Conway v. United States

• Decision Date: 17 December 2018
• Docket Number: CV 17-71-GF-JCL
• Parties: JEFFREY P. CONWAY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Montana

JEFFREY P. CONWAY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CV 17-71-GF-JCL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION

December 17, 2018

ORDER

This negligence action comes before the Court on Defendant United States of America's motion for summary judgment and motion to dismiss a petition by United States employee Jason Hardy to certify that he was acting within the scope of his office or employment at the time of the underlying incident giving rise to Plaintiff Jeffrey Conway's claims. Because the United States has not waived its sovereign immunity as to Conway's tort claims, the United States is entitled to summary judgment and Captain Hardy's petition to certify is properly dismissed.

I. Background¹

Conway was injured in a motor vehicle collision in the early morning hours of Sunday, September 7, 2014, when the vehicle he was driving was struck head onby a vehicle driven by Hardy. At the time of the incident, Hardy was an active duty captain with the United States Air Force, stationed at Malmstrom Air Force Base in Montana. Hardy's work assignments were consistent with a Monday through Friday day shift schedule, and he was off-duty for the weekend when the incident occurred.

On Saturday, September 6, 2014, Hardy attended a friend's wedding in the afternoon or early evening, went out for a meal, and then returned to his off-base apartment. Later that evening, Hardy walked to a bar and grill where he helped as an assistant to the bartender. After that, Hardy met friends at a different bar and then walked back to his apartment. Hardy does not remember anything that happened between arriving home from the bar late that night and waking up in the emergency room after the incident.

Following the incident, the Air Force initiated a "line of duty" investigation pursuant to Air Force Instruction 36-2910 Line of Duty (Misconduct) Determination for purposes of determining Hardy's eligibility for certain government benefits. Retired Lieutenant Colonel Keith Hepler carried out the investigation, and ultimately determined that Hardy had engaged in a bona fide suicide attempt secondary to preexisting combat-related post-traumatic stress disorder, traumatic brain injury, alcohol abuse, alcohol dependence, and majordepressive disorder. (Doc. 37-2, at 46). As a result, Hepler concluded that Hardy was in the line of duty at the time of the incident.

In August 2017, Conway commenced this action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging claims for negligence and negligent supervision. The United States moves for summary judgment on both claims on the ground that it has not waived sovereign immunity and subject matter jurisdiction is thus lacking. The United States also moves to dismiss Hardy's petition to certify that he was acting in the scope of his office or employment because he is not a party to this proceeding.

II. Summary Judgment Standards

Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). A movant may satisfy this burdenwhere the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986).

Once the moving party has satisfied its initial burden with a properly supported motion, summary judgment is appropriate unless the non-moving party designates by affidavits, depositions, answers to interrogatories or admissions on file "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. 317, 324 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials" of the pleadings. Anderson, 477 U.S. at 248.

In considering a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in the non-moving party's favor. Anderson, 477 U.S. at 255; Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9^th Cir. 2007).

III. Discussion

"The United States can only be sued to the extent that it has waived its sovereign immunity." Baker v. United States, 817 F.2d 560, 562 (9^th Cir. 1987). The FTCA provides a waiver of sovereign immunity, making the United Statesliable to the same extent as a private party for certain torts committed by federal employees acting within the scope of their employment. United States v. Orleans, 425 U.S. 807, 813 (1976). The FTCA's waiver of sovereign immunity must be strictly construed in favor of the United States. Brady v. United States, 211 F.3d 499, 502 (9^th Cir. 2000).

The FTCA's waiver of sovereign immunity is not without limitation. Relevant here, the waiver is limited to claims based on conduct by a federal employee "acting within the scope of his office or employment..." 28 U.S.C. § 1346(b)(1). The waiver is also subject to several specific exceptions, including the discretionary function exception. 28 U.S.C. § 2680. The discretionary function exception bars "[a]ny claim...based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion be abused." 28 U.S.C. § 2680(a).

To determine whether the discretionary function exception applies, the court must engage in a two-step analysis. Terbush v. United States, 516 F.3d 1125, 1129 (9^th Cir. 2008) (citing Berkowitz v. United States, 486 U.S. 531, 536-37 (1988)). First, the court must determine whether the challenged action involves an element of judgment or choice. Terbush, 516 F.3d at 1129. When a "federal statute,regulation, or policy specifically prescribes a course of action for an employee to follow," there is no judgment or choice involved and the discretionary function exception does not apply. Terbush, 516 F.3d at 1129 (quoting Berkowitz, 486 U.S. at 536).

Second, the court must determine whether the challenged action "is of the kind that the discretionary function exception was designed to shield," that is, actions "grounded in social, economic, or political policy." Terbush, 516 F.3d at 1129. When a government employee exercises discretion at step one, "it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Miller v. United States, 163 F.3d 591, 593 (9^th Cir. 1998). The United States has the burden of proving that this two-part test is met and that the discretionary function exception applies. Terbursh, 516 F.3d at 1129.

A. Negligence

The United States argues it is entitled to summary judgment on Conway's negligence claim because the undisputed facts show that Hardy was not acting within the course and scope of his employment at the time of the incident, which means there has been no waiver of sovereign immunity.

When a government "employee is a member of the military, the scope of employment 'means acting in the line of duty.'" Lutz v. United States, 685 F.2d1178, 1182 (9^th Cir. 1982) (quoting 28 U.S.C. § 2671). For purposes of defining "line of duty" under the FTCA, the Ninth Circuit looks to "the applicable state law of respondeat superior," here Montana. Lutz, 685 F.2d at 1182. See 28 U.S.C. § 1346(b)(1) (directing courts to apply "the law of the place where the act or omission occurred"). The Ninth Circuit has specifically recognized that "[t]he 'line of duty' standard does not expand scope of employment beyond that recognized under the state law of respondeat superior." Hartzell v. United States, 786 F.2d 964, 966 (9^th Cir. 1986).

Thus, the fact that Hardy was a member of the military at the time of the incident does not change the applicable standard. The Ninth Circuit has expressly rejected the idea that "the unique characteristics of military service bring a soldier within the scope of employment in circumstances in which a civilian would be found to be acting outside the bounds of his employment." Hartzell, 786 F.2d at 967. Were it otherwise, "the United States would be liable for virtually any tort committed by a serviceman, whether he was on-duty, off-duty, or on leave at the time of the incident. This result is clearly inconsistent with the limited waiver of sovereign immunity Congress intended in the FTCA." Hartzell, 786 F.2d at 969. See also Sharrock v. United States, 673 F.3d 1117, 1119 (9th Cir. 2012) (finding that under California law no FTCA claim was viable against the United Stateswhen a military member was driving his personal vehicle to basketball practice at a facility furnished by the Navy for its recreation program). Thus, to determine whether Hardy was acting in the scope of his employment for purposes of the FTCA, the Court looks to Montana's principles of respondeat superior.

Under Montana law, an employer is only liable for the acts of an employee acting within the course and scope of his duties. Bowyer v. Loftus, 194 P.3d 92, 93 (Mont. 2008). To be within the course and scope of employment, an employee must have been acting "in furtherance of his employer's interest or for the benefit of his master." Maguire v. United States, 835 P.2d 755, 758 (Mont. 1992) (employee who sexually assaulted patient while was not acting for the benefit of the employer). In cases involving employee...