LaPATOUREL v. United States

• Decision Date: 16 March 1977
• Docket Number: Civ. No. 76-0-180,76-0-181.
• Citation: 430 F. Supp. 956
• Parties: Edward LePATOUREL, Plaintiff, v. UNITED STATES of America, Defendant. Valerie LePATOUREL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nebraska

430 F. Supp. 956

Edward LePATOUREL, Plaintiff, v. UNITED STATES of America, Defendant.

Valerie LePATOUREL, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. Nos. 76-0-180, 76-0-181.

United States District Court, D. Nebraska.

March 16, 1977.

Thomas J. Culhane of Erickson, Sederstrom, Johnson & Fortune, Omaha, Neb., for plaintiff.

Daniel E. Wherry, U. S. Atty., and Thomas D. Thalkin, Asst. U. S. Atty., (for District of Nebraska), Omaha, Neb., for defendant.

HANSON, District Judge.

The primary question presented in these cases is whether a United States District Court Judge, while driving his personal automobile between designated court points during working hours, is an "employee of the government" within the meaning of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.

Plaintiffs brought these related negligence actions in the state district court of Nebraska, seeking damages for injuries alleged to have occurred when their automobile was struck from the rear on Interstate Highway 80 in Sarpy County, Nebraska. Named as the sole defendant was Robert V. Denney, a United States District Court Judge for the District of Nebraska, who plaintiffs assert was driving the car which struck their vehicle. In reliance on Judge Denney's role as a federal employee, the United States removed the cases to federal district court under the government drivers section of the Federal Tort Claims Act, 28 U.S.C. § 2679(b).¹ Having done so, the government now urges that summary judgment be granted in its favor since the plaintiffs have failed to file their administrative claim with the appropriate agency under 28 U.S.C. § 2675. In response, plaintiffs seek to have the cases remanded to state district court for the reason that Judge Denney is not an "employee of the government" within the meaning of the Tort Claims Act. With the issue so framed, the cases appear to present a question of first impression under the Act.

I.

Title 28 of the United States Code, § 1346(b), provides that

Subject to the provisions of the Federal Tort Claims Act, the district courts, ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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.

The definitional section of the Tort Claims Act, 28 U.S.C. § 2671, states that

"Employee of the government" includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

Section 2671 further provides that

... The term "Federal agency" includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.

As one author has noted, the Act's "federal agency" definition "is a somewhat unsatisfactory one, for it leaves doubt whether the legislative and judicial branches are covered by its terms." Jayson, Handling Federal Tort Claims, § 202.01 at 8-7 (1974). This doubt has not been dissipated by the few federal cases which have addressed the question of whether federal judges are "employees of the government" within the meaning of the Act.²

Cromelin v. United States, 177 F.2d 275 (5th Cir. 1949), cert. denied, 339 U.S. 944, 70 S.Ct. 790, 94 L.Ed. 1359 (1950), appears to be the first reported decision to touch upon the Act's coverage where a federal judge is involved. In that case the Tort Claims Act was invoked by a plaintiff seeking to recover damages from the United States based upon the acts of a federal district judge and a bankruptcy trustee in handling a prior case involving the plaintiff. The lower court sustained the government's motion to dismiss, stating orally:

It is in substance an effort to recover damages for what the complaint charges is malfeasance, misfeasance, and nonfeasance of a federal district judge, an action to recover damages for things that he did or failed to do as a judge in a matter pending before him. I hold that neither under the Tort Claims Act nor under any other Act of Congress can a federal district judge be held personally liable for any of his judicial decisions; and that the United States is not liable and not suable under the Tort Claims Act for the judicial decisions of a federal judge on matters heard and determined by him. I hold further that a federal district judge is not an employee of the United States, nor is his trustee in bankruptcy.

Id. at 277. This dismissal was upheld by the Fifth Circuit Court of Appeals, based upon the following reasoning:

We think the holdings are correct. The trustee, like a receiver, is an officer of court, appointed by the court, directed by the court, and paid by the court from the funds in the court. He is in no sense an agent or employee or officer of the United States. The judge is appointed by the President and confirmed by the Senate and paid from the United States treasury, but in trying cases he is a member of the independent judiciary and is not under the control of the United States any more than a member of the legislative department is in legislating. Such officers are not within the contemplation of the Tort Claims Act. If even gross errors of the judges are to be compensable out of the Treasury of the United States, very clear language would be required in a law so ordering.

Id. Clearly, the appellate court's affirmance was based in large part on its view that the suit was against "a judge acting as such, subject to correction on appeal." Id. at 278.

A similar factual context existed in the other reported Tort Claims Act decision based on the alleged tortious conduct of a federal judge, Foster v. MacBride, 521 F.2d 1304 (9th Cir. 1975). The Foster court held that dismissal of a damage suit against a federal judge "for certain of his allegedly improper rulings in another action" was barred by the doctrine of judicial immunity. Id. at 1305. The Court further stated as follows:

In his Brief on Appeal, appellant contends that the Federal Tort Claims Act ... provides a proper jurisdictional basis for suit. However, a federal district judge in trying cases is a member of the independent judiciary and is not under the control of the United States. Therefore, he is not an "employee of the government" as required by 28 U.S.C. § 1346 Cromelin v. United States ....

Id.

The precedential weight of Foster and Cromelin is undercut by the fact that the result reached therein would be the same in both cases even if the judges had been deemed to be "government employees." Foster recognized that judicial immunity can properly be urged by individual judges who find themselves defendants based upon acts they engaged in while on the bench. When the United States is sued under the Act, instead of the individual judge, the "discretionary function or duty" exception to liability of 28 U.S.C. § 2680(a) can be urged to achieve the same result. See Coates v. United States, 181 F.2d 816, 819 (8th Cir. 1950). Thus, because Cromelin and Foster both dealt with suits based upon the on-the-bench activities of federal judges, a finding of Torts Claims Act coverage would not have been determinative — the discretionary act exception appears to be as broad as judicial immunity. Here, of course, Judge Denney is not being sued for rulings he made in a case involving the plaintiffs. Instead, it is asserted that he negligently caused them damage while driving his car, albeit in furtherance of court-related activity. The discretionary function exception is plainly inapposite here, Dalehite v. United States, 346 U.S. 15, 28, 34, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), yet Judge Denney was acting in a court-related role. The question of Tort Claims Act coverage thus becomes crucial.³

Given the absence of controlling caselaw precedent, the parties' primary arguments have focused on the words of the Act itself. As previously noted, the term "employee of the government" includes officers and employees of "any federal agency." Section 2671 of the Act defines "federal agency" to "include" (1) executive departments, (2) military departments, (3) independent establishments of the United States, and (4) corporations acting as instrumentalities or agencies of the United States. The definition expressly excludes "any contractor with the United States." 28 U.S.C. § 2671.

Plaintiffs assert that the federal judiciary falls outside each of the "agencies" specified by the Act. There can be no dispute that the federal judiciary is not a "military department" or a "corporation" acting as an instrumentality of the government. Similarly, the judiciary is not an executive department as that term is illustrated in 5 U.S.C. § 101.⁴ Finally, the judiciary would not qualify as an "independent establishment" as defined in 5 U.S.C. § 104.⁵ The gist of plaintiffs' argument is that since Congress defined "federal agencies" to include four specific types of governmental entities, but not the judiciary, the latter is thus excluded from the Act's coverage.

In response, the defendant stresses the fact that the statutory definition of section 2671 provides that the term "federal agency" includes the four enumerated examples. To the United States, "it is implied that all other government agencies, other than those specifically excluded, are covered by the Tort Claims Act." In support of this interpretation, the...