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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 30, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________
Clerk
No. 02-50365
_____________________
MARY J. COUNTS; JILL A. MARANGONI,
Plaintiffs-Appellants,
versus
EDMUNDO GUEVARA; UNITED STATES OF AMERICA
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Mary J. Counts ("Counts") and Jill A. Marangoni ("Marangoni")
appeal the district court's dismissal of their libel, slander, and
intentional infliction of emotional distress claims against Edmundo
Guevara ("Guevara") for lack of jurisdiction based on the
substitution of the United States as defendant. Because the
district court, which did not have the benefit of the latest
pronouncement by the Texas Supreme Court, erred in applying Texas
law to the question of whether Guevara was acting within the scope
of his employment, we VACATE and REMAND.
Counts and Marangoni, FBI employees, filed suit in Texas state

court against Guevara, the FBI Special Agent in charge of the El
Paso office, alleging libel, slander, and intentional infliction of
emotional distress. They claimed that Guevara continuously and
systematically harassed, intimidated, and retaliated against them
because they had complained to FBI headquarters about him and their
superiors in El Paso. Counts and Marangoni asserted that Guevara's
conduct culminated in the derogatory remarks that he made about the
plaintiffs at his retirement party. Party attendees reported that
Guevara stated in regard to Counts that "evil comes in big
packages" and in regard to Marangoni and her husband, "dumb and
dumber equals dumbest." He apparently also disparaged them
professionally, and accused them of misconduct.
The government filed a Notice of Removal and a Motion for
Substitution pursuant to the removal and substitution procedures
outlined in the Federal Employees Liability Reform and Tort
Compensation Act of 1988 ("Westfall Act"). 28 U.S.C. § 2679(d)(1)
& (2). Under the Westfall Act, the Government may remove the case
and may substitute itself as a party in place of a federal employee
who committed a tort while acting within the scope of his
employment. Upon substitution, the case falls under the Federal
Tort Claims Act.
The district court found that Guevara was acting within the
scope of his employment at the time he made the remarks and entered
an order substituting the United States as the defendant. The
plaintiffs filed a motion for reconsideration and a request for an
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evidentiary hearing on the issue of whether Guevara was acting
within the scope of his employment; both requests were denied. The
district court found that, under the Federal Tort Claims Act and
the Civil Service Reform Act, it lacked subject matter jurisdiction
to entertain the claims and dismissed the suit. Counts and
Marangoni appeal, arguing that the district court erred in
determining that Guevara was acting within the scope of his
employment and in denying their request for an evidentiary hearing.
The Westfall Act provides that, upon certification by the
Attorney General or his designated representative that the
government employee was acting within the scope of his employment
at the time of the allegedly tortious act, the United States may
remove the action to federal court and substitute itself as the
defendant in the suit. For purposes of removal, the certification
conclusively establishes that the employee was acting within the
scope of his employment. Gutierrez de Martinez v. Lamagno, 515
U.S. 417, 432 (1995) (quoting § 2679(d)(2)'s provision that
"certification of the Attorney General shall conclusively establish
scope of office or employment for purposes of removal."). However,
for purposes of substitution, the certification is judicially
reviewable. Id. at 434-37. A plaintiff who challenges the
Government's certification has the burden to prove that the
employee's conduct was not within the scope of his employment.
Williams v. United States, 71 F.3d 502, 506 (5th Cir. 1995). We
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review the district court's legal conclusions of the scope-of-
employment issue de novo. Rodriguez v. Sarabyn, 129 F.3d 760, 766
(5th Cir. 1997).
In reviewing the certification, federal courts must apply the
law of the state in which the tortious act occurred. Garcia v.
United States, 62 F.3d 126, 127 (5th Cir. 1995). In Texas, an
employee's conduct is considered to fall within the scope of his
employment if his actions were "(1) within the general authority
given him; (2) in furtherance of the employer's business; and (3)
for the accomplishment of the object for which the employee was
employed." Williams, 71 F.3d at 506 (citing Mata v. Andrews
Transport, Inc., 900 S.W.2d 363, 366 (Tex. App.Houston [14th
Dist.] 1995, no writ)). This test applies to all scope of
employment questions, including those involving allegedly
defamatory statements. Minyard Food Stores, Inc. v. Goodman, 80
S.W.3d 573, 578 (Tex. 2002). Minyard makes clear that the focus of
the inquiry in defamatory statement cases is whether the actual
statements were made within the scope of employment.
Because the district court did not have the benefit of
Minyard, it focused its inquiry on whether Guevara's attendance at
the retirement party was within the scope of his employment.
Relying on Andrews v. Houston Lighting & Power, 820 S.W.2d 411, 413
(Tex. App.Houston [14th Dist.] 1991, writ denied), it explained:
"It is Defendant's attendance at the retirement party, not the
4

tortious conduct that allegedly occurred at that function, that is
the subject of the Court's scope of employment analysis." This
interpretation of Texas law is erroneous in the light of clear
language in Minyard indicating that the focus of a scope of
employment inquiry is on the tortious conduct itself. See Minyard,
80 S.W.3d at 579. Because the district court's interpretation of
Texas law may have affected the development of the record in this
case, we REMAND to the district court for further consideration in
the light of Minyard. The district court should also consider
whether further discovery or an evidentiary hearing may be required
in order to properly evaluate whether the statements were made
within the scope of Guevara's employment.
For the foregoing reasons, the judgment of the district court
is
VACATED AND REMANDED.
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