St. John v. U.S.

• Decision Date: 16 October 2000
• Docket Number: No. 99-4305,99-4305
• Citation: 240 F.3d 671
• Parties: (8th Cir. 2001) DEBRA ST. JOHN, APPELLANT, v. UNITED STATES OF AMERICA, ACTING THROUGH THE BUREAU OF INDIAN AFFAIRS, APPELLEE. . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 671

240 F.3d 671 (8th Cir. 2001)

DEBRA ST. JOHN, APPELLANT, v. UNITED STATES OF AMERICA, ACTING THROUGH THE BUREAU OF INDIAN AFFAIRS, APPELLEE.

No. 99-4305.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: October 16, 2000.

Filed: February 7, 2001.

Appeal from the United States District Court for the District of South Dakota

[Copyrighted Material Omitted] Before McMILLIAN, Heaney and Bowman, Circuit Judges.

McMILLIAN, Circuit Judge.

Debra St. John appeals from a final order entered following a bench trial in the United States District Court ¹ for the District of South Dakota concerning claims brought against the government pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. 2671 et. seq., based upon the conduct of her ex-husband, a Bureau of Indian Affairs (BIA) police officer. The district court awarded St. John damages for false arrest and false imprisonment and dismissed her sexual assault claim for lack of jurisdiction under the FTCA because the sexual incident in question occurred outside the scope of her ex-husband's federal employment. St. John v. United States, No. CIV 97-3051 (D.S.D. Oct. 6, 1999) (judgment). For reversal, St. John argues that the district court erred in (1) holding that her ex-husband's sexual assault constituted conduct beyond the scope of his federal employment and (2) calculating the damage award for false imprisonment and false arrest. For the reasons discussed below, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Jurisdiction

Jurisdiction in the district court was proper based upon 28 U.S.C. 1346; jurisdiction on appeal is proper based upon 28 U.S.C. 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

Background

The following summary is based upon the findings of the district court. Debra St. John and Richard Coleman were married in 1984 and had three children. In 1989, Coleman began working as a police officer for the BIA. The couple divorced in 1990, but continued to have contact with each other for child visitation purposes. After the divorce, they continued to have consensual sex, but they disagree regarding the frequency. In 1993, St. John alleged that Coleman tried to rape her in her home. She acquired a twelve-month protection order against him. The parties dispute the occurrence of consensual sex after that time; St. John contends that it did not occur, while Coleman argues that they had an ongoing sexual relationship.

Coleman's children visited with him on Thanksgiving day, 1995. The next day, because St. John did not pick up the children at the agreed time, Coleman brought the children to work with him and then left work to drive the children to Pierre, South Dakota, ² where he left them with St. John's friend, Gerilyn Livermont, before returning to work.

Later that evening, St. John drove to Coleman's workplace to pick up the children. She arrived at approximately 11:00 p.m. with her uncle, William Gravatt, who had accompanied her the entire evening. The parties disagree about the exact time of St. John's arrival and her actions beforehand. Both St. John and Gravatt testified that they did not drink any alcohol that evening. Gravatt further asserted that St. John did not appear to be intoxicated in any way.

Within minutes of her arrival, St. John exited the police station, followed by Coleman. On the stairs outside the station, St. John and Coleman argued, and Coleman grabbed St. John by the shoulder, pulled her arms behind her back, told her that she was under arrest, pushed her through the door of the police station, made her empty her pockets, and then placed her in the "drunk tank." Coleman did not tell St. John why she was arrested. Rio Owen, the radio dispatcher at the police station that night, did not observe that St. John was drunk or dangerous to herself and did not agree with Coleman's decision to arrest her. Another officer disagreed with St. John's arrest, voiced his objection to Coleman, and left the station. On the activity log, the property list, and the prisoner roster, Coleman noted the reason for St. John's arrest as "disorderly conduct." After finishing his shift at 2:30 a.m. and sleeping for one and a half hours, Coleman changed the charge to "protective custody" and released St. John following approximately five and a half hours in jail.

At the time of St. John's release, Coleman was unarmed ³ but still wearing his police uniform and his badge, even though it was customary for officers to leave their badges at the police station when they were off-duty. Coleman left the building first, followed by St. John, who exited from the same door approximately 2 minutes later. St. John claims that she intended to walk 2-3 blocks to her sister's home.

According to St. John, Coleman was standing next to his truck in the parking lot and told her to get into it, which she refused to do because she was upset that he had arrested and jailed her. St. John claims that Coleman then approached her and she ran around the truck, trying to get away from him and continuing to refuse until Coleman threatened to put her back in jail if she did not get into the truck. At that point she got into the vehicle. St. John alleges that Coleman then drove to a deserted park area 35 miles away, where it was freezing cold, with nowhere for her to go, and raped her. According to Coleman, St. John willingly got into the truck, and the two engaged in consensual sex.

After the sexual encounter, Coleman drove St. John to her home. St. John contends that Coleman forced her to take a shower. Then the two went to pick up the children at Gerilyn Livermont's home, which St. John entered alone. Livermont testified that St. John was visibly shaken and told her that Coleman had thrown her in jail and then raped her, but the conversation ended when the children appeared. St. John v. United States, No. CIV 97-3051 at 25. St. John also told a family member and her employer about the rape, but did not immediately notify the Tribal police department. She explains her silence as the result of fear and the department's history of neglecting her complaints about Coleman. Eventually St. John spoke to Ken Ross, the criminal investigator for the Crow Creek Sioux Tribe (of which she is a member). Ross informed Victor Roy Ziegler, Coleman's BIA supervisor and friend, that he intended to investigate the matter. Two weeks later, Ross was placed on indefinite administrative leave. No further investigation of St. John's complaint occurred.

St. John filed this civil action in federal district court, seeking damages for false arrest, false imprisonment, and sexual assault under the FTCA, 28 U.S.C. 2671 et seq. The case proceeded to a bench trial. Upon review of the evidence, the district court found that Coleman was acting within the scope of his employment at the time of St. John's release from jail. St. John v. United States, No. CIV 97-3051 at 24. In addition, the district court awarded St. John $3,000 in damages on the false arrest and false imprisonment claims. However, the district court refused to reach the question of sexual assault, deciding that the sexual incident occurred outside Coleman's scope of employment, and therefore the district court lacked jurisdiction under the FTCA. Id. at 33. This appeal followed.

Discussion

FTCA Scope of Employment

St. John argues that Coleman, acting within the scope of his employment, abused his authority as a BIA police officer to sexually assault her. She contends that she was the victim of a continuing tort because Coleman never completely relinquished his power to arrest and detain her, and used that power to force her to enter his truck so that he could rape her. The government claims that Coleman was not holding St. John in custody or performing law enforcement functions at the time of the alleged rape, so that the connection between Coleman's employment and the sexual incident was too remote and tenuous to be foreseeable, and thus attributable, to the employer. The government also asserts that Coleman's alleged sexual assault could not have been within the scope of his employment as a BIA police officer because such conduct clearly violates public policy and conflicts with the job Coleman was expected to perform.The standard of review for the scope of employment analysis is unsettled. In this court's most recent decision regarding the scope of vicarious liability under FTCA, Primeaux v. United States, 181 F.3d 876, 881-82 (8th Cir. 1999) (en banc) (Primeaux II), it was unnecessary to resolve whether scope of employment is a question of fact to be reviewed for clear error or a mixed question of law and fact to be reviewed de novo. The Supreme Court has not clearly decided the issue. Although the Supreme Court categorized scope of employment as the "determination of a fact" in Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 424 (1995) (evaluating the legitimacy of a scope-of-employment certification under the Westfall Act), a more recent decision concluded that where "there is a genuine question about the employer's responsibility for harmful conduct he did not in fact authorize, a holding that the conduct falls within the scope of employment ultimately expresses a conclusion not of fact but of law." Faragher v. City of Boca Raton, 524 U.S. 775, 796 (1998) (determining vicarious liability under Title VII). Like Primeaux II, in the present case, we need not decide whether to apply a clearly erroneous or a de novo standard of review to the scope of employment issue in a FTCA claim.

The FTCA is a limited waiver of sovereign immunity, allowing the federal government to be sued for the actions of "any employee of the Government while acting within the scope of his office or employment" under circumstances where the United States would be liable if it were a private employer. 28 U.S.C. 1346(b) and 2674. Scope of employment is generally...