Matlack, Inc. v. Treadway

• Decision Date: 13 February 1990
• Docket Number: Civ. A. No. 3:89-1536.
• Citation: 729 F. Supp. 1574
• Court: U.S. District Court — Southern District of West Virginia
• Parties: MATLACK, INC., a Delaware Corporation, Plaintiff, v. Jeffrey A. TREADWAY, Defendant.

729 F. Supp. 1574

MATLACK, INC., a Delaware Corporation, Plaintiff, v. Jeffrey A. TREADWAY, Defendant.

Civ. A. No. 3:89-1536.

United States District Court, S.D. West Virginia, at Huntington.

February 13, 1990.

John S. Haight, Kay, Casto, Chaney, Love & Wise, Charleston, W.Va., for plaintiff.

Steven Horn, Asst. U.S. Atty., Charleston, W.Va., for defendant.

MEMORANDUM OPINION AND ORDER

STAKER, District Judge.

This case is currently before the court on a motion to dismiss, pursuant to Rule 12(b)(1) and Rule 12(h)(3), Fed.R.Civ.P., for lack of subject matter jurisdiction, which has been filed by the United States Attorney on behalf of the defendant. The plaintiff has moved that the motion be denied or that the plaintiff be granted an extension of time to respond to the motion so that it may engage in discovery. The court is of the opinion that the defendant's motion should be granted, the plaintiff's motion denied, and the case dismissed for want of subject matter jurisdiction.

I. FACTS

The relevant facts are not complex and require little elucidation. The complaint alleges that on July 14, 1989, while the plaintiff's tractor-trailer was being driven on a public highway in the state of West Virginia, a tractor-trailer driven by the defendant pulled out in front of the plaintiff's truck from the berm of the road without warning and in a negligent manner. It is further alleged that this action by the defendant resulted in a collision between the two trucks and that the plaintiff has suffered damages by way of the destruction of its trailer, damage to its tractor, and the resultant loss of use of the tractor, inter alia. Therefore, the plaintiff demands judgment against the defendant in the amount of one hundred and twenty-five thousand dollars ($125,000.00). This court, it is alleged, has jurisdiction of the action pursuant to diversity jurisdiction, 28 U.S. C.A. § 1332 (West 1966 & Supp.1989), as the plaintiff is a Delaware corporation, the defendant is a West Virginia resident, and the amount in controversy exceeds fifty thousand dollars ($50,000.00).

II. MOTION TO DISMISS

In lieu of an answer by the defendant, the United States Attorney for the Southern District of West Virginia has filed a motion to dismiss, alleging that the court does not have subject matter jurisdiction of the cause, and that it should be dismissed pursuant to Fed.R.Civ.P. 12(h)(3). As grounds for this motion, it is alleged that at the time of the accident the defendant was a member of the West Virginia Army National Guard (the Guard) and was engaged in training or duty pursuant to 32 U.S.C.A. § 503 (West 1959) and, therefore, the plaintiff's exclusive remedy is an action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671-2680 (West 1965 & Supp.1989). Since the plaintiff has not first presented an administrative claim to the appropriate federal agency, as required by 28 U.S.C.A. § 2675, this court lacks subject matter jurisdiction to decide the case.

The United States has certified, pursuant to 28 U.S.C.A. § 2679(d)(1), that the defendant was acting within the scope of his employment and line of duty as an employee of the United States at the time of the incident. A notarized affidavit executed by Colonel Manuel Goble, Chief of Staff of the Guard, states the same and, in addition, that no administrative claim has been filed, according to his knowledge and the records of the Guard.

Plaintiff responds to the motion by asking that it be denied, or, in the alternative, that the court grant an extension of time for discovery and factual development before requiring a substantive response to the motion. As support for its motion for an extension of time, the plaintiff argues that the court is not required to accept the certification of the United States Attorney or the affidavit of Colonel Goble as conclusive or dispositive of the issue raised in the motion to dismiss and that the plaintiff should be allowed to explore the "precise nature of defendant's activities on the day in question."

III. BACKGROUND

A. National Guard Members as Federal Employees —

In the past, members of a state's National Guard unit were not considered "employees" of the United States for purposes of rendering the United States amenable to suit under the FTCA, even when they were participating in two-week training exercises, as mandated by 32 U.S.C.A. § 502 (West Supp.1989), and even if they were driving vehicles supplied by the federal government. See Spangler v. U.S., 185 F.Supp. 531 (S.D.Ohio 1960). The cases uniformly held that National Guard members, with the exception of those serving the District of Columbia, were only "employees" if their unit was ordered into "active federal service." Compare Satcher v. United States, 101 F.Supp. 919 (W.D.S.C. 1952) with O'Toole v. United States, 206 F.2d 912 (3d Cir.1953) (District of Columbia members are employees of the United States because of "the uniquely different position" of the D.C. National Guard); see Annotation, Who is an "Employee of the Government" for Whose Conduct the United States May Be Held Liable Under the Federal Tort Claims Act — Federal Cases, 14 L.Ed.2d 892, 903 (1966).

Starting with the case of United States v. Holly, 192 F.2d 221 (10th Cir.1951), a line of cases held that civilian "caretakers" of government equipment were employees of the United States for FTCA purposes. In Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965), vacated on other grounds 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1965), the Court rejected this line of cases, holding that members of a state National Guard unit were not federal employees, whether they were "caretakers" or military members, and that "the United States cannot be held liable under the Tort Claims Act for their negligence in either capacity." Id. 381 U.S. at 46, 85 S.Ct. at 1297, 14 L.Ed.2d at 209. The Court relied on congressional purpose and administrative practice to conclude "that civilian as well as military personnel of the Guard are to be treated for the purposes of the Tort Claims Act as employees of the States and not of the Federal Government." Id. at 53, 85 S.Ct. at 1300, 14 L.Ed.2d at 212. In 1968, however, Congress enacted the National Guard Technicians Act, substituting "Technicians: employment, use, status" for "Caretakers and clerks" in the catchline of 32 U.S.C.A. § 709 (West Supp.1989) and providing that such a "technician ... is ... an employee of the United States." 32 U.S.C.A. § 709(d). Thereby, Congress legislatively overruled one of the holdings of Maryland v. United States, supra.

B. 1981 Amendment to the Federal Tort Claims Act —

The FTCA was amended in 1981 to afford protection from liability for negligent conduct to "members of the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of Title 32" and to make the United States government liable for such conduct. 28 U.S.C.A. § 2671; see also Rhodes v. United States, 760 F.2d 1180, 1183 (11th Cir. 1985); Holdiness v. Stroud, 808 F.2d 417 (5th Cir.1987); United States v. State of Hawaii, 832 F.2d 1116, 1118 (9th Cir.1987). The amendment specifically states that such a member is an "employee of the government" and "the only proper defendant in a suit under the Act ... is the United States." Holdiness, 808 F.2d at 425; 28 U.S.C.A. § 2671.

C. 1988 Amendment to the Federal Tort Claims Act —

The FTCA was further amended in 1988 by the enactment of the Federal Employees Liability Reform and Tort Compensation Act, which became effective on November 18, 1988. The stated purpose of this Act was to "protect federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of federal employees with an appropriate remedy against the United States." Liability Reform Act, § 2(b). "To achieve this purpose, the Act states that the remedies provided by 28 U.S.C. Sections 1346(b), 2672 are to be the exclusive remedy for torts committed by federal employees while acting in the scope of their employment, and precludes any action against the employee himself." Mitchell v. United States, 709 F.Supp. 767, 768 (W.D.Tex.1989).

When suit is originally brought against an individual federal employee, the Act provides that the United States "shall be substituted as the party defendant" upon certification by the Attorney General that the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose." Liability Reform Act at Section 6, amending 28 U.S.C. section 2679(d). Upon certification, the action is simply to be "deemed an action against the United States." Id. By using the words "shall be substituted" and "shall be deemed" Congress has expressed its intent that the substitution of the United States as party defendant be the automatic result of certification by the Attorney General that the employee was acting within the scope of his office.

Id. at 768 (emphasis in original). "Indeed, the Act makes no provision for judicial review of the Attorney General's determination that an employee was acting within the scope of his employment." Id., n. 4.

IV. ANALYSIS

The various amendments to the FTCA apply to the present case, as the accident involved here occurred subsequent to their effective dates of enactment.

After an exhaustive review of the caselaw, this court has been unable to locate a case which specifically holds that a National Guard member, sued for alleged negligent acts committed within the scope of his or her employment after the effective date of the 1981 amendment to 28 U.S.C.A. § 2671, is immune from liability for such negligence and that any action must lie against the United States as the proper defendant under the FTCA. Perhaps this is because such holding is found in the express language of the FTCA, as amended in 198...