the incident occurred "within the authorized time and space limits."
3. "The conduct was actuated, at least in part, by a purpose to serve the master"
Even if an employee is acting within the authorized limits of his employment, he does not perform within the scope of his employment if the act "is done with no intention to perform it as a part of or incident to a service on account of which he is employed." Restatement (Second) of Agency § 235. In other words, if viewing the facts in the light most favorable to Plaintiff, the Court concluded that Jacobik gave information to the OPM agent with the sole intent of protecting his own interests, not those of the Government, then Plaintiff would carry his burden on the third prong.
The facts presented in Plaintiff's response to the United States's motion to dismiss, if true, establish that Plaintiff had longstanding disputes in the workplace that resulted in various internal agency actions and a settlement agreement. If proven, they would also establish that Jacobik gave false information to the OPM agent. What is missing is a connection between the two sets of facts. The record is bare of any evidence or plain factual assertions establishing that the alleged false statements were connected in any way to the earlier workplace disputes. What is presented by the Government, and undisputed by the Plaintiff, is a claim that Jacobik was reluctant to speak to the agent and had to be urged by his superiors to do so. Furthermore, the Government has claimed, without dispute, that Jacobik's statements to the agent were in fact mixed, with some comments being positive in nature. It is Plaintiff's burden to establish that Jacobik's conduct was not "actuated, at least in part, by a purpose to serve the federal government." He has not met that burden.
The Court therefore finds that Jacobik's responses to the OPM investigator's questions were given within the scope of his employment. Accordingly, the United States' scope certification must be given effect and the United States must be substituted as the exclusive defendant pursuant to 28 U.S.C. § 2679.
B. The United States has Sovereign Immunity from Slander Suits
The United States generally has sovereign immunity from tort suits. Pursuant to the FTCA, the United States has waived immunity for certain types of actions. 28 U.S.C. § 2680 (h). Defamation actions are specifically excepted from that waiver.
Accordingly, Plaintiff cannot sue the United States for defamation and his claim must fail.
The practice of conducting security clearance checks for potential holders of sensitive government positions is of vital public interest. For such checks to produce complete and accurate information, it is essential that federal investigators receive full cooperation from federal employees like Mr. Jacobik. It goes without saying that the threat of defamation litigation would have an extremely chilling effect on such cooperation.
Of course, there is always a risk that a particular employee could use the opportunity to further a personal vendetta against the subject of the investigation. Without clear evidence that this has happened, however, the presumption must be weighed in favor of protecting the Government's security interests.
In this case, it was Plaintiff's burden to show that Jacobik was acting outside the scope of his employment. Even viewing the facts in the light most favorable to Plaintiff, he has not met that burden. As Plaintiff himself concedes, he cannot sue the United States for defamation. Accordingly, Plaintiff's case must be dismissed. An appropriate Order follows this opinion.
United States District Judge
This matter is before the Court on the United States' Motion to Dismiss and pro se Plaintiff's opposition thereto. For the reasons stated in the attached Memorandum Opinion, it is hereby
ORDERED that the United States be substituted as the sole defendant in this matter, pursuant to 28 U.S.C. § 2679; and it is further
ORDERED that the United States' Motion to Dismiss be GRANTED ; and it is further
ORDERED that this matter be DISMISSED for all purposes.
United States District Judge