Uncle Sam Steps Aside and Lawsuit by One Fed Against Two Others Moves Forward

DOJ’s refusal to certify that federal employees were acting within the scope of their employment has left two federal employees facing a lawsuit charging them with various torts.

The Justice Department’s refusal to certify that federal employees were acting within the scope of their employment, together with a recent district court decision, has left two federal employees facing a lawsuit by a fellow employee charging them with various torts including libel. (Armstrong v. Thompson, D.D.C., No. 10-945 (RBW), January 7, 2011)

Let’s start out by meeting the parties to this interesting case.

The defendants are the husband and wife who were formerly employed by the Treasury Inspector General for Tax Administration (TIGTA). Mr. Armstrong, the plaintiff, is a former Assistant Special Agency in Charge for the TIGTA.

The facts that gave rise to the suit stemmed from an at the time anonymous hotline complaint by Ms. Thompson accusing Armstrong of “unlawfully accessing certain records and databases.” (Opinion p. 2)

The anonymous complaint led to an internal investigation. Neither Ms. Thompson nor her husband had a role in the investigation nor did they have official access to the investigative file. Meanwhile, Mr. Armstrong began a job hunt that led to an offer from the Department of Agriculture. He accepted and was given a start date. Before Armstrong started the new job, 6 anonymous letters (some signed “A Very Concerned Person”) were sent to USDA disclosing the TIGTA’s ongoing investigation of Armstrong and warning the USDA that it would be a mistake to hire Armstrong. The letters told Agriculture that Armstrong “is your problem now” and advising them to do a background check and contact Armstrong’s colleagues at TIGTA where they “will find that details of his misconduct are known by many.” (Opinion pp. 2-3)

Predictably, Agriculture pulled back its job offer to Mr. Armstrong. (p. 3)

In an earlier suit against the Department of the Treasury for violation of the Privacy Act (Armstrong v. Geithner, 610 F.Supp.2d 66 (D.D.C. 2009)), it came out that Ms. Thompson was the culprit. She admitted that she had sent the letters to USDA. She apparently had “pieced together” some details of the Armstrong investigation through others as well as by “observation, inference, and rumor.” (pp. 3-4) Her husband, Mr. Sutkus, also admitted that he was aware his wife had sent the letters but denied having anything to do with it. (p. 4)

Armstrong then sued Thompson and Sutkus in Superior Court in the District of Columbia.

The defendants requested that the U.S. Attorney certify that they were acting within the scope of their employment at TIGTA in connection with their activities that led Armstrong to sue them. With such a certification, Thompson and Sutkus would be dismissed from the suit and the government would be substituted as the defendant, with all the talents at the Justice Department and the U.S. Attorney’s Office on hand to defend against Armstrong’s suit.

But in this case, the U.S. Attorney’s office looked over the lawsuit and the testimony in the earlier Privacy Act case and refused to take on the case, concluding that Thompson and Sutkus were not acting within the scope of their employment. (p. 4)

This decision ended up before the U.S. District Court in D.C. to review the scope of employment question.

For those readers interested in the details, the court’s opinion is linked in this article. Summarizing, the court agreed that the defendants were not acting within the scope of their employment. The court points out that neither defendant was being paid by the agency to get involved in the investigation of Armstrong.

Referring to Thompson, the court states, “…[S]he had no duty, much less authority, to report the facts of that investigation to the USDA.” (p. 7) In fact she had a duty not to disclose sensitive information without prior authorization. To the extent she had a duty as a TIGTA employee to disclose what she believed to be wrongdoing, she had in fact done so by making her anonymous hotline call in the first place. Her actions after that call “surpassed the nature of the duties she regularly performed….” (p. 8)

The court was unimpressed by the argument that the letters to USDA were on TIGTA letterhead, written on agency time, and therefore “official.” “Irrelevant,” says the court. (p. 9)

The court was also unimpressed by the argument that Thompson was “serving” the agency when she did what she did, stating that the “tone” of her letters did not suggest “respect for the integrity of her employer…” and clearly showed she had personal motives. (p. 10) The court quotes from the earlier Privacy Act case where it was concluded that Thompson was “acting, as far as anybody can tell, as a rogue person on her own behalf acting out of some sort of vendetta.” (p. 10) The court also pointed to the fact that Thompson’s letters were anonymous, belying her argument that she acted to advance TIGTA’s interests.

The long and short of the court’s decision is to leave Ms. Thompson and her husband on their own to defend against Armstrong’s lawsuit against them.

This case illustrates that there is a line employees can step over and find themselves facing a personal lawsuit brought by an aggrieved coworker.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.