             Case: 12-16590     Date Filed: 08/29/2013   Page: 1 of 8


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-16590
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:12-cv-00976-RDB-DAB


WALTER CADMAN,

                                                                 Plaintiff-Appellee,

                                      versus

UNITED STATES OF AMERICA,

                                                             Defendant-Appellant.

                        ___________________________

                  Appeal from the United States District Court
                       for the Middle District of Florida
                      ____________________________

                                (August 29, 2013)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Walter Cadman appeals the district court’s dismissal of his claim against the

United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1),
               Case: 12-16590    Date Filed: 08/29/2013   Page: 2 of 8


2671-80. Because we agree with the district court that Mr. Cadman’s claim is

barred by the libel-slander-misrepresentation exception to the FTCA, we affirm.

                                          I

      In 2008, Mr. Cadman, a federal contractor for Booz-Allen-Hamilton, was

hired by Immigration and Customs Enforcement to help run its “Secure

Communities” program. The program was controversial because it required

participating state and local law enforcement agencies and employees to submit

arrest information to ICE that could later be used for immigration and removal

proceedings.

      Under the supervision of ICE officials, Mr. Cadman was directed to produce

position papers indicating whether participation in the program was statutorily

mandated or optional. Mr. Cadman subsequently delivered position papers to his

supervisors presenting his opinion that the program was mandatory.

      In 2009, ICE officials decided not to enforce mandatory participation and

created an official opt-out policy. When ICE employees continued to take varying

positions on the issue, Mr. Cadman was asked to explore ways to deal with certain

localities’ resistance to participation. Mr. Cadman felt that the resistance was

politically driven and in response to one city’s choice to opt out of the program, he

wrote an e-mail saying, “This is not good, not good at all! . . . Time perhaps for a

full court press?”

                                         2
              Case: 12-16590      Date Filed: 08/29/2013   Page: 3 of 8


      ICE’s inconsistent positions drew attention from a Congressional

Representative, the public, and the press. Amidst this concern, a large number of e-

mails (including Mr. Cadman’s) were released pursuant to a Freedom of

Information Act request. During this controversy, John Morton and Brian Hale,

agents of ICE, published statements attributing ICE’s inconsistent positions and

problems to Mr. Cadman. In March of 2011, ICE and Booz-Allen-Hamilton

terminated their contracts with Mr. Cadman. Agent Morton and Agent Hale issued

further communications to third parties implying that Mr. Cadman’s termination

“would cure or had cured the issues.”

      Mr. Cadman filed an administrative claim with ICE for false light/invasion

of privacy and negligence under the FTCA. After ICE denied the claim in June of

2012, Mr. Cadman filed suit against the United States, alleging that Agents Morton

and Hale had made false statements about him and that their supervisors had

behaved negligently by failing to stop or correct the statements. After determining

that Mr. Cadman’s claims all “arose out of” certain torts—libel, slander, and

misrepresentation—which are expressly exempted under a provision of the FTCA,

the district court dismissed the complaint for lack of subject-matter jurisdiction

under Fed. R. Civ. P. 12(b)(1).

                                          II

      We review de novo a district court’s decision to dismiss a complaint for lack

                                          3
              Case: 12-16590     Date Filed: 08/29/2013   Page: 4 of 8


of subject-matter jurisdiction under the FTCA based on 28 U.S.C. § 2680(h). See

JBP Acquisitions, LP v. United States, 224 F.3d 1260, 1263 (11th Cir. 2000). We

accept the well-pleaded factual allegations of Mr. Cadman’s complaint as true. See

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

                                         A

      “[S]overeign immunity bars suit against the United States except to the

extent that it consents to be sued.” Means v. United States, 176 F.3d 1376, 1378

(11th Cir. 1999). The FTCA provides a limited waiver of sovereign immunity in

some situations, and federal district courts have jurisdiction over certain tort

actions against the United States. See 28 U.S.C. § 1346(b); Means, 176 F.3d at

1378-79. This limited waiver of sovereign immunity does not include suits “arising

out of . . . libel, slander, [or] misrepresentation . . . .” See 28 U.S.C. § 2680(h).

FTCA exemptions, like the one found in § 2680(h), are strictly construed in favor

of the United States. See JBP, 224 F.3d at 1263.

      Mr. Cadman correctly notes that the substantive law which governs his

claims of false light/invasion of privacy and negligence is District of Columbia

law. See 28 U.S.C. § 1346(b)(1) (stating that liability is determined in accordance

with the “law of the place where the act or omission occurred”). The determinative

issue on appeal, however, involves a matter of federal law: whether Mr. Cadman’s

alleged false light/invasion of privacy and negligence claims are barred by §

                                         4
              Case: 12-16590     Date Filed: 08/29/2013   Page: 5 of 8


2680(h). See, e.g., Johnson v. United States, 788 F.2d 845, 851 (2d Cir. 1986)

(“The scope of § 2680(h) is a matter of federal law.”).

                                         B

      More than twenty-five years ago, we specifically addressed whether the torts

of invasion of privacy and intentional infliction of emotional distress come within

the § 2680(h) exemption. See Metz v. United States, 788 F.2d 1528, 1532 (11th

Cir. 1986). We held in Metz that the exceptions in the FTCA are not limited to the

torts specifically named, but instead encompass situations where “the underlying

governmental conduct which constitutes an excepted cause of action is ‘essential’

to plaintiff's claim.” Id. at 1534. See also O’Ferrell v. United States, 253 F.3d

1257, 1265-66 (11th Cir. 2001) (applying Metz and holding that false

light/invasion of privacy claims based on defamatory statements were barred by §

2680(h)).

      Our sister circuits have also ruled that claims for false light/invasion of

privacy are barred by the libel and slander exception in § 2680(h). See Wuterich v.

Murtha, 562 F.3d 375, 379-81 (D.C. Cir. 2009) (holding that invasion of privacy

and false light claims arose out of libel or slander and were barred); Kugel v.

United States, 947 F.2d 1504, 1507 (D.C. Cir. 1991) (concluding that claims based

on “dissemination of [defamatory] information” were barred by the FTCA’s

exemptions). See also Johnson v. Sawyer, 47 F.3d 716, 725 (5th Cir. 1995) (noting

                                          5
               Case: 12-16590     Date Filed: 08/29/2013    Page: 6 of 8


that the district court held a false light claim was barred because “[i]ts essence is

injury to [plaintiff’s] reputation, and it therefore falls under 28 U.S.C. § 2680(h) . .

. .”); Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1206 (9th Cir. 1988) (rejecting an

“attempt to fashion the slander and libel claims into a claim for negligent infliction

of emotional distress . . . ” under the FTCA).

      The underlying conduct in Metz and O’Ferrell—government officials’

statements about the plaintiffs—is similar to the alleged statements that harmed

Mr. Cadman here. See Metz, 788 F.2d at 1535; O’Ferrell, 253 F.3d at 1265-66.

The fact that there was “no other governmental action upon which the [false light

and intentional infliction of emotional distress] claims could rest” was dispositive

in Metz and O’Ferrell. See 788 F.2d at 1535; 253 F.3d at 1265-66. This same

rationale governs here. At bottom, all of the allegedly tortious actions here are

based on “statements, representations, or imputations,” and there is no other

independent government action on which Mr. Cadman’s claims can rest. We

therefore agree with the district court that Mr. Cadman’s claims come within, and

are barred by, the libel-slander-misrepresentation exemption of the FTCA.

                                           C

      Mr. Cadman argues that District of Columbia law recognizes an action for

false light/invasion of privacy different from a traditional action for defamation.

He says that the “representations made about [him] were not necessarily false,” and

                                           6
                Case: 12-16590        Date Filed: 08/29/2013       Page: 7 of 8


so, “they could not have given rise to an action for defamation.” 1 As we explained

in Metz, however, the “proper analysis is a comparison between the plaintiffs’

claim and the ‘traditional and commonly understood definition’ of the torts

excepted by that section, rather than a comparison with the law of any particular

state.” 788 F.2d at 1535 n.8. See also Rodney A. Smolla, Law of Defamation §

10:10 (2d ed. 1999) (explaining that any distinction between false light/invasion of

privacy and defamation is “often elusive . . . and not completely satisfactory”).

Accordingly, we reject Mr. Cadman’s argument that his possible inability to

recover for defamation in the District of Columbia necessarily means that “his

claims must not be for ‘libel [or] slander’ under the FTCA.”

                                                D

       On appeal, Mr. Cadman attempts to re-characterize his negligence claims. In

his complaint, Mr. Cadman alleged that the ICE agents’ statements about him were

negligent, and that there was an overall failure by the supervising agents who were

in charge of the Secure Communities program to train and supervise Agents

Morton and Hale and to mitigate the harm caused by the statements. Mr. Cadman

urges in his brief that “those directly in charge” of the program did not properly

present his work product to Agent Morton and Agent Hale. Moreover, he says that

those in charge failed to advise Agent Morton to review the documentation, which

       1
          See Jankovic v. International Crisis Group, 429 F. Supp. 2d 165, 173 (D.D.C. 2006)
(stating that a “false and defamatory statement” is a required element for a defamation claim).
                                                7
              Case: 12-16590     Date Filed: 08/29/2013      Page: 8 of 8


caused him to “erroneously attribute the problems” with the program to Mr.

Cadman and to “take direct action to terminate [his] employment.”

      Even if we accept Mr. Cadman’s re-characterization of the negligence

claims, they cannot survive for two main reasons. First, the claims cannot

circumvent § 2680(h)’s bar because the sole basis for any harm caused to Mr.

Cadman were the statements made to third parties by Agent Morton and Agent

Hale that cast him in an alleged false light. See O’Ferrell, 253 F.3d at 1265-66

(rejecting an attempt to use a “negligent supervision” theory to avoid the holding

of Metz). No amount of “semantical recasting” can alter this fact. See United

States v. Shearer, 473 U.S. 52, 55 (1985) (stating that “no semantical recasting of

events [could] alter the fact that battery” – which was barred by § 2680(h) – was

the cause of the injury)). Second, the portion of the negligence claim alleging a

“failure to investigate,” which purportedly led to Mr. Cadman’s termination from

Booz-Allen-Hamilton, fails because the harm—interference with contract rights—

is another tort expressly barred by § 2680(h). See 28 U.S.C. § 2680(h) (exempting

claim arising out of “interference with contract rights”).

                                         IV

      For the foregoing reasons, the district court’s dismissal of Mr. Cadman’s

complaint is affirmed.

      AFFIRMED.

                                          8
