The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BARRET BROWN, )
)
Plaintiff, ) CIVIL ACTION
)
v. ) No. 25-2222-KHV
)
UNITED STATES OF AMERICA, )
)
)
Defendant. )
____________________________________________)
MEMORANDUM AND ORDER
On March 28, 2025, Barret Brown filed a petition in the District Court of Leavenworth
County, Kansas against Dr. Brenda Benson. Plaintiff alleges that Dr. Benson defamed his
character and name by making false statements to his employer which resulted in his employer
revoking his security clearance and placing him on indefinite suspension, causing him to lose over
$100,000 in wages. See Petition (Doc. #1-1) filed April 24, 2025 at 6. Because the Acting United
States Attorney for the District of Kansas certified that Dr. Benson was acting within the scope of
her employment as a federal employee, the United States filed a notice substituting the United
States as the defendant in this matter, pursuant to the Federal Employees Liability Reform and
Tort Compensation Act of 1988 (“FTCA”), 28 U.S.C. § 2679.1 Notice Of Substitution Of The
1 Under 28 U.S.C. § 2679, commonly referred to as the Westfall Act, federal
employees are absolutely immune from state-law tort claims that arise out of acts they undertake
in the course of their official duties. Hockenberry v. United States, 42 F.4th 1164, 1170 (10th Cir.
2022). The Attorney General may certify that the employee was acting within the scope of her
employment, and the government will be substituted as the defendant. Id. This scope-of-
employment certification is subject to de novo review by the district court, and it is plaintiff’s
burden to rebut the certification with specific facts. Id.
In his response, plaintiff argues that Dr. Benson was not acting in the scope of her
(continued. . .)
United States (Doc. #6) filed April 24, 2025. On April 24, 2025, the United States removed the
case to the United States District Court for the District of Kansas pursuant to 28 U.S.C. § 1442 and
District of Kansas Local Rule 81.1. Notice Of Removal (Doc. #1). This matter is before the Court
on defendant’s Motion To Dismiss (Doc. #7) filed April 24, 2025. For reasons explained below,
the Court sustains defendant’s motion.
Legal Standard
Defendant seeks to dismiss plaintiff’s complaint for lack of subject matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Federal courts are courts of limited jurisdiction. Marcus v. Kan. Dep’t of Revenue, 170
F.3d 1305, 1309 (10th Cir. 1999). Therefore, the law imposes a presumption against jurisdiction.
Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). The Court may exercise
jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580
(10th Cir. 1994), and must dismiss a claim if it becomes apparent at any stage of the proceedings
that it lacks jurisdiction, Scheideman v. Shawnee Cnty. Bd. Of Cnty. Comm’rs, 895 F. Supp. 279,
280 (D. Kan. 1995) (citing Basso, 495 F.2d at 909); Fed. R. Civ. P. 12(h)(3). Plaintiff bears the
1 (. . .continued)
employment because “no doctor took an oath to falsify documents and write false statements…”
Plaintiff’s Response To Defendant’s Motion To Dismiss (Doc. #10) filed May 14, 2025 at 2.
“Scope of employment is defined by the respondeat superior law of the state where the incident
occurred.” Hockenberry, 42 F.4th at 1170. Under Kansas law, an employee acts “within the scope
of his or her employment when performing services for which he or she has been employed or
when doing anything which is reasonably incidental to the employment.” Farmers Bank & Trust
v. Homestead Cmty. Dev., 58 Kan. App. 2d 877, 900, 476 P.3d 1, 18, (2020) (quoting Williams v.
Community Drive-In Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296, 1300 (1974). Defendant
Health Agency at the Munson Army Center employed Dr. Benson as a psychiatrist, where she
received a request to perform a psychological evaluation related to plaintiff’s eligibility for access
to classified information. Though plaintiff disagrees with Dr. Benson’s evaluation, he has not
alleged any facts which suggest that she was not acting within the scope of her employment. The
United States is therefore the proper defendant.
burden of showing that jurisdiction is proper, see Scheideman, 895 F. Supp. at 280, and must
demonstrate that the case should not be dismissed, see Jensen v. Johnson Cnty. Youth Baseball
League, 838 F. Supp. 1437, 1439–40 (D. Kan. 1993). Conclusory allegations of jurisdiction are
not enough. United States v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.
1999).
Rule 12(b)(1) motions generally take the form of facial attacks on the complaint or factual
attacks on the accuracy of its allegations. Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022).
A facial attack assumes that the allegations in the complaint are true and argues that they fail to
establish jurisdiction. Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020). A
factual attack goes beyond the allegations in the complaint and adduces evidence to contest
jurisdiction. Id.
Factual Background
Plaintiff’s petition alleges as follows:
Dr. Brenda Benson “defamed [plaintiff’s] character and name by making false statements
to [his] employer that resulted in [his] security clearance being revoked which resulted in [plaintiff]
being placed on Indefinite Suspension resulting in lost wages over $100,000. Her defamation was
egregious.” Petition (Doc. #1-1) at 6.
Analysis
Defendant argues that the Court should dismiss plaintiff’s petition in its entirety because
(1) sovereign immunity precludes claims for defamation against the United States and (2) even if
sovereign immunity did not preclude defamation claims, plaintiff has not alleged that he exhausted
administrative remedies.
“It is well settled that the United States, as sovereign, is immune from suit except as it
consents to be sued and that the terms of its consent to be sued in any court define the court’s
jurisdiction to entertain the action.” Three-M Enters., Inc. v. United States, 548 F.2d 293, 294
(10th Cir. 1977). The United States consented to be sued for torts in the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §1346(b), and the FTCA provides “the exclusive remedy for tort actions
against the federal government, its agencies, and employees.” Wexler v. Merit Sys. Prot. Bd., 986
F.2d 1432 (10th Cir. 1993).
Under 28 U.S.C. § 2680(h), the United States’ waiver of sovereign immunity under the
FTCA does not apply to any claim arising out of libel or slander. Libel and slander “are the
equivalent of defamation” and therefore “are also excepted from the FTCA waiver of sovereign
immunity.” Cooper v. Am. Auto. Ins. Co., 978 F.2d 602, 613 (10th Cir. 1992).2
Thus, the Court lacks jurisdiction over plaintiff’s defamation claim. Accordingly, the
Court sustains defendant’s motion to dismiss.
IT IS THEREFORE ORDERED that defendant’s Motion To Dismiss (Doc. #7) filed
April 24, 2025 is SUSTAINED
Dated this 10th day of June, 2025 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
2 Even if sovereign immunity did not bar plaintiff’s defamation claim outright, the
FTCA requires plaintiff to present an administrative tort claim to the appropriate federal agency—
and the agency must deny the claim—before plaintiff can bring suit. Hart v. Dep’t of Lab. ex rel.
U.S., 116 F.3d 1338, 1339 (10th Cir. 1997). Plaintiff alleges that he filed a claim with the Merit
System Protection Board (“MSPB”) for placing him on indefinite suspension. A claim before the
MSPB, however, is not an administrative tort claim, and the MSPB is not the appropriate federal
agency to seek relief for a tort claim. Thus, even if defamation claims were not excluded from the
FTCA’s limited waiver of sovereign immunity—which they undisputably are—the Court still
lacks subject matter jurisdiction over plaintiff’s defamation claim because he has failed to allege
that he presented an administrative claim to the appropriate federal agency and that the agency
denied his claim, as required by 28 U.S.C. § 2675.