MARIANNE R. CASSERLY, ESQ., ALSTON & BIRD, LLP, Washington, D.C., Attorneys for Plaintiff.
RHONDA LISA CAMPBELL, ESQ., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, Jr., Senior District Judge.
Currently before the Court is the United States' motion on behalf of Defendant, its former employee, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint on the grounds that sovereign immunity bars Plaintiff's claims and that Plaintiff has failed to exhaust his administrative remedies. The United States also asks that the Court formally substitute the United States for Defendant as the sole Defendant in this action.
Plaintiff, an employee of the United States Department of Homeland Security ("DHS"), filed a complaint in the Superior Court for the District of Columbia on October 19, 2010, against Defendant, a former intern with DHS. In his complaint, Plaintiff asserted the following eleven causes of action: (1) reckless disregard for the truth/fraud (oral statements); (2) reckless disregard for the truth/fraud (written statements); (3) defamation; (4) negligent infliction of emotional distress (oral statements); (5) negligent infliction of emotional distress (written statements); (6) intentional infliction of emotional distress (oral statements); (7) intentional infliction of emotional distress (written statements); (8) injurious falsehood (oral statements); (9) injurious falsehood (written statements); (10) false light (oral statements); and (11) false light (written statements). See generally Complaint.
Specifically, Plaintiff alleged that Defendant had made false and disparaging statements to her supervisors about Plaintiff's work performance while he was assigned to work in Texas and that these statements had led to an investigation by DHS's Office of Security ("OS"), the suspension of his security clearance, and to his placement on unpaid administrative leave in November 2009.
On December 13, 2010, acting pursuant to 28 U.S.C. § 2679(d), Rudolph Contreras, Chief of the Civil Division of the United States Attorney's Office for the District of Columbia, certified that, at the time of the alleged incidents described in the complaint, Defendant was acting within the scope of her employment as a United States employee. Based on this certification, the United States removed the action to this Court.
The United States bases its motion to dismiss on the following theories: (1) the United States should be substituted as the sole Defendant in this action because Plaintiff sued Defendant for conduct within the scope of her employment; and, thus, this action arises, if at all, under the Federal Tort Claims Act ("FTCA") and federal employees cannot be sued personally for their allegedly tortious conduct; (2) sovereign immunity bars Plaintiff's tort claims because the United States has not waived its sovereign immunity under the FTCA with respect to claims arising under, among other things, libel, slander, misrepresentation or deceit; and (3), even if the FTCA encompassed claims such as Plaintiff's, he has not exhausted his administrative remedies under the FTCA, which is a prerequisite to filing a complaint in federal court.
Plaintiff opposes this motion on the ground that Defendant was not acting within the scope of her employment when the alleged actions occurred and, therefore, certification under § 2679 was improper, and the United States should not be substituted as the defendant in this case. Plaintiff does not address the United States' arguments concerning the FTCA.
The Court heard oral argument in support of, and in opposition to, the United States' motion on August 29, 2012, and reserved decision at that time. The Court also provided the parties with an opportunity to submit additional briefing on the issue of whether certification under § 2679 was proper, which Plaintiff did on September 5, 2012, see Dkt. No. 13. The following constitutes the Court's written resolution of the pending motion.
A. Preliminary ...