Appeals from the United States District Court for the
Southern District of Mississippi
JOLLY, SMITH, and COSTA, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
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 denied scope-of-employment discovery, substituted the
United States as the proper defendant, and dismissed for
failure to file an administrative claim. We affirm.
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
Boltons did not pay taxes 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 determined that it was
"clear that Mr. and Mrs. Bolton, while they [were] not
charged with a conspiracy, 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 enhanced the
Boltons' sentences based on other "relevant
conduct" in the form of "jail food theft."
Charles and Linda were sentenced to 45 and 30 months,
respectively, and ordered, jointly and severally, to pay more
than $145, 000 in restitution. We affirmed.
over a month after the sentencing, a local news station
interviewed Christopher Freeze and Jerome McDuffie about the
Boltons' criminal transgressions. Freeze is the Special
Agent in Charge of the FBI's Jackson 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 "[e]stablish and maintain
effective relationships with . . . the media to further 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 area.
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 told the news station that this was "a
situation 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
on those interviews, the Boltons sued Freeze and McDuffie, in
their individual capacities, in state court. The Boltons
asserted claims of slander, negligent infliction of emotional
distress, and intentional infliction of emotional 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 scope and course of [their] employment as . . .
employee[s] of the Federal government." Accordingly, the
United States was substituted by operation of law as the
defendant, and it removed the suits to federal district
government moved to dismiss for lack of subject-matter
jurisdiction. The district court held that because Freeze and
McDuffie were acting within 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
administrative claim, as the FTCA requires. Citing testimony
from a Senate Judiciary Committee hearing on the Hillary
Clinton email investigation, the Boltons moved for
reconsideration, which the district court denied. The Boltons
Westfall Act provides that when a federal employee is sued in
state court, the Attorney General ("AG") or his
designee may certify "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."
§ 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
court. 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 claimant shall have
first presented the claim to the appropriate Federal
agency." § 2675(a).
the AG's or a designee's certification conclusively
establishes removal jurisdiction, § 2679(d)(2);
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432
(1995), certification is judicially reviewable for the
purpose of substituting 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).
Boltons contend that the district court erred in finding that
Freeze and McDuffie acted within their scope of employment.
We review that legal conclusion de novo.
Rodriguez v. Sarabyn, 129 F.3d 760, 766 (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 ...