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KIMBRO v. UNITED STATES

July 9, 1991

MARILYN A. KIMBRO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE.

 The above-captioned complaint alleges that on December 20, 1988, "without provocation and without the consent of the plaintiff," Dolores Velten, a co-worker, viciously struck plaintiff on the left arm. As a result, plaintiff claims, she suffered "bruising, medical expenses, pain and suffering, lost wages, mental anguish and loss of future income," as well as lost her employment with the federal Department of Veteran's Affairs because of the leave she took on account of her injuries. *fn1" This claim for assault and battery originated in the Superior Court of the District of Columbia as a small-claims case brought by plaintiff against Velten. Pursuant to statute, explained infra, the United States was substituted as the defendant and the case was removed to this Court.

 Pending before the Court are plaintiff's motion to remand to state court, and defendant's motion to dismiss or for summary judgment. *fn2" For the reasons set forth below plaintiff's motion is granted and defendant's motion is denied.

 I

 In 1988, Congress amended the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), to provide for substitution of the United States as the exclusive defendant whenever federal employees are sued for common law tort claims arising out of actions taken within the scope of their federal employment. See 28 U.S.C.A. § 2679(b)(1) (1988). Under this recent statute, the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA"), Congress made the FTCA's remedies "exclusive of any other civil action or proceeding for money damages." Id. FELRTCA provides that the Attorney General or his designee may certify that a defendant employee was acting within the scope of her employment at the time of the subject incident, at which point the United States is substituted as the defendant and the action proceeds in United States district court. Id. § 2679(d)(1). The Attorney General's certification "shall conclusively establish scope of office of employment for purposes of removal." Id. § 2679(d)(2). Thereafter, the suit proceeds as if the United States had been sued under the FTCA in the first instance. Id. § 2679(d)(4). Because the FTCA -- the sole basis for a tort suit against a federal employee acting within the scope of her employment -- does not waive tort immunity to claims "arising out of assault [and] battery," id. § 2680(h), FELRTCA thus mandates that government employees have absolute immunity for acts committed within the scope of their employment that amount to common law intentional torts. See United States v. Smith, 499 U.S. 160, 113 L. Ed. 2d 134, 111 S. Ct. 1180, 1184-85 (1991).

 In the instant case, the United States Attorney for the District of Columbia certified *fn3" that Dolores Velten was acting within the scope of her employment as an employee of the United States at the time of the incident alleged in plaintiff's Statement of Claim filed in Superior Court, see Notice of Removal, attachment, and the action was thereupon removed to this Court. The United States, now the defendant, moved to dismiss the complaint, arguing that plaintiff has no claim under FTCA and that, in any event, this Court lacks jurisdiction because she has not exhausted her remedies under that statute. Plaintiff opposed the motion, arguing that Velten's actions did not occur within the scope of her employment. In an affidavit accompanying her opposition, she detailed the alleged incident. In its reply, defendant filed sworn declarations by Velten and by plaintiff's supervisor, William Sandoval, purportedly establishing that Velten was acting in the scope of her employment.

 II

 Under the analysis adopted by one circuit court of appeals, this case should now be dismissed in its entirety for lack of subject matter jurisdiction under the FTCA. In an analogous situation, the Fifth Circuit ruled that a district court had wrongly resubstituted the original defendant for the United States in a case alleging assault and battery:

 
An action against a federal employee who has been certified as acting in the scope of her employment must proceed exclusively against the United States under the FTCA . . . . Since there is no remedy for assault and battery in the FTCA, Congress intended to leave a plaintiff [] without a remedy for injuries sustained as a result of a federal employee's alleged assault and battery while in course of employment.

 Mitchell v. Carlson, 896 F.2d 128, 134 (5th Cir. 1990) (emphasis original). This result, admitted by that Court to be "harsh," id. at 136, must be rejected. That court focused on the language of § 5 of FELRTCA, which makes the remedy provided by FTCA "exclusive of any other civil action . . . against the employee." 28 U.S.C. § 2679(b)(1). See 896 F.2d at 136. However, this approach ignores the immediately preceding language, which attaches that limitation to "any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1) (emphasis added). In other words, the Fifth Circuit's reading of the statute would result in the Attorney General's scope certification being not only conclusive for purposes of removal, but also unchallengeable and unreviewable as a matter of law.

 The reading endorsed by the First, Sixth, and Seventh Circuits is more persuasive and appears to be the majority view. *fn4" See Hamrick v. Franklin, 931 F.2d 1209, 1210-11 (7th Cir. 1991) (citing cases). While the statute is ambiguous, the legislative history does indicate that Congress intended plaintiffs to have the right to contest certifications by the Attorney General. Arbour v. Jenkins, 903 F.2d 416, 421 & nn. 1-2 (6th Cir. 1990). "If contested issues arise over whether or not the employee was acting within the scope of his employment, the district court possesses power under Article III of the Constitution to resolve the dispute; the issue, after all, goes to the court's own subject-matter jurisdiction." Nasuti v. Scannell, 906 F.2d 802, 810 (1st Cir. 1990). *fn5" Accordingly, while the Court accepts, as it must, the United States Attorney's certification for the purposes of removal, it does not find that certification conclusive as to whether Velten was acting in the scope of her employment for purposes of determining whether plaintiff's claim is barred by the FTCA.

 To determine this court's jurisdiction, as well as the availability of further recourse by the plaintiff, the Court must therefore determine whether, on the facts before it, Velten was acting within the scope of her duties as an employee at the Department of Veteran's Affairs. According to plaintiff, the incident occurred when her supervisor requested that she make a copy of Velten's time card. "When I approached the copying machine, I was confronted by Ms. Velten, who blocked my way and then struck me on the right arm with her fist. This assault and battery was unprovoked and unconsented to by myself." Affidavit of Marilyn Kimbro para. 3. Velten's account of the matter is different:

 
I was going from my immediate work area to our 'front office' for a work-related task, when I encountered [plaintiff]. Although I do not remember precisely what my purpose was in then going to my 'front office,' I believe I may have been going to check the mail or receive work from one of the support staff. My encounter with Ms. Kimbro was not planned. We approached each other from around a blind corner. I did not see or hear her before we met at the corner. I was ...

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