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July 6, 1982;

Jessie M. VAN LIEU, Plaintiff,
UNITED STATES of America and Hertz Corporation, Defendants

The opinion of the court was delivered by: MUNSON


Plaintiff originally brought suit in state court against Michael Adams and Hertz Corporation to recover damages suffered as a result of an automobile accident. The accident took place July 20, 1978. The state court action was filed July 10, 1981. The United States of America (Government) petitioned for the removal of the case to federal court in August of 1981. They supported that petition with certification that Michael Adams was a captain in the armed services, and was acting within the scope of his employment at the time of the accident pursuant to 28 U.S.C. § 2679(d). The petition requested that the action against Michael Adams be deemed a tort action against the Government, pursuant to 28 U.S.C. § 1346(b).

As soon as the petition had been filed, the Government moved to dismiss, alleging lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. Because such a motion cannot be addressed without knowing if Captain Michael Adams was acting within the scope of his employment at the time of the accident, this Court responded by granting leave to the plaintiff to request a hearing to make that determination.

 The Government asserts that the case must be dismissed if Captain Adams was acting within the scope of his employment, for clearly the requisites of 28 U.S.C. § 2675(a) had not been complied with, thereby rendering this Court without the proper jurisdiction to review the case.

 To understand the basis for such a motion, a brief review of the Federal Tort Claims Act is necessary. Until the enactment of that legislation in 1948, the United States Government enjoyed complete immunity from suit for torts committed by its agents and employees. Feres v. United States, 340 U.S. 135, 139-40, 71 S. Ct. 153, 156, 95 L. Ed. 152 (1950). The action of Congress in 1964 created a general waiver of immunity for the torts of its employees, subject to certain statutory limitations and exceptions created then and by amendment in 1966.

 Of primary importance is the statutory requirement that proper administrative claim precede any suit in federal court. This prerequisite imposed by 28 U.S.C. § 2675(a) provides in pertinent part:

An action shall not be instituted upon a claim against the United States for money damages for injuries or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of office or employment unless the claimant shall have first presented the claim to the appropriate federal agency ...

 In the instant case, no administrative claim was ever filed, for up until the Government moved to dismiss, the plaintiff was entirely unaware that Michael Adams had any connection with the military. Testimony at the hearing revealed that Captain Adams never revealed his military identification to the police officer at the scene of the accident. He produced only his Kansas driver's license. He was dressed in civilian clothing, and was driving a rental car with no military insignia.

 Although the police officer may have assumed Captain Adams was involved in some way with the military, he entered no notation of military service on the accident report. Plaintiffs produced a witness to the accident who also testified that Captain Adams was, in every outward manifestation, a civilian. The plaintiff, Ms. Van Lieu corroborated this testimony by describing that no military identification was produced for her. She further stated that she had only learned within the last three months that Captain Adams was a member of the military.

 Captain Adams took the stand, and described that he was in the Army Corps of Engineers on regular duty in Kansas. He had been assigned to Fort Drum near Watertown, New York for a two-week stay. He left Kansas on July 20, 1978, with travel orders to arrive no later than noon on Friday, July 21, 1978. He received verbal authorization to obtain a rental car upon arrival in Syracuse, New York. He did rent a car upon arrival Thursday afternoon, July 20, 1978. He drove to Fort Drum, checked in, received a room key, and was told to report for further processing at 9 o'clock Friday morning. Captain Adams then checked the dinner situation at the mess hall, and decided to take dinner on his own in town. His orders contained no restrictions as to travel in and around Fort Drum. It is important to note that he filed travel vouchers for total reimbursement of expenditures for the rental car and off-base meals.

 The accident occurred as Captain Adams was driving the rental car into town for his dinner on July 20, 1981. He recalled the events of the accident, and although not sure, he guessed that he did tell the police officer at the scene of the accident that he was in the Army. He did not say anything about military status to the accident victim, Ms. Van Lieu.

 Captain Adams further reiterated that he was not under any military duty on the evening of July 20, 1978 to perform specific tasks. His commanding officer, Lieutenant Colonel Moeller, had issued his orders, which outlined temporary duty to 1) secure transportation to Fort Drum, 2) to evaluate an engineering project at Fort Drum, and 3) to return to Kansas.

 Although at the time of the hearing, the Government asserted that no Army records of Captain Adams' duty authorization could be found, those records have since been produced following additional search. The vouchers reveal that Captain Adams arrived at Fort Drum, completing his travels at 4:45 p.m. on Thursday, July 20, 1978.

 His travel authorization stipulates that he should have a valid government driver's license, and further that the uniform required was, "utility shirt, trousers, cap, and combat boots." The authorization provides for civilian clothing, but does not describe what should be worn en route.

 More importantly, however, is the specific instruction that, "(Government) quarters and messing facilities will be used when available." Captain Adams stated that the mess hall was either closed, or there was a long line on Thursday evening. He, therefore, chose to go instead into town. Upon further questioning, he stated that in-processing officers told him there was no problem about going to dinner in town. However, nowhere does the testimony reveal that a meal was in fact unavailable on the ...

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