Van Houten v. Ralls, 22356.
| Decision Date | 20 June 1969 |
| Docket Number | No. 22356.,22356. |
| Citation | 411 F.2d 940 |
| Parties | John C. VAN HOUTEN, Appellant, v. Ray Arthur RALLS and Gerald L. Byington, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George W. Abbott (argued), Minden, Nev., for appellant.
Carl Eardley (argued), Deputy Asst. Atty. Gen., Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander and Wm. Kanter, Attys., Dept. of Justice, Washington, D. C., Joseph L. Ward, U. S. Atty., Reno, Nev., for appellees.
Before HAMLEY, MERRILL and BROWNING, Circuit Judges.
John C. Van Houten commenced a suit against the United States and two employees of the federal Government in the United States District Court for the District of Nevada. He sought to recover damages for injuries sustained when an automobile in which he was riding as a passenger collided with another vehicle due to the alleged negligence of both drivers. Both drivers, Ray Arthur Ralls and Gerald L. Byington, and Van Houten himself, were employees of the United States acting within the scope of their employment at the time of the accident. Insofar as the United States was concerned, subject-matter jurisdiction was asserted under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1964), and the Federal Drivers Act, 28 U.S.C. § 2679(b)-(e) (1964).
The Government moved for summary judgment dismissing the action as to the United States on the ground that, as a Government employee injured during the course of his employment, Van Houten's sole remedy against the United States was his right to benefits under the Federal Employees' Compensation Act (FECA), 5 U.S.C. (Supp. II) (1967) §§ 8101 et seq.1 A motion was also made to dismiss the action as to the personal defendants on the ground that the Federal Drivers Act, 28 U.S.C. § 2679(b)-(e) (1964), prohibits a civil action in any court against federal drivers for injuries caused by the negligence of such drivers while acting within the course of their Government employment.
The district court granted the motion for summary judgment and dismissed the action as to the United States. The court also granted the motion to dismiss the action as to the personal defendants, but not on the Federal Drivers Act ground referred to above. The court dismissed the action as to those defendants for lack of diversity jurisdiction. However, the court expressed the opinion that an action against the individual drivers in an appropriate state court is not barred by the Federal Drivers Act, in view of the unavailability of a tort remedy against the United States.
Van Houten did not appeal from the judgment of dismissal. Instead, he commenced the action now before us in a Nevada state court. Seeking damages for personal injuries sustained in the accident referred to above, he named as defendants the two drivers, Ralls and Byington. Upon the certification of the United States, the action was removed to the United States District Court for the District of Nevada, pursuant to 28 U.S.C. § 2679(d) (1964), a provision of the Federal Drivers Act.2
Plaintiff then moved to remand the cause back to the state court, arguing that a remedy by suit within the meaning of 28 U.S.C. § 2679(b) is not available against the United States.3 Plaintiff called attention to the fact that the last sentence of 28 U.S.C. § 2679(d) under which the remand from the state court to the federal court was obtained (quoted in note 2), provides that if it should be determined that the case is one in which a remedy by suit is not available against the United States, "the case shall be remanded to the State court." As before noted, the unavailability of a direct remedy against the United States had already been established in Van Houten's prior action against the United States.
Defendants (in actuality the United States as substituted defendant) countered with a motion to dismiss the action. They argued, among other things, that a remand to the state court would destroy the protection which Congress intended to give federal drivers under the Federal Drivers Act.
The district court accepted this reasoning and granted defendants' motion to dismiss. It thereby implicitly denied plaintiff's motion to remand back to the state court. In doing so, the court concluded that its earlier expression of opinion that the Federal Drivers Act did not bar a state court action against the personal defendants was in error. This appeal followed.
The district court correctly ruled that, under the circumstances of this case, the remand provision of the Federal Drivers Act did not call for retransfer of the suit to the state court. The remand provision (see note 2) is applicable only where the Government driver is found to have been acting outside...
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