Reported / Citable
Background
In December 2021, CBP Agent Robert Duran exited a Border Patrol station in Del Rio, Texas and struck Tami Barrier with his vehicle, then continued driving without stopping. At the time, Barrier was standing near the station entrance with a news crew filming the facility. Barrier sued the United States under the Federal Tort Claims Act, seeking damages for her injuries.
Duran held a full-time leadership position as Executive Vice President and Lead Steward of the National Border Patrol Council union. While compensated as a CBP employee, he spent approximately 80% of his work time on union duties, including day-to-day union operations, management liaison work, and task delegation. He maintained flexible hours and discretion over his work schedule.
On the day of the incident, Duran had agreed to pick up donated pandemic supplies (sanitizer, food, beverages) from a Kinney County Republican women’s group at a local union hall. The supplies were intended for distribution across CBP stations in the Del Rio sector. Duran’s union supervisor had asked him to receive the supplies after work, but Duran initially forgot about the task while leaving the station. The district court granted summary judgment for the Government, holding that Duran was not acting within the course and scope of his employment when he struck Barrier.
The Court’s Holding
The Fifth Circuit reversed and remanded for trial. The court held that material disputes of fact precluded summary judgment. Under Texas law—which governs the scope-of-employment analysis for FTCA claims—a “special-mission exception” applies when an employee’s travel involves performance of regular or specifically assigned duties for the employer’s benefit with express or implied approval. The court found that a reasonable jury could conclude Duran satisfied this test.
First, the court identified factual disputes about whether Duran was still on duty when he left the station. Although his timesheet showed he clocked out at 3:30 p.m., security video showed him leaving at 3:58 p.m., and he testified his overtime ran until 4:00 p.m. His status as “on” or “off” duty was genuinely disputed. Second, whether Duran intended to go home or to the union hall remained a material question—his union supervisor testified Duran was already heading to receive the supplies before being reminded, though Duran himself initially claimed he was going home.
The court also rejected the Government’s argument that union duties are entirely separate from CBP employment for vicarious liability purposes. Duran was a CBP employee performing union work with implied CBP approval, as evidenced by his full-time union officer status and compensation. The supplies receipt—benefiting other CBP stations during a pandemic shortage—could reasonably be found to further CBP’s business and fall within Duran’s union duties or constitute a special mission.
Key Takeaways
- Under the special-mission exception to the coming-and-going rule, an employee may be within scope of employment while traveling if performing regular or specifically assigned duties for the employer’s benefit with express or implied approval.
- When an employee’s job duties are hybrid or involve significant work for a union or similar organization while on the employer’s payroll, acts performed as part of those duties may have implied employer approval for scope-of-employment purposes.
- Factual disputes about an employee’s duty status, actual destination, or the nature and beneficiary of a task typically preclude summary judgment on scope-of-employment issues and require jury resolution.
- An act that partially benefits the employee or a third party (here, the union) is not automatically outside the scope of employment if it also benefits the employer.
Why It Matters
This decision significantly impacts FTCA vicarious liability for federal employees with dual or hybrid roles—particularly those holding union leadership positions while on agency payroll. The Fifth Circuit made clear that courts cannot simply excise “union time” from a full-time union officer’s employment relationship. When an agency compensates an employee for union duties (here, 80% of Duran’s workday), those duties receive the employer’s implied approval for scope-of-employment analysis.
The decision also reinforces that summary judgment on scope-of-employment questions requires rare clarity in the factual record. Ambiguities about timing, duty status, or intended purpose must typically go to a jury. The special-mission exception provides plaintiffs with a viable pathway in cases where an employee’s unauthorized errand or detour nonetheless serves the employer’s business interests, particularly when performed with some supervisory knowledge or encouragement—even informal encouragement from a union leader acting in a de facto supervisory capacity.