Williams v. United States

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.

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