In her dissent in United States Postal Service v. Konan, No. 24-351 (Feb. 24, 2026), Justice Sonia Sotomayor cited Restatement of the Law Second, Agency § 228, which addresses when an employee’s conduct falls within the scope of employment.
Section 228 provides that conduct is within the scope of employment if: (1) it is of the kind the employee is employed to perform; (2) it occurs substantially within authorized time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer. Conduct may fall outside the scope if it is different in kind from that authorized or is motivated solely by personal reasons.
In dissent, Justice Sotomayor invoked these established agency principles in discussing the Federal Tort Claims Act’s framework, which permits suits against the United States for certain torts committed by federal employees acting within the scope of their employment. Her analysis emphasized the longstanding doctrinal understanding of scope-of-employment determinations and how those principles intersect with the FTCA’s waiver of sovereign immunity and its exceptions.
The full opinion is available on the U.S. Supreme Court’s website.