United States District Court, D. Maryland
ANGELE L. CHANG-WILLIAMS, et al.
UNITED STATES OF AMERICA
[Copyrighted Material Omitted]
For Angele L. Chang-Williams, Isla Elaine Washington, DeLisia Carpenter, Vinele Chang, Plaintiffs: Beverly Ann Henderson, PRO HAC VICE, Law Office of Beverly Henderson, Washington, DC; Sunwoo Nam, Sunwoo Nam Attorney at Law, Silver Spring, MD.
For United States of America, Defendant: Jason Daniel Medinger, Office of the United States Attorney, Baltimore, MD.
DEBORAH K. CHASANOW, United States District Judge.
Presently pending in this case arising under the Federal Tort Claims Act (" FTCA" ) is the motion for summary judgment filed by Defendant the United States of America (" the Government" ). (ECF No. 66). The issues are fully briefed, and the court now rules, no hearing being deemed necessary. See Local Rule 105.6. For the reasons that follow, the motion will be denied.
A. Factual Background
Except as otherwise noted, the following facts are undisputed. On the night of Friday, November 1, 2002, the Prince George's County Police Department responded to a report of domestic violence at 833 Worley Drive in Landover, Maryland. (ECF No. 66-11, at 2). The police took Estabon Eugene, Jr., into custody and charged him with second degree assault of his wife, Nakeisha Eugene. ( Id. at 1). An ambulance transported Nakeisha to Andrews Air Force Base, and she was later transferred to Walter Reed Hospital.
At the time of this domestic dispute, Estabon Eugene served as a sergeant with the United States Marine Corps and was stationed at Henderson Hall in Arlington, Virginia. Sgt. Eugene worked as a watch officer at a " local control center" for the Marine Corps' Defense Messaging System. With respect to Sgt. Eugene's day-to-day work, Staff Sergeant Fernando Steverson served as his first-line supervisor, and Gunnery Sergeant Harold Holden as his second-line supervisor. (ECF No. 66-3, Holden Dep., at 11-14). Gy. Sgt. Holden reported to Master Sergeant Bruce Witherspoon, who, in turn, reported to then-Captain James Richards. ( Id. at 11, 38). Captain Richards reported to then-Major Stephen Crow, who reported to Lt. Col. Allen Katzberg. (ECF No. 66-5, Crow Decl. ¶ 3; ECF No. 66-6, Katzberg Decl. ¶ 3). Each of these " operational" supervisors had the ability to make recommendations about disciplinary measures to be taken against Sgt. Eugene. ( See ECF No. 66-4, Richards Dep., at 21-22). According to the Government, however, only those officers with " command authority" - specifically, those officers in " Battalion Command" - had the ability to impose disciplinary measures. ( See, e.g., ECF No. 66-4, Richards Dep., at 21; ECF No. 66-8, Reed Decl. ¶ 4). As of November 2002, only Col. J.M. Reed, the Battalion Commander, had the authority to restrict Sgt. Eugene to base. ( Id. ).
On Saturday, November 2, 2002, Master Sgt. Witherspoon secured Sgt. Eugene's release by posting bail. ( See ECF No. 66-12). Master Sgt. Witherspoon took Sgt. Eugene to the office of First Sgt. Paul Broadnax, who served as part of Col. Reed's Battalion Command staff. Rather than allowing Sgt. Eugene to return to the residence he shared with Nakeisha, Sgt. Broadnax arranged for Sgt. Eugene to be " [p]ut . . . back to the barracks" at
Henderson Hall and " g[a]ve him a room until the first workday," at which point the situation would be assessed by Battalion Command. (ECF No. 66-9, Broadnax Dep., at 40-41). Sgt. Broadnax testified that, during this " short duration of time" before the first workday of Monday, November 4, Sgt. Eugene was not free to leave the barracks as a " precautionary measure." ( Id. at 74). The Government's Fed.R.Civ.P. 30(b)(6) designee, however, testified that Sgt. Eugene was never restricted to base or otherwise precluded from going back to his residence. (ECF No. 66-2, Greer Dep., at 36-37).
Also on Saturday, November 2, Sgt. Steverson and Sgt. Ford, another Marine Corps officer, visited Nakeisha at Walter Reed Hospital. (ECF No. 66-15, Angele Dep., at 45). The officers spoke with two of Nakeisha's aunts, Plaintiff Angele Chang-Williams and non-party Ursula Charley. ( Id. at 59). During this conversation, one of the officers represented that Sgt. Eugene would not be able to stay in the Eugene house but would " have to go back to the barracks." ( Id. ). Based on this statement, Angele believed that Sgt. Eugene was in the barracks at Henderson Hall for the rest of the weekend. ( Id. at 72-73). After being discharged from the hospital later in the day on November 2, Nakeisha went to stay at Ursula's house in Prince George's County, Maryland.
On Monday, November 4, 2002, Captain Richards attempted to visit Nakeisha at the hospital after seeing a photograph of her injuries. (ECF No. 66-4, Richards Dep., at 44). When he discovered that Nakeisha had already been discharged, Captain Richards briefed Lt. Col. Katzberg, his supervisor, about the extent of Nakeisha's injuries and stated that " I need to go check on her." ( Id. at 44-45). Captain Richards testified that his motivation in visiting Nakeisha was to " console her, and see how she was doing and if there was anything I could [do to] help her." ( Id. ). At that time, Captain Richards also told Lt. Col. Katzberg that Sgt. Eugene should " be placed on restricted disciplinary action" because " it was unsatisfactory for any woman to take injuries like that." ( Id. at 18-19). In fact, " to [Captain Richards's] understanding, [Sgt. Eugene] already was [on restriction]." ( Id. at 18).
Later that day, Captain Richards and Gy. Sgt. Holden visited Nakeisha at her Aunt Ursula's house in Maryland. (ECF No. 66-3, Holden Dep., at 17). Like Captain Richards, Gy. Sgt. Holden testified that the purpose of their visit was " purely sympathetic" and that they wanted to " just go there just to show that we  were sorry." ( Id. ). In addition to Nakeisha and Ursula, Nakeisha's mother, Carolyn Rhea, and her sister, Shelita Simmons, also were present.
The details of the visit are in dispute. Nakeisha recalls telling the officers that she feared for her safety and the safety of her family, which included her daughter, mother, and sister; the Charley family; and the Chang family. (ECF No. 66-16, Nakeisha Dep., at 41). Nakeisha remembers telling the officers that she believed Sgt. Eugene " was real angry" and that " in [her] heart, [she] knew he was going to do anything to try to get to [her], no matter who it meant having to hurt." ( Id. at 42). Carolyn recalls that both she and Nakeisha asked the officers " for protection" for Nakeisha and her family. (ECF No. 66-17, Carolyn Dep., at 35). Nakeisha and Carolyn also both remember specifically mentioning the names of members of the Chang and Charley families in the request for protection because Sgt. Eugene knew that Nakeisha had turned to them in the past for help. ( Id. at 35-37; ECF No. 66-16, Nakeisha Dep., at 41). Nakeisha, Carolyn, and Shelita each aver that, in response
to these requests, Captain Richards and Gy. Sgt. Holden assured them (1) that Sgt. Eugene would be " detained" or " restricted" to base; and (2) that, if Sgt. Eugene needed to leave the base, he would be " monitored" or " escorted" by another Marine. (ECF No. 66-16, Nakeisha Dep., at 42; ECF No. 66-17, Carolyn Dep., at 29; ECF No. 66-18, Shelita Dep., at 22). Based on these assurances, Nakeisha " felt that [there] was going to be some security for the Charley family and the Chang family." (ECF No. 66-16, Nakeisha Dep., at 44).
Gy. Sgt. Holden and Captain Richards both deny ever making any promises of protection to Nakeisha or her family. (ECF No. 66-3, Holden Dep., at 20; ECF No. 66-4, Richards Dep., at 67). Gy. Sgt. Holden specifically denies making any promises that Sgt. Eugene would be restricted to base or that he would be escorted by a Marine off-base, and further testified that it would have been " out of [their] authority" to do so because only Battalion Command could impose such measures. (ECF No. 66-3, Holden Dep., at 21). Although Captain Richards does not specifically recall that anyone asked about what " was being done" to Sgt. Eugene, he avers that he " wouldn't have had any answers for them" because, at that point, he did not know for sure if Sgt. Eugene was actually being restricted to Henderson Hall. (ECF No. 66-4, Richards Dep. at 62-63). Captain Richards was aware, however, that " [t]here was hearsay from over the weekend that [Sgt. Eugene] was going to be taken to the barracks and put on restriction over the weekend until Monday." ( Id. at 53). Captain Richards also admits that, at the time of the visit to the Charley residence, he assumed that Nakeisha would not be able to return to Sgt. Eugene because he " was going to be on restriction." ( Id. at 61; see also id. at 18-19).
After their visit to the Charley residence, Captain Richards returned to Henderson Hall and again briefed his supervisor, Lt. Col. Katzberg, about the extent of Nakeisha's injuries. (ECF No. 66-4, Richards Dep., at 63). He also again recommended that disciplinary action be taken against Sgt. Eugene and, specifically, that Sgt. Eugene be placed on restriction. ( Id. at 44). Captain Richards's supervisors later told him that " command will take it from here," at which point " there [was] nothing else [he] personally could have done." ( Id. ). Lt. Col. Katzberg avers that neither Captain Richards nor Gy. Sgt. Holden ever told him that " they had made any promises to the spouses of Sgt. Eugene or to any other persons." (ECF No. 66-6, Katzberg Decl. ¶ 5). Had they done so, Lt. Col. Katzberg avers that he " would have chewed them out, and immediately contacted the command to take corrective action, because neither Richards nor Holden, nor the Marine Corps, had the authority to make promises of protection to civilians living in town off-base." ( Id. ).
Also on Monday, November 4, Ursula called Angele to tell her about the visit by Captain Richards and Gy. Sgt. Holden. (ECF No. 66-15, Angele Dep., at 73). Ursula told Angele that she and Nakeisha had expressed their fear that " if Sgt. Eugene came looking for Nakeisha, the first house he was going to come to is the Chang family house." ( Id. at 75). According to Angele, Ursula told her that " the Chang family, any of the Charley family, Nakeisha and [her minor daughter] and Shelita, they didn't have to worry about that because [the officers] promised that [Sgt.] Eugene would be detained and monitored on the base in the barracks at Henderson Hall." ( Id. at 76). Angele, in turn, relayed the details of her conversation with Ursula to Kelvin, her husband, and Aldwin, her son, both of whom lived
with her. ( Id. at 88-89). Angele testifies that the assurances extended by the officers were a " relief because I believed if that's what the military is going to do, I didn't have to be worrying about somebody lurking around my house because [Sgt. Eugene] would be on the military base." ( Id. at 89). Thus, Angele " went about [her] daily life." ( Id. at 90).
On Tuesday, November 5, Col. Reed, the head of Battalion Command, issued a military protection order (" MPO" ) against Sgt. Eugene. (ECF No. 66-19). The MPO ordered Sgt. Eugene to stay away from Nakeisha, but did not reference any other family members. ( Id. ). Other than the MPO, Battalion Command did not impose any disciplinary measures on Sgt. Eugene. (ECF No. 66-8, Reed Decl. ¶ ¶ 6-8). Specifically, Battalion Command did not place Sgt. Eugene on restriction or order that he be escorted when he left Henderson Hall. ( Id. ). Nor did Battalion Command take any steps to ensure that Sgt. Eugene was abiding by the MPO. ( Id. ). Rather, Sgt. Eugene was free to come and go from Henderson Hall as he pleased, with the MPO serving only as a " moral order" that Sgt. Eugene " was expected to follow." ( Id. ¶ 8). Col. Reed avers that he had discretion to place Sgt. Eugene on restriction or to recommend that court martial charges be brought against him, which could result in him being subjected to a military escort. ( Id. ¶ 8). In determining what disciplinary measures to impose, Col. Reed generally considers a variety of factors, including " the severity of the infraction, past misconduct history, past service record, and the needs of the Marine Corps in discharging its functions." ( Id. ¶ 5). In Sgt. Eugene's case, Col. Reed did not believe that restriction or court-martial charges were appropriate because, to his knowledge, Sgt. Eugene had not previously engaged in misconduct and had a good service record. ( Id. ¶ 6).
Also on November 5, Plaintiff DeLisia Carpenter (the daughter of Angele and a cousin of Nakeisha) discovered that her tires had been slashed. (ECF No. 66-14, DeLisia Dep., at 57). Because she suspected that Sgt. Eugene might be responsible, DeLisia called Gy. Sgt. Holden to inquire about Sgt. Eugene's whereabouts. ( Id. at 58). According to DeLisia, Gy. Sgt. Holden reported that Sgt. Eugene had been " unaccounted for" for nine hours. ( Id. at 59). DeLisia asked whether Sgt. Eugene would be " unaccounted for" in the future, and Gy. Sgt. Holden responded that " [n]o, that's not tolerated" and stated that the Marine Corps " will make sure that he will be monitored." ( Id. at 61). Thus, in DeLisia's view, her phone call with Gy. Sgt. Holden reaffirmed that " the promise of protection from [the visit of November] 4th was still in place." ( Id. ). DeLisia shared the details of this conversation with Angele and Nakeisha. ( Id. at 59).
On Wednesday, November 6, Nakeisha petitioned the District Court of Maryland for Prince George's County, Maryland, for a civil protective order (" CPO" ). ( See ECF No. 66-20). Nakeisha sought protection for herself and several members of her family, including Angele, DeLisia, Ursula, and unspecified members of Ursula's family. ( Id. at 5). Nakeisha testified that she obtained the CPO to ensure that Sgt. Eugene knew that she " didn't want to be bothered with him" and that she " did not want him around the Charleys, the Changs, or [her]self," because - although it was possible that Captain Richards and Gy. Sgt. Holden had expressed her feelings to Sgt. Eugene - she wanted to be sure he got the message. (ECF No. 66-16, Nakeisha Dep., at 57, 59, 63).
On Friday, November 8, Nakeisha learned from Captain Richards that that
the Marine Corps could not restrict Sgt. Eugene to base on the weekends. ( See ECF No. 66-16, Nakeisha Dep., at 84-86). Nakeisha relayed this information to Angele. (ECF No. 66-15, Angele Dep., at 92). According to Angele, Nakeisha later called back to say that she had spoken with Captain Richards, who reassured Nakeisha that the Marines would restrict Sgt. Eugene to Henderson Hall during the week. ( See id. ).
On Tuesday, November 12, Sgt. Eugene drove a rental car to the Chang residence in Capitol Heights, Maryland, and forcibly entered the house, looking for Nakeisha. When he learned that she was not present, Sgt. Eugene shot Angele, Kelvin, and Aldwin Chang. Kelvin and Aldwin suffered fatal wounds, while Angele survived. After making another stop at the Charley residence, Sgt. Eugene led local police on a high-speed chase that ended when he crashed his car on the Capital Beltway. Sgt. Eugene then shot himself in the head and later died.
B. Procedural Background
Angele Chang (now Angele Chang-Williams) and her two daughters, DeLisia Carpenter and Vinele Chang, filed an administrative claim for wrongful death and injury with the Naval Legal Service Office on November 12, 2004. (ECF Nos. 66-29). The " shootings and murders committed by Marine Corps Sgt. Est[a]bon Eugene" formed the basis of the claims. ( Id. at 1). Almost five years later, on September 29, 2009, the Department of the Navy denied the claims. (ECF No. 66-31, at 1-2). The denial letter stated that " [i]f you do not agree with this decision, be advised that you have six months from the date of mailing of this letter to file suit in the appropriate federal district court." ( Id. at 2). On March 30, 2010, Angele filed a pro se complaint in this court, asserting various tort claims under the FTCA in her name only. (ECF No. 1). On August 11, 2010, the Government moved to dismiss or, alternatively, for summary judgment. (ECF No. 10).
In a Memorandum Opinion and Order issued on February 2, 2011, the court granted the Government's motion in part and denied it in part. (ECF Nos. 16 & 17). First, the court held that the United States could not be held directly liable for Sgt. Eugene's actions based on a theory of respondeat superior. (ECF No. 16, at 14). By contrast, the court held that the Government could be held liable for the alleged negligence of the Marine Corps in promising to take certain actions to protect the Chang family and then failing to do so. ( Id. ). The court concluded that such claims were not barred by either the intentional tort exception or the discretionary function exception to the United States' waiver of sovereign immunity established by the FTCA. ( Id. at 15-32). Next, the court held that fact issues remained as to whether a special relationship existed between Angele and the Marine Corps that would allow the Government to be held liable for her personal injuries under Maryland tort law. ( Id. at 32-54). Finally, the court dismissed Angele's wrongful death claim as to her husband for failure to join certain necessary parties and directed her to file a new, amended complaint that added Kelvin's two daughters as plaintiffs. ( Id. at 54-61).
On February 22, 2011, Angele - through newly retained counsel - filed an amended complaint that adds as Plaintiffs Vinele
Chang (Kelvin's daughter); DeLisia Carpenter (Kelvin's daughter); and Isla Elaine Washington (Kelvin's mother). (ECF No. 19). The amended complaint asserts two wrongful death counts as well as a count relating to Angele's personal injuries, all of which are premised on the Government's alleged " negligent failure to protect." ( See id. ). Following discovery, the Government again moved for summary judgment. (ECF No. 66). Plaintiffs filed an opposition (ECF No. 67), and the Government replied (ECF No. 68).
II. Standard of Review
Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue " may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
" A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting Fed.R.Civ.P. 56(e)). " A mere scintilla of proof . . . will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). " If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50. (citations omitted). At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.
The Government offers four arguments as to why it is entitled to judgment as a matter of law. (ECF No. 66-1, at 23-50). First, the Government contends that Plaintiffs' claims depend entirely on the allegedly false assurances of Captain Richards and Gy. Sgt. Holden and therefore fall within the misrepresentation exception to the FTCA, depriving the court of subject matter jurisdiction. Second, the Government argues that, even crediting Plaintiffs' version of events, the officers were not acting within the scope of their employment at the time of the alleged assurances and therefore their conduct is not actionable under the FTCA. Third, the Government asserts that the evidence adduced during discovery establishes that no special relationship existed between Plaintiffs and the Marine Corps that would provide a basis for recovery under Maryland tort law. Fourth, the Government contends that any breach of the alleged promises could not have proximately caused Plaintiffs' injuries, which were brought about by the unforeseen and extraordinary actions of Sgt. Eugene.
The Government also raises two other arguments that, if successful, would warrant partial summary judgment in its favor. First, the Government argues that Plaintiffs' wrongful death claims are time-barred. Second, the Government argues that any claims asserted by Isla Washington, Vinele Chang, and DeLisia Carpenter must be dismissed for failing to satisfy the FTCA's jurisdictional prerequisites. Each
of these arguments will be addressed, in turn.
A. The Misrepresentation Exception to the FTCA's Waiver of Sovereign Immunity Does Not Apply.
As explained in the previous Memorandum Opinion, the United States cannot be sued absent an explicit waiver of its sovereign immunity. United States v. Sherwood, 312 U.S. 584, 587, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The FTCA is one such waiver, which allows the Government to be sued in federal district court for injuries " 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." 28 U.S.C. § 1346(b)(1). Where immunity is waived, the Government may be held liable in tort " in the same manner and to the same extent as a private individual under like circumstances." Id. § 2674. But the waiver of sovereign immunity established by the FTCA is narrow in scope, see Gould v. U.S. Dep't of Health & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990), and is qualified by a number of express exceptions, see 28 U.S.C. § 2680. Relevant here, the FTCA's waiver of immunity " shall not apply to . . . [a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Id. § 2680(h) (emphasis added).
According to the Government, the misrepresentation exception established in Section 2680(h) bars Plaintiffs' claims. (ECF No. 66-1, at 23-27). Specifically, the Government contends that controlling precedent establishes a " but for" test for determining whether the exception is triggered: if a plaintiff's negligence action cannot exist but for the communication of false information by a Government employee, her claims are excepted by Section 2680(h), regardless of how they are labeled. ( Id. at 24). Applied here, the Government asserts that Plaintiffs' action depends entirely on the assurances allegedly made by Major Richards and Gy. Sgt. Holden and that these assurances were false because they: (1) misrepresented the authority of the officers, who lacked the ability to impose the promised disciplinary measures; and (2) ultimately proved to be inaccurate as a factual matter given that the Marine Corps never restricted Sgt. Eugene or required that he be accompanied by an escort off-base. ( Id. at 26-27). Plaintiffs respond by arguing that their claims do not arise out of a breach of the duty to use due care in communicating information, but instead derive from the Government's negligent failure to fulfill its duty to protect, which it incurred by promising that Sgt. Eugene would be restricted and monitored. (ECF No. 67, at 22-23). Plaintiffs' position is persuasive.
The United States Supreme Court has addressed the misrepresentation exception on two occasions. In United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), a couple agreed to pay $24,000 for a home that had been appraised for $22,750 by the Federal Housing Administration (" FHA" ), based on the agency's home inspection. Id. at 698. After closing, the ...