Daugherty v. U.S.

Decision Date15 July 2002
Docket NumberNo. 00-CV-1037-EA(J).,00-CV-1037-EA(J).
Citation212 F.Supp.2d 1279
PartiesMarshall D. DAUGHERTY, and Debra Denise Daugherty, Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — Northern District of Oklahoma

Roland V. Funk, Riggs, Abney, Neal Turpen, Orbison & Lewis, Tulsa, OK, Scott B. Wood, Brian E. Dittrich, Jason Allen Robertson, Erik Steven Houghton, Whitten, McGuire, Terry & Roselius, Tulsa, OK, for plaintiffs.

Scott Woodward, Cathryn Dawn McClanahan, United States Attorney, Tulsa, OK, Paul F. Figley, Marie Louise Hagen, Stuart Schiffer, U.S. Dept. of Justice, Torts Branch, Civil Division, Washington, DC, for Defendants.

ORDER

EAGAN, District Judge.

This matter comes before the Court on the Report and Recommendation (Dkt. # 28) of the United States Magistrate Judge. This action was brought by a retired Navy commander and his wife against the United States, two individual defendants, and two agencies of the United States, seeking compensatory damages and equitable relief under state tort law, the Federal Tort Claims Act ("FTCA"), the Victims of Crimes Act, the United States Constitution, and the Administration Procedures Act ("APA"). Plaintiffs essentially challenge the command authority of the individual defendants and actions taken by Captain Peter Toennies, in particular, with respect to an investigation of plaintiff, Commander Marshall D. Daugherty, and charges against Commander Daugherty that were ultimately resolved in his favor. Plaintiffs allege that Captain Toennies issued several orders pertaining to command authority, duty assignments, and disciplinary proceedings which directly harmed them.

The magistrate judge recommended that the United States' motion to substitute itself for individual defendants Rear Admiral Raymond Smith and Captain Toennies (Dkt. # 13-1)1 and for dismissal of the claims pled against: Rear Admiral Smith and Captain Toennies (Dkt. # 13-2) be denied; the United States' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (Dkt. # 14-1) be granted as to all claims except plaintiff's claim under the APA; and the motions to dismiss filed by Rear Admiral Smith and Captain Toennies for lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, and failure to state a claim (Dkt. # 14-2) be granted. As for plaintiff's APA claim, the magistrate judge recommended that the motion be denied. The parties filed timely objections pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). Accordingly, the Court has conducted a de novo review.

The Court agrees with the magistrate judge's assessment of the motions to dismiss filed by the individual defendants. The magistrate judge conducted a thorough analysis of traditional minimum contacts analysis under the Fourteenth Amendment to determine that the Court lacks in personam jurisdiction over the individual defendants. There are no allegations in the Complaint which establish that the individual defendants purposefully availed themselves of the privilege of conducting activities within Oklahoma. Nor is venue appropriate in this district pursuant to 28 U.S.C. § 1391(b). The criminal statute relied upon by plaintiffs, 18 U.S.C. § 1513, does not apply to this civil action. Further, plaintiffs have failed to state an APA claim against the individual defendants because a court cannot grant relief against an individual under the APA, see 5 U.S.C. §§ 702, 704, 706, and plaintiffs' Bivens claims against the individual defendants are barred by the Feres doctrine, see Chappell v. Wallace, 462 U.S. 296, 298-99, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).2

The Court's conclusion that dismissal is appropriate as to the individual defendants essentially renders the United States' motion to substitute moot. Nonetheless, the Court finds the arguments of the United States' persuasive in that substitution should be granted. A suit against the United States is the exclusive remedy for person with claims arising under state law for damages resulting from the actions of federal employees taken within the scope of their office or employment. 28 U.S.C. § 2679(b)(1). The certification of the Attorney General's designee is prima facie evidence that the individual defendants were acting within their scope of employment, see Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir.1995), and plaintiffs were unable to meet their burden to show that the individual defendants were not acting within their scope of employment when they took the actions of which plaintiffs complain.

The magistrate judge correctly cited to Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), to explain that certifications are subject to judicial review. However, as defendants point out in their objection, the weight of authority post-Lamagno indicates that the certification continues to shift the burden to plaintiffs to show that the employee was not acting within the scope of employment.3 In addition to the certification, the United States has independently shown, in its objection, that the individual defendants were acting within the scope of their employment as Naval officers and, indeed, plaintiffs' allegations support that determination. The Court finds that substitution is appropriate.

The Court also concludes that the United States' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (Dkt.# 14-1) be granted as to all claims, including plaintiff's claim under the APA. As set forth more fully in the Report and Recommendation, plaintiffs' claims against the Department of Defense and the Department of the Navy are, in fact, claims against the United States, and, absent waiver, sovereign immunity shields the United States and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States has not waived its immunity; the FTCA does not provide for relief directly against the departments, agencies or instrumentalities of the United States, see 28 U.S.C. §§ 2674, 2679(a); and constitutional tort claims under Bivens are not actionable directly against agencies of the United States, Meyer, 510 U.S. at 486, 114 S.Ct. 996.

Plaintiffs' claims directly against United States also fail. Again, plaintiffs cannot state a Bivens claim directly against the United States. See Meyer, 510 U.S. at 485, 114 S.Ct. 996. As the magistrate judge points out, plaintiff's claim for restitution under the Victims of Crime Act borders on the frivolous. The right to restitution in 42 U.S.C. § 10606 appears in the context of sentencing a convicted criminal under 18 U.S.C. §§ 3663, 3664. There is no allegation of ongoing or contemplated criminal prosecution in this matter.

Plaintiffs' FTCA claims against the United States are barred by the Feres doctrine because Commander Daugherty is claiming injuries resulting from activity "incident to service." 340 U.S. at 146, 71 S.Ct. 153; see also United States v. Johnson, 481 U.S. 681, 686, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).4 As the magistrate judge stated, "all relevant activity in this case is military in nature...." Report and Recommendation, Dkt. # 28, at 1305. Whether Captain Toennies had any legal authority to issue orders affecting Commander Daugherty is not material to this determination. Cf. United States v. Stanley, 483 U.S. 669, 680-81, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (the officer-subordinate relationship between a plaintiff and the alleged tort feasor is irrelevant for purposes of a Feres inquiry).5

Plaintiffs' Complaint also fails to state a claim for relief under the FTCA. All of plaintiffs' claims are premised on an alleged violation of federal law: plaintiffs argue that Captain Toennies violated provisions of Title 10 of the United States Code when he took various actions affecting Commander Daugherty and his wife. Yet, "the FTCA's waiver of sovereign, immunity is limited to conduct for which a private person could be held liable under state tort law, see 28 U.S.C. §§ 1346(b), 2674...." United States v. Agronics, 164 F.3d 1343, 1345 (10th Cir.1999). No private analog exists for Captain Toennies' alleged improper exercise of command authority over Commander Daugherty in violation of federal law.

The magistrate judge recommended that the United States' motion to dismiss be denied as to plaintiffs' APA claims because (a) the parties had failed to address the factors articulated in Mindes v. Seaman, 453 F.2d 197, 201-202 (5th Cir.1971), which were adopted by the Tenth Circuit in, Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981), and (b) the magistrate judge was not persuaded that, if plaintiffs could establish that the actions of which they complain were justiciable under the Mindes factors, plaintiffs would be unable to establish that the actions were final agency actions pursuant to the provisions of 5 U.S.C. §§ 551(13), 702, 704. Accordingly, the magistrate judge directed the parties to address the Mindes factors and the justiciability of plaintiffs' APA claims in their objections to the Report and Recommendation. The Court now has the benefit of these arguments, and finds that the plaintiffs' APA claims are not justiciable.

Plaintiffs' APA claims are premised on plaintiffs' request that the Court order the setting aside and expungement from Commander Daugherty's personnel record all actions, findings, and conclusions resulting from Captain Toennies' alleged unlawful exercise of command authority over him. Under the first step of the two-step justiciability test set forth in Mindes, "[a] court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available...

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