United States District Court, W.D. Washington, Seattle
DAQUAWYA L. FINLEY, Plaintiff,
GABRIEL HOLOSZYC-PIMENTEL, et al. Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
DENYING PLAINTIFF'S CROSS MOTION FOR JUDICIAL REVIEW OF
U.S. ATTORNEY'S CERTIFICATION
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
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
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.
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) 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.
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.
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.
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).
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, 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).
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. §
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 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.
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
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.
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, ...