Coyne v. U.S., Civil Action No. 02-10282-JLT.

Decision Date14 November 2002
Docket NumberCivil Action No. 02-10282-JLT.
Citation233 F.Supp.2d 135
PartiesMaria COYNE, Plaintiff, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Harry L. Miles, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA, for Plaintiff.

Roberta T. Brown, U.S. Attorney's Office, Boston, MA, for Defendants.


TAURO, District Judge.

Plaintiff Maria Coyne sues both the United States and FBI Special Agent Margaret Cronin ("S.A.Cronin") in her individual capacity, seeking damages for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and a violation of Plaintiff's constitutional rights under the First, Fourth and Fifth Amendments. The United States and S.A. Cronin have individually moved to dismiss the complaint, arguing that this court lacks subject matter jurisdiction over Plaintiff's claims, that the Plaintiff fails to state a claim for which relief can be granted, and that S.A. Cronin is immune from suit in tort because at the time of the alleged violations she was acting within the scope of her employment. Plaintiff, on the other hand, has asked this court to vacate the U.S. Attorney's certification that S.A. Cronin was acting within the scope of her employment when the alleged negligence occurred.


Plaintiff is the ex-wife of John Coyne ("Mr. Coyne") and the mother of his four children. Mr. Coyne was serving the last year of a 15-year prison sentence at Concord State Prison in Concord, Massachusetts when Plaintiff brought this action. S.A. Cronin is an FBI agent operating principally out of the FBI's Boston, Massachusetts field office.1 In the Summer and Fall of 1999, Mr. Coyne began speaking with S.A. Cronin, an unnamed Assistant U.S. Attorney, two unnamed FBI agents, and a police officer from Cambridge, Massachusetts who was assigned to a task force (collectively referred to as "the Agents").2 Mr. Coyne was providing information about prison corruption.

At one of the meetings between Mr. Coyne and the Agents, S.A. Cronin asked Mr. Coyne to feign interest in participating in an armored car robbery being planned by an inmate in Norfolk State Prison ("Norfolk inmate"). Mr. Coyne was to write a letter to the Norfolk inmate explaining that Mr. Coyne could prove useful if the Norfolk inmate was willing to wait until Mr. Coyne was released before committing the robbery. Because mail cannot be sent directly from one penal institution to another, S.A. Cronin instructed Mr. Coyne to send a "dummy letter," addressed in his own handwriting, along with a second letter containing more information for the FBI, to an FBI mail drop at an address S.A. Cronin provided.3 S.A. Cronin stated that the FBI would forward the dummy letter to the Norfolk inmate's girlfriend and would retain the second letter.4 Mr. Coyne did as S.A. Cronin instructed, and sent the two letters to the FBI mail drop.

On or about October 5, 1999, Mr. Coyne met with S.A. Cronin at the Concord State Prison. S.A. Cronin stated that the FBI had made a "terrible mistake" because it had inadvertently forwarded the entire package to the Norfolk inmate's girlfriend.5 The Norfolk inmate's girlfriend had thus received Mr. Coyne's second letter, intended only for the FBI and revealing that Mr. Coyne was acting as a government informant. S.A. Cronin expressed concern for the safety of Mr. Coyne and his family.6

In the evening of the same day, S.A. Cronin contacted Plaintiff and related to her the FBI's mistake. S.A. Cronin instructed Plaintiff to consider either relocation or entrance into the Federal Witness Protection Program ("WPP"), and indicated to Plaintiff that she should make an immediate decision as to which option the FBI should implement.7 That same evening, S.A. Cronin apparently also informed the local police in Plaintiff's town of her concerns about Plaintiff's safety.8 The following day, S.A. Cronin again contacted Plaintiff and reiterated that she believed that Plaintiff should decide quickly whether Plaintiff wished to be relocated or placed in the WPP.9 At the direction of S.A. Cronin, Plaintiff took immediate steps to increase security for herself and her children.10

Two days after S.A. Cronin's second telephone call to Plaintiff, Plaintiff called S.A. Cronin.11 According to Plaintiff's Complaint, S.A. Cronin was not responsive to Plaintiff's concerns and abruptly ended the conversation.12 Plaintiff has not spoken to S.A. Cronin since that date. Plaintiff called the FBI several days later, however, and spoke with Agent John G. Trahon from the Albany FBI office. Agent Trahon did not provide Plaintiff with any information, security, nor plans with respect to Plaintiff's safety.13 Plaintiff has had no further communication with anyone connected to the FBI.14

Plaintiff seeks monetary compensation for the FBI's negligence, alleging that she "has been placed in permanent and tangible fear for her safety and for the safety of her family, and was caused to suffer and will continue to suffer great distress of body and mind, and other diverse injuries."15


Both the United States and S.A. Cronin have moved to dismiss Plaintiff's Complaint. When ruling on a Motion to Dismiss, this court accepts as true all factual allegations and draws all reasonable inferences in the non-movant's favor.16 The court will only dismiss claims where no set of alleged facts would entitle Plaintiff to relief.17

I. The Action in Tort

On June 18, 2002, United States Attorney Michael J. Sullivan ("U.S. Attorney") certified pursuant to 28 U.S.C. § 2679(d)(1) that S.A. Cronin was "acting within the scope of [her] office or employment at the time of the incident."18 Plaintiff has filed a motion to vacate that certification, arguing that the U.S. Attorney gave no indication that he investigated whether S.A. Cronin's actions actually fell within the scope of her employment.19 S.A. Cronin has filed a Motion to Dismiss Plaintiff's negligence claims, arguing that because of the U.S. Attorney's certification she is immune from suit.

Under 28 U.S.C. § 2679(d)(1), when the U.S. Attorney20 certifies that a defendant government employee was acting within the scope of her employment during the incident out of which a negligence claim arises, "any civil action or proceeding commenced upon such claim ... shall be deemed an action against the United States ... and the United States shall be substituted as the party defendant."21 Thus, if the U.S. Attorney's certification stands, Plaintiff's negligence suit against S.A. Cronin must be dismissed and Plaintiff can proceed only against the United States.22 Ordinarily the substitution of the United States, a financially reliable defendant, for a government employee defendant would not be objectionable to a plaintiff.23 But the Federal Tort Claims Act ("FTCA") contains exceptions that immunize the United States from suit. Sometimes, therefore, the substitution of the United States for a government employee defendant results in dismissal of the plaintiff's suit altogether.24

In the ordinary case, therefore, the U.S. Attorney is acting against the United States' financial interest by certifying that a government employee was acting within the scope of his employment and substituting the United States as the defendant. It is the unusual case in which the certification is in the United States' financial interest because the substitution of the United States causes the suit to be dismissed in its entirety. In any event, the U.S. Attorney's certification "does not conclusively establish as correct the substitution of the United States as defendant in place of the employee."25 For purposes of substitution, therefore, the U.S. Attorney's certification is open to judicial review.26

When a plaintiff challenges a U.S. Attorney's certification that the Government employee was acting within the scope of his employment, the district court reviews the scope of employment issue de novo, and the U.S. Attorney's determination is accorded no deference.27 The scope of employment is defined by state law,28 and the burden of proving that the defendant was acting outside the scope of his government employment is on the plaintiff.29 Although a plaintiff challenging a scope of employment certification may be entitled to an evidentiary hearing, one is not required. The plaintiff "must justify the need for [a hearing] by presenting evidence of facts that create a genuine conflict in the immunity-related facts; the party may not rely primarily on generalities in unverified pleadings."30

Plaintiff asks this court to vacate the U.S. Attorney's certification until there has been a hearing. In support of her request, Plaintiff argues that the U.S. Attorney failed to indicate in the certification whether he investigated the matter.31 This, however, is not a ground sufficient to vacate the certification.32 As already stated, the remedy for any defect in the U.S Attorney's certification is de novo review applying the relevant state's law.33 This court does not believe that a hearing on this issue is warranted because Plaintiff has not presented evidence of a factual conflict as to the scope of S.A. Cronin's employment.34

Taking as true all the allegations in Plaintiffs complaint, this court finds that the U.S. Attorney's certification was warranted, and the United States is substituted for S.A. Cronin as the defendant in Plaintiffs suit for negligence, negligent infliction of emotional distress and intentional infliction for emotional distress. Massachusetts applies the common law test when considering whether an employee was acting within the scope of her employment.35 A court should not construe the scope of an employee's employment restrictively, and should consider whether the conduct in question (1) was of the kind the employee was hired to perform; (2) occurred...

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  • McCloskey v. Mueller, No. CIV.A.04-CV-11015.
    • United States
    • U.S. District Court — District of Massachusetts
    • September 6, 2005
    ...of a federal agency or an employee of the Government, whether or not the discretion involved be abused." See Coyne v. United States, 233 F.Supp.2d 135, 144-45 (D.Mass.2002). The exception is intended to prevent the courts from second-guessing "legislative and administrative decisions ground......

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