Forsythe et al v. Mukasey et al

Filing 52

ORDER AFFORDING PLAINTIFFS LEAVE TO FILE NOTICE IN RESPONSE TO CERTIFICATION FILED MAY 8, 2009. The Court affords the Forsythes leave to file, no later than May 26, 2009, a notice stating whether they intend to contest the certification filed May 8, 2009. In the event the Forsythes file a timely notice stating their intent to contest the certification, the Forsythes shall file, no later than June 22, 2009, supplemental opposition, and the Federal Defendants, no later than July 13, 2009, shall file any supplemental reply. Signed by Judge Maxine M. Chesney on May 14, 2009. (mmclc1, COURT STAFF) (Filed on 5/14/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is the "Federal Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint," filed March 25, 2009. The "Federal Defendants" are (1) Eric Holder, sued in his official capacity as Attorney General, United States Department of Justice ("Holder"); (2) Charles E. Johnson, sued in his official capacity as Acting Secretary of the Department of Health and Human Services ("Johnson"); (3) Frank Torti, in his official capacity as Acting Commissioner of the United States Food and Drug Administration ("Torti"); (4) John Zelinksy ("Zelinksy"); and (5) Robert Perlstein, M.D. ("Dr. Perlstein"). Plaintiffs James W. Forsythe, M.D. ("Dr. Forsythe") and Earlene Forsythe (collectively, "the Forsythes") have filed opposition, to which Federal Defendants have replied. On May 8, 2009, after the above-referenced motion had been fully briefed and was under submission, the Federal Defendants filed a "Certification Pursuant to 28 U.S.C. § 2679(d)." In said Certification, Joann M. Swanson ("Swanson"), counsel for Federal v. ERIC HOLDER, et al., Defendants / JAMES W. FORSYTHE, M.D., et al., Plaintiffs, No. C-08-5160 MMC ORDER AFFORDING PLAINTIFFS LEAVE TO FILE NOTICE IN RESPONSE TO CERTIFICATION FILED MAY 8, 2009 United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Defendants, states she has been authorized, pursuant to 28 C.F.R. § 15.3, to certify that any of the "federal employee[s] named as a defendant in a civil action was acting within the course and scope of his or her employment with reference to the matters alleged in the suit." (See Swanson Decl. ¶ 1.) Swanson further declares, on the basis of her review of the First Amended Complaint and "certain other information provided" to her, that Zelinksy and Perlstein "were acting within the course and scope of their employment with the U.S. Food and Drug Administration." (See id. ¶ 2.) Where the Attorney General or his designee has certified 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," the employee is dismissed as a defendant and the United States is "substituted as the party defendant," except to the extent the plaintiff has alleged "constitutional claims" against the employee. See Billings v. United States, 57 F.3d 797, 799-800 (9th Cir. 1995). "Certification by the Attorney General is prima facie evidence that a federal employee was acting in the scope of [his] employment at the time of the incident and is conclusive unless challenged." Id. at 800. "The party seeking review bears the burden of presenting evidence and disproving the Attorney General's certification by a preponderance of the evidence." Id. Here, the Forsythes have alleged both constitutional and non-constitutional claims against Zelinsky and Perlstein. Consequently, unless the Forsythes can meet their burden of disproving the certification filed May 8, 2009, Zelinksy and Perlstein are properly dismissed as defendants from each of the non-constitutional claims and the United States substituted therefor.1 Accordingly, the Court hereby affords the Forsythes leave to file, no later than May 26, 2009, a notice stating whether they intend to contest the certification filed May 8, 2009. // With respect to the merits of the action as against the United States, the Federal Defendants, in their pending motion to dismiss, have argued that each of the nonconstitutional claims alleged against the United States should be dismissed, and the Forsythes, in their opposition thereto, have responded to the merits of such argument. 2
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In the event the Forsythes file a timely notice stating their intent to contest the certification, the Court hereby sets the following briefing schedule: 1. No later than June 22, 2009, the Forsythes shall file a supplemental opposition, not to exceed ten pages, and any supporting evidence, such opposition and evidence being limited to the sole issue of whether Zelinsky and/or Perlstein were acting within the scope of their employment at the time of the incidents out of which the Forsythes claims arise. 2. No later than July 13, 2009, the United States shall file any supplemental reply, not to exceed ten pages, and any supporting evidence. Alternatively, in the event the Forsythes, as of May 26, 2009, have filed a notice stating they will not contest the certification, the Court will deem the Federal Defendants' motion to dismiss resubmitted as of May 26, 2009. IT IS SO ORDERED.

Dated: May 14, 2009

MAXINE M. CHESNEY United States District Judge

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