The opinion of the court was delivered by: Nickerson, District Judge.
On May 22, 1989, plaintiffs brought this action in New York
Supreme Court against Brian McFadden, a United States park
police officer, alleging that because of his negligence a dog
trained, owned and controlled by him bit plaintiff Brendan
Egan, an infant, on January 26, 1987. James Egan sued on behalf
of his son and himself.
On August 21, 1989 the Assistant United States Attorney,
pursuant to 28 U.S.C. § 2679, (a) certified that at the time of
the incident McFadden was acting within the scope of his
employment, (b) removed the case to this court, and (c) thereby
caused the United States to be substituted for McFadden as
The United States moves to dismiss on the ground that
plaintiffs did not file a timely claim against the United
States with the appropriate federal agency, namely, the
National Park Service. Plaintiffs move to remand to the State
The motions require the court to consider the effects of
amendments made to the Federal Tort Claims Act (the Tort Claims
Act) by Public Law 100-694, 102 Stat. 4563 (1988), the Federal
Employees Liability Reform and Tort Compensation Act of 1988
(the Act), enacted on November 18, 1988, reprinted in 1988
U.S.Code Cong. & Admin.News (102 Stat.) 4563.
To put the issues in context requires a somewhat detailed
description of the Act.
Section 2 of the Act sets forth Congress's "findings" and
"purpose." The findings were, in substance, the following. For
some years the Tort Claims Act has made the United States
responsible for common law torts of Federal employees acting
within the scope of their employment, while the case law has
made them generally immune from personal tort liability. But
recent judicial decisions, in particular Westfall v. Erwin,
484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), have eroded
this immunity. The threat of personal liability will seriously
undermine the morale of Federal employees and impede the
agencies in carrying out their missions. 102 Stat. 4563.
Section 2(b) declares the purpose of the Act to be "to
protect Federal employees from personal liability for common
law torts committed within the scope of their employment, while
providing persons injured by the common law torts of Federal
employees with an appropriate remedy against the United
States." 102 Stat. 4563, 4564.
The House Committee Report proposing the legislation
describes the change made by the Westfall case in the law of
personal tort liability of Federal employees. See H.R. No. 700,
100th Cong., 2d Sess. 2 (1988), reprinted in 1988 U.S.Code
Cong. & Admin.News 5945, 5946 (the Report). Until that decision
the cases generally held them immune if they had acted within
the scope of their employment. Id. The Westfall opinion held
that a Federal employee was not immune unless the challenged
conduct was "within the outer perimeter of an official's duties
and is discretionary in nature." Westfall, supra, 484 U.S. at
300, 108 S.Ct. at 585.
The Report concluded that this standard exposed Federal
employees to potential personal liability so as to threaten "a
substantial diminution in the vigor of Federal law enforcement
and implementation." Report, supra, at 5947. The Report
therefore proposed and Congress adopted the following
amendments to that part of the Tort Claims Act codified in
28 U.S.C. § 2679.
The remedy against the United States under the Tort Claims
Act for negligent injury by a Federal employee acting within
the scope of his office or employment is now "exclusive" of any
other civil action for damages against the employee "by reason
of the same subject matter." 28 U.S.C. § 2679(b)(1). Moreover,
"any other civil action" for damages "arising out of or
relating to the same subject matter against the employee" is
"precluded," 28 U.S.C. § 2679(b)(1), except actions alleging
Constitutional torts or Federal statutory torts otherwise
authorized. 28 U.S.C. § 2679(b)(2).
The Act lodged with the Attorney General the determination of
whether the employee was acting within the scope of employment.
"Upon certification" by the Attorney General that the employee
was so acting, an action brought in a Federal District Court
"shall be deemed" to be against the United States, which shall
be substituted as party defendant. 28 U.S.C. § 2679(d)(1).
"[U]pon" such a certification an action brought in a State
court "shall" be removed to a Federal District Court, and "for
purposes of removal" the certification "conclusively"
establishes the scope of office or employment.
28 U.S.C. § 2679(d)(2).
Section 2679(d)(4) provides that the case is then to proceed
in the same manner as any action against the United States
filed pursuant to 28 U.S.C. § 1346(b) "and shall be subject to
the limitations and exceptions applicable to these actions."
Section 1346(b) provides, so far as pertinent, that a Federal
district court "shall have exclusive jurisdiction of civil
actions on claims against the United States" for damages caused
by the negligence of a Federal employee "while acting within
the scope of his office or employment" in circumstances ...