15‐3429 (L)

Fountain v. Karim

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2015

4 (Argued:  June 6, 2016 Decided:  September 23, 2016)

5 Docket Nos. 15‐3429, 15‐3529

6

7 CORY R. FOUNTAIN,

8 Plaintiff‐Appellant,

9 v.

10 ANWAR M. KARIM,

11 Defendant‐Cross Claimant‐Consolidated Plaintiff‐Appellee,

12 v.

13 UNITED STATES OF AMERICA, Consolidated Cross Defendant‐Appellee, UNITED STATES

14 DEPARTMENT OF AGRICULTURE, Cross Defendant‐Appellee, TOM VILSACK, as

Secretary of U.S. Department of Agriculture, Consolidated Defendant.

* 15

16

Before: SACK and LYNCH, Circuit Judges, and MURTHA, District Judge.

** 17

18 A federal government employee borrowed a government‐owned motor

19 vehicle at the end of his workday without first obtaining explicit permission to

20 do so.  While driving it to the hotel in which he resided while on assignment to

21 an office some distance from his home, he was involved in a traffic accident that

                                                            

* The Clerk of Court is respectfully directed to amend the official caption in this case to

conform with the caption above.

** Hon. J. Garvan Murtha, of the United States District Court for the District of

Vermont, sitting by designation.
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Fountain v. Karim

2

1 seriously injured the plaintiff.  The plaintiff then brought suit for damages

2 against the employee and the government under the Federal Tort Claims Act, 28

3 U.S.C. §§ 1346(b), 2671‐80, and New York law.  The district court dismissed all

4 claims against the government for lack of subject matter jurisdiction under

5 Federal Rule of Civil Procedure 12(b)(1), and declined to exercise supplemental

6 jurisdiction over the remaining state‐law claims against the employee, after

7 finding that the employee was not acting within the scope of his employment at

8 the time of the accident.  We conclude that although such a finding would

9 warrant dismissal in an action under the Act, dismissal was premature here in

10 light of an unresolved factual dispute over whether the employee used the

11 vehicle with implied permission.  We therefore vacate and remand for further

12 proceedings.

13 VACATED and REMANDED.  

14 ROBERT BRUSCHINI, Martin, Harding &

15 Mazzotti, LLP, Albany, NY, for Plaintiff‐

16 Appellant.

17 JAMES T. TOWNE, JR. (Susan F. Bartkowski &

18 Christopher W. Rust, on the briefs), Towne,

19 Ryan & Partners, P.C., Albany, NY, for

20 Defendant‐Cross Claimant‐Consolidated

21 Plaintiff‐Appellee.

22 KAREN FOLSTER LESPERANCE, Assistant

23 United States Attorney, of Counsel, for
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Fountain v. Karim

3

1 Richard S. Hartunian, United States

2 Attorney for the Northern District of New

3 York, Albany, NY, for Consolidated Cross

4 Defendant‐Appellee, Cross Defendant‐Appellee,

5 and Consolidated Defendant.

6 SACK, Circuit Judge:

7 At all relevant times, Anwar M. Karim was a conservationist with the

8 United States Department of Agriculture (ʺUSDAʺ).  One night in August 2010,

9 he decided to drive a government vehicle from the office to which he had been

10 temporarily assigned back to the local hotel at which he was staying and where

11 he planned to park the vehicle overnight ahead of a business trip the following

12 morning.  He submitted a request for permission to his superior to do so, but left

13 in the vehicle before he obtained a response.  He apparently expected to receive

14 retroactive approval of his request the following day.  While en route to his hotel,

15 though, his vehicle collided with that of the plaintiff, Cory R. Fountain, causing

16 Fountain serious bodily injuries.  Karim has admitted that his negligence caused

17 the accident.   

18 Fountain brought suit against Karim and his employer, the government,  

19 and the U.S. Secretary of Agriculture, asserting claims under the Federal Tort

20 Claims Act (ʺFTCAʺ), 28 U.S.C. §§ 1346(b), 2671‐80; New Yorkʹs permissive‐use

21 statute, N.Y. Veh. & Traf. Law § 388 (ʺVTL § 388ʺ); and New Yorkʹs common law
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Fountain v. Karim

4

1 of negligence.  The district court dismissed all claims against the government for

2 lack of subject matter jurisdiction, and declined to exercise supplemental

3 jurisdiction over the remaining state‐law claims against Karim, after finding that

4 he was not acting within the scope of his employment at the time of the accident.  

5 We conclude that, although such a finding properly made would warrant

6 dismissal in an FTCA action, dismissal in this case was premature in light of an

7 unresolved factual dispute over whether Karim used the vehicle with his

8 employerʹs implied permission.  Accordingly, we vacate the district courtʹs

9 decision and remand for an evidentiary hearing and further proceedings.

10 BACKGROUND

11 Karimʹs permanent USDA duty station is in Rochester, New York, the city

12 in which he lives with his family.  In August 2010, Karim was assigned to a

13 temporary detail at the USDA office in Walton, New York.  Because Walton is

about 175 miles and several hours away by car from Karimʹs home in Rochester,1 14

15 the USDA provided Karim with housing at a Holiday Inn in nearby Oneonta,

                                                            

1   Where not otherwise attributed, distances and geographic locations noted in this

opinion were calculated using Google Maps, https://www.google.com/maps (last

visited Sept. 7, 2016).  They are employed for the purpose of providing some geographic

orientation for the reader.  We do not, of course, treat them as findings of fact.
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Fountain v. Karim

5

New York.2 1   His practice was to reside at the hotel from Monday through Friday,

2 returning to Rochester for the weekend.   

3 Karimʹs life while assigned to the Walton detail thus required a substantial

4 amount of driving—between Rochester and Walton, between the Oneonta

5 Holiday Inn and the Walton USDA office, and between the Walton USDA office

6 and other USDA offices or locations in the field.  While commuting between the

7 Rochester and Walton areas and between the Holiday Inn and the Walton office,

8 Karim was generally expected to drive—and usually did drive—his privately

9 owned automobile.  During working hours, however, the USDA gave Karim

10 access to a government‐owned 2009 Ford Explorer.  This pattern of vehicle use

11 followed the general policy and practice at the USDA at the time.   

12 This is not to say, however, that Karim was forbidden from ever using the

13 government‐owned vehicle outside of normal working hours.  Pursuant to an

14 official USDA policy, he was permitted to take the vehicle home overnight so

15 long as he first obtained his supervisorʹs signature on Form AD‐728, which is

16 titled ʺRequest and Authorization For Home to Work Transportation.ʺ  And in a

17 departure from that policy, Karimʹs supervisor in Rochester, Bruce Hopkins, had

                                                            

2  Oneonta is some twenty‐five miles north of Walton by road.
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Fountain v. Karim

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1 previously permitted him on several occasions to use a government‐owned

2 vehicle overnight without first obtaining a signature on Form AD‐728.  Karim

3 claims that this happened at least five times over the course of two or three years;

4 that he received retroactive written approval from Hopkins in each instance; and

5 that he sometimes, but not always, obtained prior oral approval from Hopkins to

6 borrow a vehicle.  Hopkins, for his part, asserts that he would approve Karimʹs

7 overnight use of the vehicle without a final signed Form AD‐728 only if Karim

8 obtained his prior oral approval.  Three other USDA employees in positions

9 similar to Karimʹs who were also supervised by Hopkins stated during internal

10 USDA interviews that they knew they were supposed to obtain written

11 authorization before using a government‐owned vehicle, and that in no case

12 could they or did they actually use a government‐owned vehicle without first

13 obtaining at least oral authorization.  There is no evidence in the record,

14 however, that Karim or any other USDA employee was ever denied a request to

15 take a government‐owned vehicle overnight.

16 Karim was scheduled to make a trip to the USDA field office in Highland,

17 New York, which is about 100 miles to the southeast of Walton, on Wednesday,

18 September 1, 2010.  At the end of the workday on Tuesday, August 31, 2010, the
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Fountain v. Karim

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1 day before his scheduled trip, Karim decided to take the government‐owned

2 vehicle back to the Holiday Inn.  At 5:57 p.m., he sent a Form AD‐728, requesting

3 permission to take the vehicle.  His supervisor in the Walton office, Ashton

4 Boozer, had not responded to the request by the time Karim left in the

5 government‐owned vehicle about three minutes later.  Karim then collided

6 (negligently, he conceded) with Fountainʹs vehicle while en route to the Holiday

7 Inn.  According to Karim, shortly after the accident, he called Boozer, who told

8 Karim that he had received the Form AD‐728 before he left the office but had not

9 yet printed or signed it.  Boozer denies that the phone call occurred.   

10 And then came the paperwork.  Following the accident, Boozer completed

11 a Form SF‐91 ʺMotor Vehicle Accident Reportʺ on which he stated that Karim

12 was not authorized to take the government‐owned vehicle overnight, was not

13 acting within the scope of his duties as an employee when the accident occurred,

14 and would not have been given permission to take the government‐owned

15 vehicle because his request was ʺnot advantageousʺ to the government.  See Joint

16 Appendix (ʺJ.A.ʺ) 508‐11.  Karim, on the other hand, submitted Optional Form

17 26, ʺData Bearing Upon Scope of Employment of Motor Vehicle Operator,ʺ on

18 which he checked a box indicating that he had been given written permission to
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Fountain v. Karim

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1 take the government‐owned vehicle, and wrote, ʺsubmitted request AD‐728 prior

2 to leaving office via email.ʺ  J.A. 37, 512.  Boozer signed this form and verified

3 that the information contained in it was true and correct to the best of his

4 knowledge and belief.  Id.  In later deposition testimony and in a written

5 declaration, however, he stated that he had overlooked that the ʺwrittenʺ box

6 was checked in the authorization section, and that he had not intended to certify

7 that Karim had authorization to take the government‐owned vehicle overnight.   

8 Fountain brought suit against Karim and the government in the United

9 States District Court for the Northern District of New York, asserting claims

10 under the FTCA and New York law, specifically VTL § 388 and the common law

11 of negligence.  Karim, in turn, asked the government to defend and indemnify

12 him.  Following an internal accident investigation, the government denied his

13 request.  Karim then cross‐claimed in the lead case and filed a separate

14 indemnification action against the government and Thomas Vilsack as Secretary

of the USDA.3 15   The district court consolidated the two actions for purposes of

16 dispositive motion practice.  

                                                            

3 The FTCA provides that upon certification by the Attorney General that an employee

was acting within the scope of his office or employment when he committed the

allegedly negligent act, the United States shall be substituted as the defendant in place
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Fountain v. Karim

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1 After completion of discovery, the government moved for summary

judgment or dismissal of Fountainʹs complaint 2 4 on the ground that Karim was

3 acting outside the scope of his employment at the time of the accident.  Karim

4 moved for a declaratory judgment ordering the United States to defend and

5 indemnify him, and Fountain cross‐moved for summary judgment in both

6 actions.  

7 The district court (Norman A. Mordue, Judge) concluded that Karim was

8 not acting within the scope of his employment at the time of the accident on the

9 ground that the USDA could not have exercised control over Karim because it

10 had not granted him explicit permission to use the government‐owned vehicle

11 overnight.  The court therefore dismissed all claims against the government and

12 Secretary Vilsack in Fountainʹs tort action for lack of subject‐matter jurisdiction

                                                                                                                                                                                               

of the employee, and the FTCA shall be the exclusive remedy for any action or claim

arising out of the negligent act.  28 U.S.C. § 2679(b)(1), (d)(1).  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 a federal district court for a certification

that he was acting within the scope of his employment, 28 U.S.C. § 2679(d)(3), as Karim

did in this case.

4 The governmentʹs notice of motion states that it sought a ʺ[s]ummary [j]udgment

[d]ismissing [c]omplaint,ʺ J.A. 640, and the governmentʹs memorandum of law in

support of its motion states that it sought a ʺsummary judgment, pursuant to Fed. R.

Civ. P. 56, on the ground that Karim was acting outside the scope of employment at the

time of the accident,ʺ 13‐cv‐255 N.D.N.Y. Dkt. No. 75‐1 at 2.
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Fountain v. Karim

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under Federal Rule of Civil Procedure 12(b)(1).5 1   The court then dismissed

Karimʹs indemnification action for lack of subject‐matter jurisdiction, 2 6 denied

3 Karimʹs motion for a declaratory judgment in both actions, denied Fountainʹs

motion for partial summary judgment in both actions,7 4 and declined to exercise

5 supplemental jurisdiction over Fountainʹs state‐law claims against Karim,

6 dismissing them without prejudice.  

7 Fountain and Karim now challenge the district courtʹs dismissal on two

8 grounds.  First, they contend that the courtʹs finding regarding the scope of

9 employment was premature because it overlooked a genuine dispute of material

10 fact as to whether Karim used the vehicle with his employerʹs permission.  

11 Second, Fountain and Karim argue that the court erroneously treated as

12 dispositive its finding that Karim operated the vehicle outside the scope of his

                                                            

5 Although the government moved for summary judgment dismissing the complaint

in Karimʹs indemnification action, not Fountainʹs tort action, a district court can dismiss

an action for lack of subject‐matter jurisdiction under Rule 12(b)(1) sua sponte.  See Fed.

R. Civ. P. 12(h)(3); Digitel, Inc. v. MCI Worldcom, Inc., 239 F.3d 187, 190 (2d Cir. 2001).

6 The district court also purported to dismiss the indemnification action ʺin its entirety

on the merits.ʺ  Special Appendix (ʺS.A.ʺ) 22‐23.  However, the district court had

already dismissed the action ʺfor lack of subject‐matter jurisdiction,ʺ S.A. 22, which

would seem to have precluded the district court from effecting a merits dismissal.

7 Although Fountain filed a cross‐motion for partial summary judgment in both

actions, S.A. 3, the district courtʹs opinion explicitly denied only the cross‐motion in

Fountainʹs tort action, see S.A. 23.  Nevertheless, the judgment states that Fountainʹs

cross‐motion was denied without differentiating between the two actions, S.A. 24,

which makes clear that it was in fact denied in both actions.
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Fountain v. Karim

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1 employment.  In their view, the government might nonetheless be held liable for

2 Karimʹs negligent driving under the FTCA and VTL § 388.  

3 DISCUSSION

4 I.  Standard of Review

5 On appeal from a judgment dismissing an FTCA suit for lack of subject‐

6 matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we review the  

7 district courtʹs factual findings for clear error and legal conclusions de novo.  

8 Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).  ʺA plaintiff asserting

9 subject matter jurisdiction has the burden of proving by a preponderance of the

10 evidence that it exists.ʺ  Id.  ʺIn resolving a motion to dismiss under Rule 12(b)(1),

11 the district court must take all uncontroverted facts in the complaint (or petition)

12 as true, and draw all reasonable inferences in favor of the party asserting

13 jurisdiction.ʺ  Tandon v. Captainʹs Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243

14 (2d Cir. 2014).  ʺ[T]he court may resolve the disputed jurisdictional fact issues by

15 referring to evidence outside of the pleadings, such as affidavits, and if

16 necessary, hold an evidentiary hearing.ʺ  Zappia Middle E. Constr. Co. v. Emirate of

17 Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
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Fountain v. Karim

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1 We review legal determinations in declaratory judgment actions de novo.  

2 Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 63‐64 &

3 n.5 (2d Cir. 2012).  ʺWe review a district courtʹs decision to decline supplemental

4 jurisdiction over pendent state law claims for abuse of discretion.ʺ  WWBITV, Inc.

5 v. Vill. of Rouses Point, 589 F.3d 46, 49 (2d Cir. 2009).

6 II.  Analysis

7 It seems clear from the record in the district court that, on the date of the

8 accident, no official or other person at the USDA gave Karim explicit

9 permission—either in writing or orally—to borrow the government‐owned Ford

10 Explorer.  But the fact that Karim lacked explicit permission does not end the  

11 inquiry; if it did, the government could escape liability for its employeesʹ torts by

12 failing to complete necessary paperwork or by miscommunicating messages to

13 its employees.  We must therefore inquire as to whether Karim had implied

14 permission.

15 The material in the record does not establish as a matter of law whether

16 Karim had such permission.  Supporting Karimʹs side of the argument, there is

17 (1) the evidence of his past practice at the Rochester duty station of taking a

18 government‐owned vehicle overnight and receiving retroactive approval from
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Fountain v. Karim

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1 his supervisor there.  Karim argues that he followed this practice on the night of

2 the accident.  And there is (2) the signature of Boozer, his Walton‐office

3 supervisor, on Karimʹs Optional Form 26, which could be interpreted as an

4 endorsement of Karimʹs claim on that form that he had authorization to use the

5 vehicle because he submitted a Form AD‐728 prior to leaving the office.   

6 Supporting the governmentʹs side of the argument, there is (1) the

7 governmentʹs written policy requiring prior written approval before taking a

8 government‐owned vehicle overnight; (2) a statement by Hopkins, the Rochester‐

9 office supervisor, and statements from other USDA employees that, at a

10 minimum, prior oral approval from a supervisor was required before a

11 government‐owned vehicle could be taken overnight; and (3) Boozerʹs Form SF‐

12 91, on which he wrote that Karim lacked authorization to take the government‐

13 owned vehicle overnight and would not have been given permission if Karim

14 had asked ahead of time.

15 This dispute over the absence or presence of implicit permission bears

16 directly on the scope‐of‐employment analysis.  The FTCA waives the

17 governmentʹs sovereign immunity in actions for money damages arising out of

18 injury, loss of property, personal injury or death caused by the ʺnegligent or
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1 wrongfulʺ act or omission of a government employee ʺwhile acting within the

2 scope of his office or employment, under circumstances where the United States,

3 if a private person, would be liable to the claimant in accordance with the law of

4 the place where the act or omission occurred.ʺ  28 U.S.C. § 1346(b)(1).  We

5 interpret the FTCAʹs ʺscope of employmentʺ requirement in accordance with the

6 respondeat superior law of the jurisdiction where the tort occurred, see Hamm v.

7 United States, 483 F.3d 135, 138 (2d Cir. 2007)—here, New York.  Under New

8 York law, an employee acts within the scope of his employment when (1) ʺʹthe

9 employer is, or could be, exercising some control, directly or indirectly, over the

10 employee’s activities,ʹʺ and (2) ʺʹ[the employee] is doing something in

11 furtherance of the duties he owes to his employer.ʹʺ  Id. (quoting Lundberg v.

12 State, 25 N.Y.2d 467, 470, 255 N.E.2d 177, 179, 306 N.Y.S.2d 947, 950 (1969)).  

13 Whether Karim had implied permission to take the government‐owned vehicle

14 on the night of the accident could influence the outcome of either or both prongs

of the scope‐of‐employment test.8 15

                                                            

8 This is not to say that implied permission is by itself necessary or sufficient to

support a finding that Karim acted within the scope of his employment when he drove

to the Holiday Inn.  Nonetheless, the district court must resolve this question because

the presence or absence of implied permission is a significant factor in determining
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1 A.  Control

2 First, the absence or presence of implied permission could shed light on

3 whether Karimʹs employer exercised control over his use of the vehicle.  Without

4 such permission, Karim would not have been acting within the scope of his

5 employment at the time of the accident.  Under New York law, it is ʺclearʺ that,

6 ʺas a general rule, an employee driving to and from work is not acting in the

7 scope of his employment, because although such activity is work motivated, the

8 element of control is lacking.ʺ  Id. (brackets and internal quotation marks

9 omitted) (citing Lundberg, 25 N.Y.2d at 471, 255 N.E.2d at 179, 306 N.Y.S.2d at

10 950).

11 Hamm and Lundberg are the leading judicial authority for us in this regard.  

12 Each involved a government employee who caused an automobile accident

13 while driving from his residence to a place of work, and in each case, the court

14 concluded that the government employee in question was acting outside the

15 scope of his employment at the time of the accident.  In Hamm, we explained that

                                                                                                                                                                                               

whether Karim acted under government control and in furtherance of his duties to the

government.
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1 a military employee was acting outside the scope of his employment when he

2 caused a car accident because

3 [t]he military [employer] did not require [the employee] to drive

4 between these locations; he had voluntarily chosen to drive.    Nor

5 did the military instruct [the employee] on the route to take between

6 [his home] and [the destination] or implicitly direct the route by

7 providing him with a limited amount of time to make the journey.

8 Id. (internal quotation marks and citation omitted).  The employeeʹs drive to the

9 destination was therefore ʺnot based on the militaryʹs requirements or orders,ʺ 

10 but rather ʺdone purely on his own time in order to commute to his place of

11 employment.ʺ  Id.  Similarly, in Lundberg, the New York Court of Appeals held

12 that a New York State employee was not acting within the scope of his

13 employment when he caused an automobile accident while driving to a work site

14 eighty miles from his home at the beginning of his work week:  At the time of the

15 accident, he was commuting to work and thus was ʺengaged in an independent

16 personal activity over which the State had no control.ʺ  25 N.Y.2d at 471, 255

17 N.E.2d at 179, 306 N.Y.S.2d at 951.

18 In each case, though, there was no question but that the employee was

19 driving his own car from his home to a designated workplace in a manner not

20 controlled by his employer, and the case was decided on the essentially
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1 undisputed lack of such control.  Here, by contrast, the element of control is very

2 much in dispute.  To be sure, no evidence reflects that the time Karim spent

3 driving from Walton to the Holiday Inn was considered to be on the clock or

4 otherwise reimbursable; indeed, the evidence in the record is to the contrary

5 inasmuch as Karim was neither paid nor reimbursed on a per mile basis for time

6 spent commuting to work from his hotel and back.  J.A. 164‐65, 388, 839‐41.  But

7 unlike the employees in Hamm and Lundberg, Karim was not driving his own

8 vehicle at the time of the accident; he was driving one owned by the government.  

9 And it appears that the government imposes restrictions on employees who

10 drive its vehicles.  In the AD‐728 form that Karim submitted to his supervisor

11 Boozer prior to driving the government‐owned vehicle on the night of the

12 accident, for example, Karim certified:

13 I will not use this vehicle at any time for my personal convenience or

14 permit others to do so.  When parked at or near residence, vehicle

15 will be kept locked and every precaution taken to guard it against

16 damage or theft, etc.  I understand that use of this vehicle for other

17 than official purposes makes me subject to suspension without pay

18 for a period of not less than one month or to removal summarily

19 from office . . . .
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1 J.A. 394.  If Karim operated the vehicle with implied permission, he may have

2 done so subject to those or similar restrictions, which could in turn demonstrate a

3 measure of control by his employer.

4 Moreover, unlike the employees in Hamm and Lundberg, who were each

5 simply driving from his home to his place of work, Karim was at least in one

6 sense driving from one place of work (the Walton office) to another (the

7 Highland office), with a stop in between (the Oneonta Holiday Inn).  That Karim

8 was at least arguably driving from one place of work to another could add

9 support to a contention that the drive was controlled to a significant extent by his

10 employer, the government.  Indeed, in Lundberg, the New York Court of Appeals

11 recognized an exception to the general rule that an employee is considered to be

12 outside the scope of employment while commuting:

13 [A]n employee who uses his car in furtherance of his work is acting

14 in the scope of his employment while driving home from his last

15 business appointment, since such a person is working, and is under

16 his employerʹs control, from the time he leaves the house in the

17 morning until he returns at night.

18 25 N.Y.2d at 471, 255 N.E.2d at 179, 306 N.Y.S.2d at 950 (citations omitted).  This

19 exception was applied in the pre‐Lundberg case of a traveling insurance salesman

20 and premium collector who caused a vehicle accident while traveling to his
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Fountain v. Karim

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1 companyʹs office for a meeting at the end of his workday, Cooke v. Drigant, 289

2 N.Y. 313, 317, 45 N.E.2d 815, 817 (1942), and in the pre‐Lundberg case of a motor

3 repairman who was returning home in his own vehicle following a day of repair

4 appointments but was still on call at the time he caused the accident in question,

5 see Shauntz v. Schwegler Bros., 259 A.D. 446, 447‐50, 20 N.Y.S.2d 198, 198‐201 (4th

6 Depʹt 1940) (collecting cases).  Karim used a vehicle in furtherance of his work in

7 order to, among other things, visit other USDA offices and to make field visits.  If

8 Karim had implied permission to use the government‐owned vehicle for the

9 purpose of facilitating his trip to the Highland office, then like the employees in

10 Cooke and Shauntz, his trip from the Walton office to his hotel could be said to be

11 work‐related, and not solely a personal commute.   

12 In order to decide whether Karimʹs employer exerted control over his use

13 of the vehicle, the district court thus must first resolve the factual dispute

14 concerning the implied permission issue.

15 B.  In Furtherance of Duties Owed

16 If the ʺcontrolʺ issue were decided against the government, the district

17 court would then be required to address the second prong of the scope‐of‐

18 employment test under New York law: whether Karim was acting ʺin
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1 furtherance ofʺ the duties he owed to the government, as his employer, at the

2 time of the accident.  That question cannot be resolved on the facts in the record

3 before us.  Accordingly, the district court should not have dismissed these

4 actions for lack of subject‐matter jurisdiction under Rule 12(b)(1) without first

5 holding an evidentiary hearing.

6 Karim and Fountain both argue (it being in the interest of both, of course,

7 that the government bear the liability for Fountainʹs injuries) that Karimʹs taking

8 of the government‐owned vehicle on the date of the accident was in furtherance

9 of his duties to the USDA because he was scheduled to travel to the Highland

10 USDA office the following morning, and he drove the vehicle to the hotel to

11 facilitate that trip.  In response, the government argues that Karim drove the

12 vehicle back to the hotel not for any business reason, but in order to take a

13 milder, less steep, and less winding route to the Highland office the next day.  

14 According to the government, Karimʹs use of the government‐owned vehicle was

15 purely for his personal convenience, and could not have been advantageous to

16 the government, because it ʺwould have resulted in the [government‐owned

17 vehicle] being stored offsite unnecessarily . . . and driven 97.2 miles more than if

18 Karim had simply picked [the vehicle] up at the Walton office on his way to
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1 Highland that morning.ʺ  Appelleeʹs Br. 21.  Thus, in the governmentʹs view, the

2 issue boils down to a simple question of geography:  Was Karimʹs planned route

3 shorter and therefore less costly than the route he would have taken if he had to

pick up the government‐owned vehicle the following morning?9 4

5 But the question whether Karim was acting ʺin furtherance of the duties he

6 owes to his employerʺ is more fact‐intensive than the government suggests.  The

7 New York Court of Appeals has explained that ʺamong the factors to be weighed

8 areʺ:

9 the time, place and occasion for the act; the history of the

10 relationship between employer and employee as spelled out in

11 actual practice; whether the act is one commonly done by such an

12 employee; the extent of departure from normal methods of

13 performance; and whether the specific act was one that the employer

14 could reasonably have anticipated.

15 Riviello v. Waldron, 47 N.Y.2d 297, 303, 391 N.E.2d 1278, 418 N.Y.S.2d 300 (1979)

16 (citation omitted).  The question whether an employee was acting ʺin furtherance

17 ofʺ the employerʹs interests may therefore turn on any number of factors, not a

                                                            

9  Our perusal of a map of the area suggests that a direct route between Oneonta, in or

near where Karimʹs hotel was located, and the USDA office in Highland, where Karim

had his first appointment on the following day, did not pass through Walton and that a

stop in Walton to change vehicles would therefore have added unnecessary time to

Karimʹs trip.  Whether that is so (and if so, whether that matters) is of course something

to be decided by the district court in the first instance.  
15‐3429; 15‐3529

Fountain v. Karim

22

1 single consideration such as geography or fuel savings.  And we can see several

2 potential bases for a conclusion that, by taking the government‐owned vehicle

3 overnight, Karim was acting in furtherance of his duties to the USDA.  For

4 instance, taking the vehicle may have allowed Karim to maximize his time at the

Highland office the following day.10 5   Or, Karimʹs route may have in fact been

6 safer and posed less of a risk of an accident involving the vehicle.  Thus, on the

7 facts of this case, if Karim had implied permission to take the government‐owned

8 vehicle on the date of the accident, this might in turn imply that his taking of the

9 vehicle was to the USDAʹs benefit, and thus in furtherance of his duties to the

10 USDA.

11 Thus, if Karimʹs fateful drive is found as a matter of fact to have fulfilled

12 the first prong of the scope of employment test—the government was or could

13 have been ʺexercising some control, directly or indirectly, over [Karimʹs]

14 activities,ʺ Hamm, 483 F.3d at 138 (quoting Lundberg, 25 N.Y.2d at 470, 255 N.E.2d

15 at 179, 306 N.Y.S.2d at 950)—then there is a reasonable possibility that he could

                                                            

10 This accords with one of the grounds for home‐to‐work transportation listed on

Form AD‐728:  ʺCompelling operation considerations make the provision of home‐to‐

work transportation essential to the conduct of official business or would substantially

increase the agencyʹs efficiency or economy.ʺ  See J.A. 394.   Indeed, the Form AD‐728

that Karim submitted reflects that Karim checked a box indicating that this ground was

a proposed basis for receiving official permission to take the vehicle overnight.  See id.
15‐3429; 15‐3529

Fountain v. Karim

23

1 also succeed on the second prong by demonstrating that he was ʺdoing

2 something in furtherance of the duties he owe[d] to his employer,ʺ id.  We do not

3 see how the district court, on the record before it, could have conclusively

4 decided whether either of these prongs was or was not satisfied so as to justify

5 dismissing this action as it did.

6 In sum, we conclude that in light of the genuine dispute among the parties,

7 the district court should not have dismissed these cases for lack of subject‐matter

8 jurisdiction without first conducting an evidentiary hearing on whether Karim

9 had implied permission to take the government‐owned vehicle.  We therefore

10 vacate the district courtʹs decision as to Fountainʹs FTCA claim and Karimʹs

11 declaratory‐judgment action against the government.  Having revived the federal

12 claims, at least for now, we also reinstate Fountainʹs state‐law claims, as to which

13 the district court declined to exercise supplemental jurisdiction because all

14 federal claims had been dismissed.  See Rogoz v. City of Hartford, 796 F.3d 236, 251

15 (2d Cir. 2015); Velez v. Levy, 401 F.3d 75, 102 (2d Cir. 2005).  At a later stage of the

16 proceedings, it may, of course,  become appropriate for the district court to

17 determine that there are sufficient grounds to decline to exercise supplemental

18 jurisdiction over the reinstated state‐law claims.
15‐3429; 15‐3529

Fountain v. Karim

24

1 Having concluded that the district courtʹs decision must be vacated in its

2 entirety, we leave it to the district court to address in the first instance Fountainʹs

3 and Karimʹs arguments concerning VTL § 388, which it did not address in its

4 prior decision.   

5 CONCLUSION

6 For the foregoing reasons, we VACATE the district courtʹs judgment

7 dismissing this action for lack of subject‐matter jurisdiction, reinstate all claims,

8 and REMAND for further proceedings.