were not

acting within the scope of their employment by the United States.

We disagree.

1. Standard of Review and Applicable Law

Whether an employee was acting within the scope of his or

her employment under the Westfall Act is governed by state law.

13
Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995) (en

banc) (citing Williams v. United States, 350 U.S. 857 (1955));

see also H.R. REP. NO. 100-700 (noting that state law governs the

question of whether a federal employee acted within the scope of

his or her employment under the FTCA), reprinted in 1988

U.S.C.C.A.N. at 5949. Here, all the parties agree that Texas law

applies to the allegedly tortious conduct, which occurred

primarily in Texas. See Williams v. United States, 71 F.3d 502,

506 (5th Cir. 1995). We review the scope of employment issue de

novo. Id. at 505. The parties stipulated to the facts below;

therefore we need only apply the law to those facts.

2. Texas Respondeat Superior Law for Defamation

Under Texas law, respondeat superior analysis determines

whether conduct that constitutes an intentional tort was within

an employee’s scope of employment. Id. at 506; Houston Transit

Co. v. Felder, 208 S.W.2d 880, 881 (Tex. 1948). Texas’s general

rule for respondeat superior is that an employee acts within his

scope of 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. Robertson Tank Lines, Inc. v. Van Cleave,

468 S.W.2d 354, 357 (Tex. 1971); 1 TEXAS TORTS AND REMEDIES

§ 4.02[2][a] (J. Hadley Edgar, Jr. & James B. Sales eds., 1996).

However in the case of defamation, where the conduct in question

is a verbal statement and not some other physical act, Texas

courts approach the respondeat superior analysis differently:

14
 “An action is sustainable against a corporation for

defamation by its agent, if such defamation is

referable to the duty owing by the agent to the

corporation, and was made while in the discharge of

that duty. Neither express authorization nor

subsequent ratification is necessary to establish

liability.”

Texam Oil Corp. v. Poyner, 436 S.W.2d 129, 130 (Tex. 1968)

(quoting Great Atl. & Pac. Tea Co. v. Harris, 75 S.W.2d 974, 976

(Tex. Civ. App.--Eastland 1934, writ dism’d)); see also Wells v.

Shop Rite Foods, Inc., 474 F.2d 838, 840 (5th Cir. 1973); Wagner

v. Caprock Beef Packers Co., 540 S.W.2d 303, 304 (Tex. 1976);

4 TEXAS TORTS AND REMEDIES, supra, § 52.06[6].

The employer’s liability for the acts of its employees is

quite broad as long as they are acting within the scope of their

employment. Neither of the above rules protects the employer

from acts done by its employees of which it would not have

approved. Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 777

(Tex. App.--Texarkana 1995, writ denied). An employer is liable

for the foreseeable intentional and malicious acts of its

employees done within the scope of employment, even if not

authorized. Houston Transit, 208 S.W.2d at 881; Hooper, 895

S.W.2d at 777-78; Adami v. Dobie, 440 S.W.2d 330, 334 (Tex. Civ.

App.--San Antonio 1969, writ dism’d); see also Williams, 71 F.3d

at 506; 1 TEXAS TORTS AND REMEDIES, supra, § 4.02[2][f]. The

employer also is liable for the acts of its employees committed

15
within the scope of employment that are contrary to the express

orders of the employer. Texas & P. Ry. Co. v. Hagenloh, 247

S.W.2d 236, 239 (Tex. 1952); 1 TEXAS TORTS AND REMEDIES, supra,

§ 4.02[2][e]; see also Hooper, 895 S.W.2d at 777.

3. Turning Aside from the Employer’s Business

However, the employer’s broad liability is limited in that

an employee who detours from the employer’s business is not

acting within the scope of employment. In Texas, “‘when the

servant turns aside, for however short a time, from the

prosecution of the master’s work to engage in an affair wholly

his own, he ceases to act for the master, and the responsibility

for that which he does in pursuing his own business or pleasure

is upon him alone.’” Hagenloh, 247 S.W.2d at 241 (quoting

Galveston, H. & S.A. Ry. Co. v. Currie, 96 S.W. 1073, 1074 (Tex.

1906)); see also 1 TEXAS TORTS AND REMEDIES, supra, § 4.02[2][c]. No

liability extends to the employer when the intentional tort is

“actuated by personal animosity” and there is “no close relation

between the [tort] and the performance of the duties of

employment.” Hagenloh, 247 S.W.2d at 241.

Rodriguez cites several examples where the employer was not

held liable for an employee’s acts done while “turned aside” from

the employer’s business. See Smith v. M Sys. Food Stores, 297

S.W.2d 112, 114 (Tex. 1957) (finding no employer liability for

assault and false arrest by security guard of shoplifter’s spouse

where assault was directly in response to comments by spouse);

Lowry v. Anderson-Berney Bldg. Co., 161 S.W.2d 459, 462 (Tex.

16
1942) (finding a lack of evidence that employee who intentionally

hit an independent contractor was within scope of employment);

Viking v. Circle K Convenience Stores, Inc., 742 S.W.2d 732, 733-

34 (Tex. App.--Houston [1st Dist.] 1987, writ denied) (finding no

employer liability where employee left store unattended to

retrieve a gun and shoot a person for scratching his car);

Bradford v. Fort Worth Transit Co., 450 S.W.2d 919, 927 (Tex.

Civ. App.--Fort Worth 1970, writ ref’d n.r.e.) (sustaining jury

verdict which found that bus driver’s sole motive in shooting

passenger who attacked him was self defense and not within scope

of employment); Adami, 440 S.W.2d at 332-33 (finding no employer

liability for employee’s killing of person who failed to close a

gate on a ranch where the employee left the land to confront the

deceased); Mitchell v. Ellis, 374 S.W.2d 333, 335 (Tex. Civ.

App.--Fort Worth 1964, writ ref’d) (finding no employer liability

for employee’s negligent parking of truck while stopped to get

cigarettes).

Besides the above physical examples of an employee turning

aside from the employer’s business, Rodriguez argues that a

mental turning aside also takes an employee outside the scope of

his employment. He relies upon Standard Oil Co. v. United

States, 307 F.2d 120 (5th Cir. 1962), and the Restatement

(Second) of Agency § 235 for the proposition that an employee can

be performing the acts of its employer, but still be acting

outside the scope of his employment when his motives are to

accomplish a purpose of his own. His reliance upon Standard Oil

17
is misplaced, however, because it applies federal law, not Texas

law, in discussing whether criminal liability, not tortious

liability, should be imputed to an employer for the acts of its

employees in the process of stealing from that same employer.

Id. at 122-23, 126-30.

Rodriguez’s reliance upon the Restatement does support his

proposition and is not necessarily misplaced because the Texas

Supreme Court has adopted the Restatement’s general test for

respondeat superior, and where there is no contrary case law, it

is likely to follow related provisions of the Restatement. See

Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir. 1993); see also

M Sys. Food Stores, 297 S.W.2d at 114 (quoting RESTATEMENT (SECOND)

OF AGENCY, supra, § 229); Dobson v. Don January Roofing Co., 392

S.W.2d 153, 155 (Tex. Civ. App.--Tyler 1965, writ ref’d n.r.e.)

(quoting RESTATEMENT (SECOND) OF AGENCY, supra, § 235). Section 235

states that if an act “is done with no intention to perform it as

a part of or incident to a service on account of which he is

employed” then the act is not within the scope of employment.

RESTATEMENT (SECOND) OF AGENCY, supra, § 235. Rodriguez relies upon

the commentary which notes that this rule applies even if the act

would be authorized on behalf of the employer. See id. cmt. a.

The commentary goes on to state, however, that acts are within

the scope of employment “if the servant is actuated to some

extent by an intent to serve his master” and notes that an

employer may still be liable where an employee departs from

instructions for his own purposes if such departure is undertaken

18
with the intent to serve his employer. Id. cmts. a & b. Section

236 addresses the circumstance where an employee acts with two

purposes--one personal and one to further the business of the

employer--and imputes liability even if the predominant motive of

the servant is personal. Id. § 236 & cmt. e; see also id. cmt. a

(including liability for the act and its manner of performance

for objects in conflict with employer’s).4

Without relying upon the Restatement, Texas case law has

found an employer liable where the employee has mentally turned

aside from the employer’s business. In H.T. Cab Co. v Ginns, 280

S.W.2d 360, 362 (Tex. Civ. App.--Galveston 1955, writ ref’d

n.r.e.), a cabdriver shot a passenger in a dispute over the

amount of a fare. The court accepted that the cabdriver was

“humoring his own spite” in shooting the passenger, but it

sustained a jury verdict finding that the cab driver was acting

4
In the case of defamation, the Restatement goes even
further and imputes liability to the employer where the employee
has apparent authority or the employer puts the employee in a
position that facilitates the wrongdoing. Id. §§ 235 cmt. e,
247. Section 247’s commentary notes that liability is imputed
when the employee’s “scope of employment of a servant includes
the making of statements concerning others which he believes to
be true and privileged, the master is subject to liability for
untrue and unprivileged defamatory statements made by the servant
concerning such others.” Id. § 247 cmt. a. Under the
Restatement, “[t]he motive of the spokesman and the position he
holds are therefore immaterial if the master has apparently
designated him to speak.” Id. cmt. c.

The Restatement’s special rules for defamation are arguably
more liberal than Texas’s special rule for defamation because the
Restatement’s rule allows the imputation of liability in the
absence of a duty to the employer. See id. illustrations 2-3.
Because we find that the statements were within the scope of
employment under the Texas rule, our decision does not rest upon
the Restatement.

19
within the scope of his employment when he shot the passenger.

Id. at 365. In Houston Transit Co. v Felder, the Texas Supreme

Court also sustained a jury verdict imputing liability to the

employer of a bus driver who assaulted another motorist who had

run into the bus. 208 S.W.2d at 881. Although the bus driver

stated that his attack was in direct response to the other

driver’s comments and because the other driver put his hands on

him, the court sustained the jury verdict because the attack was

“so closely connected” with the performance of the bus driver’s

duty to collect information from the other driver. Id. at 881;

see also Hagenloh, 247 S.W.2d at 241 (citing cases where no

liability could be imputed because the “assault was actuated by

personal animosity and . . . there was no close relation between

the assault and the performance of the duties of the employment”

(emphasis added)).

4. Application of the Defamation Rule

For an employer to be liable for defamation by its employee

in Texas, the defamatory statement must be (1) referable to a

duty owed by the employee to the employer and (2) made while the

employee is in the process of discharging that duty. Texam Oil,

436 S.W.2d at 130. Texas courts have had no difficulty using

this rule to shield employers from liability where no duty to the

employer was being discharged. In Wagner v. Caprock Beef Packers

Co., the Texas Supreme Court found no duty upon which to impute

liability. 540 S.W.2d at 305. In Wagner, a plant manager called

other employers on his own initiative and defamed a worker who

20
had resigned. Id. at 304. The company no longer had any duty to

its departed employee that the plant manager could have been

discharging for the company. Therefore, no duty existed to make

the unsolicited statements. Id. at 305. In Seifert v. El Paso

Natural Gas Co., 567 S.W.2d 77, 78 (Tex. Civ. App.--El Paso 1978,

no writ), a fellow employee responded to requests for references

from prospective employers and allegedly defamed a former

employee. No liability was imputed to the employer because the

fellow employee had no authority or duty to the employer which

was being discharged when the statements were made. Id. at 79;

see also Great Atl. & Pac. Tea Co. v. Majure, 167 So. 637, 638

(Miss. 1936) (finding manager’s statements made to direct blame

away from his wrongdoing and onto a terminated employee could not

be imputed to employer because the manager made the slanderous

statements regarding the termination of an employee-at-will,

about which the employer had no duty to give information to third

parties two weeks after the termination), cited with approval in

Wagner, 540 S.W.2d at 305.

Texas courts also have had no difficulty imputing liability

under the defamation rule. In Texam Oil, the Texas Supreme Court

affirmed the appellate court’s holding that statements made by

the director of a company that an employee was stealing from the

company were within the scope of employment and thereby allowing

liability to be imputed to the company. 436 S.W.2d at 130

(affirming Texam Oil Corp. v. Poyner, 431 S.W.2d 802 (Tex. Civ.

App.--El Paso 1968, writ ref’d n.r.e.)). The statements were

21
made in a business meeting and later to the same audience at a

social occasion where no business was conducted or discussed.

Texam Oil, 431 S.W.2d at 805. The appellate court found that the

statements were made in connection to the director’s continuing

investigation of the thefts and were therefore within the scope

of employment. Id. In Hooper v. Pitney Bowes, Inc., supervisors

in a company slandered an employee while investigating possible

improprieties by the employee. 895 S.W.2d at 775-76. The

supervisors’ duties included controlling the activities of the

employee and hiring and firing employees. The supervisors made

all of the statements in the course of their investigation. Id.

at 776-77. Based upon these two facts, the court found that the

jury’s verdict that the statements were outside the scope of

employment was against the great weight of the evidence. Id. at

777. The court found that evidence that the investigation was

conducted in a way of which the employer would not approve did

not bar the employer’s liability because the activities of the

supervisors were of the kind that a supervisor was expected to

conduct. Id. In Ryder Truck Rentals, Inc. v. Latham, 593 S.W.2d

334, 336 (Tex. Civ. App.--El Paso 1979, writ ref’d n.r.e.), an

employee of Ryder slandered Latham by saying that he was an

incompetent truck driver and that he abused Ryder’s equipment.

The court found that Ryder was liable for its employee’s

statements because they were referable to the employee’s duties

to deal with customers, refuse to rent to unfit drivers, and set

forth reasons for their refusal and because they were incident to

22
the discharge of these duties. Id. at 337.

This court previously addressed Texas employer liability for

defamation in the context of the Westfall Act in Williams v.

United States. 71 F.3d at 504-07; see also Wells, 474 F.2d at

840 (applying the Texam Oil defamation rule in the usual

respondeat superior context and finding no employer liability

because no duty was being discharged). In Williams, a

congressman allegedly defamed someone during an interview with

the press. Id. at 504. In applying the general rule, we

analyzed the case with respect to the congressman’s duty to make

public statements about public issues in serving and responding

to his constituency. Id. at 507. The Williams court affirmed

the district court’s substitution of the United States under the

Westfall Act because the statements were made in discharging his

duties. Id. Under the Texam Oil defamation rule, the court

would have undoubtedly reached the same result.

5. Applying the Law to Sarabyn and Royster

According to the stipulated facts, both Sarabyn and Royster

made inconsistent statements that allegedly defamed Rodriguez to

the media and to the investigators, including Congress.

Rodriguez also alleges that Royster made similar inconsistent

statements to other ATF agents. Each type of statement will be

considered in turn.

Both Sarabyn and Royster were authorized to speak to the

media on behalf of the ATF, and speaking to the media regarding

the raid on the Branch Davidian compound was part of their job

23
responsibilities. Because of this specific authority, both

Royster and Sarabyn had a duty to the ATF to speak to the media

regarding the raid. Any statements they made to the media were

incident to their discharge of this duty and were within the

scope of their employment by the ATF, and thus their employment

by the United States.

All of the allegedly defamatory statements made by Sarabyn

and Royster to investigators, including any statements made to

Congress, were made in interviews or in testimony that the ATF

required of each of them. The ATF directed them to speak to

investigators and to cooperate in the investigations. This

directive created a duty, if one did not already exist. The

statements made to the investigators were incident to the

discharge of this duty.

Royster’s statements to other ATF agents about the raid and

whether the element of surprise was lost were made either at the

direction of his superior, ATF Associate Director Hartnett, or to

ATF agents whom he supervised. In both cases, he had a duty.

One was imposed by Hartnett’s instructions; the other was

inherent in his supervisory position to keep the agents working

under him informed. In the discharge of these two duties, he

made the allegedly defamatory statements.

Rodriguez argues that Sarabyn and Royster were acting purely

from personal motives in making the statements in order to direct

scrutiny away from their mistakes in the raid on the Branch

Davidian compound. As discussed above, purely personal motives

24
would not necessarily take them outside the scope of their

employment because the making of the statements was so closely

tied to the discharge of their duties to the ATF to speak to the

press, investigators, and other ATF agents. That the statements

were made to deflect scrutiny from themselves is not dispositive.

See Wagner, 540 S.W.2d at 305 (citing with approval Majure, 167

So. at 638 (finding that manager’s statements were made to direct

blame away from his wrongdoing and onto a terminated employee and

analyzing the case based upon a lack of duty)). Additionally,

that the agents might lie to protect themselves could be an

anticipated abuse of their authority. Cf. Aversa, 99 F.3d at

1212 (noting that the Department of Justice “reasonably could

anticipate that an [Assistant U.S. Attorney] entrusted with [the

power to inform the public about arrests, indictments, and

convictions] might abuse it”).

Rodriguez also argues that lying serves no legitimate

purpose of the ATF and therefore could not be on behalf of the

ATF and within the scope of employment. Torts rarely serve the

legitimate purposes of any employer. However, as discussed

above, acts contrary to the employer’s express wishes can be

imputed to the employer, and by definition, defamation includes

lying. See BLACK’S LAW DICTIONARY 417 (6th ed. 1990) (defining

defamation: “An intentional false communication, either published

or publicly spoken, that injures another’s reputation or good

name.”). As discussed above, Texas courts have formulated and

applied a special rule for defamation by an employee to impute

25
liability to an employer. See, e.g., Texam Oil, 436 S.W.2d 129;

Hooper, 895 S.W.2d 773; Ryder Truck Rentals, 593 S.W.2d 334. The

existence of these cases and of the Texam Oil defamation rule

demonstrates that lying can be imputed to an employer in Texas.

Under the Westfall Act, state law determines whether the

conduct was within the scope of employment. Garcia, 62 F.3d at

127. Once the conduct is determined to be within the scope of

employment, the United States is liable, subject to the

limitations of the FTCA, like any other employer. See Westfall

Act, Pub. L. No. 100-694, sec. 2(a)(2), 102 Stat. at 4563 (1988)

(“The United States, through the [FTCA], is responsible to

injured persons for the common law torts of its employees in the

same manner in which the common law historically has recognized

the responsibility of an employer for torts committed by its

employees within the scope of their employment.”). Therefore,

lying may be within the scope of employment of a federal employee

under the Westfall Act.

Rodriguez’s argument that nondefamatory statements made by

the defendants were within the scope of employment but defamatory

statements made immediately before, after, or between

nondefamatory statements are outside the scope of employment does

not pass muster under Texas law. Sarabyn and Royster did not

alternate between the ATF’s business and turning aside from that

business as they moved from sentence to sentence in their

statements. Their statements to investigators, the press, and

other agents were actuated by their duties to the ATF because

26
they were directed by the ATF to speak to the press, the

investigators, and other agents. From the stipulated facts, it

is at least conceivable that Sarabyn and Royster could have

thought misguidedly that they were protecting the ATF, as a

whole, from embarrassment at the same time as they were

protecting themselves. The ATF was under investigation as much

as any one agent in the investigations into the raid. Even

though the ATF would not have approved of making false statements

to the press, investigators, or other agents, under Texas law,

liability would be imputed to the ATF under the circumstances

here. The statements made here are of the kind that these agents

were authorized and expected to make and were closely connected

to the performance of their duties; therefore, as in Texam Oil,

Hooper, Houston Transit, and H.T. Cab, the statements are within

the scope of their employment.5

We reverse the district court’s denial of the motions for

certification that Sarabyn and Royster were acting within the

5
Texas also has a statute similar to the Westfall Act under
which defamation has been found to be imputable to the employer.
Texas has granted immunity to school district officials acting
within the scope of their employment, but only for acts that
involve the exercise of judgment or discretion. TEX. EDUC. CODE
ANN. § 22.051 (West 1996). This limitation does not exist under
the Westfall Act because Congress passed the Act to remove such a
limitation. Compare 28 U.S.C. § 2679 and H. REP. NO. 100-700, at
1-4 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5645-47, with
Westfall, 484 U.S. at 299. However, despite the scope of
coverage being narrower than under the Westfall Act, the
defamation cases construing the statute have always found the
official to be covered by the statute and thus immune. See Jones
v. Houston Indep. Sch. Dist., 979 F.2d 1004 (5th Cir. 1992);
Anderson v. Blankenship, 790 F. Supp. 695 (E.D. Tex. 1992);
Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174 (Tex. App.--
Houston [14th Dist.] 1991, no writ).

27
scope of their employment by the United States. In relation to

the acts alleged in this appeal, Royster was acting within the

scope of his employment for the entire period, and Sarabyn was

acting within the scope of his employment except during the

fifty-four-day period of his termination from the ATF as

discussed below. That this decision may result in Rodriguez

being deprived of a remedy and Sarabyn and Royster avoiding the

consequences of their allegedly tortious actions is unfortunate,

if not distasteful, but Congress has chosen to grant immunity to

federal employees in this situation.

C. Sarabyn for the Period of his Termination

The district court properly denied Sarabyn’s motion for

certification for his period of termination. Sarabyn argues that

he should be certified as acting in the scope of his employment

with the ATF for the period from October 28 to December 21, 1994.

During this period, he was terminated from the ATF. However,

pursuant to a settlement, he was reinstated to his former

position retroactively to the date of termination with back pay

and all his benefits restored. Sarabyn argues that because the

settlement explicitly stated that the reinstatement was

retroactive to the date of termination and provided for back pay

and benefits, it would be inconsistent not to certify him under

the Westfall Act for this period. The Government has not moved

to certify Sarabyn for this period.

Without deciding whether Sarabyn’s reinstatement would be

adequate to constitute him an “employee” under the Westfall Act

28
during the period of his termination, that reinstatement is not

sufficient to bring his conduct during that period within the

protections of the Westfall Act. In the case of defamation,

Texas law requires that the allegedly defamatory statement be

referable to a duty and incident to the discharge of that duty to

impute liability to the employer. See Texam Oil, 436 S.W.2d at

130. During the period of his termination, Sarabyn had no duty

to the ATF that he could be discharging as he was not then

charged with any duties to the ATF. His retroactive

reinstatement does not place a duty upon him after the fact that

would then allow him to have been acting within the scope of his

employment.

D. Judicial Estoppel

The defendants also claim that Rodriguez is judicially

estopped from arguing that the ATF knew surprise was lost by

contentions he made in another lawsuit arising out of the events

at the Branch Davidian compound. The district court did not find

that this claim affected its decision to deny the certification

motions. As discussed above, it is not necessary for us to

consider the judicial estoppel argument in resolving the

certification question under the Westfall Act.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM in part the district

court’s order denying Solomon certification and denying Sarabyn

29
certification for his period of termination and VACATE in part

the district court’s order denying Sarabyn and Royster

certification for the time each was employed with the ATF and

REMAND the case to the district court for further proceedings

consistent with this opinion. Rodriguez shall bear the costs of

this appeal, except that Solomon shall bear his own costs.

30