Fowler v. U.S.

• Decision Date: 31 May 2011
• Docket Number: No. 10–1046.,10–1046.
• Citation: Fowler v. U.S., 647 F.3d 1232 (10th Cir. 2011)
• Parties: Jason FOWLER, Plaintiff–Appellant,v.UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

647 F.3d 1232

Jason FOWLER, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 10–1046.

United States Court of Appeals, Tenth Circuit.

May 31, 2011.

Robert T. Fishman of Denver, CO(Bruce J. Kaye and Mari C. Bush of Kaye and Bush, LLC, Denver, CO, with him on the briefs), for Plaintiff–Appellant.Marc A. Bonora, Assistant United States Attorney (David M. Gaouette, United States Attorney, and Michael C. Johnson, Assistant United States Attorney, with him on the briefs), Denver, CO, for Defendant–Appellee.Before LUCERO, SEYMOUR, TACHA, Circuit Judges.SEYMOUR, Circuit Judge.

Jason Fowler appeals the district court's determination that the United States was entitled to summary judgment on a tort action he filed against the United States and an employee of the U.S. Air Force, Sean Garrick.We reverse.

I.

On June 4, 2006, in Boulder County, Colorado, Mr. Fowler was injured when a car driven by Sean Garrick collided with Mr. Fowler and his motorcycle.Mr. Garrick was an active-duty member of the U.S. Air Force, stationed at Buckley Air Force Base in Aurora, Colorado.He was in Boulder County¹ for a three-day temporary duty assignment (“TDY”).

On his TDY assignment, Mr. Garrick worked twelve-hour shifts (7 a.m. to 7 p.m.) for three consecutive days.He was required to report for duty thirty minutes before his shift began.He was also required to rest for at least eight hours before each shift.Mr. Garrick testified that these shifts are demanding; at the end of the twelve-hour shift, Mr. Garrick would be “pretty much too tired to do anything else besides eat and sleep.”Dep. of Garrick, Aplt.App.at 291.

The Air Force provided Mr. Garrick, and other employees assigned to the Boulder Facility, with hotel accommodations during TDY.²While on this assignment, Mr. Garrick was also eligible for a per diem allowance and mileage reimbursement for the cost of travel between Buckley and the Boulder Facility.Although Mr. Garrick could have stayed in the hotel the night before his shift began, he instead spent the night of June 3rd in Aurora.The next morning, he drove the hour and fifteen minute commute to the Boulder Facility for his shift.

The accident occurred on the first day of Mr. Garrick's TDY.Shortly before 1:00 p.m., Mr. Garrick's commanding officer, Sergeant Lucas, authorized Mr. Garrick to go on a break until 2:30 p.m., so that an Air Force reservist could use his work station.During these breaks, the Air Force does not require employees to spend their time in specific ways, but typically when employees “get a break, they just go and relax at the hotel.”Dep. of Sgt. Lucas, Aplt.App.at 306.Mr. Garrick decided to use his break to go to the hotel and sleep.During the break, Mr. Garrick continued to be “on duty.”On his way to the hotel, Mr. Garrick and Mr. Fowler were in a car accident with each other.After the accident, Mr. Garrick was picked up by a co-worker and returned to the Boulder Facility to complete his shift.

Mr. Fowler filed suit against Mr. Garrick and the United States under the Federal Tort Claims Act (“FTCA”).³28 U.S.C. § 1346(b).Mr. Fowler contended the United States should be liable for the collision because it “is liable for the negligent acts of its employees committed in the scope and course of their employment.”Complaint, Aplt.App.at 9(citing28 U.S.C. § 1346(b)).He also alleged state law claims against Mr. Garrick.

The Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679, commonly known as the Westfall Act, “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.”Osborn v. Haley,549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819(2007)(citing28 U.S.C. § 2679(b)(1)).Under the Westfall Act, the Attorney General may certify that the employee “was acting within the scope of his office or employment.”28 U.S.C. § 2679(d)(1).If the Attorney General declines to make such a certification, the employee may petition the trial court“to find and certify that the employee was acting within the scope of his office or employment.”28 U.S.C. § 2679(d)(3).If such certification is granted, the United States is substituted as defendant in place of the employee, and the litigation is governed by the FTCA.28 U.S.C. § 2679(d)(4).

After limited discovery, Mr. Garrick moved the district court to certify that he was acting within the scope of his employment, to substitute the United States as the sole partydefendant, and to dismiss him from the case.See28 U.S.C. § 2679.The following day, the United States filed a motion to dismiss Mr. Fowler's complaint under Fed.R.Civ.P. 12(b)(1), contending the district court lacked subject matter jurisdiction over the action because the FTCA requires the tortfeasor to be within the scope of his employment when the tortious act occurs.The United States denied that Mr. Garrick was acting within the scope of his employment at the time of the accident, and argued it should therefore be dismissed from the lawsuit.It also filed a response to Mr. Garrick's motion to certify, pointing out the Attorney General had declined to certify that Mr. Garrick was acting as a federal employee when the accident occurred.It noted that Mr. Garrick had the burden to prove otherwise.

Because both Mr. Garrick's and the United States's motions related to Mr. Garrick's scope of employment, the court decided Mr. Garrick's certification and the United States's jurisdictional motions together.With respect to Mr. Garrick's certification motion, the court stated:

The Tenth Circuit has adopted the view that “certification, although subject to de novo review, is prima facie evidence that an employee's challenged conduct was within the scope of his employment.The plaintiff then bears the burden of rebutting the scope-of-employment certification with specific facts.”Richman v. Straley,48 F.3d 1139, 1145(10th Cir.1995).Therefore, Garrick bears the burden to present “whatever evidence is necessary to persuade [the Court] that [the] ... alleged act, not found by the U.S. Attorney to be within the scope of employment, falls within the scope of employment.”Lyons v. Brown,158 F.3d 605, 610–11(1st Cir.1998).

Fowler v. United States,No. 08–cv–02650–PAB–BNB, 2009 WL 5217980, at *2(D.Colo.Dec. 28, 2009)(alterations in original)(citations omitted).With respect to the United States's motion to dismiss Mr. Fowler's claim against it for lack of subject matter jurisdiction, the district court said:

As the United States points out, “[w]hen reviewing a factual attack on subject matter jurisdiction,....[a]court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”Holt v. United States,46 F.3d 1000, 1003(10th Cir.1995).Nevertheless, “a court is required to convert a Rule 12(b)(1)motion to dismiss into a Rule 12(b)(6) motion or a Rule 56summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.”Id.As the Third Circuit noted in CNA v. United States,535 F.3d 132, 140(3rd Cir.2008), a great deal turns on this question because Rule 12(b)(6) or Rule 56 would provide more procedural safeguards to the plaintiff than does Rule 12(b)(1).For example, a district court acting under Rule 12(b)(1) may independently evaluate the evidence regarding disputes over jurisdictional facts, rather than assuming that the plaintiff's allegations are true.Id.“The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.”Holt,46 F.3d at 1003.

...[H]ere, both the substantive claim and the jurisdictional issue require application of the FTCA....Therefore, and because all the parties have relied upon evidence outside the pleadings and none has indicated any objection to the Court converting the motion to one for summary judgment, the Court shall convert the United States' motion into one for summary judgment.

Id. at *2–3.⁴Having thus framed the motions before it, the court concluded:

Here, if Garrick has met his burden of presenting evidence sufficient to persuade the Court that he was acting within the scope of his employment, then the United States necessarily will have failed to establish that it is entitled to judgment as a matter of law.Conversely, if summary judgment for the United States is warranted here, Garrick will have failed to meet his burden of proof.Id. at *3.

The district court granted the United States's motion for summary judgment, dismissed the United States from the case, and denied Mr. Garrick's motion for certification.Id. at *6.Subsequently, Mr. Fowler and Mr. Garrick filed a joint stipulation for the dismissal, with prejudice, of all Mr. Fowler's remaining claims against Mr. Garrick, reserving Mr. Fowler's right to pursue his FTCA claim against the United States.Mr. Fowler then appealed the court's summary judgment decision in favor of the United States.

At oral argument before this court, the United States for the first time asserted that we lack jurisdiction over this appeal because, it said, the Westfall Act decision made the appeal of summary judgment moot.We ordered supplemental briefing on this issue.⁵

For the reasons explained below in Part II.B., we conclude that the district court's Westfall decision regarding Mr. Garrick did not moot Mr. Fowler's appeal.We first address the district court's decision granting summary judgment to the United States.

II.

A.Summary Judgment.

Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the movant is entitled to a judgment as a matter of law.”Fed.R.Civ.P. 56(c).“When applying this standard, we view the evidence and draw reasonable inferences...