ORDER ACCEPTING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
No objections having been filed to the Magistrate Judge's RecommendedDecision filed September 27, 2002 the Recommended Decision is accepted.
Accordingly, it is ORDERED that ruling on the United States' Motionfor Substitution and Dismissal is DEFERRED and an evidentiary hearingconcerning whether Dr. Doane was acting within his scope of employment atthe time of the accident will be scheduled.
RECOMMENDED DECISION ON THE UNITED STATES' MOTION FOR SUBSTITUTION AND DISMISSAL
Sometime in the late morning of February 18, 1998, Plaintiff Amber LeeWare and Defendant Dr. Woolson Doane were involved in a motor vehicleaccident. Dr. Doane is the Chief of Medicine for the Togus Veterans'Administration RegionalOffice and Medical Center in Augusta, Maine(Togus). As such, Doctor Doane is a federal employee. Ms. Ware filed suitagainst Dr. Doane in Kennebec County Superior Court on December 7, 2001,seeking to recover for personal injuries that she contends Dr. Doanecaused through negligent operation of his motor vehicle.
On or about August 21, 2002, the United States removed the action fromthe Superior Court pursuant to 28 U.S.C. § 2679(d)(2) and alsosubmitted the motion addressed herein, captioned as a "Motion forSubstitution and Dismissal." With this motion the United States seeks tosubstitute itself as the proper party defendant in place of Dr. Doane,pursuant to the Westfall Act, 28 U.S.C. § 2679. In support of thismotion, United States Attorney Paula Silsby has certified, in accordancewith § 2679(d)(1) and 28 C.F.R. § 15.3 that Doctor Doane "wasacting within the scope of his employment as an employee of the UnitedStates Department of Veterans' Affairs at the time of the allegedautomobile accident."
In the event that the motion for substitution is granted, the UnitedStates moves for dismissal due to Ms. Ware's failure to administrativelypursue her tort claim against the Veterans' Administration within twoyears of the accident, in accordance with the Federal Tort Claims Act("FTCA"), 28 U.S.C. § 2401(b).
I recommend that the Court DEFER ruling on the United States' Motionfor Substitution and Dismissal and hold an evidentiary hearing concerningwhether Dr. Doane was acting within the scope of his employment at thetime of the accident. In the event that the Court finds as a fact thatDr. Doane was acting within the scope of his employment, I recommend thatthe Court GRANT the motion, substituting the United States as a defendantand dismissing the claim for failure to comply with the FTCA.
"Scope Certification" and The Westfall Act, 28 U.S.C. § 2679 TheWestfall Act1 authorizes the Attorney General2 to certify that afederal employee named as a defendant in a civil tort suit was "actingwithin the scope of his office or employment at the time of the incidentout of which the claim arose." 28 U.S.C. § 2679(d)(1) & (2). Whena suit is pending against a federal employee in a state court, theAttorney General's certification requires that the suit "be removedwithout bond to the district court of the United States for the districtand division embracing the place in which the action or proceeding ispending." Id. § 2679(d)(2). In addition, upon certification "theemployee is dismissed from the action and the United States issubstituted as defendant." De Martinez v. Lamagno, 115 U.S. 2227, 2229(1995).
The Attorney General's scope certification is subject to judicialreview.Id. at 2229. If the certification stands following judicialreview, then the federal employee defendant is not only dismissed fromthe suit, but is granted immunity from any subsequent suit arising fromthe certified conduct, and the suit then proceeds against the UnitedStates under the FTCA. Id. at 2230; Lyons v. Brown, 158 F.3d 605, 606-607(1st Cir. 1998); Bergeron v. Henderson, 47 F. Supp.2d 61, 64 (D.Me.1999); 28 U.S.C. § 2679(b)(1). Conversely, if the certification isoverruled, then immunity for the federal employee will not arise, theUnited States will not be substituted as the party defendant, and, if thetort suit was removed from a state court, it is remanded. Nasuti v.Scannell, 906 F.2d 802, 803 (1st Cir. 1990).3
State law controls the determination of whether a federal employee was acting within the scope of employment. Maine courts apply section 228 of the Restatement (Second) of Agency on the issue of scope of employment. The principles set forth in the Restatement (Second) regarding the scope of employment are the following:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Bergeron, 47 F. Supp.2d at 65 (citing McLain v. Training and Devel.Corp., 572 A.2d 494, 497 (Me. 1990) and quoting Restatement (Second) ofAgency § 228, at 504 (1958)).
Although the Supreme Court held that scope certifications are subjectto judicial review, it did not indicate in De Martinez how judicialreview should proceed. Notably, a scope certification is a unilateraldetermination by an executive officer;4 therefore, there is nopre-existing administrative record for the court to review. Nevertheless,the scope certification is itself prima facie evidence that the defendantwas acting within the scope of his or her employment. Bergeron, 47F. Supp.2d at 65 (citing Brown v. Armstrong, 949 F.2d 1007, 1012 (8thCir. 1991)). In Day v. Mass. Air Nat'l Guard, 167 F.3d 678 (1st Cir.1999), the First Circuit Court of Appeals held that a plaintiff whochallenges a defendant's certification under the Westfall Act "bears theburden of proving the defendant acted outside the scope of his employment."Id. at 685. To do so, the plaintiff must make an evidentiary proffercapable of generating a genuine issue of material fact as to whether thedefendant was acting outside the scope of his or her employment. Only ifthe plaintiff succeeds in this task will a hearing be afforded. Id. at 686(holding that a court "is entitled to something more than conclusoryabstractions" in a complaint and that plaintiff failed to "justify [ahearing] under ordinary summary judgment standards, which are a goodanalogy in this instance"); Bergeron, 47 F. Supp.2d at 68 ("[A] partychallenging a Westfall certificate must justify the need for [a hearing]by presenting evidence of facts that create a genuine conflict in theimmunity-related facts.").5
Finally, in order to generate a genuine issue on whether the federalemployee's conduct was performed within the scope of his or heremployment, a plaintiff may rely on factual allegations set forth in averified complaint and on supplemental submissions having evidentiaryquality. Day, 167 F.3d at 686; see also Bergeron, 47 F. Supp.2d at 67-68(discussing the alternative means that a reviewable record might bepresented).
In the instant case, Ms. Ware's complaint is unverified and, in anyevent, it is also devoid of any factual allegations concerning the scopeof Dr. Doane's employment. U.S. Attorney Silsby's certification of Dr.Doane's employment is, similarly, not supported by affidavit or any otherevidence. Therefore, it is incumbent on Ms. Ware to produce evidence onthe issue through supplemental filings appended to her filing in responseto the Motion to Substitute. This she has done through numerous exhibitsattached to her responsive filing. The United States has not supplementedthe record created by Ms. Ware in connection with its reply brief.6 Inow turn to an evaluation of this record to determine whether thereexists a genuine issue of fact that would warrant a hearing.
Ms. Ware's contention is that Dr. Doane was commuting home from workwhen the accident occurred, and thus was not engaged in conduct (1) ofthe kind he was employed to perform; (2) occurring within authorizedspace limits; or (3) actuated by a purpose to serve the Veterans'Administration. In part, Ms. Ware relies on inferences that might bedrawn from Dr. Doane's statement. In this statement, Dr. Doane statesthat the accident occurred shortly after he left Togus en route to awork-related meeting at the headquarters of the Veterans' IntegratedService Network in Bedford, Massachusetts. Dr. Doane further states thathe would normally use a government car for such a trip,but that he usedhis own car on that occasion, although he cannot recall the reason why hedid so. Dr. Doane further states that he left Togus "sometime between10:00 and 11:00 a.m." for the meeting in Bedford, Massachusetts, whichwas scheduled to begin at 2:00 p.m. Plaintiff's Response, Exhibit 2.
Ms. Ware also relies on excerpts from Dr. Doane's depositiontranscript, as well as data compilations compiled by the National Oceanicand Atmospheric Administration, which provide local climatological datafor Portland, Maine in February 1998, including February 18, 1998. Fromthese two submissions, the record would support the conclusion that therewas substantial snowfall on the day in question and that Dr. Doane wasdriving in roughly two inches of snow when the accident occurred. Id.,Exhibit 4 at 38-39 & Exhibit 5. Furthermore, Dr. Doane states thatthe accident occurred shortly after 11:00 a.m. while he was still in theAugusta area. Id., Exhibit 4 at 12. This statement significantly narrowsthe scope of the representation made in Dr. Doane's prior statement thathe departed "sometime" between 10:00 and 11:00 a.m. Dr. Doane'sdeposition testimony also reflects that he went home following theaccident, without attempting to get to the meeting in Bedford, eventhough his car was still capable of being driven after the accident.Id., Exhibit 4 at 56.
Ms. Ware has also submitted an affidavit obtained from GeorgePrescott, a field investigator in the employ of her counsel. Id., Exhibit3. In his affidavit, Mr. Prescott states that he spoke with "TrooperLeach," who investigated the accident, and that Trooper Leach told himthat Dr. Doane told Trooper Leach that Dr. Doane was on his way home whenthe accident occurred. Id., Exhibit 3, ¶ 7. The United Statesobjects to this proffer on the ground that it is hearsay within hearsay.I note that Dr. Doane's own alleged statement to the trooper wouldconstitute an admission, and therefore Trooper Leach would be capable oftestifying to this fact.
The question becomes whether there is a basis for excepting Mr.Prescott's own, second-hand statement from the hearsay rule. Mr. Prescottavers in his affidavit that he "recorded Trooper Leach's statement duringthe course of [his] conversation with Trooper Leach," id., Exhibit 3,¶ 8, but he nowhere avers that it is "the regular practice of hisbusiness activity" to make such a recording. Fed.R.Evid. 803(6). For thisreason, I sustain the United States' objection to this proffer and I donot consider the alleged admission in evaluating the evidence, much as Iwould do when addressing a summary judgment motion. Day, 167 F.3d at 686(stating that application of summary judgment standards is appropriate).
Ms. Ware also asks that the Court take judicial notice of the fact thatthe travel time from Augusta, Maine to Bedford, Massachusetts isapproximately 2 hours and 52 minutes and that the distance is 164.2miles. She supports this request with a copy of driving directionsobtained through an online mapping service provided by Yahoo!.Plaintiff's Response, Exhibit 6. She wants the Court to draw an inferencethat it was unlikely that Dr. Doane would depart at around 11:00 a.m., asopposed to an earlier time, for a Bedford meeting scheduled for 2:00p.m., particularly when a significant snow storm was occurring.
Finally, Ms. Ware offers the affidavit of Attorney Anthony Irace, whichoutlines the course of her counsel's investigation and representation.Id., Exhibit 6. Attorney Irace relates, "It is our standard operatingprocedure in all tort claims handled by Lowry & Associates toinvestigate allpossible parties to the claim and to investigate if anyparties are governmental agents or employees . . . ." Id., Exhibit 6,¶ 3. Attorney Irace's affidavit also describes an extended period ofpre-suit correspondence with Dr. Doane's insurance carrier. Attorney Iracecomplains that, throughout this period of time, neither Dr. Doane nor hisagents ever disclosed that Dr. Doane would be "claiming immunity based onany assertion that [he] was acting within the scope of any form ofemployment at the time of the incident." Id., Exhibit 6, ¶ 25. I donot draw any negative inference against the United States or Dr. Doanefor failing to volunteer such information. It was incumbent upon Ms.Ware's counsel to determine whether Dr. Doane may have been acting withinthe scope of his federal employment before the FTCA's two-year limitationperiod had expired. Dr. Doane had no duty to disclose this fact. I alsonote that nothing prevented Ms. Ware from investigating this issue andfiling an FTCA notice of claim with the Veterans' Administration withinthe two-year period.
In summary, Ms. Ware has presented the fact that travel conditions werevery poor on the day in question; that the timing of Dr. Doane'sdeparture was not ideal for timely arrival in Bedford, Massachusetts; andthat Dr. Doane made no attempt to attend the Bedford meeting despitebeing able to drive his car sometime shortly after the accident. She hasalso presented evidence that Dr. Doane was in his personal vehicle ratherthan a government car, which he most commonly would have taken to thissort of meeting. Although it is by no means the only inference that canbe drawn, nor necessarily the most reasonable one, I consider it a fairand permissible inference that Dr. Doane was headed home for the day, dueto the storm, rather than to a meeting in Bedford, Massachusetts.Certainly this proffer amounts to more than "conclusory abstractions" and"quasi-legal generalities" and, thus, warrants an evidentiarydetermination. 47 F. Supp.2d at 68. For this reason, I would find thatMs. Wade has generated an issue of fact concerning whether Dr. Doane wasacting within the scope of his employment at the time of the accident.If, in fact, Dr. Doane had left work for the day and was commuting homefor personal reasons, then as a matter of law his conduct would not fallwithin the scope of his employment. See Mosko v. Raytheon Co.,622 N.E.2d 1066, 1068 (Mass. 1993) ("Travel to and from home to a placeof employment generally is not considered within the scope ofemployment."); see also cf. Trusiani v. Cumberland & York Distrib.,538 A.2d 258, 262-63 (Me. 1988) (holding that an employer is not liableunder the Workers' Compensation Act for injuries caused by an intoxicatedemployee driving home after a company party); Westbury v. Town of CapeElizabeth, 492 A.2d 888, 890 (Me. 1985) (holding that a police officerwas not injured "in the course of employment" for purposes of workers'compensation coverage when he was injured while driving home at the endof his "formal shift," even though he was on call at the time).
Limitation on Tort Actions Against the United States, 28 U.S.C. § 2401(b)
Because my recommendation leaves unresolved the appropriateness of theU.S. Attorney's scope certification, it is unnecessary to address theUnited States' Motion to Dismiss. Nevertheless, in the event that theCourt should disagree with my recommendation regarding theappropriateness of a hearing or should find after a hearing that Dr. Doanewas, in fact, engaged in work-related conduct, dismissal of the suitshould follow. Because Ms. Ware's tort claim was not administrativelypursued within two years of her injury, any claim against the UnitedStates is time barred.7 28 U.S.C. § 2401(b). Furthermore, thereis no justification in this case for equitable tolling. Gonzalez v.United States, 284 F.3d 281, 291 (1st Cir. 2002) ("Although the plaintiffdid not know the federal status of the defendants at the time of hertreatment, she and her attorneys had two years to ascertain the legalstatus of the doctors and could easily have learned it."). There is nosuggestion that Dr. Doane's employment status could not have beendiscovered by Ms. Ware and her attorneys during the course of theirinvestigation prior to bringing suit.
For the foregoing reasons, it is my recommendation that the Court deferruling on the pending motion and hold an evidentiary hearing addressednarrowly to the question of whether Dr. Doane was headed home forpersonal reasons or to Bedford, Massachusetts for work-related reasons atthe time of the motor vehicle accident.8
1. The Westfall Act amended key provisions of the Federal Torts ClaimsAct applicable to actions against federal employees. Properly known asthe Federal Employees Liability Reform and Tort Compensation Act of1988, Pub.L. 100-694, 102 Stat. 4563, the statute was Congress's responseto the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108S.Ct. 580, 98 L.Ed.2d 619 (1988). Nasuti v. Scannell, 906 F.2d 802,803-804 (1st Cir. 1990) (discussing Westfall and Congress's responsethereto). See also Bergeron v. Henderson, 47 F. Supp.2d 61, 64 (D.Me.1999) (same).
2. The Attorney General has delegated this authority by regulation toUnited States Attorneys, who make scope certification determinations inconsultation with the Department of Justice. 28 C.F.R. § 15.3. TheAttorney General's delegation authority is set forth in28 U.S.C. § 510.
3. In De Martinez, which was issued subsequent to Nasuti, JusticeGinsburg, author of the majority opinion, opined that a district courtcould retain jurisdiction in a non-diversity case lacking a federalquestion without running afoul of Article III, because review of a scopecertification pursuant to the Westfall Act necessarily "arises under"federal law and, therefore, the tort action could be retained through anexercise of supplemental jurisdiction. 115 U.S. at 2236-37. However, amajority was not reached on this point. Furthermore, Justice Ginsburg'sevaluation was dicta, because De Martinez was originally filed in federalcourt based on diversity of citizenship. Therefore, Nasuti still governswithin this circuit.
4. As is customary, see De Martinez, 515 U.S. at 2230, United StatesAttorney Silsby's scope certification is to the point and devoid offactual development:
I, Paula D. Silsby, United States Attorney for the District of Maine, United States Department of Justice, . . . hereby certify that I have read the Complaint in this action and, on the basis of the information now available with respect to the allegations therein, I find that the individually named defendant Woolson Doane was acting within the scope of his employment as an employee of the United States Department of Veterans Affairs at the time of the alleged automobile accident on about February 18, 1998.
5. A plaintiff is entitled to one evidentiary indulgence. The"existence of a harm-causing incident . . . must be assumed [though] notthe plaintiff's characterization of events." Day, 167 F.3d at 686 (citingWood v. United States, 995 F.2d 1122 (1st Cir. 1993)).
6. In its reply brief, the United States refers to certain additionalpages from Dr. Doane's deposition transcript. Reply Brief at 2, n. 2.However, copies of these pages were not attached to the United States'brief. In any event, the information related on these pages, according tothe United States, is simply cumulative of information related in Dr.Doane's statement. Furthermore, the United States' failure to supplementthe record in no way jeopardizes its ability to succeed on itsmotion.
7. Compliance with § 2401 is a jurisdictional prerequisite andcannot be waived by the defendant. Gonzalez v. United States, 284 F.3d 281,288 (1st Cir. 2002).
8. Ms. Ware has requested leave to conduct further discovery on thisissue. Given her counsel's subpoena power and ability to examine Dr.Doane as a hostile witness, there would appear to be no need for furtherdiscovery on the matter.