the payment was a "full and final settlement of claim."
Pursuant to the FTCA, the United States is subject to suit
for, inter alia, certain tort claims arising from the
negligence of federal employees. See 28 U.S.C. § 1346(b),
2675(a). Normally, the FTCA contemplates that an action be
commenced against the United States as the named defendant,
thereby precluding suit against the individual employee, or
that the United States be substituted as defendant in place of
the employee where the employee is sued personally and notifies
the government of the suit. See 28 U.S.C. § 2679.
In the case at bar, plaintiff opted to sue Neville
personally in state court, and accepted a settlement offer
thereafter. It is to be noted that the FTCA does not
specifically provide for a cause of action against the United
States following the resolution of an action against a federal
employee based on the same occurrence. Plaintiff argues that
under New York law, the amount received from a settling
negligent employee will merely act as a set-off against any
further recovery from the employer. However, in the Court's
view, plaintiff fails to take into account both the purpose
and the provisions of the FTCA.
As a limited waiver of sovereign immunity, the FTCA very
specifically outlines the circumstances under which the United
States will be liable for the negligence of its employees.
See U.S.C. § 2679(b). Whether a suit is initially commenced
against the United States, or whether the United States is
substituted as the sole defendant after the commencement of a
suit against the individual employee, in either case the
purpose of the FTCA is to bar an action against the federal
employee individually and absolve the employee from personal
liability. See 28 U.S.C. § 2676, 2679(d). Simply stated,
permitting plaintiff to proceed herein after having reached a
settlement and released the employee would clearly fly in the
face of the FTCA and simultaneously allow plaintiff to split
his cause of action. In addition, and more pointedly, the
procedural mechanisms provided by the Act which serve to waive
sovereign immunity have not been followed. See id. Accordingly,
defendant's motion to dismiss pursuant to Rule 12(h) of the
Federal Rules of Civil Procedure must be granted.
As a further point, the Court notes that plaintiff purports
to base this second action, based on the same occurrence as
the prior settled action, on the negligence of Neville.
Nowhere in the complaint is there an allegation of any
negligence on the part of the United States. Inasmuch as any
liability of the United States in an FTCA action is derivative
to its employee, a settlement and release in "full and final
settlement of claim" against the employee under these
circumstances bars a subsequent action against the United
States since plaintiff has already accepted a settlement for
Plaintiff's reliance on Garrett v. Jeffcoat, 483 F.2d 590
(4th Cir. 1973), is misplaced. Aside from the fact that Garrett
is clearly not binding law on this Court, it has never been
relied upon in this Circuit for the result urged by plaintiff.
In addition, the release executed by the plaintiff in Garrett
explicitly reserved his rights against the United States; the
release herein made no such reservation. Moreover, it appears
that the plaintiff in Garrett filed an administrative claim
pursuant to the FTCA prior to settling with the federal
employee. In contrast, the United States in the case at bar had
no notice of the occurrence until after plaintiff had settled
his action against Neville. Given these distinctions and the
fact that Garrett is not binding on this Court, its holding is
For the reasons stated above, defendant's motion to dismiss,
pursuant to Rule 12 of the Federal Rules of Civil Procedure,
is granted. The Clerk of the Court is directed to close the
file in this case.
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