United States Court of Appeals
For the First Circuit
No. 09-2387
FRANK A. MERLONGHI,
Plaintiff, Appellant,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Gajarsa,* and Thompson, Circuit Judges.
Benjamin R. Zimmermann, with whom Neil Sugarman and Sarah H.
Gottlieb were on brief, for plaintiff, appellant.
Anita Johnson, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
defendant, appellee.
September 14, 2010
*
Of the Federal Circuit, sitting by designation.
GAJARSA, Circuit Judge. This appeal requires us to
determine whether a federal employee was acting within the scope of
his employment under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2671-2680 (2006). While driving home from
work in a government vehicle, the employee collided with a
motorcyclist. The motorcyclist, Frank A. Merlonghi, filed suit in
the U.S. District Court for the District of Massachusetts against
the United States under the FTCA for the actions of the employee,
U.S. Special Agent Thomas Porro. The district court dismissed
Mr. Merlonghi’s claim for lack of jurisdiction under Federal Rule
of Civil Procedure 12(b)(1) because it determined that Mr. Porro
was not acting within the scope of his employment at the time of
the collision. We affirm.
I.
Mr. Porro was a Special Agent stationed in Boston,
Massachusetts at the Office of Export Enforcement (“OEE”) of the
U.S. Department of Commerce. He aided in criminal investigations
and specialized in computer forensics. OEE authorized its special
agents, including Mr. Porro, to drive government vehicles between
work and home so that they would be available twenty-four hours a
day for emergencies. This enabled special agents to leave directly
from home to an investigation site or other work assignment.
On March 29, 2006, Mr. Porro was driving home from work
in an unmarked government vehicle. At approximately 6:30 p.m., he
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was driving his vehicle east on Congress Street. When Mr. Porro
turned right on Dorchester Avenue, his vehicle nearly collided with
a motorcycle driven by Mr. Merlonghi’s friend, Bartley Loftus.
Mr. Merlonghi drove up in his motorcycle alongside Mr. Porro’s
vehicle and claims to have said, “Hey Pal, you almost hit my
buddy.” App. 116. In contrast, Mr. Porro testified that
Mr. Merlonghi said, “You’re a f---ing a--hole. I ought to put a
bullet in your head.” App. 147. In response, Mr. Porro reportedly
said, “F-you. He cut me off.” App. 116.
Mr. Porro then drove away, but Mr. Merlonghi followed on
his motorcycle, yelling and screaming. After another verbal
exchange, Messrs. Porro, Merlonghi, and Loftus turned left from
Dorchester Avenue onto Summer Street directly into rush hour
traffic. On Summer Street, Messrs. Porro and Merlonghi swerved
their vehicles back and forth towards each other.
At some point on Summer Street, Mr. Porro took out his
revolver. Mr. Merlonghi testified that Mr. Porro pointed the gun
at him. In contrast, Mr. Porro testified that he merely
unholstered his gun and placed it on the passenger’s seat beside
him. Mr. Porro explained that he displayed his weapon because he
“wanted to see if [Mr. Merlonghi] had any intention or ability to
carry through the threat that he had just made.” App. 149. Upon
seeing the gun, Mr. Merlonghi shouted to Mr. Porro, “What are you
going to do, shoot me?” App. 123. Messrs. Porro and Merlonghi
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then continued driving along Summer Street, swerving back and
forth, arguing with each other.
While still on Summer Street, Mr. Merlonghi drove
alongside Mr. Porro. Near the intersection of Summer Street and
D Street, multiple witnesses testified that Mr. Porro’s vehicle
suddenly swerved hard to the left toward Mr. Merlonghi’s
motorcycle. In the words of one witness, Mr. Porro’s vehicle made
a “very hard, fast motion to the left.” App. 44. In contrast,
Mr. Porro claimed that he thought he saw Mr. Merlonghi’s motorcycle
fall behind through his rearview mirror and that he merged quickly
into the left lane to avoid a right-turn-only lane. Both parties
agree, however, that when Mr. Porro entered the left lane, his
vehicle struck Mr. Merlonghi’s motorcycle, throwing him to the
ground. Instead of stopping, Mr. Porro straightened out his
damaged vehicle and sped away. As a result of the collision,
Mr. Merlonghi suffered serious bodily injuries.
After the accident, Mr. Porro failed to contact his
office or the police. He personally paid to repair the vehicle in
a New Hampshire repair shop--even though OEE pays for the repair of
damaged government vehicles. He later testified that he failed to
report the accident to OEE because “[i]t wasn’t inside the scope of
my employment[;] it wasn’t really a direct result.” App. 162.
Subsequently, Mr. Porro was indicted under the General
Laws of Massachusetts on three counts: (1) aggravated assault and
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battery by means of a dangerous weapon (an automobile) in violation
of chapter 265, section 15A, (2) assault by means of a dangerous
weapon (a handgun) in violation of chapter 265, section 15B(b), and
(3) leaving the scene of an accident causing personal injury in
violation of chapter 90, section 24(2)(a 1/2)(1). See Commonwealth
v. Porro, 909 N.E.2d 1184, 1186-87 (Mass. App. Ct. 2009), review
granted in part, 920 N.E.2d 43 (Mass. 2009). Mr. Porro was tried
before a jury on all three counts. Id. at 1186. The jury
convicted him of a lesser included offense of the first count for
assault by means of a dangerous weapon (an automobile) and
convicted him of the third count. Id. However, the jury acquitted
him of the second count. Id. On appeal, the Appeals Court of
Massachusetts affirmed his conviction on the third count. Id. at
1190. But the court reversed the jury’s conviction on the lesser
included offense because the jury convicted him of a crime for
which he was not indicted in violation of Article 12 of the
Massachusetts Declaration of Rights. Id. at 1190. The
Massachusetts Supreme Judicial Court (“SJC”) granted Mr. Porro’s
subsequent appeal to determine whether he could be retried for the
lesser included offense. Porro, 920 N.E.2d at 43. That appeal
remains pending.
While the criminal action was proceeding, Mr. Merlonghi
filed a civil complaint against the United States under the FTCA.
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He claimed that Mr. Porro caused him injuries while acting within
the scope of his employment.
The government moved to dismiss the action pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction. The district court granted the government’s motion.
Ruling from the bench, the district court held that “on the
undisputed record that’s before the Court, as [a] matter of law[,]
Mr. Porro was not within the scope of his employment.” App. 272
(Tr. 12:5-8) (alterations added). Based on Massachusetts common
law, the district court found that (1) Mr. Porro “was not doing the
customary duties that he was hired to perform,” (2) “[i]t was not
[within] an authorized time or space,” and (3) “[h]e was not
motivated with respect to this conduct by a purpose to serve the
employer.” App. 272 (Tr. 12:8-12) (alterations added). In the
alternative, the district court ruled “that on the undisputed facts
of this record that [Mr. Porro’s] conduct went beyond mere
negligence and was reckless.” App. 272 (Tr. 12:13-15) (alteration
added). In explanation of the alternative ruling, the district
court stated, “Reckless conduct such as this can, I don’t need to
make a ruling like this, can make out under the laws of
Massachusetts liability for the intentional tort of battery.”
App. 272 (Tr. 12:15-18).
Mr. Merlonghi timely appealed. We have jurisdiction
under 28 U.S.C. § 1291.
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II.
The district court dismissed Mr. Merlonghi’s complaint
for lack of subject-matter jurisdiction because it concluded that
Mr. Porro was not acting within the scope of his employment when he
collided with Mr. Merlonghi. When a district court considers a
Rule 12(b)(1) motion, it must credit the plaintiff’s well-pled
factual allegations and draw all reasonable inferences in the
plaintiff’s favor. Valentin v. Hospital Bella Vista, 254 F.3d 358,
363 (1st Cir. 2001). The district court may also “consider
whatever evidence has been submitted, such as the depositions and
exhibits submitted.” Aversa v. United States, 99 F.3d 1200, 1210
(1st Cir. 1996).
On appeal, we review de novo a district court’s legal
determination that an employee acted outside the scope of his
employment and that it lacks subject-matter jurisdiction under the
FTCA. McIntyre v. United States, 545 F.3d 27, 40 (1st Cir. 2008);
Aversa, 99 F.3d at 1209.
The United States as a sovereign can be haled into court
only if it consents to be sued. ”It is elementary that ‘[t]he
United States, as sovereign, is immune from suit save as it
consents to be sued . . ., and the terms of its consent to be sued
in any court define that court’s jurisdiction to entertain the
suit.’” United States v. Mitchell, 445 U.S. 535, 538 (1980)
(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)); see
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also McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). To
expose the United States to suit, Congress must “‘unequivocally’”
waive sovereign immunity. Mitchell, 445 U.S. at 538 (quoting
United States v. King, 395 U.S. 1, 4 (1969)). By enacting the
FTCA, Congress waived the immunity of the United States to suit
for the tortious actions of federal employees.
Nevertheless, the United States’ waiver of sovereign
immunity under the FTCA has limits. The waiver is effective only
for the acts or omissions of a federal employee within the scope of
his employment. Under 28 U.S.C. § 1346(b)(1), district courts have
jurisdiction over tort claims against the United States “for
personal injury . . . caused by the negligent or wrongful act or
omission of any employee . . . while acting within the scope of his
employment, under circumstances where the United States . . . would
be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” Consequently, “the law of the
state in which the relevant conduct occurred” determines “[w]hether
an employee is acting within the scope of his employment for
purposes of the FTCA.” McIntyre, 545 F.3d at 38; see also Aversa,
99 F.3d at 1209.
In this case, the parties agree that Massachusetts law
applies. We therefore look to the SJC’s decisional law on
respondeat superior. “Under the doctrine of respondeat superior,
‘an employer, or master, should be held vicariously liable for the
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torts of its employee, or servant, committed within the scope of
employment.’” Lev v. Beverly Enters.-Mass., Inc., 929 N.E.2d 303,
308 (Mass. 2010)(quoting Dias v. Brigham Med. Assocs., Inc.,
780 N.E.2d 447, 449 (Mass. 2002)). In numerous opinions, the SJC
has explained that Massachusetts courts are to determine whether an
employee’s conduct is within the scope of his employment based on
(1) “whether the conduct in question is of the kind the employee is
hired to perform,” (2) “whether it occurs within authorized time
and space limits,” and (3) “whether it is motivated, at least in
part, by a purpose to serve the employer.” Clickner v. City of
Lowell, 663 N.E.2d 852, 855 (Mass. 1996); see also Lev, 929 N.E.2d
at 308 (reiterating the three-factor test for determining scope of
employment); Pinshaw v. Metro. Dist. Comm’n, 524 N.E.2d 1351, 1356
(Mass. 1988) (same); Wang Labs., Inc. v. Bus. Incentives, Inc.,
501 N.E.2d 1163, 1166 (Mass. 1986) (same); Restatement (Second) of
Agency § 228 (1958). In addition to this three-factor test, the
SJC has a long-established “going and coming” rule: “Generally
speaking, travel to and from home to a place of employment is not
considered to be within the scope of employment.” Lev, 929 N.E.2d
at 308.2
2
In Wormstead v. Town Manager of Saugus, 322 N.E.2d 171
(Mass. 1975), the SJC established an exception to the “coming and
going” rule for traveling workers. But Wormstead “involved
worker’s compensation analysis, not imputed tort liability under
respondeat superior principles.” Clickner, 663 N.E.2d at 852 n.4.
As explained infra, this exception for workers’ compensation cases
is not applicable to this case, which is a case involving tort
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Clickner is instructive of how respondeat superior and
the “going and coming” rule apply in this case. In Clickner, a
Lowell police officer obtained permission to drive a government
vehicle to a golf tournament before his shift so that he could
“respond immediately to any emergency calls without returning
home.” 663 N.E.2d at 854. While at the golf tournament, the
officer drank at least four beers. Id. He departed from the
tournament in the government vehicle approximately one half an hour
before his shift began. Id. While driving to work, the officer
received a page from a subordinate. Id. When he tried to respond
to the page on his cellular phone, the officer drove his car over
the center line and into another vehicle, injuring the passengers
in the other vehicle. Id. The officer was later convicted of
driving under the influence. Id.
Based on these facts, the SJC held that the officer was
not acting within the scope of his employment. Id. at 855-56. As
a baseline, the SJC explained that the officer, “although
authorized to drive the city’s automobile, was not acting in the
furtherance of the employer’s business simply because he was going
to work.” Id. at 855. It noted that under the “going and coming”
rule, “[t]ravel to and from home to a place of employment generally
is not considered within the scope of employment.” Id.; see also
liability under respondeat superior. See Lev, 929 N.E.2d at 309
n.6.
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id. at 855 n.4. The SJC also noted that “the mere fact of being on
call does not place employees within the scope of their
employment.” Id. at 855.
Clickner demonstrates that when a government employee
drives a government vehicle to and from work but acts “in the
furtherance of his own agenda,” the employee is not acting within
the scope of his employment. Id. at 856. Applying its three-
factor test, the SJC concluded that the officer was not acting
within the scope of his employment because “[h]e was using the
vehicle for his own purposes; he was in the town of Groton where he
was not authorized to act as a police officer; his shift had not
yet begun; he was not being paid at that time; and he was
intoxicated and unfit for duty.” Id. at 855. Despite the fact
that the officer was driving a government vehicle and responded to
a work-related page, those facts were “not enough to tip the
balance to bring [the officer’s] conduct within the scope of
employment” when, in general, an employee is not acting within the
scope of his employment when traveling to and from work. Id. at
856.
In this case, as in Clickner, the undisputed facts
establish that although Mr. Porro was driving home from work in a
government vehicle, he was acting “in the furtherance of his own
agenda,” not within the scope of his employment. Id. at 856. On
appeal, the parties agree that Mr. Porro was driving a government
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vehicle home from work after completing his shift, that he argued
with Mr. Merlonghi while driving, that he showed his gun to
Mr. Merlonghi, that the two vehicles swerved back and forth,3 and
that Mr. Porro struck Mr. Merlonghi with his car. Both parties
further agree that Mr. Porro drove a government vehicle so that he
could travel to an assignment directly from home, but that he was
not responding to an assignment from OEE when he crashed into
Mr. Merlonghi’s motorcycle. The parties dispute, however, whether
Mr. Porro deliberately swerved into Mr. Merlonghi’s motorcycle or
accidentally struck Mr. Merlonghi while merging into the left lane.
It does not matter whether Mr. Porro deliberately or accidentally
struck Mr. Merlonghi’s motorcycle given the other undisputed facts.
Because Mr. Porro was not traveling to a work assignment and had
engaged Mr. Merlonghi by swerving back and forth in a taunting
match, Mr. Porro was not acting within the scope of his
employment–-even if he was driving a government vehicle and was on
call. Id. at 855.
As in Clickner, Mr. Porro’s actions here do not “tip the
balance to bring [his] conduct within the scope of employment.”
Id. at 856 (alteration added). Clickner set the boundary for when
an employee acts outside the scope of his employment while
3
Mr. Merlonghi does not dispute that he and Mr. Porro were
swerving back and forth during their argument. According to
Mr. Merlonghi’s brief, “Witnesses had observed the two vehicles
interacting with each other and, at times, swerving back and
forth.” Appellant’s Br. 5-6.
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traveling to and from work. Id. As the three scope-of-employment
factors demonstrate, Mr. Porro crossed that boundary here. First,
engaging in a car chase while driving home from work is not the
type of conduct that OEE hired Mr. Porro to perform. See id. at
855. He was hired to investigate export crimes by using his
computer-forensics skills. Moreover, he was authorized to drive a
government car to facilitate travel to such investigations. This
employment did not grant him the authority to endanger the public
by unholstering his gun, making threatening gestures, and driving
the vehicle in a dangerous manner.
Second, Mr. Porro’s accident did not occur within
“authorized time and space limits” because he was not at work,
responding to an emergency, or driving to a work assignment–-even
if he was on call. Id. Massachusetts decisional law draws a
distinction between on-call employees who are responding to a call
and those who are simply commuting to and from work. In contrast
to a commuting employee, “[a]n employee who is traveling to work
after being summoned by his or her employer could be acting within
the scope of employment if additional facts support such a
finding.” Id. at 855 n.6.
Mr. Merlonghi argues that the collision was within the
“space limits” of Mr. Porro’s employment because his jurisdiction
spanned the entire United States. However, the record establishes
that the Boston OEE office had responsibility over investigations
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in the six New England states, not over investigations spanning the
whole country. More importantly, Mr. Porro’s actions did not occur
within the Boston office or at a location to which he was
dispatched for an assignment. The fact that he was driving within
New England, and thus within his office’s jurisdiction, is not
nearly as relevant as the fact that OEE did not direct Mr. Porro to
drive to a location placing him on Summer Street.
Third, Mr. Porro was not “motivated . . . by a purpose to
serve the employer.” Id. at 855. Mr. Porro’s argument with
Mr. Merlonghi and the back-and-forth swerving leading to the
altercation had nothing to do with an OEE assignment. His conduct
related to personal travel and a personal confrontation.
The welter of factors as properly organized here
establish that Mr. Porro was pursuing his own agenda and not OEE’s.
Therefore, we conclude that he was acting outside the scope of his
employment and that the district court properly dismissed
Mr. Merlonghi’s complaint for lack of subject-matter jurisdiction.
Clearly, Mr. Porro was not employed to create confrontational
altercations with private citizens while driving home from work.
Because we conclude that Mr. Porro was acting outside the scope of
his employment under Massachusetts’s three-factor test, we need not
reach the district court’s alternative ruling that he was reckless.
We emphasize that a court must base its decision on the
facts of each case when considering the three factors of
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Massachusetts’s scope-of-employment test. See id.; Wang Labs., at
1166-67. Mr. Merlonghi attempts to frame the issue as whether a
federal employee acts within the scope of his employment when he
negligently causes an accident while commuting from work in a
government vehicle. That is not the issue before this court. The
undisputed facts of this case show that Mr. Porro was not merely
commuting. Viewing the facts in Mr. Merlonghi’s favor, Mr. Porro
acted negligently after engaging Mr. Merlonghi in a car chase with
an unholstered gun. To resolve this case, therefore, we need not
decide whether a federal employee acts within the scope of his
employment when he negligently causes an accident while simply
commuting to or from work in a government vehicle.
Mr. Merlonghi further argues that in Massachusetts “work
to home travel is within the scope of employment if required or
directed by the employer.” Appellant’s Br. 16. In support, he
cites Kelly v. Middlesex Corp., 616 N.E.2d 473 (Mass. App. Ct.
1993). Mr. Merlonghi misunderstands how Kelly applies to this
case. In Kelly, the court recognized the basic “going and coming”
rule, but added that the rule does not apply in workers’
compensation cases “when the purpose of travel between the place of
residence and place of business is a mission to further the
purposes of the employer, such as when an employee is directed to
come to a particular company meeting.” Kelly, 616 N.E.2d at 475.
Kelly accurately states Massachusetts law for workers’ compensation
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cases, but that law does not apply in this case. Kelly involved
workers’ compensation, not respondeat superior. The SJC recently
explained that “[i]n Kelly . . ., the court’s interpretation of the
‘going and coming’ rule was shaped by its reliance on workers’
compensation law. As we have stated, tort liability under the
doctrine of respondeat superior is viewed differently from an
injured employee’s entitlement to benefits under the workers’
compensation act.” Lev, 929 N.E.2d at 309 n.6. Even if this were
a workers’ compensation case, the exception from Kelly would not
apply to Mr. Porro. He simply was not on “a mission to further the
purposes of” OEE. Kelly, 616 N.E.2d at 475.
Mr. Merlonghi also cites 31 U.S.C. § 1344 and other
regulations to argue that Mr. Porro’s actions must be within the
scope of his employment because OEE determined that it was
“essential” for Mr. Porro to drive a government vehicle to and from
work. Section 1344, however, is an appropriations statute that
grants funding for the “maintenance, operation, or repair of any
passenger carrier only to the extent that such carrier is used to
provide transportation for official purposes.” The statute defines
“transportation of an official purpose” in part to include
transportation between residence and work that is “essential for
the safe and efficient performance of intelligence,
counterintelligence, protective services, or criminal law
enforcement duties.” 31 U.S.C. § 1344(a)(2)(B). The fact that OEE
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found it essential for Mr. Porro to drive a government vehicle to
perform his investigative duties does not mean that he was acting
within the scope of his employment. The federal government’s
authorization to drive a government vehicle is not an authorization
to pursue a personal argument in that vehicle with gun in hand.
Finally, Mr. Merlonghi relies on Kashin v. United States,
457 F.3d 1033 (9th Cir. 2006), and Borrego v. United States,
790 F.2d 5 (1st Cir. 1986), to support his claim that Mr. Porro was
acting within the scope of his employment because federal statutes
and regulations govern the funding of his government vehicle.
Kashin involved a consular general in Russia who was involved in a
car accident while driving from work to the gym, 457 F.3d at 1035,
and Borrego involved a U.S. Department of Agriculture employee who
was involved in an accident while driving from home to work in a
government vehicle, 790 F.2d at 5-6. These cases involved simple
acts of negligence while commuting to or from work. In contrast,
Mr. Porro’s heated exchange with Mr. Merlonghi and his risky back-
and-forth driving extends his conduct beyond that of merely
commuting in a government vehicle. Mr. Porro’s conduct falls into
a different category of Massachusetts law. He engaged another
motorist in a personal argument and thereby pursued “his own
agenda.” Clickner, 663 N.E.2d at 856.
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III.
For the foregoing reasons, we hold that Mr. Porro was not
acting within the scope of his employment when he crashed into
Mr. Merlonghi during a car chase. Because Mr. Porro was not acting
within the scope of his employment, the district court lacked
subject-matter jurisdiction over Mr. Merlonghi’s claim under
28 U.S.C. § 1346(b)(1) and properly dismissed the case for lack of
jurisdiction. The judgment is AFFIRMED.
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