Merlonghi v. United States

• Decision Date: 14 September 2010
• Docket Number: No. 09-2387.,09-2387.
• Citation: 620 F.3d 50
• Parties: Frank A. MERLONGHI, Plaintiff, Appellant, v. UNITED STATES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

620 F.3d 50

Frank A. MERLONGHI, Plaintiff, Appellant,
v.
UNITED STATES, Defendant, Appellee.

No. 09-2387.

United States Court of Appeals,First Circuit.

Heard July 26, 2010.
Decided Sept. 14, 2010.

620 F.3d 51

620 F.3d 52

Benjamin R. Zimmermann, with whom Neil Sugarman and Sarah H. Gottlieb were on brief, for plaintiff, appellant.

Anita Johnson, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for defendant, appellee.

Before BOUDIN, GAJARSA, ^* and THOMPSON, Circuit Judges.

GAJARSA, Circuit Judge.

This appeal requires us to determine whether a federal employee was acting within the scope of his employment under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680 (2006). While driving home from work in a government vehicle, the employee collided with a motorcyclist. The motorcyclist, Frank A. Merlonghi, filed suit in the U.S. District Court for the District of Massachusetts against the United States under the FTCA for the actions of the employee, U.S. Special Agent Thomas Porro. The district court dismissed Mr. Merlonghi's claim for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because it determined that Mr. Porro was not acting within the scope of his employment at the time of the collision. We affirm.

I.

Mr. Porro was a Special Agent stationed in Boston, Massachusetts at the Office of Export Enforcement (“OEE”) of the U.S. Department of Commerce. He aided in criminal investigations and specialized in computer forensics. OEE authorized its special agents, including Mr. Porro, to drive government vehicles between work and home so that they would be available twenty-four hours a day for emergencies. This enabled special agents to leave directly from home to an investigation site or other work assignment.

On March 29, 2006, Mr. Porro was driving home from work in an unmarked government vehicle. At approximately 6:30 p.m., he was driving his vehicle east on Congress Street. When Mr. Porro turned right on Dorchester Avenue, his vehicle nearly collided with a motorcycle driven by Mr. Merlonghi's friend, Bartley Loftus. Mr. Merlonghi drove up in his motorcycle alongside Mr. Porro's vehicle and claims to have said, “Hey Pal, you almost hit my buddy.” App. 116. In contrast, Mr. Porro testified that Mr. Merlonghi said, “You're a f---ing a--hole. I ought to put a bullet in your head.” App. 147. In response, Mr. Porro reportedly said, “F-you. He cut me off.” App. 116.

Mr. Porro then drove away, but Mr. Merlonghi followed on his motorcycle, yelling and screaming. After another verbal exchange, Messrs. Porro, Merlonghi, and Loftus turned left from Dorchester Avenue onto Summer Street directly into rush hour traffic. On Summer Street, Messrs. Porro and Merlonghi swerved their vehicles back and forth towards each other.

At some point on Summer Street, Mr. Porro took out his revolver. Mr. Merlonghi testified that Mr. Porro pointed the gun at him. In contrast, Mr. Porro testified that he merely unholstered his gun and placed it on the passenger's seat beside him. Mr. Porro explained that he displayed his weapon because he “wanted to see if [Mr. Merlonghi] had any intention or ability to carry through the threat that he had just made.” App. 149. Upon seeing the gun, Mr. Merlonghi shouted to Mr. Porro, “What are you going to do, shoot me?” App. 123. Messrs. Porro and Merlonghi then continued driving along Summer Street, swerving back and forth, arguing with each other.

620 F.3d 53

While still on Summer Street, Mr. Merlonghi drove alongside Mr. Porro. Near the intersection of Summer Street and D Street, multiple witnesses testified that Mr. Porro's vehicle suddenly swerved hard to the left toward Mr. Merlonghi's motorcycle. In the words of one witness, Mr. Porro's vehicle made a “very hard, fast motion to the left.” App. 44. In contrast, Mr. Porro claimed that he thought he saw Mr. Merlonghi's motorcycle fall behind through his rearview mirror and that he merged quickly into the left lane to avoid a right-turn-only lane. Both parties agree, however, that when Mr. Porro entered the left lane, his vehicle struck Mr. Merlonghi's motorcycle, throwing him to the ground. Instead of stopping, Mr. Porro straightened out his damaged vehicle and sped away. As a result of the collision, Mr. Merlonghi suffered serious bodily injuries.

After the accident, Mr. Porro failed to contact his office or the police. He personally paid to repair the vehicle in a New Hampshire repair shop-even though OEE pays for the repair of damaged government vehicles. He later testified that he failed to report the accident to OEE because “[i]t wasn't inside the scope of my employment[;] it wasn't really a direct result.” App. 162.

Subsequently, Mr. Porro was indicted under the General Laws of Massachusetts on three counts: (1) aggravated assault and battery by means of a dangerous weapon (an automobile) in violation of chapter 265, section 15A, (2) assault by means of a dangerous weapon (a handgun) in violation of chapter 265, section 15B(b), and (3) leaving the scene of an accident causing personal injury in violation of chapter 90, section 24(2)(a 1/2)(1). See Commonwealth v. Porro, 74 Mass.App.Ct. 676, 909 N.E.2d 1184, 1186-87 (2009), review granted in part, 455 Mass. 1106, 920 N.E.2d 43 (2009). Mr. Porro was tried before a jury on all three counts. Id. at 1186. The jury convicted him of a lesser included offense of the first count for assault by means of a dangerous weapon (an automobile) and convicted him of the third count. Id. However, the jury acquitted him of the second count. Id. On appeal, the Appeals Court of Massachusetts affirmed his conviction on the third count. Id. at 1190. But the court reversed the jury's conviction on the lesser included offense because the jury convicted him of a crime for which he was not indicted in violation of Article 12 of the Massachusetts Declaration of Rights. Id. at 1190. The Massachusetts Supreme Judicial Court (“SJC”) granted Mr. Porro's subsequent appeal to determine whether he could be retried for the lesser included offense. Porro, 920 N.E.2d at 43. That appeal remains pending.

While the criminal action was proceeding, Mr. Merlonghi filed a civil complaint against the United States under the FTCA. He claimed that Mr. Porro caused him injuries while acting within the scope of his employment.

The government moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. The district court granted the government's motion. Ruling from the bench, the district court held that “on the undisputed record that's before the Court, as [a] matter of law[,] Mr. Porro was not within the scope of his employment.” App. 272 (Tr. 12:5-8) (alterations added). Based on Massachusetts common law, the district court found that (1) Mr. Porro “was not doing the customary duties that he was hired to perform,” (2) “[i]t was not [within] an authorized time or space,” and (3) “[h]e was not motivated with respect to this conduct by a purpose to serve the employer.” App. 272 (Tr. 12:8-12) (alterations added). In the alternative, the district

620 F.3d 54

court ruled “that on the undisputed facts of this record that [Mr. Porro's] conduct went beyond mere negligence and was reckless.” App. 272 (Tr. 12:13-15) (alteration added). In explanation of the alternative ruling, the district court stated, “Reckless conduct such as this can, I don't need to make a ruling like this, can make out under the laws of Massachusetts liability for the intentional tort of battery.” App. 272 (Tr. 12:15-18).

Mr. Merlonghi timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II.

The district court dismissed Mr. Merlonghi's complaint for lack of subject-matter jurisdiction because it concluded that Mr. Porro was not acting within the scope of his employment when he collided with Mr. Merlonghi. When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor. Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.2001). The district court may also “consider whatever evidence has been submitted, such as the depositions and exhibits submitted.” Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996).

On appeal, we review de novo a district court's legal determination that an employee acted outside the scope of his employment and that it lacks subject-matter jurisdiction under the FTCA. McIntyre v. United States, 545 F.3d 27, 40 (1st Cir.2008); Aversa, 99 F.3d at 1209.

The United States as a sovereign can be haled into court only if it consents to be sued. “It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.’ ” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)); see also McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.2006). To expose the United States to suit, Congress must “ ‘unequivocally’ ” waive sovereign immunity. Mitchell, 445 U.S. at 538, 100 S.Ct. 1349 (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)). By enacting the FTCA, Congress waived the immunity of the United States to suit for the tortious actions of federal employees.

Nevertheless, the United States' waiver of sovereign immunity under the FTCA has limits. The waiver is effective only for the acts or omissions of a federal employee within the scope of his employment. Under 28 U.S.C. § 1346(b)(1), district courts have jurisdiction over tort claims against...