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United States Court of Appeals for the Fifth Circuit
December 13, 1995, Decided
[*503] BENAVIDES, Circuit Judge:
On this third appeal in this case, Plaintiff-Appellant W. Douglas Williams ("Williams") appeals the district court's order granting the motion of the United States to substitute itself as defendant in place of Congressman Jack Brooks ("Brooks") pursuant to the Westfall Act, 28 U.S.C. § 2679(d), and the [*504] court's dismissal for failure to state a claim upon which relief may be granted. Finding that as a matter of law Brooks was acting within the scope of his employment for purposes of the Westfall Act at the time he allegedly made defamatory statements against Williams during a television interview, we affirm.
On February 22, 1988, Williams and his political consulting firm, Texas Dynamics, Inc., filed suit in Texas state court against Brooks, alleging that Brooks defamed them during a press interview on February 24, 1987 in Brooks's Washington, D.C. office, by a Houston, Texas television station, concerning the status of an appropriations bill to restore the Battleship Texas. 1 Brooks [**2] removed the action to federal court and invoked the defense of official immunity.
On March 16, 1990, the district court denied Brooks's motion to dismiss based on official immunity. Brooks filed an interlocutory appeal to this Court, and we affirmed the denial of Brooks's motion to dismiss. 2 While the appeal was still pending, the district court dismissed the case for failure of the parties to file a joint pretrial order. We reversed the dismissal, holding that the district court was divested of jurisdiction during pendency of Brooks's interlocutory appeal, and remanded for further proceedings. 3
[**3] Following the second remand, a designated official of the U.S. Department of Justice, acting on behalf of the Attorney General, certified that Brooks was acting within the scope of his employment in accordance with the Westfall Act, 28 U.S.C. § 2679(d) 4, at the time of the alleged events forming the basis of the defamation suit. Brooks then filed a motion with the district court to substitute the United States as sole defendant under the terms of the Westfall Act, and to proceed in accordance with the terms of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The United States also moved to dismiss on the ground that under the FTCA no action may lie against the United States for defamation.
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71 F.3d 502 *; 1995 U.S. App. LEXIS 35267 **; 24 Media L. Rep. 1281
W. DOUGLAS WILLIAMS, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee.
Prior History: [**1] Appeal from the United States District Court for the Southern District of Texas. D.C. DOCKET NUMBER CA-H-88-1632. JUDGE David Hittner.
scope of employment, certification, Westfall Act, district court, employees, defamation, interview
Administrative Law, Sovereign Immunity, Torts, Liability, Federal Tort Claims Act, General Overview, Labor & Employment Law, Employment Relationships, At Will Employment, Definition of Employees, Employees, Governments, Federal Government, Claims By & Against, Employees & Officials, US Congress, Vicarious Liability, Employers, Scope of Employment, Employers, Scope of Employment, Intentional Torts, Defamation