Petition for Writ of Certiorari — Gutierrez De Martinez v. Lamagno

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Supreme Court of the WuitedBdates

OCTOBER TERM, 1993

KATIA GUTIERREZ DE MARTINEZ, EDUARDO

MARTINEZ PUCCINI, AND HENNY MARTINEZ DE

PAPAIANI,

Petitioners,

V-

DIRK A. LAMAGRO, THE DRUG ENFORCEMENT

ADMINISTRATION, AND THE UNITED STATES OF

AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Isidoro Rodriguez, Esq.

Attorney for Petitioners

Law Offices of Isidoro Rodriguez, P.C.

Calle 84, No. 56-51

Barranquilla, Colombia

(011)57-58-561678/458273

Il.

QUESTIONS PRESENTED FOR REVIEW

WHERE A CERTIFICATION OF SCOPE OF

EMPLOYMENT UNDER 28 U.S.C. § 2679-

(d)(1) (WESTFALL ACT) HAS BEEN IS-

SUED, DO THE INJURED PARTIES IN THE

AUTOMOBILE ACCIDENT HAVE A RIGHT TO

DE NOVO JUDICIAL REVIEW BY THE DIS-

TRICT COURT TO THE CHALLENGE THAT

THE CONDUCT OF THE FEDERAL EMPLOYEE

WAS NOT OCCURRING WITHIN THE SCOPE

OF HIS EMPLOYMENT AT THE TIME OF

THE ACCIDENT, AND THEREBY A SUIT

AGAINST HIM IN HIS INDIVIDUAL CaA-

PACITY IS PERMITTED?

WHETHER THE INJURED PARTIES IN AN

AUTOMOBILE ACCIDENT OCCURRING IN

THE REPUBLIC OF COLOMBIA, HAVE A

JUDICIALLY ENFORCEABLE RIGHT TO

COMPENSATION UNDER 21 U.S.C. § 904?

LIST OF PARTIES

The parties that have appeared here

include those listed on the case cap~-

tion.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

LIST OF PARTIES ......-.

TABLE OF AUTHORITIES ....

CITATIONS TO OPINIONS BELOW .

STATEMENT OF JURISDICTION. .

STATUTES INVOLVED ......

STATEMENT OF THE CASE... .

REASONS FOR GRANTING THE WRIT

CONCLUSION ....4+4 2 «© @ «

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S.

136, 87 S.Ct. 1507, 18 L.E.2d 681 (1-

967) . . . . . . o . . . > . . . . 28

Arbour _v. Jenkins, 903 F.2d 416 (6th

Cir. 1990) . >. 7 . >. >. >. . . >. >. > 19

Aviles v. Lutz, 987 F2d 1046 (10th Cir.

1989) . . . . 7: >. >. >. . . > >. . . 20

Barlow _v. Collins, 397 U.S. 159, 90

S.ct. 632 (1970) »++++ee*** 28

Brown v Armstrong, 949 F.2d 1007 (8th

Cir. 1991) -+++++-+ + 20, 24, 30

Dept., 827 F.Supp. 1258 (S.D. Miss.

1993) . . . . > >. . . . . . . . . . 21

Driggers v. United States, 309 F.Supp

1377 (SeC-, 1970) ++ +e eee 8? 35

: | 931 F.2d 1209 (7th

Cir.), cert. denied U.S. 112

3.ct. 200, 116 L.Ed.2d 159 (1991)20, 30

Holloman v. Watt, 708 F.2d 1399, at 1401

(9th Cir. 1983), cert. denied. Holloman

, 466 U.S. 958, 104 S.Ct. 2168,

80 L.Ed.2d 552 (1984). »-++++- 431

Lien v. Beehner, 453 F.Supp. 604 (N.D.-

N.Y., 1978) > . . + . . . >. . >. . . 34

Mathews v. Diaz, 96 S.Ct. 1883 (1976)

>. +. >. . . 7 >. . >. o . . . . >. . . . 25

McGowan v. Williams, 623 F.2d 1239, 1242

(7th Cir. 1980) . . . . _ . . >. > . 27

McHugh v. University of Vermont, 966

F.2d 67 (2nd Cir. 1992) ...... 18

, 912 F.2d 628 (3rd Cir.

1990), ?

U.S. __, 112 S.Ct. 358, 116 L.Ed.2d 301

| rae ae ee ee

Inc. Vv.

United States, 939 F.2d 740 (9th Cir.

1991) . . . . . . . . . . . 7 7 . . 20

Mitchell v. Carlson, 896 F2d 128, 136

(Sth Cis. 1990) « 2 ee ee eo eo BM, 21

Nasuti_v. Scannell, 906 F.2d 802 (lst

Cir. 1990) >. . >. *. > . 7. . . > 19, 25

North Shore Shipping Co. v_ United

States, No. 92-3730, 8 WL 141054 1993

U.S.App LEXIS 89 (6th Cir. 1993) . 18

Petrousky v. United States, 728 F.Supp

890, 891 (N.D.N.Y.) >. . > . >. . . . 26

, 369 U.S. 367, 82 S.Ct. 787,

7 L.Ed.2d 809 (1962) . . . . . e. . 28

S.J. _& W Ranch, Inc. v. Lehtinen, 913

F.2d 1538 (llth Cir. 1990) .... 19

Schrob v. Catterson, 967 F.2d 929 (3d

Cir. 1992) . . >. . > > . > . > > >. 19

, 762 F.Supp. 1511 (D.D.C.

1991), aff’d, 957 F.2d 912 (1992) - 12

Snodgrass v Jones, 957 F.2d 482 (7th

Cir. 1992) > . - 7 >. > _ J >. J 7 >. 19

Touche Ross & Co. v. Redington, 442 U.S.

560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (19-

Wicececoosveseveeveeevens

United States v. Mitchell, 445 U.S. 535

(1980) >. . > >. . >. . . >. >. . >. . —_ 32

United States v. Testan, 424 U.S. 392,

at 399 (1976) . >. *. . >. * >. >. >. * 7 31

Wellman v Gross, 637 F.2d 544 (8th Cir.

1980), cert den 102 S.Ct. 389... 34

Westfall _v. Erwin, 484 U.S. 292, 108

S.ct. 580 (1988) »-+-++++e+ee 25

Constitution and Statutes:

Fifth Amendment to the United States

Constitution .-+-+-++-***r**** * 25

5 U.S.C. $$ 702 et seqd- [DF mz 29

21 U.S.C. § 904. - o « « 32, 34, 35

28 U.S.C. 8 1331 . oa a a 6 fk foe 29

28 U.S.C. § 1346(b)

. .

Ww Ww

Ww Nm

28 U.S.C. § 2672 .

vii

28 U.S.C. 2675 . >. >. >. >. >. . 33, 34

28 U.S.C. 2679 . . . .

fea)

28 U.S.C. 2679. . . . . . . . . . 12

28 U.S.C. 2679(d) (2)

—

Lea)

LS)

28 U.S.C. 2680(k) . .

Ls)

28 U.S.C. § 2679(d)(1)

31 U.S.C. 1343 . >. . . . . . . . 35

31 U.S.C. § 1349 . . . . . . . . . 35

Federal Tort Claims Act, 26 U.S.C. §

2671 et seg. . >. . . . >. . . . * >. 31

Legislative History:

Legislation to Amend the Federal Tort

Claims Act: Hearing Before the Subcom-

mittee on Administrative Law and Gov-

ernmental Relations of the Committee on

the Judiciary, 100th Cong., 2d Sess. 60,

128 (April 14, 1988) ....... 417

oe Ot OE 8 er me

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

KATIA GUTIERREZ DE MARTINEZ, EDUARDO

MARTINEZ PUCCINI, AND HENNY MARTINEZ DE

PAPAIANI,

Petitioners,

Vv.

DIRK A. LAMAGNO, THE DRUG ENFORCEMENT

ADMINISTRATION, AND THE UNITED STATES OF

AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CITATIONS TO OPINIONS BELOW

The April 20, 1993, bench decision

of the United States District Court for

the Eastern District of Virginia is

unreported, and is reproduced in the ap-

pendix to this petition at App. l-a.

The opinion of the United States

Court of Appeal for the Fourth Circuit

issued on April 28, 1994, is unpublished

and is reproduced in the appendix to

this petition at App. 1-b.

STATEMENT OF JURISDICTION

The judgment of the Court of Ap-

peals for the Fourth Circuit was entered

on April 28, 1994. The jurisdiction of

this Court is invoked pursuant to 28

U.S.C. 1254(1).

STATUTES INVOLVED

21 U.S.C. § 904

Payment of Tort Claims

Notwithstanding section 2680 (k) of

Title 28, the Attorney General, in car-

rying out the functions of the Depart-

ment of Justice under this subchapter,

is authorized to pay tort claims in the

manner authorized by section 2672 of

Title 28, when such claims arise in a

foreign country in connection withthe

operation of the Drug Enforcement Admin-

istration abroad.

28 U.S.C. § 2679

Exclusiveness of remedy

(d)(1) Upon a certification by the

Attorney General 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 or proceeding

commenced upon such claim in a United

States district court shall be deemed an

action against the United States under

the provisions of this title and all

references thereto, and the United

States shall be substituted as the party

defendant.

(2) Upon certification by the At-

torney General that the defendant em-

ployee 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 or proceeding

commenced upon such claim in a State

court shall be removed without bond at

any time before trial by the Attorney

General to the district court of the

United States for the district and divi-

sion embracing the place in which the

action or proceeding is pending. Such

action or proceeding shall be deemed to

be an action or proceeding brought

against the United States under the

provisions of this title and all refer-

ences thereto, and the United States

shall be substituted as the party defen-

dant. This certification of the Attor-

ney General shall conclusively establish

scope of office or employment for pur-

poses of removal.

(4) Upon certification, any action

or proceeding subject to paragraph (1),

(2), or (3) shall proceed in the same

manner as any action against the United

States filed pursuant to section 1346(b)

of this title and shall be subject to

the limitations and exceptions applica-

ble to those actions.

STATEMENT OF THE CASE

A. JURISDICTION BELOW

Claims for damages were filed by

Mrs. Katia Gutierrez de Martinez, Edu-

ardo Martinez Puccini, and Henny Marti-

nez de Papaiani, (hereinafter “Injured

Parties") against Mr. Dirk A. Lamagno

(hereinafter "Mr. Lamagno"), in his

individual capacity based on diversity

of citizenship pursuant to 28 U.S.C. §

1332(a)(2)-

Also the action was filed against

the Drug Enforcement Administration

ee)

(hereinafter "DEA") and the United

States pursuant to 28 U.S.c. § 1346(b).

Appellate jurisdiction was invoked

pursuant to 28 U.S.C. § 1291.

B. RELEVANT FACTS

Police reports show that on Friday

night, at 11:45 P-m. on January 18,

1991, Mr. Lamagno was driving away from

his hotel under the influence of alco-

hol, and in the company of an unidenti-

fied female passenger, in a 1987 Silver

Blue Ford Bronco, identified by non-

diplomatic license plates No. LK 9264.

Police reports further show that

Mr. Lamagno failed to stop at a marked

intersection at Calle 85, with Kra. 47,

in the City of Barranquilla, Colombia;

and midway through the intersection,

suddenly struck the left side of the new

1990 Renault driven by the Injured Par-

ties. The force of the impact of Mr.

Lamagno’s armored vehicle totally de-

stroyed the 1990 Renault.

| After the collision the Injured

Parties were trapped in their totally

demolished Renault for 45 minutes in the

following conditions: Mrs. Katia Gutie-

rrez de Martinez, the driver, was uncon-

scious, bleeding from facial injuries,

and was further immobilized with two

severely broken arms; Mr. Eduardo Marti-

nez Puccini, was trapped in the passen-

ger front seat unconscious and suffered

bleeding cuts; and Mrs. Henny Martinez

de Papaiani, sitting on the right hand

side of the back seat was also unconsci-

ous.

After the collision neither Mr.

Lamagno, nor his unidentified female

passenger, left their vehicle to render

eae ee ee

i Po et Se

LE A A

assistance to the Injured Parties. Later

unknown persons, identifying themselves

as representatives of the United States

Consulate in Barranquilla, Colombia,

arrived and entered into a discussion

with local police to permit their taking

Mr. Lamagno and the unidentified female

passenger from the scene of the acci-

dent, and removing and replacing the

non-diplomatic license plates No. LK

9264, with diplomatic license plates No.

CDO172.

Although the local police permitted

both acts requested by said unknown

persons, and accident report with the

original license number was completed,

and they instructed Mr. Lamagno, to

appear on January 19, 1991, at 1100 hrs,

at the 6th Police Inspection, to give

testimony regarding the accident.

The Injured Parties were taken to

the emergency ward at "Clinica del Cari-

be" for treatment. For the purpose of

proscribing medication, it was noted by

the attending physician that Mrs. Katia

Gutierrez de Martinez neither had been

drinking alcoholic beverages, nor had

taken any medication.

Despite the order to appear on

January 19, 1991, and March 7, 1991, Mr.

Lamagno was taken out of the Republic of

Colombia by DEA, and thus prevented the

taking of his testimony to the Municipal

Secretary, concerning the accident and

his condition.

Based on the above facts, the po-

lice found that the accident was caused

solely and exclusively due to the gross

negligence of the Mr. Lamagno, who ill-

egally entered the intersection at a

high rate of speed and was under the in-

fluence of alcohol.

On May 8, 1991, in accordance with

21 U.S.C. § 904, and 26 U.S.C. § 2675,

an administrative claim was filed.

On May 16, 1991, the DEA notified

the Injured Parties of the acceptance of

their claim, and in accordance with 26

U.S.C. § 2672, the transferring the

administrative claim to the Torts Divi-

sion, U.S. Department of Justice.

During the next year and a half, in

processing the administrative claim of

the Injured Parties, the Torts Division,

requested and received numerous times

from the Injured Parties additional

information regarding the traffic acci-

dent, and the status of their extensive-

ness injuries.

Prior to the running of the statute

of limitation this action was filed on

‘January 15, 1993.

On March 4, 1993, two years and two

months from the date cf the accident a

one paragraph Certificate of Scope of

Employment under 28 U.S.C. § 2679(d)(1),

was issued asserting that Mr. Lamagno’s

actions and condition at the time of the

accident fell within his “scope of em-

ployment."

On March 5, 1993, without taking

any evidence to refute the Injured Par-

ties allegations of Mr. Lamagno’s driv-

ing under the influence of alcohol, or

permitting any challenge to the certif-

ication of scope of employment, the Dis-

trict Court entered an ex parte order

substituting the United States for Mr.

Lamagno based on the Fourth Circuit’s

holding Johnson v. Carter, 983 F.2d 1316

(1993).

On April 16, 1993, the district

court granted the United States motion

for summary judgment, based on the "for-

eign country exemption” under 28 U.S.C.

§ 2680(k).

On May 4, 1993, a Notice of Appeal

was filed appealing the orders of March

5, and April 16, 1993.

On April 28, 1994, the Fourth Cir-

cuit affirmed the district court’s hold-

ing that the certificate of scope of

employment was not subject to judicial

review, and that 21 U.S.C. § 904, does

not alter the “foreign country exemp-

tion."

After receiving the administrative

claim on May 8, 1991, the DEA failed to

issue any certification of scope of

employment under 28 U.S.C. § 2679.

Thus, based on the holding in Smith

v. U.S., 762 F.Supp. 1511, at p. 1513

(D.D.C. 1991), aff'd, 957 F.2d 912

(1992), where the District Court held

that, “[{o]n no basis would the court

conclude that drinking and driving after

work hours fell within the scope of .

- employment with the DEA,” the Injured

Parties filed a diversity action against

Mr. Lamagno in his individual capacity.

Subsequently, twenty-six months

after the accident a one paragraph cer-

tification of scope of employment was

issued on March 4, 1993.

However, at no time did the DEA

dispute the allegations in the complaint

that Mr. Lamagno was driving recklessly

and under the influence of alcohol,

after normal office hours in the company

of an unidentified woman.

The DEA’s only argument was based

on the Fourth Court’s holding in Johnson

vy. Carter, 983 F.2d 1316 (1993), in that

the certification of employment was

conclusive and there is no judicial re-

view of the substitution of the United

States for Mr. Lamagno.

Based on Johnson v Carter, the

district court entered an ex parte order

substituting the United States and dis-

missing the action against Mr. Lamagno.

‘This order was affirmed by the Fourth

Circuit on April 28, 1994.

Because this holding of the Fourth

Circuit is in conflict with the holding

of nine other United States courts of

appeal, and is wrong based on the facts

of this action, a petition for writ of

certiorari should be issued.

A review of Johnson v Carter, un-

derscores the need for this Court to re~

solve this conflict between the cir-

cuits.

Johnson v Carter, involved an Admi-

ral who was named as defendant in libel

and slander suit by base a police offi-

cer for an incident when admiral alleg-

edly called officer a “liar,” the Fourth

Circuit held that a certification by

Attorney General that admiral was acting

within scope of employment was conclu-

sive under the Federal Employees Liabil-

ity Reform and Tort Compensation Act.

The Fourth Circuit held that 28

U.S.C. § 2679(d)(2) (hereinafter the

“Westfall Act"), was passed by Congress

to change the rule set out in the Su-

preme Court’s decision in Westfall v.

Erwin, 484 U.S. 292, 108 S.Ct. 580 (19-

88). In Westfall, this Court held that

the judicially created doctrine of offi-

cial immunity did not provide blanket

protection to government employees for

torts committed in the scope of their

employment.

The Westfall Act grants immunity to

the government employee acting within

the scope of their employment by requir-

ing persons injured by them to substi-

tute the government as the defendant.

In its holding, the Fourth Circuit

does not accept the claim that since 28

U.S.C. § 2679(d)(1), does not contain

the statement contained in 28 U.S.C. §

2679(d)(2), that the “certification of

the Attorney General shall conclusively

establish scope of office or employment

for purposes of removal,” de novo review

of the certification was required by the

district court except for removal.

The Fourth Circuit further rejects

the legislative history, wherein Con-

gressman Frank, the Act’s sponsor, stat-

ed that “the plaintiff would still have

the right to contest the certification

if they [sic] thought the Attorney Gen-

eral were [sic] certifying without jus-

tification." Legislation to Amend the

mittee on the Judiciary, 100th Cong., 2d

Sess. 60, 128 (April 14, 1988). In

addition, the Department of Justice

representative, Deputy Assistant Attor-

ney General Robert Willmore, who

appeared at the Congressional hearing

and stated that "Chairman Frank is cor-

rect that a plaintiff can challenge that

certification. So that would be review-

able by a court at some point, probably

by a Federal District Court." Legisla-

tion to Amend the Federal Tort Claims

Act: Hearing, at 133.

However, the Fourth Circuit’s hold-

ing in both Johnson v Carter and in

this case, is in direct conflict with

nine other circuit courts that have ad-

dressed the reviewability of disputed

scope-of-employment certifications and

have uniformly held them to be subject

to review.

The nine other circuits holding is

well stated in the Second Circuit opin-

ion in h v. Universi of V t,

966 F.2d 67 (2nd Cir. 1992), which in-

volved a sexual harassment suit against

Lt. Col. by a secretary at University of

Vermont, wherein that circuit court held

that "[w]le believe that a scope-of-em-

ployment certification should be re-

viewed be reviewed de novo for purposes

of substituting the United States as a

defendant and precluding an action

against the federal employee.” at Id. p.

72. See North Shore Shipping Co. v

United States, No. 92-3730, 8 WL 141054

1993 U.S.App LEXIS 89 (6th Cir. 1993)

(scope certification subject to review

by district court); Arbour v. Jenkins,

903 F.2d 416 (6th Cir. 1990); Schrob v.

Catterson, 967 F.2d 929 (3d Cir. 1992)

(Attorney General’s scope of employment

not conclusive and non reviewable);

Snodgrass _v Jones, 957 F.2d 482 (7th

Cir. 1992) (Attorney General’s scope of

employment certification subject to de

novo review); S.J. W » We

Lehtinen, 913 F.2d 1538 (llth Cir.

1990) (district court should exercise de

novo review of certification decision) ;

M Vv. , 912 F.2d 628 (3rd Cir.

1990) (district court may review scope

of employment certification decision),

aff’d on separate grounds, U.S. ___,

112 S.Ct. 358, 116 L.Ed.2d 301(1991);

Nasuti v. Scannell, 906 F.2d 802 (lst

Cir. 1990) (district court should exer-

cise its customary jurisdiction over

scope-of-employment disputes that call

“into question its subject matter juris-

diction); Brown v. Armstrong, 949 F.2d

1007 (8th Cir. 1991); Meridian Intern.

Logistics, Inc. v.- United States, 939

F.2d 740 (9th Cir. 1991); Hamrick v.-

Franklin, 931 F.2d 1209 (7th Cir.),

cert. denied U.S. , 112 S.Ct.

200, 116 L.Ed.2d 159 (1991).

Apart from the Fourth Circuit, it

can be argued that only possibly two

other circuits have held that for pur-

poses of removal substitution nonre-

viewable and mandatory upon certifica-

tion, see Aviles _v. Lutz, 887 F2d 1046

(10th Cir. 1989) (mandatory language of §

2679(d) does not permit federal court to

review certification), and Mitchell v.

Carlson, 896 F2d 128, 136 (5th Cir.

1990) (district court required to sub-

stitute the United States following

certification).

However, these two cases are factu-

ally distinguishable in that scope of

employment was not a disputed issue.

Furthermore, in the Fifth Circuit,

despite Mitchell v. Carlson recently in,

a district court held that plaintiff is

entitled to litigate before the district

court the question of whether the em-

ployee was within the scope of his em-

ployment at the time of the incident.

Dillon v. State of Miss., Military

Dept., 827 F.Supp. 1258 (S.D. Miss.

1993)

Thus the Injured Parties argue that

the Fourth Circuit is in error and the

other nine circuits are correct in their

holding that the scope of employment

certificate is subject to judicial re-

view, based on the following:

First, Section 2679(d)(1) applies

to cases filed in federal district

courts, while Section 2679(d)(2) applies

to those filed in state courts. Both

sections provide: "Upon certification .

- + the United States shall be substi-

tuted as the party defendant" (emphasis

added). In addition, Section 2679(d) (2)

provides: "Upon certification... {the

claim) shall be removed ... to the

district court" (emphasis added). Thus,

in federal cases the result of certifi-

cation is substitution, while in state

cases it is substitution plus removal.

Notably, the only mention of

nonreviewability pertains to removal:

“The certification of the Attorney Gen-

eral shall conclusively establish scope

of office or employment for purposes of

removal.” 28 U.S.C. § 2679(d)(2) (empha-

sis added).

Clearly, then, only certification

for purposes of removal is nonreview-

able; certification for purposes of

substitution remains subject to judicial

review. Had Congress intended to render

the certification conclusive for purpos-

es other than removal, it would have so

stated. Cf Touche Ross & Co. v. Reding-

fon, 442 U.S. 560, 99 S.Ct. 2479, 61

L.-Ed.2d 82 (1979) ("(W)hen Congress

wishes to provide a private damage reme-

dv, it knew how to do so and did so

expressly." (Rehnquist, C.J.)

Second, the underlying policy con-

sideration regarding the different ef-

fect of substitution vis-a-vis removal,

supports the logical analysis of the two

section to result in judicial review of

the certification when substitution

occurs.

Congressional rational in differ-

entiating between the effect of certif-

ication as it relates to removal, on the

one hand, and its effect on substitu-

tion, on the other, was pointed out by

the Eighth Circuit in Brown v. Armst~

rong, 949 F.2d 1007 (8th Cir. 1991).

There the court noted that substi-

tution will often end the plaintiff’s

case. However, “[t]he same concerns do

not exist with automatic removal, which

changes only the forum and not the sub-

stance of the case.” Brown at 1011.

Third, the statutory interpretation

urged by the Fourth Circuit is particu-

larly suspect because it leaves the

determination of a dispositive issue in

FTCA cases on an interested party. As

the First Circuit cogently noted,

it is hard to imagine Congress

empowering an executive officer, the

Attorney General of the United States,

to displace the federal court as the

final determine of the scope of employ-

ment question, thus forcing a federal

court to forego determination of its own

jurisdiction, and preventing the plain-

tiff, by executive fiat, from pursuing a

possible legitimate claim in state

court." Nasuti_v. Scannell, 906 F2d

802, 812 (lst Cir.)

Fourth, since the Fifth Amendment

protects every “person” including an

alien, whether resident or nonresident,

from the deprivation of life, liberty or

property without due process of law,

Mathews v. Diaz, 96 S.Ct. 1883 (1976),

the Fourth Circuit’s holding raises due

process implications inherent in treat-

ing the Attorney’s General scope cer-

tification as dispositive, and denying

the Injured Party a right of action

against Mr. Lamagno who was driving

under the influence of alcohol.

As various courts have observed,

nothing in the regulation governing

scope certification requires the Attor-

ney General to conduct a neutral pro-

ceeding, open to all parties, before

taking a final position on the scope

question.

In the instant action these con-

cerns are even more imperative since

here the Attorney General is the boss of

the DEA.

Fifth, the Westfall Act modified

the Federal Drivers Act in several re-

spects, but there is nothing to show

that the right to have “the trial judge

determined the scope of employment issue

as a matter of law." Petrousky v. United

States, 728 F.Supp 890, 891 (N.D.N.Y.),

was amended. See McGowan v. Williams,

623 F.2d 1239, 1242 (7th Cir. 1980) (ci-

ting 28 U.S.C. § 2679(d)).

Therefore there is no evidence that

Congress intended to eliminate judicial

determination of the scope of employment

issue, except with regard to removal, as

was the practice under the Federal Driv-

ers Act. Indeed, such an elimination

would be extremely anomalous in light of

the Westfall Act’s empowering of federal

employees to challenge a refusal by an

Attorney General to certify scope of

employment.

Sixth, the Fourth Circuit’s holding

additionally lacks merit under the legal

concept that in the absence or inadequa-

cy of a specific statute, nonstatutory

review is presumptively available. This

is because the non-reviewability of

administrative action taken pursuant to

statute or regulations is not lightly to

be inferred.

Judicial review of administrative

action is the rule, and non-reviewabil-

ity the exception which must be demon-

strated. Barlow v. Collins, 397 U.S.

159, 90 S.Ct. 832 (1970). Only on a

showing of “clear and convincing evi-

dence” will the courts restrict access

to judicial review. Abbott Laboratories

v. Gardner, 387 U.S. 136, 87 S.Ct. 1507,

18 L.E.2d 681 (1967); Rusk v Cort, 369

U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809

(1962).

This is particularly true in an

action based on the facts in this case,

where despite complying with all the

administrative procedures, the DEA has

failed to process the claim in good

faith, and has interjected the absurd

“James Bond Defense" that Mr. Lamagno

while in the Republic of Colombia is on

24 hour call and thus all his acts are

within his “scope of employment."

To this end suits seeking judicial

review of federal agencies action or

omissions under 28 U.S.C. § 1331 and the

Administrative Procedures Act, 5 U.S.C.

$$ 702 et seq., provide for declaratory

and injunctive relief. Section 10 of

the APA, 5 U.S.C. § 702, states that any

person suffering legal wrong or adverse-

ly affected or aggrieved by an agency’s

action within the meaning of a relevant

statute may seek judicial review there-

of.

The Injured Parties argue that

based on the facts presented, which must

be taken as true based on the summary

judgement motion, they have met their

burden of presenting “specific facts

rebutting the government’s scope of

employment certification." Brown v

Armstrong, 949 F.2d 1007 at p. 1012 (8th

Cir. 1991); i Vv. in, 931

F.2d 1209 at 1211 (7th Cir. 1991), and

the district court was required to con-

duct at least limited judicial review of

the Attorney General’s scope-of-employ-

ment certification before substituting

the Untied States as defendant.

Since this was not done, the Court

must remand action against Mr. Lamagno

in his own person based on diversity ju-

risdiction.

Unless Congress expressly autho-

rized suit against the Federal Govern-

ment and its agencies, and thereby waive

sovereign immunity, they are not sue and

be sued entities. U sv.

Testan, 424 U.S. 392, at 399 (1976).

Thus to avoid dismissal for lack of

jurisdiction the Injured Parties must

establish that Congress consented to

suit by waiving immunity. Holloman v.

Watt, 708 F.2d 1399, at 1401 (9th Cir.

1983), cert. denied. Holloman v. Clark,

466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d

552 (1984).

Normally a tort action against the

United States would be permitted since

Congress enacted the Federal Tort Claims

Act, 26 U.S.C. § 2671 et seq. (hereinaf-

ter "FTCA"), to provide the means to sue

the Federal Government, and its agencies

under 28 U.S.C. § 1346(b), for damages

as a result of a tort.

However, FTCA is a limited waiver

of sovereign immunity, and 28 U.S.C. §

2680(k) states that the Federal Govern-

ment is not liable for damages for “any

claim arising in a foreign country."

Thus it has also been held that the

District Court has no jurisdiction over

any claim excluded by 28 U.S.C. § 2680-

(k). United States v. Mitchell, 445 U.S.

535, at 538 (1980).

Based on the above, Drug Enforce-

ment Administration and the United

States argued that 28 U.S.C. § 2680(k),

excluded an action based on a tort which

occurred in the Republic of Colombia.

However, the express language of 21

U.S.C. § 904, established an exception

to the exclusions under 28 U.S.C. §

2680(k), by Congress expressly autho-

rized the compensation for tort claims

for acts or omission arising in a for-

eign country as a result of Drug Enfor-

cement Administration operations. Thus

once the jurisdictional requirements of

28 U.S.C. § 2675 has been satisfied by

the filing of the administrative claim

which was accepted by DEA Headquarters

and forwarded to the Tort Division,

United States Department of Justice on

May 16, 1991, in accordance with 28

U.S.C. § 2672, the Injured Parties claim

fell under the Federal Tort Claims Act.

The DEA admit that the Injured

Parties have complied with the filing of

the administrative claim requirements

contained in 28 U.S.C. § 2675, when they

filed a timely claim against DEA Head-

quarters on May 8, 1991. Also the DEA

have admitted that they processed the

administrative claim of the Injured

Parties under 21 U.S.C. § 904. Finally,

the DEA admit that the Injured Parties

actively participated in supplying all

information and medical reports in sup-

port of their claim.

Therefore the Fourth Circuit opin-

ion is in error because under the pro-

vision of the FTCA once the Injured

Parties filed an administrative claim

with a certain sum for damages, and

complied with each request for addition-

al information in support of said claim,

they more than meet the requirement of

28 U.S.C. § 2675. Thus under thar sec-

tion they have a right to judicial re-

view. Wellman v Gross, 637 F.2d 544 (8th

Cir. 1980), cert den 102 S.Ct. 389; Lien

v. Beehner, 453 F.Supp. 604 (N.D.N.Y.,

1978) [action untimely even though gov-

ernment employment of tort feasor was

shielded both from the public and the

plaintiff); Driggers v. United States,

309 F.Supp 1377 (S.C., 1970).

The DEA certified that Mr. Lamagno

was acting within the scope of employ-

ment with DEA operations in the Republic

of Colombia, thus the DEA became liable

to suit under the FTCA, particularly

since the United States places strict

controls on its agents activities and

use of government vehicles in foreign

countries, and imposes sanctions on

employees who violate said controls, See

generally 31 U.S.C. § 1343 and 31 U.S.C.

§ 1349.

Thus in accordance with 21 U.S.C. §

904, the DEA and the United States are

subject to suit for acts or omissions as

a result of DEA operations in the Repub-

lic of Colombia.

CONCLUSION

The Fourth Circuit has held in this

instant petition that in all instances

conclusive nonreviewable effect will be

given to the Attorney General’s deter-

mination under 28 U.S.C. § 2679(d)(1).

The opinion of the Fourth Circuit

denies to court’s authority to review

the decisions of the executive branch’s

legal office despite the unsavory ap-

pearance of unfairness that is apparent

in dismissing of the instant petition

given the "James Bond Defense" of the

Drug Enforcement Administration, and

where, as here, its decisions determine

litigation in which it is an interested

party.

Quite apart from the constitutional

problems of separation of powers and due

process, the First, Second, Third,

Fifth, Sixth, Seventh, Eight, Ninth and

Eleventh Circuits on the same matter,

have refused to give nonreviewable con-

clusive effect to the Attorney General’s

determination under 28 U.S.C. § 2679-

(d)(1).

Thus nine other circuits have held

that all of the traditional interpre-

tative tools point to the conclusion

that Congress intended in 28 U.S.C. §

2679(d)(1) the subjecting the Attorney

General’s certification to judicial

review.

Thus this Court should grant cer-

tiorari so to resolve this dispute be-

tween the holdings in nine circuits, and

that of the Fourth Circuit Court of Ap-

peal.

Furthermore, Congress under 21

U.S.C. § 904, included within the FTCA

an action against the Drug Enforcement

Administration for a tort caused by that

agency in its operations abroad. The

Drug Enforcement Administration has

certified that Mr. Dirk A. Lamagno,

although driving recklessly under the

influence of alcohol, after work hours,

and in the company of an identified

woman, was acting within the scope of

his employment with DEA. Thus once the

injured parties complied with 28 U.S.C.

§ 2675, the district court had juris-

diction under 28 U.S.C. § 1346(b).

Therefore this Court should issue a

writ of certiorari so to assure confor-

mity among the circuits in the applica-

tion of 28 U.S.C. § 2679(d)(1). As well

as assure compliance with the intent of

Congress in enacting 21 U.S.C. § 904.

Respectfully submitted,

KATIA GUTIERREZ DE MARTINEZ,

EDUARDO MARTINEZ PUCCINI,

AND HENNY MARTINEZ DE PAPAIANI,

mri dans

Isidoro Rodriguez, Es

Attorney for Petitione

LAW OFFICE OF ISIDORO RODRIGUEZ P.C.

Calle 84 No. 56-51

Piso 2, Office 4

Barranquilla, Colombia S.A.

Telephone and Telefax

(011)5758-561678

Virginia Bar No. 21573

APPENDIX-A

l-a

IN THE UNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

KATIA GUTIERREZ DE

MARTINEZ, EDUARDO MARTINEZ

PUCCINI, and HENNY MARTINEZ

DE PAPIANI,

Plaintiffs,

CIVIL ACTION

NO. 93-0055-A

Vv.

THE DRUG ENFORCEMENT

ADMINISTRATION, and THE

UNITED STATES OF AMERICA,

em ee ee ee ee ee ee ee

Defendants.

ORDER

For reasons stated from the bench,

it is hereby ORDERED that the defendats’

motion to dismiss is GRANTED, and this

case is DISMISSED.

isl

UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

April 20, 1993

APPENDIX-B

1l-b

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KATIA GUTIERREZ DE MARTINEZ;

EDUARDO MARTINEZ PUCCINI;

HENNY MARTINEZ DE PAPAIANI,

Plaintiffs-Appellants,

Vv. No.93-1573

DIRK A. LAMAGNO; DRUG

ENFORCEMENT ADMINISTRATION;

UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District

Court for the Eastern District of Virgin-

ia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-93-55-A)

Submitted: December 2, 1993

Decided: April 28, 1994

Before Hall, Wilkinson, and Williams,

Circuit Judges.

Affirmed by unpublished per curiam opin-

ion.

COUNSEL

Isidoro Rodriguez C., LAW OFFICE OF ISID-

ORO RODRIGUEZ & SIBLEY P.C., Barran-

2-b

quilla, Columbia, for Appellant,

Kenneth E. Melson, United States Attor

ney, Rachel C. Ballow, Assistant United

States Attorney, Alexandria, Virginia,

for Appellees.

Unpublished opinions are not binding

precedent in this circuit. See I.0O.P.

36.5 and 36.6.

OPINION

PER CURIAM:

Appellants Katia Gutierrez de Mar-

tinez, Eduardo Martinez Puccini, and

Henny Martinez de Papaiani ("Appellants")

appeal the district court’s dismissal of

their personal injury action brought

against the Drug Enforcement Administra-

tion ("DEA"), DEA Special Agent Dirk A.

Lamagno, and the United States pursuant

to the Federal Tort Claims Act ("FTCA" or

"“Act"), 28 U.S.C.A. §2671 (West Supp.

1993). Finding no error, we affirm.

Appellants, citizens of the Republic

of Colombia, seek general and special

damages for physical injuries and proper-

ty damage incurred in an automobile acci-

dent that occurred on the night of Janu-

ary 18, 1991, in Barranquilla, Colombia.

Defendant Lamagno, driving a government~

owned Ford Bronco, collided with

Appellants’ vehicle in an intersection.

pellants filed an administrative

claim with the DEA pursuant to 21 U.S.C.

$904 (1988) on May 8, 1991. Because the

amount of the claim exceeded the DEA‘s

3-b

limited settlement authority,’ the claim

was referred to the Department of Jus-

tice. No final administrative decision

has yet been issued on that claim.

In the absence of a final decision

on their administrative claim, and to

avoid a statute of limitations bar, Ap-

pellants filed this action against

Lamagno, the DEA, and the United States.

The United States Attorney filed a Cer-

tification of Scope of Employment and

Notice of Substitution of the United

States for Defendant Lamagno pursuant to

28 U.S.C.A. §2679(d)(1) (West Supp.1993).

The district court substituted the United

States for Defendant Lamagno and dis-

missed Lamagno from the case. Defendants

then moved to dismiss the case pursuant

to Fed. R. Civ. P. 12(b)(1) and 12(b) (6).

The district court granted that motion.

Appellants appeal.

We review de novo the dismissal of a

case pursuant to Fed. R. Civ. P. 12(b)(1)

or 12(b)(6). Revene v. Charles County

Comm’‘rs, 882 F.2d 870, 872 (4th

Cir.1989). Dismissal is appropriate

where it appears beyond doubt that the

plaintiff can prove no set of facts to

support his allegations. Id.

The FTCA acts as a waiver of the

United States’s sovereign immunity in

limited circumstances. However, the Act

specifically excludes certain types of

claims, preserving the immunity of the

United States. One such exclusion is for

‘28 U.S.C.A. §2672 (West Supp.1993).

4-b

“any claim arising in a foreign country."

28 U.S.C. §2680(k) (1988). Accordingly,

the United States cannot be subjected to

a tort suit of negligence based on an act

or omission by an employee or agent of

the United States where the claim giving

rise to the suit occurred in a foreign

country.

The district court properly found

that this case falls squarely within the

foreign country exception to the Act. It

is undisputed that the automobile acci-

dent that caused Appellants’ injuries

occurred in Barranquilla, Colombia, a

foreign country. Moreover, the alleged

negligence which proximately caused the

accident (failure to adhere to local

traffic rules and improper operation of a

motor vehicle) arose in Barranquilla.

Appellants advance two arguments to

avoid the effect of the foreign country

exemption from the FTCA. First, Appel-

lants argue that they are entitled to

judicial review under 21 U.S.C. §904

(1988). We disagree. Section 904

states:

Notwithstanding section 2680(k)

of Title 28, the Attorney Gen-

eral, in carrying out the func-

tions of the Department of Jus-

tice under this subchapter, is

authorizedto pay tort claims in

the manner authorized by sec-

tion 2672 of Title 28, when

such claims arise in a foreign

country in connection with the

operation of the Drug Enforce-

ment Administration abroad.

5-b

The plain language of §904 makes no pro-

vision for judicial review and we will

not broadly imply a waiver of sovereign

immunity. United States v. Testan, 424

U.S. 392, 399 (1975). Moreover, while

$904 does make reference to §2680(k) (the

foreign country exception to the FTCA)

and §2672 (allowing administrative pay-

ment of claims under the FTCA), we think

it notable that §904 does not reference

any other statutory provision suggestive

of a judicial remedy. Accordingly, we

reject ~ yell attempt to circumvent

the foreign country exception by means of

$904.

Appellants also contend that their

case falls within the “headquarters

claim" exception to the foreign country

exclusion of the FTCA. Specifically,

Appellants maintain that the alleged

negligence occurred in the United States

and not in Colombia. The district court

rejected that argument, as do we.

A headquarters claim exists where

negligent acts in the United States prox-

— cause harm in a foreign country.

Such claims typically involve

allegations of negligence by agents lo-

cated in the United States in the guid-

ance of employees who cause damage

while in a foreign country, or of activ-

ities which take place in a foreign coun-

try. Cominotto v. United States, 802

F.2nd 1127, 1130 (9th Cir. 1986).

To establish a headquarters claim

Appellants must establish a plausible

proximate nexus between the acts or omis-

sions in the United States and the re-

i - “

6-b

sulting damage or injury in a foreign

country. See Eaglin v. United States,

Dep’t of Army, 794 F.2nd 981, 983 (5th

Cir. 1986). The district court’s find-

ings regarding proximate causation is a

factual one, subject to a clearly erro-

neous standard of review. Cominotto, 802

F.2nd at 1130. Here, the district

court’s findings that Appellants failed

to demonstrate that the acts or omissions

of the United States employees at the DEA

Headquarters in Arlington, Virginia, were

the proximate cause of the automobile

accident in Barranquilla, Colombia is not

clearly erroneous.

Appellants cited no authority hold-

ing that federal agencies have a duty to

provide additional instruction to their

employees, properly licensed under state

law, before permitting them to operate

government vehicles in foreign countries.

Thus, the alleged negligence by headquar-

ters personnel is too attenuated to sup-

port a headquarters claim in this case.

Eaglin, 794 F.2nd at 984 n.4. Therefore,

we affirm the

district court’s order dismissing the

case for lack of jurisdiction.

We also affirm the district court’s

order substituting the United States in

place of Defendant Lamagno. The FTCA

provides that if the Attorney General

certifies that the defendant employee was

acting within the scope of his employ-

ment, the United States shall be substi-

tuted as the party defendant. 28 U.S.C.A.

§2679(d)(1).

7-b

The law in this Circuit is clear

that such a certification is conclusive.

Johnson v. Carter, 983 F.2nd 1316, 1320

(4th Cir.) (en banc), cer. denied, 62

U.S.L.W. 3244 (U.S. 1993). Specifically,

we have held that no discretion is given

to the district court to review the At-

torney General’s certification made pur-

suant to 28 U.S.C.A. §§2679(d)(1), (2).

Johnson, 983 F.2nd at 1319. Thus, the

district court lacked discretion to re-

view the United States Attorney’s deter-

mination that Lamagno was acting within

the scope of his employment at the time

of the accident in Colombia. Id.

Finding no error, we affirm the

district court’s orders.’ We dispense

with oral argument because the facts and

legal contentions are adequately present-

ed in the materials before the Court and

argument would not aid the decisional

process.

AFFIRMED

*"We note that Appellants may yet

receive redress for their injuries by

virtue of the administrative claim they

filed pursuant to 21 U.S.C. §904.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.