Kharofa v. United States of America

Filing 29

MEMORANDUM OPINION and ORDER DISMISSING CASE that defendant's motion for summary judgment is GRANTED and all claims of plaintiff are DISMISSED with prejudice; cost are taxed as paid as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/8/2017. (AHI)

FILED
2017 Aug-08 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
AHMAD A. KHAROFA, as personal )
representative of the Estate of
)
Amer A. Kharofa, deceased
)
)
Plaintiff,
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)

Civil Action No. 5:15-cv-00088-CLS

MEMORANDUM OPINION AND ORDER
Ahmad A. Kharofa seeks damages for the tragic death of his son, Amer A.
Kharofa. His claim is based upon the Federal Tort Claims Act of 1946, as amended,
28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”).1 He contends that his son’s death was
wrongfully caused by the combined and concurring negligence or recklessness of
Mary Catherine Pearce and Jacob Wayne Battle, both of whom allegedly were acting
within the line and scope of their employment as Sergeants in the Alabama Army
National Guard. Specifically, plaintiff alleges that:
12. On or about June 4, 2011, upon a public road or highway,
to-wit: Lightsey Road in Bibb County, Alabama, Mary Catherine
Pearce, while acting within the line and scope of her employment with
defendant, negligently and/or recklessly operated a motor vehicle by
driving under the influence, driving over the posted speed limit, and
thereby causing her to lose control of the vehicle while she was driving.
1

See doc. no. 1 (Complaint), at 1-3.

As a result, the vehicle struck a tree with severe impact. Jacob W.
Battle, the owner of the vehicle, negligently and/or recklessly entrusted
his vehicle to Mary Catherine Pearce while acting within the line and
scope of his employment with defendant. Amer A. Kharofa was a
passenger in the vehicle.
13. As a direct and proximate result of Mary Catherine Pearce’s
negligence and/or recklessness and Jacob W. Battle’s negligence and/or
recklessness, Amer A. Kharofa perished.
Doc. no. 1 (Complaint), at ECF 3-4.2 The case now is before the court on defendant’s
renewed motion to dismiss or, in the alternative, for summary judgment.3 Following
consideration of that motion, the parties’ briefs, evidentiary submissions, and oral
arguments of counsel, the court concludes that the motion should be granted.
I. STANDARD OF REVIEW
Defendant’s motion calls into question the extent to which the Federal Tort
Claims Act waives the United States’ sovereign immunity: an issue of subject matter
jurisdiction. Binding precedent instructs that “where — as here — the existence of
2

“ECF” is an acronym formed from the initial letters of the name of a filing system that
allows parties to file and serve documents electronically (i.e., “Electronic Case Filing”). See The
Bluebook: A Uniform System of Citation, Rule 7.1.4, at 21 (Columbia Law Review Ass’n et al. eds.,
19th ed. 2010). When this court cites to pagination generated by the ECF header, it will, as here,
precede the page number(s) with the letters ECF.
3

See doc. no. 21. Defendant first filed a motion to dismiss or, in the alternative, for summary
judgment on June 8, 2015. See doc. no. 4. That motion was denied without prejudice pursuant to
Fed. R. Civ. P. 56(d), for additional discovery. See doc. no. 14. Nota bene: This action was
consolidated with a related case, Timothy Rackley, as Administrator of the Estate of Logan
Mackenzie Rackley, Deceased v. United States of America, Civil Action No. 5:15-cv-107-CLS, from
Aug. 13, 2015 through Dec. 2, 2016, the date upon which all claims asserted in the Rackley action
were dismissed pursuant to a stipulation of counsel. See doc. no. 13 (Order Granting Motion to
Consolidate); doc. no. 19 (Order Dismissing Civil Action No. 5:15-cv-107-CLS).

2

subject matter jurisdiction is inextricably intertwined with material facts affecting the
merits of the claim, a district court must be guided by the standard for summary
judgment motions under Fed. R. Civ. P. 56.” Bennett v. United States, 102 F.3d 486,
488 n.1 (11th Cir. 1996) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-30 (11th
Cir. 1990); Green v. Hill, 954 F.2d 694, 697-98 (11th Cir.), withdrawn and
superseded in part on reh’g, 968 F.2d 1098 (1992); Eaton v. Dorchester
Development, Inc., 692 F.2d 727, 734 (11th Cir. 1982)).
Rule 56 provides that a court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In other words,
summary judgment is proper “after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In making this
determination, the court must review all evidence and make all reasonable inferences
in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229
F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d
918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not
unqualified, however. “[A]n inference is not reasonable if it is ‘only a guess or a
3

possibility,’ for such an inference is not based on the evidence, but is pure conjecture
and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th
Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. SUMMARY OF FACTS
On the date of the events giving rise to this action, plaintiff’s son, Amer A.
Kharofa (“Amer”), was a 22-year-old rising senior at the University of Alabama in
Birmingham (“UAB”). He was enrolled in that school’s Reserve Officers’ Training
Corps (“ROTC”) as a “Cadet in training” to become a commissioned officer
following graduation, and serving either on active duty in the United States Army, or

4

in a Reserve Component (i.e., Army Reserve or Army National Guard).4
Toward the end of the first week of June 2011, Amer traveled to the National
Guard Armory located at 185 Walnut Street in Centreville (Bibb County), Alabama,
for the purpose of participating in a three-day “drill weekend.”5 The military
exercises began during the early-morning hours of Friday, June 3, and were scheduled
to conclude during the evening hours of the following Sunday, June 5, 2011.6 The
Alabama Army National Guard provided lodging for all soldiers who resided more
than 50 miles from the drill site at the “Windwood Inn”: a privately-owned hotel
located at 2923 Main Street in Brent (Bibb County), Alabama,7 about three-tenths
(0.3) of a mile from the Centreville National Guard Armory. Sergeant Mary

4

See generally, e.g., https://en.wikipedia.org/wiki/Reserve_Officers%27_Training_Corps
(last visited Aug. 1, 2017).
5

See, e.g., http://todaysmilitary.com/videos/drill-weekend (“It’s during Drill Weekend that
reservists pause their civilian life and resume their military career. Drill weekends can include
physical training, advanced training, and work, for their military job or Military Occupational
Specialty (MOS).”) (last visited Aug. 2, 2017).
6

See doc. no. 1 (Complaint), at ¶¶ 7-12. Plaintiff’s complaint, of course, is not evidence.
Even so, both plaintiff and defendant included these proposed facts in their briefs, and the facts are
not disputed. See doc. no. 21-1 (Defendant’s Brief), at 3 (Proposed Fact No. 2); doc. no. 23
(Plaintiff’s Brief), at 3 (Plaintiff’s Additional Undisputed Fact No. 1). Therefore, these facts will
be taken as true for summary judgment purposes. See doc. no. 15 (Uniform Initial Order), at ECF
15 (“All material facts set forth in the statement required of the moving party will be deemed to be
admitted for summary judgment purposes unless controverted by the response of the party opposing
summary judgment.”) (emphasis supplied); id. at ECF 16 (“All additional material facts set forth in
the statement required of the opposing parties will be deemed to be admitted for summary judgment
purposes unless controverted by the statement of the movant.”).
7

See doc. no. 21-2 (Declaration of Major Jason Wells), at ¶ 4; doc. no. 23-1 (Deposition of
Jacob Wayne Battle), at 21-23.

5

Catherine Pearce and Amer were among the soldiers who received that benefit for the
drill weekend.8
The soldiers were dismissed from drill at 4:30 p.m. (1630 hours) on the initial
day of drill.9 After that time, “Soldiers were free to make their own dinner plans
wherever they chose.”10 Seven of them — i.e., Mary Catherine Pearce (an E-5
Sergeant), Jacob Wayne Battle (another E-5 Sergeant who outranked Sergeant
Pearce), Logan MacKenzie Rackley (an E-4 Specialist), Stephen Trey Selman (another
E-4), Christopher Cody Hamner (the third E-4), Amanda Marie Saunders (the fourth
E-4), and Amer (“ROTC Cadet in training”) — drove from the Centreville Armory
to the Windwood Inn in Brent and changed clothes.11 Some of those soldiers, but
particularly Sergeants Pearce and Battle, began to consume alcoholic drinks
purchased with personal funds. Amer did not join in.12
After drinking for several hours, the soldiers named above climbed into
Sergeant Battle’s pick-up truck, apparently with the intention of driving to a shooting
8

See doc. no. 23-3 (Deposition of Mary Catherine Pearce), at 54-55.

9

See doc. no. 21-2 (Declaration of Major Jason Wells), at ¶ 2 (“Soldiers were released at
1630 (4:30 pm) on Friday, June 3, and Saturday, June 4.”); doc. no. 23-1 (Deposition of Jacob
Wayne Battle), at 21 (describing drill dismissal as “[b]etween 4:00 and 5:00 . . .”) (alteration
supplied).
10

Doc. no. 21-2 (Declaration of Major Jason Wells), at ¶ 3.

11

See doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 22-23; doc. no. 23-3 (Deposition
of Mary Catherine Pearce), at 57.
12

See doc. no. 21-3 (Affidavit of Amanda Saunders), at 1; doc. no. 23-1 (Deposition of Jacob
Wayne Battle), at 23-26; doc. no. 23-3 (Deposition of Mary Catherine Pearce), at 57-60.

6

range located on Lightsey Road:13 an unpaved stretch of road in Bibb County, on the
edge of the Talladega National Forest,14 approximately 7.8 miles from the Windwood
Inn in Brent. Amer was designated to drive because he had not been drinking.15
Sergeant Battle sat in the passenger seat, and Sergeant Pearce occupied the space on
the truck seat between Amer and Battle. The remaining soldiers piled into the truck
bed.16 The group then drove into the rural area near the Talladega National Forrest.
Amer was not familiar with the rural roads of Bibb County, but Sergeant Pearce
was, as a result of having lived nearby at some time in the past. Consequently, she
provided verbal directions.17 Even so, Amer still managed to become lost on the
unpaved roads in the forested area, and stopped the truck at some unspecified place.
When he did, some of the soldiers climbed out of the truck to relieve themselves in
the woods.18 When they returned, Sergeant Battle determined that they should turn

13

As plaintiff notes: “The purpose of the ride is unclear from the record; however[,] some
accounts state the group of soldiers were going to a nearby firing range.” Doc. no. 23 (Plaintiff’s
Brief), ¶ 8, at 6 (alteration supplied).
14

See doc. no. 23-3 (Deposition of Mary Catherine Pearce), at 62. See also the citations
contained in doc. no. 21-1 (Defendant’s Brief), at 4 & ¶ 5.
15

See supra note 12.

16

See doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 35-36; doc. no. 23-4 (May 5,
2012 Sworn Statement of Jacob Wayne Battle), at ECF 2.
17

See doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 30-31.

18

Id. at 31; doc. no. 23-5 (Memorandum Report of Investigating Officer Major Hearn), at ¶
3; doc. no. 23-6 (Sworn Statement of Jacob Wayne Battle), at ECF 2.

7

around and return to the hotel, to “[p]lay it safe.”19 Exactly what occurred next is
disputed.
In a handwritten statement given on June 4, 2011, the day after the events
leading to this action, Sergeant Battle said that, when the soldiers returned to the
truck after relieving themselves, “we decided to turn around and head back. At that
time Sgt Peirce [sic] insisted on driving and had pushed Cdt Karafa [sic] out of the
truck. So I unbuckled my seatbelt and moved to the middle of the truck. Cdt Karafa
[sic] got in the passenger seat. . . .”20 The statement written by Specialist Stephen
Trey Selman on the same date was consistent with Battle’s: i.e., “Sgt. Pearce then
slid him [Amer] out of the driver’s seat and he walked around to the other door to get
in.”21
Sergeant Battle’s second sworn statement, however, delivered on May 9th of
the following year, provided a slightly different account. He said that, when the truck
stopped in the woods, Sergeant Pearce unbuckled Amer’s seat belt, opened the truck
19

Doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 31 (alteration supplied). The
commanding officer of the Centreville National Guard Armory was aware that soldiers often
consumed alcoholic drinks or beverages at the end of drill, but he only issued reprimands when
drunkenness impaired a soldier’s ability to participate in the following day’s military activities.
Sergeant Battle testified that soldiers normally avoided reprimands by knowing “when to cut it off,”
and how to “regulate” the amount of alcohol consumed. Id. at 24.
20

Doc. no. 21-5 (June 4, 2011 Sworn Statement of Jacob Wayne Battle), at ECF 2
(alterations and emphasis supplied).
21

Doc. no. 21-6 (June 4, 2011 Sworn Statement of Stephen Trey Selman), at ECF 2
(alteration and emphasis supplied).

8

door, and directed Amer to “get out,” because she knew how to drive them back to
the hotel.22
Battle provided yet another version of events during his July 7, 2016
deposition, when testifying that Amer was one of the individuals who exited the truck
to relieve himself. When Amer returned to the truck cab, Sergeant Pearce already had
moved into the driver’s seat behind the steering wheel.23
Battle acknowledged during his deposition that it was not wise to allow Pearce
to drive his truck, because he knew that she had been drinking, but he told himself
that “we’ll let her drive for a few minutes and then get her out.”24 Amer urged
Sergeant Battle to allow him to continue driving, but when Battle responded “I don’t
know,” Amer walked around the truck and sat in the passenger seat.25
In any event, and despite the fact that Mary Catherine Pearce was “very
intoxicated,” it is undisputed that she assumed control of the truck.26 Battle described
what happened next in the statement delivered the following day:
As we traveled back down the dirt road Sgt Peirce [sic] started gaining
too much speed and we tried to get her to slow down. At that time we
started around a curve when we ran off the road and started down
22

See doc. no. 23-4 (May 5, 2012 Sworn Statement of Jacob Wayne Battle), at ECF 2.

23

See doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 32-33.

24

Id. at 32.

25

Id.

26

See doc. no. 23-3 (Deposition of Mary Catherine Pearce), at 59.

9

through the woods. As we side swipped [sic] one tree Cdt Karafa [sic]
fell over into my lap and we continued down through the woods untill
[sic] we struck another tree coming to a stop. Sgt Peirce [sic] climbed
over myself and Cdt Karafa [sic] to get out of the vehicle and start
checking on everybody. Sgt Peirce [sic] and Spc Saunders made it to
the top of the hill. Spc Selman dialed 911. I was unable to get out of
the truck until Fire and Rescue showed up. After I was assisted out of
the truck and helped to the top of the hill to get checked out by EMS.
Doc. no. 21-5 (June 4, 2011 Sworn Statement of Jacob Wayne Battle), at ECF 2-3.
Amer was killed instantly.27 Specialist Logan Rackley, who had been riding
in the truck bed, also died as a result of his injuries.28
The Alabama Army National Guard conducted an investigation to determine
whether Amer had died in the “Line of Duty” and, thus, whether his family was
entitled to receive financial benefits from the United States.29

The initial

investigatory report concluded that Sergeant Pearce “instructed Cadet Kharofa to pull
over and let her drive” because Amer had become lost and she was familiar with the
area.30

The investigator also concluded that Amer had not engaged in any

misconduct, and that he was acting within the line of duty when he died.31
Major Gonzalo Pinacho, a Judge Advocate General (JAG) officer, reviewed the
27

See doc. no. 23 (Plaintiff’s Brief), at ECF 11, Plaintiff’s Additional Undisputed Fact No.
14 (“Defendant has stipulated that the vehicular collision was the cause of Cadet Kharofa’s death.”).
28

See doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 36-37.

29

See doc. no. 23-9 (Deposition of Major Gonzalo Pinacho), at 17.

30

See doc. no. 23-5 (July 6, 2012 Line of Duty Determination), at ECF 1.

31

Id. at ECF 2-3.

10

initial line of duty determination on October 2, 2012, and concluded that Amer had
not engaged in any kind of misconduct that would prevent a line of duty
determination. His report stated:
Far from committing misconduct, SGT [sic] Kharofa sought to prevent
harm to his fellow soldiers by taking the initiative to drive as the only
person that had not had any alcohol on the night of his death. But SGT
Pearce frustrated this when she demanded to drive, and then took over
as driver. When that happened, SGT [sic] Kharofa no longer had control
over the vehicle. Any claim that he should have prevented SGT Pearce
from taking the wheel assumes several things[:] (1) that the
circumstances were such that SGT [sic] Kharofa had a duty to prevent
SGT Pearce from committing the crime of drunk driving; (2) that he
knew that SGT Pearce was in fact intoxicated beyond the legal limit; (3)
that he had the ability, power or opportunity to prevent SGT Pearce from
driving; and (4) that it was foreseeable that SGT Pearce would speed
along a dirt country road at night with a pick-up truck bed filled with
passengers. There is nothing in the record that would support an
affirmative answer to any of these questions, and doing so would be
rank speculation.
Doc. no. 23-10 (October 2, 2012 Memorandum Re: Legal Review of Line of Duty
Investigation), ¶ 10 (alterations and emphasis supplied to reviewer’s incorrect
recitation of Cadet Amer Kharofa’s rank, footnote omitted).
Another legal review of the initial line of duty investigation was conducted on
October 4, 2012.32 The reviewing officer noted that, even though Mary Catherine
Pearce’s drunk driving and resultant loss of control over the vehicle were the primary
32

The relationship between the October 2 and October 4 reviews and reports cannot be
determined from the record.

11

causes of Amer’s death, Amer’s conduct must be examined
to determine if his actions may be considered either as a secondary
proximate cause attaching willful negligence which would not be in the
line of duty due to [his] own misconduct /not due to [his] own
misconduct; or if Cadet Kharofa[’]s actions are simple negligence which
is insufficient/inconsistent for a determination of not in line of duty.
Doc. no. 23-8 (October 4, 2012 Memorandum to the Chief Counsel, National Guard
Bureau), at ECF 1 (alterations supplied). The reviewer considered evidence that
Amer’s
seatbelt was unfastened and he was told to get out of the seat by a
superior ranking SGT Mary Pierce [sic] who took over driving. The
actions by SGT Pierce negate any implication of intentional, or
deliberate disregard for foreseeable consequences that may be presumed
because Cadet Kharofa relinquished control to SGT Pierce. Further,
without contravening evidence that Cadet Kharofa relinquished control
of the vehicle to SGT Pierce with deliberate disregard of the
consequences we must determine that his actions rise to the level [of]
simple negligence.
Id. (alteration supplied). Additionally:
The direct evidence reflects that Cadet Kharofa’s conduct is
simple negligence in that, [sic] he volunteered to drive because he had
not been drinking which shows a regard for consequences and degree of
care. Under the surrounding circumstances he is a Cadet, twenty-two
years of age, very little military training and it is more probable that he
relinquished control of the vehicle out of duress that a senior NCO
[Non-Commissioned Officer] exerted rank over him, all but physically
forcing him out of the vehicle by unfastening his seatbelt and opening
his door. Additionally, soldiers of his age, maturity of judgment and
training would likely react similarly to a more senior NCO under similar
circumstances fearing punishment, being left and/or without recourse.
12

Id. at ECF 1-2 (alteration supplied). The reviewer concluded:
The proximate cause of the accident remains the responsibility of
SGT Pierce, and subject to the analysis above Cadet Kharofa’s
relinquishment of control of the vehicle is simple negligence and there
is no evidence of willful misconduct on his part. Similarly, there is no
evidence of intentional or willful disregard for the consequences. The
statements provided show that he fully intended to be the designated
driver but was forced to move at the direction of SGT Pierce who is
superior in rank, and age. A reasonable person of similar age[,] rank[,]
and experience would likely make a similar err[or] in judgment
succombing [sic] to the pressure of a superior[’]s direction. It is far
reaching to assume that Cadet Kharofa intended or recklessly
disregarded the dangers of someone driving under the influence when
he was flanked by more superior NCO’s and there is no evidence that
SGT Battle attempted to support him in opposing SGT Pierce taking
over driving.
Id. at ECF 2 (alterations supplied).33
III. DISCUSSION
Plaintiff claims that his son’s death was proximately caused by Sergeant Jacob
Wayne Battle’s negligent and/or reckless entrustment of his pick-up truck to the
control of Sergeant Mary Catherine Pearce while she was intoxicated, and by
Sergeant Pearce’s subsequent negligent and/or reckless operation of the truck.34
The Federal Tort Claims Act waives the sovereign immunity of the United
States and permits the recovery of money damages for “personal injury or death
33

There is no explanation in the record why this reviewing officer believed Sergeants Jacob
Wayne Battle and Mary Catherine Pearce to be Amer’s superior officers, when the Army Regulations
cited by the government’s attorney clearly indicates that they were not.
34

See doc. no. 1 (Complaint), at ¶¶ 12-13.

13

caused by the negligent or wrongful act or omission of any employee of the
Government” while acting within the line and scope of the employee’s office or
employment, and “under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act
or omission occurred.” 28 U.S.C. § 1346(b)(1); see also, e.g., Federal Deposit
Insurance Corp. v. Meyer, 510 U.S. 471, 475-76 (1994) (citing § 1346(b), and
observing that the Act “waived the sovereign immunity of the United States for
certain torts committed by federal employees”).
Another provision of the Act defines the statutory reference to “any employee
of the Government” as including “members of the National Guard while engaged in
training or duty.” 28 U.S.C. § 2671 (emphasis supplied). The same statute defines
the phrase “acting within the scope of his office or employment” as meaning, in the
context of a member of the National Guard, “acting in line of duty.” Id. (emphasis
supplied).35
35

The full text of § 2671 reads as follows:

As used in this chapter and sections 1346(b) and 2401(b) of this title, the term
“Federal agency” includes the executive departments, the judicial and legislative
branches, the military departments, independent establishments of the United States,
and corporations primarily acting as instrumentalities or agencies of the United
States, but does not include any contractor with the United States.
“Employee of the government” includes (1) officers or employees of any
federal agency, members of the military or naval forces of the United States,
members of the National Guard while engaged in training or duty under section 115,

14

Sergeant Battle testified that he and the other soldiers were placed on active
duty status for the June 3-5, 2011 weekend, and that they remained on duty even
when they were not physically present at the National Guard Armory.36 That
testimony was not disputed. Thus, it seems apparent that Sergeants Pearce and Battle
were “engaged in training or duty” at the time of the accident, and that they were
federal employees for purposes of the FTCA. The remaining question is whether
their actions and inactions leading to the accident were taken within the line and
scope of their employment with the Guard.
“The question of whether an employee’s conduct was within the scope of his
employment ‘is governed by the law of the state where the incident occurred.’” Flohr
v. Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996) (quoting S.J. & W. Ranch, Inc. v.
Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990)). Here, the accident occurred in
Alabama and, thus, the law of that State applies.
316, 502, 503, 504, or 505 of title 32, and persons acting on behalf of a federal
agency in an official capacity, temporarily or permanently in the service of the United
States, whether with or without compensation, and (2) any officer or employee of a
Federal public defender organization, except when such officer or employee performs
professional services in the course of providing representation under section 3006A
of title 18.
“Acting within the scope of his office or employment,” in the case of a
member of the military or naval forces of the United States or a member of the
National Guard as defined in section 101(3) of title 32, means acting in line of duty.
28 U.S.C. § 2671 (emphasis supplied).
36

See doc. no. 23-1 (Deposition of Jacob Wayne Battle), at 41-44 (alteration supplied).

15

The Alabama Supreme Court has repeatedly held that:
The rule which has been approved for determining whether certain
conduct of an employee is within the line and scope of his employment
is substantially that if an employee is engaged to perform a certain
service, whatever he does to that end, or in furtherance of the
employment, is deemed by law to be an act done within the scope of the
employment.
Nelson v. Johnson, 88 So. 2d 358, 361 (Ala. 1956) (citing Railway Express Agency
v. Burns, 225 Ala. 557, 52 So. 2d 177 (1950), and Rochester-Hall Drug Co. v.
Bowden, 218 Ala. 242, 118 So. 674 (1928)); see also, e.g., Doe v. Swift, 570 So. 2d
1209, 1211 (Ala. 1990) (same); Solmica of Gulf Coast, Inc. v. Braggs, 232 So. 2d
638, 642 (Ala. 1970) (same). “Such conduct, to come within the rule, must not be
impelled by motives that are wholly personal, or to gratify his own feelings or
resentment, but should be in promotion of the business of his employment.”
Rochester-Hall Drug Co., 118 So. at 674 (citation omitted); see also Solmica, 232 So.
2d at 642 (same). Moreover, “the dispositive question is whether the employee was
engaged in an act that he was hired to perform or in conduct that conferred a benefit
on his employer.” Hulbert v. State Farm Mutual Automobile Insurance Co., 723 So.
2d 22, 24 (Ala. 1998) (internal citations omitted).
Sergeants Pearce and Battle were not employed to drink alcohol or to go on joy
rides. Their consumption of alcohol during the night after the first day of drill duty

16

did not further their employment with the Alabama National Guard, or confer a
benefit on the Guard. If anything, their consumption of alcohol likely would have
had the opposite effect, by impairing their performance during the following day’s
drill duty. They also did not purchase their alcoholic drinks with government funds,
and they changed out of their Guard uniforms and left the Armory property before
beginning to consume alcoholic beverages or liquor. The same principles apply to
Sergeant Pearce’s decision to drive Sergeant Battle’s truck while intoxicated, and to
Sergeant Battle’s decision to allow her to do so. Those were wholly personal actions
that had nothing to do with their official duties as members of the Alabama National
Guard. Cf. Acadia Insurance Co. v. United States, 674 F. App’x 938, 940 (11th Cir.
2017) (holding that an FBI agent who may have started a fire while smoking
cigarettes on the balcony of the hotel in which he was staying while out of town for
a training course would not have been acting within the line and scope of his
employment because the agent was off-duty and unsupervised for the evening, and
the FBI prohibited the purchase of cigarettes with a government credit card).
Plaintiff asserts that Sergeant Pearce was acting within the line and scope of
her employment when she took over the wheel of the truck, because she was
attempting to confer upon her employer, the Alabama Army National Guard, the
benefit of returning the group of soldiers to their hotel in order to report on time for
17

the following day’s drill duties. Plaintiff extends the same argument to Sergeant
Battle, who, he asserts, was assisting in Sergeant Pearce’s efforts by allowing her to
drive his truck despite her intoxication. Plaintiff relies upon the Alabama Supreme
Court’s decision in Solmica of Gulf Coast, Inc. v. Braggs, 232 So. 2d 638 (Ala. 1970).
There, an employee of Solmica caused an accident in his personal vehicle after
normal work hours and after consuming alcohol. Id. at 640-62. The employee told
investigating officers that, at the time of the accident, he was “probably” returning to
Solmica’s office to collect additional construction supplies that were needed for the
following day’s work, but which had not been available earlier in the day. Id. at 641.
The evidence also showed that it was customary for employees to collect supplies
during the afternoon or night hours before a job, because they might have to arrive
at a job site too early in the morning to retrieve the supplies before normal work
hours. Id. at 643. The court held that there was sufficient evidence to go to the jury
on the issue of whether the employee was acting within the line and scope of his
employment at the time of the accident, because
one of [the employee’s] duties was to take Solmica’s material to the job
he was working on and Solmica permitted him to pick the materials up
after regular office hours, and it was in the furtherance of his
employment and a benefit both to him and to Solmica to get the
materials on the job.
Id. at 643 (alteration supplied).
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According to plaintiff, just as the employee in Braggs conferred a benefit on
his employer by obtaining, after regular office hours, the construction materials that
were necessary for the next day’s work, Sergeants Pearce and Battle conferred a
benefit on the Army National Guard by attempting to ensure that the group of soldiers
was returned to their hotel in time to report for the following day’s drill.
Plaintiff’s interpretation stretches the Braggs holding too far. Here, it was not
the regular duty of either Sergeant Pearce or Battle to transport other Guardsmen to
the Armory for drill, or to ensure that any other Guardsmen were present for drill.
There is no indication that any of the other Guardsmen regularly relied upon
Sergeants Pearce or Battle for transportation. There also is no indication that it was
customary, or encouraged by the Guard, for officers to take late-night joyrides on
unfamiliar roads during drill weekends, thus necessitating someone with superior
knowledge of the roadways to ensure their safe return to their hotel. To the extent
that the other Guardsmen were forced to rely upon Jacob Wayne Battle’s truck and
Mary Catherine Pearce’s driving to return to their hotel before reporting for drill duty
the following day, it was only because they had placed themselves, for wholly
personal reasons, in the position of needing a ride. Thus, this case is not like Braggs,
where neither the driver nor any of the other employees in his crew could have
fulfilled the obligations of their employment unless the driver returned to the office
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to obtain construction materials needed at the beginning of the next day’s work.
Plaintiff also argues that, because Sergeants Pearce and Battle were older and
had more years of military experience than Amer, they took a “leadership role” during
those events that led to Sergeant Pearce’s assumption of control over the truck.37 That
argument has no effect upon the “line and scope of employment” analysis. Plaintiff
acknowledges that, because Amer was a Cadet in training to become an officer upon
completion of his ROTC program and graduation from UAB, and Sergeants Pearce
and Battle were non-commissioned officers, “neither Pearce nor Battle could ‘order’
[Amer] to do anything in the military sense of the word.”38 The fact that Mary
Catherine Pearce and Jacob Wayne Battle may have assumed, or may have been
presumed to have, some sort of leadership role within the social group of seven
Guardsmen who were riding in Battle’s truck after drill hours on the night of the
accident has no bearing on the issue of whether the United States should be held
liable for the negligence or recklessness of Sergeants Pearce and Battle.
Finally, plaintiff argues that the results of the National Guard’s “line of duty”
investigation are “strongly suggestive” of a finding that Battle was acting within the
line and scope of his employment when he entrusted his vehicle to Mary Catherine

37

See doc. no. 23 (Plaintiff’s Brief), at ECF 20.

38

Id. (alteration supplied).

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Pearce on the evening of the accident.39 That argument fails for several reasons.
First, the purpose of the Guard’s line of duty investigation was to determine whether
Amer was acting within the line of duty when he died, such that his family would be
eligible for financial benefits from the United States. The investigation had nothing
to do with whether Battle was acting in the line of duty. Even if it had, the line of
duty determination was conducted pursuant to Army Regulation 600-8-4, at ¶ 2-2e(5),
which provides for benefits to National Guard members who are injured “while
remaining overnight immediately before the commencement of inactive duty training,
or while remaining overnight, between successive periods of inactive duty training,
at or in the vicinity of the site of the inactive training.” That regulation is not based
upon the same policies, and does not require the same type of analysis, as the
Alabama common law cases governing line and scope of employment. A “line of
duty” determination might be more persuasive in determining whether the tortfeasor
was an employee of the government at the time of the tort, but it simply does not
inform the question of whether an employee was acting within the line and scope of
his employment. In fact, the regulation governing line of duty determinations

39

Plaintiff does not even attempt to make the same argument with regard to Mary Catherine
Pearce, instead acknowledging that, as a result of her own misconduct, Pearce would have been
found to be not acting within the line of duty. See doc. no. 23 (Plaintiff’s Brief), at 18 n.2 (“The
Army regulations applied to Sergeant Pearce at the time would have resulted in a finding of ‘not in
the line of duty, due to own misconduct.’”).

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explicitly states that it “has no bearing on the meaning or application of the phrase
‘acting within the scope of his office or employment’ as used in the context of [the
FTCA].” Army Regulation 600-8-4, at i (alteration supplied).40
IV. CONCLUSION AND ORDER
This was a tragic death. The life of a bright and promising young man was cut
short as a result of irresponsible decisions by two older soldiers. Based upon their
greater experience, one would have expected more mature behavior. Even so, this
court finds that neither Jacob Wayne Battle nor Mary Catherine Pearce was acting
within the line and scope of his or her employment as Sergeants with the Alabama
Army National Guard at the time and place of the events that caused the death of
plaintiff’s son, Amer Kharofa. Accordingly, there is no basis for holding the United
States liable for the negligence or recklessness of Sergeants Pearce and Battle under
the Federal Tort Claims Act.

Defendant’s motion for summary judgment is

GRANTED, and all claims of plaintiff are DISMISSED with prejudice. Costs are
taxed as paid. The Clerk is directed to close this file.
40

Because this court has determined that the line of duty determination has little to no bearing
on the issue of whether Mary Catherine Pearce and Jacob Wayne Battle were acting within the line
and scope of their employment with the National Guard at the time of the accident, there is no need
to consider defendant’s argument that, if any of the pertinent Guardsmen were acting within the line
of duty, plaintiff’s claims might be barred by the Supreme Court’s decision in Feres v. United States,
340 U.S. 135 (1950), which held that “the Government is not liable under the Federal Tort Claims
Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident
to service.” Id. at 146.

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DONE this 8th day of August, 2017.

______________________________
United States District Judge

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