Petrousky v. US

• Decision Date: 16 January 1990
• Docket Number: No. 88-CV-755.,88-CV-755.
• Citation: 728 F. Supp. 890
• Parties: Walter G. PETROUSKY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of New York

728 F. Supp. 890

Walter G. PETROUSKY, Plaintiff, v. UNITED STATES of America, Defendant.

No. 88-CV-755.

United States District Court, N.D. New York.

January 16, 1990.

Walter G. Petrousky, Theresa, N.Y., pro se.

Frederick J. Scullin, Jr., U.S. Atty., William F. Larkin, Asst. U.S. Atty., N.D.N.Y., Syracuse, N.Y., for defendant.

MEMORANDUM-DECISION AND ORDER

MUNSON, District Judge.

The present action sounds in libel. Plaintiff worked for the United States Army as a civilian management analyst at Fort Drum. He brought an action in small claims court alleging that his supervisor, Martha S. Needling, had libelled him in five memoranda. For damages he sought $2,000. Subsequent to the institution of the lawsuit, the action was removed to this court and the United States was substituted as the defendant in lieu of plaintiff's supervisor. In support of the motion to substitute the United States, Assistant United States Attorney William F. Larkin certified that "the individual defendant was acting within the scope of her employment" at the time of the actions complained of. Docket Document ("Doc.") No. 6; see 28 U.S.C. § 2679(d)(2); 28 C.F.R. § 15.3.

In a Memorandum-Decision and Order signed May 12, 1989 this court held that there was a disputed issue of fact as to whether Needling had acted within the scope of her employment when she performed the acts complained of. The court directed the parties to appear for a hearing on the matter or, in the alternative, offered the government an opportunity to demonstrate as a matter of law that Needling was acting within the scope of her employment. The government chose the latter alternative and its motion is presently before the court. In essence, the motion is a motion for reconsideration of the Memorandum-Decision and Order signed May 12, 1989. The court, as evidenced by its previous decision, will entertain the motion. In addition to the government's motion, plaintiff's motion for summary judgment is also pending before the court.

A. Deference to the Certification.

In its present motion the government's primary argument, up until recently, rested upon the assertion that the court is precluded from reviewing the Assistant U.S. Attorney's scope of employment certification. However, in open court Assistant U.S. Attorney William F. Larkin stated that the government is now withdrawing that line of argument in view of new Justice Department guidelines. According to Assistant U.S. Attorney Larkin, the new guidelines provide that the government will no longer take a position that the court is precluded from reviewing the scope of employment certification.¹ Instead, the government now contends that the certification, albeit reviewable, is entitled to deference from this court.

Although an agency's interpretation of a statutory scheme under which it works is usually entitled to deference, see, e.g., Weeks v. Quinlan, 838 F.2d 41, 43 (2d Cir.1988); Sunshine Health Systems, Inc. v. Bowen, 809 F.2d 1390 (9th Cir.1987), the court is of the opinion that deference is not proper with respect to certification under § 2679. This decision primarily stems from the court's conclusion that the system of certification by the United States Attorney is constitutionally suspect. In addition, the court determines that deference was not required under the previous certification system which involved the antecedent to the present § 2679. Before addressing the constitutional issues, the court will review the history of § 2679.

The certification in the present action was required by the relatively new Federal Employees Liability Reform and Tort Compensation Act, P.L. 100-694, 102 Stat. 4563 (November 18, 1988 ("Reform Act" or "Act"). The Reform Act made the § 2679 certification process applicable to all actions brought against a federal employee under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and §§ 2671-2680. Previously, that certification process in § 2679 was part of the Drivers Liability Act which applied only to torts involving motor vehicles operated by federal employees. See L. Jayson, Handling Federal Tort Claims: Administrative and Judicial Remedies § 175.032, at 6-19 (1989) ("Jayson").

Under the Drivers' Act version of § 2679 ("old § 2679"), the trial judge determined the scope of employment issue as a matter of law. Levin v. Taylor, 464 F.2d 770, 771 (D.C.Cir.1972). In fact, the government's position that certification under § 2679 used to be entitled to review by this court under an "arbitrary and capricious" standard, see Proietti v. Levi, 530 F.2d 836 (9th Cir.1976), has been implicitly, yet emphatically, rejected by this court in Van Lieu v. United States, 542 F.Supp. 862 (N.D.N.Y. 1982). In Van Lieu, despite a government certification of scope of employment, the court made its own independent determination of scope of employment following a hearing. This approach is supported by the rule in the Second Circuit that under the old § 2679 a case which commenced in state court was to be remanded in the event a federal court determined that the employee was not acting within the scope of her employment. See Kelley v. United States, 568 F.2d 259, 268 (2d Cir.) (a removed case was to continue to judgment unless it was found on a pretrial motion that the employee was acting beyond the scope of his employment), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). It has been noted that "much of the extensive body of case law construing and applying the Drivers Act is directly relevant to the interpretation and application of the new amendments." Jayson § 175.031, at 6-19. Under that theory, the old case law, including the Kelley, Levin and Van Lieu cases, would apply to the Reform Act and review of the certification would be de novo.

Presumably, the government could argue that the new § 2679 amends the old § 2679, by directing that the certification is entitled to deference from the courts. While there is no such express statement in the legislation, the statutory scheme is suggestive of such deference. Under the Reform Act only the federal employee has the right to petition the court for a certification that she was acting within the scope of her employment. That Act provides no corresponding mechanism by which a plaintiff may petition the court for a determination that the employee was not acting within the scope of her employment. Nevertheless, there is an element of the legislative history that suggests that the court may make its own determination on the scope of employment issue. The House Report on the Reform Act exhibited no antagonism towards court determination of scope of employment issues. In fact, while it castigated the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which stiffened the requirements for qualifying for absolute immunity, the Report generally applauded the scope of employment determinations made by courts when examining issues of scope of employment. H.R.Rep. No. 100-700, 100th Cong., 2d Sess., at 2-3, reprinted in 1988 U.S.Code Cong. & Admin.News 5945, 5946.

Moreover, the court cannot help but wonder if the government threw out the bath water with the baby when it agreed that the certification was reviewable. Absent constitutional concerns, the government had a strong argument based on Congressional intent that this court is precluded from reviewing the certification. See supra at 5; Aviles v. Lutz, 887 F.2d 1046, 1048-50 (10th Cir.1989); S.J. and W. Ranch, Inc. v. Lehtinen, 717 F.Supp. 824 (S.D.Fla.1989); Assaad-Faltas v. Griffin, 715 F.Supp. 247, amending, 708 F.Supp. 1035 (E.D.Ark.1989); Arbour v. Jenkins, 713 F.Supp. 229 (E.D.Mich.1989); cf. Martin v. Merriday, 706 F.Supp. 42 (N.D.Ga. 1989). Without notification of the reasons for the government's about-face, the court ponders whether the Justice Department has located some constitutional imperfection with unreviewable certifications. Such imperfection, depending on its character, could well carry over to any contention that the certification is entitled to deference.

This court's constitutional concerns both relate to the guarantee of due process under the law. See U.S. Const. amend. V. For there to be a due process violation: plaintiff must have a property right; there must be government action amounting to a deprivation; and it must be demonstrated that the deprivation occurred without due process. Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir.1989). The court holds that plaintiff has a constitutionally recognized property interest in the present lawsuit and/or the damages he seeks in this suit.²Martin v. Zook, No. 87-3775, 1988 WL 33919, 1988 U.S.Dist. LEXIS 3016 (E.D.Pa. December 31, 1988); Windsor Communications Group, Inc. v. Grant, 75 B.R. 713, 734 (E.D.Pa.1985) ("Obviously, a money judgment against a person, such as those sought in the instant five (5) actions, implicates a due process property interest."); see Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 2125-26, 100 L.Ed.2d 743 (1988);³Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983); cf. Federal Deposit Ins. Co. v. Morrison, 747 F.2d 610, 614 (11th Cir.1984) ("Even an arguable right of possession constitutes property.") (citing Fuentes v. Shevin, 407 U.S. 67, 86-87 & n. 16, 92 S.Ct. 1983, 1997 & n. 16, 32 L.Ed.2d 556 (1971)), cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 682, 50 S.Ct. 451, 454, 74 L.Ed. 1107 (1930) ("while it is for the state courts to determine the adjective as well as the substantive law of the State, they must, in so doing, accord the parties due process of law") (Brandeis, J.). To hold otherwise would be to determine that a litigant is not entitled to due process from the nation's courts, either state or federal. With respect to the second requirement, the court concludes...