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White v. United States

United States District Court, W.D. Virginia, Harrisonburg Division

April 29, 2016

JOHN WHITE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          REPORT & RECOMMENDATION

          JOEL C. HOPPE, Magistrate Judge.

         This matter is before the Court for a report and recommendation on the motion to dismiss filed by the United States of America. ECF No. 6. The Court held oral argument on April 26, 2016. Having considered the parties' filings, all supporting materials, and the applicable law, I respectfully recommend that the presiding District Judge grant the motion to dismiss and dismiss the action without prejudice for lack of subject-matter jurisdiction.

         I. Background

         Plaintiff John White, proceeding pro se, brought this action in Virginia state court against Sailaja Rueff for defamation and intentional infliction of emotional distress. The United States of America removed the action to federal court. Pursuant to 28 U.S.C. § 2679(d), [1] the United States Attorney, as the Attorney General's designee, see 28 C.F.R. § 15.4(a), certified that Rueff was acting within the scope of her employment at the time of the alleged conduct. Certification, ECF No. 1-2. United States District Judge Michael F. Urbanski dismissed the claims with respect to Rueff, finding that the exclusive remedy was an action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and ordered that the United States be substituted for Rueff as the Defendant. ECF No. 5. The United States moved to dismiss the action for lack of subject matter jurisdiction, arguing that the FTCA's limited waiver of sovereign immunity excluded claims for and arising out of defamation. Def's Mem. Supp. Mot. to Dismiss, ECF No. 7. In response, White asserts that Rueff's statements were demonstrably false, and he challenges the certification that Rueff was acting within the scope of her employment. ECF Nos. 9-11. White asks that the Court remand the case to state court so that he may proceed against Rueff. ECF No. 10, at 2; ECF No. 11, at 1.

         II. Statement of Facts

         In the summer of 2013-the time of the alleged incident-White was an employee of the Federal Emergency Management Agency ("FEMA"). At that time, Rueff also was an employee of FEMA and one of White's co-workers. Cormack Aff. ¶¶ 4, 6, ECF No. 7-1. In July 2013, Rueff complained to her supervisor, John Cormack, about White's behavior. Report of Investigation 5, ECF No. 9-1. FEMA opened an official investigation into Rueff's complaints, and on August 8, 2013, Rueff was interviewed as part of this investigation at the FEMA office in Winchester, Virginia. Cormack Aff. ¶ 5. According to White's Complaint, she told an investigator that White "always carries a gun' in the workplace." Compl. 3, ECF No. 1-1. White alleges that Rueff's allegation was false and was proven so during the investigation. Id.; see also Report of Investigation 6 (noting that the firearm claim was found not substantiated). White also alleges that Rueff intended to inflict emotional distress on him by making this allegation. Compl.

         3. White has been on administrative leave since August 8, 2013. Id .[2]

         III. Discussion

         The motion to dismiss and White's responses present two threshold issues: (1) whether White's claims for defamation and intentional infliction of emotional distress are barred by sovereign immunity, and (2) whether Rueff was acting within the scope of her employment such that the United States was properly substituted for her as the Defendant in this action. These issues go to the Court's subject matter jurisdiction to decide the merits of the case. Stephens v. United States, No. 1:15cv726, 2015 U.S. Dist LEXIS 107523, at *9 (E.D. Va. Aug. 14, 2015). The plaintiff bears the burden of proving subject matter jurisdiction. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). If the Court does not have jurisdiction, it must dismiss the case.

          A. Immunity from Claims

         The United States is immune from all suits against it unless it has expressly waived sovereign immunity. Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). The FTCA is a limited waiver of sovereign immunity "for certain torts committed by federal employees" while they were acting in the scope of their employment. FDIC v. Meyer, 510 U.S. 471, 475, 476-77 (1994) (citing 28 U.S.C. § 1346(b)(1)). The statute imposes tort liability on the United States "in the same manner and to the same extent as a private individual under like circumstances, " 28 U.S.C. § 2674, and to the extent that "a private person[] would be liable to the claimant in accordance with the law of the [state] where the act or omission occurred, " 28 U.S.C. § 1346(b)(1).

         There is an exemption to this waiver of sovereign immunity for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). "Defamation' is simply Virginia's term for libel and slander." Feliciano v. Reger Group, No. 1:14cv1670, 2015 U.S. Dist. LEXIS 45229, at *4 (E.D. Va. Apr. 7, 2015). Accordingly, White's claim for defamation falls squarely within this exemption. See Nimocks v. United States, Nos. 93-1074 to -1077, 93-1085, 1993 U.S.App. LEXIS 31113, at *3 (4th Cir. Nov. 30, 1993); Chapman v. Rahall, No. 5:05cv32, 2006 WL 229180, at *2 (W.D. Va. Jan. 31, 2006) (citing Johnson v. Carter, 983 F.2d 1316, 1323 n.9 (4th Cir. 1993) (en banc), overruled on other grounds by Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)).

         A claim for intentional infliction of emotional distress, however, is not expressly excluded from the waiver. Harms v. United States, No. 91-2627, 1992 U.S.App. LEXIS 20374, at *11 (4th Cir. Aug. 24, 1992); Chapman, 2006 WL 229180, at *2. Such a claim may nonetheless be barred where it arises out of "conduct that would establish an excepted cause of action.'" Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994) (quoting McNeily v. United States, 6 F.3d 343, 347 (5th Cir. 1993)); accord Harms, 1992 U.S.App. LEXIS 20374, at *13-14. In his Complaint, White asserts that Rueff's allegedly defamatory statements were intended to cause him emotional distress. He cites no other conduct in support of the claim. It is thus inescapable that the conduct giving rise to White's claims for defamation and intentional infliction of emotional distress is the same. Accordingly, both claims fall within the exemption to the waiver of sovereign immunity. See Harms, 1992 U.S.App. LEXIS 20374, at *14-15; Chapman, 2006 WL 229180, at *2.

          B. Substituting the United States ...


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