                                                                  [DO NOT PUBLISH]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.

                                                 2
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.

                                          5
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

                                          7
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.




                                           8
