Rodriguez v. Sarabyn

• Decision Date: 24 November 1997
• Docket Number: No. 96-50463,96-50463
• Citation: 129 F.3d 760
• Parties: Robert RODRIGUEZ, Plaintiff-Appellee, v. Charles (Chuck) SARABYN, et al., Defendants, Charles (Chuck) Sarabyn; Roger M. Solomon, Ph.D.; Ted Royster, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 760

129 F.3d 760

Robert RODRIGUEZ, Plaintiff-Appellee, v. Charles (Chuck) SARABYN, et al., Defendants Charles (Chuck) Sarabyn; Roger M. Solomon, Ph.D.; Ted Royster, Defendants-Appellants.

No. 96-50463.

United States Court of Appeals Fifth Circuit.

Nov. 24, 1997.

Richard A. Grigg, Spivey & Grigg, Austin, TX, for Plaintiff-Appellee.

Stephen Henry Gardner, Gail Marie Dickinson, Dallas, TX, for Charles (Chuck) Sarabyn.

Robert Mark Loeb, Barbara L. Herwig, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for United States of America, Amicus Curiae.

Arthur David Carlson, Deanna Dean Smith, Carlson & Smith, Houston, TX, for Phillip J. Chojnacki and Ted Royster.

Guy M. Hohmann, Cristina Berg McGarr, Hohmann, Werner & Taube, Austin, TX, for Roger M. Solomon, Ph.D.

Appeals from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, KING, Circuit Judge, and DUPLANTIER, ^* District Judge.

KING, Circuit Judge:

Defendants-appellants bring this interlocutory appeal to challenge the district court's order finding that they were not acting within the scope of their federal employment. We affirm in part and vacate in part the district court's order and remand this case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Posture

This litigation stems from the Bureau of Alcohol, Tobacco, and Firearms (ATF) raid on the Branch Davidian compound in Waco, Texas on February 28, 1993. In February 1995, plaintiff-appellee Robert Rodriguez, an ATF agent, filed suit against the United States, the ATF, several ATF officials in their individual capacities, and Roger M. Solomon for allegedly tortious statements related to the raid made to the media and in subsequent investigations. Only three of the individual defendants are party to this interlocutory appeal: two ATF officials, Ted Royster and Charles Sarabyn, and Solomon, a psychiatrist who did work for the ATF. ¹ The United States filed a motion in the district court to substitute the United States for the ATF officials and dismiss the claims under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2679(d)(1), 2680(h). With its motion, the Government submitted official certifications that the ATF officials acted within the scope of their employment in relation to Rodriguez's allegations. However, Sarabyn was excepted from this certification for fifty-four days that he had been terminated from the ATF. All of the individual defendants moved for certification and substitution of the United States, including Sarabyn for the above fifty-four-day period. The district court denied all motions because it found that under Texas law the ATF officials did not act within the scope of their employment and that under federal law Solomon was an independent contractor and not an employee. The court also denied subsequent motions by the defendants to reconsider, including one making a judicial estoppel argument. The individual defendants appealed, and the United States filed an amicus brief.

B. Stipulated Facts

The issue before us on appeal is whether the individual defendants were acting within the scope of their employment with the United States when they made the allegedly defamatory statements. For the purposes of this determination, all parties except Sarabyn stipulated to the facts that follow. ²

On February 28, 1993, the ATF raided the Branch Davidian compound to serve search and arrest warrants. On the morning of the raid, Rodriguez went to the compound in an undercover capacity and spoke to the Branch Davidian leader, David Koresh. During his meeting with Koresh, Koresh left to take a phone call, and upon his return, he was visibly shaken and nervous and said that the ATF and National Guard were coming for him. Rodriguez concluded that Koresh was aware of the impending ATF raid.

Rodriguez left the compound and reported the events to James Cavanaugh, the Deputy Tactical Director for the raid. He told Cavanaugh that Koresh knew that the ATF was coming. In response to Cavanaugh's questions, Rodriguez said that he did not see any guns or anyone hurrying around the compound. Rodriguez then called Sarabyn, the Tactical Coordinator for the raid, and told him that Koresh knew they were coming. He told him that when he left, the Branch Davidians were praying in the compound.

The operation went forward, and the ATF attempted to serve the warrants at the compound. The ATF agents were met with a hail of gunfire, and four agents were killed and twenty were wounded in the firefight. Subsequent to the raid, Sarabyn and Royster made statements to investigators, the media, or Congress about the events that were inconsistent with what Rodriguez reported the morning of the raid. Sarabyn and Royster were authorized to speak to the media by the ATF and were required by the ATF to make statements to investigators and to Congress. Of the statements to Congress and the investigators, the defendants knew they were expected to be truthful and candid and were not authorized to mislead, lie, or otherwise cover-up the truth. Solomon made statements to one of the three official investigations and to an ATF official.

Sarabyn was the Assistant Special Agent in Charge of the ATF's Houston Division and the Tactical Coordinator for the raid. After speaking with Rodriguez on the morning of the raid, he told the ATF agents to "hurry up" because Koresh knew that the ATF was coming. He later denied knowing that Koresh knew of the imminent raid and denied making the statement to hurry up. He also has said that Rodriguez did not tell him that Koresh knew they were coming.

Royster was the Special Agent in Charge of the ATF's Dallas Division and rode in a helicopter during the raid. On the day of the raid, he heard Sarabyn say, "They know we're coming." Later, he denied knowing that the ATF had lost the element of surprise. Royster also told the ATF agents that he supervised in the Dallas office that surprise had not been lost, and at the direction of ATF Associate Director Daniel Hartnett, he told other agents that surprise had not been lost.

Solomon is a clinical psychologist who is a full-time employee for the Washington State Patrol. He also works as a consultant for railroads and various law enforcement agencies on critical incident trauma and peer support. In the four years prior to the raid on the Branch Davidian compound, Solomon conducted peer support workshops for the ATF once or twice a year, and during that same period he conducted approximately fifty seminars for other law enforcement agencies. The materials used in his seminars were provided by Solomon. Solomon's contract consisted of a Blanket Purchase Agreement with the ATF, under which he was to provide counseling on an "as needed" basis. This counseling occurred over the phone or in person and was billed by the hour or by the day plus expenses. Solomon could refuse requests asking him to respond to a particular location to provide services. The government never withheld income tax or social security from Solomon's payments or provided the health, retirement, or workmen's compensation benefits to which other government employees are entitled. The ATF did not consider Solomon to be an employee.

On February 28, 1993, Solomon was asked to come to Waco to provide his services to agents and their families in the aftermath of the raid. In April 1993, ATF Deputy Associate Director Edward D. Conroy asked Solomon to contact Rodriguez for counseling. Solomon contacted Rodriguez, but Rodriguez did not wish to participate in a group debriefing or talk to anyone.

II. JURISDICTION

Certification of scope of employment by the Attorney General or her designate is reviewable by the courts. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 115 S.Ct. 2227, 2229, 132 L.Ed.2d 375 (1995). We have jurisdiction to review the district court's denial of the certification of the defendants' acts being within the scope of their employment under the collateral order doctrine allowing immediate review under 28 U.S.C. § 1291 from orders denying government employees immunity. Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985); Mitchell v. Carlson, 896 F.2d 128, 133 (5th Cir.1990).

III. DISCUSSION

Unlike the normal tort action, the plaintiff here does not wish to impose vicarious liability upon the employer. In order to preserve his claims, Rodriguez argues that the individual defendants were not acting within the scope of their employment. If the individual defendants are found to have been acting in the scope of their employment, the United States is automatically substituted for the defendants, who are then dismissed from the action pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act). See 28 U.S.C. § 2679(b); Lamagno, 515 U.S. at 422, 115 S.Ct. at 2230. Once the substitution occurs, the FTCA applies, and some claims may be dismissed for lack of subject-matter jurisdiction because the United States has not waived its sovereign immunity. 28 U.S.C. § 2680. ³ Therefore, Rodriguez may be left without a remedy for the allegedly tortious acts of the defendants. See id. § 2679(b) (making the FTCA the exclusive remedy for compensation for tortious acts of federal employees in the scope of their employment); Lamagno, 515 U.S. at 422, 115 S.Ct. at 2230; Aversa v. United States, 99 F.3d 1200, 1207-08, 1213 (1st Cir.1996) (applying New Hampshire law and holding that defamatory statements made by Assistant U.S. Attorney and Internal Revenue Service employee were within the scope of their employment and affirming the substitution of the United States and the dismissal of the suit for lack of subject-matter jurisdiction under the FTCA).

Although this result may seem unduly harsh, Congress has recognized that its scheme leaves some plaintiffs without a remedy against any party. See ...