[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 29, 2008
No. 07-14370 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 06-00206-CV-AAA-2
JAMES H. SCHIEFER,
Plaintiff-Appellee,
versus
THE UNITED STATES OF AMERICA,
BRUCE BOWEN, Assistant Director of
FLETC,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 29, 2008)
Before BARKETT and FAY, Circuit Judges, and ANTOON,* District Judge.
___________
* Honorable John Antoon, II, United States District Judge for the Middle District of
Florida, sitting by designation.
PER CURIAM:
The United States of America appeals the district court’s interlocutory
orders denying the government’s motion to substitute the United States as the
proper defendant because defendant Bruce Bowen (“Bowen”) was not acting
within the scope of his employment when he made certain allegedly defamatory
comments to a fellow employee. After a careful review of the record and
consideration of the parties’ briefs and oral arguments, we conclude that the
district court did not err in denying the government’s motion.
I.
This case involves a suit by James H. Schiefer (“Schiefer”), a federal
employee, against the United States, the Department of Homeland Security, the
Federal Law Enforcement Training Center (“Training Center”), and six
individually named employees of the Training Center. The complaint states three
causes of action.1 The present appeal relates solely to a state law defamation claim
against the individually named defendants.
The U.S. Attorney filed a Notice of Substitution pursuant to 28 U.S.C. §
1
These claims are: (1) a state law defamation claim against the six named individual
defendants for stating that Schiefer had falsified information in his promotion application; (2) a
violation by the government of the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), by allegedly
firing Schiefer in retaliation for his participation in an FLSA lawsuit; and (3) a violation by the
government of the Privacy Act, 5 U.S.C. § 552a(b), for allegedly disclosing, intentionally and
willfully, information contained in Schiefer’s personnel records.
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2679(d)(1),2 based on a certification that each of the individual defendants was
acting within the scope of his or her federal employment during the events at issue
in this case. The Notice substituted the United States as the proper defendant and
stated that the action with respect to the defamation claim should proceed as a
claim under the Federal Tort Claims Act (“FTCA”) against the United States as
the sole defendant.
Schiefer challenged the certification, relying in part on testimony from an
employee that seemed to contradict the U.S. Attorney’s certification that Bowen
was acting within the scope of his employment when he made certain statements
to that employee. The district court considered the testimony and relevant state
law regarding scope of employment and rejected the certification and substitution
with respect to Bowen.3 The sole issue before the Court is whether the district
court erred in rejecting the U.S. Attorney’s certification that defendant Bowen was
2
28 U.S.C. § 2679(d)(1) provides:
Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose, any civil action
or proceeding commenced upon such claim in a United States district
court shall be deemed an action against the United States under the
provisions of this title and all references thereto, and the United
States shall be substituted as the party defendant.
3
The district court allowed the certification as to the other individual defendants. As a
consequence, Bowen is the sole remaining individual defendant in the case.
3
acting within the scope of his employment at the time the alleged defamation
occurred.4 We do not believe it did.
II.
A brief review of the facts is instructive. Schiefer is an employee at the
Training Center in Georgia. In February 2005, Schiefer applied, and was
recommended, for a promotion from GS-12 to GS-13, and following standard
procedure, the Center conducted a background investigation once the selection
panel approved Schiefer for the promotion. During the investigation, the Center’s
investigator was unable to verify the educational background listed on Schiefer’s
promotion application.
In March 2005, the position was “realigned to another area” and filled by a
different applicant. Thereafter, in July 2005, Schiefer was given a notice of
proposed removal for falsifying the level of his education on his application.
Schiefer was eventually removed from his position in September 2005.5
4
The immunity afforded to federal employees by the Westfall Act applies in cases in
which the federal employee is alleged to have defamed the plaintiff. See S.J. & W. Ranch, Inc.
v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990), amended, 924 F.2d 1555 (11th Cir.), cert.
denied, 502 U.S. 813 (1991).
5
Schiefer appealed his discharge to the Merit Systems Protection Board (“MSPB”),
seeking reinstatement to his GS-12 position, backpay, and attorneys fees. An Administrative
Judge (“AJ”) reversed the Training Center’s discharge in March 2007. The AJ found the
Center’s investigator was not credible, and ordered that Schiefer be reinstated — with full back
pay, interest, and appropriate adjustments to benefits — to his original GS-12 position retroactive
to his discharge date of September 23, 2005. The government appealed, and the MSPB affirmed
4
Steve Didier (“Didier”), a former Training Center employee who was
himself discharged from the Training Center in May 2006 for lying on an
application and who was subordinate to Bowen when he was at the Center,
testified that Bowen disclosed to him that Schiefer had falsified his level of
education on his application for promotion. Didier stated that on two separate
occasions prior to Schiefer’s removal in September 2005 Bowen told him that
Schiefer had lied on his promotion application. Didier also testified that he had no
business related reason to know about the charges against Schiefer.
Schiefer acknowledged that he himself told at least one colleague the same
information. Two of Schiefer’s colleagues stated that Schiefer had told them that
there was a problem with his promotion application because of statements he made
regarding his education level. Didier also acknowledged that the information was
“common knowledge” and a “hot topic” around the Center. Nevertheless, the
district court considered Didier’s testimony sufficient to rebut the U.S. Attorney’s
certification that Bowen acted within his scope of employment when he revealed
to Didier that Schiefer had lied on his promotion application. See Flohr v.
Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996) (“[T]he Attorney General’s
certification is prima facie evidence that the employee acted within the scope of
the AJ’s decision on the merits.
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his employment . . . and [t]he burden of . . . proving that the employee acted
outside the scope of employment is . . . on the plaintiff.”).
The determination of whether an employee’s actions are within the scope of
employment involves a question of law as well as fact. S.J. & W. Ranch, Inc., 913
F.2d at 1542. We thus review de novo a district court determination regarding the
scope of employment. Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992), citing
Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1453 (11th Cir. 1989) (mixed questions of
law and fact are subject to plenary review). When reviewing a mixed question of
law and fact, however, “we review the district court’s findings of fact for clear
error and construe the evidence in the light most favorable to the party prevailing
below.” United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007).
Whether an employee’s actions are within the scope of his employment for
purposes of the Act is an issue governed by the law of the state where the incident
occurred. S.J. & W. Ranch, Inc., 913 F.2d at 1543. The determination of scope of
employment by the district court must be based on the facts as determined by the
district court, rather than upon the mere allegations of the complaint. Osborne v.
Haley, 127 S. Ct. 881, 898 (2007) (“Were it otherwise, a federal employee would
be stripped of suit immunity not by what the court finds but by what the complaint
alleges.”).
6
Under Georgia law, the law applicable in the instant action, “[e]very person
shall be liable for torts committed by his . . . servant by his command or in the
prosecution and within the scope of his business, whether the same are committed
by negligence or voluntarily.” Ga. Code Ann. § 51-2-2. An employer is liable for
negligent or intentional torts committed by an employee only if the torts were
committed in furtherance of, and within the scope of, the employer’s business.
Piedmont Hosp., Inc. v . Palladino, 276 Ga. 612, 613, 580 S.E.2d 215, 217 (2003).
An employer cannot be held liable on the basis of respondeat superior if the
employee’s acts (1) were committed for purely personal reasons associated solely
with the employee’s own gratification, and (2) were entirely disconnected from the
scope of the employee’s employment. Id.
Having reviewed the record, we agree with the district court that at the time
they were made Bowen’s statements to Didier went beyond the scope of his
employment at the Training Center. Although Bowen denied making the
statements to Didier, the district court found Didier’s account more credible.
Didier explained that Bowen revealed the information to Didier in the context of
discussions regarding a separate Fair Labor Standards Act (“FLSA”) lawsuit
against the government in which both Schiefer and Didier were plaintiffs. Not
only did Didier testify that he had no business reason to know the status of
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Schiefer’s promotion application, it appears that Bowen revealed such information
as part of an effort to discourage Didier from participating as a plaintiff in the
separate FLSA suit alongside Schiefer.
At the time these discussions took place Schiefer had not yet been fired.
Insofar as the job descriptions of Schiefer and Didier and their professional
relationship to each other are concerned, any mention that Schiefer had lied, or
had been accused of lying, on his promotion application did not further any
discernible business purpose related to the Training Center. Therefore, we find
the record supports the conclusion that Didier’s testimony sufficiently rebutted the
U.S. Attorney’s certification and the finding of the district court that Bowen made
the statements and that such were not within the scope of his employment.
III.
Accordingly, we AFFIRM the district court’s denial of the government’s
motion to substitute the United States as the proper defendant with respect to
Bowen.
AFFIRMED.
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