The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 26-cv-21836-BLOOM
FRAYDA LINDEMANN and SLOAN
LINDEMANN BARNETT,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
________________________________/
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant United States of America’s
(“Defendant” or “United States”) Motion to Dismiss for Lack of Subject Matter Jurisdiction, ECF
No. [6] (“Motion”). Plaintiffs Fraya Lindemann and Sloan Linemann Barnett (“Plaintiffs”) filed a
Response in Opposition, ECF No. [17], to which Defendant filed a Reply, ECF No. [19]. Plaintiffs
also sought and received leave to file a Surreply, ECF No. [22]. The Court has reviewed the
Motion, the supporting and opposing submissions, the record, the applicable law, and is otherwise
fully advised. For the reasons that follow, Defendant’s Motion is granted.
I. BACKGROUND
In this defamation action, Plaintiffs allege in the Complaint that, over 30 years ago, the
patriarch of the Linemann family, George Lindemann Sr., acquired Cambodian sculptures from
well-known and reputable art dealers. ECF No. [1-1] ¶ 2. In 2023, after the U.S. Department of
Homeland Security (“DHS”) and U.S. Attorney’s Office for the Southern District of New York
(“USAO”) concluded an investigation of a different art dealer in connection with alleged
smuggling of Cambodian sculptures, the U.S. Government told the Lindemanns that the
Cambodian government was claiming that certain sculptures had been wrongfully taken from
Columbia. Id.
In response to Cambodia’s claim, the Lindemanns voluntarily returned the sculptures, even
though they had no knowledge of or involvement in any wrongdoing in connection with the
sculptures Mr. Lindemann had lawfully acquired. Id. ¶ 3. The Lindemanns did not seek or receive
any compensation in exchange for the sculptures, nor did they seek or want any publicity for doing
so. Id.
John Paul Labbat, a DHS agent who had been involved with the Government’s
investigation, instructed the Lindemanns when and where to deliver the sculptures for their return
to Cambodia. Id. ¶ 4. Labbat identified a warehouse in upstate New York. Id. ¶ 19. After the
sculptures were delivered to the warehouse Labbat had designated, Anderson Cooper and a
television crew from CBS’ 60 Minutes program arrived at the warehouse. Id.1
In December 2023, the corresponding 60 Minutes episode aired, heavily featuring Labbat,
whom Cooper interviewed. Id. ¶ 5. In the interview, which is still available on demand, Labbat
stated that the Lindemann family returned the sculptures because they knew that the sculptures
“were dirty” and “had been looted.” Id. This statement was false. Id. For one, the Government
expressly found that the Lindemanns had not committed any wrongdoing and actually praised
them for voluntarily returning the sculptures. Id. Moreover, the Lindemanns did not know and
were never presented any evidence that the sculptures had been “dirty” or “looted.” Id.
1 In a supplemental submission filed at the Court’s direction, the Government indicates that Labbat retired
on September 30, 2023. ECF No. [24] ¶ 2. The Government explains that Labbat spoke to 60 Minutes on
two occasions. The first occurred on September 13, 2023. Id. ¶ 3. The second interview was coordinated
prior to Mr. Labbat’s retirement but occurred one day after his retirement, on October 1, 2023. Id.
Since then, Labbat has made additional false statements about Plaintiffs. Id. ¶ 6. Most
recently, he told or implied to the author of a forthcoming book that the Lindemann family had
known that the sculptures had been wrongfully taken from Cambodia and that the family had
something to do with the wrongful taking. Id. These statements were knowingly false and were
debunked by the Government. Id.2
In December 2025, Plaintiffs filed their Complaint in the Circuit Court of the Eleventh
Judicial Circuit, in and for Miami-Dade County, Florida, asserting a claim of defamation and
defamation per se against Labbat.
On March 19, 2026, the United States filed a Notice of Removal and Substitution of Party
pursuant to 28 U.S.C. § 2679(d)(2), certifying that Labbat is a federal employee and United States
of America is the proper Defendant in place of Labbat. ECF No. [1]. Defendant thereafter filed its
Motion, arguing the Complaint should be dismissed for lack of subject matter jurisdiction. ECF
No. [6]. Specifically, insofar as the Complaint alleges defamation “by a federal employee who was
acting in the course and scope of his employment,” the claim can only be brought pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680 (“FTCA”), and the FTCA does not waive
sovereign immunity for intentional torts like defamation. Id. at 3–5. Moreover, a federal court upon
removal adopts the jurisdiction of the state court that initially heard the case, and the state court
did not have jurisdiction to hear an FTCA claim. Id. at 3. Finally, Defendant argues Plaintiffs have
not exhausted their administrative remedies as required by the FTCA. Id. at 4.
2 In the same supplemental submission, the Government indicates that Labbat spoke to author Matthew
Campbell on several occasions from November of 2023 through February of 2024. ECF No. [24] ¶ 4. The
Government also points out that the interviews with Campbell were initially authorized in August of 2023
DHS and were coordinated through the DHS Director for Office of Public Affairs/Television and Motion
Pictures, even after Mr. Labbat’s retirement. Id. Further, all content discussed with Mr. Campbell was
approved by DHS prior to publication. Id.
Plaintiffs respond that the United States is not the proper Defendant, as Labbat was not
acting within the scope of his duties at the time of the defamatory statements. ECF No. [17] at 7–
8. For one, Labbat retired in September 2023, so at least some of the defamatory statements appear
to come after his time as a DHS employee. Id. at 13–15. Second, even if he was an employee at
the time of the alleged defamatory statements, being interviewed by 60 Minutes or talking to an
author do not appear to be within the scope of his duties as an ICE agent. Id. at 8–10. If the United
States is not the proper Defendant and instead a private figure, Labbat, is, then the United States’
other bases for dismissal fail. Id. at 15–16. Thus, Plaintiffs seek either (i) limited jurisdictional
discovery to establish the dates of Labbat’s employment, interview with 60 Minutes, and
communications with the author, and the history and nature of Labbat’s duties or (ii) denial of the
Motion. Id. at 3.
The United States replies, first, that Labbat’s actions were within the scope of his
employment as his “conduct arose directly from his official duties.” ECF No. [19] at 3. DHS
authorized the 60 Minutes interview and the conversation with the author, which the Government’s
evidence makes clear took place on September 13, 2023 and at some point after August 2023,
respectively. Id. Second, the United States argues that no discovery is warranted, as Plaintiffs have
“identif[ied] no concrete factual discrepancy and offer only speculative ideas as to why the
certification might be improper.” Id. at 7.
In their Surreply, Plaintiffs point out that the United States has conceded that Labbat made
some of the defamatory statements when he was no longer a Government employee, specifically
by stating that the “majority” of Labbat’s statements occurred when he was still employed and by
referring to statements made “after” Labbat’s retirement. ECF No. [22] at 2–3 (citing ECF No.
[19] at 6, 16). Moreover, the new exhibits do not clarify any of the key details, such as the date
Labbat retired, the date(s) he was interviewed by 60 Minutes, and the date(s) he was interviewed
by the author. Id. at 4.
The Court ordered the United States to provide a supplemental submission identifying (a)
the date that Labbat retired, (b) the date(s) on which Labbat spoke with 60 Minutes, and (c) the
date(s) on which Labbat spoke with author Matthew S. Campbell regarding the investigation into
the Lindemanns. ECF No. [23]. The United States filed a responsive submission. ECF No. [24].
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) challenges
the district court’s subject-matter jurisdiction and takes one of two forms: a “facial attack” or a
“factual attack.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). “A ‘facial attack’
on the complaint ‘require[s] the court merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true
for the purposes of the motion.’” McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501
F.3d 1244, 1251 (11th Cir. 2007) (quoting Lawrence, 919 F.2d at 1529). “‘Factual attacks,’ on the
other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.” Id.
(quotation marks omitted); see also Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524
F.3d 1229, 1233 (11th Cir. 2008) (“[A] factual attack on a complaint challenges the existence of
subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or
testimony.”) (citation omitted).
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed
that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11
(1799) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936)). Once a
federal court determines that it is without subject matter jurisdiction, “the court is powerless to
continue.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974-75 (S.D. Fla. 2023); see also Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”).
“A district court can hear a case only if it has at least one of three types of subject matter
jurisdiction: (1) jurisdiction under specific statutory grant; (2) federal question jurisdiction
pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).”
Hensley v. Hartford Cas. Ins. Co., 113 F.4th 1327, 1332 (11th Cir. 2024) (quoting Thermoset Corp.
v. Bldg. Materials Corp. of Am., 849 F.3d 1313, 1317 (11th Cir. 2017) (internal quotations
omitted)). With regard to federal question jurisdiction, the district courts have “original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C
§ 1331; see Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 (2002)
(“[F]ederal jurisdiction generally exists ‘only when a federal question is presented on the face of
the plaintiff’s properly pleaded complaint.’”) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)).
III. DISCUSSION
The United States’ Motion primarily argues that, insofar as Labbat was a federal employee
operating within the scope of his employment, the state court lacked jurisdiction to hear the case,
and this Court’s derivative jurisdiction upon removal therefore precludes it from hearing the case.
ECF No. [6] at 3. Plaintiffs dispute that Labbat was a federal employee and argue that the United
States’ bases for dismissal do not apply. ECF No. [19]. To address whether dismissal is warranted,
the Court first determines whether Labbat was a federal employee acting within the scope of his
employment and assesses the jurisdictional issues raised in the Motion.
A. Whether Labbat was a Federal Employee
The Westfall Act “accords federal employees absolute immunity from common-law tort
claims arising out of acts they undertake in the course of their official duties.” Omnipol, A.S. v.
Multinational Def. Servs., LLC, 32 F.4th 1298, 1305 (11th Cir. 2022) (quoting Osborn v. Haley,
549 U.S. 225, 229 (2007). The Westfall Act “empowers the Attorney General to respond to a suit
against a federal employee by certifying that an employee ‘was acting within the scope of his office
or employment at the time of the incident out of which the claim arose.’” Id. (citing 28 U.S.C. §
2679(d)(1), (2)). Upon the Attorney General’s certification, the defendant employee is dismissed,
and the United States is substituted in the employee’s place. Id.
However, a Westfall Act certification does not conclusively establish that the United
States’ substitution as the defendant for purposes of trial is proper. Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 434 (1995). “If a plaintiff challenges the Attorney General’s certification,
the District Court must apply de novo review to the Attorney General’s scope of employment
certification.” Id. Still, “because the Attorney General’s certification serves as prima facie
evidence that the conduct at issue occurred within the scope of employment, the ‘burden of altering
the status quo by proving that the employee acted outside the scope of employment is . . . on the
plaintiff.’” Id. (omission in original) (quoting S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538,
1543 (11th Cir. 1990), amended, 924 F.2d 1555 (11th Cir. 1991)). Neither the Supreme Court nor
the Eleventh Circuit has expressly stated the evidentiary standard applicable to this fact-intensive
analysis. However, the Supreme Court has explained that the United States “must remain the
federal defendant in the action unless and until the District Court determines that the employee, in
fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his
employment.” Osborn v. Haley, 549 U.S. 225, 231 (2007) (emphasis in original).
Finally, once it is determined that an individual was a federal employee, “[t]he question of
whether an employee’s conduct was within the scope of his employment is governed by the law
of the state where the incident occurred.” Flohr v. Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996)
(internal quotation marks and citations omitted). Plaintiffs and the United States agree that New
York law governs the scope of employment question here, ECF Nos. [17] at 2 and [19] at 2,3 and
[u]nder New York law, an employee acts within the scope of his employment when [i] ‘the
employer is, or could be, exercising some control, directly or indirectly, over the employee’s
activities,’ and [ii] ‘[the employee] is doing something in furtherance of the duties he owes to his
employer.’” Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016) (quoting Hamm v. United States,
483 F.3d 135, 138 (2d Cir. 2007)). To determine whether an employee’s tortious acts are done in
furtherance of the duties he owes to his employer, a court considers:
[i] the time, place and occasion for the act; [ii] the history of the relationship
between employer and employee as spelled out in actual practice; [iii] whether the
act is one commonly done by such an employee; [iv] the extent [to which the act]
depart[s] from normal methods of performance; and [v] whether the specific act
was one that the employer could reasonably have anticipated.
Fountain, 838 F.3d at 138 (quoting Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979)).
3 Though the Complaint does not make clear where the second conversation with 60 Minutes or the
conversations with the author occurred, both parties proceed under the assumption that New York law
applies, so the Court will assume its applicability for purposes of resolving the Motion. See Bahamas Sales
Assoc., LLC v. Byers, 701 F.3d 1335, 1342 (11th Cir. 2012) (“If the parties litigate the case under the
assumption that a certain law applies, we will assume that that law applies.” (citing Chase Manhattan Bank
v. Rood, 698 F.2d 435, 436 n.1 (11th Cir. 1983))).
“Under New York law, the mere fact that an employee is alleged to have engaged in an
intentional tort does not compel the conclusion that the employee was acting outside of the scope
of employment.” Griebsch v. Weaver, No. 7:05-cv-958, 2005 WL 2260374, *3 (N.D.N.Y. Sept.
16, 2005) (citing Sims v. Bergamo, 3 N.Y.2d 531, 534-35 (1957)) (other citation omitted); see also
Brancato v. Dee and Dee Purchasing, 296 A.D.2d 518, 519 (2d Dep’t 2003). “[A]n employee’s
tortious acts fall within the scope of his employment if ‘done while the servant was doing his
master’s work, no matter how irregularly, or with what disregard of instructions.’” United States
v. Tomscha, 150 F. App’x 18, 19 (2d Cir. 2005) (quoting Riviello, 47 N.Y.2d at 302).
Here, the Court finds that Plaintiffs have not carried their burden of showing that Labbat
was acting outside the scope of his employment at the time he made the alleged defamatory
statements. Mullane v. Moreno, No. 21-13468, 2025 WL 1386666, at *1 (11th Cir. May 14, 2025)
(“[T]he burden of proving that an employee acted outside the scope of employment is on the
plaintiff.”). The Sixth Circuit has provided a helpful elucidation of the requirements of this
employment analysis. The first question is whether, pursuant to 28 U.S.C. § 2671, the individual
was, at the relevant time, (1) an “officer[] or employee[] of any federal agency” or (2) a “person[]
acting on behalf of a federal agency in an official capacity, temporarily or permanently in the
service of the United States, whether with or without compensation.” Laible v. Lanter, 91 F.4th
438, 445 (6th Cir. 2024). The latter formulation is often referred to as the “official capacity clause.”
See Talignani v. United States, 26 F.4th 379, 382 (7th Cir. 2022). Satisfying either formulation
meets the statutory definition of an “employee” for purposes of a Westfall Act certification. Id. It
is only after answering in the affirmative that an individual was an “employee” pursuant to one of
these formulations that one turns to the second part of the analysis—“whether [the individual] was
acting within the scope of his federal employment at the time of the incident.” Id.
The Court begins with the first question based on the relevant factual background. The
Government represents—and Plaintiffs do not dispute—that Labbat’s first conversation with 60
Minutes occurred on September 13, 2023, which was during Labbat’s employment. ECF No. [24]
¶ 3. The second conversation occurred the day after Labbat’s retirement but was coordinated by
DHS. Id. As to Labbat’s conversations with Campbell, although they occurred between November
2023 and February 2024, they were initially authorized in August 2023 by DHS and were
coordinated through DHS’ Director for Office of Public Affairs/Television and Motion Pictures,
even after Mr. Labbat’s retirement. Id. ¶ 4. Moreover, all content discussed with Campbell was
approved by DHS prior to publication. Id. Indeed, the United States provides evidence of its
approval and active coordination of these conversations, which occurred during Labbat’s
employment. See ECF No. [19-2] and [19-3].
The Supreme Court has provided one indication of how the official capacity clause is meant
to function.
In Logue v. United States, the parents of a federal prisoner who hanged himself
while in a county jail brought suit against the United States pursuant to the FTCA
for the wrongful death of their son. 412 U.S. 521, 522, 93 S.Ct. 2215, 37 L.Ed.2d
121 (1973). The plaintiffs argued that under the federal employee clause, the county
jail was a federal agency, and under the official capacity clause, the jail employees
were “acting on behalf” of the Federal Bureau of Prisons. Id. at 526, 93 S.Ct. 2215.
The Court established that the critical factor in differentiating between federal
employees and contractors “is the authority of the principal to control the detailed
physical performance of the contractor.” Id. at 527–28, 93 S.Ct. 2215. In other
words, where the federal government exercises that level of control over an
individual, the definition of federal employee is met. See id.
Laible, 91 F.4th at 443. Ultimately, the Supreme Court determined that the phrase “acting on behalf
of” appeared “to cover special situations such as the ‘dollar-a-year’ man who is in direct service
of the Government without pay, or an employee of another employer who is placed under direct
supervision of a federal agency pursuant to contract or other arrangement.” Logue, 412 U.S. at
530–31; see also Talignani, 26 F.4th at 386 (explaining that the official capacity clause was meant
to extend immunity to volunteers, special law enforcement, confidential informants, and any other
scenarios in which the individual was not a federal employee, nor federal contractor, but still acted
on behalf of the federal government in an official capacity). The Supreme Court reinforced this
“control” or “supervision” test in United States v. Orleans, 425 U.S. 807 (1976), and the Eleventh
Circuit has adopted it. See Patterson & Wilder Const. Co. v. United States, 226 F.3d 1269, 1274
(11th Cir. 2000) (“As this definition makes clear, even private individuals who are not on the
Government’s payroll may be considered employees for purposes of establishing the
Government’s liability under the statute.”).
Under this control test, Labbat had the requisite arrangement with the United States to be
considered a federal employee for purposes of the official capacity clause. The meetings were—
at a minimum—arranged, scheduled, and coordinated by DHS. They occurred at DHS’s behest
and pursuant to DHS’s permission. DHS had “control over the rules governing the” interactions.
Laible, 91 F.4th at 445. DHS did not give Labbat a broadly defined task of speaking to media while
leaving to his discretion how the task was accomplished. Patterson, 226 F.3d at 1274. It “decided,
and instructed [Labbat] on, virtually every important aspect of” the media interactions. Id. at 1275.
In short, Labbat clearly acted on behalf of a federal agency. Id.
Thus, the Court turns to the next question—insofar as Labbat was functionally still a
Government employee at the time of the alleged defamatory statements, whether he was acting
within the scope of his employment. That question is controlled by New York law.
As a general matter, New York law holds that actions taken after one’s departure from
employment cannot be considered within the scope of employment.4 As no New York court has
addressed the factual scenario presented here, the Court undertakes the scope of employment
analysis prescribed by New York law, assessing (1) whether the employer is, or could be,
exercising some control, directly or indirectly, over the employees activities, and (2) whether the
employee is doing something in furtherance of the duties he owes to the employer. Fountain, 838
F.3d at 135 (quoting Hamm, 483 F.3d at 138).
As to the first question, the answer seems to be a clear affirmative. DHS arranged and
coordinated the meetings at issue, exercising continuous control over Labbat’s activities; they
occurred only because of DHS’ willing participation and cooperation. As to the second question,
the Court considers the following:
[i] the time, place and occasion for the act; [ii] the history of the relationship
between employer and employee as spelled out in actual practice; [iii] whether the
act is one commonly done by such an employee; [iv] the extent [to which the act]
4 See, e.g., Greene v. Trs. of Columbia Univ., 234 F. Supp. 2d 368, 382 (S.D.N.Y. 2002) (“Threats occurring
after Williams’s termination are clearly outside the scope of employment and thus do not implicate
Columbia.”); Meehan v. Cnty. of Suffolk, 144 A.D.3d 640, 641–42, 40 N.Y.S.3d 494, 496 (2016) (“[T]he
fact that some of the duties Roslyn performed as an independent contractor were identical to those she had
previously performed as the County defendants’ employee prior to her retirement from their employ in
March 2009, did not convert the relationship between the County defendants and Roslyn into one of
employer-employee.” (citations omitted)); Coleman & Co. Secs., Inc. v. Giaquinto Family Trust, 236 F.
Supp.2d 288, 303 (S.D.N.Y. 2002) (under New York respondeat superior law, employee’s “departure bars
any claim of vicarious liability or negligent supervision beyond” his termination date); Schlesinger v. Pitney
Bowes, Inc., 722 N.Y.S. 2d 343, 345 (2001) (respondeat superior claim failed because “at the time
[employee] left the allegedly threatening voice-mail message he had already been terminated”); D’Amico
v. Christie, 71 N.Y. 2d 76, 88–89 (1987) (respondeat superior claim “at the minimum . . . requires an
existing relationship”); Olson v. B&S Caring Assocs., Inc., 271 A.D. 2d 588, 588–89 (2d Dept. 2000) (“The
Supreme Court properly determined that the defendants were not liable under the doctrine of respondeat
superior for [the] murder, as the employer-employee relationship had ended by the time of the murder.”);
Koran I. v. New York City Bd. of Educ., 256 A.D. 2d 189, 191 (1st Dept. 1998) (“Respondeat superior
cannot exist without a present employer-employee relationship.”); Loucks v. Cmty. Home Care Servs., 209
A.D. 2d 484, 484-85 (2d Dept. 1994) (Inasmuch as “[employer] fired [employee] one week prior to the
alleged assault,” it “may not be held vicariously liable under the doctrine of respondeat superior for the
assault committed by its former employee.”).
depart[s] from normal methods of performance; and [v] whether the specific act
was one that the employer could reasonably have anticipated.
Fountain, 838 F.3d at 138 (quoting Riviello, 47 N.Y.2d at 303). As to the first factor, the meetings
took place in close proximity to Labbat’s formal employment, at places and on occasions fixed by
the United States. As to the second factor, the conversations and statements at issue arose in the
context of the federal investigation to which Labbat was assigned. Indeed, the first set of statements
to 60 Minutes were made during a DHS-coordinated event which 60 Minutes was authorized to
attend and film, and the conversations with the author were coordinated and approved by DHS.
ECF No. [19-1]. In effect, each of these interactions were actions that DHS contemplated Labbat
taking. As to the third and fourth factors, there is no indication in the record of whether speaking
to the press in general is a common task for current or former special agents or whether Labbat’s
discussions with 60 Minutes and Campbell diverged from normal performance of such a task. As
to the final factor, New York law holds that “where the element of general foreseeability exists,
even intentional tort situations have been found to fall within the scope of employment.” Riviello,
47 N.Y.2d at 304 (1979). Here, Labbat speaking with 60 Minutes and Campbell was “generally
foreseeable” to DHS; indeed, DHS did foresee these conversations and, in fact, facilitated them.
Labbat’s specific comments regarding the investigation—even allegedly untruthful comments—
were also generally foreseeable, as Labbat was entering into these conversations for purposes of
discussing the investigation.5
5 Plaintiffs’ argument that Labbat’s actions were not within the scope of his duties because speaking to the
press is not listed as a duty of Homeland Security Investigations agents is unavailing. ECF No. [17] at 9–
10. New York law does not limit the scope of employment to expressly assigned tasks. It also covers
“reasonably expected” acts or acts that are a “natural incident” of the employment, with a broader emphasis
on “general foreseeability.” Riviello, 47 N.Y.2d at 303. Labbat’s conversations were both foreseeable and
expected.
Similarly, Plaintiffs’ argument that Labbat could not have been acting on behalf of DHS when his
statements contradicted DHS’ stated position fails. ECF No. [17] at 10–11. The relevant question is not
The Court is not firmly convinced that Labbat “in fact” engaged in conduct beyond the
scope of his employment. Osborn, 549 U.S. at 231. Indeed, all the evidence available to the Court
indicates that Labbat, though nominally retired, was functioning in an official capacity DHS at the
time he made the alleged defamatory statements and made those comments within the scope of his
official capacity. The Court is not alone in finding that one who is no longer technically employed
can still be serving within their official capacity. In the Eastern District of Louisiana, for example,
one judge indicated that post-employment conduct fell within the scope of former employment for
Westfall Act certification purposes where the individual’s actions were part of one larger tortious
“transaction.” West v. Rieth, 152 F. Supp. 3d 538, 548 (E.D. La. 2015). Another Eastern District
of Louisiana case later reiterated this point, finding that post-employment conduct that served the
employer’s interest could be deemed within the scope of employment. Cooper v. United States,
No. CV 16-15414, 2017 WL 699835, at *5 (E.D. La. Feb. 22, 2017). Thus, the Court finds that
Labbat was an employee acting within the scope of his employment for purposes of assessing the
Government’s Motion to Dismiss.
B. Jurisdiction
The United States raises arguments in support of dismissal for lack of jurisdiction premised
on Labbat’s status as a Government employee. Specifically, the United States argues that, upon
whether DHS controlled Labbat’s comments down to the exact words but whether DHS had the “authority”
to “control the detailed physical performance of” actor. Logue, 412 U.S. at 527–28. Here, DHS had such
authority, dictating the circumstances of Labbat’s interactions with 60 Minutes and Campbell and
approving all conduct prior to publication.
Finally, Plaintiffs’ argument that Labbat was motivated by personal gain is unconvincing. ECF No. [17] at
12–13. New York law excludes an action from the scope of employment where the action was taken based
on “wholly personal motives,” N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 765 N.E.2d 844 (2002), and
was “unrelated to the furtherance of the [agency’s] business.” Judith M. v. Sisters of Charity Hosp., 93
N.Y.2d 932, 933, 715 N.E.2d 95 (1999). The Court does not see such wholly personal motives manifested
here where DHS clearly desired that these interactions should occur, going so far as to coordinate and
facilitate them. That clearly indicates action taken in furtherance of the agency’s business.
removal, the federal court adopts the jurisdictional limits of the state court that initially heard the
case. ECF No. [6] at 3 (citations omitted). As a result, if the state court lacked jurisdiction, so too
does the federal court upon removal. Id. Here, the state court lacked subject matter jurisdiction
over an FTCA claim brought against a federal employee, as federal courts have exclusive
jurisdiction over FTCA claims, so this Court lacks jurisdiction as well. Id.
Plaintiffs do not respond specifically to this argument, but instead argue that Labbat was
not a Government employee and, as a result, the jurisdictional bars cited by the United States do
not apply. ECF No. [17] at 20–23.
The FTCA provides the exclusive remedy for torts committed by federal agencies or
federal employees. United States v. Smith, 499 U.S. 160, 173 (1991). As a result, a tort claim
brought against a federal employee necessarily proceeds under the FTCA. Id. Pursuant to 28
U.S.C. § 1346(b)(1), federal courts have exclusive jurisdiction over civil actions against the United
States for money damages, including FTCA claims. Any claim under the FTCA must originally
be filed in federal court.
The Supreme Court has instructed that the “jurisdiction of the federal court on removal is,
in a limited sense, a derivative jurisdiction.” Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co.,
258 U.S. 377, 382 (1922). Under the doctrine of derivative jurisdiction, “[i]f the state court lacks
jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might
in a like suit originally brought there have had jurisdiction.” Id. “Because, as noted, federal courts
have exclusive jurisdiction over FTCA claims—and since the Plaintiff brought this FTCA claim
in state court—the state court in which the Plaintiff filed her case lacked jurisdiction to hear it.”6
6 As recently as 2021, the Eleventh Circuit has reiterated the applicability of this doctrine to cases removed,
as here, pursuant to 28 U.S.C. § 1442. Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314, 1322 (11th Cir.
2021).
Case No. 26-cv-21836-BLOOM
Barrett v. U.S. Postal Serv., No. 20-60156-CV, 2020 WL 2764265, at *2 (S. D. Fla. Feb. 10, 2020).
As a result, the Court lacks subject matter jurisdiction, and the case must be dismissed without
prejudice.’
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Dismiss, ECF No. [6], is GRANTED.
2. The case is DISMISSED WITHOUT PREJUDICE.
3. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on June 24, 2026.
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
‘Tf Plaintiffs choose to refile their case in federal court, they should bear in mind that 28 U.S.C. § 2680(h)
provides a statutory exemption from the FTCA for claims arising out of libel and slander.
16