Opinion
C. A. 21-2686-TLW-SVH
07-13-2022
Travis Price, Plaintiff, v. City of Rock Hill and Ralph Norman, in his individual capacity, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
In this case, a citizen asserts a claim for defamation against a Congressman. The United States seeks to substitute itself for the Congressman and seeks dismissal of any claim pending against it, arguing the court lacks subject matter jurisdiction.
Travis Price (“Plaintiff”) originally filed the instant complaint in the York County Court of Common Pleas. The case was removed to this court on August 20, 2021. Plaintiff asserts multiple claims against the City of Rock Hill (“City”) and one claim against the Honorable Ralph Norman, United States Representative for the 5th Congressional District of South Carolina (“Norman”) for defamation, a claim also asserted against the City. [See ECF No. 24 ¶¶ 149-175].
This matter comes before the court on the United States' motion to substitute and dismiss, brought pursuant to Fed.R.Civ.P. 12(b)(1). [ECF No. 49]. The motion having been fully briefed [ECF Nos. 52, 53], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant the United States' motion.
I. Factual and Procedural Background
As has been recounted by the court previously [see ECF No. 39 at 2-8], Plaintiff alleges on June 23, 2021, he was attacked by a police officer J. Moreno (“Moreno”) without justification and thereafter falsely arrested. [ECF No. 24 ¶¶ 14-16, 18, 20, 36]. Later that day, the City issued an official written statement, indicating that Plaintiff was noncompliant, belligerent, and physically combative. Id. ¶ 42. The next day, Norman, who represents Rock Hill and the surrounding communities in Congress, posted allegedly-defamatory statements concerning Plaintiff on his official “Rep. Ralph Norman” Facebook page. Id. ¶ 73.
The incident involving Plaintiff was recorded by a witness and resulted in “substantial public backlash” and protests. Id. ¶¶ 38-39. On July 8, 2021, Moreno was terminated, arrested, and charged for assault and battery regarding his treatment of Plaintiff, and the City dismissed the criminal charges against Plaintiff, confirming at a press conference that “Plaintiff did not commit any criminal acts and that Plaintiff did nothing wrong.” Id. ¶ 65.
On July 15, 2021, Norman updated his social media post, but, as alleged by Plaintiff, “did not retract the prior defamatory statements about Plaintiff,” did not mention Plaintiff's innocence, nor did Norman apologize. Id. ¶¶ 103-104.
Plaintiff's operative amended complaint was filed on October 21, 2021. [See ECF No. 24]. On November 19, 2021, Norman filed a motion to dismiss, primarily arguing as follows:
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of this case against Congressman Norman because Mr. Price's claim is barred by the doctrine of sovereign immunity. The only potential waiver of sovereign immunity is the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”), which is inapplicable to Mr. Price's claim because he has failed to first exhaust his administrative remedies, and because the FTCA expressly precludes recovery for the type of claims asserted.[ECF No. 33-1 at 12].
On March 16, 2022, the undersigned issued a report and recommendation, recommending the district judge deny Norman's motion to dismiss, noting that although few courts have addressed the primary issue raised by Norman's motion, “review of those that have indicate that a party is premature in invoking the immunity provisions of the FTCA, as amended by the Westfall Act, prior to availing himself of the procedural provisions of the Westfall Act as found in 28 U.S.C. § 2679.” [ECF No. 39 at 14]. On April 27, 2022, the district judge adopted the report and recommendation, directing Norman “to proceed with certification from the Attorney General as outlined in 28 U.S.C. § 2679 and 28 C.F.R. § 15.3.” [ECF No. 45 at 3].
As noted by the Fourth Circuit, and discussed more below, the Westfall Act provides “elaborate statutory procedures for (1) notifying the Attorney General of the suit, (2) having the Attorney General certify his actions as ‘within the scope of employment,' and (3) petitioning the court for such certification in the event that the Attorney General refused to do so.” Salazar v. Ballesteros, 17 Fed.Appx. 129, 131-32 (4th Cir. 2001) (citing 28 U.S.C. §§ 2679(c), (d)).
Currently before the court is the United States' motion to substitute and dismiss, in which the United States certifies that Norman was acting within the scope of his employment when he issued the allegedly-defamatory statements at issue, additionally arguing that Plaintiff's claim must be dismissed against the United States for failure to exhaust his administrative remedies pursuant to the FTCA. [ECF No. 49-1 at 1].
II. Discussion
A. United States' Motion to Substitute
The FTCA is the exclusive remedy for “personal injury . . . arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b). As amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), the FTCA provides a mechanism for the United States to substitute itself as defendant for employees sued individually. As relevant here, upon certification by the Attorney General's delegate that a federal employee was acting within the scope of his office or employment at the time of the incident out of which a state law claim arises, any civil action arising out of the incident shall be deemed an action brought against the United States, and the United States shall be substituted as sole defendant with respect to those claims. 28 U.S.C. at § 2679(d)(1). However, the Supreme Court has ruled that “[this] statute is fairly construed to allow [plaintiffs] to present to the District Court their objections to the Attorney General's scope-of-employment certification.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 436-37 (1995). In other words, “[t]he Attorney General's certification is conclusive unless challenged.” Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997).
“[T]he scope-of-employment certification is prima facie evidence that the defendant federal employee acted within the scope of his employment, thereby placing the burden on the plaintiff to prove otherwise.” Id. at 1155. Plaintiff must present “specific evidence or the forecast of specific evidence that contradicts the Attorney General's certification decision, not mere conclusory allegations and speculation.” Id. “To assist in this inquiry, the district court, in its discretion, may allow limited discovery or conduct an evidentiary hearing on the matter of scope of employment. However, such a hearing is unnecessary if the certification, pleadings, affidavits, and any supporting documents fail to reveal an issue of material fact.” See, e.g., Lee v. United States, 171 F.Supp.2d 566, 574 (M.D. N.C. 2001) (citing Martinez, 111, F.3d at 1155)). “At all stages of the process, it is for the district court to weigh the sufficiency of the evidence, to determine whether genuine issues of fact exist, and ultimately to resolve these factual issues . . . to determine whether the certification should stand.” Borneman v. United States, 213 F.3d 819, 827 (4th Cir. 2000).
In making this determination, courts should apply “the law of the state in which the tort occurred.” Maron v United States, 126 F.3d 317, 323-24 (4th Cir. 1997). Here, under South Carolina law, “[a]n act falls within the scope of the servant's employment if it was reasonably necessary to accomplish the purpose of the servant's employment, and it was done in furtherance of the master's business.” Wade v. Berkeley Cnty., 498 S.E.2d 684, 688 (S.C. Ct. App. 1998) (citation omitted). “What is within the scope of employment may be determined by implication from the circumstances of the case.” Id. (citation omitted). South Carolina law recognizes that “[a] principal may be held liable for defamatory statements made by a servant acting within the scope of his employment or within the scope of his apparent authority.” Abofreka v. Alston Tobacco Co., 341 S.E.2d 622, 625 (S.C. 1986) (citing Restatement (Second) of Agency § 247); see also Johnson v. Life Ins. Co. of Ga., 88 S.E.2d 260, 263 (S.C. 1955) (collecting cases holding principals liable for the statements of their employees or agents); see also Does 1-10 v. Haaland, 973 F.3d 591, 600 (6th Cir. 2020) (holding that “unsolicited comments by elected officials on an event of widespread public interest,” via social media, fall within the scope of their employment for purposes of the FTCA).
Plaintiff argues that the United States' motion to substitute should be denied because he challenges the certification and is entitled to conduct discovery and have an evidentiary hearing on the issue. Plaintiff argues “limited discovery is permitted in a Westfall Act case where a plaintiff alleges sufficient facts that, if taken as true, would establish that the defendant's actions exceeded his scope of employment.” [ECF No. 52 at 6 (citing Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009))]. Plaintiff argues the following facts he has alleged justify allowing him to conduct limited discovery on the scope of employment issue:
Plaintiff expressly and explicitly pled that Norman was being sued Norman in his individual capacity, rather than in his official capacity as a Member of Congress. Plaintiff pled that Norman added false allegations to his original social media post that were not included in the City's official statement and did not remove
negative references to Plaintiff after the City's retraction of its official statement.Id. at 7.
Plaintiff has failed to carry his burden to show an issue of material fact concerning whether Norman was acting within the scope of his employment when he issued the allegedly-defamatory statements. First, Plaintiff does not cite, nor is the court aware, of case law indicating that because Plaintiff sued Norman in his individual, as opposed to official, capacity, this captioning bears upon whether Norman's actions exceeded the scope of his employment.
Second, Plaintiff alleges that Norman made knowingly-false statements he failed to retract. This, too, is insufficient to warrant discovery. Even if true, the correct inquiry is not the wrongfulness of the conduct, but the type of act at issue that is dispositive: in this case, a Congressman speaking to his constituents about a matter of public concern,. See, e.g., Berkeley-Dorchester Ctys. Econ. Dev. Corp. v. U.S. Dep't of Health & Hum. Servs., 395 F.Supp.2d 317, 323-24 (D.S.C. 2005) (“Applying South Carolina law-which takes a decidedly broad view of acts in furtherance of the master's business . . . even if Hill made statements to the press that were allegedly untruthful or misleading, Hill was nonetheless rendering those statements solely in her [official] capacity ”); see also Klayman v. Obama, 125 F.Supp.3d 67, 83 (D.D.C. 2015) (“D.C. law is clear that it is the ‘type of act' and ‘not the wrongful character of that act' that is relevant.”).
In Berkeley-Dorchester, the court further held “the record is sufficiently developed and that no genuine questions of material fact warrant additional discovery or an evidentiary hearing on the scope of Hill's employment.” 395 F.Supp.2d at 322 n.7.
Here, the Director of the Torts Branch of the Civil Division of the United States Department of Justice, acting pursuant to 28 C.F.R. § 15.4(a), issued a Westfall Act certification that Norman was acting within the scope of his office as a Member of Congress at the time of the incidents out of which the Plaintiff's defamation claim arose. [ECF No. 49-2]. Where “the certification, the pleadings, the affidavits, and any supporting documentary evidence do not reveal an issue of material fact,” the employee should not be “burdened with discovery.” Gutierrez de Martinez, 111 F.3d at 1155. The Westfall Act therefore requires the substitution of the United States as defendant in this action.
Accordingly, the undersigned recommends Plaintiff's request for limited discovery be denied and the United States be substituted for Norman in this action.
B. United States' Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
As held by the Supreme Court:
Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the “terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.”F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). FTCA contains a limited waiver of sovereign immunity, subject to numerous exceptions. See 28 U.S.C. § 2680 (listing exceptions). To advance a tort claim against the United States, plaintiff must establish that he complied with the administrative presentment requirements of the FTCA, 28 U.S.C. § 2675, and bears the burden of establishing that an exception to the FTCA's limited waiver of sovereign immunity does not apply. Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005); see also Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986) (holding a plaintiff, prior to filing an action under the FTCA in federal court, must “first present[] the claim to the appropriate Federal agency,” noting “[i]t is well-settled that the requirement of filing an administrative claim is jurisdictional and may not be waived.”).
The United States argues that the court should dismiss Plaintiff's FTCA claim because he has not exhausted his administrative remedies. [ECF No. 49-1 at 10]. Plaintiff responds only that he has not had the opportunity to exhaust his administrative remedies, in that he brought suit against Norman, not the United States, and “[i]f the Court is inclined to grant United States' Motion to Substitute, Plaintiff requests that the Court allow Plaintiff the appropriate time to comply with 28 § U.S.C. 2675, to the extent he is required to do so.” [ECF No. 52 at 8].
In the alternative, the United States argues Plaintiff's FTCA claim should be dismissed because the FTCA's limited waiver of sovereign immunity is subject to numerous exceptions, including the exception that preserves the government's immunity from suit 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.” See 28 U.S.C. § 2680(h). Plaintiff does not address this argument.
Plaintiff has not carried his burden to prove this court has jurisdiction, warranting dismissal of his FTCA claim pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff has failed to exhaust his administrative remedies and, accordingly, the undersigned recommends the district judge grant the United States' motion to dismiss, dismissing Plaintiff's FTCA claim without prejudice to refile, if he so chooses, following exhaustion of his administrative remedies.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant the United States' motion to substitute it as a defendant in this action and grant its motion to dismiss, dismissing Plaintiff's FTCA claim without prejudice. [ECF No. 49].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).