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Finley v. Holoszyc-Pimentel

United States District Court, W.D. Washington, Seattle

February 8, 2018





         This matter comes before the Court on Defendants' Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) and Plaintiff's Cross-Motion for an Evidentiary Hearing. Dkts. #8 and #11. Defendants move to dismiss for lack of subject matter jurisdiction on the basis that Plaintiff, Daquawya L. Finley, failed to exhaust her administrative remedies as required by the Federal Tort Claims Act (“FTCA”). Dkt. #8 at 1 and 3. Plaintiff opposes the motion, arguing that Defendants' motion is improper because the statutory requirements of the FTCA do not apply to this case. Dkt. #11 at 3-4. Plaintiff asserts that the certification by Assistant United States Attorney (AUSA) Christina Fogg that Sergeant First Class (SFC) Gabriel Holoszyc-Pimentel was acting within the scope of his employment is not supported by sufficient evidence, and therefore the United States cannot be substituted as Defendant and the FTCA does not apply. Id. By way of cross-motion, Plaintiff also moves this Court to grant an evidentiary hearing and discovery in order to support her challenge to the validity of the certification, prior to the Court's decision regarding Defendants' motion to dismiss. Id. at 5-7. For the reasons set forth below, Plaintiff's cross-motion for an evidentiary hearing is DENIED, and Defendants' motion to dismiss is GRANTED.


         On October 19, 2014, Plaintiff was driving her car in Seattle, Washington, when she was involved in a motor vehicle accident allegedly caused by SFC Gabriel Holoszyc-Pimentel, resulting in injury. Dkt. #6 at ¶ ¶ 4.1 and 4.2. The accident occurred at roughly 9:58 a.m., when SFC Holoszyc-Pimentel's vehicle struck Plaintiff's vehicle from the rear as both were traveling northbound on Westlake Avenue North. Dkt. #12, Ex. 3 at 1-2. Defendants do not dispute that an accident occurred, but instead maintain that at the time of the accident, SFC Holoszyc-Pimentel was in Seattle attending a training associated with his employment in the United States Army, and therefore the United States is the proper Defendant in this action. Dkt. #16, Ex. A at 2.

         Gabriel Holoszyc-Pimentel is a member of the United States Army and, prior to October 2014, was assigned to a permanent duty station at Joint Base Lewis-McCord in Washington State. Dkt. #17 at ¶ 3. Beginning on October 2, 2014, SFC Holoszyc-Pimentel was issued temporary duty orders (TDY)[1] for a period of 31 days in order to attend a required training known as “Advanced Special Operations Techniques Course” (ASOTC) in connection with his role as a Communications Sergeant. Dkt. #17 at ¶ ¶ 3 and 4.

         According to SFC Holoszyc-Pimentel's former commanding officer Captain John Griffin, ten days of that training would take place in Seattle, WA. Dkt. #17 at ¶ 5. Captain Griffin describes ASOTC training as intended to teach force protection measures and utilize real-life urban settings to train soldiers on driving tactics, with the Seattle segment focusing on driving from “training point to training point within Seattle in order to practice urban driving techniques.” Id. It was while attending the training in Seattle on TDY that SFC Holoszyc-Pimentel asserts the accident occurred. Dkt. #16, Ex. A at 2.

         On or about October 11, 2017, Plaintiff filed her civil Complaint in King County District Court against SFC Gabriel Holoszyc-Pimentel, “Jane Doe” Svaren, and EAN Holdings, LLC, seeking damages arising from the October 19, 2014, car accident. Dkt. #6. SFC Holoszyc-Pimentel received notice of the suit, and along with his commanding officer, Captain Alexander Dagg, submitted written statements to the United States Attorney for the Western District of Washington that SFC Holoszyc-Pimentel was acting within the scope of his official duties at the time of the accident. Dkts. #12, Ex. 4 and #16, Ex. A at 2. A representative of the United States Attorney's Office reviewed the attestations and completed a certification of scope of employment. Dkt. #1. Defendants then removed the matter to this Court pursuant to 28 U.S.C. §§ 1442(a)(1) and 2679(d)(1) and (2), and on November 21, 2017, the United States filed a notice of substitution, seeking to substitute itself as Defendant. Dkts. #1 and #2. The instant motions followed.


         A. Legal Standards

         Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal based on a lack of subject matter jurisdiction. Fed. R .Civ. P. 12(b)(1). When a court lacks subject matter jurisdiction, it lacks the power to proceed, and its only remaining function is to dismiss. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998).

         Under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (hereinafter “the Westfall Act”), district courts are granted jurisdiction over civil claims filed against federal employees, including members of the United States Military. 28 U.S.C. §§ 1442(a), 2679(d)(1) and (2). The Westfall Act allows for the Attorney General of the United States, or a delegate thereof[2], to certify that a federal employee was “acting within the scope of his office or employment at the time of the incident out of which the claim arose….” 28 U.S.C. § 2679(d)(1).

         “Upon the Attorney General's [or a delegate thereof's] certification, the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee.” Osborn v. Haley, 549 U.S. 225, 229-30, 127 S.Ct. 881, 894, 166 L.Ed.2d 819 (2007). “The litigation is thereafter governed by the Federal Tort Claims Act (FTCA)… [and] [i]f the action commenced in state court, the case is to be removed to a federal district court, and the certification remains “conclusiv[e] ... for purposes of removal.” Osborn, 549 U.S. at 230 (citing 28 U.S.C. § 2679(d)(2)).[3]

         The certification may, however, be subject to judicial review on the issue of whether the federal employee was acting within the “scope of employment, ” and as such, whether the United States can be properly substituted as Defendant. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995) (finding that a certification on scope of employment may be subject to judicial review). As in the current case, a plaintiff has the right to challenge the appropriateness of the certification. See Osborn, 549 U.S. at 245-46 (explaining that “the Attorney General's certification is ‘the first, but not the final word' on whether the federal officer is immune from suit….Plaintiff may request judicial review of the…scope-of-employment certification”).

         Once a certification has been made, it serves as prima facie evidence that the federal employee was acting within the scope of their employment. Pauly v. U.S. Dep't of Agri., 348 F.3d 1143, 1151 (9th Cir. 2003) (quoting Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995)). The burden then shifts to Plaintiff of disproving the appropriateness of the certification by a preponderance of the evidence. Id.

         State law governs the scope-of-employment inquiry under the Westfall Act. Id.; see also McLachlan v. Bell, 261 F.3d 908, 911 (9th Cir. 2001). Because the accident occurred in Seattle, WA, Washington State law applies:

Under Washington law, an employee acts within the scope of his employment, even if his acts are contrary to instructions or constitute intentional torts, when he is “engaged in the performance of the duties required of him by his contract of employment” or when “he [is] engaged at the time in the furtherance of the employer's interest.” Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814, 819 (1986).

Pauly, 348 F.3d at 1151 (emphasis added); Dkt. #6 at ¶ ¶ 3.1 and 3.2.

         A significant number of cases defining and applying Washington State law on scope of employment focus on the language “engaged at the time in furtherance of the employer's interest.” See Vollendorff v. United States, 951 F.2d 215, 219 (9th Cir. 1991); Dickinson v. Edwards, 105 Wn.2d 457, 467, 716 P.2d 814, 819 (1986); Elder v. Cisco Constr. Co.,52 Wn.2d 241, 245, 324 P.2d 1082 (1958); Melin-Schilling v. Imm, 149 Wn.App. 588, 591-92, 205 P.3d 905, 907 (2009). The court in Dickinson explicitly noted that the presence of a benefit to the employer is of particular emphasis in evaluating whether an employee was acting within the scope of employment. See Dickinson, ...

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