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EGAN BY EGAN v. U.S.

March 9, 1990

BRENDAN EGAN, AN INFANT BY HIS PARENT AND NATURAL GUARDIAN, JAMES EGAN, AND JAMES EGAN, INDIVIDUALLY, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

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 defendant.

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 court.

I.

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 ...


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