U.S. v. Lepatourel, 77-1306

• Citation: 571 F.2d 405
• Decision Date: 30 March 1978
• Docket Number: No. 77-1306,77-1306
• Parties: UNITED STATES of America, Defendant-Appellant, v. Edward LePATOUREL and Valerie LePatourel, Plaintiffs-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 405

571 F.2d 405

UNITED STATES of America, Defendant-Appellant, v. Edward LePATOUREL and Valerie LePatourel, Plaintiffs-Appellees.

No. 77-1306.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 16, 1977.

Decided Jan. 26, 1978.

On Rehearing and Rehearing En Banc March 30, 1978.

Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb. for appellant; Daniel E. Wherry, U. S. Atty., Omaha, Neb., on brief.

Thomas J. Culhane, Omaha, Neb., for appellees; Erickson, Sederstrom, Johnson & Fortune, Omaha, Neb., on brief.

Before MATTHES, Senior Circuit Judge, STEPHENSON, Circuit Judge, and WANGELIN, District Judge. ^*

MATTHES, Senior Circuit Judge.

The question to be resolved in this case is whether the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, applies to a federal judge performing an official, but nonjudicial, function.

On April 21, 1976, Edward and Valerie LePatourel filed separate damage actions in Nebraska state court against The Honorable Robert V. Denney, United States District Judge, District of Nebraska. The complaints alleged that on May 12, 1972, Judge Denney negligently caused an automobile accident which resulted in various injuries to the plaintiffs. At the time of the accident, Judge Denney was operating his automobile on official business, and was receiving both mileage and per diem allowances from the United States government.

As directed under the Federal Tort Claims Act, the United States substituted itself as party defendant in both actions and removed the cases to federal court. ¹ Plaintiffs filed motions for remand and for reconsideration of the district court's order of substitution, asserting that Judge Denney was not an "employee of the government" for purposes of the Act. The United States opposed plaintiffs' motions and sought summary judgment based on plaintiffs' failure to file administrative claims within two years, as required by 28 U.S.C. §§ 2401(b), 2675. ²

The district court consolidated the cases and denied the United States' motion for summary judgment, holding that the federal judiciary is not within the purview of the Federal Tort Claims Act, and therefore (1) plaintiffs' actions were not barred for failure to file administrative claims under the Act, and (2) removal to federal court under the Act was improper. ³ LePatourel v. United States, 430 F.Supp. 956 (D.Neb.1977).

Upon application, this court permitted an interlocutory appeal from the district court's order. We reverse.

I

The Federal Tort Claims Act was the culmination of decades of work toward an improvement in the method by which the United States afforded relief to those injured by the torts of its agents. See Gottlieb, The Federal Tort Claims Act A Statutory Interpretation, 35 Geo.L.J. 1 (1946). Previously, the doctrine of sovereign immunity stood as an absolute barrier to most recoveries in tort against the government. ⁴ As a result, those injured by the conduct of government personnel were forced to seek relief through private congressional legislation. These private bills proved to be "notoriously clumsy." Id. at 25. The outcome in a given case often depended more on congressional caprice than on a fair and just legislative determination. See Indian Towing Co. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Moreover, the consideration of private bills was a substantial drain on congressional time and resources. See United States v. Muniz, 374 U.S. 150, 154, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1962); The Organization of Congress: Hearings Before the Joint Committee on the Organization of Congress, 79th Cong., 1st Sess. 67-69 (1945) (remarks of Senator Kefauver); id. at 218-19 (remarks of Senator Taylor); id. at 598 (remarks of Dr. Jacobstein); id. at 696-97 (remarks of Mr. Jump). Congress sought to eliminate these problems by simultaneously waiving the United States' immunity to suit in tort, banning private bills, and establishing an administrative and judicial mechanism to handle tort claims against the government. See S.Rep.No. 1400, 79th Cong., 2d Sess. 29-34 (1946). As Chief Justice Warren stated for a unanimous court in United States v. Muniz, supra,

(T)he Federal Tort Claims Act, as part of the Legislative Reorganization Act of 1946, was designed not only to avoid injustice to those having meritorious claims hitherto barred by sovereign immunity, but to eliminate the burden on Congress of investigating and passing upon private bills seeking individual relief. (footnote omitted). 374 U.S. at 154, 83 S.Ct. at 1853.

These twin purposes, the compensation of tort victims and the elimination of the need for private bills, must guide our interpretation of the scope of the Act in the present case.

II

The Act confers exclusive jurisdiction on the district court of all claims against the United States for losses resulting from the negligence

of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b) (emphasis supplied).

The term "employee of the government"

includes officers or employees of any federal agency . . . .

28 U.S.C. § 2671 (emphasis supplied).

The term "federal agency"

includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.

28 U.S.C. § 2671 (emphasis supplied).

As a matter of common understanding, federal judges are considered "employees of the government." Certainly, the judiciary is not employed by any other entity. Moreover, Congress chose to define "employees of the government" and "federal agency" inclusively rather than exclusively. That choice indicates a preference for a broad interpretation of the coverage of the Act which is further reflected in the congressional intention that the Act "cover . . . all federal officers and employees." S.Rep.No. 1400, supra at 31. ⁵ Where Congress wished to limit the Act's coverage, as in the case of independent contractors, the language employed conferred a clear and specific exemption. See United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1975). Congress did not explicitly exempt the judiciary. And, of course, we are not justified in reading exemptions into the Act beyond those provided by Congress. Rayonier v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1956).

Significantly, a prior version of the Act, which expressly excluded the judiciary, was never enacted. H.R. 5065, §§ 201(a), 304, 72d Cong., 1st Sess. (1931) provided in pertinent part:

Subject to the limitations of this Act the Government of the United States authorizes the payment of claims on account of personal injury or death, if the injury or death was . . . (1) proximately caused by the negligence or wrongful act or omission of any officer or employee of the Government acting within the scope of his office or employment . . . .

When used in this Act

(a) The term "department or establishment" means any executive department or independent establishment not in the legislative or judicial branches of the Government, or any corporation acting as a governmental instrumentality or agency in which the United States owns or controls 51 per centum or more of the voting shares and securities, but shall not include the Panama Railroad;

(b) The term "officer or employee of the Government" means any officer or employee of any department or establishment as above defined, any member of the military or naval forces of the United States, or any other person acting on behalf of the United States in any official capacity under or by authority of any such department or establishment . . . . (emphasis supplied).

Given the long and deliberate development of the Tort Claims Act and Congress' consistent reliance on previous bills, we must conclude that the failure to exclude specifically the judiciary in the final version of the Act reflected a conscious congressional choice. See United States v. Muniz, supra, 374 U.S. at 155-56, 83 S.Ct. 1850.

The judicial branch presently employs nearly 12,000 people, most of whom are support personnel for over 600 federal judges. See 1977 Annual Report of the Director, Administrative Office of the United States Courts 27. Inevitably, some members of this growing body of federal employees will commit negligent, injurious acts while performing official duties. Indeed, the Administrative Office of the United States Courts has adjudicated claims against employees of the judiciary for some time. See, e. g., 1975 Annual Report of the Director, Administrative Office of the United States Courts II-13. If those who have proper tort claims against the judicial branch are precluded from recovery under the Act, they will undoubtedly burden Congress with requests for private legislation to compensate them for their injuries. Thus, to hold that employees of the judicial branch are not covered by the Federal Tort Claims Act would ultimately impede Congress' statutory design: efficient redress for victims of governmental torts.

Plaintiffs argue that Congress, by defining "employee of the government" in terms of "federal agenc(ies)," only intended to waive the United States' sovereign immunity for the torts of the executive branch. We disagree.

We recognize that plaintiffs' construction of the Act has received some judicial support. See, e. g., Foster v. Bork, 425 F.Supp. 1318, 1319-20 (D.D.C.1977); but see, McNamara v. United States, 199 F.Supp. 879, 880-81 (D.D.C.1961) (per Holtzoff, J., one of the drafters of the Act: "(T)he statute applies to all three branches of the Government"). On balance, however, we are convinced that it was not the intention of Congress to...