Whistler v. United States, Civ. No. 315.

• Decision Date: 21 February 1966
• Docket Number: Civ. No. 315.
• Citation: 252 F. Supp. 913
• Parties: Dorothea E. WHISTLER, Plaintiff, v. UNITED STATES of America, Defendant and Third-party Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third-party Defendant.
• Court: U.S. District Court — Northern District of Indiana

252 F. Supp. 913

Dorothea E. WHISTLER, Plaintiff, v. UNITED STATES of America, Defendant and Third-party Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third-party Defendant.

Civ. No. 315.

United States District Court N. D. Indiana, Hammond Division, at Lafayette.

February 21, 1966.

Samuel H. Power, Frank S. Pryor, Frankfort, Ind., Watson C. McCormick, Delphi, Ind., Warren N. Eggleston, of Ball, Eggleston & King, Lafayette, Ind., for plaintiff.

Alfred W. Moellering, U. S. Atty., for defendant and third-party plaintiff, United States.

Charles R. Vaughan, Vaughan & Vaughan, Lafayette, Ind., for third-party defendant, State Farm Mut. Auto. Ins. Co.

ESCHBACH, District Judge.

This matter is now before the court on the defendant's motion, filed December 14, 1965, to dismiss, for summary judgment, or, in the alternative, to remand the case to the state court. The motions must be denied.

This case was originally brought in the state court by the plaintiff against Kenneth Leroy Larson by a complaint filed on February 16, 1965, seeking recovery for damages alleged to have been caused by an accident on February 27, 1963, slightly less than two years before the filing of the complaint. On March 8, 1965, counsel for the then-defendant Larson entered a special appearance. The following day, March 9, the United States of America filed a petition for removal, contending that the then-defendant Larson was an employee of the United States and that he was acting within the scope of his employment at the time of the accident so that the removal was required under the Federal Tort Claims Act. 28 U.S.C. § 2679. The United States now contends by its present motion that since the action (1) was not brought against the United States within the two-year period of limitations for federal tort claims, and (2) can be brought only against the United States and not against a federal employee who was acting within the scope of his agency, and (3) was not brought according to the procedures provided by the Federal Tort Claims Act, the action should be dismissed or summary judgment awarded in favor of the defendant, United States. The defendant also contends that if the action is not one under the Federal Tort Claims Act, then the action should be remanded to the state court and Kenneth Leroy Larson be resubstituted for the United States as defendant. Since no party has opposed the Government's contention that Larson was acting within the scope of his employment, the action is one that must be governed by the provisions of the Federal Tort Claims Act and cannot be remanded to the state court.

The Federal Tort Claims Act provides that the exclusive remedy for claims against federal employees "for damage * * * or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment" shall be by suit against the United States and not by action against the individual employee or his estate. 28 U.S.C. § 2679(b). The statute of limitations under the Act provides that "a tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *." 28 U.S.C. § 2401. It is clear that had the plaintiff here brought an action against the United States on March 9, 1965, based upon an accident which occurred February 27, 1963, that action would have to be dismissed as untimely brought. The United States contends that the same result must be reached here because the United States was not named in the original complaint and because the United States did not become a party to the action until it initiated the removal after the period had run.

It might at first be thought that § 2679(b) has eliminated actions against individual federal employees for all purposes. As a practical matter, such actions cannot prevail. However, subsequent subsections of the same section indicate an awareness by Congress that such actions may still be filed. Thus, it is provided that an employee may use certain procedures to bring to the Government's attention a suit filed against the employee individually, and the Attorney General is directed to defend such a suit that is brought "in any court." 28 U.S.C. § 2679(c). Specific removal procedures are provided for any such suit that has been brought in a state court. 28 U.S.C. § 2679(d). While the statute has rendered futile such attempts to sue individual employees and to litigate federal tort claims in the state courts, it has not in some mystical way abolished the bringing of such actions, although this seems to be the Government's position. If this were the effect of § 2679(b), subsection (c) would be meaningless in some of its aspects, and subsection (d) would be wholly meaningless. Although the language of subsection (b) provides that an action against the United States in the federal courts "shall hereafter be exclusive of any other civil action * * * against the employee * * *" in federal tort claims cases, Congress did not intend to eliminate all the legal effects of the bringing of actions against individual employees in the state court. If the bringing of such an action were ineffective for all purposes, then that action could not be removed as provided in subsection (d) or defended by the Attorney General as provided in subsection (c). The bringing of such action in the state court, therefore, must at least be effective to give the action status as a claim that can be removed and subsequently litigated. From a practical standpoint and from a realistic interpretation of the intention of Congress in its enactment of § 2679(b)-(d), the original suit must also be effective for purposes of determining whether it was brought within the period of the statute of limitations provided by 28 U.S.C. § 2401(b).

The only reason for enacting these additional subsections in 1961 was the desire to protect the individual federal employees from personal tort liability while acting within the scope of their Government employment. This is made clear in S.Rep. No. 736, 87th Cong., 1st Sess. (1961). 2 U.S.Code Cong. & Ad.News, pp. 2784-2797 (1961). Similar legislation had been passed by the prior Congress, but was vetoed by the President solely because the legislation as passed required the consent of the plaintiff before a state court action could be removed to the federal court. 1 U.S.Code Cong. & Ad. News 1563 (1960). In 1961 the bill reported out of the Senate Committee on the Judiciary also contained a provision requiring the plaintiff's consent for removal. 2 U.S.Code Cong. & Ad. News, pp. 2788-2789 (1961). This provision was eliminated in the final version of the bill, which was enacted and is now 28 U.S.C. § 2679(b)-(e). The eliminated provision was stricken from the bill because of a fear that its inclusion might stand in the way of full protection for the individual employee. See 107 Cong. Rec. 18499-18501 (1961) (remarks of Senator Keating, Senator Johnston, and Senator Ervin). It appears from this legislative history that Congress felt required to choose between its desire to retain the plaintiff's freedom of choice of forum and its desire to enact maximum protection for the federal employees. In the final enactment, Congress decided that the former must be sacrificed to the latter.

While federal tort claim litigation is now barred from the state courts, there is no indication that Congress intended by this legislation to make the federal tort claim statute of limitations a bar to all state actions not removed within the two-year period. There is good reason why Congress did not require this. A plaintiff has no control over such removal. There is no sure way that a plaintiff can know his action is an appropriate...