Opinion
3:21-cv-01618-YY
08-02-2024
CHRISTOPHER FRISON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Christopher Frison originally brought this action against Joshua Allen Jones in state court, alleging a single claim of assault under Oregon law. See Not. Removal, Ex. 2 at 11, ECF 1-2. At the time of the incident, Jones was an agent of the U.S. Customs and Border Patrol (“CBP”) who had been designated for assignment in Portland to work in connection with the protests during the summer of 2020. Plaintiff worked in maintenance at the hotel where Jones had been staying during the assignment. Plaintiff alleges that when he knocked on Jones's door to assist with a maintenance request Jones had made, Jones aggressively opened the door and “pointed a semiautomatic handgun” at plaintiff's chest. Second Am. Compl. ¶ 3, ECF 18.
Because Jones was a federal employee, the government removed the case to federal court under 28 U.S.C. § 1442. Not. Removal 2, ECF 1. Accompanying the Notice of Removal was a Certification Pursuant to 28 U.S.C. § 2679(d) that asserted Jones “was acting within the scope of his employment at the time of the incident” from which plaintiff's lawsuit arose. See Not. Removal, Ex. 1 at 2, ECF 1-1.
Previously, the court denied plaintiff's motion to strike the certification primarily because the motion came at the outset of the case and was based essentially on the face of the certification itself. See Order 3-5 (May 6, 2022), ECF 10. Since then, the parties have engaged in some limited discovery on the scope of Jones's employment. Now, plaintiff has renewed the motion challenging the certification. As explained below, the evidence shows that at the time of the incident, Jones was on-call and was actively preparing his duty gear, including his service-issued firearm, before needing to report in about thirty minutes for his overnight shift in downtown Portland that day. He is authorized and sometimes required to carry a firearm, and it was part of his job to prepare and maintain his equipment and weapons. Thus, Jones was working in the time and space limits of his employment and was performing job-related tasks at the time of the incident, and he was within the scope of his employment with the Government. Therefore, plaintiff's Motion Challenging 28 U.S.C. § 2879(d) Scope of Employment Certification (ECF 44) should be denied.
Plaintiff filed two versions of the currently pending motion-one under seal (ECF 38) pursuant to the terms of the protective order in place for this case, and one public record version (ECF 44). These Findings and Recommendations reference the public record version.
I. Federal Tort Claims Act and the Westfall Act
The Federal Tort Claims Act (“FTCA”) provides that the United States shall be liable 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018) (explaining that FTCA “waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of employment”). The Federal Employees Liability Reform and Tort Compensation Act, known as the Westfall Act, amended the FTCA. Hernandez v. Mesa, 589 U.S. 93, 111(2020). The Westfall Act provides that “if the Attorney General certifies that a federal government employee was acting within the scope of employment when the tort occurred, then the United States shall be substituted as the defendant in a tort suit against the employee.” Kashin v. Kent, 457 F.3d 1033, 1036 (9th Cir. 2006) (citing 28 U.S.C. § 2679(d)). “Upon certification, the government employee is dismissed from the suit, and is immune from other civil actions arising from the alleged tort.” Id. at 1036-37 (citing 28 U.S.C. § 2679(b)(1)).
The Attorney General's “certification is subject to judicial review for purposes of substitution.” Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). Certification “is prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident and is conclusive unless challenged.” Id. “The party seeking review bears the burden of presenting evidence and disproving the Attorney General's certification by a preponderance of the evidence.” Id. The critical question in such a challenge is “whether the employee was acting within the scope of employment at the time of the allegedly tortious act.” Kashin, 457 F.3d at 1037. That question is typically controlled by the “respondeat superior law of the state in which the alleged tort occurred.” Id.; see also 28 U.S.C. § 1336(b)(1) (providing that the applicable law to determining scope of employment is “the law of the place where the act or omission occurred”). “Further, the United States must be named as the defendant ‘unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment.' ” Rahman v. Barnett, No. 1:15-cv-00388-CL, 2015 WL 10059359, at *2 (D. Or. Nov. 25, 2015), report and recommendation adopted, No. 1:15-cv-00388-CL, 2016 WL 593569 (D. Or. Feb. 11, 2016) (quoting Osborn v. Haley, 549 U.S. 225, 231 (2007)) (italics in original).
II. Scope of Employment
Under Oregon law, an employee was acting within the scope of employment if (1) “the act occurred substantially within the time and space limits authorized by the employment,” (2) “the employee was motivated, at least partially, by a purpose to serve the employer,” and (3) “the act is of a kind which the employee was hired to perform.” Chesterman v. Barmon, 305 Or. 439, 442 (1988).
The government assigned Jones to and paid for the hotel room in Portland in connection with Jones's assignment there. While on assignment in Portland, Jones did not have any days off; his shift started daily at 6:00 p.m. and ended around 6:00 a.m. Each day during the assignment, Jones was scheduled to meet his team in the hotel lobby at 5:00 p.m. to prepare for transportation to downtown for the 6:00 p.m. shift. In between shifts, Jones was “on call” at all times, including while in his hotel room. During this on-call time, Jones was expected to stay close to hotel and be “prepare[d] to respond if . . . the call came,” and to perform work duties like writing reports and preparing his “duty gear” for the shift each day. Jones's duty gear included his “pistol, pistol magazines, a baton, handcuffs, [and] flashlight.” Jones was responsible for the general care and maintenance of his firearm and other equipment, and was responsible for preparing his own duty gear for any particular shift. Jones was authorized to carry his firearm twenty-four hours a day. The CBP Use of Force Handbook requires agents to either keep their weapon “within . . . immediate reach” or to use a “safety-locking device” at all times.
K. Jones Decl., Ex. 3 (Agent Jones Dep.) 34:24-35:13, 37:23-38:6, 39:1-2, ECF 39-3.
K. Jones Decl., Ex. 4 (Stone Dep.) 40:3-41:3, 61:20-24, ECF 39-4.
Id. 39:8-40:22, 46:1-8.
Agent Jones Dep. 45:6-15, ECF 39-3.
Stone Dep. 28:6-12, 48:22-49:8, 62:9-17, 130:6-12, ECF 39-4; Agent Jones Dep. 52:2-19, ECF 39-3.
Stone Dep. 130:6-12, ECF 39-4.
Keller Decl., Ex. E (“CBP Use of Force Handbook”) at 57, 64, ECF 42-5; Agent Jones Dep. 77:17-24, ECF 39-3; Stone Dep. 26:12-21, ECF 39-4.
See Keller Decl., Ex. D (Bova Dep) 29:20-30:14, ECF 42-4; CBP Use of Force Handbook at 9, ECF 42-5.
CBP Use of Force Handbook at 60, ECF 42-5.
Immediately before the incident with plaintiff on July 27, 2020, Jones was in his hotel room; he submitted a “Use of Force” report regarding an unrelated incident via email at around 3:00 p.m. At some point that day, Jones called the front desk for a maintenance request. Plaintiff testified that he received a call regarding Jones's request at about 4:30 p.m., and shortly thereafter headed toward Jones's room, number 428. Jones testified that he was “getting . . . gear ready for the day” when there was a knock on his door. Plaintiff testified that he knocked on the door and said, “Maintenance,” and that thereafter Jones “slings the door open real fast . . . like ‘What are you doing?' ” Jones answered the door with his pistol in his hand; what exactly transpired at the door-who said or did what, whether Jones was pointing the gun at plaintiff's chest or at the floor, whether the gun was loaded, and more-is disputed and uncertain. There is no dispute, however, that Jones was holding a gun. After a few seconds, Jones put the gun down or holstered it and asked plaintiff if he wanted to come into the room. Plaintiff refused, and gave Jones a tool to use. The door closed, and plaintiff went quickly down the stairs to the front desk and left work for the day a short time later because the interaction with Jones frightened him. Jones fixed the maintenance issue, gathered his gear, and went downstairs to report for his shift that night.
Stone Dep. 29:7-16, ECF 39-4.
K. Jones Decl., Ex. 2 (Frison Dep.) 45:21-46:13, ECF 39-2.
K. Jones Decl., Ex. 1 at 1, ECF 39-1.
Frison Dep. 49:16-17, ECF 39-2.
See Frison Dep. 58:17-69:12, ECF 39-2; Agent Jones Dep. 54:11-62:2, ECF 39-3.
Frison Dep. 74:5-18, ECF 39-2; Agent Jones Dep. 69:24-70:6, ECF 39-3.
Frison Dep. 89:16-23, ECF 39-2.
Id. at 107:8-108:10.
Agent Jones Dep. 82:3-8, ECF 39-3.
Plaintiff asserts that the incident was not within the time and space limits of Jones's job because Jones was off-duty, the hotel was privately owned, and Jones was not conducting “any enforcement operations at the hotel.” Mot. Certification 25, ECF 44. The fact that the hotel was privately owned is not particularly weighty, given the Government assigned Jones to stay there and paid for the room and his meals. See State Farm Mut. Auto. Ins. Co. v. Swan, No. 3:02-cv-00521-BR, 2002 WL 31973731, at *3 (D. Or. Aug. 22, 2002) (finding that employee was acting within the scope of employment during an automobile accident while driving from dinner after a training because she “was required to be in Portland for four days to attend [the] training, was driving a government vehicle, and was provided funds to pay for her meals and hotel”).
Moreover, Jones was performing work tasks, like preparing and gathering his weapons and other duty gear in the immediate run-up to reporting for his nightly shift. It is undisputed that these tasks were part of Jones's job, and that he was authorized and even sometimes required to carry a firearm. Plaintiff says Jones was “vague” about what he was doing in the hotel room prior to the knock, Reply 12, ECF 43, but plaintiff does not point to any evidence that contradicts or undermines Jones's testimony. See Reply 16, ECF 43 (“[T]he only actual evidence [of what Jones was doing in his hotel room] is what Jones testified to[.]”). Further, it is undisputed that Jones reported each day at 5 p.m. in the hotel lobby to meet his teammates for transport downtown, and plaintiff estimated the incident took place sometime after 4:30 p.m. This close temporal connection is consistent with Jones's testimony that he was preparing his duty gear at the time of the incident.
Finding that Jones was acting within the “time and space” limits of his employment does not, as plaintiff suggests, depend on a rule that “24-hour-on-call on-assignment employees are per se acting within” those limits. Reply 14, ECF 43. This is a fact-intensive analysis that takes into consideration all the circumstances-Jones's on-call status is just one of many-and does not rely on bright-line rules. See Thomas v. Parker Refrigerated Servs., Inc., 61 Or.App. 234, 240 (1983) (“[N]o general rule will determine in each case whether an employe[e] is acting within the scope of employment, and each case must be decided on its own particular facts and circumstances[.]”). Certainly, circumstances may exist where an on-call employee's conduct was not within the scope of employment. For example, in one of the cases plaintiff cited, a military officer who was technically on-call around the clock was not acting within the scope of his employment when he crashed his personal vehicle on the way to a voluntary basketball practice. Sharrock v. United States, No. 01:08-cv-00013, 2010 WL 2278580, at *9 (D. Guam June 3, 2010), aff'd, 673 F.3d 1117 (9th Cir. 2012); Reply 15, ECF 43 (citing Sharrock). Here, by contrast, Jones was on-call and was actively preparing his gear in imminent anticipation of reporting for duty within the hour; both the temporal and spatial proximity and type of activity at issue are much more closely aligned with Jones's job than an off-hours basketball practice was for the plaintiff in Sharrock. See also Clamor v. United States, 240 F.3d 1215, 1217 (9th Cir. 2001) (finding that employee was not acting within the scope of employment because he was “off duty when the accident occurred” and “was not engaged in any errand for his employer, but was leaving work and free to do whatever he wished”).
As for the second and third factors, in cases like this one involving an intentional tort “it usually is inappropriate for the court to base its decision on whether the complaint contains allegations that the intentional tort itself was committed in furtherance of any interest of the employer or was of the same kind of activities that the employee was hired to perform” because “[e]mployers do not ordinarily hire others for the specific purpose of committing intentional torts, and vicarious liability would be defeated in almost every instance under such a standard.” Minnis v. Oregon Mut. Ins. Co., 334 Or. 191, 204-05 (2002) (simplified) (emphasis in original). Rather, an “intentional tort is within the scope of employment . . . if conduct that was within the scope of employment was ‘a necessary precursor to the' intentional tort and the intentional tort was ‘a direct outgrowth of conduct that was within the scope of employment.' ” Doe v. Holy See, 557 F.3d 1066, 1083 (9th Cir. 2009) (quoting Minnis, 334 Or. at 206) (simplified).
And for reasons similar to those explained above, Jones was engaged in work-related tasks when plaintiff knocked at his hotel room door, and thus the “precursor” conduct to the intentional tort was within Jones's scope of employment. It is undisputed that part of Jones's job included duty gear preparation, including maintenance of his service-issued firearm. When Jones answered the door holding a firearm, he was acting within the bounds of the CBP Handbook, which required Jones to keep his weapon within arm's reach when it was not securely stored. Jones was readying his gear to begin a shift in the immediate future, and thus the interaction with plaintiff in which Jones was holding a firearm was “the culmination of a progressive series of actions that involved [Jones's] ordinary and authorized duties.” Bray v. Am. Prop. Mgmt. Corp., 164 Or.App. 134, 140 (1999).
For these reasons, plaintiff has not sustained his burden of establishing by a preponderance of evidence that Jones was acting outside the scope of his employment to prevail on his motion challenging the certification pursuant to 28 U.S.C. § 2679(d).
RECOMMENDATIONS
Plaintiff's Motion Challenging 28 U.S.C. § 2679(d) Scope of Employment Certification [44] should be denied.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, August 01, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.