### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

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- 60701

CHARLES BOLTON; LINDA BOLTON , Plaintiffs

– Appellants ,

versus UNITED STATES OF AMERICA , Defendant

– Appellee

.

Appeal s from the United States District Court for the Southern District of Mississippi

Before JOLLY , SMITH , and COSTA , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
Charles and Linda Bolton sued two federal agents for making allegedly defamatory comments to a local news station. The district court held that the Boltons failed to allege specific facts that, taken as true, establish that the agents’ actions exceeded the scope of their employment. As a result, the court deni e d scope

- of

- employment discovery, substituted the United States as the United States Court of Appeals Fifth Circuit 

### FILED Decembe r 30, 2019 Lyle W. Cayce Clerk Case: 18-60700 Document: 00515252426 Page: 1 Date Filed: 12/30/2019No. 18

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2 proper defend ant, and dismissed for failure to file an administrative claim

. We affirm.
I. In September 2016, a jury convicted Charles Bolton on four counts of tax evasion and five counts of filing a false tax return and Linda Bolton on five counts of filing a false tax return. At sentencing, the government contended that the Bolton s did not pa y t axes on the value of food they stole from Forrest County Jail and used in their catering and restaurant business. The court “looked long and hard at this particular issue” and determin e d that it was “clear that Mr. and Mrs. Bolton, while they [were] no t charged with a con spir

acy, worked together and agreed on a common plan or scheme to utilize things to increase their cash income .” The court explained that the Boltons “took advantage of the stolen food” and “didn’t pay the taxes on what they earned.” “There was a culture of corruption in the Forrest County Jail,” and the Boltons “participated in it for 10 years.” Consequently , the court enh anced the Boltons’ sentences based on other “relevant conduct” in the form of “jail food theft.” Charles and L inda were sentenced to 45 and 30 months, respectively, and ordered, jointly and severally, to pay more than $145,000 in restitution. We affirmed. 1 Just over a month after the sentencing, a local news station interviewed Christopher Freeze and Jerome McDuf fie about the Boltons’ crim inal trans

gres sions. Freeze is the Special Agent in Charge of the F BI ’s Jack son Division. As “the top executive official of the FBI” in Mississippi, Freeze is “responsible for all FBI business” there. One of Freeze’s principal responsibilities is to

1 See United States v. Bolton , 908 F.3d 75, 96 (5th Cir. 2018) (“The district court was within its discretion to use the food theft as a basis for an upward variance

. . . . ”). Case: 18-60700 Document: 00515252426 Page: 2 Date Filed: 12/30/2019No. 18

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3 “ [e] stablish[] and maintain[] effective relationships with

. . . the media to fu r ther law enforcement efforts in [his] jurisdiction.” The news station’s article quotes Freeze saying that the Boltons “were taking over $700,000 of food that was bought for the jail to be used for the inmates in the jail and then diverting that to their own restaurants, and then selling it, preparing it and selling it to their customers.” “Freeze could not comment on any ongoing investigation” but explained how the FBI puts cases together and provided a stern warning to those committing crimes in the ar ea . McDuffie was the Special Agent in Charge of the Criminal Investigation Division of the IRS for the New Orleans Field Office. Among his duties, McDuffie was responsible for “representing Criminal Investigation to the media and public in general.” He t old the news station that this was “a situ

ation where individuals misus[ed] public or tax payer assets. . . . In this case, foods paid for by the tax payers that were supposed to go into the jail system, but actually found their way into businesses owned by the Boltons.” McDuffie also described the IRS’s broader mission and provided “strong messages for those who may be breaking the law.” Based on those interviews, the Boltons sued Freeze and McDuffie, in their individual capacities, in state court. The Boltons asserted claims of slan

der, negligent infliction of emotional distress, and intentional infliction of emo

tional distress. Under 28 U.S.C. §§ 1442(a) and 2679(d)(2), the U

. S

. Attorney certified that Freeze and McDuffie were “acting within the sc ope and course of [their] employment as .

. . employee[s] of the Federal government.” Accord

ingly, the United States was substituted by operation of law as the defendant, and i t removed the suits to federal district court. The government moved to dismiss for lack of subject

- matter jurisdiction. The district court held that because Freeze and McDuffie were acting within Case: 18-60700 Document: 00515252426 Page: 3 Date Filed: 12/30/2019No. 18

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4 their scope of employment, the exclusive remedy is against the United States under the Federal Tort Claims Act (“FTCA”)

. The court then dismissed the suits, because the Boltons never filed an administra tive claim, as the FTCA requires. Citing testimony from a Senate Judiciary Com mittee hearing on the Hillary Clinton email investigation, the Boltons moved for reconsidera tio n , which the district court denied. The Boltons appeal. 2
II. The Westfall Act provides that when a federal employee is sued in state court, the Attorney General (“AG”) or his designee may certify “that the defen

dant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose .” § 2679(d)(2). Once a suit is certified, “the United States shall be substituted as the party defendant,” and the suit “shall be removed” to federal district cour t. Id. Additionally, the suit “shall be deemed to be an action or proceeding brought against the United States” under the FTCA. Id. An FTCA action cannot proceed “unless the claim ant shall have first presented the claim to the appropriate Federal age ncy.” § 2675(a). Although t he AG ’s or a designee’s certification conclusively establishes removal jur isdiction , § 2679(d)(2) ; Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 432 (1995) , certification is judicially reviewable for the purpose of substi

tut ing the United States as the defendant , Gutierrez de Martinez , 515 U.S. at 434. The plaintiff has the burden of showing “that the defendant’s conduct was not within the scope of his or her employment.” Williams v. United States , 71 F.3d 502, 506 (5th Cir. 1995).

2 On appeal, the Boltons’ lawsuits against Freeze ( No. 18

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5 The Boltons contend that the district court erred in finding that Freeze and McDuffie acted within their scope of employment. We review th at legal conclusion de novo

. Rodriguez v. Sarabyn , 129 F.3d 760, 76 6 (5th Cir. 1997). The Boltons also aver that they have “pled more than adequate facts to entitle them to conduct discovery and uncover additional evidence to demonstrate that [ Freeze and McDuffie] were only acting to serve their own interest as private citizens and not in furtherance of their e mployer.” We review the district court’s decision to deny limited discovery for abuse of discretion. 3
A. To rebut the government’s scope

- of

- employment certification, “the plain

tiff must allege, in either the complaint or a subsequent filing, specific facts that, taken as true, would establish that the defendant’s actions exceeded the scope of his employment.” Jacobs v. Vrobel , 724 F.3d 217, 220 (D.C. Cir. 2013) (cleaned up). “ [T]here is no right to even ‘limited discovery’ unless a plaintiff has made allegations sufficient to rebut the Government’s certification.” 4 “[T]he burden of proof lies with the plaintiff to show that the [AG’s] ini

tial decision was incorrect” based on “ the law of the state in which the alleged misconduct occurred.” Palmer v. Flaggman , 93 F.3d 196, 199 (5th Cir. 1996). For inquiries into whether an employee acted outside the scope of his employ

ment, Mississippi has incorporated the standards of the Res tate ment (Second) of Agency:

3 See White v. United States , 419 F. App’x 439, 443 (5th Cir. 2011); accord Singleton v. United States , 277 F.3d 864, 87 0 (6th Cir. 2002) , overruled on other grounds by Hawver v. United States , 808 F.3d 693 (6th Cir. 2015) ; Gutierrez de Martinez v. Drug Enforcement Admin. , 111 F.3d 1 148, 1155

– 56 (4th Cir. 1997).

4 Wuterich v. Murtha , 562 F.3d 375, 386 (D.C. Cir. 2009); see also White , 419 F. App’x at 443 (stating that a plaintiff challenging the government’s certification “has no right to . . . discovery unless and until she alleges f acts that plausibly suggest [the defendant] acted out

side the scope of her employment”). Case: 18-60700 Document: 00515252426 Page: 5 Date Filed: 12/30/2019No. 18

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6 (1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at le ast in part, by a purpose to serve the mas

ter, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the author

ized time or space limits, or too little actuated by a purpose to serve the master. Commercial Bank v. Hearn , 923 So. 2d 202, 208 (Miss. 2006) (quoting R ESTATE

MENT (S ECOND ) OF A GENCY § 228 (1958)). The Bo ltons audaciously characterize Freeze’s and McDuffie’s interviews as “similar to a late

- night guest appearance on Jay Leno” and contend that “[g]oing on tell

- all type interviews, something similar to writing a tell

- all book, is not kind of acts IRS and FBI agents are employed to perform

. ” Th at char ac terization, however, bears no resemblance to the facts alleged in the pleadings or the news article they have attached. Freeze and McDuffie were instructed to engage with the media on behalf of their respect ive agencies as part of their jobs. And none of the facts alleged indicates that the interviews were not “actu

ated, at least in part, by a purpose to serve the” FBI and IRS. Id. The Boltons also assert that “slander is not something is not something [ sic ] the master would either expect an agent would say or something which would serve the master.” But

— even if Freeze’s and McDuffie’s statements

were slanderous

— that doesn’t necessarily mean that they weren’t wi t hin t he scope of employment. Freeze’s and McDuffie’s alleged conduct was, at a mini

mum, “incident to the authority expressly conferred” to communicate with the Case: 18-60700 Document: 00515252426 Page: 6 Date Filed: 12/30/2019No. 18

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7 media. 5 The Boltons’ contenti on that tortious conduct is inherently outside the scope of employment is untenable. As the district court explained, “If a tort committed during conduct otherwise within the scope of a government agent’s duties were construed as falling outside the agent ’s duties, it would completely abrogate the personal immunity granted by 28 U.S.C. § 2679.” The proper inquiry is whether the interview was conducted in the course of employment, not whether Freeze or McDuffie committed a tort during the interview.
B. To su pport their contention that the district court erred in denying them
scope - of

- employment discovery, the Boltons rely on Stokes v. Cross , 327 F.3d 1210 (D.C. Cir. 2003). In Stokes , the plaintiff, a police officer for the Govern

ment Printing Office, allege d that several of his fellow employees deliberately failed properly to investigate allegations that he had not provide d his subordin

ate with necessary assistance in dealing with a trespasser. Because Stokes plau s ibly alleged that his co

- workers acted c ontrary to their employer’s inter

est when they attempted to prevent the best candidate from receiving the pro

motion at issue , the court held that the district court should have allowed
scope - of

- employment discovery. In contrast, the Boltons identify no personal interests served by the agents’ statements to the media. Nor do they explain how the depositions and document discovery that they demand are calculated to produce relevant evidence. 6 Because the Boltons have not alleged any facts

5 Scott

- Burr Stores Corp. v. Edgar , 177 So. 766, 768 (Miss. 1938) (holding that store manager’s allegedly “slanderous words” regarding customer’s theft were within th e scope of his employment despite instructions “expressly forbid d [ing]” him from “accus[ing] [a cus

tomer] of stealing”).

6 Cf. Borneman v. United States , 213 F.3d 819, 827 (4th Cir. 2000) (stating that the plaintiff has the burden of submitting “specific evidence or the forecast of specific evidence Case: 18-60700 Document: 00515252426 Page: 7 Date Filed: 12/30/2019No. 18

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8 that, taken as true, plausibly suggest that Freeze or McDuffie acted outside the scope of his employment, they have no right to even limited discovery.
C. In their reply brief, the Boltons aver for the first time that denying their request for limi ted discovery “contradicts the spirit of the Federal Rules of Civil Procedure.” We do not consider that contention, however, because “[a]rgu

ments raised for the first time in a reply brief are waived.” Dixon v. Toyota Motor Credit Corp. , 794 F.3d 507, 5 08 (5th Cir. 2015) (citation omitted)

. III. The Boltons assert that testimony from a Senate Judici ary Commit tee hearing on the Hillary Clinton email investigation provide s a proper ground for reconsideration. “A motion to alter or amend the judgment und er Rule 59(e) must clearly establish either a manifest error of law or fact or must present newly discovered evidence and cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Schiller v. Physi

cians Res. G rp. Inc. , 342 F.3d 563, 567 (5th Cir. 2003) (cleaned up). We review the denial of Rule 59(e) motions for reconsideration for abuse of discre tion. Allen v. Walmart Stores, L.L.C. , 907 F.3d 170, 184 (5th Cir. 2018). The Boltons’ “new evidence”

— in their wo rds

— is testimony on the “poli

cies and norms of the Department of Justice,” “including the topic of unauthor

ized contact with the media and prohibited statements and commentary to the media about uncharged conduct.” That testimony, however, does not enti tle the Boltons to discovery as to the scope of Freeze’s and McDuffie’s duties, because the Boltons still have not “allege[d] facts that plausibly suggest

that contradicts the [AG’s] certification decision, not mere conclusory allegations and specu

la tion.” (internal quotation marks omitted)) Case: 18-60700 Document: 00515252426 Page: 8 Date Filed: 12/30/2019No. 18

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9 [Freeze or McDuffie] acted outside the scope of h[is] employment.” White , 419 F. App’x at 443. The Boltons do not dispute that Freeze and McDuffie were instructed to engage with the media as representatives of the FBI and IRS, respectivel y. “E xtensive precedent makes clear that alleging a federal employee violated policy or even laws in the course of her employment

— including specific allega

tions of defamation or of potentially criminal activities

— does not take that conduct outside the scope of employment.” Smith v. Clinton , 886 F.3d 122, 126 (D.C. Cir. 2018) (per curiam) (collecting cases) . “The proper inquiry focuses on the underlying dispute or controversy, not on the nature of the tort, and is broad enough to embrace any intentional tort arising out of a dispute that was originally undertaken on the employer’s behalf.” Id. at 126

– 27 (cleaned u p). E ven if parts of what Freeze and McDuffie discussed violated agency policy,
pro viding the interview was still within the scope of their employment. Accord

ingly , th e testimony from the Senate c ommittee hearing does not provide a basis for reconsider ation, much less constitute a “manifest error of law or fact.” Schiller , 342 F.3d at 567. In sum, the offending statements were in the scope of the defendants’ employment, and reconsideration was not warranted by any supposed addi

tional evidence. The ju dgment of dismissal is AFFIRMED. Case: 18-60700 Document: 00515252426 Page: 9 Date Filed: 12/30/2019