Brodnik v. Lanham et al
Filing
56
MEMORANDUM OPINION AND ORDER: The United States' 23 MOTION to Dismiss defendant Robert Lanham from Counts III through VII of the First Amended Complaint and substitute the United States as a defendant in his stead is GRANTED. Signed by Judge David A. Faber on 7/10/2014. (cc: counsel of record) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD
RANDY MICHAEL BRODNIK, D.O.,
Plaintiff,
v.
Civil Action No. 1:11-0178
ROBERT LANHAM, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the United States' motion to
dismiss defendant Robert Lanham from Counts III through VII of
the First Amended Complaint and substitute the United States as a
defendant in his stead.
(Doc. # 23).
For reasons expressed more
fully below, that motion is GRANTED.
I.
Background
According to the First Amended Complaint, at the time of
the events giving rise to the instant Complaint, defendant Robert
Lanham was employed as a special agent with the Internal Revenue
Service.
Complaint ¶ 8.
As a result of a six-year investigation
of plaintiff Randy Michael Brodnik, D.O. (“Brodnik”) for income
tax evasion, Lanham recommended that Brodnik be prosecuted.
id. at ¶ 10.
See
On March 18, 2009, a federal grand jury returned a
seven-count indictment against Brodnik charging him with
conspiracy and six counts of income tax evasion.
11.
See id. at ¶
On June 2, 2010, the grand jury returned a seven-count
second superseding indictment charging Brodnik with one count of
conspiracy, five counts of income tax evasion, and one count of
corruptly endeavoring to impede and obstruct the due
administration of the Internal Revenue laws.
See id. at ¶ 13.
After a three-week jury trial, Brodnik was acquitted of all
charges.
See id. at ¶¶ 14, 20.
According to the Complaint, at Brodnik’s trial, Lanham
testified that it was “debatable” that Brodnik had broken the
law.
See id. at ¶ 16.
Brodnik further alleges that one of the
government’s witnesses, defendant Deborah Beck, testified at
trial that she illegally accessed Brodnik’s electronic mail and
provided it to defendant Lanham.
See id. at 17-18.
Count I of
the Complaint is brought pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
and alleges the violation of Brodnik’s constitutional rights.
Count II of the Complaint alleges that defendant Brodnik made
numerous wrongful disclosures of plaintiff’s tax return
information during the investigation, in violation of Internal
Revenue Code § 7431.
Counts III through VII are state law claims
for civil conspiracy, invasion of privacy, outrage, intentional
infliction of emotional distress, and malicious prosecution
against defendants Lanham and Beck.
As to the state law claims, (Counts III, IV, V, VI, and
VII), the United States has moved to dismiss defendant Lanham and
substitute the United States as a defendant.
2
To that end, the
United States has tendered the Certification by the United States
Attorney for the Southern District of West Virginia (“Westfall
Certification”) that defendant “Lanham was acting within the
scope of his employment as an employee of the United States at
the time of the incidents out of which these claims arose.”
Exhibit 1 to the United States’ Motion to Dismiss.
See
Brodnik
opposes the government’s motion and has asked for limited
discovery on the appropriateness of the Westfall Certification.
II.
Analysis
The United States Attorney has certified that Agent
Lanham was acting within the scope of his office or employment at
the time of the events complained of herein.
“When a federal
employee is sued for a wrongful or negligent act, the Federal
Employees Liability Reform and Tort Compensation Act of 1988
(commonly known as the Westfall Act) empowers the Attorney
General 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. . . .’”
Guiterrez de Martinez v. Lamagno,
515 U.S. 417, 419-20 (1995) (quoting 28 U.S.C. § 2679(d)(1)).
Upon certification, the district court is to dismiss the employee
from the action and the United States is substituted as a
defendant.
See id. at 420; 28 U.S.C. § 2679(d)(1).
Pursuant to
28 C.F.R. § 15.3(a), the United States Attorneys are authorized
to issue these certifications on behalf of the Attorney General.
3
Guiterrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148,
1152 (4th Cir. 1997).
Once the United States is substituted as
the proper party, the relevant claims are then governed by the
Federal Torts Claims Act.
See Osborn v. Haley, 549 U.S. 225, 230
(2007).
The Westfall certification is conclusive unless
challenged.
Guiterrez de Martinez, 111 F.3d at 1153.
“When the
certification is challenged, it serves as prima facie evidence
and shifts the burden to the plaintiff to prove, by a
preponderance of the evidence, that the defendant federal
employee was acting outside the scope of his employment.”
Id.
To satisfy this burden, a plaintiff must come forward with either
“specific evidence or the forecast of specific evidence that
contradicts the Attorney General's certification decision not
mere conclusory allegations and speculation.”
Id. at 1155.
Only if a plaintiff comes forward with sufficient
evidence to satisfy his or her burden of proof does the burden
shift back to the United States to come forward with evidence
supporting its certification.
See id.
Once that happens, if
necessary, a district court may permit limited discovery on the
scope of employment issue.
See id.
“Only if the district court
concludes that there is a genuine question of fact material to
the scope-of-employment issue should the federal employee be
burdened with discovery and an evidentiary hearing.”
4
Id.
Given that the United States has certified that defendant
Lanham was acting within the scope of his employment at the time
of the incidents alleged in the Complaint, plaintiff must come
forward with evidence, or a forecast of specific evidence, that
Lanham was not acting within the scope of his employment at the
time of the incidents giving rise to his tort claims.
The court
finds that he has not.
According to Brodnik, because the United States Attorney
does not indicate “what analysis” he used in making the Westfall
certification, limited discovery is necessary to resolution of
the scope of employment issue.
However, a court should not allow
“even `limited discovery’ unless a plaintiff has made allegations
sufficient to rebut the Government’s certification.”
Wuterich v.
Murtha, 562 F.3d 375, 386 (D.C. Cir. 2009) (“[Plaintiff]’s
discovery demands appear to be nothing more than a fishing
expedition for facts that might give rise to a viable scope-ofemployment claim.”) (emphasis in original); see also Osborn, 549
U.S. at 233 (noting that it is “customary” that the certification
“state[] no reasons for the determination”).
Therefore, because
plaintiff has failed to allege specific facts that, taken as
true, would show that Lanham’s actions herein were outside the
scope of his employment, his request for limited discovery is
DENIED and the motion of the United States to dismiss and
5
substitute is GRANTED.*
III.
Conclusion
For the reasons expressed above, the United States’
motion to dismiss defendant Robert Lanham from Counts III through
VII of the First Amended Complaint and substitute the United
States as a defendant is GRANTED.
The Clerk is directed to send
a copy of this Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 10th day of July, 2014.
ENTER:
David A. Faber
Senior United States District Judge
*
If discovery reveals that Lanham was acting outside the
scope of his employment, plaintiff may seek leave of the court to
revisit the Attorney General’s certification as it is subject to
judicial review. Osborn, 549 U.S. at 230.
6
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