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SMITH v. GRIMES

August 27, 1992

SHENAN SMITH and SHARON PARISH, Plaintiffs,
v.
JOSEPH A. GRIMES, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court is defendant's petition for certification pursuant to 28 U.S.C. § 2679(d)(3) that he was acting within the scope of his employment at the time of the events underlying this action. The United States, through the Attorney General, opposes the petition. On consideration of the entire record, the Court denies defendant's petition.

 Background

 Pursuant to the Federal Tort Claims Act (FTCA), a party may recover damages from the United States for injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ." 28 U.S.C. § 1346(b). Under the statute, the Attorney General must defend an employee who is sued for acts taken within the scope of his employment. Id. § 2679(c). On receiving service of a complaint against a federal employee, the Attorney General makes an initial determination whether the employee in fact was acting within the scope of his employment at the time of the alleged injury. *fn1" Id. § 2679(d)(2). If the Attorney General refuses to certify that an employee was acting within the scope of his employment, the employee may "petition the court to find and certify that the employee was acting within the scope of his office or employment." Id. § 2679(d)(3). Defendant Grimes seeks such certification. *fn2"

 This action is the third lawsuit before this Court arising out of a car accident that occurred on September 29, 1989. On that date at approximately midnight, defendant Grimes allegedly collided with a car in which plaintiffs Shenan Smith and Sharon Parish were passengers. Grimes was driving a vehicle provided to him in his work as a special agent with the United States Drug Enforcement Administration (DEA). Smith and Parish filed a suit in this court against the United States under the FTCA, Civil Action No. 90-1021. The driver of the car in which Smith and Peay were riding, Kimberly Peay, filed a separate action naming Grimes and the United States as defendants, Civil Action No. 90-2052, and the two cases were consolidated.

 The United States moved for summary judgment in both cases on the ground that Grimes was acting outside the scope of his employment at the time of the accident. The evidence before the Court consisted of the affidavit of Craig E. Richardson, Associate Chief Counsel, DEA. Based on Richardson's uncontradicted factual assertions, the Court granted summary judgment in favor of the United States on April 30, 1991. *fn3" The summary judgment order disposed of the case filed by Smith and Parish in its entirety; Peay's claim against Grimes individually remains pending. Smith and Parish appealed the Court's summary judgment order. The United States Court of Appeals for the District of Columbia Circuit summarily affirmed the summary judgment order on February 28, 1992. Smith v. United States, No. 91-5186 (D.C. Cir. Feb. 28, 1992) (per curiam).

 Following the entry of summary judgment for the United States, Smith and Parish filed a claim against Grimes in the Superior Court of the District of Columbia, which was assigned to Judge Von Kann (CA-91-7899). Grimes filed a petition for certification that he was acting within the scope of his employment at the time of the accident. *fn4" Judge Von Kann held an evidentiary hearing on October 9, 1991, after which he took the matter under advisement. Before Judge Von Kann issued a decision, the United States removed the case to this Court, *fn5" and the case was assigned to the undersigned as related to the two previous actions. *fn6"

 Facts

 Defendant Grimes submitted the transcript of his testimony at the evidentiary hearing before Judge Von Kann. That testimony provided more information than Richardson's affidavit on which the Court relied in granting summary judgment for the United States in the earlier actions. However, Grimes's testimony and Richardson's affidavit are consistent as to the facts that are material to the determination before the Court. *fn7" The following findings of fact are based on Grimes's testimony and the entire record.

 Defendant Grimes is an officer of the Police Department of the Metropolitan Washington Airports Authority (MWAA). At the time of the accident underlying this suit, Grimes was detailed by the MWAA to the DEA as a special agent and assigned to the Mass Transportation Detail Task Force. Grimes's routine duty assignments included surveillance and response to drug-related incidents at Washington National Airport, Dulles International Airport, Union Station, and interstate bus stations. The DEA provided Grimes with an unmarked 1989 Ford Tempo for use in those duties. Grimes was authorized to use the car to travel between his residence in Germantown, Maryland, and work. In addition, Grimes was directed by his DEA supervisor to utilize the car to respond to emergency calls during his off-duty hours. *fn8"

 On September 29, 1989, Grimes completed his regular duty assignment at National Airport between 8:00 and 11:00 p.m.. On his way home, Grimes stopped at the Fraternal Order of Police Lodge (F.O.P. Lodge) at 512 5th Street, N.W., until approximately midnight. The stop was not authorized by the DEA nor was it in furtherance of Grimes's duties as a special agent. After consuming an unknown amount of alcohol, Grimes left the F.O.P. Lodge to continue home. Near the intersection of Maine Avenue and 15th Street, N.W., Grimes collided with the car driven by Peay and occupied by plaintiffs Smith and Parish.

 United States Park Police officers responded to the scene of the accident. The officers cited Grimes for failure to maintain control of his vehicle and for driving under the influence of alcohol. *fn9" Grimes paid a fine in lieu of a court appearance on the first charge and entered a plea of guilty to the charge of driving under the influence. As a result of the incident, Grimes was removed from the DEA Mass Transportation Detail Task Force. The MWAA Police Department initiated a disciplinary proceeding against Grimes for, inter alia, operating an official vehicle while under the influence of alcohol. The disciplinary proceeding resulted in removal from his position as a sergeant.

 Discussion

 Defendant's petition requires the Court to determine as a matter of law whether he was acting within the scope of his employment at the time of the accident. "The law of the place where the act or omission occurred" governs the scope of employment issue. Williams v. United States, 350 U.S. 857, 100 L. Ed. 761, 76 S. Ct. 100 (1955); Hoston v. Silbert, 681 F.2d 876 (D.C. Cir. 1982); Henderson v. United States, 429 ...


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