UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-20639
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W. DOUGLAS WILLIAMS,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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December 13, 1995
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
On this third appeal in this case, Plaintiff-Appellant W.
Douglas Williams ("Williams") appeals the district court's order
granting the motion of the United States to substitute itself as
defendant in place of Congressman Jack Brooks ("Brooks") pursuant
to the Westfall Act, 28 U.S.C. § 2679(d), and the court's dismissal
for failure to state a claim upon which relief may be granted.
Finding that as a matter of law Brooks was acting within the scope
of his employment for purposes of the Westfall Act at the time he
allegedly made defamatory statements against Williams during a
television interview, we affirm.
I. BACKGROUND
On February 22, 1988, Williams and his political consulting
firm, Texas Dynamics, Inc., filed suit in Texas state court against
Brooks, alleging that Brooks defamed them during a press interview
on February 24, 1987 in Brooks's Washington, D.C. office, by a
Houston, Texas television station, concerning the status of an
appropriations bill to restore the Battleship Texas.1 Brooks
removed the action to federal court and invoked the defense of
official immunity.
On March 16, 1990, the district court denied Brooks's motion
to dismiss based on official immunity. Brooks filed an
interlocutory appeal to this Court, and we affirmed the denial of
Brooks's motion to dismiss.2 While the appeal was still pending,
the district court dismissed the case for failure of the parties to
file a joint pretrial order. We reversed the dismissal, holding
that the district court was divested of jurisdiction during
pendency of Brooks's interlocutory appeal, and remanded for further
proceedings.3
Following the second remand, a designated official of the U.S.
Department of Justice, acting on behalf of the Attorney General,
1
Williams and his firm contracted with the Battleship Texas
Advisory Board to raise money for the restoration, and lobbied for
an appropriation slightly in excess of five million dollars.
2
Williams v. Brooks, 945 F.2d 1322 (5th Cir. 1991), cert.
denied, 504 U.S. 931, 112 S.Ct. 1996, 118 L.Ed.2d 592 (1992).
3
Williams v. Brooks, 996 F.2d 728 (5th Cir. 1993).
2
certified that Brooks was acting within the scope of his employment
in accordance with the Westfall Act, 28 U.S.C. § 2679(d)4, at the
time of the alleged events forming the basis of the defamation
suit. Brooks then filed a motion with the district court to
substitute the United States as sole defendant under the terms of
the Westfall Act, and to proceed in accordance with the terms of
the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-
2680. The United States also moved to dismiss on the ground that
under the FTCA no action may lie against the United States for
defamation.
The district court granted both the motion to substitute and
the motion to dismiss. Relying on Third Circuit caselaw, the
district court found certification to be prima facie evidence that
Brooks's challenged conduct was within the scope of his employment,
and thus, the burden shifted to Williams to come forward with
specific facts to rebut the certification. After reviewing the
submissions on file with the court, the district court concluded
that Williams failed to meet his burden.
II. FEDERAL EMPLOYEE UNDER THE WESTFALL ACT
4
Section 2679(d)(2) provides in pertinent part:
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...shall be deemed
to be an action or proceeding brought 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
Williams suggests that Brooks, as a Member of Congress,
is not an "employee of the government" under the FTCA. This
argument raises a question of statutory interpretation requiring de
novo review on which neither party bears the burden of proof. See
Sullivan v. United States, 21 F.3d 198, 201 n. 6 (7th Cir.), cert.
denied, ___U.S.___, 115 S.Ct. 670, 130 L.Ed.2d 604 (1994).
The FTCA defines an "employee of the government" 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. Prior to the Westfall
Act amendments to the FTCA, the term "federal agency" only
encompassed the Executive Branch of the federal government.
However, in 1988, Congress extended coverage under the FTCA to
officers and employees of the legislative and judicial branches.
See Westfall Act, Pub.L. No. 100-694, § 3, 102 Stat. 4563, 4564
(1988); see also H.R.Rep. No. 100-700, 100th Cong., 2d Sess. 5,
reprinted in 1988 U.S.C.C.A.N. 5945, 5948 ("Section 3 of H.R. 4612
explicitly extends the coverage of the FTCA to officers and
employees of the legislative and judicial branches. The FTCA
currently covers employees of the Executive Branch only."). A
Member of Congress who holds an office in the U.S. House of
Representatives is clearly an employee or officer of the
legislative branch of the federal government. The plain language
of the statute thus suggests that Members of Congress are employees
of the government, for "[s]ection 2679(b)(1) applies without
4
exception to 'any employee of the Government,' and section 2671, as
amended by the Westfall Act, provides that officers and employees
of the [legislative branch] are encompassed within that phrase."
Sullivan, 21 F.3d at 202. If Congress intended to exclude Members
of Congress from the protection of the FTCA, it could have
expressly done so within the language of the Act. Therefore, we
find that as an employee of the government as defined under the
FTCA, Brooks is eligible for coverage if his conduct at issue was
within the scope of his employment.
III. SCOPE OF EMPLOYMENT
A.
In our recent decision in Garcia v. United States, 62 F.3d
126, 127 (5th Cir. 1995) (en banc), we held that the Attorney
General's certification of scope of employment under the Westfall
Act is subject to judicial review. Furthermore, we concluded that
the court's de novo review of whether a federal employee was acting
within the scope of his employment under the Act requires the
application of the law of the state in which the employee's conduct
occurred. Id. The question that remains unanswered after our
decision in Garcia is which party bears the burden of proof.
Only two circuits have held that the Attorney General's
certification constitutes conclusive evidence that the defendant-
employee was acting within the scope of his employment.5 Four
circuits, the D.C., Third, Sixth and Eighth, weigh the Attorney
5
Johnson v. Carter, 983 F.2d 1316 (4th Cir.), cert. denied,
___U.S.___, 114 S.Ct. 57, 126 L.Ed.2d 27 (1993); Aviles v. Lutz,
887 F.2d 1046 (10th Cir. 1989).
5
General's certification as prima facie evidence that the employee's
challenged conduct was within the scope of his employment.6
"Therefore, 'the burden of altering the status quo' is on the
plaintiff, who must come forward with specific facts rebutting the
government's scope-of-employment certification." Brown, 949 F.2d
at 1012 (internal quotations omitted).
The Ninth, Seventh, Eleventh and First Circuits place the
burden on the plaintiff to establish that the employee's conduct
exceeded his scope of employment without deferring to the Attorney
General's certification as prima facie evidence.7 In S.J. & W.
Ranch, the Eleventh Circuit concludes that the Attorney General's
scope certification does not warrant judicial deference based on:
1) the interpretation that removal and substitution determinations
under the Act are separate and distinct from scope of employment;
2) the concern that giving a conclusive effect for purposes of
substitution would enhance the power of the executive branch to
dictate the judicial branch's subject matter jurisdiction, thereby
raising separation of power issues; 3) the view that the Attorney
General does not possess expertise in determining an employee's
6
Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994),
cert. denied, ___U.S.___, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995);
Melo v. Hafer, 13 F.3d 736, 747 (3d Cir. 1994); Arbour v. Jenkins,
No. 91-2299, 1993 WL 342872, at *2 (6th Cir. Sept. 8, 1993) (per
curiam); Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991).
7
Meridian Int'l Logistics, Inc. v. United States, 939 F.2d
740, 744-45 (9th Cir. 1991); Hamrick v. Franklin, 931 F.2d 1209,
1211 (7th Cir.), cert. denied, 502 U.S. 869, 112 S.Ct. 200, 116
L.Ed.2d 159 (1991); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d
1538, 1543 (11th Cir. 1990), modified, 924 F.2d 1555 (11th Cir.),
cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991);
Nasuti v. Scannell, 906 F.2d 802, 813 (1st Cir. 1990).
6
scope of employment under the applicable state law; and 4) the
concern that the highly discretionary nature of the Attorney
General's certification may create a high risk of abuse. Id.8 For
the reasons set forth in S.J. & W. Ranch, we agree that the
plaintiff should bear the burden of proof without weighing the
Attorney General's certification as prima facie evidence of scope
of employment, and we adopt the placement of the burden of proof on
the plaintiff to show that the defendant's conduct was not within
the scope of his or her employment as applied by the Ninth,
Seventh, Eleventh and First Circuits.
B.
Texas law controls in this case with regard to the
determination of whether Brooks was acting within the scope of his
employment under the Westfall Act, even though the interview at
issue took place in Washington, D.C. "Texas has adopted the most-
significant-relationship test for determining which state's law
applies to a tort action." Levine v. CMP Publications, Inc., 738
F.2d 660, 667 (5th Cir. 1984) (citing Gutierrez v. Collins, 583
S.W.2d 312 (Tex. 1979)). As in Levine, Texas is the state where
Williams is domiciled, and where his firm is located. See id. See
also Restatement (Second) of Conflicts, § 150(2). In addition, the
broadcasting of the television interview took place in Houston,
Texas. Thus, the alleged defamation of Williams and any resulting
harm essentially took place in the State of Texas.
8
See also Meridian Int'l Logistics, Inc., 939 F.2d at 744;
Nasuti, 906 F.2d at 812-13.
7
Under Texas law, determination of scope of employment is
applied under the theory of respondeat superior; "employers may be
held liable for negligent acts by their employees under a theory of
respondeat superior only if the employee's actions are in the
course and scope of their employment." Mata v. Andrews Transport,
Inc., 900 S.W.2d 363, 366 (Tex. App.--Houston 1995).9
To find that the employee acted within the scope of employment, the
action of the employee must be:
(1) within the general authority given him;
(2) in furtherance of the employer's business; and
(3) for the accomplishment of the object for which the
employee was employed.
Id. (citing Drooker v. Saeilo Motors, 756 S.W.2d 394, 397 (Tex.
App.--Houston 1988, writ denied)). "To be within the scope of
employment, 'the conduct must be of the same general nature as that
authorized or incidental to the conduct authorized.'" Kelly v.
Stone, 898 S.W.2d 924, 927 (Tex. App.--Eastland 1995, writ
requested) (quoting Smith v. M System Food Stores, Inc., 297 S.W.2d
112, 114 (Tex. 1957)). Defamation is defined under Texas law as an
intentional tort. See City of Hempstead v. Kmiec, 902 S.W.2d 118,
122 (Tex. App.--Houston 1995). An employee's intentional tort is
9
Williams asserts that Texas law distinguishes scope of
office from scope of employment. The cases he cites predate the
enactment of the Texas Tort Claims Act. See Southern Surety Co. v.
Hidalgo County, 83 S.W.2d 313 (Tex. 1935); Brown v. Sneed, 14 S.W.
248 (Tex. 1890). We find that no such distinction between scope of
office and scope of employment under Texas law. After the
enactment of the Texas Tort Claims Act, liability of a state
governmental unit was determined by whether the employee was acting
within his scope of employment, not by duties defined by state
statute. Accordingly, we apply scope of employment under the Texas
theory of respondeat superior.
8
imputed to the employer under the doctrine of respondeat superior
when committed in the scope of employment. Houston Transit Co. v.
Felder, 208 S.W.2d 880, 881 (Tex. 1948) (citing Gulf, C. & S. F.
Ry. Co. v. Cobb, 45 S.W.2d 323, 325 (Tex. Civ. App. 1931, writ
dism'd)).10
Williams concedes that Members of Congress traditionally
communicate to the public about issues of law, often expressing
their concerns and opinions about the need to change the laws.
Indeed, the legislative duties of Members of Congress are not
confined to those directly mentioned by statute or the
Constitution. Besides participating in debates and voting on the
Congressional floor, a primary obligation of a Member of Congress
in a representative democracy is to serve and respond to his or her
constituents. Such service necessarily includes informing
constituents and the public at large of issues being considered by
Congress. It is unnecessary to the resolution of the case at bar
to present an exhaustive list of the duties of Members of Congress
or those activities that would or would not fall within a purview
10
Indeed, an employee's willful and malicious actions made
in the scope of his employment, or any acts which are so connected
with and immediately grow out of another act of the employee
imputable to the employer, are imputed to the employer unless the
employee's actions involve serious criminal activity. Cobb, 45
S.W.2d at 325; Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 777-78
(Tex. App.--Texarakana 1995, writ denied). Under the exception, an
employer is not liable for the employee's intentional or malicious
actions that are unforeseeable considering the employee's duties.
Id. (citing Adami v. Dobie, 440 S.W.2d 330, 334 (Tex. Civ. App.--
San Antonio 1969, writ dism'd); 1 J. HADLEY EDGAR & JAMES B. SALES, TEXAS
TORTS & REMEDIES § 4.02(2)[f] (1994)). Thus, even criminal acts can
be in the course and scope and impute liability if the acts are
foreseeable considering the employee's duties.
9
of activities taken in the course and scope of one's position as a
Member of Congress. In the instant case we are not hesitant to
find that as a matter of law Brooks's statements, including the
alleged defamatory remarks and even assuming such remarks are
defamatory, were made in the context of an interview addressing
Congress' appropriation of money including Williams's lobbying fees
for the restoration of the Battleship Texas, clearly fell within
the course and scope of his position as a Member of Congress. This
is especially true in the case of Congressman Brooks who was
Chairman of the House Appropriations Committee at the time of the
alleged defamation incident.
IV. CONCLUSION
For the reasons articulated above, the district court's order
granting the substitution of the United States as party defendant
and dismissing the case for failure to state a claim upon which
relief may be granted is AFFIRMED.
10