Guccione v. US, 85 Civ. 3333 (CBM).

• Decision Date: 10 September 1987
• Docket Number: No. 85 Civ. 3333 (CBM).,85 Civ. 3333 (CBM).
• Parties: Robert C. GUCCIONE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

670 F. Supp. 527

Robert C. GUCCIONE, Plaintiff, v. UNITED STATES of America, Defendant.

No. 85 Civ. 3333 (CBM).

United States District Court, S.D. New York.

September 10, 1987.

Norman Roy Grutman, Jewel Bjork, Thomas Marino, Grutman Miller Greenspoon & Hendler, Robert Gold, Elliot Silverman, Richard Ben-Veniste, Peter Isakoff, Gold & Wachtel, New York City, Ben-Veniste & Shernoff, Washington, D.C., for plaintiff.

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (David R. Lewis, Asst. U.S. Atty. of counsel), New York City, for defendant.

OPINION

MOTLEY, District Judge.

Plaintiff Robert C. Guccione has brought this lawsuit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for injuries he allegedly sustained during the course of the FBI's highly publicized ABSCAM investigation of government corruption in the late 1970's. Guccione is a well known magazine publisher and entertainment entrepreneur. He claims that his attempts to obtain financing for a contemplated Atlantic City, New Jersey casino were obstructed by the malicious and intentionally tortious conduct of an ill supervised FBI operative, Melvin Weinberg, thus causing Guccione injury in excess of four million dollars.

The Government has now moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the grounds that this court is without jurisdiction over plaintiff's claim because of sovereign immunity. The Government has moved in the alternative for summary judgment on the ground that this action is barred by the statute of limitations.

Because, for the reasons that follow, this court finds that plaintiff's claim is barred both on sovereign immunity and statute of limitations grounds, the Government's motions are granted and this case is dismissed.

Sovereign Immunity

a. Background

Plaintiff alleges in his complaint that he was injured by the FBI's negligent supervision and control of Melvin Weinberg, a key operative in the FBI's ABSCAM investigation in the late 1970's. Specifically, plaintiff alleges that "in carrying out ABSCAM, the FBI employed or otherwise engaged Melvin Weinberg," an individual with a known history of illegal fraudulent activity, "to assist in the investigation as an informant and operative, and that Weinberg rendered his services ... while under the control of the FBI and its special agents." (Complaint, ¶¶ 5, 6, 7). According to plaintiff, Weinberg posed as the agent of a fictitious Arab investment company called Abdul Enterprises at the direction and under the supervision of the FBI. (Complaint ¶ 8).

During the period of time that ABSCAM was being carried out, plaintiff was attempting to obtain financing for an Atlantic City casino project. In connection with this project, Guccione's application for a casino license was pending before various state and local New Jersey authorities. (Complaint ¶ 9, 10). Plaintiff alleges that Melvin Weinberg, acting "with the full knowledge, acquiescence, support, cooperation, assistance and/or direction of his supervising FBI agents," "undertook to persuade plaintiff to commit illegal acts," including the bribery of a state casino licensing official. (Complaint ¶ 11). When Guccione, according to his complaint, refused to participate in the illegal activities, "Weinberg engaged in a series of intentional, wrongful acts including ... defaming plaintiff, interfering with plaintiff's business venture, and making false and unfounded representations concerning plaintiff's integrity and character to prospective lenders...." (Complaint ¶ 13). As a result of Weinberg's defamatory misrepresentations, plaintiff was allegedly unable to obtain financing to complete the casino project.

The gravamen of plaintiff's claim against the United States is that the "FBI had a duty to control the conduct of Weinberg so as to prevent him from causing injury to Guccione...." (Complaint ¶ 17). Plaintiff claims that the "FBI breached that duty by failing to use requisite care in selecting, training, instructing, supervising and controlling Weinberg in his role as agent for `Abdul Enterprises,'" and that plaintiff was injured as a proximate result of this negligence.

b. Discussion

The United States is immune from suit absent an express waiver of its sovereign immunity. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Absent such a waiver, the federal courts are without subject matter jurisdiction to entertain a suit against the United States. Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976).

The Federal Tort Claims Act waives the government's sovereign immunity for certain claims caused by the "negligent or wrongful act or omission" of a government employee. 28 U.S.C. § 1346(b). The FTCA is only a limited waiver of immunity, however, and Section 2680 of the Act sets forth several categories of tort claims for which the United States has not waived its immunity. One of these, the "intentional torts exception" to the FTCA's waiver of immunity, 28 U.S.C. § 2680(h), clearly bars plaintiff's claims in this suit.

Section 2680(h) provides that the United States' waiver of sovereign immunity under the FTCA shall not apply to "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."¹ (emphasis added). The Second Circuit has interpreted the clear language of the statute as barring all claims "arising out of" the enumerated intentional torts, regardless of whether the claims are pleaded forthrightly in terms of the intentional tort itself, or indirectly, as claims for negligent supervision of the intentional tortfeasor, or negligent failure to protect the victim from the intentional tortfeasor's harmful propensities. Miele v. United States, 800 F.2d 50 (2d Cir.1986); Johnson v. United States, 788 F.2d 845 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 315, 93 L.Ed.2d 288 (1986). See also United States v. Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985) (plurality opinion); Thigpen v. United States, 800 F.2d 393 (4th Cir.1986); Satterfield v. United States, 788 F.2d 395, 399-400 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 117-18 (5th Cir.1985); Wine v. United States, 705 F.2d 366 (10th Cir.1983); Naisbitt v. United States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980).

As stated by the court in Miele,

The intentional tort exception to the Act bars not only claims for assault and battery, but also any claim arising out of the assault and battery. "It is inescapable that the phrase `arising out of assault or battery' is broad enough to encompass claims sounding in negligence." (citing United States v. Shearer, 105 S.Ct. at 3043).

Allowing claims against the government that are stated in negligence, but actually arise from an assault and battery would defeat Congress' purpose to bar suits against the government for injuries caused by a government employee's commission of assault and battery. (citing Johnson v. United States, 788 F.2d 845, 850 (2d Cir.1986)).

Miele v. United States, 800 F.2d at 52 (2d Cir.1986) (emphasis in original).

The Second Circuit's reasoning in Johnson was equally broad and explicit:

It is ... clear that the claim here is for injuries caused by the employee's assault and battery and that, absent the assault and battery, no claim could exist.... To permit such a claim to be stated in terms of a negligence theory ... would defeat Congress' purpose in enacting § 2680(h). The claim, although stated in terms of negligence, would still be for injuries caused by and arising out of the assault and battery.

Johnson v. United States, 788 F.2d at 850-51 (2d Cir.1986) (emphasis in original) (citations omitted).

In the present case, plaintiff alleges that he suffered injuries in excess of four million dollars caused by the defamatory misrepresentations and other wrongful acts of FBI operative Melvin Weinberg. Plaintiff also alleges the actual participation of FBI agents in Weinberg's various intentional torts by virtue of their "cooperation, assistance and/or direction" in Weinberger's activities. (Complaint ¶ 11). In the face of the FTCA's unambiguous refusal under 28 U.S.C. § 2680(h) to recognize claims for intentional torts, however, plaintiff's theory of government liability is that the FBI was negligent in its selection, training, and supervision of Weinberg. (Complaint ¶ 18).

There can be no question, from the clear language of plaintiff's complaint, that Guccione's claims arise out of the alleged intentional torts of both Weinberg and the FBI's own agents. Thus, regardless of whether they are pleaded as claims grounded in the intentional torts themselves, or as claims against the FBI for its alleged negligent supervision and control of Weinberg, Guccione's claims are barred by the intentional torts exception to the FTCA, § 2680(h), and by the Second Circuit's broad and logical interpretation of this section in Miele and Johnson.

Plaintiff has argued that his claims are not barred by § 2680(h) or by the holdings in Johnson and Miele because Weinberg was not an official government employee at the time he committed the intentional torts of which plaintiff here complains. Plaintiff contends that although under current Second Circuit law the United States could not be liable for the negligent supervision of Weinberg had he been a formal government employee, because Weinberg was a mere "informant" or "operative" of the FBI, see Complaint ¶ 5, the government may indeed be liable for injuries arising out of Weinberg's intentional torts by virtue of FBI negligence in supervising and controlling him. Guccione relies primarily on the case of Panella v. United States, 216 F.2d 622 (2d Cir.1954) for this proposition.

In Panella v. United States, 216 F.2d 622 (2d Cir....