Meagher v. Heggemeier
| Decision Date | 30 August 2007 |
| Docket Number | Civil No. 06-3124 (JRT/RLE). |
| Parties | Patrick M. MEAGHER, Plaintiff, v. Terry P. HEGGEMEIER, Defendant. |
| Court | U.S. District Court — District of Minnesota |
This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendant's Motion to Substitute and Dismiss, and upon the Plaintiff's cross-Motion to Remand. At the time of the Hearing, the Plaintiff Patrick M. Meagher ("Meagher") appeared by Ronald J. Riach, Esq., and the Defendant Terry P. Heggemeier ("Heggemeier") appeared by Patricia R. Cangemi, Assistant United States Attorney. For reasons which follow, we recommend that Meagher's Motion be denied, that Heggemeier's Motion to substitute the United States as the named Defendant be granted, and that the action be dismissed, with prejudice.
This action arises out of a lawsuit for defamation, and intentional infliction of emotional distress, which was filed by Meagher, who is a retired Colonel, against Heggemeier, who is a Brigadier General, with both being members, at all relevant times, in the Minnesota Air National Guard. In his Complaint, see, Docket No. 1-1, Meagher alleges that, in July of 2004, he was an applicant for the position of Commander of the Minnesota Air National Guard, and that Heggemeier defamed him, during a meeting of the Board of Officers ("Board"), which consisted of Heggemeier, Major General Larry W. Shellito ("Shellito"), and Brigadier General (Rtd.) Mark R. Ness ("Ness"). See, Declaration of Ness, Docket No. 37, at p. 1. According to Meagher, Heggemeier made statements to Meagher's military supervisors, at the time of the Board's proceedings, suggesting that Meagher had inappropriate contacts with a subordinate female officer, and was "mentally unstable."
Heggemeier removed this case to Federal Court, and subsequently, filed a Motion to Substitute and Dismiss, see, Docket No. 27, in which he asserts that the United States of America ("United States") should be substituted as the only proper Defendant and that the entire action should be dismissed, with prejudice, based upon the Feres doctrine of intra-military immunity. See, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Meagher has filed a cross-Motion to Remand to State Court, and argues that this Court lacks jurisdiction since, at all relevant times, Heggemeier was acting as a State employee. See, Docket No. 35.
A. Heggemeier's Motion to Substitute the United States as the Defendant
"Heggemeier is an employee of the United States of America," see Notice of Removal, Docket No. 1-1, at p. 1, and the United States Attorney, for the District of Minnesota, has certified that Heggemeier "was acting within the scope of his employment as an employee of the National Guard pursuant to 32 U.S.C. § 505 at the time of the alleged conduct in the complaint." See, Certification, Docket No. 1-5. Since Meagher's Complaint alleges tortious acts against Heggemeier, we review the pending Motion to Substitute, and to Dismiss, under the standard applicable to actions under the Federal Tort Claims Act, Title 28 §§ 2671, et seq. ("FTCA").
1. Standard of Review. The FTCA is a limited waiver of sovereign immunity that authorizes private tort actions against the United States, "under circumstances where the United States, if a private person, would be liable to the complainant in accordance with the law of the place where the act or omission occurred." United States v. Olson, 546 U.S. 43, 43, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005), citing Title 28 U.S.C. § 1346(b)(1); Sosa v. Alvarez-Machain, 542 U.S. 692, 699; 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)("The FTCA `was designed primarily to remove the sovereign immunity of the United States from suits in tort, and with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.'"), citing, and quoting, Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), and Title 28 U.S.C. § 2674; Barnes v. United States, 448 F.3d 1065, 1066 (8th Cir.2006); Benter v. United States, 2006 WL 3759756 at *1 (D.Minn., December 21, 2006), affd sub nom. Benter v. Iowa Dept. of Transportation, 221 Fed.Appx. 471, 2007 WL 1040350 at *1 (8th Cir., April 9, 2007).
Under the FTCA, the Federal Government may be sued for the negligent or wrongful acts of "any employee of the government while acting within the scope of his office or employment" under circumstances in which the United States would be liable were it a private employer. See, Title 28 U.S.C. §§ 1346(b), and 2674; St. John v. United States, 240 F.3d 671, 676 (8th Cir.2001); see also, Primeaux v. United States, 181 F.3d 876, 880 n. 4 (8th Cir.1999), cert. denied, 528 U.S. 1154, 120 S.Ct. 1159, 145 L.Ed.2d 1071 (2000); Anthony v. Runyon, 76 F.3d 210, 212-13 (8th Cir.1996).
Title 28 U.S.C. § 2679(d)(1) provides that, if an action is commenced against an individual employee of a Federal agency, rather than against the United States, the Attorney General is charged with making the initial determination of whether that employee was acting within the scope of his employment, see, Heuton v. Anderson, 75 F.3d 357, 359-60 (8th Cir.1996), and the United States may be substituted for the named defendant, based upon a scope of employment certification by the Attorney General. See, Osborn v. Haley, ___ U.S. ___, 127 S.Ct. 881, 894, 166 L.Ed.2d 819 (2007); Smith v. Wintersteen, 97 Fed. Appx. 69, 69 (8th Cir.2004); Larsen v. Frederiksen, 277 F.3d 1040, 1041 (8th Cir. 2002); Lawson v. United States, 103 F.3d 59, 60 (8th Cir.1996).
The certification by the Attorney General, that the employee was acting within the scope of his employment, "does not conclusively establish as correct the substitution of the United States as defendant in place of the employee," see, Mc-Adams v. Reno, 64 F.3d 1137, 1145 (8th Cir.1995), as our Court of Appeals requires "at least limited judicial review of the * * * scope of employment before substituting the United States as a defendant." See, Forrest City Mach. Works, Inc. v. United States, 953 F.2d 1086, 1088 (8th Cir.1992); see also, McAdams v. Reno, supra, citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 436, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), and Brown v. Armstrong, 949 F.2d 1007, 1011 (8th Cir.1991). Thus, certification is prima facie evidence that the challenged conduct was within the scope of employment, and a plaintiff must come forward with specific facts to rebut the certification, and to establish that the employee was not acting within the scope of his Federal employment. See, McAdams v. Reno, supra at 1145; Anthony v. Runyon, supra at 214-15; Heuton v. Anderson, supra at 360; Lawson v. United States, supra at 60.
Title 28 U.S.C. § 2671 provides that, for FTCA purposes, members of the National Guard are "employee[s] of the government" when they are engaged in "training or duty," as defined under Title 32 U.S.C. § 505. See, Title 28 U.S.C. § 2671; Murray ex rel. Murray v. United States, 258 F.Supp.2d 1006, 1009 (D.Minn. 2003); Walsh v. United States, 31 F.3d 696, 699 (8th Cir.1994). For a member of the National Guard to act "within the scope of his office or, employment" under Section 2671, the evidence must establish that he was acting "in the line of duty" — a finding that is governed by the applicable State law of respondeat superior. See, St. John v. United States, 240 F.3d 671, 676 (8th Cir.2001); Primeaux v. United States, supra at 882 n. 1 [listing cases]; Walsh v. United States, supra at 699; Forrest City Mach. Works, Inc. v. United States, supra at 1088 n. 5.
Under Minnesota law, in cases asserting an intentional tort, an employee acts within the scope of his employment when "he is performing services for which he has been employed or while he is doing anything which is reasonably incidental to this employment." McAdams v. Reno, supra at 1145, quoting Marston v. Minneapolis Clinic of Psychiatry and Neurology, 329 N.W.2d 306, 312 (Minn.1982). Therefore, in order to find that an intentional tort was within the scope of employment, the tort must have taken place within the work-related limits of time and place, and must have been related to the employee's duties. See, Hagen v. Burmeister & Assoc., 633 N.W.2d 497, 504 (Minn.2001), citing Lange v. Nat'l Biscuit Co., 297 Minn. 399, 211 N.W.2d 783, 786 (1973).
In weighing the second prong, Courts consider the foreseeability of the employee's actions, with actions being deemed foreseeable when, "in the context of a particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Fahrendorff ex rel. Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 912 (Minn.1999). In weighing foreseeability, Minnesota Courts will determine if the alleged intentional tort was a "well-known hazard" of the industry. Id. at 911; Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., supra at 311. An Evidentiary Hearing, so as to determine if an employee was acting within the scope of his or her employment, is only necessary if there are material facts in dispute. See, McAdams v. Reno, supra at 1145, citing Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.1991).
2. Legal Analysis. The Attorney General has certified that Heggemeier was a member of the National Guard, who was acting within the scope of his Federal employment pursuant to Title 32 U.S.C. § 505, at the...
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