Metropolitan News-Enterprise


Tuesday, August 21, 2001


Page 3


Defamation Not Covered by Federal Tort Claims Act, Ninth Circuit Rules


By ROBERT GREENE, Staff Writer


Sovereign immunity bars a defamation suit by a NASA research engineer against his jealous colleagues, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a ruling that was devoted mostly to explaining that the alleged harassment perpetrated by three NASA workers was within the scope of their employment, converting the suit into one against the federal government, the court turned the plaintiff’s near-victory into defeat by finding that the government could not be sued.

Defamation is one of the few torts for which sovereign immunity is not waived under the Federal Tort Claims Act, Judge Andrew J. Kleinfeld explained.

The court upheld the dismissal of Blair G. McLachlan’s lawsuit against colleagues who, McLachlan said, grew jealous because of his invention of a unique pressure-sensitive paint. He claimed that one employee who reported to him at the Ames Research Center in Mountain View refused to follow his directions, and that two supervisors spread false stories about his propensity to become violent.

He was removed from the team that was working on the pressure-sensitive paint, even though he was the one who came up with the idea.

McLachlan sued in Superior Court for defamation, interference with prospective economic advantage, and intentional infliction of emotional distress. He did not sue the federal government, but the U.S. attorney for the Northern District of California certified that the three defendants were acting within their scope of employment and removed the case to the U.S. District Court for the Northern District of California in San Francisco.

McLachlan argued that certification was improper and moved to remand back to the state court, but Magistrate Judge Patricia V. Trumbull rejected the motion and dismissed the case.

The judge acted properly, Kleinfeld said, if the three defendants really were acting within the scope of their employment, as the term is defined under California law.

California courts have interpreted the term broadly. Kleinfeld cited the examples of a company truck driver sued for beating another driver, a traveling salesman beating a driver, and a contractor’s employee throwing a hammer at a subcontractor. All of these were found to be acts within the scope of employment.

There is another class of California cases, most of which involve sex, that are deemed so personal in nature that they are not within the scope of employment. The county, for example, is not vicariously liable for a deputy sheriff who “engages in unconsensual sexual conduct” with other deputies.

“But even sexual conduct can be within the scope of respondeat superior, as when a police officer rapes a civilian whom he stopped for a traffic violation,” Kleinfeld noted.

As for the three NASA employees, all of them were acting within the scope of their employment when they allegedly harassed McLachlan, the judge said. There is nothing unusual or startling about “personal hostility, backbiting, resentment of another’s success, false rumors and malicious gossip in the workplace,” he said.

“[T]he entire affair took place at work, in ways relating to work, on issues arising out of the work all of them did for NASA,” the judge said.

The result of such a ruling usually would be that the injured plaintiff could recover against the deep-pocketed employer. But not here.

“Because the Federal Tort Claims Act excepts from the waiver of sovereign immunity ‘libel’ and ‘slander,’ treating the defamation claims as within the scope of employment eliminates them,” Kleinfeld said.

He was joined by Judges Michael Daly Hawkins and Richard C. Tailman.

The case is McClachlan v. Bell, 99-16037.


Copyright 2001, Metropolitan News Company