UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRUCE L. HOFFMANN,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,
                                                                No. 98-1128
Defendant-Appellee,

and

LARRY CROUCH,
Defendant.

BRUCE L. HOFFMANN,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,
                                                                No. 98-1129
Defendant-Appellee,

and

JAMES M. REFENES,
Defendant.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-96-281-l, CA-96-282-1)

Argued: March 2, 1999

Decided: June 23, 1999

Before WILKINSON, Chief Judge, KING, Circuit Judge,
and LEE, United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jeremy Young Taylor, NATIONAL LEGAL
RESEARCH GROUP, INC., Charlottesville, Virginia, for Appellant.
Clifford Carson Marshall, Jr., Assistant United States Attorney, Ashe-
ville, North Carolina, for Appellee. ON BRIEF: Charles R. Brewer,
Asheville, North Carolina, for Appellant. Mark T. Calloway, United
States Attorney, Asheville, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bruce Hoffmann sued two fellow Veterans Administration ("VA")
employees, James Refenes and Larry Crouch, in North Carolina court,
alleging slander and libel. Acting pursuant to the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. §§ 2671-80, the United States Attorney for
the Western District of North Carolina certified that Refenes and
Crouch had made the statements of which Hoffmann complains
within the scope of their employment. As a result, the United States
moved to substitute itself for both Refenes and Crouch, and the case
was removed to district court. The United States further moved to dis-
miss, asserting sovereign immunity.

Hoffmann now appeals the district court's order substituting the
United States as defendant and dismissing his complaints. Because
we, like the district court, conclude that Hoffmann failed to prove that
Refenes and Crouch acted outside the scope of their employment, we
affirm.

                    2
I.

Hoffmann, Refenes, and Crouch work at the Veterans Administra-
tion Medical Center ("VAMC") in Asheville, North Carolina. Hoff-
mann is an Engineering Technician at the VAMC, as are Refenes and
Crouch.

In 1994, the relationship between Hoffmann and his co-workers
became adversarial. Hoffmann claims that he caught Refenes in
improper activities regarding a government contract. Hoffmann filed
a complaint about Refenes's alleged actions. Near the same time,
Refenes and Crouch taped some of Hoffmann's phone conversations
without Hoffmann's knowledge. When Hoffmann discovered this,
matters deteriorated.

At about the time these actions occurred, Hoffmann filed several
internal VA complaints, suits under the FTCA, and a workers' com-
pensation claim. As a result of some of these filings, the VA began
an internal investigation of Hoffmann's claims. Both Refenes and
Crouch, along with their immediate supervisors, filed affidavits as
part of this investigation. Refenes and Crouch also filed their own for-
mal complaints, generally alleging that Hoffmann was acting errati-
cally, that he was unpleasant to work with, and that he had made
statements about his "survivalist" activities that caused them to fear
for their safety in the workplace. Also, Refenes and Crouch discussed
these concerns with co-workers.

As a result of these various accusations and counter-accusations,
Hoffmann filed this suit in North Carolina court. In his complaints,
he alleged that certain written and oral statements made by Refenes
and Crouch were defamatory.*
_________________________________________________________________
*The statements of which Hoffmann complains can be summarized as
follows:

1. Statements by Refenes:

          a. Allegations in a formal, written complaint Refenes submit-
          ted to his and Hoffmann's superiors at the VA. Specifically,
          Hoffmann believes Refenes falsely stated that:

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After Hoffmann filed suit, the United States Attorney certified that,
when the defendants made the statements at issue, they were acting
within the scope of their employment. As a result, the United States
_________________________________________________________________

          (1) Hoffmann made false accusations against him;

          (2) Hoffmann ignores the VA chain of command and has
         complained to officials in Washington, D.C. about nonexistent
         problems;

          (3) Hoffmann "boasted that he was a survivalist," that he
         could make explosives, that his property is booby-trapped, and
         that he is armed;

         (4) Hoffmann lacks computer expertise and is causing extra
         work for his colleagues, including Refenes;

          (5) Hoffmann lacks interpersonal skills and is incompetent;
         and

          (6) Refenes is, for various reasons, scared of Hoffmann and
         fears for his own safety in the workplace.
         b. Factual statements in an affidavit Refenes submitted in
         response to a VA investigation that Hoffmann initiated. Specifi-
         cally, Hoffmann complains that Refenes alleged the following:

          (1) Hoffmann is not following VA procedures and is doing
         things his own way;

          (2) Refenes filed a complaint against Hoffmann;

          (3) Refenes questions whether Hoffmann is dangerous; and

          (4) Hoffmann may have improperly obtained some supplies
         from the VA hospital.

         c. Oral statement to a co-worker--in response to that co-
         worker's concerns that Hoffmann might be suicidal--in which
         Refenes said that Hoffmann had offered to "take out" the boy-
         friend of Refenes's daughter. Refenes had been having trouble
         with the boyfriend.

2. Statements by Crouch:

         a. Written statements made in a formal complaint that Crouch
         filed with the VA to complain about Hoffmann:

          (1) Hoffmann told Crouch that Hoffmann had shot at a car
         and this had caused Crouch to fear Hoffmann;

                   4
moved to substitute itself as defendant, and the case was removed to
the district court for the Western District of North Carolina. The dis-
trict court then referred the case to a magistrate judge.

After a discovery period, the parties presented their evidence
regarding whether Refenes and Crouch had been acting within the
scope of their employment when they allegedly defamed Hoffmann.
The magistrate judge concluded that the defendants had acted within
the scope of their employment. He recommended that the United
States be substituted for Refenes and Crouch as the defendant, and
that Hoffmann's case be dismissed on grounds of sovereign immu-
nity. The district court, over Hoffmann's objection, adopted the mag-
istrate judge's recommendations in a carefully crafted opinion.

II.

Hoffmann now appeals, arguing that the district court erred in con-
cluding that Refenes and Crouch made the relevant statements within
the scope of their employment. Because the district court correctly
_________________________________________________________________
           (2) Hoffmann told Crouch that Hoffmann had booby-trapped
          his property; and

           (3) Crouch believes that Hoffmann is behaving erratically
          and lacks adequate hygiene.

          b. Written affidavit submitted in response to an internal inves-
          tigation that Hoffmann had initiated within the VA. Specifically,
          Hoffmann complains of the following facts averred by Crouch:

          (1) Hoffmann lacks computer skills;

           (2) Hoffmann is making false accusations against Crouch
          and is paranoid; and

          (3) Hoffmann lacks interpersonal skills and basic hygiene.

          c. Oral statement to another co-worker about things Hoffmann
          allegedly told Crouch--i.e., Hoffmann shot at a car and has land
          mines in his yard.

          d. Oral statement to Crouch's supervisor that the supervisor
          should call security if Hoffmann appeared at the office on a day
          when Hoffmann was supposed to be on leave.

                    5
determined that the statements were made within the scope of
Refenes's and Crouch's employment, we affirm.

A.

The district court's conclusion that the defendants acted within the
scope of their employment resolves a legal question, and we review
it de novo. Maron v. United States, 126 F.3d 317, 326 n.8 (4th Cir.
1997). But we must accept the district court's factual findings in sup-
port of its decision on this issue unless they are clearly erroneous. Id.

B.

1.

This case arises under the FTCA, as amended by the Federal
Employee Liability Reform and Tort Compensation Act
("FELRTCA"). See 28 U.S.C. §§ 1346(b), 2671-80. These acts immu-
nize a federal employee from liability for "negligent or wrongful
act[s] or omission[s] . . . while acting within the scope of his office
or employment." 28 U.S.C. § 2679. When a federal employee is sued
in tort, the United States Attorney for that district must certify
whether the employee was acting within the scope of his or her
employment at the time of the alleged tortious act. 28 U.S.C.
§ 2679(d)(1). If the United States Attorney certifies that the employee
acted within the scope of his or her employment, then (1) the United
States is substituted as a defendant; (2) suits filed in state court must
be removed to federal court; and (3) the plaintiff may sue the United
States only in accordance with the FTCA. Maron , 126 F.3d at 321.

Under the FTCA, the United States may be sued only for causes
of action for which it has waived sovereign immunity. Importantly for
this case--and fatally for Hoffmann's claims--the United States has
not waived immunity in defamation suits. Johnson v. Carter, 983 F.2d
1316, 1323 n.9 (4th Cir. 1993) (overruled on other grounds by
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)). As a result,
if the United States is substituted as defendant in a defamation suit,
the case must be dismissed because of sovereign immunity.

                     6
2.

Because Hoffmann has brought tort suits against two federal
employees, this case turns on the question whether the defendants
were acting within the scope of their employment when they made the
alleged defamatory statements. The United States Attorney has certi-
fied that the employees were acting within the scope of their employ-
ment. This certification is prima facie proof that the defendants were
acting within the scope of their employment. Maron, 126 F.3d at 322.
Thus Hoffmann must prove by a preponderance of the evidence that
the defendants' actions were beyond the scope of their employment.
Id. at 322-23.

In defining the scope of the defendants' employment, the district
court--and we--must apply the law of the state in which the tort
allegedly occurred. Id. at 323-24. Here, all parties were employed in
North Carolina at all relevant times, and the law of that state therefore
applies.

Although North Carolina courts have explained their"scope of
employment" test in various ways, the explanation most easily
applied to this case focuses on whether, at the time of the relevant
action, the employee was seeking to advance his employer's--or his
own--purposes:

          If the act of the employee was a means or method of doing
          that which he was employed to do, though the act be wrong-
          ful and unauthorized or even forbidden, the employer is lia-
          ble for the resulting injury, but he is not liable if the
          employee departed however briefly, from his duties in order
          to accomplish a purpose of his own, which purpose was not
          incidental to the work he was employed to do.

Wegner v. Delly-Land Delicatessen, 153 S.E.2d 804, 808 (N.C.
1967). In other words, if, in the performance of his duties, an
employee "adopts a method which constitutes a tort," his employer is
liable because the tort occurred while the employee"was about his
master's business." West v. F.W. Woolworth Co., 1 S.E.2d 546, 549
(N.C. 1939). But torts committed solely to carry out a personal ven-
detta are outside the scope of one's employment. See Troxler v. Char-

                     7
ter Mandala Center, Inc., 365 S.E.2d 665, 668 (N.C. App. 1988)
(reasoning that defamatory statements made "for a malicious purpose"
are not within scope of employment).

North Carolina has applied its "individual purpose" rule in all types
of tort cases, including those involving intentional torts such as defa-
mation. E.g., West, 1 S.E.2d 546. And although North Carolina
regards such intentional torts as only rarely within the scope of an
employee's duty, Medlin v. Bass, 398 S.E.2d 460, 464 (N.C. 1990),
we have held that, regardless of applicable state law, the FELRTCA
does not prohibit the substitution of the United States as a party in the
case of intentional torts, Maron, 126 F.3d at 326.

3.

Here, Hoffmann argues that when Refenes and Crouch made the
statements at issue, they were "motivated by their personal desire to
punish Hoffmann for his whistleblowing and to destroy Hoffmann's
credibility." As a result, he argues that they acted out of personal mal-
ice, and therefore they could not have been acting within the scope
of their employment.

But the district court specifically rejected Hoffmann's characteriza-
tion of his co-workers' motivation: "[T]he Court rejects Plaintiff's
argument that Refenes and Crouch had a personal motivation to retali-
ate against him." Instead, the district court found that Refenes and
Crouch made these statements out of a desire for"self preservation
in the context of their employment in response to complaints filed
against them by Plaintiff who initiated investigations into their con-
duct." As a result, the district court found that Refenes and Crouch
acted in the course of their employment, not out of personal malice.

The district court's finding that Refenes and Crouch did not act out
of personal motivation is crucial to this appeal, and it is well-
supported by the record. All the alleged defamatory statements were
made either within the formal VA investigation process or to other
co-workers. The VA's internal investigation process certainly con-
templates that its employees will make full and candid statements in
connection with such investigations. Further, all of these statements
relate either to Hoffmann's actions in the workplace or to his per-

                     8
ceived threat to workplace safety, both of which are relevant to the
defendants' job duties.

Given these undisputed facts, we cannot say that the district court
clearly erred when it found that, in making the statements at issue,
Refenes and Crouch acted in furtherance of their proper duties and
not out of improper personal motives. Consequently, we hold that
Hoffmann has failed to demonstrate that Refenes and Crouch acted
outside the scope of their employment when they made the statements
of which he complains. See Clemmons v. Life Ins. Co., 163 S.E.2d
761, 765 (N.C. 1968) (employee acts within scope of employment
when acting to further employer's purpose, not personal motive).

III.

Because Hoffmann has failed to prove that Refenes and Crouch
acted outside the scope of their employment, we affirm the district
court's order substituting the United States as sole defendant and dis-
missing Hoffmann's complaint on grounds of sovereign immunity.

AFFIRMED

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