MOORE v. BYRNES
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE GERALD A. MCHUGH ON 6/21/17. 6/21/17 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KEVIN M. BYRNES,
June 21, 2017
This is a personal injury suit arising out of an automobile accident. The allegedly
negligent party was a DEA agent driving a government vehicle; accordingly, the United States
moved to assume his defense and remove the action from state court under the Federal Tort
Claims Act (FTCA). See ECF #3, Mot. to Substitute U.S. and Dismiss the Compl. The
Government’s removal notice asserted that defendant Kevin Byrnes was a federal employee, but
failed to provide a Certification that he was acting in an official capacity. That defect was later
remedied by a certification signed by the Deputy Chief of the Civil Division of the Office of the
United States Attorney. Plaintiff contested federal jurisdiction, and moved to remand. Because
Plaintiff disputed jurisdiction, citing specific remarks made by the agent following the accident
as to what he was doing at the time, I ordered the government to submit an affidavit from him.
Simultaneously, I ordered Plaintiff to respond to the Government’s contention that she had the
consented to federal jurisdiction by presenting a claim for property damage. The record is now
Citing the Westfall Act, 28 U.S.C. Section 2679(d)(2), the Government asserts that
certification by the Attorney General “conclusively establishes the employee is acting in the
scope of employment.” Opp. to Mot. to Remand at 2. The Government is correct. Under the
FTCA, as to certain categories of employees, including law enforcement agents, the Attorney
General can insist upon federal court as the forum to resolve the case, even if the plaintiff can
prove that the government employee in question was acting outside the course and scope of
employment. As held by the Supreme Court, “Congress has barred a District Court from passing
the case back to the state court where it originated based on the court’s disagreement with the
Attorney General’s scope-of-employment determination.” Osborne v. Haley, 549 U.S. 225, 127
S. St. 881, 895 (2007). In point of fact, the Third Circuit had interpreted the Westfall Act in this
manner even before the Supreme Court did. See Aliota v. Graham, 984 F.2d 1350, 1356 (3d
Cir.1993). As to this class of federal employees, for policy reasons, Congress has specified that
certification by the Attorney General is in fact dispositive, irrespective of the merits.
I conclude therefore that this case was properly removed, and that the United States of
America must be substituted as the defendant. Furthermore, because this action is governed by
the FTCA, Plaintiff is required to present an administrative claim before filing suit. 28 U.S.C. §
2675(a). This requirement is jurisdictional. Tucker v. United States Postal Service, 676 F.2d
954, 959 (3d Cir.1982). I am therefore constrained to grant the Government’s Motion to Dismiss
pending the presentation of an administrative claim.
/s/ Gerald Austin McHugh
United States District Judge
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