Lawrence v. Dunbar

• Citation: 919 F.2d 1525
• Decision Date: 27 December 1990
• Docket Number: No. 89-6248,89-6248
• Parties: Dolcie LAWRENCE, Plaintiff-Appellant, v. Peter DUNBAR, United States of America, Defendants-Appellees. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1525

919 F.2d 1525

18 Fed.R.Serv.3d 891

Dolcie LAWRENCE, Plaintiff-Appellant, v. Peter DUNBAR, United States of America, Defendants-Appellees.

No. 89-6248

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Dec. 27, 1990.

David L. Kout, Miami, Fla., for plaintiff-appellant.

Dexter Lehtinen, U.S. Atty., Barbara K. Bisno, Dawn Bowen, Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK and COX, Circuit Judges, and HILL, Senior Circuit Judge.

PER CURIAM:

This case arises from a collision between two automobiles, one driven by an employee of the United States Government and the other driven by the plaintiff, Dolcie Lawrence. Lawrence appeals the dismissal for lack of subject matter jurisdiction of her suit brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b) and 2671 et seq. We reverse and remand.

FACTS

In December 1987, defendant Peter Dunbar was a Border Patrol Agent with the United States Immigration and Naturalization Service ("INS"), stationed in Miami, Florida. At the time, Dunbar was assigned to "Operation Greenback," an interagency task force which included both the INS and the United States Drug Enforcement Administration ("DEA"). As part of his assignment with Operation Greenback, Dunbar was allowed to use an unmarked government vehicle on a 24-hour basis for commuting to and from work and in connection with his work assignments with the task force.

The INS conducted an internal investigation concerning the event that is the subject of this lawsuit. That investigation included an administrative hearing held in February 1988. From the transcript of that hearing, which is a part of the record on appeal, R-13-Exh.III ¹, the following facts may be gleaned. On December 11, 1987, Dunbar's assigned government vehicle was a 1985 Nissan Maxima. According to his Border Patrol Activity and Time Report for that week, Dunbar began work that day at 6:00 a.m. Dunbar testified that on December 11, 1987, he "came on the radio" around 5:00 a.m., on his way to the station. He was scheduled to testify at a bond hearing at 10:00 a.m. The hearing ran late and Dunbar did not return to Operation Greenback headquarters until around 1:30 p.m. Dunbar had planned to go out on surveillance that afternoon, but changed his plans because the bond hearing ran late. Instead, after he returned to Operation Greenback headquarters, he went downstairs to the office Christmas party, where he had something to eat and also consumed alcoholic beverages. Dunbar said that he then went upstairs and wrote up some notes about the court hearing.

Around 3:30 or 4:00 p.m., Dunbar left Operation Greenback headquarters and drove to a Christmas party under way at DEA headquarters. Dunbar remained at the DEA party for several hours, where he consumed more alcoholic beverages. Shortly before 10:00 p.m., Dunbar left the DEA party driving the 1985 Nissan Maxima assigned to him. Around 10:30 p.m., the car he was driving was involved in a car wreck with the plaintiff's automobile. Dunbar was charged with two motor vehicle offenses, one of which was drunken driving.

Dunbar's Border Patrol Activity and Time Report and his Time and Attendance Report were discussed at the INS administrative investigation hearing. Dunbar confirmed that those reports accurately reflect the hours he worked that day. The transcript reveals that Dunbar worked from 6:00 a.m. to 10:45 p.m. on the day of the accident, earning 8 hours regular pay time and 8.75 overtime pay hours for a total of 16.75 hours.

Plaintiff's written claim for damages resulting from this accident was submitted to the INS and denied by letter dated October 27, 1988. Lawrence then sued Dunbar and the INS in February 1989, alleging that Dunbar was acting within the course and scope of his employment with defendant INS when he negligently struck her car with the 1985 Maxima he was operating the night of the accident, seeking damages for personal injuries and property damage. Dunbar answered pro se and stated that he was without knowledge of several allegations of his negligence and the plaintiff's injuries. Dunbar admitted, however, that at all times referred to in the complaint, he was acting within the course and scope of his employment with INS, that the INS owned the 1985 Maxima involved in the wreck, and that he drove the car with the consent and permission of the INS.

The INS filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), contending that the district court lacked subject matter jurisdiction under the FTCA because Dunbar was not acting within the scope of his employment as a government employee at the time of the accident alleged in the complaint. ² Attached to this motion were three exhibits. First, an affidavit by Marshall M. Metzgar, the Border Patrol's Chief Patrol Agent for the Miami Sector and Dunbar's senior supervising official, expressing the opinion that at the time of Dunbar's vehicle accident on December 11, 1987, he was "not acting in the performance or pursuit of the mission of the United States Border Patrol." R-13-Exh.I. Second, the Miramar, Florida, Police Department report of the accident and Dunbar's arrest. Third, a transcript of the previously mentioned administrative investigation hearing that took place on February 19, 1988.

In granting the INS's motion to dismiss, the district court relied almost exclusively on the Metzgar affidavit. The court quoted from this affidavit, noting that " 'Mr. Dunbar's attendance at the DEA party was not required or necessary to the performance of his duties as a government employee.' " The opinion continued,

In response to Defendant's allegations that DUNBAR was not acting within the scope of his employment, Plaintiff points first to DUNBAR's Answer (DE 10) in which DUNBAR admits the allegation in Paragraph 5 of the Complaint, which states that DUNBAR was "acting within the course and scope of his employment with Defendant, U.S.I.N.S." (DE 1). Plaintiff also relies on DUNBAR's statement (DE 13, Exhibit III, pg. 9), in which DUNBAR states that he was on the time clock with I.N.S. from 2:00 p.m. until 10:45 p.m. Lastly, Plaintiff relies on the accident report (DE 13, Exhibit III), which reveals that the accident occurred at 10:35 p.m.

In order for the court to find that DUNBAR's conduct was within the scope of his employment, Plaintiff must establish all three of the elements articulated by the court in Rabideau [v. State, 391 So.2d 283 (Fla. 1st Dist.Ct.App.1980), aff'd, 409 So.2d 1045 (Fla.1982) ]. Rabideau at 284. Plaintiff must show that: (1) DUNBAR's conduct was the kind he was employed to perform; (2) DUNBAR's conduct occurred substantially within the time and space limits of his employment; and (3) DUNBAR's conduct was activated at least in part by a purpose to serve the master. The most persuasive evidence presented on the first element is the Affidavit of Marshall M. Metzgar (DE 13, Exhibit I). Mr. Metzgar unequivocally stated that, "Mr. Dunbar's attendance at the DEA party was not required or necessary to the performance of his duties as a government employee." Plaintiff has not refuted this statement with any evidence which the court finds convincing. Thus, Plaintiff has not satisfied one of the elements necessary to prove that DUNBAR was Slip op. at 7-8 (October 2, 1989).

acting within the scope of his employment.

DISCUSSION

Title 28, section 1346(b) of the United States Code states in part:

[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death 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, 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.

State law, therefore, governs the question of whether the United States has waived its sovereign immunity against liability for the acts complained of by the plaintiff. Brooks v. A.R. & S. Enterprises, Inc., 622 F.2d 8, 10 (1st Cir.1980); Hubsch v. United States, 174 F.2d 7, 9 (5th Cir.1949), cert. dismissed, 340 U.S. 804, 71 S.Ct. 35, 95 L.Ed. 590 (1950). ³ Unless, according to the law of Florida, the United States could be liable for this alleged tort of its employee if it were a private person, then not only is the sovereign's immunity intact, but the district court is without subject matter jurisdiction and must dismiss the suit. Cf., United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941) ("The United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court defines that court's jurisdiction to entertain the suit.") (emphasis added). See also Bor-Son Bldg. Corp. v. Heller, 572 F.2d 174 (8th Cir.1978) (discussing this legal axiom in the context of a Federal Tort Claims Act suit). ⁴

Because the extent of the United States' waiver of immunity from suit is defined, in cases such as this, by reference to state tort law, proof of scope of employment serves two purposes: it is a necessary predicate to the court's subject matter jurisdiction and it is an element the plaintiff must establish to win the case, just as if the defendant were a private party. See, e.g., Bettis v. United States, 635 F.2d 1144, 1146-47 (5th Cir.Unit B 1981); ⁵ Borrego v. United States, 790 F.2d 5 (1st Cir.1986). Under Florida law, scope of employment is determined according to a three part test:

An employee's conduct is within the scope of his employment only if it is the kind he is employed to perform, it occurs substantially within the time and space limits of the...