Some courts have reached a similar result. E.g., Aviles v.
Lutz, 887 F.2d 1046 (10th Cir. 1989); Arbour v. Jenkins,
713 F. Supp. 229 (E.D.Mich. 1989); Assaad-Faltas v. Griffin,
715 F. Supp. 247 (E.D.Ark. 1989); S.J. and W. Ranch, Inc. v.
Legtinen, 717 F. Supp. 824 (S.D.Fla. 1989). Other opinions have
ruled to the contrary. E.g., Martin v. Merriday, supra,
706 F. Supp. 42; Petrousky v. United States, 1989 WL 53014, 1989
U.S.Dist.Lexis 5355 (N.D.N.Y. May 12, 1989); cf. Baggio v.
Lombardi, 726 F. Supp. 922 (E.D.N.Y. 1989) (United States
conceded the issue).
The question remains whether the Act as construed by the
court and as applied to plaintiffs is valid under the
The Act, while taking away plaintiffs' State law claim
against McFadden, has accorded them a remedy against the United
States, a defendant presumably more financially responsible
than McFadden. It is true that plaintiffs may not obtain a jury
trial, 28 U.S.C. § 2402, or punitive damages, 28 U.S.C. § 2674.
But the Act does not thereby deprive plaintiffs of due process.
See Hammond v. United States, 786 F.2d 8, 11-16 (1st Cir. 1986)
and cases cited; In re Consolidated United States Atmospheric
Testing Litigation, 820 F.2d 982, 998-92 (9th Cir. 1987) and
A more difficult question would be presented in a case where
the certification of the Attorney General had the effect of
depriving a person of any recovery for an injury caused prior
to the Act's enactment. As explained above, the Act has had
this effect in some instances because 28 U.S.C. § 1346(b) does
not permit tort actions against the United States where the
claim asserts, for example, assault, battery, false
imprisonment, libel, slander or deceit, even though the
tortious acts are within the scope of the employment of the
Federal employee. Perhaps some Attorney General or his designee
might make a wholly arbitrary, even dishonest, determination
that the employee was acting within the scope of employment and
thus unfairly deprive a plaintiff of his common law claim.
This court need not now reach the question whether in such a
case a Federal court would have power to determine whether such
a finding of the Attorney General was arbitrary. Section 7 of
the Act provides that if the application of any of its
provisions is held invalid the application of the remainder of
them shall not be affected.
Martin v. Merriday, supra, 706 F. Supp. at 45, construed the
Act to permit the Federal court to redetermine the Attorney
General's finding as to the scope of employment. The court
based its holding largely on the premise that to make the
Attorney General's certification conclusive would be to raise
serious constitutional questions as to delegation of powers.
With respect, this court finds that constitutional concern as
to delegation of powers hardly significant. Surely the
applicable state bodies of law provide the Attorney General an
"intelligible principle" to follow in each case wherever
brought. See Mistretta v. United States, 488 U.S. 361, 109
S.Ct. 647, 654, 102 L.Ed.2d 714 (1989).
The other constitutional questions are sufficiently answered
in the Hammond and Consolidated cases, supra.
The certification by the Attorney General's designee has
under the Act the effect of "institut[ing]" the action against
the United States pursuant to 28 U.S.C. § 2675(a), and the
plaintiffs have presented no claim against the United States
with the National Park Service within the meaning of that
section. See O'Aeill v. United States, 732 F. Supp. 1254
(E.D.N.Y. 1990). The court therefore dismisses the complaint
As plaintiffs' claim against the United States accrued on
January 26, 1987, before the effective date of the Act, and
plaintiffs filed their action against McFadden on May 22, 1989,
before the expiry of the state statute of limitation, they may
within 60 days of this order present a claim against
the United States to the National Park Service. See
28 U.S.C. § 2679(d)(5)(B). Upon a denial of the claim by the United States
or upon a failure of the United States to act upon it within
six months of its presentation, plaintiffs may serve an amended
complaint including allegations of compliance with the
prerequisites of 28 U.S.C. § 2679(d)(5).
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