LeRose v. US, No. 07-1256 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1256 JOHN STEVEN LEROSE; REBECCA LAUREN LEROSE-SWEENEY; GIGLIOTTI; EUGENE FRANCIS CONNELLY; RONALD AMATI, FRANK Plaintiffs - Appellants, v. UNITED STATES OF AMERICA, Defendant - Appellee, and WILLIAM D. COGER, JR., Defendant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:03-cv-02372) Argued: March 18, 2008 Decided: July 10, 2008 Before MICHAEL and GREGORY, Circuit Judges, and David R. HANSEN, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation. Affirmed by unpublished opinion. Judge Gregory wrote the opinion, in which Judge Michael and Senior Judge Hansen joined. ARGUED: Eric Bruce Snyder, BAILEY & GLASSER, L.L.P., Charleston, West Virginia, for Appellants. Fred B. Westfall, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Benjamin L. Bailey, BAILEY & GLASSER, L.L.P., Charleston, West Virginia, for Appellants. Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 GREGORY, Circuit Judge: John LeRose, Rebecca LeRose-Sweeney, Frank Gigliotti, Eugene Connelly and Ronald Amati ( Plaintiffs ) filed a suit against the United States of America ( United States ) under the Federal Tort Claims Act ( FTCA ), 28 U.S.C. §§ 1346, 2671 et seq., asserting retained, and that the supervised United William States Coger negligently ( Coger ), a hired, former federal correctional officer, who extorted, inter alia, money from the liability alleged Plaintiffs. Plaintiffs claim the against misconduct. States s motion to The also United district dismiss for assert States a based court granted lack of vicarious on Coger s the United subject matter jurisdiction based on the discretionary function exception to the FTCA. On appeal, Plaintiffs contend that the district court erred shifting by the burden of proof to them discretionary function exception did not apply. that the Plaintiffs also argue that the district court incorrectly held that under West Virginia law, Coger s alleged conduct was outside the scope of employment. We disagree and affirm the district court s decisions. I. Plaintiffs retention claims asserted under negligent the FTCA 3 hiring, against supervision, the United and States arising from events that allegedly transpired at FCI Morgantown, a federal officer prison, at inflicted FCI and involved Morgantown. intentional Coger, Plaintiffs emotional a former correctional contended distress upon that Coger them by attempting to extort and extorting money and other property from each of them. Coger allegedly demanded a truck, money, employment outside the prison, and football tickets among other things. The United States denied Plaintiffs allegations and contended that Plaintiffs claims should be dismissed on summary judgment and/or lack of subject matter jurisdiction. States argued supervision, that and Plaintiffs retention were function exception to the FTCA. The United theories of negligent barred by the hiring, discretionary In addition, the United States asserted that it was not vicariously liable for Coger s alleged misconduct because he had clearly acted beyond the scope of his employment as a correctional officer and had engaged in improper actions for his own purely personal motives. The district court granted the United States s motion to dismiss for lack of subject matter jurisdiction based on the discretionary function exception to the FTCA found in 28 U.S.C. § 2680(a) and dismissed the Plaintiffs claims for negligent hiring, supervision, and retention against the United States. The district court also granted the United States s motion for 4 summary judgment vicarious with liability regard because to Plaintiffs Coger acted claim purely based on his own in personal interests and outside the scope of his employment with the United States and Bureau of Prisons ( BOP ). Plaintiffs subsequently filed a notice regard to the district court s order. ruling that otherwise Plaintiffs appealable did not of appeal with We dismissed that appeal, appeal interlocutory (J.A. 720-67.) or a final collateral order order. or an The district court entered a final judgment in favor of the United States pursuant to Federal Rules of Civil Procedure Rule 54(b). Plaintiffs then filed a notice of appeal. II. On erred: appeal, Plaintiffs contend that the district court (1) by placing the burden of proof on them to establish that the discretionary function exception, 28 U.S.C. § 2680(a) did not deprive the district court of subject matter jurisdiction under 28 U.S.C. § 1346(b)(1) of the FTCA; (2) by improperly granting the United States s motion to dismiss for lack of subject matter jurisdiction; and (3) by improperly granting the United States s motion for summary judgment on the Plaintiffs vicarious liability claim. Plaintiffs claims below seriatim. 5 We address each of the A. Plaintiffs argue the district court improperly placed the burden on them to prove that the discretionary exemption under the FTCA did not apply. limited waiver of the United States s function The FTCA creates a sovereign immunity by authorizing damage actions for injuries caused by the tortious conduct of federal employees acting within the scope of their employment, when a private conduct under state law. person would be liable for See 28 U.S.C.A. § 1346(b)(1). such This waiver of sovereign immunity, however, is subject to exceptions. The most important discretionary function of these exception, [exceptions] McMellon ... v. is United the States, 387 F.3d 329, 335 (4th Cir. 2004) (en banc), cert. denied, 544 U.S. 974, 125 S.Ct. 1828 (2005), which provides that the United States is not liable for [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused, 28 U.S.C.A. § 2680(a). The discretionary function exception marks the boundary between Congress willingness to impose tort liability upon the United States and its desire to protect certain governmental activities United from States v. exposure S.A. to suit by de Viacao Empresa 6 private Aerea individuals. Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). this exception legislative and to prevent judicial administrative decisions Congress enacted second-guessing grounded in of social, economic, and political policy through the medium of an action in tort ... [and] to protect the Government from liability that would seriously handicap efficient government operations. Id. at 814 (internal quotation marks omitted). In Welch v. United States, 409 F.3d 646 (4th Cir. 2005), we ruled that the plaintiffs bore the burden of proof to show an unequivocal waiver of sovereign immunity exists and to show that none of the FTCA s waiver exceptions apply. However, Plaintiffs in clear this case attempt to get around our precedent by arguing that because Welch was decided in the context of the due care exemption, it is distinguishable from their concerns the discretionary function exemption. case which We find their argument unpersuasive because our holding in Welch clearly dealt with all FTCA exemptions. See also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) ( plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged...because the party who sues the United States bears the burden of pointing to...an immunity ). 7 unequivocal waiver of B. Next, Plaintiffs contend that the district court improperly granted the subject matter establish apply. Civil United States s motion jurisdiction that the to because discretionary dismiss the for lack of Plaintiffs did not exemption did not function We review a grant of dismissal under Federal Rules of Procedure Rule 12 (b)(1) for lack of subject matter jurisdiction de novo. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). As we stated above, plaintiffs have the burden in FTCA case to immunity sovereign an and the jurisdiction. To prove an unequivocal existence of waiver subject of matter Welch, 409 F.3d at 650-51. determine whether conduct by a federal agency or employee fits within the discretionary function exception, we must first decide whether the challenged conduct involves an element of judgment or choice. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954 (1988); see Id. (explaining that the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of employee action has directive ). no for an rightful employee option to but follow to because adhere to the the If the conduct does involve such discretionary judgment, then we must determine whether that judgment is of the kind that the discretionary function exception was designed 8 to shield, i.e., whether the challenged action is based on considerations of public policy. Id. at 536-37. This inquiry focuses not on the agent s subjective intent in exercising the discretion . . ., but on the nature of the actions taken and on whether they are susceptible to policy analysis. v. Gaubert, 499 U.S. 315, 325 (1991). United States Thus, a reviewing court in the usual case is to look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect inherently to be grounded in considerations of policy. 716, 720-21 (4th Baum v. United States, 986 F.2d Cir.1993). Moreover, when a statute, regulation, or agency guideline permits a government agent to exercise discretion, it must be presumed that the agent s acts are grounded in policy when exercising that discretion. Gaubert, 499 U.S. at 324. The BOP s decisions regarding the hiring, supervision and retention of Coger are precisely the type of decisions that are protected under the previously decided supervisory decisions discretionary that are government function exception. employers discretionary hiring functions. Suter United States, 441 F.3d 306, 312 n.6 (4th Cir. 2006). hiring of an employee involves several We public and v. The policy considerations including the weighing of the qualifications of candidates, weighing of the 9 backgrounds of applicants, consideration experience of of staffing candidates, economic considerations. requirements, and evaluation assessment of of the budgetary and Because this process is multi-faceted, it is precisely the type of decision that Congress intended to shield from exception. liability The through district the court discretionary properly function dismissed the Plaintiffs negligent hiring, supervision and retention claim. C. Finally, Plaintiffs argue the district court improperly granted summary judgment on their vicarious liability claim. We review a district court s grant of summary judgment de novo. Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). Under West Virginia law, an employer cannot be held vicariously liable for an employee s misconduct if the employee engaged in criminal misconduct for his or her own purpose and interest. In Foodland v. State, 532 S.E.2d 661 (W. Va. 2000), the Supreme Court of Appeals of West Virginia defined the term scope of employment under West Virginia law: Scope of employment is a relative term and requires a consideration of surrounding circumstances, including the character of the employment, the nature of the wrongful deed, the time and place of its commission and the purpose of the act. In general terms, it may be said that an act is within the course of employment, if: (1) It is something fairly and naturally incident to the business and (2) it is done while the servant was engaged upon the master s business and is done, although mistakenly or 10 ill-advisedly, with a view to further the master s interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master s business, and did not arise wholly from some external, independent and personal motive on the part of the servant to do the act upon his own account. In Foodland, a store employee stole money from WIC , a special supplemental nutrition program for women, infants and children. The Supreme Court of Appeals of West Virginia found that [e]mployee theft [was] certainly not naturally incident to the owner s business and even though the act was done while the cashier was engaged in the owner s business, the theft was not done with a view to further the owner s interests. The theft arose from a personal motive on the part of the cashier to further her own interests. Under these circumstances, the employee theft from the WIC program simply does not fit within her scope of employment. Foodland, 532 S.E.2d at 665. The alleged misconduct in this case was clearly for Coger s own personal employment interests. outside the His demand prison, and for a football truck, money, tickets were obviously based on his personal motives and were an attempt to derive benefits for his own personal gain. His threats and acts of intimidation were not designed to further the management and operation Because of this the BOP type of but rather conduct was his own personal specifically interests. barred by the BOP s rules of conduct, was obviously for Coger s own personal 11 gain, and was not intended to benefit the BOP or the United States, the district court correctly concluded that the United States cannot be vicariously liable for such misconduct. Coger s actions were beyond the scope of his employment with the BOP and thus could not be imputed to the United States. The district court properly granted summary judgment in favor of the United States on the Plaintiffs vicarious liability claim. III. For the foregoing reasons, we affirm the district court s decisions. AFFIRMED 12

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