484 F.Supp. 598 (D.S.D. 1980), Civ. 79-4031, Wollman v. Gross

Docket Nº:Civ. 79-4031.
Citation:484 F.Supp. 598
Party Name:David M. WOLLMAN, Plaintiff, v. Jake GROSS, Jr., Defendant.
Case Date:February 20, 1980
Court:United States District Courts, 8th Circuit, District of South Dakota
 
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Page 598

484 F.Supp. 598 (D.S.D. 1980)

David M. WOLLMAN, Plaintiff,

v.

Jake GROSS, Jr., Defendant.

Civ. 79-4031.

United States District Court, D. South Dakota, Southern Division.

Feb. 20, 1980

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N. Dean Nasser, Jr., Sioux Falls, S. D., for plaintiff.

Robert D. Hiaring, U. S. Atty., Sioux Falls, S. D., and Pamela L. Wood, Trial Attorney Torts Branch, Dept. of Justice, Washington, D. C., for defendant.

Timothy Nimick, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for insuror.

MEMORANDUM DECISION

NICHOL, Chief Judge.

The case arises out of an automobile accident on June 11, 1976, between the plaintiff, David Wollman, and the named defendant, Jake Gross, Jr. The plaintiff and the defendant are lifelong neighbors who live about one and one-half miles apart near Freeman, South Dakota. On the date of the accident the defendant Gross was employed by the Agriculture Stabilization and Conservation Service (ASCS). He was the District Director for the ASCS State Office in charge of the supervision and review of programs for ten county offices within the state of South Dakota. It was for the purpose of checking the Davison County ASCS office in Mitchell, South Dakota, that the defendant left his home in his personal car on June 11, 1976. Mr. Gross' home was his assigned duty station and he received mileage reimbursement from the government for such trips. After finishing his work at the ASCS office in Mitchell he drove toward his home duty station by the most direct route without deviating for any personal business. The accident occurred around 4:00 p. m. on County Road 13 between the farmsteads of the plaintiff and the defendant.

Neither the plaintiff nor the defendant realized that defendant Gross was driving as a federal employee within the scope of his employment. Defendant Gross did not report the accident to his administrative office and his personal insurance company began dealing with the plaintiff. On January 25, 1979, more than two years after the accident, the plaintiff filed a complaint in state court naming Jake Gross, Jr., individually, as defendant. The involvement of the United States Government was first recognized by the counsel of the defendant's personal insuror somewhere in mid-February, 1979. The case was removed to federal court by the United States Attorney on March 23, 1979. On March 29, 1979, the United States filed a motion to dismiss for lack of jurisdiction due to the untimeliness of any administrative claim. The plaintiff then sent an administrative claim to the

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United States Department of Agriculture dated July 16, 1979, and on July 18, 1979, filed with this court a motion to remand to state court. A hearing on the two pending motions was heard by this court on August 29, 1979.

There are two questions to be resolved to determine the outcome of the United States Government's motion to dismiss and the plaintiff's motion for remand:

(1)Whether Jake Gross, Jr., was a federal employee acting within the scope of his employment at the time of the accident, and

(2)Whether the Federal Tort Claim was presented within two years of the date of the claims accrual?

I. MR. GROSS WAS A FEDERAL EMPLOYEE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT.

Under the Federal Tort Claims Act, the United States District Courts have exclusive jurisdiction of tort actions where a federal employee involved in an accident is acting within the scope of his employment at the time of the collision. 28 U.S.C. section 2679(b). Determining who is an employee of the government for Federal Tort Claim purposes is a matter of federal law. Pattno v. United States, 311 F.2d 604 (10th Cir. 1962), cert. den. 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963). The term "employee of the government" is defined to include "officers or employees of any federal agency" and "persons acting on behalf of a federal agency in an official capacity . . ." 28 U.S.C. section 2671. The critical element in determining when someone is a federal employee is the power of the federal government to control the detailed physical performance of his duties. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973); Gere v. United States, 425 F.Supp. 847, 850 (D.S.D.1977).

The Agricultural Stabilization and Conservation Service is an agency of the United States established by the Secretary of Agriculture. The ASCS structure has been recognized as a "hierarchy of command" functioning as a government agency under the overriding authority and control of the Secretary of Agriculture and his appointees. Duba v. Schuetzle, 303 F.2d 570, 571 (8th Cir. 1962). Employees of the ASCS have consistently been recognized as federal employees under the Federal Tort Claims Act. Duba v. Schuetzle, 303 F.2d 570 (8th Cir. 1962); Gross v. Sederstrom, 429 F.2d 96, 98 (8th Cir. 1970); Delgado v. Akins...

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