PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED SERVICES AUTOMOBILE

ASSOCIATION; CHARLENE COZART,

Plaintiffs-Appellants,

No. 96-1080

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-95-1114-A)

Argued: December 5, 1996

Decided: January 28, 1997

Before HALL and NIEMEYER, Circuit Judges, and DAVIS,

United States District Judge for the District of Maryland,

sitting by designation.

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Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Hall and Judge Davis joined.

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COUNSEL

ARGUED: Stephen Paul Zachary, MARTELL, DONNELLY, GRIMALDI & GALLAGHER, P.A., Washington, D.C., for Appellants.

Edward Roy Hawkens, Appellate Staff, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Frank W. Hunger, Assistant Attorney General,

Helen Fahey, United States Attorney, Robert S. Greenspan, Appellate

Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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OPINION

NIEMEYER, Circuit Judge:

This case involves an insurance company's effort to obtain reimbursement from the United States for its pre-litigation settlement of

a claim made against its insured for a tort allegedly committed within

the scope of her federal employment. Because we agree with the district court that the insurance company's failure to comply with the

requirements of the Federal Tort Claims Act deprives the court of

subject matter jurisdiction, we affirm the court's ruling dismissing the

complaint filed on the employee's behalf.

I

On Sunday, September 26, 1993, Charlene Cozart, a White House

employee, was requested to report to work to conduct a special White

House tour for visiting dignitaries, despite the fact that she never

worked previously on a Sunday. On her way from her church in Fairfax, Virginia, she collided with a Chrysler minivan driven by John T.

Niehoff. The minivan's rear door latch failed and two young Niehoff

children were thrown from the van, killing one and seriously injuring

the other. The Niehoffs subsequently expressed their intention to sue

Cozart and the Chrysler Corporation as joint tortfeasors.

Cozart's insurer, United States Automobile Association ("USAA"),

contacted the United States Department of Justice, asserting that

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et

seq., Cozart was within the scope of her employment at the time of

the accident and was, therefore, immune from suit and that the United

States should be substituted as a defendant in any future tort action

filed by the Niehoffs. Justice Department attorneys, however,

expressed informally their belief that at the time of the accident

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Cozart was going to work and, therefore, was outside the scope of her

employment. They advised USAA accordingly that the government

would, if formally requested, most likely deny the certification under

the FTCA that Cozart was acting within the scope of her employment.

USAA attorneys attempted to negotiate an agreement with the

Department of Justice for reimbursement by the United States if

Cozart settled the Niehoffs' claim, but no such agreement was

reached. Nonetheless, USAA kept the United States apprised of its

settlement negotiations with the Niehoffs.

The Niehoffs took the position that they would consider settlement

only if an offer were made before they filed a complaint. Faced with

the possibilities that the government would deny Cozart a scope-ofemployment certification under the FTCA and that an eventual court

judgment in favor of the Niehoffs would exceed Cozart's policy limits, USAA negotiated a settlement with the Niehoffs for $375,000.

While the government did not participate in the negotiations, it supplied USAA with a release form that included a release of the United

States.

After the settlement with the Niehoffs was approved by the Circuit

Court for the City of Alexandria, USAA and Cozart filed this action

against the United States under the FTCA, seeking reimbursement for

the $375,000 settlement on the ground that Cozart was acting within

the scope of her employment at the time of the accident. The United

States moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(1), asserting that the district court lacked subject

matter jurisdiction and that at the time of the accident Cozart was not

within the scope of her employment. Relying on both reasons given

by the government, the district court dismissed the complaint.1 This

appeal followed.

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1 The court explained that the FTCA made no provision for government

reimbursement of a prior settlement by a federal employee. It added that

Cozart was, in any event, acting outside the scope of her employment

under Virginia's "going to or from work" rule because she was commuting to work at the time of the accident. See Smith v. Landmark Communications, Inc., 431 S.E.2d 306, 307-08 (Va. 1993); Sentara Leigh Hosp.

v. Nichols, 414 S.E.2d 426, 427 (Va. App. 1992) (en banc).

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II

"The 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. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted).

Although the Federal Tort Claims Act "waives the immunity of the

United States[,] . . . we should not take it upon ourselves to extend

the waiver beyond that which Congress intended." Smith v. United

States, 507 U.S. 197, 203 (1993).

While the FTCA provides that in general "[t]he United States shall

be liable, . . . relating to tort claims, in the same manner and to the

same extent as a private individual under like circumstances," 28

U.S.C. § 2674, it provides specific procedures that must be followed

both by the federal employee who has been sued and by the claimant.

A federal employee who has been sued must deliver the suit papers

to his superior or other designated person who, in turn, must furnish

copies to the appropriate United States attorney, to the Attorney General, and to the head of the employee's agency. See 28 U.S.C.

§ 2679(c). If the Attorney General certifies that the employee was acting within the scope of his employment, the United States will be substituted as defendant. See 28 U.S.C. § 2679(d). If the Attorney

General refuses to certify that the employee was acting within the

scope of his employment,

the employee may at any time before trial petition the court

to find and certify that the employee was acting within the

scope of his office or employment. Upon such certification

by the court, such action or proceeding shall be deemed to

be an action or proceeding brought against the United

States.

28 U.S.C. § 2679(d)(3).

Once the United States has been substituted as defendant, the federal employee becomes immune from suit and the United States

retains the sole right to determine and follow the litigation strategy

that is in its best interest, including the assertion of all available

defenses, see 28 U.S.C. § 2674, or settlement of the case, see 28

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U.S.C. § 2677 (authorizing the Attorney General to settle any claim

cognizable under 28 U.S.C. § 1346(b), "after commencement of an

action thereon") (emphasis added); 28 U.S.C.§ 2679(e) (crossreferencing same). As the language of these provisions clearly indicates, a federal employee seeking to receive the benefit of the FTCA

must wait until suit is filed and then comply with the FTCA's requirements.

In this case, Cozart chose not to follow the specified procedures.

USAA, as Cozart's insurer, realized that if it demanded that suit be

filed, it would risk foregoing the chance of settlement with the Niehoffs and, in the event that scope-of-employment certification was

denied, exposing Cozart to liability in excess of her policy limits. The

fact, however, that the appellants were forced to choose between two

unappealing strategies cannot alter our analysis of the government's

liability. "Congress created a limited waiver of sovereign immunity

in the FTCA. This waiver permits suit only on terms and conditions

strictly prescribed by Congress. . . ." Gould v. U.S. Dept. of Health

and Human Services, 905 F.2d 738, 741 (4th Cir. 1990) (en banc),

(citations omitted). The appellants failed to follow the requirements

of 28 U.S.C. § 2679, and, in that failure, they not only bypassed the

conditions precedent to governmental liability but also denied the

United States its right to control the case. They thus converted a

potential tort claim into an indemnity claim for which the United

States has not waived its sovereign immunity. The FTCA does not

provide such a mechanism for a federal employee to transfer liability

to the United States for a claim made against the employee.2

The appellants rely on implications allegedly made in footnote 1 in

Uptagrafft v. United States, 315 F.2d 200 (4th Cir. 1963), to argue

that they are entitled to claim indemnity from the United States. Their

reliance, however, is misplaced. That footnote stands for nothing

more than the unremarkable proposition that if a person is injured by

a federal employee acting within the scope of his employment, the

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2 Had the Niehoffs chosen to take action directly against the United

States on a respondeat superior theory, they would have been obligated

to exhaust administrative remedies before filing suit, and the Attorney

General would have been authorized to settle their claim at the administrative level. See 28 U.S.C. §§ 2675, 2672.

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plaintiff's only remedy is a suit against the United States. Indeed,

elsewhere in the opinion, we noted the unavailability of just the type

of indemnity action which USAA has pursued here:

[Exoneration] refers to the right to be reimbursed by reason

of having paid that which another should be compelled to

pay; [indemnity] . . . means compensation for loss already

sustained. This right is generally based upon contract,

express or implied. No basis exists in the [FTCA] or in Virginia law . . . for a claim for exoneration and/or indemnity

such as is made in the instant case.

Id. at 203 (citations omitted).

USAA made a strategic litigation decision, perhaps the best decision in the circumstances. But the difficulty of its dilemma does not

provide us with a basis for enlarging the government's consent to be

sued. "[Courts] are not free to enlarge that consent to be sued which

the government, through Congress, has undertaken so carefully to

limit [in the FTCA]." Gould, 905 F.2d at 747. It is a fundamental

command of the Appropriations Clause, U.S. Const. art. I, § 9, cl. 7,

that only Congress has the power to define the availability of relief

against the government and that "judicial use of the equitable doctrine[s] . . . cannot grant [a claimant] a money remedy that Congress

has not authorized." Office of Personnel Management v. Richmond,

496 U.S. 414, 426 (1990). By electing to settle before Cozart was

sued, USAA transformed the Niehoffs' tort claim, over which the

government would have had control, into a federal employee's indemnity claim, the amount of which was determined by the employee.

While Congress has provided governmental consent to be sued for the

former claim, it has not for the latter.

Finding no jurisdiction, we need not reach the scope-ofemployment issue.

AFFIRMED

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