United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
This matter is before the Court on The Reger Group, LLC's ("The Reger Group"), Virginia Employment Commission's ("VEC"), and Manufacturing Industrial Base Policy's ("MIBP"), Motions to Dismiss for Failure to State a Claim [Dkt. 9, 14, 32]. For the following reasons, the Court will grant the motions to dismiss.
Lisa Feliciano ("Plaintiff" or "Feliciano") filed the instant lawsuit on December 10, 2014, naming VEC, The Reger Group, and MIBP as defendants. (Compl. [Dkt. 1].) Plaintiff was a former federal contractor employed with The Reger Group, a firm that provides support to MIBP, a component of the U.S. Department of Defense. (Compl. at 1.) On October 21, 2013 she was terminated. ( Id. ) She alleges her termination was due to "discrimination and defamation." ( Id. ) According to Plaintiff, she was wrongfully terminated after she got sick, was out of work for a week, and diagnosed with anxiety disorder. ( Id. at 2.) She contends her diagnosis made her eligible for short-term disability, but instead of allowing her to take it The Reger Group fired her. ( Id. at 2)
From her complaint, it appears she asserts three causes of action: (1) defamation; (2) wrongful termination due to discrimination, in violation of Virginia Code § 2.2-3900; and (3) wrongful denial of unemployment benefits. ( Id. at 2-3.) Her complaint does not specify which claim(s) she is asserting against which defendants. This lawsuit is the fourth time she has attempted to assert some variation of these claims in this Court. See Feliciano v. The Reger Grp., et al., No. 1:14cv1218-LMB-TRJ, 2014 WL 6685412 (E.D. Va. Nov. 25, 2014); Feliciano v. The Reger Grp., et al., No. 1:14cv985-GBL-TRJ (E.D. Va. Sept. 10, 2014); Feliciano v. The Reger Grp., et al., No. 1:13cv1572-AJT-TCB (E.D. Va. Mar. 7, 2014), aff'd 573 F.Appx. 301 (4th Cir. 2014).
The Reger Group was the first of the defendants to move to dismiss. The Reger Group argues that the claims are barred by res judicata or, in the alternative, that the claims fail to state any viable claims upon which relief may be granted. (The Reger Grp.'s Mem. in Supp. [Dkt. 11] at 3, 9.) VEC contests whether this Court has jurisdiction to hear claims against it, and also moves to dismiss on the basis that the complaint fails to state any viable claim against it. (VEC's Mem. in Supp. [Dkt. 14] at 1-2.) Finally, MIBP argues sovereign immunity prevents Plaintiff from suing it for defamation. (MIBP's Mem. in Supp. [Dkt. 33] at 7-9.) MIBP also argues that Plaintiff has failed to state a claim against it for wrongful termination or for wrongful denial of unemployment benefits, and, even if the complaint could be construed to state such claims, that Plaintiff's suit is barred by res judicata. ( Id. at 9-11.)
Having been fully briefed and argued, this motion is ripe for disposition.
Plaintiff avers that she was defamed when an MIBP employee allegedly remarked to someone else: "Did you hear Lisa is a terrorist?" (Compl. at 3.) MIBP argues that the defamation claim against it fails because of sovereign immunity. "The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota, 461 U.S. 273, 287 (1983). Although the Federal Tort Claims Act ("FTCA") does waive sovereign immunity for tort claims, claims of slander and libel are expressly barred by the intentional tort exception to the FTCA. 28 U.S.C. § 2680(h) ("The provisions of this chapter shall not apply to... any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."). "Defamation" is simply Virginia's term for libel and slander. See Jordan v. Donahoe, No. 3:12-cv-759, 2013 WL 2950516, at *4 (E.D. Va. June 13, 2013), aff'd 549 F.Appx. 213 (4th Cir. 2014). The government has not waived sovereign immunity for defamation suits, so Plaintiff's defamation claim must fail. See id. (dismissing defamation claim against the postmaster general of the United States); see also Feliciano, 2014 WL 6685412, at *3 ("Because Congress has not authorized defamation claims against the United States, and Feliciano argues it was a government employee who made the allegedly defamatory statement, the defamation claim against MIBP is barred by sovereign immunity, even assuming that Feliciano provided enough detail in her complaint to make out a proper claim, which she has not.").
B. The Reger Group
The Reger Group argues Plaintiff's lawsuit against it is barred by res judicata. "Motions to dismiss under the doctrine of res judicata are properly reviewed under the standard for dismissal set forth in Federal Rule of Civil Procedure 12(b)(6)." Walls v. Wells Fargo Bank, N.A., No. 1:13cv623, 2013 WL 3199675, at *2 (E.D. Va. June 20, 2013). Therefore, the Court should assume that the facts alleged in the complaint are true and draw all reasonable inferences in the plaintiff's favor. Id. Res judicata bars allegations which were brought, and allegations which could have been brought, in the previous suit. Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004).
Res judicata applies when the following three elements are satisfied: "(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies and (3) a subsequent suit based on the same cause of action." Id. at *3 (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990)). Plaintiff's claims for defamation and wrongful termination are barred by res judicata. In two of the previous actions against The Reger Group, Plaintiff asserted defamation and wrongful termination claims. See Feliciano, 2014 WL 6685412, at *2. In each of those actions, the dismissal of Plaintiff's complaint, including affirmance of one of those decisions by the Fourth Circuit, are adjudications on the merits. McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009). Therefore, Plaintiff's claims for defamation and wrongful termination against The Reger Group are barred by res judicata.
Plaintiff's claim against The Reger Group for wrongful denial of employment benefits must also fail, albeit for a different reason. Virginia Code § 60.2-625 requires that a party seeking to appeal a decision of the VEC must file its petition "in the circuit court of the county or city in which the individual who filed the claim was last employed." Va. Code § 60.2-625(A). The VEC and any other party to the administrative procedures before the VEC shall be named as defendants in such a ...