Opinion
C21-5421-BHS-SKV
11-05-2021
D. ALEXANDRA WOLFE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
S. KATE VAUGHAN United States Magistrate Judge
I. INTRODUCTION
Plaintiff D. Alexandra Wolfe, a former employee of the United States Department of Veterans Affairs (“VA”), initially filed this civil action on April 12, 2021, in Cowlitz County District Court against her former coworker, Christine Randall, alleging Ms. Randall made fraudulent statements about Plaintiff that ultimately cost Plaintiff her job. See Dkt. 1-1 at 2-3. On June 4, 2021, after removing the case to this Court, the United States of America substituted itself into the case as the sole party defendant. See Dkt. 1; Dkt. 2. It then moved to dismiss Plaintiff's claim for lack of subject matter jurisdiction. Dkt. 9. Plaintiff did not oppose Defendant's Motion, but objected to dismissal and sought remand of the case in an unfiled Motion to Change Venue. See Dkt. 12-1. Having thoroughly considered the parties' briefing 1 and the relevant record, the Court finds federal jurisdiction lacking, but concludes this is the only forum in which Plaintiff could pursue her tort claim. Defendant's Motion to Dismiss, Dkt. 9, should therefore be GRANTED.
II. BACKGROUND
On April 12, 2021, Plaintiff filed a Notice of Small Claim in Cowlitz County District Court against Ms. Randall. See Dkt 1-1. Plaintiff's Notice of Small Claim alleged that while both she and Ms. Randall were employed by the VA, Ms. Randall accused Plaintiff of “numerous allegations that were fraudulent, ” which forced Plaintiff to hire a lawyer to “defend her job” and ultimately resulted in her termination. Id. at 3. The Notice also sought $10,000 in damages to account for Plaintiff's “legal fees, lack of income, federal career, reputation and the effects of this to [Plaintiff's] physical and mental health.” Id.
On June 4, 2021, Defendant removed the case to this Court pursuant to 28 U.S.C. § 1442(a)(1), alleging that because Plaintiff's claim alleged wrongful conduct by Ms. Randall while Ms. Randall was acting in the scope of her employment with the VA, it fell within the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and could only be brought pursuant to that statute in federal court. Dkt. 1 at 2. Defendant also filed a Notice of Substitution pursuant to 28 U.S.C. § 2679(d)(1), substituting itself into the case as the sole party defendant on the ground that the United States is the real party in interest when tort claims are brought under the FTCA against federal employees acting within the scope of their employment. Id.; Dkt. 2. The Notice of Substitution was based on the Certification of Tessa M. Gorman, Acting United States Attorney for the Western District of Washington, which provided that at all times and in all respects relevant to Plaintiff's allegations, Ms. Randall was an employee of the United States acting within the scope of her employment with the VA. Dkt. 2 at 1; Dkt. 2-1 at 2. 2
On July 13, 2021, the Court substituted in the United States as the sole party defendant in this action. That same day, Defendant moved to dismiss Plaintiff's lawsuit, alleging the Court lacked subject matter jurisdiction over her claim. Dkt. 9 at 3-5. On July 28, 2021, Plaintiff emailed (but did not file) a Motion to Change Venue to counsel for Defendant and to the Court's Courtroom Deputy, which Defendant subsequently opposed. See Dkt. 12 at 1; Dkt. 12-1. Although Plaintiff's Motion is styled as a “Motion to Change Venue, ” it responds to the arguments set forth in Defendant's Motion to Dismiss. Because Plaintiff did not otherwise respond to Defendant's Motion, under Federal Rule of Civil Procedure Rule 8(e), the Court considers Plaintiff's Motion to Change Venue as an opposition to Defendant's Motion to Dismiss and Defendant's response as a reply.
Rule 8(e) provides that “[p]leadings must be construed so as to do justice.”
III. DISCUSSION
A. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(1), dismissal of an action is appropriate when the Court lacks subject matter jurisdiction over the claims. In considering a motion to dismiss for lack of subject matter jurisdiction, the Court assumes as true the factual allegations in the complaint and resolves any factual ambiguities in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citation omitted). The Court may not, however, draw any jurisdictional inferences in favor of the plaintiff. See Norton v. Larney, 266 U.S. 511, 515 (1925); Drakos, 140 F.3d at 131 (citation omitted).
Defendant moves to dismiss Plaintiff's lawsuit under Rule 12(b)(1), arguing that the Court lacks subject matter jurisdiction because the United States, as Defendant, has sovereign 3 immunity. Dkt. 9 at 3-4. Alternatively, Defendant moves to dismiss on jurisdictional grounds because Plaintiff failed to present her claim to the VA for consideration before bringing her action in court. Id. at 5.
1. Sovereign Immunity
The United States, as a sovereign, is ordinarily immune from suit. Honda v. Clark, 386 U.S. 484, 501 (1967) (citations omitted). That being said, Congress can waive the United States' sovereign immunity and, in doing so, defines the conditions under which lawsuits against the government are permitted. United States v. Sherwood, 312 U.S. 584, 586-87 (1941) (citations omitted). Such waivers are strictly construed. Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted). The plaintiff in a lawsuit against the United States must point to an unequivocal waiver of sovereign immunity by the government. Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998) (citation omitted). Whether the United States has waived its sovereign immunity is a question of subject matter jurisdiction. Id. (citation omitted).
Congress waived the United States' sovereign immunity when enacting the FTCA, which permits actions for damages against the United States for injuries caused by the wrongful (or tortious) conduct of United States agents or employees acting within the scope of their employment to the extent that a private party would be liable under state law. 28 U.S.C. § 1346(b)(1); Millbrook v. United States, 569 U.S. 50, 52 (2013). Pursuant to the statute, tort claims against employees of the United States acting within the scope of their employment can only be brought under the FTCA in federal court. 28 U.S.C. § 2679(b)(1); 28 U.S.C. § 2679(d)(2); see also Green v. Haul, 8 F.3d 695, 698 (9th Cir. 1993). But while the FTCA broadly waives the government's immunity from suit for such claims, it also excepts out a number of tort claims from its waiver. Millbrook, 569 U.S. at 52. One such exception preserves 4 the Government's immunity from suit for intentional torts, i.e., “[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). While not explicitly enumerated in the statute, claims for defamation are also barred by this provision. Guidry v. Durkin, 834 F.2d 1465, 1471 (9th Cir. 1987) (citing 28 U.S.C. § 2680(h)) (“The FTCA is unavailable to [the plaintiff] for the reason that defamation actions are expressly barred by that statute.”).
Plaintiff's Notice of Small Claim does not invoke the FTCA; however, it alleges that Ms. Randall, an employee of the federal government, accused her of “numerous allegations that were fraudulent, ” forcing her to hire an attorney and ultimately resulting in her termination. Dkt. 1-1 at 3. Further, it seeks monetary damages for injuries sustained by Plaintiff as a result of Ms. Randall's conduct. Id. Plaintiff's claim therefore alleges injury caused by the wrongful acts of Ms. Randall, who was acting within the scope of her employment as a federal employee at the time of her conduct. See Dkt. 2. Given this, it seeks relief covered by the FTCA. See 28 U.S.C. § 1346(b)(1).
Defendant argues that in spite of the FTCA's waiver of sovereign immunity for the wrongful acts of federal employees, Plaintiff's claim must be dismissed because it is a claim for defamation, and therefore is excluded from the Act's waiver. Dkt. 9 at 4. Plaintiff's Notice of Small Claim does not specify what claim Plaintiff is bringing. Under Washington law, however, a plaintiff states a claim for defamation when alleging “falsity, an unprivileged communication, fault, and damages.” Mark v. Seattle Times, 96 Wn.2d 473, 486 (1981) (citation omitted). 5 Thus, by alleging Ms. Randall made false statements about Plaintiff that resulted in damages, Plaintiff's claim is reasonably construed as one for defamation. And because the FTCA does not waive the United States' sovereign immunity from suits alleging defamation, Plaintiff cannot maintain her suit in court.
The Court construes Plaintiff's claim under Washington law because the FTCA waives the federal government's sovereign immunity to the extent that a private party would be liable under state law. 28 U.S.C. § 1346(b)(1). Here, Ms. Randall's alleged conduct occurred in Washington, meaning Washington law would apply to determine liability if Plaintiff's claim were to proceed.
In opposing Defendant's Motion, Plaintiff does not challenge Defendant's classification of her claim as one for defamation. Instead, she asks the Court to remand her case to Cowlitz County District Court because she did not choose to file it in federal court. Dkt. 12-1 at 3. She further contends that she is not suing the United States, only Ms. Randall. Id. at 4. But Plaintiff sued Ms. Randall for tortious conduct that Ms. Randall engaged in while acting within the scope of her employment. See Dkt. 2. Plaintiff's claim therefore falls within the FTCA, see 28 U.S.C. § 1346(b)(1), and the United States was necessarily substituted in as the sole party defendant in this action, see 28 U.S.C. § 2679(d)(1). Further, because Plaintiff's claim falls within the FTCA, it can only be brought pursuant to the FTCA in this Court. 28 U.S.C. § 2679(b)(1); 28 U.S.C. § 2679(d)(2); Green, 8 F.3d at 698. And because the FTCA does not waive Defendant's immunity from suit for defamation claims, Plaintiff's claim should be dismissed for lack of subject matter jurisdiction.
The fact that Ms. Randall was acting within the scope of her employment was conclusively determined when Ms. Gorman certified as much and Plaintiff failed to challenge the certification. See Green, 8 F.3d at 698 (citing 28 U.S.C. § 2679(d)(1)-(4)) (“The Attorney General's decision regarding scope of employment certification is conclusive unless challenged.”).
2. Failure to Present Claim to VA for Consideration
To the extent Plaintiff's claim could be construed as a tort claim for something other than defamation, her lawsuit should still be dismissed. An FTCA action can only be instituted in court once a plaintiff has “first presented the claim to the appropriate Federal agency” and the claim has been “finally denied by the agency in writing and sent by certified or registered mail.” 6 28 U.S.C. § 2675(a). A claim is deemed presented when the plaintiff executes and presents a Standard Form 95 or other written notification of an incident to the appropriate federal agency, accompanied by a claim for money damages in a sum certain. See 28 C.F.R. § 14.2. Absent compliance with this requirement, courts cannot entertain FTCA suits on jurisdictional grounds. See Wiseman v. United States, 976 F.2d 604, 605 (9th Cir. 1992); Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985) (citation omitted).
Here, Defendant has submitted evidence indicating that Plaintiff failed to first present her tort claim to the VA prior to filing this action, see Dkt. 10, and Plaintiff does not contend otherwise. Thus, her lawsuit should also be dismissed for lack of jurisdiction on this ground.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss, Dkt. 9, should be GRANTED.
V. OBJECTIONS
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within fourteen (14) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on November 19, 2021 . 7