United States District Court, W.D. Virginia, Harrisonburg Division
REPORT & RECOMMENDATION
C. HOPPE, Magistrate Judge.
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
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. Â§ 2679(d),  the United States
Attorney, as the Attorney General's designee,
see 28 C.F.R. Â§ 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. Â§Â§ 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.
Statement of Facts
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. Â¶Â¶ 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. Â¶ 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.
White has been on administrative leave since August 8, 2013.
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.
Immunity from Claims
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. Â§ 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. Â§ 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. Â§ 1346(b)(1).
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. Â§ 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)).
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.
Substituting the United States ...