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Bolton v. United States

United States Court of Appeals, Fifth Circuit

December 30, 2019

CHARLES BOLTON; LINDA BOLTON, Plaintiffs-Appellants,

          Appeals from the United States District Court for the Southern District of Mississippi

          Before JOLLY, SMITH, and COSTA, Circuit Judges.


         Charles 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.


         In 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.[1]

         Just 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.

         McDuffie 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 the law."

         Based 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 court.

         The 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 appeal.[2]


         The 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).

         Although 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).

         The 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 ...

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