Dillon v. STATE OF MISS., MILITARY DEPT.

• Decision Date: 25 May 1993
• Docket Number: 3:92-CV-0715LN.,Civ. A. No. 3:92-CV-0714LN
• Citation: 827 F. Supp. 1258
• Parties: Grace Ford DILLON, Conservator of the Person and Estate of Ronald S. Kelly, Plaintiff, v. STATE OF MISSISSIPPI, MILITARY DEPARTMENT, ARMY NATIONAL GUARD and/or Mississippi National Guard and United States of America, Defendants. Cynthia M. HOLLOWAY, Individually and as Mother and Next Friend of the Minors Christina Marie Byrd, Candice Lynn Byrd, Robert Howard May, and William Andrew May, Plaintiffs, v. STATE OF MISSISSIPPI, MILITARY DEPARTMENT, ARMY NATIONAL GUARD and/or Mississippi National Guard and United States of America, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

827 F. Supp. 1258

Grace Ford DILLON, Conservator of the Person and Estate of Ronald S. Kelly, Plaintiff, v. STATE OF MISSISSIPPI, MILITARY DEPARTMENT, ARMY NATIONAL GUARD and/or Mississippi National Guard and United States of America, Defendants.

Cynthia M. HOLLOWAY, Individually and as Mother and Next Friend of the Minors Christina Marie Byrd, Candice Lynn Byrd, Robert Howard May, and William Andrew May, Plaintiffs, v. STATE OF MISSISSIPPI, MILITARY DEPARTMENT, ARMY NATIONAL GUARD and/or Mississippi National Guard and United States of America, Defendants.

Civ. A. Nos. 3:92-CV-0714LN, 3:92-CV-0715LN.

United States District Court, S.D. Mississippi, Jackson Division.

May 25, 1993.

Lawrence A. Arcell, Barker, Boudreaux, Lamy & Foley, New Orleans, LA, William F. Riley, Riley & Pintard, Natchez, MS, for plaintiff.

Robert E. Sanders, Atty. General's Office, Jackson, MS, Robert A.K. Doehl, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion to dismiss of defendant United States of America. The plaintiffs, Grace Ford Dillon, Conservator of the Person and Estate of Ronald S. Kelly, and Cynthia M. Holloway, individually and as mother and next friend of the minors Christina Marie Byrd, Candice Lynn Byrd, Robert Howard May and William Andrew May, have, in response to the government's motion to dismiss, filed a motion to remand. The court concludes that plaintiffs' motion to remand should be denied. The court, however, will stay its consideration of the government's motion to dismiss in order to give plaintiffs an opportunity to respond to that motion.

On September 9, 1990, Chet May was killed and Ronald S. Kelly was rendered a quadriplegic as the result of injuries received during a training mission as guardsmen with the Mississippi Army National Guard. The men were engaged in a "helocasting" exercise performed by aviation and special forces units as part of their training and duties with the National Guard. On September 4, 1992, Kelly's conservator and May's heirs at law filed separate actions in the Circuit Court of the First Judicial District of Hinds County seeking to recover damages based on allegations that Kelly's injuries and May's death were caused by the negligence of the State of Mississippi Military Department Army National Guard and/or the Mississippi National Guard, as well as several persons who were Kelly's and May's superior officers in the training mission.¹

Based on 28 U.S.C. § 2679(d)(2), the case was timely removed to this court by the individual defendants, William E. Ogle, Jr., Kelly C. MacNealy, James K. West, William E. McIntosh, Benjie C. Jackson, Ronnie W. Howell, Donald D. Howarth and Allen E. Brewer, upon the certification of a designate of the United States Attorney General that at the time of the incident that is the subject of plaintiffs' complaints, the individual defendants were acting within the scope of their employment as employees of the United States. Upon removal, this court ordered that the United States be substituted as a defendant in place of the individual defendants and dismissed the individual defendants from the action.

On November 16, 1992, the United States moved to dismiss this suit, contending the suit is barred under the doctrine set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and reaffirmed in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), because Kelly and May were engaged in activity incident to their military service at the time of the accident that gave rise to this action. Rather than responding to defendants' motion, plaintiffs moved to remand this action to the state court from which it was removed, contending that the defendant National Guard members were not federal employees or, alternatively, were not acting within the scope of their federal employment at the time they may have been negligent in connection with Kelly's and May's injuries.

MOTION TO REMAND

The issue presented by plaintiffs' motion to remand is whether the United States was properly substituted as defendant in place of the individual defendants. The resolution of this issue requires a determination by this court of whether, at the time of the incident, these individuals were federal employees acting within the scope of their federal employment.

Section 1346(b) of Title 28, United States Code, grants the federal courts exclusive jurisdiction of civil actions on

claims against the United States, for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the 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.

The remedy provided by section 1346(b) is "exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim...." 28 U.S.C. § 2679(b).

In this vein, the Federal Tort Claims Act, as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly referred to as the Westfall Act), 28 U.S.C. § 2679(b)(1), provides that where a federal employee is sued for monetary damages arising from a common law tort allegedly committed by the federal employee acting within the scope of his employment,

upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

A scope of employment certification is, by the explicit directive of the statute, conclusive for purposes of removal. Mitchell v. Carlson, 896 F.2d 128, 131 (5th Cir.1990). However, the United States concedes, and the majority of courts have held that a scope certification is subject to judicial review for purposes of substitution. That is, once a case has been removed to federal court upon a scope of employment certification, the plaintiff is entitled to litigate before the court the question of whether the employee was acting within the scope of his employment at the time of the incident. See North Shore Strapping Co. v. United States, No. 92-3730, 1993 WL 141054, 1993 U.S.App. LEXIS 10539 (6th Cir.1993) (scope certification subject to review by district court); Schrob v. Catterson, 967 F.2d 929 (3d Cir.1992); Brown v. Armstrong, 949 F.2d 1007, 1011 (8th Cir.1991); Meridian Intern. Logistics, Inc. v. United States, 939 F.2d 740 (9th Cir.1991); Hamrick v. Franklin, 931 F.2d 1209 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991); Brown v. Armstrong, 949 F.2d 1007, 1011 (8th Cir.1991); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538 (11th Cir.1990), amended, 924 F.2d 1555 (11th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991); Melo v. Hafer, 912 F.2d 628 (3d Cir.1990), aff'd on other grounds, ___ U.S. ___, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Nasuti v. Scannell, 906 F.2d 802 (1st Cir.1990); Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir.1990). Contra Johnson v. Carter, 983 F.2d 1316 (4th Cir.1993) (district court erred in not giving conclusive effect to the Attorney General's scope certification); Mitchell v. Carlson, 896 F.2d 128 (5th Cir. 1990); Aviles v. Lutz, 887 F.2d 1046 (10th Cir.1989).² If the court determines, upon de novo review, that the employee was acting within the scope of his employment at the time of the incident, then the plaintiffs' exclusive remedy is an action against the United States under the Federal Tort Claims Act. If, on the other hand, the court concludes that the employee was not acting within the scope of his employment at the time of the incident, then the proper defendant is the individual employee, not the United States; and in that event, the United States will not be substituted as defendant and the case will be remanded to state court. See Schrob, 967 F.2d at 934 n. 8.

Though subject to judicial review, an Attorney General's scope certification is prima facie evidence that the employee's challenged conduct was within the scope of employment. Schrob, 967 F.2d at 935. The plaintiff who challenges a scope certification thus bears the burden of proving that the challenged conduct did not occur within the scope of federal employment. See id.; Brown, 949 F.2d at 1012; S.J. & W. Ranch, 913 F.2d at 1543. To sustain his burden, the plaintiff "must come forward with specific facts rebutting the government's scope-of-employment certification." Schrob, 967 F.2d at 935; Brown, 949 F.2d at 1543; Hamrick, 931 F.2d at 1211; Forrest City Mach. Works, 953 F.2d at 1088.

In the case sub judice, a designee of the Attorney General has certified that the individual guardsmen named as defendants were acting within the scope of their federal employment at the time of the incident that is the subject of this litigation³ and, consistent with the directive of § 2679(d), this court has substituted the United States as the party defendant in place of the individual defendants.⁴ Plaintiffs, however, have moved to remand this case to state court...