Barnes v. United States
Decision Date | 02 October 2015 |
Docket Number | A-15-CV-298-RP |
Parties | CAROLYN BARNES v. UNITED STATES OF AMERICA |
Court | U.S. District Court — Western District of Texas |
Before the Court is Plaintiff Carolyn Barnes' Motion Challenging Standing of the United States (Dkt. No. 86) and the United States' Response (Dkt. No. 88). The Court submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges, as amended.
Plaintiff Carolyn Barnes originally brought this suit against 78 defendants in the 419th District Court of Travis County. One Defendant, Kathleen Gittel, was working as a United States Census Bureau worker at the time the events giving rise to Barnes' claim took place. Accordingly, the United States removed the action to this Court on April 17, 2015, under the Westfall Act, 28 U.S.C. § 2679. By order dated June 4, 2015, District Judge Robert Pitman severed the claims against Gittel and two other defendants and remanded the remainder of the case to state court. Dkt. No. 75. The United States then brought a motion to dismiss on behalf of Gittel and itself. The United States argued that because Gittel was acting within the scope of her duties at the time of the alleged events, she was entitled to absolute immunity. It contended that because Gittel was a federal employee,Barnes' claim was actually one against the United States under the Federal Tort Claims Act, and the United States should be substituted as Defendant for Gittel. It further contended that because Barnes had not exhausted her administrative remedies under the FTCA before filing suit, she had failed to state a claim for which relief may be granted, and her suit against the United States should be dismissed. After reviewing the motion, Barnes' response, and the relevant case law, the undersigned recommended that Judge Pitman grant the motion to dismiss. Barnes objected to the report and recommendation, and Judge Pitman adopted the undersigned's recommendations and dismissed Barnes' claims against Gittel and the United States. Dkt. No. 97.
In the intervening time between the submission of the undersigned's Report and Recommendation and the District Court's order adopting it, Barnes filed the instant Motion Challenging Standing of United States [sic].
By her motion, Barnes protests that the United States lacks standing in this suit. Standing is almost invariably considered a requirement of the party bringing a cause of action, not the party defending against one. The United States is the defendant, not the plaintiff, here. Nonetheless, a few courts have dismissed cases for a lack of standing when it was unclear whether the defendant caused the injury complained of, or whether a defendant is capable of redressing that injury. See 13A FED. PRAC. & PROC. JURIS. § 3531 (3d ed.) (citing, inter alia, Toth v. United Auto. Aerospace and Agr. Implement Workers of America UAW, 743 F.2d 398, 404-405 (6th Cir. 1984); Natural Resources Defense Council, Inc. v. Jamison, 787 F. Supp. 231, 235 n. 1 (D.D.C. 1990); People ex rel. Simpson v. Highland Irr. Co., 893 P.2d 122, 126-128 (Colo. 1995)). Thus, while unorthodox, Barnes' argument is not unprecedented. It is, however, wrong. Here, the United States was substituted forKathleen Gittel precisely because it is the true party in interest when a plaintiff sues a federal employee for conduct that is within the scope of that employment. 28 U.S.C. § 2679 (b)(1), (d)(1)-(2) ( ).
Osborn v. Haley, 549 U.S. 225, 229 (2007). Here, the Attorney General certified that Gittel "was acting within the scope of federal office or employment at the time of the incident out of which Plaintiffs' claims arose." Dkt. No. 1-3 at 2. A plaintiff in a claim subject to the Westfall Act may dispute whether a particular employee was acting within the scope of their official duties at a particular time. But the ability of the Attorney General "to remove a suit to federal court under § 2679(d)(2)" is not "controlled by the plaintiff's allegations." Id. at 249. Indeed, "for purposes ofestablishing...
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