FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           August 28, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
LARITA A. BARNES,

      Plaintiff - Appellant,
                                                               No. 16-5166
v.                                                 (D.C. No. 4:12-CV-00282-JED-PJC)
                                                               (N.D. Okla.)
UNITED STATES OF AMERICA,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, McKAY, and HARTZ, Circuit Judges.
                  _________________________________

       Brandon McFadden was a disgrace to law enforcement. He joined other corrupt

officers in fabricating evidence, stealing drugs and money from suspects, and selling

drugs. Plaintiff Larita Barnes is one of his victims. Perjured testimony by McFadden

and others convicted her of selling drugs. She was imprisoned until the officers’

corruption was revealed. Because McFadden was a special agent of the federal Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF), Ms. Barnes sued the United States

under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671‒2680, for

various negligent and intentional torts. The district court granted the government’s



*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
motion for summary judgment and she now appeals. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm in part and reverse in part.

        We affirm the dismissal of Ms. Barnes’s claims of negligent training and

supervision of McFadden because she did not raise them in the administrative claim

required by the FTCA. But we reverse the dismissal of her claims of intentional

misconduct by McFadden. As we understand Oklahoma respondeat superior law,

McFadden’s torts against Ms. Barnes may have been within the scope of his employment.

A factfinder could reasonably decide that his perjury and other misconduct constituted an

abuse of power lawfully vested in him rather than an “unlawful usurpation of power the

officer did not rightfully possess,” DeCorte v. Robinson, 

, 362 (Okla. 1998),

and that his motives included serving a government purpose.

   I.      BACKGROUND

        Brandon McFadden was an ATF special agent assigned to the Tulsa, Oklahoma

field office. He worked as a liaison with the local-gang unit within the Special

Investigations Division of the Tulsa Police Department (TPD). His role was to help

conduct investigations, prepare cases for prosecution, and coordinate with local law-

enforcement agencies. His work included assisting TPD officers to establish probable

cause for search warrants through confidential informants, surveillance, and controlled

drug buys. And he conferred with prosecutors in preparation of trial testimony.

        McFadden often worked out of the TPD gang unit’s office. In 2006 he joined a

criminal conspiracy with several gang-unit officers. In 2007 and 2008 the officers stole

drugs and cash they found during searches of suspected drug dealers and their homes.


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They profited from the stolen drugs by selling them to local dealers. On at least one

occasion, the officers planted evidence in a man’s home, executed a search warrant on the

home, and then pressured the man to participate in their drug trafficking.

       Of particular importance to this case are the officers’ dealings with Ryan Logsdon.

In January 2007 McFadden, TPD officer Jeff Henderson, and another TPD officer

executed a search warrant on the home of Logsdon, a suspected drug dealer. The officers

handcuffed and questioned Logsdon in his living room in the presence of his girlfriend

and three-year-old son. Henderson threatened to send Logsdon to jail and to place his

son in custody if he refused to cooperate. In response, Logsdon led the officers to

$13,000 cash and about two pounds of methamphetamine. Henderson and McFadden

each pocketed $1,500 and retained a half pound of the methamphetamine, which they

later sold back to Logsdon for $7,000. The remainder of the cash and drugs was turned

over to the police department, and Logsdon’s car was processed for forfeiture. From then

on, Logsdon continued to deal methamphetamine while serving as a confidential

informant for the officers. He occasionally met with McFadden and Henderson, paying

them a total of $250,000 to $300,000 for methamphetamine over the course of the

conspiracy.

       In May 2007, Logsdon informed McFadden that he had bought methamphetamine

from Ms. Barnes on two occasions. McFadden and Henderson began making

preparations for a controlled buy between Logsdon and Ms. Barnes. McFadden followed

ATF procedures to obtain $3,000 from Bureau funds and gave the money to Henderson

for the purchase. But the buy never occurred. A few days later, Logsdon told the officers


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that Ms. Barnes had “advised him not to come around anymore and that she did not want

to deal with him.” 

According to Logsdon, Ms. Barnes had learned that

Logsdon’s car had been forfeited by the police and became suspicious that he was a

police informant. Henderson never returned the $3,000.

       Shortly thereafter, McFadden discovered that Henderson had written a report

stating that the controlled buy with Ms. Barnes had occurred; and when charges were

filed against Ms. Barnes, he learned that he was included in the report. Henderson urged

McFadden to “[s]tick to what’s on the report” because “[e]verybody hates the Barneses

anyway” and “[n]o one’s going to ask any questions.” 

Although McFadden

knew the report was false, he agreed to cooperate, “believ[ing] what people had said

about the Barneses all this time.” 

10, 2007, Ms. Barnes and her father were indicted. As was common

practice, McFadden, Henderson, and Logsdon met several times to prepare for the jury

trial by getting the details of their stories straight. A few days before trial, they also met

with the prosecutor at the U.S. Attorney’s office. McFadden served as the case agent for

the trial, during which he, Henderson, and Logsdon falsely testified that Ms. Barnes and

her father had sold Logsdon 87 grams of methamphetamine. On April 23, 2008, Ms.

Barnes and her father were each found guilty on two charges. She was sentenced to 120

months’ imprisonment; he to 66 months.

       The conspiracy soon began to unravel. In 2009 federal authorities opened an

investigation of TPD corruption and learned that Ms. Barnes’s conviction was based on

perjured testimony. Upon the government’s motion, Ms. Barnes’s felony convictions


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were overturned and she was released on July 2, 2009. McFadden was indicted on

several charges and pleaded guilty to conspiracy to distribute methamphetamine. At his

plea colloquy he confessed:

         I used the position as a special agent with ATF to further the drug
         conspiracy and abused my position as a special agent. During this time,
         myself and Henderson seized drugs and money which were kept for our
         own personal benefit, falsified investigative reports, and failed to document
         events, and obstruct justice through falsely [sic] testimony under oath and
         persuading other individuals to do the same.

Aplt. App. at 73. And he later asserted in an affidavit:

         10. The reason I did this was to help the United States of America, as an
         acting agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives,
         Jeff Henderson and the City of Tulsa to successfully prosecute the Barnes
         so they would subsequently be convicted of a criminal offense and
         therefore be imprisoned.

         11. I did not do these acts for personal gain and I did not receive any
         personal gain or benefit from these acts. . . .

         Ms. Barnes filed this suit in the United States District Court for the Northern

District of Oklahoma. The district court granted the government’s motion for summary

judgment and Ms. Barnes appeals.

   II.        DISCUSSION

         The FTCA provides a limited waiver of the federal government’s sovereign

immunity, allowing civil claims against the United States for “the negligent or wrongful

act or omission” of a federal employee “acting within the scope of his office or

employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA the United States is liable on

tort claims “under circumstances where the United States, if a private person, would be


                                               5
liable to the claimant in accordance with the law of the place where the act or omission

occurred.” Id.; cf. 

(“The United States shall be liable . . . in the same manner

and to the same extent as a private individual under like circumstances”).

       Ms. Barnes asserts claims under the FTCA for negligent supervision and training,

false arrest, wrongful imprisonment, abuse of process, malicious prosecution, and

intentional infliction of emotional distress. She alleges that McFadden falsely testified at

her trial and instructed another person to do the same, resulting in her illegal arrest,

prosecution, and imprisonment. She also alleges that the ATF negligently “failed to

properly train, supervise, and oversee McFadden.” Compl. at 5 ¶ 23, Barnes v. United

States, No. 4:12-cv-00282 (N.D. Okla. May 15, 2012). The district court granted the

government’s summary-judgment motion, ruling (1) that Ms. Barnes failed to exhaust

administrative remedies with respect to her claims of negligent supervision and training

and (2) that McFadden was not acting within the scope of his employment.

       We review de novo the grant of a motion for summary judgment. See Obermeyer

Hydro Accessories v. CSI Calendering, 

, 1014 (10th Cir. 2017). Summary

judgment is appropriate if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We view the

evidence, and draw all reasonable inferences therefrom, in the light most favorable to the

nonmoving party.” 

.

              A. Failure to Exhaust Administrative Remedies

       A claimant under the FTCA must “first present[] the claim to the appropriate

Federal agency.” 28 U.S.C. § 2675(a); see McNeil v. United States, 

, 113


                                              6
(1993) (“The FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies.”). A claim is properly presented to an agency

only if the language of the claim “serves due notice that the agency should investigate the

possibility of particular (potentially tortious) conduct.” Staggs v. United States, 

, 884 (10th Cir. 2005) (internal quotation marks omitted). Because Ms. Barnes’s

administrative claim “included no mention of any possibility that her injuries were caused

by negligent training and supervision,” the district court held that her negligence claims

were unexhausted. Barnes v. United States, 

, 1297 (N.D.Okla. 2015).

       Ms. Barnes does not dispute the district court’s characterization of her

administrative claim. She argues only that “the FTCA notice requirements . . . should not

be interpreted inflexibly” and that “a tort claim is sufficient if it provides notice of the

facts and circumstances underlying a claim rather than the exact grounds upon which the

plaintiff seeks to hold the government liable.” Aplt. Br. at 29‒30 (internal quotation

marks omitted). But she fails to explain why her administrative claim lacks even a

cursory mention of ATF training or supervision. The claim provides no notice of any

wrongdoing by any federal officer other than McFadden. The district court did not err in

dismissing Ms. Barnes’s negligence claims.

              B. Scope of Employment

       To determine whether the United States would be liable for the acts of a federal

employee, we look to the respondeat superior law of the state where the wrongful act

occurred. See Fowler v. United States, 

, 1237 (10th Cir. 2011) (examining




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Colorado respondeat superior law to determine whether federal employee was acting

within his scope of employment).

         Under Oklahoma law an employer may be liable for an employee’s intentional

torts if the employee was “acting within the scope of the employment in furtherance of

assigned duties.” Bosh v. Cherokee Cty. Bldg. Auth., 

, 998 (Okla. 2013).

“[O]ne acts within the scope of employment if [1] engaged in work assigned, or [2] if

doing what is proper, necessary and usual to accomplish the work assigned, or [3] doing

that which is customary within the particular trade or business.” Id.; accord Tuffy’s, Inc.

v. City of Oklahoma City, 

, 1163 (Okla. 2009) (officers allegedly attacked

nightclub patrons). “[A]n employer can be held liable even if the employee acts beyond

the given authority” so long as the act was “incident to some service being performed for

the employer.” Rodebush v. Okla. Nursing Homes, Ltd., 

, 1245 (Okla.

1993).

         To apply the scope-of-employment analysis in the context of law enforcement, the

Oklahoma Supreme Court has embraced a test formulated by the Florida Supreme Court.

See 

(claim of false arrest and assault of prisoner by officer).

Under the test, “‘liability exists for acts of officers that can be described as abuses of

lawful power,’” but not for “‘an unlawful usurpation of power the officer did not

rightfully possess.’” 

(quoting McGhee v. Volusia Cty., 

, 733

(Fla. 1996)). The line between abuse and usurpation is not the line between legal and

illegal acts. An “‘officer’s misconduct, though illegal,’” may be “‘accomplished through




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a[n] abuse of power lawfully vested in the officer.’” 

(quoting 

).

       Because the Oklahoma Supreme Court adopted the Florida Supreme Court’s

abuse/usurpation test, we can look to Florida cases for guidance in applying it. In the

opinion quoted by DeCorte, the plaintiff was handcuffed and being booked when he told

the deputy sheriffs that they were no longer welcome in his father’s saw shop. See

. One of the deputies lunged at the plaintiff, grabbed him by

the throat, and began kicking him with force. See 

for the plaintiff the court

wrote, “The fact that [the deputy] may have intentionally abused his office does not in

itself shield the sheriff from liability.” 

It pointed out that the deputy “clearly

had the lawful authority to restrain arrestees, detain them, or even respond with force in

appropriate situations,” and it held that “he therefore cannot be described as a usurper.”

court said that the issues of bad faith and malicious purpose still had to

be determined on remand, see 

were not relevant to scope of authority but

to additional statutory requirements, see 

(quoting statute providing that state is

not liable for torts committed “while acting outside the course and scope of [employee’s]

employment or committed in bad faith or with malicious purpose.”).

       McGhee provided further guidance in discussing two earlier decisions. In

Hennagan v. Dep’t of Highway Safety & Motor Vehicles, 

, 749 (Fla. Dist.

Ct. App. 1985)), an officer “allegedly had ‘arrested’ a minor child pretexually so that he

later could sexually molest her.” 

. McGhee agreed with

Hennagan that “‘[c]onduct is within the scope of employment if it occurs substantially


                                               9
within authorized time and space limits, and it is activated at least in part by a purpose to

serve the master.’” 

(quoting 

);

see also 

(“[C]onduct may be within the scope of

employment, even if it is unauthorized, if it is of the same general nature as that

authorized or is incidental to the conduct authorized.”). As McGhee explained in support

of the result in Hennagan, “The officer’s misconduct, though illegal, clearly was

accomplished through an abuse of power lawfully vested in the officer, not an unlawful

usurpation of power the officer did not rightfully 

.

       McGhee also endorsed a decision involving a police officer who used excessive

force in committing a false arrest. 

(citing Richardson v. City of

Pompano Beach, 

(Fla. Dist. Ct. App. 1987), review denied, 

(Fla. 1988)). As McGhee explained, “[T]he Richardson court concluded that acts did

not fall beyond the scope of the officer’s employment merely because they were

. Thus, “[o]nce again this showed a case of lawful power

abused, not of an unlawful usurpation of authority.” 

understanding of the abuse/usurpation dichotomy provided by McGhee,

we conclude that summary judgment was improper. The heinous acts of McFadden that

harmed Ms. Barnes were performed in the normal course of his duties—preparing for

trial and testifying. The government’s arguments to the contrary are not persuasive.

       The government first argues that McFadden was acting outside the scope of his

authority because “a federal law enforcement officer is never authorized to frame a

person known to be innocent.” Aplee. Br. at 28. But an officer is also not authorized to


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use excessive force or commit sexual assault. Although McFadden, like the officers in

the above cases, employed his power “contrary to the law of its use” and “use[d] it

improperly and to excess,” 

, he did not assume a function that

had not been assigned to him. Cf. Baker v. Saint Francis Hosp., 

, 605

(Okla. 2005) (employer may be liable where employee has authority “to do the particular

thing rightfully that was subsequently done in a wrongful manner”); Shrier v. Morrison,

, 202 (Okla. 1960) (“[C]are must be exercised to distinguish between

authority to commit a fraudulent act and authority to transact business in the course of

which the fraudulent act is committed.” (internal quotation marks and emphases

omitted)). McFadden could not have performed his authorized duties more despicably,

but he was acting within the customary scope of his duties.

       The government also argues that it is not liable under general respondeat superior

law because McFadden was acting for his own purposes (pursuing the conspiracy that

had greatly enriched him), not the interests of the United States. The underlying

proposition finds support in Oklahoma law. In 

‒04, a hospital was

sued under the theory of respondeat superior because its employee, a caregiver,

intentionally struck the head of a two-month-old girl against the corner of a shelf. The

court explained the relevance of the employee’s motives:

       “The liability of a master for the use of force by a servant is not prevented
       by the fact that the servant acts in part because of a personal motive, such
       as revenge. The master, however, is relieved from liability . . . if the
       servant has no intent to act on his master’s behalf[.]”




                                             11


(quoting Restatement (Second) of Agency § 245 cmt. f (1958)); see also

Restatement (Third) of Agency § 7.07(2) (“An employee’s act is not within the scope of

employment when it occurs within an independent course of conduct not intended by the

employee to serve any purpose of the employer.”). The court thus remanded for a fact-

finder to determine the motive behind the caretaker’s acts. It said, “[A] jury . . . must

decide if [the employee’s] acts were so far removed from any work-related endeavor and

geared, instead, toward a personal course of conduct unrelated to her work so that it

would no longer be appropriate to hold her employer responsible for her act(s).” 

.

       In the law-enforcement context, however, the courts have generously construed

the breadth of an officer’s purpose, perhaps because public-policy concerns generally

make it “appropriate to hold [the law-enforcement agency] responsible for [an officer’s]

acts.” 

power comes great responsibility, and the powers of law-

enforcement officers are unique in our society. Police agencies are expected to strictly

control misbehavior by their own officers. Thus, the courts of Oklahoma and Florida

have said that an officer may have in mind a governmental purpose when he abuses a

prisoner, see McGhee, 

; uses excessive force in a false arrest, see DeCorte,

; Richardson, 

; assaults nightclub patrons, see Tuffy’s, 

; or even arrests a child for the purpose of sexually abusing her, see Hennagan,

. McFadden declared in an affidavit that he “did not do these acts for

personal gain,” that he “did not receive any personal gain or benefit from these acts,” and

that “[t]he reason [he] did this was to help the United States of America . . . successfully


                                             12
prosecute the Barnes.” Aplt. App. at 178 ¶ 10‒11. Contrary to the government’s brief,

this was sufficient evidence of an intent to serve the government.

       The government contends that Ms. Barnes forfeited the argument that McFadden

intended to aid the United States because she did not raise this theory below. We

disagree. In her response to the government’s motion to dismiss, she argued that

“[v]arious law enforcement entities and/or officers were upset at not being able to get

evidence to prosecute the Barnes so someone devised a plan to fabricate witnesses and

evidence of a drug crime to indict her and prosecute her in federal court.” Resp. to Mot.

to Dismiss at 1, Barnes v. United States, No. 4:12-cv-00282. She further stated that:

       SA McFadden, and others, thought Larita Barnes and other members of her
       family were deeply involved in drug activity. When SA McFadden went
       after Ms. Barnes, he did so only to further the interests of the federal
       government in investigating, ferreting out and helping to prosecute criminal
       activity.

And in her Rule 59(e) motion to reconsider, Ms. Barnes argued:

       It is undisputed that McFadden submitted an affidavit that none of his
       actions as to Ms. Barnes were for personal gain. His acts were intended to
       benefit his employer, the United States of America, to successfully
       prosecute the Barneses.

Mot. to Recons. at 17, Barnes v. United States, No. 4:12-cv-00282 (citations omitted).

       In our view, the record does not support summary judgment in favor of the

government on the respondeat superior issue.




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   III.   CONCLUSION

       We AFFIRM the district court’s dismissal of Mr. Barnes’s negligence claims.

We REVERSE the dismissal of the remainder of Mr. Barnes’s claims and REMAND for

further proceedings consistent with this opinion.

                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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