                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                                     )
ELIZABETH V. JACKSON,                                )
                                                     )
                              Plaintiff,             )
                                                     )
               v.                                    )       Civil Action No. 12-0053 (ESH)
                                                     )
UNITED STATES, et al.,                               )
                                                     )
                              Defendants.            )
                                                     )


                                 MEMORANDUM OPINION

       Before the Court is defendants’ motion to dismiss the complaint for lack of subject matter

or personal jurisdiction. See Fed. R. Civ. P. 12(b)(1) & (2). For the reasons stated herein, the

Court will dismiss the complaint for lack of subject matter jurisdiction.

                                           BACKGROUND

       This case arises out of allegedly defamatory remarks made by three employees of the

United States Postal Service, Brandon Toatley, John Marx and Avis Davis, about two other

employees, plaintiff Elizabeth V. Jackson and Jerry Ellis-Hemby.1 Plaintiff, who is proceeding

pro se, initially filed a claim for defamation against Toatley, Marx and Davis in the Superior

Court for the District of Columbia, Small Claims and Conciliation Branch, seeking between

$2,500 and $5,000 in damages. In its entirety, plaintiff’s claim reads:

       Defamation of character, discussing myself & co-worker, Jerry Ellis-Hemby’s,
       suspension on the workroom floor with our peers. And referring to us as bitches


       1
         Ellis-Hemby filed a separate suit against the same three defendants, which was
dismissed after the plaintiff failed to respond to a motion to dismiss. Ellis-Hemby v. Toatley et
al., No. 12-cv-0052 (D.D.C. Apr. 24, 2012).
        in the process. From 12-10-11 to present at USPS Friendship Station (Zone 7).

        Upon review of plaintiff’s claim, the Attorney General certified under the Westfall Act

that all three defendants “were federal employees acting within the scope of their office or

employment at the time of the allegations giving rise to the complaint” and therefore, removed

the matter to federal court and substituted itself as the sole defendant. (Notice of Removal at 3,

Jan. 12, 2012 [Dkt. No. 1].) On March 19, 2012, defendants filed the pending motion to dismiss,

which plaintiff opposed on April 20, 2012.

                                             ANALYSIS

I.      WESTFALL ACT CERTIFICATION

        Before turning to the merits of the motion to dismiss, the Court will address plaintiff’s

apparent challenge to the Westfall Act certification.1 The Federal Employees Liability Reform

and Tort Compensation Act of 1988, also known as the Westfall Act, “accords federal

employees absolute immunity from common-law tort claims arising out of acts they undertake in

the course of their official duties.” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009).

Under the Act, “when a federal employee is named in a tort suit, the Attorney General or his

designee may certify that the employee was ‘acting within the scope of his office or employment

at the time of the incident out of which the claim arose.’” Id. (quoting 28 U.S.C. § 2679(d)).

“Upon certification . . . any civil action or proceeding commenced upon such claim in a State

court shall be removed . . . to the district court of the United States for the district and division



        1
        It is not actually clear from plaintiff’s response to the motion to dismiss whether she is
challenging the scope-of-employment certification. (See Pl.’s Opp’n at 2 (“All of the defendants
involved did not operate within their scope of responsibilities.”).) However, since plaintiff is
proceeding pro se, the Court will assume that she is.

                                                   2
embracing the place in which the action or proceeding is pending. Such action or proceeding

shall be deemed to be an action or proceeding brought against the United States under the

provisions of [the Federal Tort Claims Act] . . . , and the United States shall be substituted as the

party defendant.” 28 U.S.C. § 2679(d)(2).

        A Westfall Act certification is conclusive for the purposes of removal, see 28 U.S.C. §

2679(d)(2), but “[a] plaintiff may contest the Attorney General’s scope-of-employment

certification before a district court.” Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009).

Once a plaintiff challenges the scope-of-employment certification, the certification “constitute[s]

prima facie evidence that the employee was acting within the scope of his employment.” Id. To

rebut the certification, a plaintiff must “alleg[e] sufficient facts that, taken as true, would

establish that the defendant[‘s] actions exceeded the scope of [his] employment.” Id. Upon

consideration of plaintiff’s complaint and the additional facts included in her response to the

motion to dismiss, the Court concludes that she has not met this standard since she provides no

facts whatsoever but merely refers to the conduct as “unethical, unprofessional [and]

unjustified.”

II.     SUBJECT MATTER JURISDICTION

        Having found no basis for rejecting the Westfall Act certification, what is now before the

Court is a tort suit for damages against the United States. In these circumstances, “the only

possible basis for subject matter jurisdiction [is] the Federal Tort Claims Act (FTCA), 28 U.S.C.

§ 1346(b).” Epps v. U.S. Atty Gen., 575 F. Supp. 2d 232, 238 (D.D.C. 2008); see also Benoit v.

U.S. Dept. of Agriculture, 608 F.3d 17, 20 (D.C. Cir. 2010) (“Suits for damages against the

United States under the common law must be brought pursuant to the limited waiver of


                                                   3
sovereign immunity in the FTCA.”). Defendants argue, however, and the Court agrees, that the

FTCA does not give the Court subject matter jurisdiction over plaintiff’s claims.

        A.      No Waiver of Sovereign Immunity

        First, although the FTCA waives the sovereign immunity of the United States with

respect to some torts, it expressly bars suits against the United States with regards to claims of

“libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. §

2680(h). Defamation claims are similarly barred. Gardner v. United States, 213 F.3d 735, 737

n.1 (D.C. Cir. 2000). Accordingly, plaintiff cannot proceed with a defamation claim for

damages against the United States under the FTCA.

        B.      No Exhaustion of Administrative Remedies

        Second, the FTCA requires a plaintiff to exhaust administrative remedies before bringing

suit in federal court:

        An action shall not be instituted upon a claim against the United States for money
        damages for injury or loss of property or personal injury or death caused by the
        negligent or wrongful act or omission of any employee of the Government while
        acting within the scope of his employment, unless the claimant shall have first
        presented the claim to the appropriate Federal agency and his claim shall have
        been finally denied . . . .

28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 113 (1993). The failure to

exhaust prior to filing suit requires dismissal of the case for lack of jurisdiction. See, e.g., Ali v.

Rumsfeld, 649 F.3d 762, 775 (D.C. Cir. 2011) (“[W]e view the failure to exhaust administrative

remedies [under the FTCA] as jurisdictional.” (internal quotations omitted)); Epps, 575 F. Supp.

2d at 238 (exhaustion is “mandatory prerequisite to bringing [an FTCA] claim in court”).

Plaintiff’s complaint does not allege that she exhausted her administrative remedies.

Defendants’ motion to dismiss points this out and attaches as an exhibit a declaration that the

                                                   4
United States Postal Service has no record of plaintiff ever having filed an administrative claim.

(Mot. to Dismiss, Ex. 1, Decl. of Elinor G. Brown ¶¶ 3-4.) Plaintiff’s response to the motion to

dismiss does not mention exhaustion or refer to any prior administrative proceedings.

Accordingly, plaintiff has failed to exhaust her administrative remedies, which provides a second

and independent basis for dismissal of the FTCA claim against the United States.

III.   PERSONAL JURISDICTION

       The United States has also moved to dismiss on the ground that the Court lacks personal

jurisdiction due to plaintiff’s failure to properly serve the summons and complaint. Having

concluded that subject matter jurisdiction is lacking, the Court will not reach the issue of

personal jurisdiction.

                                         CONCLUSION

       Accordingly, the motion to dismiss is granted and the complaint is dismissed for lack of

subject matter jurisdiction. An separate Order accompanies this Memorandum Opinion.



                                                                  /s/
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge

DATE: April 30, 2012




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