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SOTTILE v. UNITED STATES

April 29, 1985

JOSEPH S. SOTTILE, JR., Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants


Barrington D. Parker, District Judge


The opinion of the court was delivered by: PARKER

This matter is before the Court on defendants' motion to dismiss. Plaintiff Sottile filed this action against the United States government and several defendants *fn1" in their individual capacities claiming malicious prosecution, negligence, defamation, and tortious interference with a contract. The action against the government was brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.; jurisdiction over the government arises out of the Act. 28 U.S.C. § 1346(b). Jurisdiction over the remaining individual defendant, Leo O'Berry, is apparently based on this Court's diversity jurisdiction. *fn2" The defendants have moved to dismiss this matter on several grounds: the exclusion of the named torts from the FTCA, lack of subject matter jurisdiction over the claim against the individual defendant O'Berry, and his absolute immunity from liability for the common law torts. For the reasons set forth below, defendants' motion to dismiss is granted.

 FACTS

 Sottile is a flight instructor, certified by the Federal Aviation Administration ("FAA"). He operated a business, which included providing flight instruction, in Michigan. In the Fall of 1980, the Detroit, Michigan FAA office received a complaint against the plaintiff filed by a student, John Cook. The complaint alleged that Cook did not receive flight instruction from the plaintiff, a certified instructor, but had received lessons from a non-certified instructor contrary to his expectations and to the price paid for the lessons. Further, he alleged that false entries (a rubber stamp with plaintiff's name) were made on his student pilot log book. The entries indicated that Sottile had accompanied Cook on several flights; Cook contended that another pilot had instead flown with him.

 On the basis of this charge, the FAA commenced an investigation of plaintiff and his business. Defendant O'Berry, the chief inspector of the FAA's Michigan office, was involved in the investigation. Shortly thereafter, Cook withdrew his allegations against the plaintiff for reasons which he never fully explained. Nevertheless, the FAA continued its investigation into the incident. An Enforcement Investigation Report ("EIR") was prepared regarding the investigation which contained evidence, information obtained during the investigation, and a recommendation that plaintiff's Certified Flight Instructor ("CFI") certificate be revoked. The EIR was forwarded to the Regional Flight Standards Division in Chicago, Illinois. The Division concurred with the revocation recommendation. The recommendation was forwarded to the Regional Counsel who issued an Order of Revocation of Plaintiff's CFI Certificate on October 23, 1981. *fn3" Sottile then pursued his statutory right to appeal the Order of Revocation to the National Transportation Safety Board ("NTSB"). 49 U.S.C. § 1429; 49 C.F.R. Part 821. A hearing was held before an Administrative Law Judge ("ALJ") in Washington, D.C. on April 6, 1982. In an opinion issued on June 23, 1982, the ALJ reversed the Order of Revocation largely on the basis that Cook, without fraud or coercion, had recanted his original charge. The ALJ found that there was a clear preponderance of evidence that Sottile had not violated any FAA regulations and that the FAA had failed to sustain its burden of proof in this respect. That decision was subsequently adopted by the NTSB. On September 19, 1984, plaintiff filed this action alleging claims under the FTCA and common law torts.

 ANALYSIS

 A. Claims Against the Government Under the FTCA

 The government contends that this action should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because the common-law torts charged against the government are excluded under the FTCA. *fn4" The FTCA exclude from its coverage

 
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title [ 28 USCS § 1346(b)] shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

 28 U.S.C. § 2680(h). The United States still retains its sovereign immunity with respect to defamation and tortious interference with a contract. Therefore, plaintiff is barred from recovery for those claims. Cf. Art Metal-U.S.A., Inc. v. United States, 244 U.S. App. D.C. 1, 753 F.2d 1151, 1154-56 (D.C. Cir. 1985) (barring claims under § 2680(h) for interference with prospective advantage and injurious falsehood -- derivations of interference with contract rights and defamation). See also Wilcox v. United States, 509 F. Supp. 381, 387 (D.D.C. 1981) (federal government immune from actions for defamation).

 Malicious prosecution is also an excluded tort under the FTCA. However, § 2680(h) contains a proviso which allows a claimant to seek recovery for malicious prosecution if the act is committed by "investigative or law enforcement officers of the United States" "who [are] empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." In order for plaintiff to state a claim under this section, the FAA investigative officers in this case must be vested with the powers listed above. However, the law of this Circuit is such that the plaintiff "must clear the 'discretionary function' hurdle and satisfy the 'investigative or law enforcement officer' limitation to sustain the malicious prosecution component of his FTCA claim." Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490, 508 (D.C. Cir. 1983) (emphasis in original), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984). Since the Court finds that the government has not waived its sovereign immunity with respect to the prosecution in this action under the discretionary function exemption in 28 U.S.C. § 2680(a), the application of the investigative officer language need not be reached. *fn5"

 The malicious prosecution claim must thus be analyzed under the discretionary function exemption of the FTCA. 28 U.S.C. § 2680(a). In addition, plaintiff's negligence claim for investigation and prosecution of the charges against him must be analyzed under that exemption. Section 2680(a) provides that FTCA does not apply to

 
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal ...

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