“Before turning to the merits of the motion to dismiss [for lack of subject matter jurisdiction], the [c]ourt will address plaintiff’s apparent challenge to the Westfall Act certification.”
How later courts described this case
- “Before turning to the merits of the motion to dismiss [for lack of subject matter jurisdiction], the [c]ourt will address plaintiff’s apparent challenge to the Westfall Act certification.”
- the FTCA is “the only possible basis for subject matter jurisdiction” over tort suit for damages against the United States
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELIZABETH V. JACKSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0053 (ESH)
)
UNITED STATES, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Before the Court is defendants’ motion to dismiss the complaint for lack of subject matter
or personal jurisdiction. See Fed. R. Civ. P. 12(b)(1) & (2). For the reasons stated herein, the
Court will dismiss the complaint for lack of subject matter jurisdiction.
BACKGROUND
This case arises out of allegedly defamatory remarks made by three employees of the
United States Postal Service, Brandon Toatley, John Marx and Avis Davis, about two other
employees, plaintiff Elizabeth V. Jackson and Jerry Ellis-Hemby.1 Plaintiff, who is proceeding
pro se, initially filed a claim for defamation against Toatley, Marx and Davis in the Superior
Court for the District of Columbia, Small Claims and Conciliation Branch, seeking between
$2,500 and $5,000 in damages. In its entirety, plaintiff’s claim reads:
Defamation of character, discussing myself & co-worker, Jerry Ellis-Hemby’s,
suspension on the workroom floor with our peers. And referring to us as bitches
1
Ellis-Hemby filed a separate suit against the same three defendants, which was
dismissed after the plaintiff failed to respond to a motion to dismiss. Ellis-Hemby v. Toatley et
al., No. 12-cv-0052 (D.D.C. Apr. 24, 2012).
in the process. From 12-10-11 to present at USPS Friendship Station (Zone 7).
Upon review of plaintiff’s claim, the Attorney General certified under the Westfall Act
that all three defendants “were federal employees acting within the scope of their office or
employment at the time of the allegations giving rise to the complaint” and therefore, removed
the matter to federal court and substituted itself as the sole defendant. (Notice of Removal at 3,
Jan. 12, 2012 [Dkt. No. 1].) On March 19, 2012, defendants filed the pending motion to dismiss,
which plaintiff opposed on April 20, 2012.
ANALYSIS
I. WESTFALL ACT CERTIFICATION
Before turning to the merits of the motion to dismiss, the Court will address plaintiff’s
apparent challenge to the Westfall Act certification.1 The Federal Employees Liability Reform
and Tort Compensation Act of 1988, also known as 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.” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009).
Under the Act, “when a federal employee is named in a tort suit, the Attorney General or his
designee may certify that the employee was ‘acting within the scope of his office or employment
at the time of the incident out of which the claim arose.’” Id. (quoting 28 U.S.C. § 2679(d)).
“Upon certification . . . any civil action or proceeding commenced upon such claim in a State
court shall be removed . . . to the district court of the United States for the district and division
1
It is not actually clear from plaintiff’s response to the motion to dismiss whether she is
challenging the scope-of-employment certification. (See Pl.’s Opp’n at 2 (“All of the defendants
involved did not operate within their scope of responsibilities.”).) However, since plaintiff is
proceeding pro se, the Court will assume that she is.
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embracing the place in which the action or proceeding is pending. Such action or proceeding
shall be deemed to be an action or proceeding brought against the United States under the
provisions of [the Federal Tort Claims Act] . . . , and the United States shall be substituted as the
party defendant.” 28 U.S.C. § 2679(d)(2).
A Westfall Act certification is conclusive for the purposes of removal, see 28 U.S.C. §
2679(d)(2), but “[a] plaintiff may contest the Attorney General’s scope-of-employment
certification before a district court.” Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009).
Once a plaintiff challenges the scope-of-employment certification, the certification “constitute[s]
prima facie evidence that the employee was acting within the scope of his employment.” Id. To
rebut the certification, a plaintiff must “alleg[e] sufficient facts that, taken as true, would
establish that the defendant[‘s] actions exceeded the scope of [his] employment.” Id. Upon
consideration of plaintiff’s complaint and the additional facts included in her response to the
motion to dismiss, the Court concludes that she has not met this standard since she provides no
facts whatsoever but merely refers to the conduct as “unethical, unprofessional [and]
unjustified.”
II. SUBJECT MATTER JURISDICTION
Having found no basis for rejecting the Westfall Act certification, what is now before the
Court is a tort suit for damages against the United States. In these circumstances, “the only
possible basis for subject matter jurisdiction [is] the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 1346(b).” Epps v. U.S. Atty Gen., 575 F. Supp. 2d 232, 238 (D.D.C. 2008); see also Benoit v.
U.S. Dept. of Agriculture, 608 F.3d 17, 20 (D.C. Cir. 2010) (“Suits for damages against the
United States under the common law must be brought pursuant to the limited waiver of
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sovereign immunity in the FTCA.”). Defendants argue, however, and the Court agrees, that the
FTCA does not give the Court subject matter jurisdiction over plaintiff’s claims.
A. No Waiver of Sovereign Immunity
First, although the FTCA waives the sovereign immunity of the United States with
respect to some torts, it expressly bars suits against the United States with regards to claims of
“libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. §
2680(h). Defamation claims are similarly barred. Gardner v. United States, 213 F.3d 735, 737
n.1 (D.C. Cir. 2000). Accordingly, plaintiff cannot proceed with a defamation claim for
damages against the United States under the FTCA.
B. No Exhaustion of Administrative Remedies
Second, the FTCA requires a plaintiff to exhaust administrative remedies before bringing
suit in federal court:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have
been finally denied . . . .
28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 113 (1993). The failure to
exhaust prior to filing suit requires dismissal of the case for lack of jurisdiction. See, e.g., Ali v.
Rumsfeld, 649 F.3d 762, 775 (D.C. Cir. 2011) (“[W]e view the failure to exhaust administrative
remedies [under the FTCA] as jurisdictional.” (internal quotations omitted)); Epps, 575 F. Supp.
2d at 238 (exhaustion is “mandatory prerequisite to bringing [an FTCA] claim in court”).
Plaintiff’s complaint does not allege that she exhausted her administrative remedies.
Defendants’ motion to dismiss points this out and attaches as an exhibit a declaration that the
4
United States Postal Service has no record of plaintiff ever having filed an administrative claim.
(Mot. to Dismiss, Ex. 1, Decl. of Elinor G. Brown ¶¶ 3-4.) Plaintiff’s response to the motion to
dismiss does not mention exhaustion or refer to any prior administrative proceedings.
Accordingly, plaintiff has failed to exhaust her administrative remedies, which provides a second
and independent basis for dismissal of the FTCA claim against the United States.
III. PERSONAL JURISDICTION
The United States has also moved to dismiss on the ground that the Court lacks personal
jurisdiction due to plaintiff’s failure to properly serve the summons and complaint. Having
concluded that subject matter jurisdiction is lacking, the Court will not reach the issue of
personal jurisdiction.
CONCLUSION
Accordingly, the motion to dismiss is granted and the complaint is dismissed for lack of
subject matter jurisdiction. An separate Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: April 30, 2012
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