LeRose v. United States, 285 F. App’x 93 (4th Cir. 2008)

Facts:

The plaintiffs alleged a negligent hiring claim under the Federal Torts Claim Act against William Coger, a former federal correctional officer.  The plaintiffs claimed that “Coger inflicted intentional emotional distress upon them ‘by attempting to extort and extorting money and other property from each of them.’”  The plaintiffs claim that Coger tried to extort a truck, money and employment out of the prison. The government asserts that it is not liable for negligent hiring, supervision or retention because the discretionary function exception to the FTCA bars the government from those types of negligent liability. The government also argues that it is not vicariously liable because Coger acted outside his scope of employment. The Distrcit court granted the governments motion to dismiss. On appeal the plaintiffs allege that the district court erred in granting the motion to dismiss and improperly put the burden on them to prove that the discretionary function exception to the FCTA did not apply.

 

Issue:

1. Who bears the burden of proof in a case involving the discretionary function exception to the FTCA?

2. What type of conduct falls within the discretionary function exception the FTCA?

3. What falls within the scope of employment in order for an employer to become vicariously liable for the conduct of an employee?

 

Held:

1. The plaintiff always has the burden of proof to show that a waiver of sovereign immunity exists, which includes proving that none of the exceptions to the FTCA apply.

2. Conduct that involves “an element of judgment or choice” falls within the discretionary function exception. The discretionary function exception applied in this case preventing recovery.

3. Under West Virginia law an employer is not liable for an employee’s misconduct if the employee acted for his own personal interest. Coger’s actions were beyond the scope of his employment.

 

Reasoning:

1. The plaintiff always has the burden of proof when subject matter jurisdiction is challenged.

2. The court reasoned that hiring an employee was the exact conduct Congress had intended to shield under the discretionary function exception because the hiring of a correctional officer involved a decision that weighs different public policy considerations.   The policy decision entailed the “weighing of the backgrounds of applicants, consideration of staffing requirements, evaluation of the experience of candidates, and assessment of budgetary and economic considerations,” making the decision more than mundane.

3. The conduct by Coger was clearly for his personal gain. He demanded a truck, money and employment for himself, and not to further the management and operation of the prison.

 

 

By: Jonathan Sturm

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