Hartwig v. U.S., 1:92 CV 1315.

• Decision Date: 10 November 1999
• Docket Number: No. 1:92 CV 1315.,1:92 CV 1315.
• Citation: 80 F.Supp.2d 765
• Parties: Earl V. HARTWIG, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Ohio

Page 765

80 F.Supp.2d 765

Earl V. HARTWIG, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 1:92 CV 1315.

United States District Court, N.D. Ohio, Eastern Division.

November 10, 1999.

Walter P. Bubna, Cleveland, OH, Robert C. Seldon, Washington, DC, Sarah Levitt, Washington, DC, for plaintiffs.

Marie Louise Hagen, Washington, DC, United States Department of Justice, Steven B. Snyder, Washington, DC, United States Department of Justice, for defendant.

ORDER

OLIVER, District Judge.

This action arises out of the April 19, 1989, explosion aboard the U.S.S. Iowa, in which U.S. Naval Petty Officer Clayton Hartwig, along with forty-six of his fellow sailors, was killed. The Plaintiffs in this action are Mr. Earl Hartwig and Mrs. Evelyn Hartwig, Clayton's parents, and Ms. Kathleen Hartwig Kubicina and Ms. Cynthia Werthmuller, Clayton's sisters. Plaintiffs seek to recover damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., alleging that the Defendant United States intentionally and negligently inflicted emotional distress on them by misconducting the investigation into the explosion on the U.S.S. Iowa. The United States has moved to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, arguing that the Plaintiffs' claims of emotional distress arise out of defamation, an intentional tort for which the United States has not waived sovereign immunity. (See Doc. No. 234).

This case was originally assigned to Judge Paul Matia. On May 14, 1993, Judge Matia denied a motion by the United States to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction. No discovery had been completed as of this date, and Judge Matia determined that it was unclear from the face of the Complaint that Plaintiffs' claims of emotional distress were dependent on defamatory statements made by the government about Clayton Hartwig. This case was reassigned to former Chief Judge George White on November 23, 1993, and thereafter was referred by Judge White to Magistrate Judge David Perelman on February 11, 1994. On March 14, 1997, Defendant United States moved again, after the completion of discovery, to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction. Magistrate Judge David Perelman issued a Report and Recommendation on January 26, 1999, recommending that Defendant's motion be granted. Magistrate Judge Perelman determined that several years of discovery had revealed that defamation was essential to Plaintiffs' claims and therefore their claims were barred by sovereign immunity. On February 8, 1999, this case was reassigned from the docket of Judge White to the docket of this court.

Plaintiffs filed their objections to the Report and Recommendation on February 9, 1999, and on that same date, moved for a sixty-day extension of time to file a supplemental memorandum in further support of their objections. Defendant United States filed its response to Plaintiffs' objections on February 26, 1999. On April 20, 1999, Plaintiffs' motion for a sixty-day extension was granted as moot as the sixty days had already expired. On April 21, 1999, Plaintiffs filed a Supplemental Memorandum in Support of their Objections to the Report and Recommendation. Plaintiffs terminated their counsel in or around May of 1999. Thereafter, Plaintiffs' counsel filed a motion for leave to withdraw on May 26, 1999, and by letter dated May 28, 1999, requested that Plaintiffs be allowed an additional sixty days to file further supplemental objections to the Magistrate Judge's Report and Recommendation. This court granted the motion of Plaintiffs' counsel for leave to withdraw on July 2, 1999. By that same order, Plaintiffs' new counsel was given forty-five days to enter objections to the Report and Recommendation. On August 2, 1999, Plaintiffs' new counsel filed their Supplemental Memorandum in Support of Plaintiffs' Objections to Magistrate Judge's Report and Recommended Decision ("Plaintiffs' Supplemental Objections"). Defendant United States responded on September 23, 1999, and Plaintiffs submitted their reply on September 27, 1999.

The court has reviewed all of the relevant documents in this matter, and in so doing, has decided to adopt the Magistrate Judge's Report and Recommendation (Doc. No. 260). Therefore, the United States' Motion to Dismiss (Doc. No. 234) is granted.

I. FACTS

On April 19, 1989, while the U.S.S. Iowa was engaged in training exercises off the coast of Puerto Rico, a series of explosions occurred in Turret II of the ship, causing the deaths of forty-seven servicemen working in that turret. U.S. Naval Petty Officer Clayton Hartwig was on board the U.S.S. Iowa, working in the center gun of Turret II, when the explosion occurred. He was among those servicemen killed in the blast.

From the beginning, Clayton Hartwig was a suspect in the Navy's investigation into the cause of the explosion. In connection with the investigation, the Naval Investigative Service ("NIS") conducted interviews with the Plaintiffs, searched Clayton Hartwig's bedroom at his parents' home, and made copies of documents, correspondence and photographs found in the Hartwigs' home.

At the heart of Plaintiffs' complaint are their allegations concerning the government's release of information regarding the investigation to the media, including the results of interviews with Plaintiffs, friends, acquaintances and shipmates of Clayton Hartwig. The allegedly "unverified and untrue" information released to the media by the government included:

a.) That Clayton Hartwig committed suicide by causing the explosion, stating that he was despondent because a "special relationship" between Hartwig and Kendall Truitt, a shipmate, had "gone sour," thus implying a homosexual relationship.

b.) That Clayton Hartwig caused the explosion because of a murder-suicide pact.

Complaint at ¶ 23. A report of the investigation was also released by the Navy and Rear Admiral Richard D. Milligan. The contents of this report were discussed in a press conference held by Milligan which was broadcast by the national media. In the report, Milligan stated that Clayton Hartwig had caused the explosion and had "stage[d] his death in such a fashion that he hoped it would appear an accident." Id. at ¶ 29. The majority of Plaintiffs' lengthy brief in opposition to the United States' Motion to Dismiss details numerous other leaks of information to the media regarding the investigation.

Plaintiffs also claim that they were injured by acts other than the dissemination of information to the public regarding Clayton Hartwig's status as a suspect in the investigation. For example, they claim they were injured when the Navy sent a letter to each family member stating that Clayton was suspected of causing the explosion and when the Navy privately briefed the family members about the results of the investigation and its belief that Clayton was the cause of the explosion. Finally, Plaintiffs claim that the Navy fabricated a videotape which it showed them in their own home and which was "designed to convince them that their son had set the explosion." Pls.' Supplemental Objections at 2.

II. INTRODUCTION

The doctrine of sovereign immunity cloaks the United States with immunity from suits to which it has not consented. It is a jurisdictional bar that operates when one has brought a suit against the United States for money or property damages or some form of coercive injunctive relief. A variety of explanations and justifications for the doctrine have been advanced over the years, including that sovereign immunity is necessary to protect the national treasury, that the Government would not be able to perform its duties properly if it were subjected to suit and that an ultra vires act of a public official is not the act of his government. See Lester S. Jayson and Robert C. Longstreth, Handling Federal Tort Claims: Administrative and Judicial Remedies, § 2.01 at 2-5 (1999); Willoughby on the Constitution of the United States § 915, at 1422-1423 (2d ed.1929). To those with claims that would be successful if brought against a private party, sovereign immunity sometimes produces harsh and seemingly unjust results. As has been explained,

[W]hatever its rationale, ... [the] effect [of the doctrine] for over 150 years was to give the United States Government a privileged position of legal irresponsibility for the torts of its employees, and this at the expense of the innocent victims of those torts. Throughout this period, those who suffered damage because of the negligence of an employee of the United States had the dismal choice of a suit against the employee personally — a defendant of doubtful financial resources — or a petition to Congress to grant a private relief measure which was a tortuous and frequently hopeless route to recovery.

Lester S. Jayson and Robert C. Longstreth, Handling Federal Tort Claims: Administrative and Judicial Remedies, § 2.01 at 2-5 (1999).

In 1946, the FTCA was enacted to ameliorate the injustice sometimes caused by the inability to sue the United States on claims barred by sovereign immunity. It provides that sovereign immunity is waived as to:

claims against the United States, for money damages, ... for injury or loss of property, or 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.

28 U.S.C. § 1346(b). However, at the same time Congress provided this waiver of sovereign immunity, it also enacted exceptions to such waiver. At issue herein is 28 U.S.C. § 2680(h), the "intentional tort" exception to the FTCA. It provides that immunity is not waived as to:...