The opinion of the court was delivered by: LARIMER
On December 29, 1994, plaintiffs, Charles and Mary Reynolds, filed a complaint against the United States and Leonard Lisenbee ("Lisenbee"), pursuant to the Federal Tort Claims Act (28 U.S.C. §§ 2671 et seq.) and 42 U.S.C. § 1983. In essence, plaintiffs allege that Lisenbee committed trespass and defamation and violated plaintiffs' civil rights during the course of an investigation he conducted for the United States Fish and Wildlife Service. Before the Court is defendants' motion to substitute the United States for Lisenbee as party defendant and to dismiss the complaint. For the reasons discussed, supra, the United States is substituted for Lisenbee and the complaint is dismissed.
The events giving rise to the present complaint occurred on October 8, 1992, on the opening day of the 1992-93 duck hunting season. Charles, along with his son David and several friends were hunting in various locations on Charles' property in and around what is known as Hinman Swamp in Schuyler County, New York. On the same morning that Charles and his group were duck hunting, Lisenbee, a United States Fish and Wildlife Service Special Agent, went to Hinman Swamp
Lisenbee had begun an investigation into hunting in the area as a result of information he received that during the previous hunting season, over 100 ducks were killed on the property.
On the morning of the incident, Lisenbee parked his vehicle next to what he refers to as an abandoned railroad right-of-way and walked down a road that went into the swamp. Lisenbee claims that he heard gunshots being fired in the vicinity, and stationed himself in an area where he could observe the hunters. Lisenbee also claims that he saw the hunters fire at, miss, wound, and/or kill over thirty birds. Plaintiffs dispute that Lisenbee could observe any hunters due to the thick brush in the area.
At approximately 9:00 a.m., plaintiffs' son, David, exited the woods carrying a mesh bag. Lisenbee approached David and asked him to dump the contents of the bag. According to Lisenbee, the bag contained eleven dead ducks. Lisenbee asked for David's hunting license and duck hunting stamp. When David presented these two items, Lisenbee noticed that the duck stamp had not been signed as required by 16 U.S.C. § 718b(a).
David informed Lisenbee that he was diabetic and needed food immediately. Lisenbee allowed David to go home and instructed him to return after he got something to eat. When David returned, he was accompanied by his mother, Mary, and his father, Charles. Charles accused Lisenbee of trespassing and requested that he leave the property. Lisenbee refused to leave. After this exchange between Lisenbee and Charles, Lisenbee arrested David for various violations of the Migratory Bird Treaty Act.
According to Charles, during the course of the arrest and thereafter, Lisenbee made statements to David and to others, falsely claiming that one hundred wood ducks had been slaughtered on the property at the beginning of the previous year's duck season and that he heard shooting as early as 6:20 a.m. on October 8, 1992
According to Charles, since this incident, the parties who hunted on his property that day do not hunt there anymore.
I. Substitution of United States for Lisenbee as Defendant
Defendants move to substitute the United States for Lisenbee as party defendant. Under the FTCA,
"upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim ... shall be deemed an action against the United States ... and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).
Interpreting § 2679(d)(1), the Supreme Court recently has held that courts may review the Attorney General's certification that an employee was acting within the scope of his employment. Gutierrez v. Lamagno, 132 L. Ed. 2d 375, U.S. , 115 S. Ct. 2227, 2236 (1995). Additionally, the Second Circuit has held that a district court's de novo review of an Attorney General's certification of scope of employment "is triggered by the government's motion for substitution and opposition papers from the plaintiff that allege with particularity facts relevant to the scope-of-employment issue." McHugh v. University of Vermont, 966 F.2d 67, 74 (2d Cir. 1992).
In the present case, the Attorney General, through her designee, has certified that Lisenbee was acting within the scope of his employment at the time of the incident in question. Defendants have also submitted a declaration from William A. Donato ("Donato"), Lisenbee's supervisor, in which Donato represents that he reviewed the reports of the law enforcement operation at issue and attests that Lisenbee was acting within the scope of his authority as a Fish and Wildlife Special Agent.
Plaintiffs oppose the substitution, claiming that, even if Lisenbee was acting within the scope of his employment when he trespassed on plaintiffs' land, his subsequent ...