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Doe v. Meron

United States District Court, D. Maryland

July 30, 2018

BARRY DOE, On behalf of himself and as Next Friend of his minor children; M.D. 2006; E.D. 2008; and K.D. 2009 Plaintiffs,
v.
DAVID J. MERON, et al. Defendants.

          MEMORANDUM OPINION

          Paula Xinis, United States District Judge

         Pending in this case is a motion to dismiss or for summary judgment filed by Defendants Barbara R. Craig, Terry Greene, Clark Jackson, David LaSpisa, David J. Meron, John Scorby, Steven Stutzman, and Kristen E. Webb, ECF No. 15, as well as a motion to dismiss filed by the United States of America. ECF No. 17. Also pending is Plaintiff Barry Doe's motion to set aside Defendants' scope of employment certification, ECF No. 24. The motions are fully briefed, and the Court now rules because no hearing is necessary. Loc. R. 105.6. For the following reasons, the motion to set aside the scope of employment certification, ECF No. 24, is DENIED, and Defendants' motions to dismiss are GRANTED.

         I. Background[1]

         Plaintiff Barry Doe (“Doe”), proceeding pseudonymously, brings this action on behalf of himself and his three minor children, Martin Doe (“M.D.”), Erica Doe (“E.D.”), and Kimberly Doe (“K.D.”) against Defendants Barbara R. Craig, Terry Greene, Clark Jackson, David Laspisa, David J. Meron, John Scorby, Steven Stutzman, and Kristen E. Webb. ECF No. 1. At all times relevant to the Complaint, Doe was a United States citizen and civil servant employed by the United States Navy (“Navy”) at Naval Support Activity Bahrain (“NSA Bahrain”), in the Kingdom of Bahrain. ECF No. 1 at ¶¶ 28, 41. The vast majority of the events alleged in the Complaint took place at NSA Bahrain. See ECF No. 1.

         Defendants David J. Meron (“Meron”), David LaSpisa (“LaSpisa”), and John Scorby (“Scorby”) are Navy officers. ECF No. 1 at ¶ 32, 37, 39. Specifically, Meron is a resident of Kansas and, at all times relevant to the Complaint, a naval officer who served as the Installation Commanding Officer (“Commanding Officer”) at NSA Bahrain. ECF No. 1 at ¶¶ 32, 37. LaSpisa is a resident of Florida and commissioned naval officer at NSA Bahrain. ECF No. 1 at ¶¶ 32, 37. Scorby was an American citizen domiciled in Italy and Rear Admiral, serving as the Commander, Navy Region Europe, Africa, and Southwest Asia, whose authority extended to NSA Bahrain. ECF No. 1 at ¶ 39.

         Defendants Clark Jackson (“Jackson”) and Steven Stutzman (“Stutzman”) are adult American citizens employed by the Navy. ECF Nos. 1 at ¶¶ 36, 38. Jackson is a resident of Washington based at NSA Bahrain, and Stutzman is an American citizen domiciled in Italy. ECF No. 1 at ¶¶ 36, 38. Defendant Terry Greene (“Greene”) is an adult American citizen domiciled in the Kingdom of Bahrain and employed by the Department of Defense Education Activity (DODEA) as the principal of the Bahrain School, which is operated by the Department of Defense (DOD). ECF No. 1 at ¶ 35. Defendants Barbara R. Craig (“Craig”) and Kristen E. Webb (“Webb”) are residents of Maryland and were employed by or affiliated with DOD or the Defense Health Agency (DHA). ECF Nos. 1 at ¶¶ 33-34. DHA is based in Bethesda, Maryland. ECF No. 1 at ¶¶ 33-34.

         On or about June 2014, Doe began an assignment with the Navy at NSA Bahrain. ECF No. 1 at ¶ 40. Doe's three minor children, M.D. (2006), E.D. (2008), and K.D. (2009) (collectively, “minor Plaintiffs”), went to Bahrain with him. ECF No. 1 at ¶ 40. All three minor Plaintiffs attended the Bahrain School, which is operated by DOD, from 2014 through 2015. ECF No. 1 at ¶ 42.

         The events giving rise to this suit concern DOD's 2015 investigation into allegations that Doe abused and neglected his children. Taking serious issue with the manner in which the investigation was handled, Doe alleges that “a group consisting of Defendants Greene, Craig, Jackson, LaSpisa, Meron, Webb, and others in Maryland, Bahrain, Europe, and the National Capital Region (NCR) conceived of a plot to seize” his three children, the minor Plaintiffs. ECF No. 1 at ¶ 43. Doe asserts that Meron, Jackson, LaSpisa, Stutzman and Scorby acted in concert to conduct a baseless investigation that caused physician Craig and social worker Webb to “seize, interrogate, and batter the three minor Plaintiffs.” See generally ECF No. 1.

         Among the other claimed violations, Doe avers that Defendants interrogated his children without his permission. Doe particularly avers that in response to requests to interview five-year-old K.D. outside Doe's presence, Doe “warned Jackson clearly that no one was to contact any of his three children without him being present.” ECF No. 1 at ¶¶ 51, 53. Doe further alleges that on “information or belief, ” Meron falsely averred in signed correspondence that Meron had obtained consent from Doe to speak to the minor Plaintiffs, even though no such consent was given. ECF No. 1 at ¶¶ 54, 59.

         With regard to DOD's examination of the children, Doe avers that during the investigation, Craig and Webb traveled from Maryland to Bahrain at the direction of the other Defendants to “seize, detain, and interrogate all three minor children at the Bahrain School.” ECF No. 1 at ¶ 66. With Defendant Greene's assistance, Craig and Webb interrogated the children at the School but outside the presence of Doe and without counsel. Craig and Webb also filmed this interrogation without consent. ECF No. 1 at ¶¶ 67, 68. While Craig and Webb questioned the children, Meron ordered Naval Security Forces (NSF) to exclude Doe from the Bahrain School should he attempt to enter. ECF No. 1 at ¶¶ 72-73.

         Later that same day, the children were seized a second time while at the NSA Bahrain Child Youth Program. ECF No. 1 at ¶ 74. Doe contends that Craig medically evaluated the children in a manner that “breached” their clothing and involved touching their genitals, rectums, and breasts. ECF No. 1 at ¶ 74, 77-78. The minor Plaintiffs “believed they had been abducted by strangers with deadly weapons and would be killed if they did not submit” to Craig's evaluation. ECF No. 1 at ¶ 79. During this evaluation, Greene specifically denied to Doe that she knew where the minor Plaintiffs were located. ECF No. 1 at ¶¶ 80, 81.

         The next day, Doe was seized and handcuffed by NSF officers while taking his children to school. ECF No. 1 at ¶ 82. NSF did not have a key to the handcuffs, and Doe was restrained for several minutes and then released. ECF No. 1 at ¶ 85. No. charges were filed against Doe. See ECF No.1. Doe then met with Meron in the presence of Naval Officer, Scott Cloyd during which time Meron purportedly admitted that he had “no lawful authority to seize” Doe or his children, and that “the higher superiors in the Navy had ‘pressured' him to commit these acts.” ECF No. 1 at ¶ 89. Meron further admitted that NSF's seizure of Doe was unlawful, and was part of the “plot to secretly seize [Doe's] children” without Doe's knowledge. ECF No. 1 at ¶ 90. A few days later, Doe met with Defendant Greene, Eldridge Groomes, and Calvin Caldwell to discuss the events that transpired at the Bahrain School. ECF No. 1 at ¶ 92. When pressed about her role, Greene admitted that Meron had directed her to allow Craig and Webb “to seize the three minor Plaintiffs and film them against their will.” ECF No. 1 at ¶ ¶ 92-93.

         Based on this course of events, Doe feared for his life and the safety of his family. He departed Bahrain on August 6, 2015, and “hastily relocated to Texas at a significantly reduced rate of pay.” ECF No. 1 at ¶ 88. According to Doe, the three minor Plaintiffs “continue to experience nightmares” and “serious emotional disturbances consistent [with] children who have been forcibly abducted and sexually molested by strangers.” ECF No. 1 at ¶ 98.

         On or about May 26, 2016, Plaintiffs filed administrative claims regarding these events with the Navy, DODEA, and DHA. ECF No. 1 at ¶ 94; see also ECF No. 18-7. Plaintiffs assert that “[b]y information or belief, none of the agencies or Defendants responded to or attempted to resolve the [MCA] administrative claim filed by the Plaintiffs.” ECF No. 1 at ¶ 95. It was later clarified that on March 27, 2017 - three days after the Complaint was filed - the Navy tendered a settlement offer arising from that administrative claim. See ECF No. 25 at 28; see also ECF No. 15-19.

         Having failed to resolve the case administratively, Doe filed suit against Defendants in this Court, asserting that all Defendants in their individual and official capacities violated Plaintiffs' Fourth Amendment right against unlawful searches and seizures (Counts I, II, and III), First and Fifth Amendment rights to “parentage and familial relations” (Count IV), their Fifth Amendment rights of due process and equal protection (Count V), and conspiracy in violation of 42 U.S.C. § 1985 (Count XI). Plaintiffs also bring common law tort claims for intentional infliction of emotional distress (Count VI), assault (Count VII), battery (Count VIII), false imprisonment (Count IX), false light invasion of privacy (Count X), and conspiracy under 42 U.S.C. § 1985 (Count XI). ECF No. 1.

         On September 18, 2017, and pursuant to the Federal Tort Claims Act (“FTCA”), the United States of America (“United States”) substituted itself as the proper party defendant for all claims against the Defendants in their official capacities, and all common law tort claims asserted against Defendants Meron, Craig, Webb, Greene, LaSpisa, Stutzman, Scorby, and Jackson. ECF No. 16. In connection with its substitution motion, the United States filed a certification attesting that Defendants acts as alleged in the Complaint were within the scope of Defendants' DOD employment, and thus substitution of the United States under the FTCA was proper.

         The United States then moved to dismiss all claims, arguing that under the foreign country exception to the FTCA, the Government cannot be sued for events that occurred on foreign soil. ECF No. 17. The individual Defendants also moved to dismiss, or for summary judgment on the constitutional claims, arguing that no implied cause of action exists pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 1971 (1971). ECF No. 15.

         On November 17, 2017, Doe moved to set aside the United States' employment certification, contending that Defendants acted outside the scope of their federal employment. ECF No. 24. Doe also opposes dismissal of the remaining claims, arguing the Complaint asserts sufficient factual and legal bases for the case to proceed. The Court first addresses whether the United States properly substituted itself for the individual defendants.

         II. Motion to Set Aside Scope of Employment Certification

         On September 18, 2017, Defendants submitted a Certification of Scope of Employment (“Certification”) from the Acting Director of the Torts Branch, Civil Division, of the United States Department of Justice. The Certification attests that all individual Defendants were acting within the scope of their federal office or employment when the events alleged in the Complaint occurred. See ECF No. 15-18. The Certification further states that at all relevant times, Defendant Craig was “a physician employed by the Department of Defense” and acting within the scope of her duties as a DOD physician. ECF No. 15-18.

         A. Legal Standard

         i. Federal Tort Claims Act (FTCA)

         It is well settled that under the Federal Tort Claims Act (FTCA), the United States is the proper party for wrongdoing committed by employees acting within the scope of their federak employment. The FTCA provides:

[u]pon 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.

See 28 U.S.C. § 2679(d)(1).[2] By allowing substitution of the United States, the FTCA “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007); United States v. Smith, 499 U.S. 160, 163 (1991).

         A certification may simply attest that employees “were acting within the scope of [their] employment . . . at the time of the conduct alleged in [the] complaint.” Osborn v. Haley, 549 U.S. 225, 230-31 (2007). Even where the certification appears factually thin, unless challenged, it remains conclusive.[3] Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1153 (4th Cir. 1997). If challenged, the plaintiff must prove by a preponderance of the evidence that the defendant was acting outside the scope of his employment. Gutierrez de Martinez, 111 F.3d at 1153 (citing cases). The Court reviews the scope of employment question de novo. Id. at 1154; see also Gutierrez de Martinez v. Lamangno, 515 U.S. 417, 434-35 (1995). In connection with the court's review, defendants may submit evidence in support of certification. Id. at 1155. If the plaintiff fails to sustain his burden, the certification stands, and the Court substitutes the United States as the sole defendant for all tort claims. Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997); see also 28 U.S.C. § 2679(d).

         Because substitution is the practical mechanism to effectuate an individual employee's immunity from suit, challenges to the scope-of-employment certification are resolved early in the litigation. Maron, 126 F.3d at 321; see also Osborn, 549 U.S. at 238 (noting “the Westfall Act [is] a measure designed to immunize covered federal employees not simply from liability, but from suit”). If genuine issues of disputed fact remain as to the scope-of-employment question, the Court may permit limited discovery and conduct an evidentiary hearing. Maron, 126 F.3d at 321. However, the Court must “remain cognizant of the considerations weighing against protracted litigation under the Westfall Act, ” and must balance “ ‘the need for a meaningful review of the scope certification with the need to protect federal employees from burdensome discovery.” Gutierrez de Martinez, 111 F.3d at 1155-56. Accordingly, the Court will only permit additional discovery or conduct a hearing where the plaintiff identifies “specific evidence that could be uncovered by further discovery beyond the speculative possibility of inconsistency.” Id. at 1155. If a plaintiff's challenge to the certification merely argues that the defendant was motivated by personal or other bad purpose, “summary dismissal of the scope of employment challenge is warranted.” Maron, 126 F.3d at 327 (quoting RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir. 1996)).

         Critically, “[s]ubstitution of the United States is not improper simply because the [U.S. Attorney's] certification rests on an understanding of the facts that differs from the plaintiff's allegations.” Osborn, 549 U.S. at 230. Instead, the United States is the proper defendant “unless and until the District Court determines that the employee, in fact, and not ...


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