Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1989)

MEMORANDUM^** 

This appeal requires us to decide whether the Federal Employees Liability and Tort Compensation Act of 1988, 28 U.S.C. § 2679(b), (hereinafter "the 1988 Reform Act") applies to the case at hand and, if so, whether it prohibits substitution of the United States as a party defendant in claims asserting deprivation of constitutional rights brought against federal employees. For the purpose of this appeal we assume that we have jurisdiction but emphasize that we do not decide the question whether the order denying the motion for substitution in this case is an appealable order. See Dodd v. Pioche Mines Consolidated, Inc., 308 F.2d 673, 674 (9th Cir. 1962). ("In reaching our decision here we are assuming, without deciding, that the order denying the motion for substitution is appealable"). We hold that the 1988 Reform Act does apply here and that it prevents substitution. Thus, for reasons different from those of the district court, we will affirm its judgment. Jurisdiction was proper in the district court based on 28 U.S.C. § 1331.

This case arises out of events that occurred at the Concord Naval Weapons Station on September 1, 1987 when a munitions train operated by the United States Navy collided with a group of demonstrators who had positioned themselves astride of the tracks outside the weapons station in a nonviolent demonstration to protest the United States shipment of weapons to Central America. Appellee Brian Willson lost both legs as a result of the collision. Other appellees allege that they also suffered various injuries.

On January 29, 1988, the plaintiffs-appellees filed an action in the District Court of Northern California seeking to recover damages for personal injuries naming as defendants seven federal employees. They alleged common law tort claims, other state causes of action and federal constitutional claims. Sued in their individual capacities, the defendants were all either officers or employees of the United States Navy at the time of the incident. Captain Lonnie F. Cagle was the commanding officer of the weapons station; John M. Banta, the station's security manager; Commander Clayton Y.K. Ching, the public works officer at the station, responsible for overseeing railroad operations; Edward Hubbard the railroad foreman. The crew of the train consisted of David Humiston, an engineer, Ralph Dawson, as conductor, and Robert Mayfield, as brakeman. Consistent with the procedure mandated by the Federal Tort Claims Act, 28 U.S.C. § 2671-80 (1982), the plaintiffs planned to add the United States as a party once they had exhausted their administrative remedies.

The United States moved to substitute itself as the sole defendant under the provisions of the Federal Drivers Act of 1961, formerly 28 U.S.C. § 2679(b). Defendants Cagle, Banta and Hubbard joined. That motion was denied, Willson v. Cagle, 694 F. Supp. 713 (N.D. Cal. 1988), and the defendants appealed. After the notice of appeal was filed, the 1988 Reform Act was enacted on November 18, 1988. By its express terms the new legislation does not apply to the plaintiffs' constitutional law claims but does apply to the state law claims which the plaintiffs brought against the individual defendants Cagle, Banta and Hubbard as federal employees. The United States successfully moved for voluntary dismissal of its appeal. Clayton Ching then successfully requested voluntary dismissal of his appeal.

On January 27, 1989, the United States brought a second motion for substitution in the district court; this time under the 1988 Reform Act on plaintiffs' state law tort claims against defendants Cagle, Banta and Hubbard. Substitution was not sought as to the constitutional claims. On March 7, 1989, the trial court granted substitution, dismissing with prejudice the plaintiffs' state law tort claims against defendants Cagle, Banta and Hubbard, and substituting the United States as the sole defendant in those claims. The other claims were allowed to stand against the defendants.

On March 20, 1989, the appellees sought to dismiss the appeal as moot. A Ninth Circuit motions panel denied relief without comment or explanation, evidently being of the view that a live controversy still exists between the parties. We agree.

In attempting to substitute the government as defendant, the United States and the federal employees relied on the following provision of the Federal Drivers Act of 1961 (as amended):

The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

28 U.S.C. § 2679(b) (1982). Holding that the train allegedly caused the injuries was not a "motor vehicle" as contemplated in the statute, the district court denied their motion.

As heretofore stated, after the appeal was filed, Congress enacted the 1988 Reform Act. That law amended 28 U.S.C. 2679(b), deleting the quoted Drivers Act provision, and substituting in its place the following language:

(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or for personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.

(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government--

(A) which is brought for a violation of the Constitution of the United States, or

(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.

28 U.S.C. § 2679(b) (1988). Congress provided for the retroactive application of all the provisions of the 1988 Reform Act, in the following language:

Applicability to Proceedings.--The amendments made by this Act shall apply to all claims, civil actions, and proceedings pending on, or filed on or after, the date of the enactment of this Act.

Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. Sec. 8(b), 102 Stat. 4563, 4565-66 (1988).

We have no difficulty in concluding that the 1988 Reform Act applies here. The statute specifically provides that the right to sue the Government for injuries resulting from the "negligent or wrongful act or omission" of a federal employee is the only remedy available to the injured party, and acts as a bar to suits against individual federal officers. 28 U.S.C. § 2679(b) (1) (1988). The statute also specifically provides, however, that the bar to suits "does not extend or apply to a civil action against an employee of the Government ... which is brought for a violation of the Constitution of the United States." 28 U.S.C. § 2679(b) (2) (1988). This is precisely the type of civil action brought by the plaintiffs-appellees at issue here.

Therefore, as the district court correctly decided, to the extent that the plaintiffs pleaded common law tort claims or other state causes of action, the appellants are entitled to have the United States substituted as defendant in their place, and to have those claims dismissed against them as individuals. To the extent that the plaintiffs have asserted constitutional tort claims against the appellants, however, the statute denies them the right to have the Government take their place.

We reject the appellants' valiant attempt to convince us that the 1988 Reform Act did not repeal that portion of the Federal Drivers Act of 1961 upon which they rely. We have no difficulty in doing so. Repeal of the 1961 Act was not implied; it was express. The 1988 Reform Act provides that: "Section 2679(b) of title 28, United States Code, is amended to read as follows ..." Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, Sec. 5, 102 Stat. 4563, 4564 (1988). The new language of the statute explicitly refuses to bar constitutional tort claims, and explicitly provides that the amended version of 28 U.S.C. § 2679 is to be applied retroactively.

We hold that the language of the repealing statute is clear and free from ambiguity and that it is unnecessary, if not improper, for us to consider legal precepts relating to repeals by implication. We therefore conclude that appellants are relying on statutory language that no longer exists. The judgment of the district court is

AFFIRMED.