Bunyan v. United States
| Decision Date | 24 September 2019 |
| Docket Number | Case No: 8:18-cv-2210-T-36JSS |
| Parties | STEVEN BUNYAN, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT L. WILKIE, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, and DR. IRA AZNEER, individually, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Steven Bunyan's ("Plaintiff") Motion to Strike and Objection to Defendants' Notice of Substitution (the "Motion"). Doc. 27. The Court, having considered the parties' submissions and being fully advised in the premises, will grant-in-part and deny-in-part the Motion.
As alleged in the amended complaint, Plaintiff was involved in an altercation with Defendant Dr. Ira Azneer ("Dr. Azneer") at the Bay Pines V.A. Medical Hospital on February 7, 2016. Doc. 39 ¶¶20, 23-30. On that particular date, Plaintiff, who was employed by the Department of Veterans Affairs at the time, "provided temporary relief for a sitter" in one of the hospital's rooms where a patient was located. Id. at ¶¶1, 19-20. Plaintiff asked a nurse to contact the V.A. police department—purportedly in accordance with hospital policy—after the patient threatened him. Id. at ¶23. Shortly thereafter, Dr. Azneer arrived in the room with the nurse. Id. at ¶24. When Plaintiff explained what had occurred, Dr. Azneer allegedly countermanded Plaintiff's request to contact the V.A. police department, pointed his finger at Plaintiff, poked Plaintiff in the forehead, pushed Plaintiff's chest, and told Plaintiff to "sit his black self down and do his job." Id. (internal quotations omitted). Plaintiff "stepped back in a defensive manner" after Dr. Azneer pushed him. Id. at ¶25. Dr. Azneer "raised his cane in a threatening manner" towards Plaintiff, and the two men engaged in a shouting match. Id. at ¶26. Dr. Azneer departed for the nursing station. Id. at ¶29. Later, he returned and swung his cane at Plaintiff in an attempt to hit him. Id. Plaintiff, who was being restrained by a nurse, broke free from this restraint to avoid Dr. Azneer's swing. Id. at ¶30.
Plaintiff's operative complaint includes a claim for assault against Dr. Azneer individually.1 Id. at ¶¶63-69. A Notice of Substitution (the "Notice") was filed on January 25, 2019, which advises that, pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the "Westfall Act"), the United States is substituted, by operation of law, for Dr. Azneer with respect to the causes of action alleged against Dr. Azneer. Doc. 16 at 1-2. In support, the Notice includes a certification by the United States Attorney for the Middle District of Florida (the "Certification"), in which the United States Attorney certifies that Dr. Azneer was a governmental employee acting in the scope of federal office or employment at the time of, and with respect to, the facts out of which Plaintiff's claim arises.2 Doc. 16-1 at 1.
Plaintiff objects to—and moves to strike—the Notice, arguing chiefly that: (1) the Westfall Act does not apply to Plaintiff's claim; (2) the Certification is subject to judicial review; and (3) Dr. Azneer was not acting within the scope of his employment. Doc. 27 at 2-5. Plaintiff also requests discovery or an evidentiary hearing to the extent the Court is inclined to allow the substitution. Id. at 1.
Rule 12, Federal Rules of Civil Procedure, governs motions to strike. Rule 12 provides that a court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis added). "Pleadings" consist of only: a complaint, an answer to a complaint, an answer to a counterclaim designated as a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer (if the court orders such reply). Fed. R. Civ. P. 7(a). Numerous courts within the Eleventh Circuit have held that motions to strike filings that do not constitute pleadings, as defined by Rule 7(a), are improper. E.g., Jallali v. Am. Osteopathic Ass'n, No. 11-60604-CIV, 2011 WL 2039532, at *1 (S.D. Fla. May 25, 2001); Croom v. Balkwall, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009); Inter-Tel, Inc. v. W. Coast Aircraft Eng'g, Inc., No. 8:04-cv-2224-T-17MSS, 2005 WL 2431267, at *2 (M.D. Fla. Oct. 3, 2005).
Preliminarily, the Court notes that Plaintiff "moves this Court to object and move [sic] to strike Defendants' attempt to unilaterally substitute the United States for [Dr. Azneer] by notice only." Doc. 27 at 1 (original emphasis removed). Rule 12(f), which governs motions to strike, allows a party to strike certain matter from a pleading. The Notice is not a pleading. Consequently, to the extent that the Motion requests the Court to strike the Notice, such request is improper and due to be denied. Nonetheless, based on the quoted language above and the nature of the relief sought, the Court construes the Motion as an objection to the Notice and a request for discovery or an evidentiary hearing.
Absent a waiver, sovereign immunity shields the United States and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). "The terms of the federal government's consent to be sued in any court define that court's jurisdiction to entertain the suit." JBP Acquisitions, LP v. United States ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir. 2000) (internal quotations omitted). Congress must unequivocally express a waiver of sovereign immunity. Albajon v. Gugliotta, 72 F. Supp. 2d 1362, 1366 (S.D. Fla. 1999). The Federal Tort Claims Act (the "FTCA") provides a limited waiver of such sovereign immunity to permit persons injured by federal employee tortfeasors to file a lawsuit in federal district court against the United States. 28 U.S.C. §§ 1346(b), 2674. The FTCA provides that federal district courts have exclusive jurisdiction over any claim against the federal government arising out of the act of a federal employee performed within the scope of his employment duties:
Subject to the provisions of chapter 171 of this title, the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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 withinthe 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.
Id. § 1346(b). There are certain exceptions to this limited waiver of sovereign immunity, however. Specifically, "[t]he provisions of this chapter and section 1346(b) shall not apply to . . . any claim arising out of assault . . . ." Id. § 2680(h).
Furthermore, the Westfall Act provides, in relevant part, that a civil action against the United States for money damages for personal injury or death caused by the negligent or wrongful act or omission of an employee of the United States while acting within the scope of his or her office or employment, pursuant to the FTCA, is the exclusive remedy for any action for money damages by reason of the same subject matter against such employee whose act or omission gave rise to the claim. Id. § 2679(b)(1). The purpose of the Westfall Act is to "protect Federal employees from personal liability for common law torts committed within the scope of their employme nt, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States." Westfall Act, Pub. L. No. 100-694, § 2(b), 102 Stat. 4563 (1988). To that end, and as set forth in further detail below, the Westfall Act allows the United States Attorney General to certify that a defendant federal employee was acting within the scope of his or her office or employment at the time of the incident out of which the claim arose, which thereby allows the United States to be substituted for the federal employee in a lawsuit for such action. 28 U.S.C. § 2679(d)(1).
Plaintiff argues that the United States may not rely on the Certification, which states that Dr. Azneer acted within the scope of his employment, because such provision is inapplicable to Plaintiff's assault claim. Doc. 27 at 2-3. In support, Plaintiff asserts that the "plain language" of 28 U.S.C. § 2680 states that the assault exception to the limited waiver of sovereign immunityapplies to the whole chapter, including the Westfall Act. Id. at 2. Because the United States premises its substitution for Dr. Azneer on the Westfall Act's mechanism for substitution and Section 2680 provides that the "provisions of this chapter and section 1346(b) shall not apply" to any claim arising out of assault, Plaintiff asserts that the United States cannot substitute itself for Dr. Azneer.
Plaintiff's argument is unavailing. The statutory exceptions in Section 2680 pertain to the United States' limited consent to suit and must be strictly construed in favor of the United States. JBP Acquisitions, 224 F.3d at 1263. A federal district court lacks subject matter jurisdiction over the action when the alleged conduct falls within one of the enumerated exceptions. Id. Section 1346(b), excerpted above, itself provides that it is subject to the provisions of Chapter 171, which includes the assault exception in Section 2680. 28 U.S.C. § 1346(b). Thus, the statutory language indicates that federal district courts lack subject matter jurisdiction over such claims for assault against the United States. Id.
Furthermore, although Section 2680 provides that the provisions of Chapter 171 do not apply to claims for the enumerated torts (including assault) and the Westfall Act is within Chapter 171, the Court does not interpret this...
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