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Upshaw v. United States

November 16, 2009

WAYNE B. UPSHAW, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, Wayne B. Upshaw, a former employee of the Library of Congress ("Library"), has filed suit alleging that three former co-workers made defamatory statements about him during the course of an Equal Employment Opportunity ("EEO") investigation into charges of discrimination. Plaintiff, representing himself pro se, originally filed this suit as a state-law tort action against the three employees in their individual capacities in the Superior Court for the District of Columbia. The Chief of the Civil Division in the Office of the United States Attorney for the District of Columbia subsequently certified pursuant to 28 U.S.C. § 2679(d) that the individuals were acting within the scope of their employment as employees of the United States at the time of the alleged incident. As a consequence, the United States was substituted as the sole defendant, the action was converted into one brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (hereinafter, the "FTCA"), and the case was removed to this Court.

Shortly thereafter, the United States filed its now-pending [13] Motion to Dismiss, or in the Alternative, for Summary Judgment. In response, Plaintiff filed a [17] Motion for Leave to Amend the Amended Complaint and for Transfer to the Superior Court of the District of Columbia, which is also currently pending before the Court. Upon consideration of the parties' submissions, the applicable case law and statutory authority, and the record of this case as a whole, the Court concludes that the United States is the proper defendant in this case and that Plaintiff's action must be brought under the FTCA. Moreover, because the United States has not waived its sovereign immunity for claims arising out of defamation and because Plaintiff has failed to exhaust his administrative remedies as required, Plaintiff's suit must be dismissed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction. Accordingly, the United States' [13] Motion to Dismiss pursuant to Rule 12(b)(1) is GRANTED, and Plaintiff's [17] Motion for Leave to Amend the Amended Complaint and for Transfer to the Superior Court of the District of Columbia is DENIED, for the reasons that follow.*fn1

I. BACKGROUND

Plaintiff is a former employee of the Congressional Research Service ("CRS"), a unit within the Library of Congress. Amended Complaint, Docket No. [10], ¶ 1 (hereinafter "Am. Compl."). He served as the Deputy Assistant Director for the Government and Finance Division ("Division") within CRS from November 13, 2006 through October 12, 2007, at which time he was involuntarily separated from the Library. Id. ¶¶ 1-2; see also Docket No. [6-2] (Plaintiff's 11/7/07 EEO Complaint) (hereinafter "EEO Complaint").*fn2 Shortly thereafter, in November of 2007, Plaintiff filed an EEO complaint alleging that the Library had discriminated against him by failing to convert him to a permanent employee because of his race and retaliation. See EEO Complaint. Pursuant to the applicable Library of Congress Regulations, the Library initiated an investigation of the allegations asserted in Plaintiff's EEO Complaint. See Am. Compl. ¶ 3;Docket No. [6-3], (copy of Library of Congress Regulation 2010-3.1, Resolution of Problems, Complaints, and Charges of Discrimination in Library Employment and Staff Relations Under the Equal Employment Opportunity program) (hereinafter "LCR 2010-3.1"), § 8) (requiring inquiry and investigation into EEO complaints received by the Library).

During the EEO investigation that followed, an EEO investigator interviewed and took statements from: (1) Robert J. Dilger, Deputy Assistant Director of the Division and Plaintiff's direct supervisor; (2) Jane G. Gravelle, a Senior Specialist in the Division and Plaintiff's subordinate; (3) Marc Labonte, a Specialist in the Division and Plaintiff's subordinate (collectively, "individual Federal Defendants"). Am. Compl. ¶ 3. The relevant Library regulations obligated the individual Federal Defendants, as employees of the Library, to cooperate with the investigation. See LCR 2010-3.1, § 8.F ("In carrying out their responsibilities under [] Section [8: Investigations of Complaints], the Assistant Chief, Officers, Investigators, and Library officials shall have the full cooperation of all staff....").

On February 13, 2009, Plaintiff, representing himself pro se, filed suit against the individual Federal Defendants alleging that they had made defamatory statements during the course of the EEO investigation. See Docket No. [1-1], at 10-15 (Complaint) (hereinafter "Compl."). According to Plaintiff, the individual Federal Defendants falsely suggested to the EEO investigator that Plaintiff had "abused his discretionary authority" as a Deputy Assistant Director within CRS in order to "promote a personal agenda" - i.e., to influence or pressure employees to reach research outcomes consistent with his own personal preferences. See Am. Compl. ¶ 7. Plaintiff asserts that these allegedly defamatory statements played a significant role in preventing him from being re-instated as a permanent Library employee. Id. ¶¶ 3, 4.

As explained above, Plaintiff's suit was originally filed against the individual Federal Defendants in their individual capacities in the Superior Court for the District of Columbia. See generally Compl. On April 3, 2009, the Chief of the Civil Division in the Office of the United States Attorney for the District of Columbia certified that the individual Federal Defendants were acting within the scope of their employment as employees of the United States at the time of the alleged incidents, pursuant to 28 U.S.C. § 2679(d). See Docket No. [1-1] at 4 (28 U.S.C. § 2679(d) Certification by Rudolph Contreras, Chief of the Civil Division, Office of the United States Attorney for the District of Columbia) (hereinafter "Westfall Certification"). Based on this Certification, the individual Federal Defendants removed the case to this Court on April 9, 2009, and filed a consolidated Motion to Dismiss and Motion to Substitute the United States as the Sole Defendant. See Not. of Removal, Docket No. [1]; Defs.' Mot. to Dismiss and Mot. to Substitute the United States as the Sole Def., Docket No. [6]. The individual Federal Defendants argued in their motion that the United States should be substituted as the sole defendant by virtue of the Westfall Certification and that once such substitution was made, the action must be dismissed - both because the United States has not waived its sovereign immunity under the FTCA for defamation claims and because Plaintiff has not alleged timely exhaustion of his administrative remedies as required under the FTCA. See generally Defs.' Mot. to Dismiss and Mot. to Substitute the United States as the Sole Def.

Before the Court had an opportunity to consider the individual Federal Defendants' motion, the Plaintiff filed an Amended Complaint. See Am. Compl. The Amended Complaint makes two primary changes. First, Plaintiff substituted the United States as the sole defendant in this litigation pursuant to 28 U.S.C. § 2679(d). See id. Second, in addition to his claim for defamation, Plaintiff added a second claim for intentional infliction of emotional distress, alleging that he "suffered emotional distress" as a result of the individual Federal Defendants' defamatory statements. See id. ¶¶ 12-17.

In consideration of the filing by Plaintiff of his Amended Complaint, the Court issued an Order on May 27, 2009, which: (1) denied as moot the individual Federal Defendants' Motion to Substitute the United States as Sole Defendant in light of Plaintiff's Amended Complaint, which named the United States as the sole defendant in this action; and (2) denied without prejudice the individual Federal Defendants' Motion to Dismiss, as it was directed at Plaintiff's initial complaint, which was no longer the operative pleading. See 5/27/09 Order, Docket No. [11]. In addition, the Order provided the United States with an opportunity to file a renewed Motion to Dismiss as against Plaintiff's Amended Complaint, if it deemed it appropriate. See id.

Pursuant to the Court's May 27, 2009 Order, the United States filed a renewed Motion to Dismiss, or in the Alternative, for Summary Judgment. See Def.'s MTD/MSJ, Docket No. [13]. As set forth therein, the United States argues that Plaintiff's suit must be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and/or Rule 12(b)(6) for failure to state a claim.

Alternatively, the United States asserts that the Court should enter summary judgment in its favor pursuant to Rule 56. In support of its motion, the United States makes two principal arguments. First, the United States argues that it has not waived its sovereign immunity for Plaintiff's claims, which are based on and arise out of allegedly defamatory statements. Second, the United States contends that Plaintiff has not alleged the timely exhaustion of administrative remedies as required under the FTCA.

Plaintiff responded by filing both an Opposition to the United States' motion, see Pl.'s Opp'n, Docket No. [18], and a Motion for Leave to Amend the Amended Complaint and for Transfer to the Superior Court of the District of Columbia, see Pl.'s Mot. for Leave to Amend and for Transfer to Sup. Ct. of D.C., Docket No. [17] (hereinafter, "Pl.'s Mot. to Amend").*fn3 As set forth therein, Plaintiff asserts that he "originally sought and still seeks only to sue the individual defendant's [sic] individually for defamatory/libelous statements made outside their employment obligations." Pl.'s Mot. to Amend ¶ 2. Although his Amended Complaint substituted the United States as the sole defendant in this action, Plaintiff asserts that he did so based on the mistaken understanding that the Court had already ordered the United States to be substituted as defendant in this litigation. See id. ¶¶ 3-4; see also generally Pl.'s Opp'n. According to Plaintiff, he did not intend to concede that substitution of the United States as defendant is appropriate. See id. ¶¶ 3-4; see also generally Pl.'s Opp'n.

Moreover, Plaintiff now argues that the Westfall Certification is, in fact, improper because "[i]t is not part of an employee's duties to make false, defamatory statements," such that the individual Federal Defendants were "act[ing] outside the scope of their employment duties" when they made the allegedly defamatory statements against Plaintiff. See Pl.'s Mem. in Support of his Opp'n ¶ 17. Plaintiff concludes that the United States was therefore improperly substituted as defendant, and he requests leave to amend his complaint in order to "restore[] the original individual defendants" and to permit "transfer [of this action] to [the] Superior Court as a simple defamation case, as intended." Pl.'s Mot. to Amend, ¶ 5. The Court notes that Plaintiff has not otherwise responded to the United States' arguments that this case should be dismissed for lack of subject matter jurisdiction and/or for failure to state a claim, assuming the United States has been properly substituted as the sole defendant. Instead, Plaintiff focuses solely on the propriety of the Westfall Certification. See generally Pl.'s Opp'n; Pl.'s Mot. to Amend.

The United States filed a Reply in Support of its Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and Opposition to Plaintiff's Motion to Amend. See Def.'s Reply/Opp'n, Docket Nos. [20] & [21]. In so doing, the United States argues that Plaintiff has failed to allege sufficient facts that, if true, would rebut the Westfall Certification in this case. Accordingly, the United States asserts that the substitution of the United States and the conversion of this action into a FTCA suit was appropriate. See generally id. Plaintiff declined to file any reply in support of his Motion to Amend. As briefing is now complete, the parties' motions are ripe for the Court's resolution and review.

II. LEGAL STANDARDS

The United States has moved for dismissal of this case pursuant to Rule 12(b)(1) and/or Rule 12(b)(6) and, in the alternative, for summary judgment pursuant to Rule 56. For the reasons set forth below, the Court finds that the parties' arguments are more appropriately evaluated under Rule 12(b)(1). Accordingly, the Court treats the United States' motion as a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, and does not reach the United States' arguments in the alternative that Plaintiff's claims ...


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