LeRose v. United States , 285 F. App'x 93 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1256
JOHN STEVEN LEROSE; REBECCA LAUREN LEROSE-SWEENEY; FRANK
GIGLIOTTI; EUGENE FRANCIS CONNELLY; RONALD AMATI,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee,
and
WILLIAM D. COGER, JR.,
Defendant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:03-cv-02372)
Argued: March 18, 2008 Decided: July 10, 2008
Before MICHAEL and GREGORY, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Michael and Senior Judge Hansen joined.
ARGUED: Eric Bruce Snyder, BAILEY & GLASSER, L.L.P., Charleston,
West Virginia, for Appellants. Fred B. Westfall, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee. ON BRIEF: Benjamin L. Bailey, BAILEY & GLASSER,
L.L.P., Charleston, West Virginia, for Appellants. Charles T.
Miller, United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
John LeRose, Rebecca LeRose-Sweeney, Frank Gigliotti,
Eugene Connelly and Ronald Amati (“Plaintiffs”) filed a suit
against the United States of America (“United States”) under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et
seq., asserting that the United States negligently hired,
retained, and supervised William Coger (“Coger”), a former
federal correctional officer, who extorted, inter alia, money
from the Plaintiffs. Plaintiffs also assert a vicarious
liability claim against the United States based on Coger’s
alleged misconduct. The district court granted the United
States’s motion to dismiss for lack of subject matter
jurisdiction based on the discretionary function exception to
the FTCA. On appeal, Plaintiffs contend that the district court
erred by shifting the burden of proof to them that the
discretionary function exception did not apply. Plaintiffs also
argue that the district court incorrectly held that under West
Virginia law, Coger’s alleged conduct was outside the scope of
employment. We disagree and affirm the district court’s
decisions.
I.
Plaintiffs asserted negligent hiring, supervision, and
retention claims under the FTCA against the United States
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arising from events that allegedly transpired at FCI Morgantown,
a federal prison, and involved Coger, a former correctional
officer at FCI Morgantown. Plaintiffs contended that Coger
inflicted intentional emotional distress upon them “by
attempting to extort and extorting money and other property from
each of them.” Coger allegedly demanded a truck, money,
employment outside the prison, and football tickets among other
things.
The United States denied Plaintiffs’ allegations and
contended that Plaintiffs’ claims should be dismissed on summary
judgment and/or lack of subject matter jurisdiction. The United
States argued that Plaintiffs’ theories of negligent hiring,
supervision, and retention were barred by the discretionary
function exception to the FTCA. In addition, the United States
asserted that it was not vicariously liable for Coger’s alleged
misconduct because he had clearly acted beyond the scope of his
employment as a correctional officer and had engaged in improper
actions for his own purely personal motives.
The district court granted the United States’s motion to
dismiss for lack of subject matter jurisdiction based on the
discretionary function exception to the FTCA found in 28 U.S.C.
§ 2680(a) and dismissed the Plaintiffs’ claims for negligent
hiring, supervision, and retention against the United States.
The district court also granted the United States’s motion for
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summary judgment with regard to Plaintiffs’ claim based on
vicarious liability because Coger acted purely in his own
personal interests and outside the scope of his employment with
the United States and Bureau of Prisons (“BOP”). (J.A. 720-67.)
Plaintiffs subsequently filed a notice of appeal with
regard to the district court’s order. We dismissed that appeal,
ruling that Plaintiffs’ did not appeal a final order or an
otherwise appealable interlocutory or collateral order. The
district court entered a final judgment in favor of the United
States pursuant to Federal Rules of Civil Procedure Rule 54(b).
Plaintiffs then filed a notice of appeal.
II.
On appeal, Plaintiffs contend that the district court
erred: (1) by placing the burden of proof on them to establish
that the discretionary function exception, 28 U.S.C. § 2680(a)
did not deprive the district court of subject matter
jurisdiction under 28 U.S.C. § 1346(b)(1) of the FTCA; (2) by
improperly granting the United States’s motion to dismiss for
lack of subject matter jurisdiction; and (3) by improperly
granting the United States’s motion for summary judgment on the
Plaintiffs’ vicarious liability claim. We address each of the
Plaintiffs’ claims below seriatim.
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A.
Plaintiffs argue the district court improperly placed the
burden on them to prove that the discretionary function
exemption under the FTCA did not apply. The FTCA creates a
limited waiver of the United States’s sovereign immunity by
authorizing damage actions for injuries caused by the tortious
conduct of federal employees acting within the scope of their
employment, when a private person would be liable for such
conduct under state law. See 28 U.S.C.A. § 1346(b)(1). This
waiver of sovereign immunity, however, is subject to exceptions.
“The most important of these [exceptions] ... is the
discretionary function exception,” McMellon v. United States,
387 F.3d 329, 335 (4th Cir. 2004) (en banc), cert. denied, 544
U.S. 974, 125 S.Ct. 1828 (2005), which provides that the United
States is not liable for “[a]ny claim ... based upon the
exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency
or an employee of the Government, whether or not the discretion
involved be abused,” 28 U.S.C.A. § 2680(a).
The discretionary function exception “marks the boundary
between Congress’ willingness to impose tort liability upon the
United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.”
United States v. S.A. Empresa de Viacao Aerea Rio Grandense
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(Varig Airlines), 467 U.S. 797, 808 (1984). Congress enacted
this exception “to prevent judicial second-guessing of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action
in tort ... [and] to protect the Government from liability that
would seriously handicap efficient government operations.” Id.
at 814 (internal quotation marks omitted).
In Welch v. United States, 409 F.3d 646 (4th Cir. 2005), we
ruled that the plaintiffs bore the burden of proof to show an
unequivocal waiver of sovereign immunity exists and to show that
none of the FTCA’s waiver exceptions apply. However, Plaintiffs
in this case attempt to get around our clear precedent by
arguing that because Welch was decided in the context of the due
care exemption, it is distinguishable from their case which
concerns the discretionary function exemption. We find their
argument unpersuasive because our holding in Welch clearly dealt
with all FTCA exemptions. See also Williams v. United States,
50 F.3d 299, 304 (4th Cir. 1995) (“plaintiff bears the burden of
persuasion if subject matter jurisdiction is
challenged...because ‘the party who sues the United States bears
the burden of pointing to...an unequivocal waiver of
immunity’”).
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B.
Next, Plaintiffs contend that the district court improperly
granted the United States’s motion to dismiss for lack of
subject matter jurisdiction because the Plaintiffs did not
establish that the discretionary function exemption did not
apply. We review a grant of dismissal under Federal Rules of
Civil Procedure Rule 12 (b)(1) for lack of subject matter
jurisdiction de novo. Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4th Cir. 1999). As we stated above, plaintiffs have the
burden in an FTCA case to prove an unequivocal waiver of
sovereign immunity and the existence of subject matter
jurisdiction. Welch, 409 F.3d at 650-51.
To determine whether conduct by a federal agency or
employee fits within the discretionary function exception, we
must first decide whether the challenged conduct “involves an
element of judgment or choice.” Berkovitz v. United States, 486
U.S. 531, 536, 108 S.Ct. 1954 (1988); see Id. (explaining that
“the discretionary function exception will not apply when a
federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow” because “the
employee has no rightful option but to adhere to the
directive”). If the conduct does involve such discretionary
judgment, then we must determine “whether that judgment is of
the kind that the discretionary function exception was designed
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to shield,” i.e., whether the challenged action is “based on
considerations of public policy.” Id. at 536-37. This inquiry
focuses “not on the agent’s subjective intent in exercising the
discretion . . ., but on the nature of the actions taken and on
whether they are susceptible to policy analysis.” United States
v. Gaubert, 499 U.S. 315, 325 (1991). Thus, “a reviewing court
in the usual case is to look to the nature of the challenged
decision in an objective, or general sense, and ask whether that
decision is one which we would expect inherently to be grounded
in considerations of policy.” Baum v. United States, 986 F.2d
716, 720-21 (4th Cir.1993). Moreover, when a statute,
regulation, or agency guideline permits a government agent to
exercise discretion, “it must be presumed that the agent’s acts
are grounded in policy when exercising that discretion.”
Gaubert, 499 U.S. at 324.
The BOP’s decisions regarding the hiring, supervision and
retention of Coger are precisely the type of decisions that are
protected under the discretionary function exception. We
previously decided that government employers’ hiring and
supervisory decisions are discretionary functions. Suter v.
United States, 441 F.3d 306, 312 n.6 (4th Cir. 2006). The
hiring of an employee involves several public policy
considerations including the weighing of the qualifications of
candidates, weighing of the backgrounds of applicants,
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consideration of staffing requirements, evaluation of the
experience of candidates, and assessment of budgetary and
economic considerations. Because this process is multi-faceted,
it is precisely the type of decision that Congress intended to
shield from liability through the discretionary function
exception. The district court properly dismissed the
Plaintiffs’ negligent hiring, supervision and retention claim.
C.
Finally, Plaintiffs argue the district court improperly
granted summary judgment on their vicarious liability claim. We
review a district court’s grant of summary judgment de novo.
Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). Under West
Virginia law, an employer cannot be held vicariously liable for
an employee’s misconduct if the employee engaged in criminal
misconduct for his or her own purpose and interest. In Foodland
v. State, 532 S.E.2d 661 (W. Va. 2000), the Supreme Court of
Appeals of West Virginia defined the term “scope of employment”
under West Virginia law:
“Scope of employment” is a relative term and requires
a consideration of surrounding circumstances,
including the character of the employment, the nature
of the wrongful deed, the time and place of its
commission and the purpose of the act.
In general terms, it may be said that an act is within
the course of employment, if: (1) It is something
fairly and naturally incident to the business and (2)
it is done while the servant was engaged upon the
master’s business and is done, although mistakenly or
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ill-advisedly, with a view to further the master’s
interests, or from some impulse or emotion which
naturally grew out of or was incident to the attempt
to perform the master’s business, and did not arise
wholly from some external, independent and personal
motive on the part of the servant to do the act upon
his own account.
In Foodland, a store employee stole money from “WIC”, a special
supplemental nutrition program for women, infants and children.
The Supreme Court of Appeals of West Virginia found that
“[e]mployee theft [was] certainly not naturally incident to the
owner’s business and even though the act was done while the
cashier was engaged in the owner’s business, the theft was not
done with a view to further the owner’s interests. The theft
arose from a personal motive on the part of the cashier to
further her own interests. Under these circumstances, the
employee theft from the WIC program simply does not fit within
her scope of employment.” Foodland, 532 S.E.2d at 665.
The alleged misconduct in this case was clearly for Coger’s
own personal interests. His demand for a truck, money,
employment outside the prison, and football tickets were
obviously based on his personal motives and were an attempt to
derive benefits for his own personal gain. His threats and acts
of intimidation were not designed to further the management and
operation of the BOP but rather his own personal interests.
Because this type of conduct was specifically barred by the
BOP’s rules of conduct, was obviously for Coger’s own personal
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gain, and was not intended to benefit the BOP or the United
States, the district court correctly concluded that the United
States cannot be vicariously liable for such misconduct.
Coger’s actions were beyond the scope of his employment with the
BOP and thus could not be imputed to the United States. The
district court properly granted summary judgment in favor of the
United States on the Plaintiffs’ vicarious liability claim.
III.
For the foregoing reasons, we affirm the district court’s
decisions.
AFFIRMED
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