Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elizabeth V. Jackson v. United States

April 30, 2012

ELIZABETH V. JACKSON, PLAINTIFF,
v.
UNITED STATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

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.*fn1 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 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.*fn1 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 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 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). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.