Burroughs v. Abrahamson
964 F. Supp. 2d 1268
D. Or.2013Background
- Plaintiff Vincent Burroughs sues the United States under FTCA and former IRS agent Dora Abrahamson under Bivens; Bivens claim was dismissed by stipulation May 31, 2013.
- Abrahamson audited Burroughs's 2008 tax year for about nine days in August 2011 and was replaced after she disclosed a conflict.
- Plaintiff alleges Abrahamson used her IRS power to coerce, harass, and pursue a sexual encounter, and that the United States is liable for negligent supervision and respondeat superior.
- Plaintiff asserts multiple negligent theories: failure to follow IRS contact rules, pursuing a sexual relationship, failing to address psychological issues, and Privacy Act violations.
- The government moves to dismiss for lack of subject matter jurisdiction, arguing (i) not within course and scope, (ii) FTCA tax assessment exception, (iii) FTCA excludes intentional torts, (iv) discretionary function exemption, and (v) Privacy Act-based claim not cognizable under FTCA.
- Court applies Oregon law on course and scope, finds conduct not within scope, and dismisses most negligent claims; discretionary function exemption bars remaining claims; Privacy Act claim not cognizable under FTCA; action dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of employment governs FTCA coverage | Burroughs argues Abrahamson acted within scope to violate duties under IRS | United States contends conduct outside scope; not liable | Claims dismissed for lack of within-scope conduct |
| Discretionary function exception applies | Overseeing and enforcing rules constitutes non-discretionary duties | Actions involved policy-driven discretion | Dismissal under discretionary function exemption |
| Privacy Act claim viability under FTCA | Privacy Act violation alleged as negligence specification | FTCA does not cognize Privacy Act claims rooted in federal law | Privacy Act claim not cognizable under FTCA; all claims dismissed under FTCA grounds |
| Residual negligence allegations after scope and discretion analysis | Alleged training/supervision failures may survive | Most allegations fall under discretionary function or outside scope | Allegations not based on respondeat superior dismissed; remaining claims foreclosed |
| Overall disposition of case | Motion to dismiss granted; action dismissed with prejudice |
Key Cases Cited
- Chesterman v. Barmon, 305 Or. 439 (Or. 1988) (scope of employment factors under Oregon law)
- Minnis v. Oregon Mut. Ins. Co., 334 Or. 191 (Or. 2002) (intentional torts limitation on scope theories)
- Nurse v. United States, 226 F.3d 996 (9th Cir. 2000) (negligent training/supervision within discretionary function exemption)
- Berkowitz v. United States, 486 U.S. 531 (1988) (Berkoftz on two-step discretionary analysis)
- Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994) (policy-analysis test for discretionary function exemption)
- Miller v. United States, 163 F.3d 591 (9th Cir. 1998) (policy considerations as basis for discretionary function)
- United States v. Gaubert, 499 U.S. 315 (1991) (nature of conduct matters for discretionary function)