McGowan v. Williams, 79-2541

• Decision Date: 27 June 1980
• Docket Number: No. 79-2541,79-2541
• Citation: 623 F.2d 1239
• Parties: James N. McGOWAN, Plaintiff-Appellant, v. David C. WILLIAMS, Gordon E. Herbert, Steve Finney, Yellow Cab Company, a Foreign Corporation, Junis Echols, and Chicago Transit Authority, a Municipal Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1239

623 F.2d 1239

James N. McGOWAN, Plaintiff-Appellant, v. David C. WILLIAMS, Gordon E. Herbert, Steve Finney, Yellow Cab Company, a Foreign Corporation, Junis Echols and Chicago Transit Authority, a Municipal Corporation Defendants-Appellees.

No. 79-2541.

United States Court of Appeals Seventh Circuit.

Argued April 22, 1980.

Decided June 27, 1980.

Michael P. Casey, Chicago, Ill., for plaintiff-appellant.

Thomas P. Sullivan, U. S. Atty., Daniel C. Murray, Asst. U. S. Atty., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, PELL and BAUER, Circuit Judges.

BAUER, Circuit Judge.

This tort suit was filed in state court and later removed by the United States Attorney to federal court under the provisions of the Federal Drivers Act, 28 U.S.C. § 2679(b)-(e). The issue here is whether the suit is time-barred because removal occurred after the applicable statute of limitations had run. We hold that the suit was timely because it was initially filed within the limitations period even though that filing occurred in state court. We therefore reverse the judgment of the district court.

I

On January 12, 1977, plaintiff-appellant James N. McGowan was allegedly injured in a collision involving a Yellow Cab taxi, a Chicago Transit Authority bus and an automobile driven by United States Secret Service Agent David C. Williams. McGowan was informed on the night of the accident that a Government vehicle was involved in the collision.

On January 6, 1978, six days prior to the running of the state statute of limitations for filing a lawsuit against the Chicago Transit Authority, McGowan filed an action in Illinois state court against the above-named defendants. Three days later, on January 9, 1978, plaintiff filed an injury claim for $101,000 with the United States Secret Service pursuant to the Federal Tort Claims Act. ¹ On January 26, 1978, the Secret Service sent McGowan a letter by registered mail advising him that his administrative claim had been denied and that he was entitled to institute a suit in the appropriate United States District Court not later than six months from the date of the letter. ²

On July 25, 1978, one day short of the six month period, plaintiff voluntarily dismissed his state court suit with leave to file an amended complaint. On the following day McGowan filed an amended complaint in state court identical to the original complaint. ³ A default judgment was entered against defendant Williams on October 25, 1978. On that day the United States Attorney for the Northern District of Illinois filed his appearance in the case. The United States Attorney also filed a motion to vacate the default judgment entered against Williams, a certification that Williams was acting within the scope of his employment at the time of the accident, and a petition for removal of the matter to federal district court. On November 1, 1978, the state court vacated the default judgment entered against Williams and removed the case to federal district court.

Following the removal of McGowan's suit to federal district court, the Government filed an answer and moved for dismissal of the federal defendant. The Government asserted that the district court lacked subject matter jurisdiction because the action against the federal defendant was barred by the statute of limitations of the Federal Tort Claims Act, 28 U.S.C. § 2401(b). The Government argued that could plaintiff's action have been filed timely only if it was filed in federal district court no later than July 26, 1978, six months from the denial of the administrative claim made on the Secret Service. The Government argued that, in filing his action in state court, plaintiff chose the wrong forum in which to bring his suit and therefore the action could never have been timely filed under Section 2401(b).

The district court ruled that the Federal Drivers Act, ⁴ which governed plaintiff's action, permitted suits against federal employees to be filed initially in state court. Even though the suit was filed in state court within six months of the denial of plaintiff's administrative claim, the court held that since it was not commenced in federal court during that period it was barred by Section 2401(b). Pending appeal of its ruling to this court, the lower court stayed its order remanding plaintiff's claims against the non-federal defendants to state court.

II

The Federal Drivers Act, 28 U.S.C. § 2679(b)-(e), is part of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The statute of limitations for that Act, 28 U.S.C. § 2401(b), provides that a tort claim against the United States is barred "unless action is begun within six months after . . . notice of final denial of the claim by the agency to which (the claim) was presented." Plaintiff filed a claim in state court within six months of the denial of his administrative claim. No suit existed in federal court, however, until October 25, 1978, when the Government filed its Notice of Filing of Petition for Removal. The issue here is whether plaintiff's suit, filed within six months in state court, satisfies the limitations period for purposes of the Federal Drivers Act. We hold that it does.

The Federal Drivers Act makes an action against the United States government the exclusive remedy against a federal driver involved in an accident while operating a motor vehicle within the scope of his employment. 28 U.S.C. § 2679(b). The Act grants tort immunity to the individual defendant, but only if he was acting within the scope of his employment at the time of the accident. Id.; see Jones v. Polishuk, 252 F.Supp. 752 (E.D.Tenn.1965). Since the scope of employment in issue might not be finally determined until trial, Congress was concerned that a plaintiff would be remediless because the state statute of limitations might bar a subsequent state suit. Thus Congress provided that if upon motion before trial the district court rules that the driver's conduct at the time of the accident was not covered by the Act, the proceeding "shall be remanded to the State court" so that the plaintiff can proceed against the driver in his individual capacity. 28 U.S.C. § 2679(d). As stated in the Senate Report,

The express recognition of a right to have a case remanded for further proceedings in the State court in the event of a determination that there is a no remedy within the meaning of subsection (b) assures the continuity of the proceeding so that the applicable statute of limitations will not run and have the effect of barring a remedy against the individual driver where he is found not to be entitled to the protection contemplated in this bill.

S.Rep.No.736, 87th Cong., 1st Sess. (1961) reprinted in (1961) U.S.Code Cong. & Admin.News, 2784, 2788.

Although the remedy against the United States is exclusively federal, Congress anticipated that state suits would continue to be filed. Section 2679(c) of the Act therefore directs the Attorney General to defend a federal driver in a civil proceeding "in any court." 28 U.S.C. § 2679(c). The statute also requires, however, that any state suit "shall be removed . . . to the district court upon certification by the Attorney General that the defendant employee was acting within the scope of his employment" at the time of the accident. Id. § 2679(d). Thus, once the Attorney General verifies that the federal employee acted within the scope of his employment at the time of the accident, the provisions of the Tort Claims Act apply and plaintiff's state court suit is deemed a tort action brought against the United States. 28 U.S.C. § 2679(d); Henderson v. United States, 429 F.2d 588, 590 (10th Cir. 1970); Santoro v. United States, 229 F.Supp. 707, 708 (N.D.Ill.1964). The Attorney General's certification means that the plaintiff can no longer sue the driver in his individual capacity; thus, the United States becomes the only proper defendant to the suit. 28 U.S.C. § 2679(d); Smith v. United States, 328 F.Supp. 1224, 1226 (W.D.Tenn.1971); Hoch v. Carter, 242 F.Supp. 863, 866 (S.D.N.Y.1965); Perez v. United States, 218 F.Supp. 571, 572 (S.D.N.Y.1963). If, on the other hand, the district court finds that the federal driver was not acting within the scope of his employment at the time of the accident, the United States can no longer be liable. The action must then be remanded to state court where it is to be recommenced against the federal driver in his individual capacity. 28 U.S.C. § 2679(d); Van Houten v. Ralls, 411 F.2d 940, 942 (9th Cir.), cert. denied, 396 U.S. 962, 90 S.Ct. 436, 24 L.Ed.2d 426 (1969); Vantrease v. United States, 400 F.2d 853, 855 (6th Cir. 1968).

The provisions of Section 2679(d) expressly protect a plaintiff from the tolling of his state's statute of limitations in the event of an adverse ruling in the federal district court. The district court here, however, held that while a plaintiff's state rights are protected, his federal rights are not. According to the Government, no federal suit exists until the date of removal, which depends entirely upon the actions of the Attorney General. Since the Attorney General certified that the federal employee was acting within the scope of his employment at the time of the accident, plaintiff has no state remedy. But since the Attorney General did not remove the action until after the federal statute of limitations had run, plaintiff will have no federal remedy either.

The unfortunate result of the district court's ruling is that a plaintiff who first initiates suit in state court is without any remedy at all if removal is not effected until after the federal statute of limitations has run. To avoid such an inequitable result, all the courts which have considered the issue have held that the original date of filing is effective for the purposes of the statute of limitations provided by 28 U.S.C. § 2401(b). Henderson v. United States ; Whistler v. United States, 252 F.Supp. 913 (N.D.Ind.1966); Reynaud v. United...