Opinion
Civil Action 24-cv-00857-SKC-MDB
06-27-2024
WESLEY MCCONNELL, Plaintiff, v. ASHLEY SCHULTZ, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Maritza Dominguez Braswell United States Magistrate Judge
This matter is before the Court on the Motion to Substitute the United States as a Defendant. ([“Motion”], Doc. No. 7.) In its Motion, the United States seeks to be substituted as the sole defendant in this action pursuant to 28 U.S.C. §2679(d). (Id.) Though it appears Plaintiff opposes the Motion (id. at 3), he failed to file a response or appear at the Motion Hearing on April 22, 2024.
“Under 28 U.S.C. § 2679, commonly referred to as the Westfall Act, federal employees are absolutely immune from state-law tort claims that arise ‘out of acts they undertake in the course of their official duties.'” Hockenberry v. United States, 42 F.4th 1164, 1170 (10th Cir. 2022) (quoting Fowler v. United States, 647 F.3d 1232, 1235 (10th Cir. 2011) (internal quotation marks omitted)). “When a civil action is filed against a federal employee in state court, the Attorney General may 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.'” (Id. (quoting 28 U.S.C. § 2679(d)(2)). “Upon such certification, the Attorney General shall remove the case to federal court, the action shall be deemed to be brought against the United States under the FTCA, and the United States shall be substituted as the defendant.” Id.; see Woodruff v. Covington, 389 F.3d 1117, 1126 (10th Cir. 2004) (“An FTCA action against the United States is the sole remedy for any injury to person or property caused by the negligent or wrongful acts of a federal employee acting within the scope of his or her employment.”).
“The Attorney General's [scope-of-employment] certification ‘is conclusive for purposes of removal.'” Hockenberry, 42 F.4th at 1170 (quoting Osborn v. Haley, 549 U.S. 225, 231 (2007)). “But following removal, the [scope-of-employment] certification is ‘subject to de novo review' in the district court.” Id. (quoting Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir. 1995)). “In such review, the [scope of employment] certification ‘is prima facie evidence that an employee's challenged conduct was within the scope of his employment. The plaintiff then bears the burden of rebutting the scope-of-employment certification with specific facts.'” Id. (quoting Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir. 1995)); see Fowler, 647 F.3d at 1241 (“Under the Westfall Act, a court must identify and resolve any disputed issues of fact regarding the employee's scope of employment. If there are disputed issues of fact, the district court should hold such hearings as appropriate (including an evidentiary hearing if necessary), and make the findings necessary to decide the Westfall certification question.” (citation and internal quotation marks omitted)).
Although scope-of-employment certifications are usually uncontested, Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 422 (1995), here Plaintiff appears to object to the certification. (See Doc. No. 7 at 3 (“Plaintiff opposes the relief sought.”).) “Where a plaintiff opposes certification, the plaintiff bears the burden of rebutting the scope-of-employment certification with specific facts.” Pinales-Garcia v. McDonald., 2023 WL 7458364, at *2 (D. Colo. Sept. 28, 2023) (citing Richman, 48 F.3d at 1145). Here, however, Plaintiff failed to respond to the Motion or appear at the Motion Hearing and thus has necessarily failed to rebut the certification. Therefore, the Court finds the Motion should be granted. See id. (granting a Westfall certification motion after finding the plaintiff did “not allege a single fact or advance any cognizable argument that [the federal employee] was not acting within the scope of employment,” and did not “deny or rebut [the federal employee's] declaration, or the statements contained therein”).
Accordingly, the Court RECOMMENDS that the Motion to Substitute the United States as a Defendant. (Doc. No. 7) be GRANTED.
The Clerk of Court is directed to mail a copy of this recommendation to Plaintiff:
Wesley McConnell P.O. Box 1067 Palmer Lake, CO 80133
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).