Skaggs v. Howell

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

JEREMY SHANE SKAGGS PLAINTIFF

v. Case No. 4:22-cv-01029-LPR

WHITNEY HOWELL and

BENJAMIN HOWELL DEFENDANTS

ORDER

Plaintiff Jeremy Skaggs and Defendant Benjamin Howell are both military men. At the

times relevant to this lawsuit, they were employees of both the United States Air Force and the

Arkansas Air National Guard.1 In fact, at one point (and quite importantly to this case), Mr. Howell

was briefly Mr. Skaggs’s supervisor.2 Defendant Whitney Howell is Mr. Howell’s wife.3

Mr. Skaggs is suing each of the Howells for, among other things, defamation, abuse of

process, and false light invasion of privacy.4 For reasons that will be explained below, today’s

Order only concerns the claims that Mr. Skaggs has brought against Mr. Howell. As to those

claims, Mr. Skaggs takes issue with (1) Mr. Howell’s intra-military report that Mr. Skaggs raped

Mrs. Howell, and (2) Mr. Howell’s statement of similar substance to local law enforcement.5

Mr. Skaggs alleges that Mr. Howell knew that the rape allegations were false at the time he made

the report and statement.6 Mr. Skaggs further alleges that the Howells trumped up the rape

1 Ex. A (Fourth Benjamin Howell Aff.) to Defs.’ Second Suppl. Br. in Resp. to Mot. to Remand (Doc. 40-1) ¶ 2; see

also Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 97) ¶ 2.

2 See Ex. A (Benjamin Howell Decl.) to Pet. for Substitution (Doc. 67-1) ¶ 3.

3 Ex. A (Benjamin Howell Aff.) to Resp. to Pl.’s Mot. for Partial Summ. J. (Doc. 15) ¶ 1.

4 See Compl. (Doc. 2) ¶¶ 17–22.

5 See id. ¶¶ 5–10. The parties inconsistently refer to the incident between Mr. Skaggs and Mrs. Howell as “rape” (or

alleged “rape”) and “sexual assault” (or alleged “sexual assault”). Compare id. ¶ 5, with Ex. A (Whitney Howell Aff.)

to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 3. For purposes of this Order, nothing turns on this

difference in terminology.

6 See Compl. (Doc. 2) ¶¶ 5–6, 10, 19.

allegations to avoid making good on a real-estate-related contract into which the Howells and

Mr. Skaggs had entered.7

This case is not yet at the merits stage. The Court is not, at this juncture, called upon to

determine whether Mr. Skaggs raped Mrs. Howell, whether Mr. Howell made a knowingly false

report, or whether Mr. Howell had ulterior motives for making his report. Instead, today’s Order

concerns a threshold procedural issue: whether Mr. Howell was acting in the scope of his

employment when he took the actions underlying Mr. Skaggs’s claims for defamation, abuse of

process, and false light invasion of privacy. If Mr. Howell was acting in the scope of his

employment, the Court must substitute the United States as a defendant in place of Mr. Howell

with respect to those claims. Otherwise, those claims will proceed against Mr. Howell individually.

Mr. Howell has long maintained that he was acting in the scope of his employment.

Pursuant to 28 U.S.C. §§ 2679(c) and 2679(d)(1), Mr. Howell asked the United States to certify

that he was acting in the scope of his employment and thus substitute for Mr. Howell as a defendant

on the above-noted claims.8 The United States declined to do so.9 So Mr. Howell petitioned this

Court to approve the requested certification and force the requested substitution.10 The Court has

the power to do this under 28 U.S.C. § 2679(d)(3). And, for the reasons set out below, the Court

has concluded that certification and substitution are appropriate here. Mr. Howell’s Petition is

therefore GRANTED.11

7 See id. ¶ 5. Mr. Skaggs is also suing Mrs. Howell for defamation, abuse of process, and false light invasion of

privacy. See id. ¶¶ 17–22. These claims are based on Mrs. Howell’s filing of a police report asserting that Mr. Howell

raped her. See id. ¶¶ 5–10.

8 See Pet. for Substitution (Doc. 67) at 5–7.

9 See id. at 5.

10 Id.

11 Doc. 67.

BACKGROUND

Mr. Howell has been in the military for more than two-and-a-half decades.12 For much of

that service, including at all times relevant to the instant case, Mr. Howell has served as a dual-

status technician in the Arkansas Air National Guard.13 Similarly, at all times relevant to the instant

case, Mr. Skaggs was a federal dual-status National Guard technician with the U.S. Air Force.14

In November of 2015, Mr. Skaggs entered into an agreement with the Howells whereby

Mr. Skaggs agreed to furnish materials and labor for the improvement and remodeling of real

property located at 65 Pheasant Run Drive in Cabot, Arkansas.15 The record is unclear as to

whether this was the Howells’ primary residence at the time or, instead, an investment property.16

In any event, the parties agree that the basic deal was that the improved and remodeled property

would be sold, that the Howells would realize the first $40,000 of the proceeds from this sale, and

that Mr. Skaggs would receive the remaining sale proceeds.17

At some point—it is unclear when—the relationship between Mr. Skaggs and the Howells

soured. One potential souring point was August 27, 2016, when some type of sexual incident

occurred between Mr. Skaggs and Mrs. Howell at Mrs. Howell’s birthday party.18 The nature of

12 Ex. A (Fourth Benjamin Howell Aff.) to Defs.’ Second Suppl. Br. in Resp. to Mot. to Remand (Doc. 40-1) ¶ 1.

13 Id.

14 Id. ¶ 2.

15 Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 155, ¶ 3; Compl. (Doc. 2) ¶ 24; Answer (Doc. 3) ¶ 25.

16 In a previous Order, the Court referred to this property as the Howells’ home. Order (Doc. 48) at 1. But that was

based on the allegations in the Complaint. See id. Here, where the Court can look to the evidentiary record and

subsequent filings (as opposed to strictly looking at the allegations in the Complaint), there are strong (but

inconclusive) indications that the property in question is not the Howells’ home. See, e.g., Br. in Supp. of Pl.’s Mot.

for Partial Summ. J. (Doc. 14) at 1 (characterizing the property as “Defendants’ former home”); Resp. to Pl.’s Mot.

for Partial Summ. J. (Doc. 15) ¶ 1 (characterizing the property as “certain real property owned by Defendants”). The

Court need not resolve this factual issue because it is not material to the outcome of the certification question.

17 Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 155, ¶ 3; Resp. to Pl.’s Mot. for Partial Summ. J.

(Doc. 15) ¶¶ 1–2.

18 See Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 3.

the incident is hotly contested by the parties.19 All parties agree that Mr. Skaggs and Mrs. Howell

had sexual relations.20 The Howells say that the interaction was not consensual because

Mrs. Howell was too drunk to consent.21 Mr. Skaggs says that the interaction was consensual, that

Mrs. Howell actually initiated it, and that Mrs. Howell was not too drunk to consent.22

The Howells did not report the (alleged) rape to either military or civilian authorities for

over 15 months.23 The record does not reveal whether Mr. Skaggs did any work on the house

during this 15-month period. In any event, our story picks up on December 27, 2017. On that

date, Mr. Howell was called into a meeting with his immediate superior officer, Captain Richard

Sugg.24 Capt. Sugg informed Mr. Howell that Mr. Skaggs was being moved into a position that

would place Mr. Howell in Mr. Skaggs’ direct chain of command.25 Indeed, the move would turn

Mr. Howell into Mr. Skaggs’s immediate supervisor.26

Mr. Howell immediately told Capt. Sugg that the move would be a “bad idea” and

attempted to get Capt. Sugg to reconsider his decision.27 Capt. Sugg pressed Mr. Howell for

details, but Mr. Howell was less than forthcoming.28 Instead, Mr. Howell “vaguely informed

19 Compare id., and Ex. A (Fourth Benjamin Howell Aff.) to Defs.’ Second Suppl. Br. in Resp. to Mot. to Remand

(Doc. 40-1) ¶¶ 10–11, with Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 156, ¶ 10.

20 See Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 155, ¶ 10; Ex. A (Whitney Howell Aff.) to Whitney

Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 3; Ex. A (Fourth Benjamin Howell Aff.) to Defs.’ Second Suppl. Br.

in Resp. to Mot. to Remand (Doc. 40-1) ¶¶ 10–11.

21 See Ex. A (Fourth Benjamin Howell Aff.) to Defs.’ Second Suppl. Br. in Resp. to Mot. to Remand (Doc. 40-1) ¶¶

10–11; see also Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 3.

22 Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 156, ¶ 10.

23 See Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶¶ 3–4.

24 Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 4.

25 Id.

26 Id.

27 Id.

28 Id.

[Capt. Sugg] that an incident occurred with [Mr. Howell’s] wife more than a year prior . . . .”29

Mr. Howell also told Capt. Sugg that “providing further details would make [Capt. Sugg] a

mandatory reporter under military regulations.”30 Capt. Sugg was unwilling to reverse his decision

unless Mr. Howell provided further details.31

It does not appear that Mr. Howell provided any more details during that initial discussion,

because Capt. Sugg stood by his decision and thus assigned Mr. Skaggs as Mr. Howell’s

subordinate.32 Once Mr. Skaggs was placed under Mr. Howell in the chain of command,

Mr. Howell contacted (via email) the Sexual Assault Response Coordinator, Lieutenant Colonel

Tracy Nolley.33 Mr. Howell sent this email after receiving advice from “military experts that [he

is] trained to request assistance from, such as the Judge Advocate General (JAG), Inspector

General (IG), Office of Special Investigation (OSI), and [his] commanding officer.”34 The email

to Lt. Col. Nolley triggered the beginning of the reporting process.

Shortly thereafter, on January 4, 2018, Mr. Howell personally visited Lt. Col. Nolley’s

office.35 Mr. Howell must have made his assertions of rape during this visit, because the record

shows that Lt. Col. Nolley advised Mr. Howell that a formal report would need to be filed before

any action could be taken.36 Later that day, Mr. and Mrs. Howell met with Lt. Col. Nolley and

another Sexual Assault Response Coordinator.37 Lt. Col. Nolley and the other Sexual Assault

29 Id.

30 Id.

31 Id.

32 Id. ¶¶ 4, 6.

33 Id. ¶ 6.

34 Ex. A (Benjamin Howell Decl.) to Pet. for Substitution (Doc. 67-1) ¶ 6.

35 Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 6.

36 Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 5.

37 Id. ¶ 6.

Response Coordinator recommended that Mrs. Howell file a report about the alleged rape.38

Consistent with this recommendation, the report was filed.39

The next day—January 5, 2018—two things happened. First, Mr. Howell informed

Capt. Sugg of the report.40 In response, Capt. Sugg indicated that he was already aware of the

report and asked Mr. Howell to provide more details about the alleged rape.41 Mr. Howell then

provided the requested details to Capt. Sugg.42 Second, representatives of the Air Force Office of

Special Investigations notified the Cabot Police Department about the allegations.43 On January

8, 2018, an officer with the Cabot Police Department asked Mrs. Howell to come to the station and

give an informational statement about the incident.44 Although she did so, she did not identify

Mr. Skaggs in this statement.45

Nothing more appears to have happened until March 15, 2018. On that day, Captain Scott

Lang (who had recently taken over the Sexual Assault Response Coordinator responsibilities from

Lt. Col. Nolley46) and Mr. Howell had a further conversation about the alleged rape.47 The record

38 Id.

39 Id.; Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 6. It is a bit unclear

in the record whether the report was filed by Mr. Howell, Mrs. Howell, or both (either jointly or separately). Compare

Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 6 (Mr. Howell stating that

he “visited Lt. Col. Nolley’s office on January 4, 2018, and officially filed a report”), with Ex. A (Whitney Howell

Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 6 (Mrs. Howell stating that “Nolley and [the other

SARC officer] recommended that [Mrs. Howell] file an unrestricted SARC report about the incident,” and that she

“completed the report that day”). This is likely immaterial, because what matters for Mr. Skaggs’s claims is that both

Mr. and Mrs. Howell were involved in the process of reporting the alleged rape to the military and clearly made

statements to military authorities during the reporting process.

40 Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 6.

41 Id.

42 Id.

43 Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 7.

44 Id. ¶ 8.

45 Id.

46 Id. ¶ 9.

47 Id. ¶ 10.

does not reveal whether it was Capt. Lang or Mr. Howell who instigated this conversation. What

we do know is that Capt. Lang advised Mr. Howell that a military investigation of the alleged rape

could not be conducted unless a civilian investigation was initiated by local authorities.48

Capt. Lang told Mr. Howell that this was because Mr. Skaggs was acting in his civilian capacity at

the time of the alleged rape.49

The record does not reveal whether Capt. Lang asked (or encouraged) Mr. Howell to do

anything with respect to the civilian authorities. But the record does reveal that—later this same

day—Mrs. Howell and Capt. Lang went together to the Cabot Police Department to discuss

opening an investigation into the alleged rape.50 And, at the police station, Capt. Lang assisted

Mrs. Howell in completing the necessary paperwork, including an affidavit.51 The Howells were

eventually interviewed by the police concerning the alleged rape. At the request of the police,

Mrs. Howell sat for an interview with the Cabot Police Department on March 19, 2018.52

Similarly, on an unspecified date, Mr. Howell was called to the Cabot Police Department to sit for

an interview concerning the alleged rape.53

No criminal charges concerning the alleged rape were brought against Mr. Skaggs.54 But,

at the time the allegations were initially made, Mr. Skaggs was reassigned at work into a position

outside of Mr. Howell’s chain of command.55 Mr. Skaggs describes the new position as “menial[,]

48 Id.

49 Id.

50 Id. ¶ 11.

51 See id.

52 Id. ¶ 12.

53 See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 25. The written record does not say anything about Mr. Howell

being interviewed. But, at oral argument, Mr. Howell’s counsel conceded that (at some unknown date) Mr. Howell

was called to the Cabot Police Department to sit for an interview concerning the alleged rape. See id.

54 Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶ 15.

55 See Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 7.

more physically demanding,” and “demeaning.”56 And, according to Mr. Skaggs, this whole

episode was nothing more than the Howells trying to get out of their real-estate-related contract

with Mr. Skaggs.57 As support for this proposition, Mr. Skaggs points to subsequent actions taken

by the Howells. For example, Mr. Skaggs alleges that, in May of 2018, he returned to the Pheasant

Run property—from an out-of-town trip—to find some of his personal property removed.58 He

believes this was part of an attempt by the Howells to keep him off the property and to renege on

their contract (including by selling the Pheasant Run home without paying Mr. Skaggs the

agreed- upon moneys).59

PROCEDURAL HISTORY

Mr. Skaggs filed the instant lawsuit in state court on May 16, 2018.60 The Complaint pled

a variety of claims against Mr. Howell. Only three are relevant to today’s Order: defamation, abuse

of process, and false light invasion of privacy.61 The abuse of process and false light invasion of

privacy claims concern both Mr. Howell’s reporting of the alleged rape to his military superiors

and Mr. Howell’s statements made to local law enforcement.62 The defamation claim, however,

only concerns Mr. Howell’s statements made to local law enforcement.63 That is because

56 Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 156, ¶ 8.

57 See Ex. A (Jeremy Skaggs Aff.) to Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 97-1) ¶ 9.

58 See id. ¶ 6; Ex. C (Jeremy Skaggs’s Resp. to Interrogs.) to Whitney Howell’s Mot. for Partial Summ. J. (81-3) at 2.

59 Ex. A (State Court Docs.) to Notice of Removal (Doc. 1) at 156, ¶¶ 6, 11; Ex. C (Jeremy Skaggs’s Resp. to Interrogs.)

to Whitney Howell’s Mot. for Partial Summ. J. (81-3) at 2.

60 Notice of Removal (Doc. 1) ¶ 1.

61 See Compl. (Doc. 2) ¶¶ 17–22. Mr. Skaggs also pled claims sounding in contract, quasi-contract, and property law.

See id. ¶¶ 11–16, 23–29. These claims stem from an alleged contract regarding the improvement of certain real

property between Mr. Skaggs and the Howells. See id. ¶¶ 2–4. The Court has not discussed in detail the facts and

factual allegations surrounding—or the claims stemming from—this alleged contract for two reasons. The first is that

it has already explicated them in detail in a previous Order. See Order (Doc. 48) at 1–3. The second is that the alleged

contract is not (directly) relevant to the legal questions at the heart of today’s Order.

62 Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 63.

63 See id. at 62.

Mr. Skaggs has disavowed any defamation claim concerning Mr. Howell’s report of the alleged

rape to his military superiors.64

Defendants removed the case to federal court in October of 2022.65 Mr. Skaggs filed a

Motion to Remand back to state court in November of 2022, asserting a lack of subject matter

jurisdiction.66 In considering whether or not to grant the requested remand, the Court had to

grapple with an incredibly difficult issue: whether 28 U.S.C. § 1442a gave the Court subject matter

jurisdiction over the instant case.67 That statute provides as follows:

A civil or criminal prosecution in a court of a State of the United States against a

member of the armed forces of the United States on account of an act done under

color of his office or status, or in respect to which he claims any right, title, or

authority under a law of the United States respecting the armed forces thereof, or

under the law of war, may at any time before the trial or final hearing thereof be

removed for trial into the district court of the United States . . . .68

The Court first determined that Mr. Howell was a member of the “armed forces of the United

States” as that term is used in the statute.69 It then determined that this civil action was being

prosecuted against him “on account of an act done . . . in respect to which he claims any right, title,

or authority under a law of the United States respecting the armed forces thereof . . . .”70 Because

Mr. Howell (non-frivolously) argued that his reporting of the alleged rape was required by Air

Force regulations, he claimed the right, entitlement, or authority to make said report under federal

law.71 Accordingly, the Court denied remand.

64 Id.

65 Notice of Removal (Doc. 1) at 1.

66 Doc. 18.

67 See Order (Doc. 48) at 8.

68 28 U.S.C. § 1442a.

69 Order (Doc. 48) at 8–9.

70 Id. at 10 (quoting 28 U.S.C. § 1442a).

71 Id. at 10–11. The Court also made a few other preliminary determinations relevant to the instant Order. The Court

concluded that the Air Force regulation relied on by Mr. Howell—AFI 90-6001—“qualifies as having ‘the force and

The jurisdictional question would not be the last complex question of law this case would

raise on account of Mr. Howell’s military service and employment. On December 6, 2024,

Mr. Howell filed the instant Petition invoking the Westfall Act.72 The Westfall Act grants a federal

employee immunity from suit when “acting within the scope of his office or employment at the

time of the incident out of which the claim arose . . . .”73 Generally, the Westfall Act accomplishes

this by making a suit against the United States under the Federal Tort Claims Act the exclusive

remedy in such a situation and providing a mechanism through which the United States substitutes

as a defendant for the employee being sued.74

Under the Westfall Act, the usual path for an employee to receive immunity involves the

Attorney General of the United States certifying that the employee was acting within the scope of

employment at the time of the incident out of which the claim arose.75 But the employee is not

without recourse if the Attorney General refuses certification. The employee may, “at any time

before trial,” petition the court for certification that he was acting within the scope of

his employment.76

effect of law.’” Id. at 11 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979)). The Court also concluded that

Mr. Howell had a colorable argument that AFI 90-6001 applied to his report of the alleged rape. Id. at 12. The Court

noted that Mr. Howell was (among other things) serving as an Air Force civilian employee at work, that Mr. Howell

was Mr. Skaggs’s supervisor with respect to Mr. Howell’s status as an Air Force civilian employee, and that AFI

90-6 001 applies to Air Force civilian employees. Id. at 12–13.

72 Pet. for Substitution (Doc. 67).

73 28 U.S.C. § 2679(d)(1); Osborn v. Haley, 549 U.S. 225, 247 (2007).

74 See 28 U.S.C. § 2679(b)(1); 28 U.S.C. § 2679(d)(1). There are limited exceptions to this statutory scheme. For

example, a Bivens action can still be brought against an individual government employee. United States v. Smith, 499

U.S. 160, 166–67 (1991) (noting that 28 U.S.C. § 2679(b)(2) provides that “the FTCA is not the exclusive remedy for

torts committed by Government employees in the scope of their employment when an injured plaintiff brings: (1) a

Bivens action, seeking damages for a constitutional violation by a Government employee; or (2) an action under a

federal statute that authorizes recovery against a Government employee”). The potential exceptions are not

relevant here.

75 28 U.S.C. § 2679(d)(1).

76 28 U.S.C. § 2679(d)(3).

In our case, pursuant to the requirements of the Westfall Act, Mr. Howell properly

requested certification from the Attorney General.77 That request was denied on June 29, 2020.78

Mr. Howell now requests that this Court “certify that the acts alleged in Plaintiff’s Complaint

against [Mr. Howell] in this matter were, for purposes of the Westfall Act, within the course and

scope of his employment as a federal employee . . . .”79 Mr. Howell further requests that, “upon

such certification by the Court,” the Court also issue “an order . . . substituting the United States

as the sole party in place of Separate Defendant Benjamin Howell.”80 The United States opposed

the requests, in briefing and at oral argument.81 Mr. Skaggs did not file a brief, but opposed the

requests at oral argument.82

DISCUSSION

This Court reviews de novo the Attorney General’s determination that Mr. Howell was not

acting in the scope of his employment.83 As the party seeking review, Mr. Howell bears the burden

of rebutting the decision not to certify with specific facts.84 Mr. Howell and the United States

77 Pet. for Substitution (Doc. 67) at 6.

78 Id. The Court notes that the letter denying Mr. Howell’s request is not in the record. But the United States has not

controverted any of the factual assertions on this point made in Mr. Howell’s briefing. So the Court sees no good

reason to doubt these assertions.

79 Id. at 1.

80 Id.

81 Br. in Opp’n to Pet. for Substitution (Doc. 72); Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 35–36.

82 See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 56.

83 See Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993).

84 See Lawson v. United States, 103 F.3d 59, 60 (8th Cir. 1996). Relevant Eighth Circuit caselaw indicates the burden

of proof is on the plaintiff when the plaintiff challenges the Attorney General’s decision to certify. See id. District

courts outside of this Circuit have held that the inverse is also true—the burden of proof is on the defendant when

challenging a decision not to certify. See, e.g., Bohnenkamp v. Whisterbarth, No. 19-CV-00115, 2023 WL 414442, at

*4 (W.D. Penn. Jan. 25, 2023); Colbert v. United States, No. 09-cv-998, 2012 WL 12906168, at *8 (M.D. Fla. Nov.

21, 2012) (“[T]he party seeking review of the denial bears the burden of presenting evidence and disproving the

Attorney General’s decision by a preponderance of the evidence.”); Lacey-Echols ex rel. Lacey v. Murphy, No. 02-

2281, 2003 WL 23571269, at *6 (D.N.J. Dec. 17, 2003). The parties seem to agree that Mr. Howell bears the burden

of proving he was acting in the scope of his employment. See Pet. for Substitution (Doc. 67) at 8; Jan. 30, 2025 Hr’g

Tr. (Rough) at 35 (“[A]ll we’re here to talk about today is whether Mr. Howell can meet his burden to prove [by] a

agree that certification and substitution are appropriate if (but only if) Mr. Howell’s allegedly

tortious conduct was done in the scope of his employment.85

I. The Law

As set out in more detail above, the tort claims brought against Mr. Howell arise out of his

intra-military reporting and his statements made to local law enforcement.86 To appropriately

decide the substitution issue for each tort claim, the Court must determine whether none, some, or

all of the alleged tortious conduct was within the scope of Mr. Howell’s employment. Whether

Mr. Howell was acting within the scope of his employment is a question governed by Arkansas

law.87 And under Arkansas law, whether Mr. Howell was acting within the scope of his

employment depends on whether he was “carrying out the object and purpose of the enterprise, as

opposed to acting exclusively in his own interest.”88 That is a very pro-employee test. Indeed,

even in a mixed-motive situation—where an employee acts in both his personal interest and the

interest of the business—Arkansas law considers the act to fall within the scope of employment.89

preponderance of the evidence that the United States was wrong in denying certification. And that’s his burden to

prove that we were wrong in saying he was not in the scope of employment.”).

85 See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 38–39 (United States agreeing that if Mr. Howell had been acting

within the scope of his employment, then the Attorney General would have issued the requested certification). It is

worth noting that Mr. Howell will remain in this case as a Defendant regardless of what the Court decides today. That

is because the Complaint levies additional non-tort claims against Mr. Howell (including breach of contract and unjust

enrichment). See Compl. (Doc. 2) ¶¶ 11–16, 23–29. Those other claims are not eligible for FTCA/Westfall

Act immunity.

86 See supra pages 5–7.

87 See Johnson v. United States, 534 F.3d 958, 963 (8th Cir. 2008) (“Scope of employment questions are governed by

the law of the state where the alleged tortious acts took place . . . .”).

88 Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 327, 802 S.W.2d 444, 446 (1991). Mr. Howell and the

United States seem to be in agreement on the contours of the scope of employment under Arkansas law. Compare Br.

in Opp’n to Pet. for Substitution (Doc. 72) at 5, with Reply in Supp. of Pet. for Substitution (Doc. 74) at 3–4. See also

Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 17–18, 51–52.

89 See Vincennes Steel Corp. v. Gibson, 194 Ark. 58, 62–63, 106 S.W.2d 173, 175 (1937).

And the scope of employment includes tortious conduct—even intentionally tortious conduct—so

long as the conduct was “not unexpectable in view of the duties of the [employee].”90

The broad, inclusionary sweep of this rule is confirmed by the relevant Arkansas Model

Jury Instructions:

an employee is acting within the scope of his employment if he is engaged in the

transaction of business which has been assigned to him by his employer or if he is

doing anything which may reasonably be said to have been contemplated as a part

of his employment and is in furtherance of his employer’s interests, even though it

was not expressly authorized and may have been specifically forbidden.91

This Model Jury Instruction has been blessed by the Arkansas Supreme Court as a correct

statement of Arkansas scope-of-employment law.92

So we know the law to apply. But what about the facts?

II. The Facts

When making a scope-of-employment-certification decision, the Court is supposed to first

find the facts relevant to the law governing the certification analysis.93 The Court can rely on

verified pleadings, declarations, depositions, and other record evidence to make findings of fact.

But if a material fact is genuinely in dispute (the familiar summary judgment standard), the Court

must hold an evidentiary hearing to settle the factual record.94

90 Regions Bank & Tr. v. Stone Cnty. Skilled Nursing Facility, Inc., 345 Ark. 555, 567, 49 S.W.3d 107, 115 (2001)

(quoting Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 355, 407 S.W.2d 728, 729 (1966)).

91 Ark. Model Jury Instr., Civil AMI 702 (emphasis added) (cleaned up).

92 See Nipper v. Brandon Co., 262 Ark. 17, 19, 553 S.W.2d 27, 28 (1977).

93 Cf. Osborn, 549 U.S. at 249–51.

94 See Kearns v. United States, 23 F.4th 807, 812 (2022). One might wonder why the Seventh Amendment right to a

jury trial is not negatively implicated by a judge holding such an evidentiary hearing and then making factual findings.

But this process seems to be what the Westfall Act requires and what the United States Supreme Court has approved.

See Osborn, 549 U.S. at 252. In any event, and fortunately, neither the parties nor the Court believe an evidentiary

hearing is needed in this case. See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 16–17, 45.

For the purposes of this Petition, there are no genuinely disputed material facts.95 The facts

as stated in the Background section above are not controverted by any party in this case. It is true,

of course, that there is disagreement between Mr. Skaggs and Mr. Howell concerning whether, at

the time Mr. Howell reported the alleged rape (and subsequently gave a statement about it),

Mr. Howell actually believed that Mr. Skaggs raped Mrs. Howell. Mr. Howell says yes, while

Mr. Skaggs says no.96 But this disagreement isn’t relevant to the pending Petition. That is because

Mr. Skaggs never argued that the Petition should be denied on the grounds that Mr. Howell’s

statements were knowingly false.97

Mr. Skaggs did not file a brief opposing Mr. Howell’s request for certification and

substitution. Indeed, the Court did not know until oral argument that Mr. Skaggs opposed

certification and substitution. Even then, at oral argument, counsel for Mr. Skaggs only pressed

the argument that the doctrine of laches should prevent Mr. Howell from seeking certification and

substitution years on from the filing of the initial complaint in this case.98 After counsel for

Mr. Skaggs said he had “nothing else” for the Court, the Court noted that counsel had not pressed

95 See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 70.

96 See supra page 4.

97 The opportunity to argue this was open to Mr. Skaggs and to the United States. A knowingly false report to an

employer by an employee is, perhaps definitionally, not within the scope of employment. That is because, inter alia,

such a report would not carry out the object or purpose of the employer. Cf. Porter v. Harshfield, 329 Ark. 130, 137,

948 S.W.2d 83, 86 (1997).

98 See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 56–57. The Court will not consider the laches argument because

it was waived (or forfeited, see infra note 101) by Mr. Skaggs’s failure to submit a brief. The Court notes, however,

that the direct language of the statute undermines the viability of any laches argument. See 28 U.S.C. § 2679(d)(3)

(“In the event that the Attorney General has refused to certify scope of . . . employment under this section, the employee

may at any time before trial petition the court to find and certify that the employee was acting within the scope of

his . . . employment.”) (emphasis added). It thus does not surprise the Court that Mr. Skaggs’s counsel was unable to

produce any case that applied the doctrine of laches to a situation like the one at hand. Jan. 30, 2025 Substitution Hr’g

Tr. (Rough) at 58.

the sincerity-of-reporting point.99 In response, counsel very briefly (and half-heartedly) asserted

that Mr. Skaggs “would register that argument as well.”100

The take-away from all this is that Mr. Skaggs waived (or at least forfeited) any opposition

to Mr. Howell’s certification and substitution requests.101 Certainly, Mr. Skaggs waived (or

forfeited) any opposition grounded in the sincerity-of-reporting point. The waiver (or forfeiture)

occurred when Mr. Skaggs failed to timely oppose Mr. Howell’s Petition by way of a responsive

brief.102 Given the waiver (or forfeiture), the sincerity of Mr. Howell’s reporting is not at issue in

the pending Petition. The party adverse to Mr. Howell for this Petition—the United States— took

no position on the factual question. It did not expressly or impliedly controvert the fact. Quite the

opposite, actually: The United States’ briefing and statements made during oral argument treat the

sincerity of the reporting as an established fact.103

Mr. Skaggs’s arguments against waiver or forfeiture are not persuasive. At oral argument,

Mr. Skaggs contended that he had not waived his ability to oppose the Petition because of the

common-defense doctrine.104 Mr. Skaggs said that, under this doctrine, the United States’ response

99 Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 59.

100 See id. at 60. Mr. Skaggs’s counsel’s initial silence and then tepid response on this point are especially stunning

because the Court itself had repeatedly raised this issue earlier in the argument. Id. at 6, 8–9, 14, 32–33; see also id.

at 35–36.

101 See Reinard v. Crown Equip. Corp., 983 F.3d 1064, 1066 (8th Cir. 2020) (“[F]orfeiture is the ‘failure to make the

timely assertion of a right,’ whereas waiver is the ‘intentional relinquishment or abandonment of a known right.’”

(quoting Hamer v. Neighborhood Hous. Servs., 583 U.S. 17, 20 n.1 (2017))); see also United States v. Campbell, 26

F.4th 860, 889–90 (11th Cir. 2022) (en banc) (Pryor, C.J., concurring) (highlighting the differences between waiver

and forfeiture with respect to failures of a party to brief an issue).

102 Cf. Bosch v. Thurman, No. 22-cv-00677, 2024 WL 841252, at *1 n.4 (E.D. Ark. Feb. 28, 2024) (“[G]enerally, a

party gives up an issue if it fails to respond to the other side’s summary judgment argument on that issue.”).

103 See generally Br. in Opp’n to Pet. for Substitution (Doc. 72); see also Substitution Hr’g Tr. (Rough) at 48 (agreeing

that the United States takes no position, for purposes of the instant petition, on the sincerity of the reporting). It would

be highly unfair to Mr. Howell for the Court to consider Mr. Skaggs’s arguments because they are significantly

different from the arguments in the United States’ briefing and were only raised at oral argument. Mr. Howell had no

opportunity to brief a response.

104 See Substitution Hr’g Tr. (Rough) at 3.

inures to his benefit.105 This argument is easily dismissed. Even if the Court were to conclude

that the common-defense doctrine applied, the doctrine would not preserve the sincerity-of-

reporting argument or the laches argument. That’s because the United States did not make these

arguments.106 The common-defense doctrine doesn’t give Mr. Skaggs the ability to assert a legal

theory that the United States did not assert in its Brief.107 Simply put, the litigating positions of

Mr. Skaggs and the United States are too different for common-defense treatment.108

Where does this leave us? First, there are no genuinely disputed facts for purposes of this

Petition. Second, we do not need an evidentiary hearing. And third, we treat Mr. Howell’s

reporting of the alleged rape (and his subsequent statements to local law enforcement) as sincere.109

105 Id. In support of his proposition, Mr. Skaggs’s counsel cited Angelo Iafrate Const., LLC v. Potashnick Const., Inc.,

370 F.3d 715, 722 (8th Cir. 2004). See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 4.

106 See, e.g., Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 55–56 (Mr. Skaggs’s counsel stating that, when he “said

earlier that we adopt the Government’s position, it wasn’t necessarily that we think that the sexual assault allegations

are true or we’re indifferent about them”).

107 Cf. Angelo Iafrate, 370 F.3d at 722 (common-defense doctrine is not available if the liability of the invoking party

“is based on . . . a legal theory distinct from the one under which the answering party prevailed”).

108 In any event, it is completely unclear that the common-defense doctrine could even theoretically apply to the

pending certification and substitution request. The common-defense doctrine is a creature of the common law, and it

is typically invoked in a scenario where a defendant has failed to file an answer and seeks to avoid default judgment.

See, e.g., Aldridge v. Watling Ladder Co., 275 Ark. 225, 228, 628 S.W.3d 322, 324 (1982). In such a scenario, a

co-d efendant’s timely filed answer may save the invoking defendant from the entry of a default judgment. See id.

Unlike that scenario, the circumstances at bar have none of the dire consequences associated with failing to file an

answer. Mr. Skaggs isn’t deemed to have admitted anything as a result of his failure to timely respond to the Petition

for Substitution. And he isn’t facing default judgment, or anything even remotely similar. It is therefore not surprising

that Mr. Skaggs hasn’t submitted any authority suggesting that the common-defense doctrine should apply in the

present scenario, where Mr. Skaggs wishes to use the common-defense doctrine to preserve his right to make

un-b riefed arguments at oral argument. Indeed, the case Mr. Skaggs’s counsel cited at the hearing was itself a

default- judgment case, suggesting that the common-defense doctrine does not aid Mr. Skaggs here because he is not

seeking to avoid default judgment. See Angelo Iafrate, 370 F.3d at 722.

109 Subsequent to oral argument, Mrs. Howell filed a Motion for Partial Summary Judgment. Doc. 81. She also filed

a Statement of Facts in support of that Motion. Doc. 82. Attached to Mr. Skaggs’s Response to her Statement of Facts

was a series of text messages between Mr. Skaggs and the Howells. See generally Ex. 2 (Text Messages) to Pl.’s Resp.

to Defs.’ Statement of Facts (Doc. 97-2). In an affidavit that was also attached to Mr. Skaggs’s Response to

Mrs. Howell’s Statement of Facts, Mr. Skaggs argues that these messages prove that the Howells’ reporting of rape

was both false and knowingly false. See Ex. 1 (Jeremy Skaggs Aff.) to Pl.’s Resp. to Defs.’ Statement of Facts (Doc.

97-1 ) ¶ 15. Putting aside whether those text messages can be used for purposes of evaluating Mrs. Howell’s Motion,

they certainly cannot be considered for the instant Petition. No party suggests otherwise.

III. Analysis

There are essentially two sets of actions taken by Mr. Howell that the Court must analyze:

(1) his intra-military reporting of the alleged rape; and (2) his statements to local law enforcement

officials about the alleged rape.110 The Court will address each of these in turn.

A. The Reports to Military Authorities

As explained above, Arkansas law defines the scope of employment quite broadly. But the

Court need not explore the outer fringes of that scope to address Mr. Howell’s intra-military

reporting of the (alleged) rape. That’s because Mr. Howell was explicitly required to make such a

report by the regulations that governed his employment.

Air Force Instruction 90-6001 § 3.7.3 requires “[a]ny military member or civilian

employee . . . who receives a report of an adult sexual assault incident involving a subordinate in

the individual’s supervisory chain” to “report the matter to the SARC, Commander (or equivalent)

and AFOSI . . . .”111 Failure to observe this “mandatory provision[]” constitutes “a violation of

Article 92, Uniform Code of Military Justice,” and “may result in administrative disciplinary

action . . . .”112 AFI 90-6001 has the force and effect of law.113 But it also created affirmative

duties on Mr. Howell pursuant to his employment as a federal civilian employee of the Air Force.

§ 3.7.3 applies to “[a]ny . . . civilian employee . . . .”114 In short, the relevant sexual-assault-

110 As a reminder, there are false light invasion of privacy and abuse of process claims brought against Mr. Howell

arising out of the report to his military superiors, whereas there are false light invasion of privacy, abuse of process,

and defamation claims brought against Mr. Howell arising out of his statements to law enforcement. See supra pages

8–9 .

111 AFI 90-6001 § 3.7.3.

112 AFI 90-6001 at 1.

113 Order (Doc. 48) at 11.

114 AFI 90-6001 § 3.7.3.

reporting requirement functioned as a workplace regulation that applied to Mr. Howell in his role

as a Communications Maintenance Superintendent.115

When Mr. Howell was made Mr. Skaggs’s direct supervisor, § 3.7.3 required Mr. Howell—

because he was both an employee of the Air Force and Mr. Skaggs’s direct supervisor—to report

the alleged rape to the enumerated military entities. And that’s exactly what Mr. Howell did in

reporting to Capt. Sugg and the Sexual Assault Response Coordinator. At a minimum, compliance

with such a regulation is something that has been “contemplated as a part of his employment and

is in furtherance of his employer’s interests . . . .”116

It is worth noting that, at oral argument, the United States conceded that Mr. Howell would

have been acting in the scope of his employment if he had reported the alleged rape to Capt. Sugg

when Capt. Sugg first informed Mr. Howell that Mr. Skaggs was going to be placed under

Mr. Howell’s supervision.117 The Court agrees with that, but fails to understand the line the United

States is trying to draw between the intra-military reporting in that hypothetical situation and the

intra-military reporting that actually took place in the instant case.

From the oral argument and the United States’ briefing, the Court’s best approximation of

the United States’ argument goes like this. If Mr. Howell’s motives were to advance the interests

of his employer, he would have told Capt. Sugg the details of the rape allegation before Capt. Sugg

formally made Mr. Skaggs a direct subordinate of Mr. Howell.118 And the fact that Mr. Howell

refused to do so—and only reported the alleged rape after he became Mr. Skaggs’s supervisor—

115 See Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶ 1.

116 Ark. Model Jury Instr., Civil AMI 702.

117 See Jan. 30, 2025 Substitution Hr’g Tr. (Rough) at 38–39.

118 See Br. in Opp’n to Pet. for Substitution (Doc. 72) at 7–8; Substitution Hr’g Tr. (Rough) at 37–40, 43.

proves Mr. Skaggs only made the report to avoid reprimand (or worse) for violating § 3.7.3.119

This means—according to the United States—that Mr. Howell’s motives for reporting were purely

personal, and thus his intra- military reporting falls outside the scope of his employment.120

There are two serious problems with this argument. The first problem is that the Air Force

has repeatedly stated that preventing sexual assault is an important goal of the organization.121

And the Air Force regulations contained in AFI 90-6001 (including § 3.7.3) were adopted to help

realize that goal.122 Air Force employees complying with this regulation (assuming the reports are

sincere) are ipso facto furthering the interests of the Air Force. So, assuming Mr. Howell believed

the allegation to be genuine, he had to have been acting at least in part in the interest of the Air

Force when he reported the allegation against Mr. Skaggs to his commanding officers. And under

Arkansas scope-of-employment law, “at least in part” is sufficient.123

Consider, for example, a teacher who works for a school that requires her to report any

suspected instances of child abuse to a state hotline. The fact that a state law might also require

the same reporting does not diminish the force of the school’s requirement. A teacher who makes

119 See Br. in Opp’n to Pet. for Substitution (Doc. 72) at 7–8; Substitution Hr’g Tr. (Rough) at 37–40, 43.

120 See Substitution Hr’g Tr. (Rough) at 43.

121 See AFI 1-1 § 1.7.4.5 (“The United States Air Force will not tolerate sexual assault. Sexual assault undermines

our mission readiness, directly contradicts our core values, and erodes the trust and confidence upon which our

institution is built. All Airmen have the enduring responsibility to foster a climate of dignity and respect and to

promote and ensure a culture that will not tolerate sexual assault or behaviors that support it.”); AFI 90-6001 § 1.1

(“The SAPR Program reinforces the Air Force’s commitment to . . . prevent and respond to sexual assault. . . . The

Air Force’s goal is to provide exemplary support throughout victim reporting, response, victim advocacy,

investigations and offender accountability when a sexual assault occurs.”); AFI 90-6001 § 1.4 (“Sexual assault is

criminal conduct that violates the standards the United States of America expects of its men and women serving in the

Air Force and is inconsistent with the Air Force[’s] core values . . . .”); AFI 90-6001 § 1.4.1 (“Airmen will strive to

eliminate sexual assault . . . .”).

122 See AFI 90-6001 § 1.1 (“The SAPR Program reinforces the Air Force’s commitment to prevention through the

development, implementation and assessment of policies and programs to prevent and respond to sexual assault. . . .

The Air Force’s goal is to provide exemplary support throughout victim reporting, response, victim advocacy,

investigations and offender accountability when a sexual assault occurs.”); AFI 90-6001 § 3.7 (“Accurate reporting of

sexual assaults remains a key component of the Sexual Assault Prevention and Response program.”).

123 See Vincennes Steel Corp., 194 Ark. at 62–63, 106 S.W.2d at 175.

such a report is not just complying with the general law of the state, but also complying with a

workplace regulation placed on her by the school. And so she is at least in part advancing the

interests and goals of her employer. Mr. Howell’s actions in our case are no different.

The second problem is that the United States seems to believe that the scope-of-

employment inquiry is a purely subjective one, focused solely on the motivations of the employee.

The implication of the United States’ argument is that where the motivations are purely personal,

the action is taken outside of the scope of employment.124 But that’s not entirely right. The

relevant inquiry is whether the employee was “carrying out the object and purpose of the

enterprise, as opposed to acting exclusively in his own interest.”125 It is true that the employee’s

motivation for an act is not entirely irrelevant to the inquiry.126 But the question of whether the

employee was “carrying out the object and purpose of the enterprise” is a mostly objective inquiry,

focused on the fit between the employee’s job duties and the employee’s actions.127

Here's why the inquiry must be primarily objective. Some people do not like their jobs.

And yet those people regularly show up for work, follow workplace regulations, and execute the

required tasks of their jobs. They do these things not because they particularly care for the health

or success of the enterprises under which they are employed. They do these things so that they

124 Cf. Br. in Opp’n to Pet. for Substitution (Doc. 72) at 7–8.

125 Razorback Cab of Fort Smith, Inc., 304 Ark. at 327, 802 S.W.2d at 446. Mr. Howell and the United States seem to

be in agreement that the language just cited—or very similar language—correctly describes the rule for determining

whether an action occurred within the scope of employment under Arkansas law. Compare Br. in Opp’n to Pet. for

Substitution (Doc. 72) at 5, with Reply in Supp. of Pet. for Substitution (Doc. 74) at 3–4; see also Jan. 30, 2025

Substitution Hr’g Tr. (Rough) at 17–18, 51–52.

126 See Regions Bank & Tr., 345 Ark. at 566–67, 49 S.W.3d at 114–1 5; Am. Ry. Express Co. v. Mackley, 148 Ark. 227,

233, 230 S.W. 598, 599–600 (1921).

127 See Vincennes Steel Corp., 194 Ark. at 63, 106 S.W.2d at 175 (“The fact that the servant acts also for himself, while

performing service for his employer, . . . will not exonerate the employer from responsibility for misconduct of the

servant.” (quoting Healey v. Cockrill, 133 Ark. 327, 331–32, 202 S.W. 229, 230 (1918)).

will be paid and will not be fired. Their subjective motivations for their actions are purely personal.

But, of course, those actions nonetheless fall within the scope of their employment.

To support its purely-personal-motivation theory, the United States principally relies on

Cooper Clinic, P.A. v. Barnes.128 In that case, the Arkansas Supreme Court held that a doctor was

acting outside of the scope of her employment when she failed to fulfill her mandatory reporting

requirement.129 But that case is inapposite. The duty to report in Cooper Clinic was created by

state statute rather than by the employer.130 And the doctor in Cooper Clinic had that duty by

virtue of being a licensed physician, rather than by virtue of her employment at the clinic.131 That’s

very different from the instant case, where the mandatory reporting requirement that applied to

Mr. Howell was created by Mr. Howell’s employer and applied to Mr. Howell by virtue of his

status as an employee.132

In sum, the Court concludes that Mr. Howell was acting well within the scope of his

employment when he reported the alleged rape to Capt. Sugg and the Sexual Assault Response

Coordinators. Accordingly, the United States will be substituted as the defendant for Mr. Skaggs’s

abuse of process and false light invasion of privacy claims against Mr. Howell arising out of

said reporting.

B. The Statements to Local Law Enforcement

There’s not much in the record about Mr. Howell’s statements to local law enforcement.

In fact, there isn’t anything at all about these statements in the written record. It was only at oral

128 See Br. in Opp’n to Pet. for Substitution (Doc. 72) at 5–6 (citing Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237

S.W.3d 89 (2006)).

129 See Cooper Clinic, 366 Ark. at 541, 237 S.W.3d at 93.

130 See id. at 535, 237 S.W.3d at 89.

131 See id.

132 See AFI 90-6001 § 3.7.3.

argument that the Court learned that Mr. Howell made some kind of statements about the rape to

local law enforcement.133 At the hearing, Mr. Howell’s counsel explained that Mr. Howell “was

called in and asked questions” by local law enforcement.134

It is unfortunate that the Court knows so little about the contents of Mr. Howell’s statements

to local law enforcement. That is because determining whether statements were made within the

scope of Mr. Howell’s employment requires the Court to examine the outer reaches of Arkansas’s

scope-of-employment doctrine. Ultimately, the Court concludes that Mr. Howell was acting within

the scope of his employment when he spoke to local law enforcement about the alleged rape. But

it’s a very close call.

The Air Force’s own statements and policies make it abundantly clear that the prevention

of sexual assault is one of its primary organizational goals. AFI 90-6001 states that “[s]exual

assault . . . violates the standards the United States of America expects of its men and women

serving in the Air Force and is inconsistent with the Air Force[’s] core values . . . .”135 Elsewhere,

Air Force regulations explain that the Air Force “will not tolerate sexual assault” because it

“undermines [Air Force] mission readiness, directly contradicts [Air Force] core values, and

erodes the trust and confidence upon which [the] institution is built.”136 That is why “[a]ll Airmen

133 Compare Substitution Hr’g Tr. (Rough) at 23 (the Court stating that, “[q]uite frankly, in the record, I don’t think

there is any indication that Mr. Howell had anything to do with the police department whatsoever, but we’ll see”),

with id. at 25 (Mr. Howell’s counsel stating that “[Mr. Howell] was called in [to the police department] and asked

questions. I think he was interviewed”). One consequence of this fact is that the parties’ briefs only discuss the

statements Mr. Howell made to his military superiors. This adds yet another layer of difficulty for the Court.

134 Id. at 25. The Court can and does accept this representation as true for purposes of deciding the instant Petition.

See Nesbitt v. Candler County, 945 F.3d 1355, 1357 (11th Cir. 2020) (citing Crowe v. Coleman, 113 F.3d 1536, 1542

(11th Cir. 1997)). No party has indicated disagreement with this representation. For his part, Mr. Skaggs’s counsel

indicated that the representation accorded with what he understood to be the case based on his preparation for the

hearing. Substitution Hr’g Tr. (Rough) at 61. And the United States did not take any position on whether Mr. Howell

spoke to local law enforcement.

135 AFI 90-6001 § 1.4.

136 AFI 1-1 § 1.7.4.5.

have the enduring responsibility to foster a climate of dignity and respect and to promote and

ensure a culture that will not tolerate sexual assault or behaviors that support it.”137 Over and over

again, official Air Force regulations demonstrate that the Air Force believes that prevention of

sexual assault is one of the central objects and purposes of its enterprise—an object and purpose

directly related to the branch’s fighting ability.

Air Force regulations also demonstrate that the organization believes that the reporting of

sexual assaults is key to achieving its goal of preventing sexual assault. Section 3.7.3 is a prime

example. The mandatory reporting requirement it creates—and the UCMJ penalties faced by

Airmen who fail to fulfill that requirement—is good evidence that the Air Force believes

good- faith reporting is an essential tool in combatting the prevalence of sexual assault.138 But

§ 3.7.3 isn’t the only part of AFI 90-6001 that suggests the importance of reporting. Section 3.7.4

of AFI 90-6001 “strongly encourage[s]” Air Force servicemen or civilian employees who are not

mandatory reporters to report sexual assault incidents of which they become aware.139 And § 3.7.4

details at length the process for reporting and for responding to those reports.140 The Air Force

would not have these organizational mandates, encouragements, and reporting structures in place

if it did not strongly believe that reporting sexual assault is an action that advances the

organizational purpose of preventing sexual assault.

As a general matter, actions that tend to reduce the possibility of sexual assault in the armed

forces would seem to advance the Air Force’s purpose of preventing sexual assault. And good- faith

reports of sexual assaults committed by servicemembers would seem to fall under that umbrella.

137 Id.

138 See AFI 90-6001 § 3.7.3.

139 AFI 90-6001 § 3.7.4.

140 Id.

Still, there is obviously a large difference between reporting a sexual assault inside the military

structure and reporting a sexual assault to local law enforcement. There is an even larger difference

between reporting a sexual assault inside the military and aiding a local law enforcement

sexual-a ssault investigation initiated by someone else. No regulation—at least not any regulation

relevant to this case—requires military personnel to report sexual assaults committed by other

military personnel to local law enforcement or to aid in a sexual-assault investigation conducted

by local law enforcement. So Mr. Howell’s statements to local law enforcement were not required

by any workplace regulation or other directive given by his employer.

Had Mr. Howell’s statements to local law enforcement been made in the absence of his

prior report to the appropriate military authorities, the Court would conclude that his statements

were made outside the scope of his employment. But that is not the situation we have here. In

this case, Mr. Howell first made a report to the proper military authorities, as he was required to

do by § 3.7.3.141 The military authorities then contacted local law enforcement, who in turn

contacted Mrs. Howell.142 Subsequently, the military authorities told Mr. Howell that, because the

conduct took place off base, a civilian law enforcement investigation would have to be initiated

before an Air Force investigation could be initiated.143 And one of the military’s Sexual Assault

Response Coordinators (Capt. Lang) went to the local police station with Mrs. Howell and assisted

her in filing the necessary report.144 The bottom line here is that the military appeared to be actively

involved in initiating and advancing the local law enforcement investigation.

141 Ex. A (First Benjamin Howell Aff.) to Defs.’ Br. in Resp. to Mot. to Remand (Doc. 19-1) ¶¶ 4–6.

142 Ex. A (Whitney Howell Aff.) to Whitney Howell’s Mot. for Partial Summ. J. (Doc. 81-1) ¶¶ 7–8.

143 Id. ¶ 10.

144 Id. ¶ 11.

In these very narrow circumstances, Mr. Howell’s statements to local law enforcement

were made within the scope of his employment. The military had to have contemplated that

Mr. Howell would be asked to provide a statement during the local law enforcement investigation.

And it is reasonable to believe that the military wanted Mr. Howell to cooperate with a local law

enforcement investigation initiated—to some extent—by the military. Considering the level of

entwinement between the military and local law enforcement investigations, as well as the

participation of military personnel in the initiation and advancement of the local law enforcement

investigation, Mr. Howell advanced the Air Force’s goal of eliminating sexual assault from the

armed forces when he aided the local law enforcement investigation. So, while Mr. Howell also

had personal motives in making his statements to local law enforcement, his actions

simultaneously advanced the object and purpose of his employer. And under Arkansas law, that’s

enough to place his actions within the scope of his employment.

Recall that an employee’s conduct—even tortious or intentionally tortious conduct—is

considered to be within the scope of employment if it is “not unexpectable in view of the duties of

the [employee].”145 Then consider what occurred leading up to Mr. Howell’s statement:

Mr. Howell reported the alleged rape to the Air Force as required by § 3.7.3, the Air Force notified

the Cabot Police Department (thus initiating the local law enforcement investigation), and an Air

Force officer accompanied and assisted Mr. Howell’s wife in making her report to the Cabot Police

Department.146 Considering this chain of events, Mr. Howell making a statement to the Cabot

145 See Regions Bank & Tr., 345 Ark. at 567, 49 S.W.3d at 115 (quoting Life & Cas. Ins. Co. of Tenn., 241 Ark. at 355,

407 S.W.2d at 729).

146 See supra pages 5–7.

Police Department wasn’t just “not unexpectable”—it was in fact fully expectable in view of his

initial duty to make a report to the military.147

The Court acknowledges that this fact pattern presents an edge case. Reasonable minds

could differ on the appropriate resolution. But, for the reasons set out above, the Court concludes

that Mr. Howell furthered his employer’s interests (in a manner consistent with and expectable in

view of his job duties) by making statements to local law enforcement about the alleged rape. He

was not acting exclusively in his own interest. Accordingly, the United States will be substituted

as the defendant for the defamation, abuse of process, and false light invasion of privacy claims

brought against Mr. Howell that arise out of Mr. Howell’s statements to local law enforcement.

147 To put a finer point on it, the relevant caselaw doesn’t require that, in order to fall within the scope of employment,

the employee’s conduct was done pursuant to an affirmative duty handed down by an employer. The employee’s

conduct must merely have been “not unexpectable in view of the duties of the [employee].” Regions Bank & Tr., 345

Ark. at 567, 49 S.W.3d at 115 (quoting Life & Cas. Ins. Co. of Tenn., 241 Ark. at 355, 407 S.W.2d at 729) (emphasis

added). And, as just explained, the local-law-enforcement reporting was not unexpectable in view of (1) Mr. Howell’s

duty to report the alleged rape to his military superiors, and (2) the Air Force’s involvement in the initiation of the

local law enforcement investigation.

A comparison with relevant caselaw confirms this conclusion. Cases where the Arkansas Supreme Court has

concluded that an employee’s action was unexpectable in view of his duties (and therefore outside the scope of

employment) have frequently involved an employee assaulting someone on the job. See, e.g., Regions Bank & Tr.,

345 Ark. at 566–67, 49 S.W.3d at 114–15 (finding the sexual assault of a semi-comatose quadriplegic nursing home

patient by a nursing assistant was not expectable in view of the assistant’s duties); Porter, 329 Ark. at 137, 948 S.W.2d

at 86 (finding the sexual assault of a patient by a radiology technician was not expectable in view of the technician’s

duties); see also Am. Ry. Express Co., 148 Ark. at 233, 230 S.W. at 600 (finding an employee murdering a customer

was not within the scope of employment, despite the fact that the motivating dispute arose in the course of the

employee’s job duties, because the employer “was not advised” of the employee’s “personal resentment[] or injured

pride,” and “because it was a matter in which the [employer] had no concern”). But see Razorback Cab, 304 Ark. at

326–27, 802 S.W.2d at 446 (finding a cab driver’s fistfight with a customer was within the scope of the driver’s

employment because the driver’s “underlying purpose . . . was the comfort and welfare of other passengers”); Life &

Cas. Ins. Co. of Tenn., 241 Ark. at 355, 407 S.W.2d at 729 (holding there was substantial evidence to support finding

employee’s assault of a customer was within the scope of employment because “[f]or a quarrel to arise in the course

of an employee’s attempt to collect money is certainly ‘not unexpectable’”). That’s nothing like what happened here.

Mr. Howell’s statements to local law enforcement have a clear logical connection with his mandatory report to military

authorities. Reporting an alleged rape to military superiors pursuant to a duty of Air Force employment and discussing

that same alleged rape with local law enforcement are not identical acts. But they are certainly similar, and the

justifications for the former can also justify the latter. See supra page 23. In view of the similarities between the

relevant job duty (intra-military reporting under § 3.7.3) and the statements to local law enforcement—and especially

given the Air Force’s actual involvement in both processes—the Air Force had more than sufficient reason to expect

Mr. Howell to make statements to local law enforcement as part of the overall reporting process.

CONCLUSION

Mr. Howell’s Petition is GRANTED in full.'*® The United States is ordered to be

substituted as the defendant with respect to all claims of defamation, abuse of process, and false

light invasion of privacy brought against Mr. Howell.

IT IS SO ORDERED this 11th day of June 2025.

LEE P. RUDOFSKY

UNITED STATES DISTRICT JUDGE

48 Doc. 67.

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