Background
In December 2021, CBP Agent Robert Duran—who held a full-time union leadership position as Executive Vice President and Lead Steward of the National Border Patrol Council’s Del Rio sector—struck Tami Barrier with his vehicle near the entrance of a CBP station in Del Rio, Texas, and drove away without stopping. Duran worked as a union officer approximately 80% of the time on paid “official time” under federal law, with discretion over his daily union duties and work schedule.
At the time of the incident, Duran was traveling to a union hall to meet members of a Kinney County Republican women’s group and receive pandemic supplies (hand sanitizer, cookies, Gatorade, and peanuts) that were to be distributed to other Del Rio CBP stations. Union President Anfinsen had asked Duran to receive the supplies on his behalf after Anfinsen anticipated being on leave. Barrier sued the United States under the Federal Tort Claims Act, alleging vicarious liability for Duran’s negligence. The district court granted summary judgment for the Government, finding that Duran was not acting within the scope of his employment when he struck Barrier.
The Court’s Holding
The Fifth Circuit reversed and remanded, concluding that material facts preclude summary judgment and that a reasonable jury could find Duran was acting within the course and scope of employment. The court identified several genuinely disputed facts: (1) whether Duran was on duty when he left the station (his timesheet showed 3:30 p.m., but video showed him leaving at 3:58 p.m., and he testified his overtime ran until 4:00 p.m., with the incident occurring around 4:04–4:10 p.m.); and (2) whether he was headed home or to the union hall (Anfinsen testified Duran was already heading there when called).
Applying Texas law’s “special mission exception” to the coming-and-going rule, the court held that receiving supplies for distribution to other CBP stations could constitute a mission in furtherance of CBP’s business with the employer’s implied approval. The court emphasized that Duran, as a full-time union officer compensated by CBP, remained a CBP employee during union duties, and treating such duties as categorically outside the scope of employment would exclude 80% of his workday from coverage—an unreasonable result under Texas law. The court distinguished the case from precedent involving purely personal errands (buying food for personal consumption), emphasizing that the supplies were intended for other agents’ use, not Duran’s personal benefit.
Key Takeaways
- Federal employees who receive paid “official time” for union duties remain within the scope of employment during those activities, even when performing non-traditional tasks.
- The “special mission exception” to Texas’s coming-and-going rule applies when an errand benefits the employer and has the employer’s express or implied approval, even if the task is not part of the employee’s standard job description.
- An act can be within the scope of employment even if it benefits a third party or if the employee personally benefits to some degree, so long as it furthers the employer’s business.
- Summary judgment is improper when material facts regarding the employee’s duty status, the destination, and the mission’s furtherance of the employer’s business are genuinely disputed.
Why It Matters
This decision establishes important precedent for the scope of federal vicarious liability under the FTCA when employees hold dual roles combining agency work and union duties. Federal agencies cannot avoid liability by characterizing union activities as outside their control or mission when those employees receive compensation for union work as part of their federal employment. The ruling clarifies that the analysis focuses on whether the act benefited the employer and had the employer’s approval, not on the employer’s degree of control over the specific activity—correcting what the court saw as a conflation of distinct vicarious liability elements.
The decision has practical significance for federal agencies employing union officers and may expose them to liability for negligent conduct during union-related activities that benefit the agency’s operations or mission. It also reinforces that courts must draw all reasonable inferences in favor of the non-moving party on summary judgment, particularly when employee status and work activities during close-call time periods are disputed.