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McGOVERT v. U.S.

United States District Court, N.D. California


July 14, 2004.

BRUCE McGOVERT, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

The opinion of the court was delivered by: MARTIN JENKINS, District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

INTRODUCTION

Before the Court is Defendant United States of America's Motion to Dismiss for lack of subject matter pursuant to Federal Rule of Civil Procedure 12(h)(3).*fn1 The government argues that Coast Guard member Bikram Ghuman was not acting within the scope of his employment when he injured Plaintiffs in a car wreck, and therefore the suit is barred by the doctrine of sovereign immunity and so this Court lacks subject matter jurisdiction. Alternatively, Defendant seeks summary judgment pursuant to the standards of Rule 56. For the following reasons, Defendant's motion is GRANTED.

  FACTUAL BACKGROUND

  On May 4, 2001, Coast Guard enlisted member Bikram Ghuman was driving his own car down Valley Ford Road in Sonoma, California. Ghuman crossed the center line of the road and caused a high-speed front-end collision with Plaintiffs. Ghuman died as a result of the collision, and Plaintiffs suffered multiple injuries for which they now seek compensation from the United States.

  According to the complaint, Ghuman was operating his vehicle "within the course and scope of his employment and as a coastguardsman and agent of the United States Coast Guard." Compl. ¶ 3. Plaintiffs argue that Ghuman worked at Coast Guard Station Bodega Bay but was required to live eighteen miles away in the Petaluma barracks, and that this situation amounted to a "requirement" to use a car to commute. Opp. at 3:16-5:13. However, Defendant argues in its motion to dismiss that Ghuman was not acting within the scope of his federal employment at the time of the accident because he was on "liberty" status and was in his own vehicle leaving his assigned place of employment.*fn2 The government therefore contends that the suit against the United States is jurisdictionally barred by the doctrine of sovereign immunity. The question of jurisdiction essentially turns on whether Ghuman can be seen as acting within the scope of his employment, which in turn is based on whether the "going and coming" rule or one of its exceptions applies to the facts of this case.

  LEGAL STANDARD

  It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. E.g., KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). Courts will not infer evidence supporting federal subject matter jurisdiction. Therefore, dismissal under Rule 12(b)(1) is appropriate where subject matter jurisdiction has not been properly pled on the face of the complaint.

  However, for Rule 12(b)(1) motions, unlike Rule 12(b)(6) motions, where the jurisdictional attack is factual, the moving party may submit affidavits or any other evidence properly before the court. Association of American Medical Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000). It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. Id. The district court does not abuse its discretion by looking to this extra-pleading material in deciding the issue Id.; see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

  Where the jurisdictional question is not entangled with the merits of the parties' dispute, the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). However, where jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits of the case, "the trial court should employ the standard applicable to a motion for summary judgment." Careau Group v. United Farm Workers of America, 940 F.2d 1291, 1293 (9th Cir. 1991) (quoting Augustine, 704 F.2d at 1077). In such a case, if a triable issue of material fact exists, the trial court must wait until trial to resolve the jurisdictional question. Id.

  Here, the parties disagree as to whether the Court should employ the summary judgment standard.*fn3 Plaintiffs contend that the summary judgment standard applies, and therefore the Court can not resolve the jurisdictional question if any triable issue of material fact exists as to whether Ghuman was acting within the scope of his employment. Opp. 1:21-22. Specifically, Plaintiffs argue that: 1) the jurisdictional question goes directly to the merits of the case; 2) where federal jurisdiction is based on a federal question, courts convert jurisdictional challenges into allegations of failure to state a claim; and 3) California law requires the Court to apply the summary judgment standard to resolve the jurisdictional issue. In contrast, Defendant argues alternatively that the merits are not intertwined and so the Court may resolve any fact issues at this time, or that no triable issues of fact exist and so summary judgment is appropriate on this issue at this time. Motion 2, n. 1; Reply 3:7-11.

  The Court finds that the summary judgment standard should apply in this case. Defendant relies on Hallett v. United States, 877 F. Supp. 1423 (D. Nev. 1995), where a district court found that the jurisdictional issue of scope of employment was not intertwined with liability under the FTCA. However, Hallett was a premises liability case where the court saw the question of jurisdiction to turn on whether the tortfeasors were acting within the scope of their employment, while the issue of liability concerned whether the federal government owed a duty to the plaintiffs arising out of its temporary control of the part of a building where the tortious activity took place. Id. at 1426-27. In contrast, here the issue of whether the government is liable for Ghuman's alleged negligence is directly tied to whether he was acting within the scope of his employment. Assuming he was negligent, governmental liability for the car accident turns wholly on whether or not he was acting within the course and scope of his employment as a Coast Guard member at the time of the accident.*fn4 As such, the jurisdictional issue is intertwined with the merits of the case and the Court will not make factual determinations at this time.

  In light of this conclusion, the Court will consider the declarations of Timothy Grant, William Albert, Kenneth Dean King, and David Cole attached to the parties' submissions to the extent that they indicate whether Ghuman was acting within the scope of his employment at the time of his accident, but will not resolve any factual issues at this time. If a triable issue of fact dispositive as to this issue remains, the motion to dismiss must be denied at this time.

  ANALYSIS

  A. Sovereign Immunity and the Going and Coming Rule

  Sovereign immunity shields the federal government from suit unless a waiver applies. The government has waived immunity for suits arising from 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). In the case of a Coast Guard or other military member such as Ghuman, acting within the scope of employment is defined as "acting in the line of duty." 28 U.S.C. § 2671. This is interpreted under state law principles of respondeat superior. McCall v. United States, 338 F.2d 589 (9th Cir. 1964); Chapin v. United States, 258 F.2d 465, 468 (9th Cir. 1958). Under California respondeat superior principles, an employer is liable for risks arising out of employment when "in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Perez v. Groningen, 41 Cal.3d 962, 968 (1986).

  Under California law, an employee is not considered to be within the scope of employment "when going or coming from his or her place of work." E.g., Anderson v. Pacific Gas & Electric, Co., 14 Cal.App.4th 254, 258 (1993). Typically, common commute trips by ordinary members of the work force are noncompensable under the going and coming rule. Hinman v. Westinghouse Electric Co., 2 Cal.3d 956, 962 (1970). However, "extraordinary transits that vary from the norm because the employer requires a special, different transit, means of transit, or use of a car, for some particular reason of his own" so that the commute "bestows a special benefit on the employer by reason of the extraordinary circumstances" are actionable exceptions to the rule. Hinjosa v. Workmen's Comp. Appeals Bd., 8 Cal.3d 150, 157 (1972). Here, it is undisputed that Ghuman was leaving his place of work in his own car on a routine departure at the time of the accident, and so the going and coming rule would bar recovery against the United States unless an exception to the rule applies to the facts of this case.*fn5

  B. Implied Benefit Exception

  Exceptions to the going and coming rule will be made where "the trip involves incidental benefit to the employer, not common to commute trips by ordinary members of the work force." Hinman v. Westinghouse Electric Co., 2 Cal.3d 956, 962 (1970). Plaintiffs argue that the government derived an incidental benefit from Ghuman's commute in that he was required to live in the barracks and commute eighteen miles to the Coast Guard station in his own car, resulting in monetary savings for the government, and because he was on-call and subject to Coast Guard control even during his period of liberty from the station. The government disputes the fact that Ghuman's drive away from his place of employment while on liberty status imparted any benefit, implied or otherwise, on the United States Coast Guard.

  Implied benefits to an employer rendering the going and coming rule inapplicable have been found in cases such as where the employer paid for or reimbursed travel time, Hinman, 2 Cal.3d 956; where the employee was traveling from night school at the employer's request, Dimmig v. Workmen's Comp. Appeals Bd., 6 Cal.3d 860 (1972); and where the employee commuted in company car due to the employer requiring access to or use of car during the work day, Lazar v. Thermal Equipment Corp., 148 Cal.App.3d 458 (1983); Huntsinger v. Glass Container Corp., 22 Cal.App.3d 803 (1972).

  None of these or any related exceptions apply to the facts of this case. Though the government can be seen as having received some benefit because Ghuman lived in housing provided by the Coast Guard and so the government did not have to pay him an additional stipend for living expenses, the Court finds that this benefit is not sufficiently associated with any implied requirement to commute to his place of employment in his own car to fall within the scope of the implied benefit exception as outlined by the cases cited.*fn6 Unlike the cases cited, where there was a clear nexus between the alleged benefits to the employers and the torts themselves, here the link between monetary savings to the government and the automobile accident in a private vehicle occurring off of government property while Ghuman was on leave status is tangential at best. Therefore, the Court finds as a matter of law that the facts of this case do not fall within the implied benefit exception to the going and coming rule.

  First, unlike in Hinojosa, 8 Cal.3d at 161-62, where in the workers' compensation context the court found an implied requirement for employees to commute to work in their own cars in order to travel to various fields during the workday, here there is no evidence that Ghuman was ever required to use a personal vehicle to travel during the workday. Indeed, two vehicles were available at Ghuman's place of employment in case employees needed to travel off the station for work-related reasons. Grant Depo. 31:2-11. Further, in Hinojosa, the employer directly derived both monetary and workplace-efficiency related benefits by requiring that employees use their own vehicles to travel to diverse worksites throughout the day, and the accident in that case stemmed directly from the benefit to the employer of having private cars at the workplace. In contrast, here any benefit to the government stemming from a requirement to live in the barracks is the monetary benefit of avoiding payment of a housing allowance, and is wholly unrelated to Ghuman's operation of his own vehicle while on liberty status.

  Additionally, unlike in Lazar v. Thermal Equipment Corp., 148 Cal.App.3d 458, 462-63 (1983), where an employee was found to be within the scope of his employment when he was driving a company car on a personal errand after work because he was permitted to commute in the car in order to have it available at all times, here Ghuman was driving his own car and was not required to use it for business purposes during the day or after hours. See also Tryer v. Ojai Valley School, 9 Cal.App.4th 1476 (1992) (contrasting between "required vehicle exception" where employee's job entailed regular use of a vehicle to perform job and employees who merely use a car to commute to a definite place of business). Additionally, Plaintiff was not reimbursed for travel expenses or commute time, and did not receive an allowance for having a personal vehicle to make the commute. Grant Depo. 22:14-18; 24:8-16. The Coast Guard played virtually no role in facilitating employee in transport to and from their residences and stations. Grant Depo. 22:19-24:2. As such, the employer in Lazar was far more involved in the employee's commute, and derived a far more substantial benefit from the employee's operation of a company car than can be seen in the case at bar. Plaintiffs also argue that this case is analogous to the facts of Hinman v. Westinghouse Electric Co., 2 Cal.3d 956 (1970) where an employer was found liable for the actions of an employee returning home from a job site where the employee did not report to the employer's office but instead went directly to and from home and various job sites and was reimbursed for travel time and expenses. The court found that an employer should not be permitted to beneficially "reach out to a labor market in another area or enlarge the available labor market by providing travel expenses and payment for travel time" without potential liability for the employees' commute. Id. at 962. Plaintiffs argue that here, the government effectively placed its labor market (guardsmen housed in Petaluma barracks) remotely from its job site (station at Bodega Bay) and should be liable for the risks associated with that decision. However, as discussed above, the government did not provide travel time or costs reimbursement nor was it involved in any way in facilitating transport from the barracks to the station. Therefore, Hinman is inapposite.

  Finally, Plaintiffs contend that because Ghuman was on-call by the Coast Guard even while on liberty status, he was within the scope of his employment at the time of the accident. However, any blanket "on-call" exception to the going and coming rule has been rejected by California courts. See Le Elder v. Rice, 21 Cal.App.4th 1604, 1609 (1994) ("Public policy would be ill-served by a rule establishing 24-hour employer liability for on-call employees, regardless of the nature of the employee's activities at the time of the accident"). Here, Ghuman was leaving his station to go on liberty status*fn7 and was not performing any work function at the time of the accident. The mere fact that he could have been called to return to his station by some mode of transportation does not without more bring his actions within the scope of his employment.

  The facts of this case render any benefit to the employer by virtue of Ghuman's housing status far more tangential to the automobile accident than the nexus described in the cases cited by Plaintiffs. Further, there is no evidence that the government required Ghuman to own a car and/or use his vehicle for any work-related purpose, or that the government derived any sufficient benefit from his commute by virtue of his being on-call. Therefore, the Court finds as a matter of law that Ghuman was not acting within the scope of his employment under an "implied benefit" exception to the going and coming rule.

  C. Bunkhouse Exception

  Plaintiffs also claim that there is a "bunkhouse exception" to the going and coming rule where an employer furnishes an employee with housing. Opp. 10:14-16. As discussed above, there is a factual dispute as to whether Ghuman was required to live in the Petaluma barracks. However, even assuming that he was required to live in the barracks and commute to his station in Bodega Bay, the bunkhouse rule is inapplicable to the facts of this case.

  In Tarasco v. Moyers, 81 Cal.App.2d 804 (1947), one of the very few cases mentioning the bunkhouse rule in the context of the going and coming rule, albeit under workers' compensation law principles, an employer was found liable for the acts of an employee when the employee was returning to company headquarters, where he and his family lived free of charge and where he was required to return his tools each evening after work. The court held that the employee was actually engaged in performing a part of his duties of employment by returning to his residence and returning his tools to headquarters at the end of the workday because this was a required part of the job. Id. at 808. The court also found it important that the employer provided gasoline to the employee for this purpose, as this indicated that the service of returning to headquarters after work was intended to be within the scope of employment. Id.

  In contrast, here even if it was beyond dispute that Ghuman was required to live at the Petaluma barracks, there was no requirement that he return there at the end of a workday or before going on liberty status. It is undisputed that Ghuman was not required to check in or out of the barracks at any time, and the only restrictions on his travel while on liberty status were a one hundred mile travel limitation and the possibility of getting recalled. Further, because Ghuman is deceased, there is no evidence regarding his intended destination at the time of the accident beyond mere speculation. Because he was not required to return to the barracks after work and it is unclear that he was doing so at the time of the accident, even if Ghuman was required to live in the Petaluma barracks this case is clearly distinguishable from the facts of Tarasco and so the bunkhouse rule articulated in that case does not apply.

  Plaintiffs also rely on Aubin v. Kaiser Steel Corp., 185 Cal.App.2d 658 (1960), another workers' compensation case where a California court defined the bunkhouse rule as, "[w]here the employment contract contemplates, or the work necessity requires that the employee live or board on the employer's premises, the employee is considered to be performing services incidental to such employment during the time he is on such premises." Applying this rule, the court found a mine company liable for an employee's accident with a company-owned train where the employee was driving his own car on a personal trip after working hours. However, the accident occurred on a private road on the employer's property, which the employee was functionally required to live on because "there were no adequate housing facilities within a reasonable distance." Id. at 662. The court therefore found that the employee's use of the private road on company property, the only means of egress from his employment and residence, and his exposure to the danger of collision with a company-owned train on the property, were peculiar to his employment. Id. at 663.

  In contrast, here Ghuman was not on government-owned property at the time of the accident and the risk of an automobile accident with a member of the public on public property can not be said to have been peculiar to his employment with the Coast Guard, even though he was on a road leading from his place of employment in the direction of his residence. As such, Plaintiff's reliance on Aubin fails.

  The undisputed facts reveal that Ghuman was leaving work on liberty status at the time of the accident, and no exception to the going and coming rule applies. Therefore, he was not acting within the scope of his employment under California principles of respondeat superior, and Plaintiffs are therefore barred from bringing suit against the government for any injuries he caused. As such, and applying the summary judgement standard to the facts of this case, the government's motion to dismiss for lack of subject matter jurisdiction is granted. CONCLUSION

  For the foregoing reasons, the government's motion to dismiss for lack of subject matter jurisdiction is GRANTED.

  IT IS SO ORDERED.


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