126 F.3d 317 (4th Cir. 1997), 96-1492, Maron v. United States

Docket Nº:96-1492.
Citation:126 F.3d 317
Party Name:Barry J. MARON, Dr., Plaintiff-Appellant, v. UNITED STATES of America; Stephen E. Epstein, Dr.; Lameh Fananapazir, Dr.; Edward Korn, Dr.; Neil Epstein, Dr., Defendants-Appellees.
Case Date:September 18, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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126 F.3d 317 (4th Cir. 1997)

Barry J. MARON, Dr., Plaintiff-Appellant,


UNITED STATES of America; Stephen E. Epstein, Dr.; Lameh

Fananapazir, Dr.; Edward Korn, Dr.; Neil

Epstein, Dr., Defendants-Appellees.

No. 96-1492.

United States Court of Appeals, Fourth Circuit

September 18, 1997

Argued Jan. 27, 1997.

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[Copyrighted Material Omitted]

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ARGUED: Lori Elizabeth Kline, Jacobs, Jacobs & Farber, Rockville, MD, for Plaintiff-Appellant. Mary Mitchell Armstrong, Office of General Counsel, Department of Health and Human Services, Washington, DC, for Defendants-Appellees. ON BRIEF: Mindy G. Farber, Jacobs, Jacobs & Farber, Rockville, MD, for Plaintiff-Appellant. Lynne A. Battaglia, United States Attorney, Jeanne K. Damirgian, Assistant United States Attorney, Baltimore, MD, for Defendants-Appellees.

Before ERVIN and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge ERVIN wrote the opinion, in which Judge LUTTIG and Judge HILTON joined.


ERVIN, Circuit Judge.

Dr. Barry Maron filed two suits against fellow doctors at the National Institutes of Health (N.I.H.). In each case, the United States was substituted as the sole defendant and the complaint was dismissed on the ground that the United States had sovereign immunity from suit. Maron appeals both dismissals. For the reasons explored below, we affirm.


On May 6, 1993, Maron filed a five count complaint, hereinafter called "Maron I," charging that Doctors Stephen Epstein, Lameh Fananapazir, Edward Korn and Neal Epstein had committed tortious acts against him, including, among other things, intentional

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infliction of emotional distress, civil conspiracy, and invasion of privacy. Maron also included the United States as a defendant in this complaint. Maron, a renowned cardiologist, was serving as Director of the Echocardiography Laboratory at the N.I.H. when the complained-of incidents began, and the defendants were his colleagues. Sometime in 1989, Maron discovered that Fananapazir was engaging in what Maron believed to be scientific misconduct. Maron voiced his concerns to a superior at the N.I.H. Shortly thereafter, Maron alleges, he began to be treated very poorly by his fellow physicians. Maron's specific allegations are detailed in his complaints and include assertions that the doctors removed him from positions of power in the Lab, denigrated him in front of his patients, published false accusations about him, restricted his access to patients and on-going experiments, removed his name as co-author of several publications, declined to credit him for his work at the Lab, and told patients that he was no longer employed at the N.I.H. It is noteworthy that, although the most serious incidents allegedly occurred after Maron reported Fananapazir's misconduct, his complaint also lists poor treatment at the hands of the defendants prior to Maron's discovery and report concerning Fananapazir.

On July 22, 1993, the United States filed an answer to the complaint in Maron I and moved, pursuant to 28 U.S.C. § 2679, to substitute itself as the sole defendant. 1 The acting United States Attorney for the District of Maryland filed a certification that he had read the complaint and other documents and that he believed the doctor-defendants had been acting within the scope of their federal employment at the time of the alleged acts. The district court denied Maron's attempts to challenge the certification because our circuit law at the time held that certifications were dispositive on the issue of substitution and were not judicially reviewable. See Johnson v. Carter, 983 F.2d 1316 (4th Cir.1993) (en banc), overruled by Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). The district court therefore granted the motion for substitution without a hearing. The district court eventually dismissed Maron's complaint pursuant to the Feres doctrine and on the ground that suit against the United States is barred by sovereign immunity, which the United States has not waived for the torts alleged in Maron's complaint. 2

On September 19, 1994, before Maron I was dismissed but after the United States had moved for its dismissal, Maron filed "Maron II" in Maryland state court. The verified complaint is similar to that in Maron I, although Maron added a handful of new incidents which allegedly occurred after he left the N.I.H. and began employment elsewhere. Maron alleged that the defendants continued to publicly denigrate his skill and harass him even after he left the N.I.H., telling his subsequent employer that he was untrustworthy. In addition, Maron alleged that he received several harassing phone calls, that a cruel sign was hung in his old office after he left, and that his new colleagues received faxes besmirching Maron's character and ability. Maron was and still is unable to specifically attribute the faxes, sign, or calls to any of the named defendants and the incidents are simply charged in his complaint to anonymous perpetrators.

In October 1994, the government filed a notice removing Maron II to federal court

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and moving for substitution of the United States as the sole defendant; again, the United States attached a scope of employment certification. While motions were pending in both cases, including Maron's motion to have the case remanded to state court and his opposition to the substitution of the United States, the Supreme Court decided Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) ("Gutierrez "), which held that certifications regarding the scope of employment were reviewable by the district court.

In light of Gutierrez, the district court held a hearing and invited legal memoranda on the issue of the proper procedure for reviewing the certifications from both Maron I and Maron II. The court also allowed Maron to seek discovery limited to the scope of employment issue. The district court had to remind Maron several times to limit the scope of his discovery demands and finally ordered Maron to depose several defendants in its presence.

On March 19, 1996, the district court held an evidentiary hearing to decide the issue of substitution. Following Maron's presentation of evidence and extensive colloquies between the district court and counsel to both parties, the court concluded that the defendants had been acting within the scope of their employment in all of the counts from both Maron I and Maron II. Then, with the single exception of paragraph 67 in Maron II, the court dismissed all counts of both suits on the grounds of sovereign immunity and the Feres doctrine. See supra note 2. Maron I was closed and Maron II was reduced to paragraph 67. 3 On April 18, 1996, Maron filed a notice of appeal in both Maron I and Maron II and moved to dismiss Maron II. On May 8, the court granted this motion and closed Maron II. 4


The Federal Tort Claims Act (Tort Claims Act), as amended by the Federal Employee Liability Reform and Tort Compensation Act (FELRTCA), codified at 28 U.S.C. §§ 1346(b), 2671-80, immunizes a federal employee from liability for his "negligent or wrongful act[s] or omission[s] ... while acting within the scope of his office or employment...." 28 U.S.C. § 2679(b)(1). When a federal employee is sued, the United States Attorney, acting on behalf of the Attorney General, must certify whether that employee was in fact acting within the scope of his or her employment at the time of the alleged tortious act. 28 U.S.C. § 2679(d)(1). Once this certification has been made, the United States is substituted as the sole defendant and all suits filed in state court are removed to federal court; then the plaintiff's sole route for recovery is the Tort Claims Act. For many torts the United States has not waived its sovereign immunity through the Tort Claims Act and therefore, the plaintiff cannot recover from the federal government despite the merits of his or her claim. See 28 U.S.C. 2680(h); see also, e.g., Johnson v. Carter, 983 F.2d at 1323 n. 9 (dealing with defamation, for which the United States has not waived its sovereign immunity); Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.1991) (stating that the United States cannot be sued for certain intentional torts). However, even in cases where the United States

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has not waived its immunity, the United States must still be substituted and the individual defendant still remains immune from suit if the tort occurred within the scope of employment. The plaintiff, despite the seeming unfairness, cannot proceed against the individual defendants. See United States v. Smith, 499 U.S. 160, 165, 111 S.Ct. 1180, 1184-85, 113 L.Ed.2d 134 (1991); Johnson, 983 F.2d at 1323-24; Brown, 949 F.2d at 1012-13 (affirming substitution of United States for the individual defendants even though plaintiffs were barred by sovereign immunity from actually recovering from United States for intentional torts at issue).

The primary issue in the instant case is the propriety of the substitution of the United States as the proper defendant to Maron's suits. Although the United States' certification would have been, at one time, treated as conclusive on the substitution issue, the recent Gutierrez decision means that we may no longer decline to judicially decide whether substitution is proper. In the instant appeal, Maron challenges the procedures employed by the district court in reaching the substitution decision, the court's application of state and federal law, and the court's ultimate conclusion that substitution was proper. We find Maron's arguments unpersuasive, and we affirm all of the lower court's...

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