Askar v. Hennepin County

Background

Norhan Ashraf Askar alleged that she was injured during an attempted arrest of Winston Smith in Minneapolis on June 3, 2021. According to the complaint, officers in street clothes and unmarked vehicles surrounded Smith’s car, rammed it, pointed guns at Askar, and fired into the vehicle. Flying glass injured Askar.

The operation involved local officers from Hennepin and Ramsey Counties but was conducted by a United States Marshal Service joint task force. The officers had been deputized for the operation and acted under the direction of United States Marshal Service officials. Askar sued Hennepin County, Hennepin County Sheriff’s Office, Ramsey County, Ramsey County Sheriff’s Office, and unidentified officers. She asserted a claim under 42 U.S.C. § 1983 and tort claims including negligence, assault, battery, and intentional infliction of emotional distress.

Askar submitted an administrative claim to the United States Marshal Service on July 22, 2021. She filed and served this lawsuit the next day. The United States later sought to substitute itself for two unidentified officers under the Federal Tort Claims Act and moved to dismiss the tort claims for lack of subject-matter jurisdiction, meaning the court’s legal authority to hear them. The county defendants supported the motion. Askar opposed substitution, argued that the exhaustion issue had become moot because more time had passed, and requested permission to amend her complaint if substitution was allowed.

Substitution of the United States

The Federal Tort Claims Act generally makes the United States the exclusive defendant for tort claims based on the conduct of federal employees acting within the scope of their employment. State or local employees deputized by a federal agency may be treated as federal employees for this purpose.

The court applied two requirements: whether the officers were federal employees and whether they acted within the scope of their employment. It found that the officers were federal employees because they participated in a United States Marshal Service task-force operation on behalf of that agency. The court relied on federal law rather than the memoranda of understanding between the federal and local agencies. It also noted that Askar did not appear to challenge the United States Attorney’s certification that the officers acted within the scope of their employment.

The court concluded that both substitution requirements were met. It ordered that the United States be substituted as defendant in place of John Doe 1 and John Doe 2. Because the officers were acting as federal employees rather than as employees of the local departments, the court also dismissed all claims against Hennepin County, Hennepin County Sheriff’s Office, Ramsey County, and Ramsey County Sheriff’s Office. The opinion states that those claims were based on the local entities’ responsibility for their officers’ conduct.

Exhaustion of administrative remedies

Before bringing a tort claim against the United States under the Federal Tort Claims Act, a claimant must first present the claim to the responsible federal agency. The claimant must then receive a denial or wait six months without a response before filing suit in federal district court.

Askar had submitted her claim to the proper agency, but she filed this lawsuit one day later. She had not received a response and had not waited six months. The court therefore held that she had not exhausted the required administrative remedy and that the court lacked subject-matter jurisdiction over her tort claims.

Amendment and disposition

The court found good cause to allow Askar to amend her complaint to add constitutional claims. It held, however, that amendment could not cure the jurisdictional defect in her tort claims because the original filing date controls the exhaustion analysis. The court stated that Askar’s method for reviving her Federal Tort Claims Act claims would be to obtain a voluntary dismissal and refile the case after satisfying the exhaustion requirement. The opinion also states that such a dismissal would be without prejudice. Alternatively, Askar could give up her Federal Tort Claims Act claims and amend the complaint to assert only her constitutional cause of action.

The order: (1) substituted the United States for John Doe 1 and John Doe 2; (2) dismissed Hennepin County, Hennepin County Sheriff’s Office, Ramsey County, and Ramsey County Sheriff’s Office; (3) granted Askar leave to amend her complaint to add constitutional claims; and (4) granted without prejudice the motion to dismiss Askar’s tort claims.