Van Zee v. Burmeister

Filing 18

MEMORANDUM OPINION AND ORDER granting 3 Motion to Substitute Party. United States of America added. Donald Burmeister terminated; granting 3 Motion to Dismiss for Lack of Jurisdiction; denying 6 Motion to Remand to State Court. Signed by U.S. District Judge Lawrence L. Piersol on 7/14/2021. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

*

RACHEL VANZEE,

*

CIV 21-4021

*

Plaintiff,

*
*

-vs-

*

MEMORANDUM OPINION

*

DONALD BURMEISTER,

AND ORDER

*
*

Defendant.

*
*

*

Pending before the Court are the United States's motion to substitute itself as the party
defendant and to dismiss for laek ofjurisdiction, and PlaintiffRachel VanZee's("VanZee")motion
to remand the ease to state court. (Does. 3 and 6.) For the following reasons, VanZee's motion to
remand is denied and the United States's motion is granted.
BACKGROUND

This litigation arises out of an automobile accident that occurred in Aurora County, South
Dakota on December 21,2017. On July 22,2020, VanZee filed a complaint in the Circuit Court of

Aurora County, South Dakota against Donald Burmeister ("Burmeister"). (Doe. I-I.) VanZee

alleges that she suffered injuries in the December 2017 motor vehicle accident, and that the accident
was caused by Burmeister's negligence. {Id.)

On September 9, 2020, VanZee received answers to interrogatories in which Burmeister
stated that he was delivering mail in the course of his employment with the U.S. Postal Service at
the time of the accident with VanZee. (Doc. 8-5.) During his deposition on January 12, 2021,

Burmeister testified that prior to the accident he was delivering mail,working his usual shift Monday

through Saturday.(Doc. 2-4,Burmeister Tr. 4:24-25, 5:1-9.) He was driving his normal route. {Id.
at 7:7-13.) Burmeister had made a delivery and was heading towards his next delivery when the
accident happened. {Id. at 9:6-25 and 10:1-8.)

On January 13, 2021, counsel for Burmeister sent an email to the U.S. Attorney asking for
information about obtaining a eertifieation that Burmeister was acting in the course and scope ofhis
employment with the U.S. Postal Service pursuant to 28 U.S.C. § 2679. (Doc. 10-1.)

On February 11,2021,the United States removed the aetion to federal court. (Doc. 1.) The
next day, the United States filed a motion to substitute itself as the defendant for the reason that the
U.S. Attorney eertified that, at the time ofthe accident, Burmeister was delivering mail in the scope
of his federal employment with the U.S. Postal Serviee. (Doc. 3). A copy of the Seope of

Employment Certification was filed by the Assistant U.S. Attorney. (Doc. 2.) The United States
also moved to dismiss for lack ofsubject matterjurisdiction due to VanZee's failure to eomply with

28 U.S.C. § 2675(a), which requires a plaintiff to file an administrative claim with the U.S. Postal
Service prior to filing a lawsuit. (Doe. 3.)
VanZee opposes the United State's motions and moves to remand the ease to state eourt.

(Doe.6.) She does not contend that she exhausted her administrative remedies,nor does she dispute
the fact that Burmeister was acting in the scope of his employment with the U.S. Postal Service at
the time of the accident. Rather, VanZee asserts that the U.S. Attorney's removal was untimely

under the general federal removal statute, 28 U.S.C. § 1446, which requires removal within thirty

days after service upon the defendant. Service was made on Burmeister on June 24,2020.(Doc. 8-

3.) Notice ofRemoval was filed on February 11,2021. (Doc. 1.) VanZee argues that the thirty-day
time limit for removal began to run, at the latest, when Burmeister disclosed that he was working

in the scope of his federal employment at the time of the accident in his sworn answers to
interrogatories on September 9, 2020. She contends that, even if the thirty-day period for removal
was triggered by Burmeister's answers to interrogatories, the Notice ofRemoval filed on February
11, 2021 still is untimely.

In addition, VanZee argues that Burmeister waived any protections afforded by the Federal

Tort Claims Act by failing to assert the FTCA as an affirmative defense in his answer to the

complaint. Finally, VanZee asserts that granting the United States's motions would be unjust.
On May 4, 2021, the Court issued an Order requesting additional briefing fiom the parties
to address whether Burmeister waived his entitlement to coverage under the FTCA by failing to

notify the government ofVanZee's lawsuit against him in a more timely fashion. (Doc. 15.) In her

response to the Order, VanZee again argued that Burmeister's failure to raise the FTCA as an
affirmative defense in his answer constitutes a waiver of any protection afforded under the Act.
(Doc. 16.)
DISCUSSION

"[S]overeign immunity shields the Federal Government and its agencies from suit." Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471,475(1994). The Federal Tort Claims Act("FTCA")is
a limited waiver of the federal government's sovereign immunity from claims for injury, property

loss, or death caused by any federal government employee "while acting within the scope of his
office or employment, under circumstances where the United States, if a private person, would he
liable to the claimant in accordance with the law ofthe place where the act or omission occurred."
28 U.S.C. § 1346(b)(1); see also Mader v. United States, 654 F.3d 794, 797(8th Cir. 2011). The

FTCA provides that a suit against the United States is the exclusive remedy for damages for injury
or loss of property "resulting from the negligent or wrongful conduct of any employee of the
Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(h)(1).
1. Certification and Removal

When a federal employee is sued, the Attorney General has the authority to certify that the
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). Under the FTCA's implementing regulations,
the United States Attorney for the district where the action is brought is authorized to make the
certification provided for in 28 U.S.C. 2679(d). See 28 C.F.R. § 15.4. The FTCA further provides
that

[ujpon certification by the Attorney General that the defendant employee was acting
within the scope ofhis office or employment at the time ofthe incident out of which
the claim arose,any civil action or proceeding commenced upon such claim in a State
court shall be removed without bond at any time before trial... to the district court
of the United States for the district and division embracing the place in which the
action or proceeding is pending.

28 U.S.C. § 2679(d)(2). See also Anthony v. Runyon, 76 F.3d 210, 212-213 (8th Cir. 1996)
(describing the process of certification when a federal employee is sued in state court).

In the present case, the United States Attorney filed a Scope of Employment Certification,
Doc. 2, certifying that Burmeister was acting within the scope of his employment as a federal

employee ofthe U.S. Postal Service at the time ofthe conduct giving rise to the state court lawsuit
filed by VanZee. The Scope ofEmployment Certification and a Notice of Removal were filed on
February 11, 2021. (Docs. 1 and 2.)

VanZee argues that the removal ofthis action from state court was untimely under the general
removal statute at 28 U.S.C. § 1446(b)and,therefore, this action should be remanded to state court.

While the general removal statute,28 U.S.C. § 1446(b)(1), eontains a 30-day time limit for removal
after service on the defendant,that time limit does not apply to removal ofan FTCA ease against the

United States under the specialized removal provision of28 U.S.C. § 2679(d)(2).' See McLaurin
V. United States, 392 F.3d 774, 778 (5th Cir. 2004)(Section 2679 is unambiguous; Congress

explicitly allows removal under 28 U.S.C. § 2679 at any time before trial and has placed no other
time limitation or requirement on removal in a suit under this section)(citations omitted); Woodbeck
V. United States, 2008 WL 312104, *1 n.2 (D. Ariz. Jan. 31, 2008)(removal under § 2679(d)(2).

was timely even with eight month gap between the filing of the state court action and removal
because the unambiguous language of § 2679(d)(2) requires only that the government remove the

action "before trial"); Goosbyv. United States,545 F.Supp.2d725,731(W.D.Term.2008)(holding
that§ 1446 does not applyto ease removed under 28 U.S.C. §2679); ITarrew v. Joyner,996 F.Supp.

581, 583 (S.D.Miss. 1997)(removal of case was timely even though it had been pending in state
court for seventeen months). Here,the case was properly removed prior to trial in accordance with

28 U.S.C. § 2679(d)(2). Because the United States's certification and removal were timely under
the FTCA, VanZee's motion to remand is denied.
2. Substitution of the United States as the Party Defendant

Once the Attorney General or the Attorney General's designee has certified "that the
defendant employee was acting within the scope of his office or employment at the time of the
incident out of which the claim arose, any civil action [against the employee].. . shall be deemed

an action . . . against the United States . . . and the United States shall be substituted as the party

' Section 2679(d)(2) provides that the United States may remove the case from state court
'at any time before trial." 28 U.S.C. § 2679(d)(2).

defendant." 28 U.S.C. § 2679(d)(2). Upon a motion for substitution, the statutory certification
"although subject to judicial review,is prima facie evidence that the employee's challenged conduct
was within the scope of employ." Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir. 1991). A

plaintiff opposing the certification bears the burden of "com[ing] forward with specific facts
rebutting the government's scope-of-employment certification." Brown,949 F.2d at 1012;see also
Green v. Hall, 8 F.3d 695,698 (9th Cir. 1993)("The Attorney General's decision regarding scope
ofemployment certification is conclusive unless challenged. Accordingly,the party seeking review
bears the burden of presenting evidence and disproving the Attomey General's decision to grant or
deny scope ofemployment certification by a preponderance ofthe evidence.")(footnote and citation
omitted)).

Here,VanZee agrees that Burmeister was acting pursuant to his federal employment with the
U.S. Postal Service at the time of the accident. (Doc. 12, p. 1.) The Court concludes that

Burmeister's actions alleged in the complaint fell within the scope of his employment, as certified
by the United States. Thus, the United States's motion to be substituted as the party defendant is
granted.
3. Dismissal for Lack of Jurisdiction

Though Congress waived the sovereign immunity ofthe United States by enacting the FTCA,
the United States remains immune if an exception to the FTCA applies. Hart v. United States, 630

F.3d 1085,1088(8th Cir. 2011). Where the United States has not waived immunity under the FTCA
because an exception applies, the district court lacks subject matterjurisdiction to hear the case. Id.

A court has a special obligation to consider whether it has subject matter jurisdiction in every case.
Id. at 1089.

Upon certification,removal and substitution,the FTCA provides that an action"shall proceed
in the same manner as any action against the United States filed pursuant to Section 1346(b)ofthis
title and shall be subject to the limitations and exceptions applicable to those[FTCA] actions." 28
U.S.C. § 2679(d)(4). One of the applicable "limitations and exceptions" is that
[a]n action shall not be instituted upon a claim against the United States for money
damages for ... personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, unless the claimant shall have first presented the claim to the

appropriate Federal agency and his claim shall have been finally denied bythe agency
in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). "The Supreme Court has recognized that '[t]he most natural reading of

[§ 2675(a)] indicates that Congress intended to require complete exhaustion ofExecutive remedies
before invocation of the judicial process.'"Mader, 654 F.3d at 797 (quoting McNeil v. United
States, 508 U.S. 106, 112(1993)). The Eighth Circuit has held that the exhaustion requirement in
28 U.S.C. § 2675(a) is a jurisdictional prerequisite to filing an FTCA action in federal court. The
Court recently explained this holding:

The text of the FTCA unambiguously commands that a plaintiff must
administratively exhaust her remedies before filing suit in federal court. See McNeil
V. United States, 508 U.S. 106, 111, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); 28
U.S.C. § 2675(a)("An action shall not be instituted upon a claim . . . unless the
claimant shall have first presented the claim to the appropriate Federal agency and
his claim shall have been finally denied by the agency in writing . . . ."). This
presentment requirement, along with agencies' hroad settlement authority, see
Mader, 654 F.3d at 797, encourages the prompt consideration and settlement of
meritorious FTCA claims without "expensive and time-consuming litigation."
McNeil, 508 U.S. at 112 n.7, 113 S.Ct. 1980 (quoting S. Rep. No. 89-1327, at 3

(1966)). Furthermore, we have recognized that presentment "is a jurisdictional
prerequisite to filing an FTCA action in federal court." Rollo-Carlson, 971 F.3d at
770; see also Mader, 654 F.3d at 802, 808 (affirming dismissal for lack of
subject-matter jurisdiction where plaintiff failed to administratively exhaust her
FTCA claim).

King V. United States, No. 20-2697, 2021 WL 2672302,'at *2(8th Cir. June 30, 2021). See also
Mader, 654 F.3d at 805 ("We have long held that compliance with § 2675(a)'s presentment

requirement is ajurisdictional precondition to filing an FTCA suit in federal district court.")(citing
Allen V. United States, 590 F.3d 541, 544(8th Cir. 2009), and Lunsford v. United States, 570 F.2d

224(8th Cir. 1977^; McNeil, 508 U.S. at 111-112(1993)(holding that the district court properly
dismissed action for lack of jurisdiction where the plaintiff had not exhausted administrative
remedies under § 2675(a) prior to filing suit; stating,"The FTCA bars claimants from bringing suit

in federal court until they have exhausted their administrative remedies."); Bellecourt v. United
States, 994 F.2d 427,430(8th Cir. 1993)("Presentment ofan administrative claim is jurisdictional

and must be pleaded and proven by the FTCA claimant."). Thus,the issue is not when Burmeister

gave notice ofthe accident to federal authorities. Rather,the issue is whether VanZee presented an

administrative claim to the federal agency prior to filing suit.^
VanZee does not contend that she ever presented her claim to the U.S. Postal Service. The
Declaration ofKimberly A. Herbst submitted by the United States indicates that no record could be
found showing that VanZee presented her claim to the Postal Service. (Doc. 5.) Thus, the Court
concludes that it lacks subject matterjurisdiction due to VanZee's failure to exhaust administrative
remedies, and the case must be dismissed.

Section 2401(b)ofthe FTCA requires that a tort claim against the United States be presented
to the appropriate federal agency "within two years after such claim accrues" and then brought to
federal court "within six months after . . . final denial of the claim by the agency." 28 U.S.C.

§ 2401(h); see also United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1629(2015). A claimant is
required to meet both ofthose deadlines. Kwai Fun Wong, 135 S.Ct. at 1629.

Because the statute oflimitations for presenting an administrative claim in this case expired
two years after the accident, that is, December 21, 2019, VanZee is barred from bringing such a
claim now. See Motley v. United States, 295 F.3d 820, 822-23 (8th Cir. 2002). According to the
Eighth Circuit,

the statute oflimitations under the FTCA "does not wait until a plaintiffis aware that
an alleged tort-feasor is a federal employee." Gould v. United States Dep't ofHealth
& Human Servs., 905 F.2d 738, 745 (4th Cir.1990). Where the government or its
agents have not misled or deceived a plaintiff, or otherwise hidden the legal identity
ofalleged tortfeasors as federal employees,the cause ofaction still accrues when the

^ Regulations promulgated by the Department of Justice describe how to present an
administrative FTCA claim:

[A] claim shall be deemed to have been presented when a Federal agency receives
from a claimant, his duly authorized agent or legal representative,[1] an executed
Standard Form 95 or other written notifieation of an incident,[2] accompanied by a.
claim for money damages in a sum certain for injury to or loss ofproperty, personal
injury, or death alleged to have occurred by reason of the incident; and [3] the title
or legal capacity of the person signing, and is accompanied by evidence of his
authority to present a claim on behalf of the claimant as agent, executor,
administrator, parent, guardian, or other representative.
King, 2021 WL 267302, at *3 (citing 28 C.F.R. § 14.2(a)).
7

existence ofan injury and its cause are known.Id.; cf. United States v. Kubrick,444
U.S. Ill, 123-24, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)(finding that where a
plaintiff is aware of both the injury and its cause, he must inquire as to the legal
significance of the acts).

Garza v. United States Bureau ofPrisons, 284 F.3d 930,935 (8th Cir. 2002). "To toll the statute

because of a plaintiff's ignorance of the defendant's federal employee status, plaintiff must at the
very least show that the information could not have been found by a timely diligent inquiry." Motley,
295 F.3d at 824 (internal quotation and citation omitted). VanZee does not argue that equitable

tolling applies to the two-year statute of limitations for filing an administrative claim.^ Id. (party
claiming benefit of exception to statute oflimitation bears burden of showing entitlement to it).
4. Waiver Argument

VanZee argues that Burmeister waived any protections afforded by the Federal Tort Claims
Act by failing to assert the FTCA as an affirmative defense in his answer to the complaint. VanZee
cites law requiring affirmative defenses be pled in the answer to the complaint,but she does not cite

any authority for the proposition that removal and substitution ofthe United States as the defendant

are improper if a federal employee fails to assert the FTCA as a defense in the answer to the
complaint. The law regarding the FTCA defeats VanZee's waiver argument.

The FTCA provides individual federal government officers and employees acting within the
scope of their employment with absolute immunity against common law tort claims. See Oshorn
V. Haley,549 U.S. 225,229(2007)(citing 28 U.S.C. § 2679(b)(1));see also United States v. Smith,
499 U.S. 160,163(1991). Under the FTCA,"an action against the United States is the only remedy
for injuries caused by federal employees acting within the scope oftheir employment." Anthony v.

s Runyon,76 F.3d at 212-13. The purpose ofthe FTCA is "to shield covered employees not onlyfrom
liability but from suit" and to place the "cost and effort of defending the lawsuit . . . on the
Government's shoulders." Oshorn,549 U.S. at 248,252. VanZee cannot recover from Burmeister

^ To the extent VanZee is arguing she was misled by Burmeister's interrogatory answer

stating coverage may be available under his personal automobile policy with State Farm, that
argument fails. In his answer to another interrogatory in the same document, Burmeister said that
he was on duty and working in the course ofhis employment with the U.S.Postal Service at the time
of the accident. (Doc. 8-5, pp. 4, 7.)
8

in connection with the accident on December 21, 2017 because the FTCA provides him with

absolute immunity. See,e.g..Does 1-10 v. Haaland,973 F.3d 591,597(6th Cir. 2020)(holding that
the immunity from suit provided by Federal Employees Liability Reform and Tort Compensation

Act (i.e., the Westfall Act), folly immunizes individual federal employees from suit,"even where
the FTCA bars a suit against the United States as well")(citing United States v. Smith,499 U.S. 160,
166(1991)).

Furthermore, as set forth above, this case was properly removed pursuant to 28 U.S.C.

§ 2679(d)(2), and the United States must be substituted as the party defendant."^ With the United
States as the defendant,the issue is one ofsovereign immunity. Sovereign immunity belongs to the

United States and Burmeister cannot waive it. Regardless ofBurmeister's answer to the complaint
filed in state court, the case must proceed in this Court with the United States as the defendant, and
the case must be dismissed for failure to exhaust administrative remedies. Thus,the Court concludes

that VanZee's argument that Burmeister waived his immunity defense when he failed to assert the
FTCA as an affirmative defense is without merit.

5. Equitable Argument

VanZee asserts that it would be unjust to grant the United States's motions and dismiss her
case. The Supreme Court has made it clear under the FTCA that federal employees are immune

from liability even if substitution of the United States as defendant leaves the plaintiff without a
remedy. Smith,499 U.S. at 166("Congress recognized that the required substitution ofthe United
States as the defendant in tort suits filed against Government employees would sometimes foreclose

a tort plaintiffs recovery altogether."); see also Gutierrez de Martinez v. Lamagno,515 U.S. 417,

420(1995)("If... an exception to the FTCA shields the United States from suit, the plaintiff may
be left without a tort action against any party."). The Eighth Circuit has noted that "[sjubstitution
of the United States as defendant will frequently end the plaintiffs case, either because FTCA
administrative remedies have not been exhausted,or because,under § 2680,some or all ofplaintiffs

^ Where the United States has certified scope of employment and has been substituted as a
defendant, removal is required. See 28 U.S.C. § 2679(d)(2); Loza v. Native American Air
Ambulance, 2009 WL 2870083 at *2 (D.Ariz., September 3, 2009)(Section 2679(d)(2) requires

removal, even where the federal court lacks subject matter jurisdiction over the action because of
the plaintiffs failure to meet a jurisdictional prerequisite to suit).

claims are simply not actionable against the United States." Brown,949 F.2d at 1011. "[B]ecause
the FTCA is an exclusive remedy for torts committed by federal employees acting within the scope

oftheir employment,if recovery is not available against the United States ...,it is not available at
all." M at 1013.

For the reasons discussed above,the Court must grant the United States's motion to dismiss

for lack of subject matter jurisdiction. See, e.g, Dudley v. Bureau ofPrisons, 2009 WL 1390792,
at *1 (D.S.D. May 18, 2009) (dismissing FTCA claim for failure to exhaust administrative
remedies). Accordingly,

IT IS ORDERED:

1. That Plaintiff Rachel VanZee's motion to remand. Doc. 6, is denied.
2. That the United States's motion to substitute itself as the defendant and dismiss

the action. Doc. 3, is granted.

3. That this action is dismissed without prejudice for lack of subject matter
jurisdiction.

Dated this

day of July, 2021.
BY THE COURT:

Jawrence L. Piersol

United States District Judge
ATTEST:

MATTflllWiW,

10