Tom Magee, Personal Representative of the Estate of James Owens, Plaintiff, v.… v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 20-2590
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Tom Magee, Personal Representative of the Estate of James Owens,
lllllllllllllllllllllPlaintiff,
v.
United States of America,
lllllllllllllllllllllDefendant - Appellee,
Benjamin Harris,
lllllllllllllllllllllDefendant - Appellant.
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No. 20-2592
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Tom Magee, Personal Representative of the Estate of James Owens,
lllllllllllllllllllllPlaintiff - Appellant,
v.
United States of America,
lllllllllllllllllllllDefendant - Appellee,
Benjamin Harris,
lllllllllllllllllllllDefendant.
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 15, 2021
Filed: August 13, 2021
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
Benjamin Harris injured James Owens while Harris was driving a vehicle
owned by the United States Postal Service. Owens sued the United States under the
Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, and he sued Harris for negligence
under Missouri law. The district court1 dismissed Owens’s federal claim for lack of
subject matter jurisdiction. The court reasoned that Harris was not acting within the
scope of his employment with the Postal Service at the time of the accident. The
court then declined to exercise supplemental jurisdiction over Owens’s state-law
claim against Harris. We affirm the judgment.
I.
In June 2016, Benjamin Harris was employed by the United States Postal
Service as a mail carrier in Festus, Missouri. Mail carriers are assigned a route with
a prescribed order of delivery. According to a Postal Service policy handbook,
carriers are required to follow “their authorized lines of travel at all times.”
Authorized lines of travel include the carrier’s route and travel to and from the route,
1The Honorable Noelle C. Collins, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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authorized lunch locations, and break locations. Carriers are directed not to “loiter
or stop to converse unnecessarily” on their routes, and they are not permitted to
deviate from their routes “for meals or other purposes unless authorized by” a
manager, or “if local policies concerning handling out of sequence mail permit minor
deviations.”
Mail carriers are permitted two ten-minute personal breaks per day, but those
breaks must be taken separately from each other and separately from the carrier’s
lunch break. Carriers designate two locations for taking personal breaks, and these
locations are recorded on the carriers’ route information forms. One of Harris’s
designated break locations was James Owens’s address. Carriers are also permitted
to take “reasonable comfort stops” to use the restroom or get a drink.
On June 1, 2016, Harris delivered mail to Owens’s residence at approximately
8:51 a.m. After completing a delivery at a different address on his route at 12:50
p.m., Harris drove to a K-Mart approximately half a mile away. Once there, he
purchased dog food to bring to Owens. Harris testified that he and Owens were
friends, that he stopped for smoke breaks at Owens’s residence during the work day,
and that he would sometimes run errands for Owens during breaks. Harris never
advised his supervisor that he ran errands for Owens during his break time.
At 1:00 p.m., Harris left K-Mart and drove to a nearby gas station, where he
purchased a beverage. Harris then drove to Owens’s residence, arriving at 1:09 p.m.
He delivered the dog food and took a break with Owens. At approximately 1:15 p.m.,
Harris got back into his Postal Service vehicle to return to his delivery route. But
Harris mistakenly shifted the vehicle into drive mode rather than reverse gear, and
drove forward into Owens, knocking him through the exterior wall of the residence.
Approximately twenty-five minutes elapsed between the time Harris left his route and
the time of the accident.
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Harris’s supervisor conducted an investigation into the accident. As a result
of the investigation, the Postal Service provided Harris with a notice of proposed
removal from employment. The notice cited Harris’s failure to operate his vehicle in
a safe manner and his deviation from his assigned mail route without authorization.
Harris filed a grievance and reached a settlement under which he was suspended from
work for fourteen days but not terminated.
Owens then sued the United States in the district court under the Federal Tort
Claims Act. The Act grants jurisdiction over civil actions against the United States
for injury caused by the negligent act of any employee of the government “while
acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1).
Owens also sued Harris for common-law negligence under Missouri law. Harris
responded by moving the district court to certify that he was acting within the scope
of his employment and to dismiss him from the case on the ground that the proper
defendant was the United States. See 28 U.S.C. § 2679(d)(3). The government
opposed certification and moved to dismiss Owens’s claim against the United States
for lack of subject matter jurisdiction.
The district court concluded that Harris was not acting within the scope of his
employment at the time of the accident, and that the United States was therefore
entitled to sovereign immunity. The court denied Harris’s petition to certify scope
of employment and dismissed Owens’s claim against the United States for lack of
subject matter jurisdiction. The court declined to exercise supplemental jurisdiction
over Owens’s remaining state-law claim against Harris and dismissed that claim
without prejudice. See 28 U.S.C. § 1367(c)(3). Harris and Owens each appealed, and
their cases were consolidated for argument and decision. Owens is now deceased,
and Tom Magee was substituted for Owens as personal representative of Owens’s
estate. See Fed. R. App. P. 43(a)(1).
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II.
We review de novo a district court’s decision to dismiss a complaint for lack
of subject matter jurisdiction. Green Acres Enters., Inc. v. United States, 418 F.3d
852, 856 (8th Cir. 2005). When the district court makes findings of fact on disputed
issues, we review those findings for clear error. Ryan v. United States, 534 F.3d 828,
831 (8th Cir. 2008) (per curiam). The burden of proving the existence of subject
matter jurisdiction rests with the party invoking federal jurisdiction. Moss v. United
States, 895 F.3d 1091, 1097 (8th Cir. 2018).
“A threshold requirement to establish jurisdiction under the [Federal Tort
Claims Act] is that the federal employee must have been acting within the scope of
his employment when the tort was committed.” Johnson v. United States, 534 F.3d
958, 963 (8th Cir. 2008). That question is governed by the law of the State where the
alleged tort was committed. Id.
Under Missouri law, the analysis focuses on whether the act was done “by
virtue of the employment and in furtherance of the business or interest of the
employer.” Cluck v. Union Pac. R.R. Co., 367 S.W.3d 25, 29 (Mo. 2012) (internal
quotation omitted). An act is done while engaged in the employer’s business if it is
“fairly and naturally incident to the employer’s business” and “did not arise wholly
from some external, independent or personal motive.” Higgenbotham v. Pit Stop Bar
& Grill, LLC, 548 S.W.3d 323, 328 (Mo. Ct. App. 2018). Where an employee
commits a tort while driving a vehicle owned by his employer, Missouri law affords
a presumption that the employee was acting within the scope of his employment.
Ewing-Cage v. Quality Prods., Inc., 18 S.W.3d 147, 150 (Mo. Ct. App. 2000). The
presumption “disappears only when the defendant introduces substantial
controverting evidence.” Id.
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In our view, the district court correctly concluded that the government rebutted
the presumption, and the appellants failed to establish that Harris was acting within
the scope of his employment. Postal Service mail carriers have carefully regimented
routes. Postal Service policy requires carriers to follow “their authorized lines of
travel at all times,” and to refrain from unauthorized deviations. Harris deviated from
his route without authorization for twenty-five minutes to run a personal errand for
a friend. Delivering dog food to Owens was not an act done “by virtue of” Harris’s
employment or in furtherance of the Postal Service’s “business or interest.” See
Cluck, 367 S.W.3d at 29 (internal quotation omitted). Harris’s actions arose from a
personal motive and were not “fairly and naturally incident to” the business of the
Postal Service. See Higgenbotham, 548 S.W.3d at 328. Under applicable Missouri
law, Harris was not acting within the scope of his employment at the time of the
accident.
The appellants maintain that Harris never deviated from his route because he
did not violate any policies of the Postal Service. Harris testified that he was entitled
to take his personal break wherever he liked and to do whatever he wanted to do
during the break. Although there is no written policy on this specific matter, Postal
Service policy directs carriers to “[o]bey the instructions of your manager.” Harris’s
supervisor testified that carriers are told not to deviate from their route to take a
personal break at a location where they have already delivered mail.
The Postal Service’s written policies support a finding that Harris’s deviation
was unauthorized. Without authorization from a supervisor, carriers are forbidden
to backtrack to deliver mail out of order. Harris acknowledged that he would seek
permission any time he needed to deliver mail out of sequence. Policies requiring
carriers to follow “their authorized lines of travel at all times” and forbidding
unauthorized deviations for “meals or other purposes” establish that carriers are not
permitted to use their Postal Service vehicles for personal purposes. The district
court did not clearly err in finding that Harris violated the Postal Service’s policies
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when he left his route for twenty-five minutes to purchase dog food for a friend,
deliver the dog food at a location where he had already delivered mail, and take a
break with his friend.
Harris next contends that even if he did deviate from his route, the deviation
was a minor one that did not remove him from the scope of his employment. A
deviation of a “marked and decided” character removes an employee from the scope
of employment, but a “slight or incidental” deviation may not. Brown v. Moore, 248
S.W.2d 553, 557 (Mo. 1952) (internal quotation omitted). Harris left his delivery
route to run a personal errand for a friend, in violation of his employer’s policies.
The deviation included stops at three locations, spanned twenty-five minutes, and
ended in an accident as Harris prepared to return to his route to continue delivering
mail. Harris’s deviation was not slight or incidental, but rather was “definite and
certain, out and back to the starting point.” Id. at 558. Harris was not acting within
the scope of his employment during the deviation.
Harris argues that American Family Mutual Insurance Co. v. Arnold Muffler,
Inc., 21 S.W.3d 881 (Mo. Ct. App. 2000), calls for a contrary conclusion. There, the
court held that a delivery driver was acting within the scope of her permission to use
her employer’s vehicle at the time of an accident despite deviating from the most
direct delivery route. Id. at 882, 884. The driver’s deviation to perform a personal
errand, however, “lasted only five minutes,” and she had completed the errand and
“returned to her original business purpose” by the time of the accident. Id. at 884.
The driver also “did not have a designated route.” Id. By contrast, Harris was
required to follow a designated route and was prohibited from deviating from it
without authorization. His detour spanned twenty-five minutes, and the accident
occurred at Owens’s residence before Harris began traveling back to his route.
Determining whether a deviation is “minor or material” is “a matter of degree, with
no hard or fast rules.” Id. at 883. Harris’s actions differ materially from those of the
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employee in American Family, and his actions removed him from the scope of his
employment.
Harris next argues that even if his actions constituted more than a minor
deviation, he had returned to the scope of his employment by “the precise time of the
accident.” He likens his case to Schulte v. Grand Union Tea & Coffee Co., 43 S.W.2d
832 (Mo. Ct. App. 1931). Schulte concerned a traveling salesman who deviated from
his employment to visit a home for “a purpose of his own,” and then collided with a
street car when returning his company vehicle to the employer’s garage. Id. at 833.
Returning the vehicle to the garage was an “act of service for his employer,”
regardless of where the salesman ended his work day, so the accident “arose out of
and in the course of the employment.” Id. at 835. Generally speaking, however, an
employee does not return to the scope of employment after a material deviation until
he returns to the point of deviation or to a place where he should be located in the
performance of his duties. Humphrey v. Hogan, 104 S.W.2d 767, 769 (Mo. Ct. App.
1937); see Brown, 248 S.W.2d at 557. Harris departed from his route at 204 Briar
Ridge, and his next delivery was to be at 208 Briar Ridge, but he was still in the
parking lot of Owens’s residence on Maple Street when the accident occurred. He
had not returned to the scope of employment.
Magee maintains that whether Harris left the scope of his employment is a
question that must be decided by a jury. But the scope-of-employment question in
cases brought under the Federal Tort Claims Act is a “threshold” jurisdictional
question. Johnson, 534 F.3d at 963. Jurisdictional questions, “whether they involve
questions of law or of fact, are for the court to decide” at the outset, unless the
jurisdictional issue is so bound up with the merits that a full trial on the merits is
needed to resolve the question. Osborn v. United States, 918 F.2d 724, 729-30 (8th
Cir. 1990). This is not such a case. Whether Harris’s conduct was within the scope
of his employment is unrelated to the merits question of whether his conduct was
negligent.
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* * *
For these reasons, the judgment of the district court is affirmed.
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