Matsko v. U.S.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: Nygaard
• Citation: Matsko v. U.S., 372 F.3d 556 (3rd Cir. 2004)
• Decision Date: 16 June 2004
• Docket Number: No. 03-3666.,03-3666.
• Parties: John J. MATSKO, III; Teresa A. Matsko, Husband and Wife, Appellants v. UNITED STATES of America; Rudy Kotor.

372 F.3d 556

John J. MATSKO, III; Teresa A. Matsko, Husband and Wife, Appellants v. UNITED STATES of America; Rudy Kotor.

No. 03-3666.

United States Court of Appeals, Third Circuit.

Argued May 11, 2004.

June 16, 2004.

Vincent J. Barbera, (Argued), Barbera, Clapper, Beener, Rullo & Melvin, Somerset, for Appellant.

Christine A. Sanner, (Argued), Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, Rudy Kotor, Johnstown, for Appellees.

Before NYGAARD, McKEE, and WEIS, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

John J. Matsko III¹ filed a lawsuit sounding in tort for injuries inflicted by Rudy Kotor, a federal employee, during a business visit to the offices of the Mine Safety and Health Administration ("MSHA"). Matsko's amended complaint asserted two theories under which he claimed the United States was liable for his injuries. First, he argued that Kotor's actions can be imputed to the United States, as his employer. Second, Matsko asserted that the United States was liable because, despite a duty owed to him as a business invitee, it failed to protect him from injury by Kotor. The District Court concluded that it lacked subject matter jurisdiction because the United States enjoys sovereign immunity, and that immunity had not been waived as to either of Matsko's claims. The Court thus dismissed the suit in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1).

Because we agree with the District Court that the Federal Tort Claims Act ("FTCA") does not waive the United States' immunity for intentional assaults by government workers who are acting outside the scope of their employment, we will affirm the dismissal of Matsko's first claim. We will reverse, however, the dismissal of Matsko's claim that the United States is liable because Kotor's supervisors and coworkers did not act to prevent the assault. If, on remand, Matsko is able to prove that Kotor's supervisors and coworkers were negligent, then his claim would be squarely within the FTCA's waiver of sovereign immunity.

I.

Matsko, the Director of Safety for PBS Coals, Inc., visited the MSHA offices for a meeting with Earl Miller, a MSHA inspector.² The meeting was conducted at Miller's desk, with Miller "pulling up" a chair from fellow inspector Kotor's desk for Matsko to sit in. Once the meeting was underway, Kotor returned to his desk. In a voice characterized by Matsko as "loud and menacing," Kotor told Matsko "You're in my ____ ing chair." Then, before Matsko was able to give the chair back, and without provocation, Kotor slammed Matsko's face into a briefcase that was lying on Miller's desk. Matsko suffered a fractured vertebra and herniated disc in his neck.³

On his way out of the MSHA offices, Kotor's supervisors and coworkers gave Matsko the impression that they were not surprised by Kotor's behavior. One of the MSHA inspectors told Matkso "I told you don't piss Rudy [Kotor] off." A supervisor smirked at the comment.

In accordance with the FTCA, Matsko initially filed an administrative tort claim with the Department of Labor.⁴ When that claim was denied, Matsko filed suit in federal court against Kotor and the United States, seeking $5 million in damages. Before answering Matsko's complaint, the government filed a motion under Federal Rule of Civil Procedure 12(b)(1) seeking to dismiss the complaint for lack of subject matter jurisdiction. In response to Matsko's amended complaint, which was filed shortly thereafter, the government filed another 12(b)(1) motion. The District Court granted the motion, and this appeal followed.⁵

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 over the District Court's final order dismissing the case, and we exercise plenary review. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000).

In general, the United States enjoys sovereign immunity from lawsuits seeking money damages. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States may waive sovereign immunity, however, and allow itself to be sued, if it does so unequivocally in a statute. See Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). The FTCA is the statute that waives immunity, in part, for tort claims against the United States. See 28 U.S.C. § 2674 ("[t]he United States shall be liable [with a few exceptions], respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances").

On appeal, Matsko attempts to demonstrate that, despite the District Court's decision to the contrary, his claims fall within the FTCA's waiver of sovereign immunity.⁶ Only if the FTCA waives sovereign immunity would the District Court have jurisdiction over the claims. See 28 U.S.C. § 1346(b).

A. Liability for Kotor's assault

Matsko's first argument is that the District Court erred when it held that, because of sovereign immunity, it lacked subject matter jurisdiction to hear the claim that the United States is liable for Kotor's assault. Matsko refers to various FTCA sections that he asserts waive the United States' sovereign immunity. Unfortunately for Matsko, none of these provisions encompasses situations like the one presented here. We will affirm, therefore, the District Court's dismissal of Matsko's claim that the United States is liable for Kotor's actions.

The first question resolved by the District Court was whether Kotor was within his job duties when he assaulted Matsko. The Court concluded he was not. Because the United States is only liable for negligent or wrongful acts of government employees acting within their scope of employment, the conclusion that Kotor was not within his job duties meant that sovereign immunity precluded the suit. See 28 U.S.C. § 2679(b)(1).

Our task is to decide whether Kotor's outburst was within the scope of his government employment. We assess whether Kotor was acting within the scope of his employment under the law of Pennsylvania, because that is where the incident occurred. See 28 U.S.C. § 1346(b)(1); see also Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir.1993). In Pennsylvania, courts apply the Restatement (Second) of Agency's § 228 to determine whether conduct is within the scope of employment. Section 228 considers four prongs indicative of conduct within the scope of employment: (1) the conduct is of the kind the employee is employed to perform; (2) the conduct occurs within the time and space of employment; (3) the conduct is actuated at serving the employer; and (4) any force used is foreseeable by the employer. Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 410 A.2d 1270, 1272 (1979) (citing § 228). Unless the litigant satisfies each prong, the court will conclude that the act in question was not within the scope of employment.

First, we must articulate what "act" we are contemplating. Matsko argues that the District Court erred when it defined Kotor's assault as the "act in question." He asserts that the relevant act was Kotor's retrieval of his chair, the use of which was integral to his job as a MSHA inspector. Simply stated, Matsko characterizes the act incorrectly. We will not focus on the minimally offensive conduct-retrieval of the chair-when it was the aggregate of Kotor's actions that caused Matsko's injury. The retrieval of the chair would have been the act in question only if no assault had occurred. Plainly, an assault happened. Therefore, to determine whether Kotor was acting within the scope of his employment, the relevant "act" began when Kotor approached Matsko and ended when Kotor assaulted him, using excessive force. See Costa v. Roxborough Mem'l Hosp., 708 A.2d 490, 494 (Pa.Super.Ct.1998) (defining the conduct in question to be the intentional assault).

That the § 228 test is applicable is uncontested, as is the fact that Kotor's conduct occurred within the time and space of his employment. Like the District Court, however, we are not persuaded that Matsko has satisfied, or could satisfy, the other three prongs of § 228. Defying both the first and fourth prongs, Kotor's mine inspector job description does not involve or even contemplate violence.⁷ Contrary to the third prong, Kotor's act was motivated by personal animus, rather than any intent to serve the United States.⁸

Even reading the facts in the light most favorable to Matsko, as we are required to do, we cannot conclude that Kotor was acting within the scope of his employment when he assaulted Matsko. Thus, the District Court was correct that § 2679(b)(1) of the FTCA does not provide a waiver of the United States' sovereign immunity to create liability for Kotor's assault.⁹

Next, Matsko asserts that his claim fits within the FTCA's special treatment of assaults by investigative or law enforcement officers. The United States is not liable for claims involving assault, battery, or other intentional torts by federal employees, unless the government actor was an investigative or law enforcement officer. 28 U.S.C. § 2680(h).

As we are bound by our earlier precedent, we conclude that Kotor should not be treated as an "investigative or law enforcement officer" for purposes of determining whether sovereign immunity attaches. While Kotor was an inspector for the MSHA, which included authority to inspect mines and investigate possible violations, the FTCA did not intend to bring within its scope actions by "officers" not within the bounds of an investigation. See Pooler v. United States, 787 F.2d 868, 872 (3d Cir.1986) (noting that Congress intended the investigative officer exception to apply only to conduct "in the course of a search, a seizure, or an arrest").

Matsko suggests that under Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), we must read the § 2680(h) exception more broadly than in Pooler to encompass all activities undertaken by investigative officers. See Wright v. United...