B. Count IX - Intentional Infliction of Emotional Distress
In Count IX, plaintiffs assert that all defendants have "recklessly inflicted emotional distress on plaintiffs in allowing plaintiffs' decedent sons to be murdered through the negligence and reckless indifference" alleged earlier in the complaint. They further assert defendants inflicted emotional distress upon plaintiffs by failing to provide plaintiffs with full information concerning their sons' deaths, and in returning the bodies for burial without providing funds or assistance. Defendant Carlson moves for summary judgment on this count, inter alia, on the ground that he is absolutely immune to common law tort liability.
In Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), the Supreme Court established that executive branch officials are absolutely immune from liability for common law torts committed while acting "within the outer perimeter of [their] line of duty." Id. at 575. The continuing validity of the absolute immunity doctrine has been recognized in recent decisions in this circuit. McSurely v. McClellan, 243 U.S. App. D.C. 270, 753 F.2d 88, 114 (D.C. Cir.), cert. denied, 474 U.S. 1005, 106 S. Ct. 525, 88 L. Ed. 2d 457 (1985); McKinney v. Whitfield, 237 U.S. App. D.C. 157, 736 F.2d 766, 769 (D.C. Cir. 1984). The McKinney court listed a variety of torts to which the doctrine applied, and strongly indicated absolute immunity extended to all common law torts. Id. at 769. From this, the Court may conclude, as it did in Yothers v. Baker, No. 84-1928 (D.D.C. Sept. 26, 1985), that absolute immunity protects federal officials sued for intentional or negligent infliction of emotional distress. Id., slip op. at 6 n.4. In the case at bar, there is no dispute that defendant Carlson was acting within the outer perimeter of his duties to oversee federal prison facilities. The Court therefore will grant his motion to dismiss the common law tort count against him.
IV. U.S. GOVERNMENT'S MOTION TO DISMISS AND TRANSFER
The United States moves to dismiss Counts III, V and IX of plaintiffs' complaints and to transfer the remaining counts against it to the district court for the Southern District of Illinois, where USP-Marion is located. Each of these motions will be considered in turn.
A. Motion to Dismiss Count III
In Count III of both complaints, plaintiffs seek to hold the federal government strictly liable for "operating an inherently dangerous instrumentality," namely, USP-Marion. This count must be dismissed, as the government may not be held strictly liable under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA). Laird v. Nelms, 406 U.S. 797, 803, 32 L. Ed. 2d 499, 92 S. Ct. 1899 (1972).
Plaintiffs concede the state of the law, but respond that they merely misstated the standard of liability. "Plaintiffs' purpose in pleading this count was to place before the Court an allegation that this dangerous instrumentality had been created by the negligence and wanton misconduct of Government's agents." Pltfs.' Opp. to Government's motion to dismiss, p. 6 (emphasis added). Count III as currently phrased clearly asks that the government be held liable on a strict liability theory. As such, it must be dismissed. Even if the Court were to read the count as modified in plaintiffs' brief, it would merely restate Counts I and II which seek to hold the government liable under a negligence theory for the operation of USP-Marion.
B. Motion to Dismiss Count V
In Count V of both complaints, plaintiffs seek to recover under the theory that decedents were third party beneficiaries of an implied contract between the federal government and the District of Columbia to house D.C. offenders. They would infer the existence of this contract from D.C. Code § 24-424, which states that the District shall reimburse the federal government for the care and custody of D.C. convicts. The government moves to dismiss this count on the ground that under the Tucker Act, 28 U.S.C. § 1346(a)(2), this Court lacks jurisdiction over contractual claims for more than $10,000 against the government, and that it may not obtain jurisdiction over Tucker Act claims through pendent jurisdiction.
McKay v. United States, 703 F.2d 464, 469-70 (10th Cir. 1983).
Plaintiffs oppose the motion on two grounds: first, they assert the third party beneficiary claim is based on an implied-in-law contract, jurisdiction over which is not limited by the Tucker Act. See Hatzlachh Supply Co. v. United States, 444 U.S. 460, 62 L. Ed. 2d 614, 100 S. Ct. 647, n.5 (1980), and cases cited therein. Plaintiffs' reliance on the implied-in-law exception is misplaced. They appear to believe that because the contract is based on statute, it is "implied in law". However, an implied-in-law contract is a creature of the law of restitution, and not a contract at all. The courts treat an implied-in-law contract as if it were a real contract in order to prevent unjust enrichment. Restatement of Contracts 2d, § 4(a) and (b) (1981); Calamari & Perillo, Contracts § 1-12 (2d ed. 1977). Rather, if the statute relied upon creates any kind of contract, it is one implied in fact, e.g., not an express contract but one to be inferred from the existence of the statute and the conduct of the parties. Id. Therefore, a claim by a third party beneficiary based on breach of the implied contract would be governed by the Tucker Act, and this Court lacks jurisdiction over such a claim. See Wright, Miller, & Cooper, 17 Fed. Practice & Procedure § 4101 (1978).
Plaintiffs also argue that decedents' injuries were the result of tortious breach of the implied contract, and therefore this Court may exercise jurisdiction over the claim under the FTCA. The test of jurisdiction for a claim of tortious breach of contract against the United States is whether the claim is "essentially one sounding in tort" or whether it is a claim "essentially sounding in contract." See Walsh v. United States, 672 F.2d 746, 751 (9th Cir. 1982), and cases cited therein; H.H.O., Inc. v. United States, 7 Cl. Ct. 703, 707 (1985). Where a claim contains elements of both contractual and tort relief, the party may elect whether to pursue a contract claim under the Tucker Act or a tort claim under the FTCA. Walsh, supra, 672 F.2d at 751; Martin v. United States, 649 F.2d 701, 704 (9th Cir. 1981); Aleutco Corp. v. United States, 244 F.2d 674, 678-79 (3d Cir. 1957); Beauchamp v. United States, 6 Cl. Ct. 400, 403 (1984).
Here, plaintiffs' Count V clearly states a claim based on contract, not tort. See Ross Complaint, paras. 40-41; Lorick Complaint, paras. 46-47. As plaintiffs have elected to base their claim on contract, jurisdiction is covered by the Tucker Act and may be found only in the Claims Court. Thus, Count V as framed must be dismissed. Plaintiffs may of course amend their complaints; however, a claim for tortious breach through negligent performance of an implied contract under the FTCA would appear merely to restate plaintiffs' negligence claims under Counts I-II.
C. Motion to Dismiss Count IX
In Count IX, plaintiffs seek to recover for intentional infliction of emotional distress. The United States moves to dismiss on the grounds that (1) such a claim is not actionable under the FTCA and (2) plaintiffs have not alleged the kind of outrageous or uncivilized conduct on the part of defendants necessary to support such a claim.
The FTCA contains 13 exceptions to governmental tort liability. 28 U.S.C. § 2680(a-n). None of these expressly bar an action for intentional infliction of emotional distress. Several courts have recognized that such a claim may be barred, however, when the claim is one "arising out of" one of the excepted causes of action. For example, the Eleventh Circuit dismissed such a claim where it arose in connection with false arrest, because a claim for false arrest is barred by 28 U.S.C. § 2680(h). Metz v. United States, 788 F.2d 1528, 1534 (1986), and cases cited therein. Other courts take a narrow approach to construing FTCA exceptions, holding that any tort not expressly excepted in Section 2680 may be raised against the United States. See Gross v. United States, 676 F.2d 295, 304 (8th Cir. 1982); Black v. Sheraton Corp. of America, 184 U.S. App. D.C. 46, 564 F.2d 531, 539-40 (D.C. Cir. 1977).
The cases that rely on the "arising out of" language of the exceptions to the FTCA are inapposite. Here, plaintiffs' intentional infliction claim arises out of another claim that is clearly allowable under the FTCA: the right to recover for injuries suffered by an inmate while incarcerated in a federal facility. Muniz, supra, 374 U.S. at 152. Because the claim for intentional infliction is neither expressly listed as an exception, nor arises out of the exceptions, it should be recognized under the FTCA to the extent that it is recognized by appropriate state law. 28 U.S.C. § 2674; Muniz, supra, 374 U.S. at 152; Gross, supra, 676 F.2d at 304.
Furthermore, the United States' contention that plaintiffs failed to demonstrate the kind of outrageous or uncivilized behavior required to support such a claim is not appropriately raised at this point in the proceedings. A motion to dismiss for failure to state a claim must be denied if plaintiffs could prove any set of facts to support their claim. Doe v. United States, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Therefore, it is too early to deny them the opportunity to do so. In sum, the federal government's motion to dismiss Count IX, as applied to it, will be denied.
D. United States' Motion to Transfer
The United States contends any remaining counts against it should be transferred to the Southern District of Illinois, where USP-Marion is located, under 28 U.S.C. § 1404(a). That statute states:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.