Nadler v. Mann, 90-5383

• Decision Date: 17 January 1992
• Docket Number: No. 90-5383,90-5383
• Citation: 951 F.2d 301
• Parties: Joseph M. NADLER, Plaintiff-Appellant, v. Frederick (Fritz) MANN, Defendant-Appellee, United States of America, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 301

951 F.2d 301

Joseph M. NADLER, Plaintiff-Appellant, v. Frederick (Fritz) MANN, Defendant-Appellee United States of America, Defendant.

No. 90-5383.

United States Court of Appeals Eleventh Circuit.

Jan. 17, 1992.

Alfred Aronovitz, Miami, Fla., for plaintiff-appellant.

Gary J. Takacs, Whitney L. Schmidt, Asst. U.S. Atty., Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and DYER, Senior Circuit Judge.

TJOFLAT, Chief Judge:

Joseph M. Nadler appeals the dismissal of his civil action for damages arising from the alleged slander of Nadler by appellee Frederick Mann. The district court found that Mann's allegedly slanderous conduct was within the scope of his employment as a federal employee and, therefore, that Mann was immune from liability pursuant to the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act or Act), 28 U.S.C. § 2679 (1988). Nadler challenges this finding and argues that, in any event, the Liability Reform Act does not immunize federal employees from suit when the plaintiff is precluded by an exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80 (1988), from maintaining an action against the United States. We hold that the Liability Reform Act immunizes federal employees from liability even when an exception to the FTCA precludes a suit against the United States. Further, we find that all but one of Mann's allegedly slanderous actions were within the scope of his employment; therefore, we affirm in part and reverse in part the district court's order dismissing Nadler's cause of action and remand the case to the district court for further proceedings consistent with this opinion.

I.

In the summer and fall of 1986, Nadler was a judge on the Dade County (Florida) Circuit Court and was seeking re-election to that court. At the same time, Mann was an Assistant United States Attorney (AUSA) in the Miami Division of the Southern District of Florida. Also, Mann was one of two candidates opposing Nadler for a judicial seat on the Dade County Circuit Court.

For a period of time Mann participated in campaign activities only before or after work or during his lunch hour. Approximately three weeks prior to the primary election scheduled for September 2, 1986, however, Mann took annual leave, i.e., paid vacation, from his position as an AUSA. Mann, nevertheless, remained in contact with his office during his vacation in order to keep abreast of developments and to relay information relating to pending cases.

On or about August 28, 1986, while on annual leave from his position as an AUSA, Mann received a telephone call at his home from a public official ¹ who informed Mann that he had reason to believe that Nadler had accepted a bribe that had been offered to influence Nadler's decision in a case then pending before him. Mann told the public official that the appropriate way to handle this allegation of bribery was through the Federal Bureau of Investigation (FBI). The next day Mann arranged a meeting between the public official and a special agent of the FBI. Mann had no further participation in the investigation of the public official's allegation, nor was he kept appraised of its status, except on one occasion when he was a party to a telephone conversation between the AUSA who headed the Public Corruption Unit of the United States Attorney's Office for the Southern District of Florida in Miami and a representative of the Public Integrity Section of the Department of Justice in Washington, D.C.

On September 2, 1986, Nadler finished first in the primary election for the judicial seat. Mann finished third. A run-off election was scheduled for November 4, 1986 between Nadler and the candidate who had placed second in the primary election.

Approximately one week prior to the run-off election, the Miami Herald reported that Nadler was the subject of a criminal investigation being conducted by the United States Government stemming from an allegation that Nadler had accepted a bribe in connection with a case that had come before him as a judge on the Dade County Circuit Court. On November 4, 1986, Nadler won re-election to the Dade County Circuit Court.

On October 26, 1988, Nadler commenced this suit in the Dade County Circuit Court. Nadler alleges that Mann slandered and defamed him by initiating the investigation into his behavior and then by leaking the story of the investigation to the press. Nadler seeks $5,000,000 in compensatory damages and an unspecified amount in punitive damages.

Mann removed this action to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1442(a)(1) (1988) ² and Nadler moved to remand. In response to Nadler's motion to remand, the United States certified that Mann was acting within the scope of his employment and moved for substitution of the United States as the sole defendant pursuant to the Liability Reform Act. The Act provides that an action against the United States is the sole remedy for those injured by the negligent or wrongful acts committed by a federal employee while the employee is acting within the scope of his office or employment. ³ The Act further provides that, upon certification by the Attorney General that the federal employee's actions were within the scope of his employment, the United States shall be substituted for the federal employee as the defendant in the suit. ⁴

The district court concluded that the Attorney General's certification was appropriate and within his discretion. Nadler v. Mann, 731 F.Supp. 493, 496-97 (S.D.Fla.1990). ⁵ Thus, the district court held that Nadler could not maintain a direct action against Mann and that the United States must be substituted as the defendant. Id. at 498. Finally, the district court dismissed Nadler's action because the United States is immune from liability for defamation under the FTCA, 28 U.S.C. § 2680(h) (1988). ⁶ Id. at 498-99.

II.

Nadler presents two arguments on appeal. First, Nadler argues that because the United States is immune from liability for defamation claims under the FTCA, the Liability Reform Act does not immunize Mann from liability. Second, Nadler argues that the district court erred in holding that Mann was acting within the scope of his employment when he contacted the FBI regarding the allegation that Nadler had accepted a bribe and when he allegedly leaked the story of the FBI's investigation to a reporter at the Miami Herald.

A.

We quickly dispose of Nadler's first argument. Nadler argues that Congress did not intend to leave a person injured by the negligent act of a federal employee without a remedy against either the offending federal employee or the United States. His argument is grounded in his interpretation of the following language from the Liability Reform Act: "The remedy against the United States provided by ... [the FTCA] 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 is exclusive...." 28 U.S.C. § 2679(b)(1) (emphasis added). Nadler argues that absent any remedy, there is no reference to exclusion and he points out that the FTCA does not provide a remedy against the United States for slander. See 28 U.S.C. § 2680(h). Nadler further suggests that, because there is no remedy under the FTCA against the United States for defamation, the Liability Reform Act cannot immunize the federal employee he accuses of slander.

Nadler finds support for his interpretation in this court's decision in Newman v. Soballe, 871 F.2d 969 (11th Cir.1989). In Newman, this court concluded that the Liability Reform Act does not immunize a federal employee from liability when the FTCA precludes recovery against the government. Id. at 971. Newman, however, is no longer good law. After this court heard oral argument in the present case, the Supreme Court, in an unrelated case, addressed the very issue that this court decided in Newman. The Court held that the Liability Reform Act immunizes government employees from suit even when an exception to the FTCA precludes recovery against the United States. United States v. Smith, --- U.S. ----, ----, 111 S.Ct. 1180, 1183, 113 L.Ed.2d 134 (1991). The Supreme Court's holding in Smith controls our decision in this case. We reject, therefore, Nadler's argument that, because the FTCA precludes recovery against the government for slander, the Liability Reform Act does not apply to immunize Mann in this case.

B.

We turn now to Nadler's attack on the district court's determination that Mann's allegedly slanderous conduct fell within his scope of employment. A determination of whether an employee's actions are within the scope of his employment involves a question of law as well as fact. S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990), amended, 924 F.2d 1555 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991). We therefore review the district court's conclusion that Mann acted within the scope of his employment de novo. See International Ins. Co. v. Johns, 874 F.2d 1447, 1453 (11th Cir.1989) (mixed questions of law and fact are subject to plenary review); see also Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir.1991) (whether a Government employee was acting within the scope of his employment is a mixed question of law and fact which the court reviews de novo). In contrast, we adopt the factual findings underlying the district court's conclusion unless they are clearly erroneous. See International Ins. Co., 874 F.2d at 1453.

Whether a defendant employee's conduct falls within the scope of his employment for the purposes of the Liability Reform Act is governed by the law of ...