FTCA Course-and-Scope: Union “Official Time” Duties and Special-Mission Travel Can Create a Jury Question Under Texas Law

1. Introduction

In Barrier v. United States (5th Cir. July 7, 2026), Plaintiff-Appellant Tami Barrier sued the United States under the Federal Tort Claims Act (FTCA), alleging the government was vicariously liable for a collision in which a U.S. Customs and Border Protection (CBP) agent, Robert Duran, struck her with his truck while exiting a CBP station in Del Rio, Texas. The key issue was narrow but consequential: whether Duran was acting within the course and scope of his employment—as Texas law defines that phrase—at the moment of the collision, given that he was a full-time union officer on “official time” performing union-related tasks and purportedly driving either home or to a union hall to receive donated pandemic supplies for distribution to CBP stations.

The district court granted summary judgment to the United States, holding Duran was outside the course and scope of employment. The Fifth Circuit reversed, concluding that genuine disputes of material fact could permit a reasonable jury to find that Duran’s travel was within scope under Texas respondeat superior principles (including the “special mission” doctrine) and that union work is not categorically outside “course and scope” for FTCA purposes.

2. Summary of the Opinion

The Fifth Circuit held summary judgment was improper because a reasonable jury could find:

• Duran was still “on duty” or otherwise acting in furtherance of CBP’s business when he left the station (timesheet, video timestamp, and testimony were inconsistent).
• Duran was traveling to the union hall to receive donated supplies for distribution to CBP stations—an activity a jury could view as benefiting CBP—supporting the Texas “special-mission” exception to the coming-and-going rule.
• Union-related duties performed on official time are not automatically outside the course and scope of a federal employee’s employment for FTCA vicarious liability.

The court REVERSED and REMANDED for further proceedings.

3. Analysis

A. Precedents Cited

• Turner v. Baylor Richardson Med. Ctr. and Instone Travel Tech Marine & Offshore v. Int'l Shipping Partners, Inc.
  These Fifth Circuit decisions supply the summary-judgment framework: appellate de novo review, no credibility weighing, and all reasonable inferences in favor of the nonmovant. The panel used them to justify sending the case to a jury because the record could support competing inferences on duty status, destination, and purpose of travel.
• Millbrook v. United States
  Cited for the FTCA’s core rule: the United States is liable for torts by federal employees acting within the scope of employment. This anchors the analysis: once the conduct potentially fits “scope,” sovereign immunity is waived to that extent.
• Bodin v. Vagshenian
  Used for the choice-of-law principle: “scope of employment” is determined by the law of the state where the act occurred. Here, that is Texas.
• Painter v. Amerimex Drilling I, Ltd.
  This is the opinion’s primary Texas course-and-scope template. The Fifth Circuit drew three key principles from Painter:
  1. Texas test: scope requires action within general authority, in furtherance of the employer’s business, and to accomplish the object of employment.
  2. Coming-and-going rule: travel to/from work is generally outside scope.
  3. Special-mission exception: travel can be within scope when it serves the employer’s business with express or implied approval.
  The panel analogized Duran’s alleged errand (receiving supplies for distribution to CBP stations) to the compensated transport arrangement in Painter, emphasizing that scope can exist even when the worker is arguably “off duty,” and that benefit to the employer can be shown through practical operational advantages.
• Cameron Int'l Corp. v. Martinez
  Cited for limiting principles: not every act that indirectly supports work (e.g., eating, personal errands) qualifies as a special mission; the “special mission” inquiry is heavily fact dependent. The Fifth Circuit distinguished Cameron because the employee there was not directed to travel and was buying items for personal needs, whereas Duran was arguably traveling to collect supplies intended for CBP-wide distribution.
• Rios Pina v. Sun Loans, Inc.
  Used to illustrate that special missions can include atypical work-related assignments outside an employee’s regular duties, reinforcing that “special mission” can reach beyond a formal job description.
• Arbelaez v. Just Brakes Corp.
  Although not labeled a “special mission” case in the opinion, it served as a strong analogy: an employee’s trip to pick up breakfast for coworkers—especially if requested by a manager and tied to workplace attendance/efficiency—can be within scope. The Fifth Circuit used Arbelaez to support the idea that errands benefiting workplace functioning (even with some personal or informal flavor) can be within scope, and that “personal benefit” does not necessarily defeat respondeat superior.
• Conchas Mesraje v. United States
  A recent Fifth Circuit FTCA/Texas scope case holding that a military officer’s trip to obtain food after being dismissed for the day was outside scope and amounted to a personal deviation. The panel distinguished it on the same axis as Cameron: personal consumption errands versus errands plausibly benefiting the employer’s operations.
• Graham v. Milky Way Barge, Inc.
  Cited to emphasize methodological restraint: a federal court applying state law should not invent “innovative theories” of Texas respondeat superior, particularly regarding union activity, where Texas authority is sparse.
• Clanton v. Interstate Telecomm., Inc.
  Cited for a key Texas principle: conduct can be within scope even if it also serves the employee’s purposes or those of a third person—helpful to rebut the government’s framing of Duran’s activity as “merely a personal favor.”

B. Legal Reasoning

1. The court treated “course and scope” as a fact-intensive Texas question

Applying Texas law, the panel emphasized that the special-mission exception “depends heavily on the facts and circumstances of the case” (quoting Cameron Int'l Corp. v. Martinez and Painter v. Amerimex Drilling I, Ltd.). That framing mattered because the record contained disputed facts central to scope:

• Duty status and time: Duran’s timesheet (ending 3:30 p.m.), security video (leaving ~3:58 p.m.), and reported collision time (~4:10 p.m.) did not align neatly. The court held a jury could find he remained on duty.
• Destination and purpose at the moment of travel: Duran testified he was going home, but the union president (Anfinsen) testified Duran was already on his way to the union hall before any reminder call. Under summary judgment standards, that conflict had to be resolved in Barrier’s favor.
• Employer benefit: The supplies were to be distributed across CBP stations during a pandemic. The panel held a jury could view that as furthering CBP’s operations.

2. The court rejected a categorical “union work is outside CBP employment” rule

The government’s core theory was structural: CBP is not the union, union tasks are distinct, and CBP lacked control over union activity—therefore Duran’s union-related errand could not be within CBP’s scope. The Fifth Circuit declined to adopt that approach for three interlocking reasons drawn from Texas law and the record:

• Texas scope turns on furtherance/approval, not labels: The relevant question is whether the act was in furtherance of the employer’s business and with the employer’s express or implied approval (as articulated in Painter v. Amerimex Drilling I, Ltd.), not whether the act matches “traditional” job functions.
• No Texas authority creates a union carve-out: The panel noted the absence of Texas decisions treating union activity differently for respondeat superior and, invoking Graham v. Milky Way Barge, Inc., refused to create a new state-law limitation.
• Practical consequences in an “official time” system: Duran was a full-time union officer whose union duties comprised about 80% of his paid work. A categorical rule would render most of his paid work outside scope—an implausible result on this record and inconsistent with Texas’s functional, fact-driven scope inquiry.

3. The panel clarified a common analytical mistake: do not conflate “right to control” with “course and scope”

The opinion’s footnote underscores an important doctrinal point drawn from Painter v. Amerimex Drilling I, Ltd.: “right to control” goes to whether a worker is an employee in the first place; once employee status is conceded, the course-and-scope analysis does not re-import “control” as a separate requirement. The government’s emphasis on CBP’s lack of control over union activity was therefore misdirected in the scope inquiry (especially given its concession that Duran was a CBP employee).

4. “Personal favor” does not end the inquiry

Even if Duran was doing Anfinsen a “personal favor,” Texas law does not treat mixed-motive conduct as automatically outside scope. Citing Clanton v. Interstate Telecomm., Inc., the panel stressed that conduct may remain within scope even if it partially serves a third person. That principle preserved a jury question on whether the errand still furthered CBP’s interests by facilitating distribution of supplies across stations.

C. Impact

The decision is likely to influence FTCA litigation (and analogous respondeat superior disputes) in at least four ways:

1. Union “official time” as potentially within scope: Plaintiffs can cite Barrier to resist categorical arguments that union-related acts are outside “employment” for scope purposes, especially where the employer pays for official time and the work is integrated into the employment arrangement.
2. Expanded room for jury determinations in travel cases: Where purpose, timing, and destination are disputed, Barrier reinforces that “special mission” and related scope questions often cannot be resolved at summary judgment.
3. Operational-benefit framing: The opinion suggests that tasks supporting workforce readiness and station functioning (here, distribution of pandemic supplies) can be framed as employer-benefiting, even when the task looks informal (donations, union hall pickup) and even when it is not part of classic law-enforcement duties.
4. Doctrinal clarity against “control” creep: Government defendants may be less able to re-litigate the “control” concept (employee status) under the guise of course-and-scope, particularly in official-time or hybrid-duty settings.

4. Complex Concepts Simplified

• FTCA (Federal Tort Claims Act): A statute that allows suits against the United States for certain torts committed by federal employees, but only when the employee was acting within the “scope of employment” as defined by state law.
• Respondeat superior / vicarious liability: A rule that can make an employer liable for an employee’s negligence if it occurred while the employee was acting within the course and scope of employment.
• Coming-and-going rule (Texas): Usually, an employer is not liable for accidents occurring while an employee is commuting to or from work.
• Special-mission exception (Texas): A commute-like trip can still be within scope if the travel itself is part of performing a task for the employer’s benefit, with the employer’s express or implied approval.
• Summary judgment: A pretrial ruling that ends a case without trial if there is no genuine dispute of material fact. If reasonable jurors could disagree about key facts, summary judgment is improper.
• “Right to control” vs. “course and scope”: “Right to control” helps decide whether someone is an employee at all. “Course and scope” asks whether, at the time of the incident, the employee was acting in furtherance of the employer’s business. They are related but distinct inquiries.

5. Conclusion

Barrier v. United States establishes that, under Texas law as applied through the FTCA, union-related activities performed by a federal employee on official time are not categorically outside the course and scope of employment, and that travel to perform such tasks—particularly where the task plausibly benefits the employer—can create a triable “special mission” question. By emphasizing factual disputes over duty status, destination, and employer benefit, the Fifth Circuit reinforced that scope determinations in travel-and-errand cases are often for juries, not judges, to resolve on summary judgment.