     Case: 08-20825     Document: 00511022181          Page: 1    Date Filed: 02/08/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 8, 2010

                                       No. 08-20825                    Charles R. Fulbruge III
                                                                               Clerk

CATHY A ANDERSON,

                                                   Plaintiff - Appellant
v.

UNITED STATES OF AMERICA,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3381


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        This is an appeal of the district court's orders substituting the Government
as Defendant and dismissing the case. For the following reasons, we REVERSE
and REMAND.
                                              I.
        Plaintiff/Appellant Cathy Anderson is a Group Supervisor in the Office of
Disability Adjudication and Review of the Social Security Administration
("SSA"). Scot Stier is a Case Intake Assistant in that office. Stier's duties as a

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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Case Intake Assistant included reviewing and analyzing cases from SSA
claimants to ensure sufficiency of the evidence, preparing case summaries,
communicating with claimants about their claims, and, when requested,
receiving and reviewing incoming mail. At all relevant times, Appellant was
Stier's supervisor.
       In July 2007, Appellant proposed a three-day suspension of Stier for his
alleged failure to properly process a large amount of mail that had been assigned
to him. On October 2, 2007, Stier wrote a letter to the Disclosures Unit of the
Office of Special Counsel ("OSC"), alleging that Appellant had been
"confiscating" mail from SSA claimants and "holding on to it" for more than a
year, rather than allowing the mail to be properly distributed for review. Stier
claimed that Appellant's actions violated the claimants' due process rights and
that her actions were a "gross mismanagement and abuse of authority."1
       On September 29, 2008, Appellant filed a Petition in Texas Civil District
Court, claiming that Stier's letter to the OSC had defamed her.                     In the
alternative, Appellant claimed that Stier's letter had caused her intentional
infliction of emotional distress. On November 14, 2008, the Government – acting
on Stier's behalf – removed the case to federal district court. The Government
also filed a motion to substitute itself as Defendant in the case. As grounds for
removal and substitution, the Government argued that Stier had been acting
within the scope of his employment when he wrote the allegedly defamatory
statements. Accordingly, the Government argued that the exclusive remedy for
Appellant's claims was the Federal Tort Claims Act ("FTCA"), and that the



       1
         The record indicates that the OSC concluded its investigation against Appellant and
took no action against her. Stier, however, was ultimately suspended by the SSA temporarily
for failure to perform his duties. Stier subsequently filed a "Whistleblower" claim with the
Merit Systems Protection Board, alleging that the SSA retaliated against him for writing his
complaint letter about Appellant to the OSC. The MSPB held, however, that Stier had been
reprimanded for his failure to do his job and not for his purported whistleblowing activity.

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                                  No. 08-20825

proper Defendant was the Government. See 28 U.S.C. §§ 2679(b)(1), (d). The
Government attached a certification from the United States Attorney for the
Southern District of Texas asserting that Stier was acting within the scope of his
employment for purposes of the FTCA. A week later, the Government moved for
dismissal of the entire case, arguing that Appellant had failed to exhaust her
administrative remedies and that her claims were otherwise barred by the
FTCA.
      On December 9, 2008, the district court granted the Government's motion
to substitute parties and dismissed Stier from the case. Also on that day, the
district court issued a final order of dismissal. Appellant now appeals both the
order substituting parties and the order dismissing the case.
                                        II.
      We review a district court's dismissal of a case on the pleadings de novo.
See Bonner v. Henderson, 147 F.3d 457, 459 (5th Cir. 1998) (citing Guidry v.
Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992)).
                                       III.
      We begin with the district court's order substituting the Government as
Defendant. The entirety of that order states: "Scot A. Stier is dismissed, and the
United States of America is substituted under the Federal Torts Claims Act."
      The FTCA provides the exclusive remedy "for injury or loss of property, or
personal injury or death arising or resulting from the negligent or wrongful act
or omission of any employee of the Government while acting within the scope of
his office or employment . . . ." 28 U.S.C. § 2679(b)(1) (emphasis added).
Specifically, § 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


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                                  No. 08-20825

      under the provisions of this title and all references thereto, and the
      United States shall be substituted as the party defendant.

§ 2679(d)(1) (emphasis added).

      In the instant case, the United States Attorney for the Southern District
of Texas, acting on proper authority for the Attorney General, certified that Stier
was acting within the scope of his employment when Stier wrote the allegedly
defamatory letter. See 28 C.F.R. § 15.4(a). This certification precludes us from
ordering a remand to state court in the event that the Attorney General and the
district court erred in determining Stier's scope of employment. See § 2679(d)(2);
Osborn v. Haley, 549 U.S. 225, 241-42, 127 S. Ct. 881, 894 (2007). However, the
certification does not "preclude a district court from resubstituting the federal
official as defendant for purposes of trial if the court determines, post removal,
that the Attorney General's scope-of-employment certification was incorrect."
Id. at 242, 127 S. Ct. at 894 (emphasis in original). Accordingly, the district
court's order substituting parties is susceptible to our review. See id.; Garcia v.
United States, 62 F.3d 126, 127 (5th Cir. 1995) (en banc).
      "[W]hether a particular federal employee was or was not acting within the
scope of his employment is controlled by the law of the state in which the
negligent or wrongful conduct occurred." Garcia, 62 F.3d at 127 (citing Williams
v. United States, 350 U.S. 857, 76 S. Ct. 100 (1955)). In Texas, to be found
within the scope of employment, an employee's act must fall "[1] within the scope
of the employee's general authority [2] in furtherance of the employer's business
and [3] for the accomplishment of the object for which the employee was hired."
Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002) (citing
Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.3d 354, 357 (Tex. 1971)). In
addition, "'the conduct must be of the same general nature as that authorized or
incidental to the conduct authorized.'" Id. (quoting Smith v. M Sys. Food Stores,



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                                 No. 08-20825

Inc., 297 S.W.2d 112, 114 (1957)). "In other words, if an employee deviates from
the performance of his duties for his own purposes, the employer is not
responsible for what occurs during that deviation." Id. (citing ITT Consumer
Fin. Corp. v. Tovar, 932 S.W.2d 147, 158 (Tex. App. 1996)).
      "For an employer to be liable for defamation by its employee in Texas, the
defamatory statement must be (1) referable to a duty owed by the employee to
the employer and (2) made while the employee is in the process of discharging
that duty." Rodriguez v. Sarabyn, 129 F.3d 760, 769 (5th Cir. 1997) (citing
Texam Oil Corp. v. Poynor, 436 S.W.2d 129, 130 (Tex. 1968)). For an employer
to escape vicarious liability, a employee has to do more than "mentally turn[]
aside" from his employer's business and must be outside of his actual duties of
employment. Id. (citing H.T. Cab Co. v. Ginns, 280 S.W.2d 360, 362 (Tex. App.
1955)); Tex. & P. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 241 (Tex. 1952)).
      In Minyard, the plaintiff sued Minyard (her employer) and her direct
supervisor for defamatory comments that her supervisor had made in response
to a workplace misconduct investigation. Minyard, 80 S.W.3d at 578. The court
held that the supervisor had acted outside the scope of his employment when
defaming the plaintiff because there was no evidence that the supervisor's
comments "were referable to any duty owed to Minyard, or, in other words, were
in furtherance of Minyard's benefit, and for the accomplishment of the object for
which the employee was hired." Id. at 579. The court noted that "Minyard's
policies   require   employees   to   participate   in   workplace   misconduct
investigations," as the supervisor did when he defamed the plaintiff, arguably
giving rise to a duty by the supervisor to speak to the investigators.            Id.
Nevertheless, the court held that no vicarious liability existed because "these
policies do not demonstrate that [the supervisor's] defaming [the plaintiff] to
[another worker] during the investigation would further Minyard's business and
accomplish a purpose of [the supervisor's] job." Id.

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       Minyard is analogous to the instant case. Like the supervisor in Minyard,
Stier made his allegedly defamatory comments as part of what would become a
workplace misconduct investigation. However, assuming Appellant's allegations
to be true, Stier's comments were not in furtherance of his specific duties as a
Case Intake Assistant, but made out of a personal vendetta to punish Appellant
for her recommended suspension. Stier was not "acting for the employer's
benefit" when he lied about Appellant, nor were his defamatory comments "to
accomplish an objective of his job." Id. at 578 (citations omitted). Indeed, as the
court in Minyard stated, "[t]here is a critical distinction between defaming
someone to one's employer and defaming someone for one's employer." Id. at
579. Moreover, Stier did more than mentally turn aside from his duties. He
deviated from his normal courses of action to fabricate a story that Appellant
was harming others.
       Despite noting the similarities to Minyard, the Government argues that
Stier was acting within the scope of his employment because Stier's letter
complained of Appellant withholding claimants' mail, and Stier's duties included
processing correspondence in a timely manner. The Government further argues
that we have already held that government agents who allegedly defamed
another in the course of their duties were shielded from defamation claims
because their comments "were incident to the discharge of [their duties]." See
Rodriguez, 129 F.3d at 770-71.2 Rodriguez, however, is distinguishable. In
Rodriguez, two federal agents were specifically tasked by the Bureau of Alcohol,
Tobacco, and Firearms ("ATF") to make statements on the agency's behalf to
third parties about a particular work-related incident. See id. at 770. One of the
agents also had a duty as supervisor to inform his subordinates of the event. Id.


       2
         The Government also cites Aversa v. United States, 99 F.3d 1200, 1207-08, 1213 (1st
Cir. 1996). Aversa, however, is a First Circuit case that applies New Hampshire law regarding
scope of employment, not Texas law. See id. at 1210. Its ruling is therefore not apposite.

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       In the instant case, however, no one at the SSA specifically tasked Stier
to report on his supervisor's behavior, nor was it a specific function of his work
duties. Instead, Stier gratuitously provided the allegedly defamatory statements
to the OSC while doing nothing to seek relief through his own chain of command.
Stier may perhaps have had a general duty to report misconduct or illegal
activity.    Moreover, such a report, if true, may ultimately facilitate the
performance of his duties. However, this general duty is not the same as being
specifically tasked by one's superiors to provide information to third parties
about a particular incident, nor is it akin to a supervisor's duty to keep his
subordinates informed of relevant events. See Rodriguez, 129 F.3d at 770-71; see
also Crouch v. J C Penney Corp., Inc., 337 F. App'x 399, 403 (5th Cir. 2009) ("If
statements made by an employee to his employer about another employee as
part of a required workplace investigation cannot give rise to defamation [by
vicarious liability], JCP cannot be liable for defamation simply because it
allowed employees to report misconduct to HR.") (emphasis in original).
Accordingly, we do not find the facts in Rodriguez dispositive.3
       In conclusion, Stier was not hired nor tasked with supervising Appellant
and reporting on her behavior. Any purported duty to do so in order to prevent
fraud, waste, and abuse was tangential to his duties as a Case Intake Assistant.
Assuming Appellant's allegations are true (which we must at the pleadings
stage), Stier's defamatory letter was not "for the accomplishment of the object
for which [he] was hired," Minyard, 80 S.W.3d at 577, and therefore was not
"within the scope of his office or employment," § 2679(d)(1). Accordingly, the




       3
        Indeed, the court in Minyard distinguished the statements of the ATF agents in
Rodriguez by noting that "the defamatory statements [in Rodriguez] were the kind that the
employees were 'authorized and expected to make and were closely connected to the
performance of their duties.'" Minyard, 80 S.W.3d at 579 (quoting Rodriguez, 129 F.3d at 771).
We do not find the same case here.

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Government erred in certifying Stier's actions, and the district court erred in
substituting the Government as Defendant.
                                       IV.
      Because the United States is not the proper Defendant, we must review
the district court's dismissal of Appellant's claims based on the laws that would
have applied if Stier had remained in the case. The district court held that
Appellant's claim of defamation was barred by the statute of limitations.
However, the statute of limitations for a tort claim of defamation is one year, and
Appellant filed her case less than one year after Stier published the letter. See
T EX . C IV. P RAC. & R EM. C ODE A NN. § 16.002(a) (Vernon 2002). Accordingly,
dismissal of the defemation claim was improper. Secondly, the district court
held that Appellant's claim of intentional infliction of emotional distress was
barred by Appellant's failure to exhaust administrative remedies. However,
because the Government is not a proper party, this case does not fall within the
FTCA's exhaustion requirements. Accordingly, dismissal of Appellant's second
claim was also improper.
                                        V.
      The district court's order substituting the Government as Defendant is
REVERSED. Consequently, the district court's order dismissing Appellant's
claims based on the statute of limitations and failure to exhaust administrative
remedies under the FTCA is REVERSED. The case is REMANDED for further
proceedings.




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