Theokary v. United States
| Decision Date | 31 March 2014 |
| Docket Number | No: 13-3143,: 13-3143 |
| Parties | RAPHAEL THEOKARY, Appellant v. UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
RAPHAEL THEOKARY, Appellant
v.
UNITED STATES OF AMERICA
No: 13-3143
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Filed: March 31, 2014
Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL,* District Judge.
Rosenthal, District Judge.
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Raphael Theokary appeals from the District Court's dismissal of his complaint seeking damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680. Theokary's original basis for his complaint—that he was injured by two Deputy United States Marshals when they removed him from a Bankruptcy Court courtroom—proved unavailing because the officers involved were Court Security Officers (CSOs) who worked as independent contractors, not employees of the United States Marshals Service. Theokary then argued that the government was estopped from asserting the independent-contractor defense to FTCA liability on the ground that he and his lawyer had been misled into believing that the officers involved were Deputy United States Marshals. The District Court granted the government's motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The issue on appeal is whether the District Court erred in rejecting Theokary's estoppel argument. Finding no error, we affirm.1
On November 30, 2009, Theokary attended a hearing in the United States Bankruptcy Court at the Robert N.C. Nix Federal Building in Philadelphia, Pennsylvania. During the hearing, two CSOs escorted Theokary out of the courtroom, allegedly aggravating a prior injury to his arm. According to Theokary, the CSOs identified themselves as with the "U.S. Marshals Service." The CSOs were employees of MVM,
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Inc., a private security company that contracted with the Service to provide courthouse security in the Third Judicial Circuit.
On February 15, 2010 and August 9, 2010, Theokary's lawyer sent letters via certified mail to the Service stating that "U.S. Marshals" had injured Theokary at the courthouse in November 2009. On November 8, 2010, John Patterson, the tort-claims administrator for the Service, sent an email to Theokary's counsel outlining the process for filing a tort claim against the agency, and explaining that the FTCA "provide[s] for the payment of claims which arise from the negligent or wrongful acts or omissions of an employee of the Federal Government." App. at 61a. Patterson attached an administrative-claim form to his email.
Through his counsel, Theokary filed an administrative claim on November 15, 2011, two weeks before limitations expired. The Service denied the claim on June 11, 2012, stating that the officers involved in the courtroom incident were CSOs who were independent contractors, not government employees. App. at 19a ("[T]he CSOs are government contractors and not USMS [United States Marshals Service] employees."). Theokary then sued the government in the United States District Court for the Eastern District of Pennsylvania, under the FTCA.
The government moved to dismiss for lack of subject-matter jurisdiction on the ground that the CSOs involved in the incident were independent contractors and therefore the FTCA did not waive sovereign immunity for Theokary's claim. The government also argued that it was not estopped from asserting this...
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