Reported / Citable
Background
On December 2, 2021, CBP Agent Robert Duran, serving as Executive Vice President and Lead Steward of the NBPC Del Rio sector, struck pedestrian Tami Barrier with his vehicle while exiting a CBP station. Duran held a full-time union officer position and spent approximately 80% of his paid workday on union duties, though CBP compensated him for eight hours of union work plus two overtime hours per day.
Duran was leaving the station to receive donated pandemic supplies (hand sanitizer, cookies, Gatorade, and peanuts) from a Kinney County Republican women’s group at the nearby union hall for distribution across multiple Del Rio CBP stations. As he exited at approximately 3:58 p.m., he struck Barrier, who was filming the CBP station with Blaze News Media members, and departed without stopping. The incident occurred around 4:04–4:10 p.m.
Barrier sued the United States under the Federal Tort Claims Act. The Government moved for summary judgment arguing Duran acted outside the course and scope of employment. The district court granted the motion.
The Court’s Holding
The Fifth Circuit reversed and remanded, holding that genuine disputes of material fact preclude summary judgment. A reasonable jury could find that Duran was either on a special mission or acting within the course and scope of employment when he left the station to receive supplies.
The court identified several material factual disputes. First, whether Duran remained on duty at 3:58 p.m. when he exited, despite his timesheet showing 3:30 p.m., since he testified he worked overtime until 4:00 p.m. and generally assists others “regardless of whether I’m getting paid or not or off duty or on duty” as a union officer. Second, whether Duran was heading to the union hall to receive supplies (as the union president’s testimony indicated) rather than heading home.
The court held that whether union duties fall within the course and scope of employment for vicarious liability purposes presented genuine jury questions under Texas law. The court rejected the Government’s argument that union duties were wholly separate from CBP employment, noting that Duran was a CBP employee performing union work and that receiving supplies for distribution to CBP stations—not personal use—could benefit CBP. The court found no Texas authority treating union employment differently for course-and-scope analysis and stated it would be unreasonable to hold a full-time union officer outside the scope of employment for 80% of his workday.
Key Takeaways
- The special-mission exception to the coming-and-going rule applies when travel involves performance of regular or specifically assigned duties for the employer’s benefit; disputes about whether an act furthers the employer’s business should be decided by a jury.
- Conduct that benefits parties other than the employee—such as receiving supplies for distribution to multiple stations—is more likely to fall within course and scope than purely personal errands.
- Federal employees performing union duties cannot be categorically excluded from course-and-scope analysis based on the type of work; when an employee spends substantial paid time on union activities, those fall within the employee’s course and scope for vicarious liability purposes.
- Summary judgment is inappropriate when material facts regarding whether an activity benefited the employer and whether it had the employer’s approval are genuinely disputed.
Why It Matters
This decision significantly impacts the vicarious liability exposure of federal agencies that employ union representatives on official time. The court rejected the Government’s argument that union duties and CBP duties are categorically separate for liability purposes, holding instead that when an employee spends 80% of paid time on union work, those activities are part of the employee’s course and scope as a federal employee. This establishes that dual-role employees cannot be carved out of vicarious liability coverage based on which function they were performing.
The decision also strengthens the special-mission exception to the coming-and-going rule in cases involving activities that benefit the employer or other agency personnel. By permitting a jury to find that receiving donated supplies for distribution to multiple CBP stations qualified as a special mission—while distinguishing purely personal errands like buying food for personal consumption—the court clarified that the inquiry depends on fact-intensive analysis suitable for jury resolution when genuinely disputed.