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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20825

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

United States Court of Appeals

Fifth Circuit

F I L E D

February 8, 2010

Charles R. Fulbruge III

Clerk

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No. 08-20825

 The record indicates that the OSC concluded its investigation against Appellant and 1

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.

2

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

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3

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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4

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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5

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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 The Government also cites Aversa v. United States, 99 F.3d 1200, 1207-08, 1213 (1st 2

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.

6

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. Rodriguez, however, is distinguishable. In 2

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.

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 Indeed, the court in Minyard distinguished the statements of the ATF agents in 3

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.

7

 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

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8

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

TEX. CIV. PRAC. & REM. CODE ANN. § 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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