Attallah v. US
| Decision Date | 04 February 1991 |
| Docket Number | Civ. No. 88-1691 GG. |
| Parties | Elias ATTALLAH, Violeta Lajam De Attallah and the conjugal partnership they comprise, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Luis A. González Pérez, Garcia & Gonzalez, Hato Rey, P.R., for plaintiffs.
Osvaldo Carlo Linares, Heidi E. Weckwert, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
This matter comes before the Court on defendant's motion to dismiss the complaint. Plaintiffs sued the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., seeking to recover damages for the theft of their property. The defendant asserted various jurisdictional grounds for dismissal, including the statute of limitations, scope of employment, and the discretionary function exception to the FTCA. The matter was submitted to the United States Magistrate for report and recommendation, who on April 2, 1990, recommended that the case be dismissed. The Court, having reviewed the pleadings, the Magistrate's findings and recommendations, and the entire record in this case, now holds that this action should be dismissed.
Elias Attallah and Violeta Lajam Attallah (hereinafter "plaintiffs") allege that on or about September 10, 1982, a courier named Yamil A. Mitri Lajam transported currency and other monetary assets into the Commonwealth of Puerto Rico on their behalf. These assets were owned by plaintiffs and valued at $693,838.43. Upon arrival at Luis Muñoz Marín International Airport, Lajam declared and surrendered the assets for verification to the U.S. Customs Service agents ("Customs agents" or "agents") on duty, as required by federal law. The courier was to enter the country and deposit the assets at the Royal Bank of Canada. When plaintiffs did not hear from Lajam that day, they contacted the bank and were told that the courier had not arrived. Plaintiffs then contacted the Customs Service and were told that Lajam had been processed through customs and had left the premises. Elias Attallah traveled to Puerto Rico the evening of September 10, 1982, and went to the Customs Service office the next day. After being told the same information, he contacted the Puerto Rico Police Department.
Plaintiffs allege that Customs agents Rafael J. Domínguez, Daniel J. Maravilla, Julio C. Palmer, and other unidentified agents designated as John, Richard and William Doe, negligently failed to provide adequate security for the assets, which were stolen or lost while under the exclusive custody and control of the Customs agents. Plaintiffs allege that Customs agents Maravilla and Domínguez willfully assaulted, robbed and murdered Lajam. Plaintiffs further allege that the Customs Service negligently supervised the aforementioned agents, and fraudulently concealed the two agents' involvement in the disappearance of the assets.
Ten days later, Lajam's decomposed body was found at the bottom of a gully near El Yunque rain forest.1 On May 13, 1987, a federal grand jury returned an indictment against former agents Domínquez and Maravilla. The indictment was the conclusion of a federal investigation into the death of Lajam. In June 1987, Elias Attallah was approached by the U.S. Justice Department to testify for the prosecution in the criminal trial against former agents Domínguez and Maravilla.
On January 12, 1988, the Customs Service received a letter from plaintiffs claiming damages arising from the conduct of Domínguez and Maravilla.2 The instant complaint against the United States was filed on October 3, 1988.
A. Accrual
It is well settled that an action brought against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., must be dismissed if a plaintiff has failed to file a timely administrative claim with the appropriate Federal agency. United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 354, 62 L.Ed.2d 259 (1979). See González-Bernal v. United States, 907 F.2d 246 (1st Cir.1990); Vega-Vélez v. United States, 800 F.2d 288 (1st Cir.1986); Richman v. United States, 709 F.2d 122 (1st Cir.1983). The FTCA affords a plaintiff two years from the date a claim against the United States accrues in which to file a written claim with the agency, thereby preserving his right to bring a tort suit against the United States. 28 U.S.C. § 2401(b).3 The filing of a timely administrative claim is a jurisdictional requirement which cannot be waived. González-Bernal v. United States, 907 F.2d at 248; Richman v. United States, 709 F.2d at 124; Fleischmann v. United States Government, 637 F.Supp. 1200, 1202 (D.P.R.1986); Fagot v. Federal Deposit Insurance Corp., 584 F.Supp. 1168, 1177 (D.P.R.1984). If the claimant fails to comply with this requirement, his claim is "forever barred." 28 U.S.C. § 2401(b).
The determination as to when a claim accrues within the meaning of the FTCA is a matter of federal law. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); González-Bernal v. United States, 907 F.2d 246, 249 (1st Cir.1990); Nicolazzo v. United States, 786 F.2d 454, 455 (1st Cir.1986); Steele v. United States, 599 F.2d 823, 826 (7th Cir.1979); Vega-Vélez v. United States, 627 F.Supp. 773, 777 (D.P.R.), aff'd on other grounds, 800 F.2d 288 (1st Cir.1986). The general rule is that a tort claim accrues at the time of the plaintiff's injury. United States v. Kubrick, 444 U.S. at 120, 100 S.Ct. at 358; Vega-Vélez v. United States, 800 F.2d at 289, 290; Richman v. United States, 709 F.2d at 123.
In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court held that a cause of action accrues under the FTCA when a plaintiff discovers, or in the exercise of reasonable diligence could have discovered, both the existence and cause of his injury. Id. at 121-125, 100 S.Ct. at 359-61. The Court rejected the argument that accrual should await knowledge by the plaintiff that his injury was negligently inflicted. Id. at 124, 100 S.Ct. at 360.
The government argues that plaintiffs were aware of their injury and its cause on or about September 10, 1982. We disagree. In cases such as this, where the injury and its cause are not immediately apparent, accrual of the cause of action occurs at the time the injury is discovered or when a claimant in exercise of reasonable diligence could have discovered it. Kubrick, 444 U.S. at 121-125, 100 S.Ct. at 359-61. As the Magistrate found, "there was no way the plaintiffs could have known before June 1987 that two Customs Agents kidnapped, robbed and murdered their courier." (Magistrate's Report and Recommendation at 2). Plaintiffs' cause of action therefore accrued on or about June 1987, and since plaintiffs presented their claim to the Customs Service in January 12, 1988, their action is timely.4
However, plaintiffs' cause of action is barred on a different jurisdictional ground. The United States is only liable for "loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment...." 28 U.S.C. § 1346(b). Plaintiffs contend that the Customs agents on duty at the time of the incidents giving rise to this lawsuit were acting within the scope of their employment. Whether or not a government employee's act is within the scope of his office or employment "is a matter to be determined in accordance with the law of the place in which the alleged negligent act or omission occurred." Borrego v. United States, 790 F.2d 5, 6 (1st Cir.1986).
Under Puerto Rican law, the employee's acts must "further a desire to serve and benefit the employer's interest, resulting in economic benefit to the employer." Borrego v. United States, 790 F.2d at 7. The following three elements must be evaluated: "`a) Desire to serve, benefit, or further his employer's business or interest. b) That the act is reasonably related to the scope of the employment. c) That the agent has not been prompted by purely personal motives.'" Id., quoting Rodríguez v. United States, 328 F.Supp. 1389, 1391 (D.P.R.1971).
The criminal conduct at issue in the instant case was clearly prompted by purely personal motives and was not related to the accomplishment of objectives within the line of any Customs Service duties. The former agents' outrageous and excessively violent conduct was in no sense rationally connected to the subject matter which formed the basis of the respondeat superior relationship existing between them and the Customs Service. These individuals had no desire to serve the government's interest and had indisputably stepped outside the scope of their employment in committing intentional criminal acts against the plaintiffs and their courier in this case. Accordingly, these acts cannot be imputed to the United States. Diminnie v. United States, 728 F.2d 301, 305 (6th Cir.1984), cert. denied, 469 U.S. 842, 105 S.Ct. 146, 83 L.Ed.2d 85 (1984).
Indeed, any Customs Service agents who either directly or tangentially participated in such wrongful conduct, whether that conduct occurred during the abduction and murder, or in covering up the crimes, as a matter of law would not be acting within the scope of their employment.5 Any Customs Service employee aware of the treatment received by the plaintiffs' courier, who did not so alert the authorities or Customs Service officials, would not be furthering the interests of the Customs Service and would indeed be prompted by purely personal motives. See Borrego v. United States, 790 F.2d 5 (1st Cir.1986). Such employees would, in effect, be ignoring their responsibility to their employer in much the same way the criminals convicted of stealing plaintiffs' assets ignored their duties. Those acts cannot, therefore, provide...
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