Summary
affirming that defendant acted within the scope of his employment when he sent an allegedly defamatory memorandum "on GSA stationary and in his official capacity as Assistant Regional Administrator"
Summary of this case from Tomscha v. PooleOpinion
No. 04 CIV. 2953 (DLC).
August 20, 2004
Larry Tomscha, pro se, New York, New York, For Plaintiff.
Richard E. Rosberger, Assistant United States Attorney, Southern District of New York, New York, New York, For Defendant.
OPINION AND ORDER
On or about March 19, 2004, Larry Tomscha ("Tomscha") filed this action in New York state court, alleging that he was libeled by Allen Greenberg ("Greenberg"), an Assistant Regional Administrator for the federal government's General Services Administration ("GSA"). Tomscha's claim is based on a memo that Greenberg wrote to GSA management regarding the status of labor negotiations that he supervised. The action was removed to this Court on April 16. On June 24, the Defendant filed a motion to substitute the United States of America (the "Government") for Allen Greenberg and, upon substitution, to dismiss the complaint against the United States. For the following reasons, the Government's motions are granted.
This Opinion follows the parties' convention and uses the spelling employed by Tomscha in his complaint, although the Government has indicated this spelling is incorrect.
Background
The following facts are taken from the complaint and documents on which the complaint relies, unless otherwise indicated. Tomscha is the President of the American Federation of Government Employees Local 2431 (the "Union"). Greenberg is employed by the GSA as an Assistant Regional Administrator for Public Buildings Service ("PBS"), Northeast and Caribbean Region. His office is located in New York. The Government has submitted the affidavit of the Acting Director of the Human Resources Branch of the GSA in the region in which Greenberg is employed (the "Human Resources Director") and the job description for Greenberg's position. The Human Resources Director states that Greenberg's responsibilities include preparing and executing annual plans and budgets for building services programs in his region, as well as administering and controlling funds and personnel. Specifically, Greenberg is charged with overseeing the distribution of annual cash awards to regional PBS employees and throughout his tenure has overseen negotiations with the Union concerning this distribution.
On or about April 1, 2003, Greenberg issued a memorandum entitled "Update on PBS Linking Budget to Performance Awards" (the "Memorandum"). The Memorandum is written on GSA stationary and indicates that it is from Greenberg in his official capacity as Assistant Regional Administrator. It is addressed to all PBS Division Directors and Service Center Directors and is clearly labeled "Sensitive Labor Relations Information for PBS Managers, Supervisors and Leaders Only." The purpose of the Memorandum is to relate events that occurred in connection with negotiations between GSA management and the Union as to the payment of annual performance awards and to explain the reasons for a breakdown in these discussions.
Greenberg describes management's position on the sum to be distributed, praises the performance of the PBS management negotiators, and highlights the region's fiscal concerns. He states that management had prepared an agreement governing the payout of the annual awards but was unable to obtain the Union's agreement. Greenberg then describes the concerns with Union leadership's negotiating tactics that prompted his decision to discontinue discussions:
Let me remind you that I have always regarded it as an inherent management responsibility to reward our deserving associates and to treat all employees with both the respect and dignity they truly deserve. I think my reputation over the years validates this statement. Unfortunately, the Union (through its actions recently) has demonstrated that it does not seems to share this same sense of responsibility. I am especially concerned about their intimidation tactics, directed at their own representatives by the Union leadership as well as at my management negotiators who do not subscribe to their views. I find these types of tactics so utterly abhorrent and appalling, that as a result, I feel I have no choice other than to direct my negotiators that there will be no further negotiation sessions conducted until management receives a full written apology from the offending parties. These Union officials' willful violation of good faith bargaining, their total disrespect shown to their own membership, and the disrespect they have demonstrated to the entire management negotiating team simply cannot be tolerated and in fact, may even be worthy of disciplinary action.
(Emphasis supplied.) Tomscha alleges that he is the "Union leadership" described in this paragraph and that he was libeled by the Memorandum. He claims that a copy of the Memorandum was circulated via e-mail to numerous government employees and that Greenberg did nothing to halt its dissemination. Tomscha does not allege that Greenberg is responsible for distributing the Memorandum to anyone other than the PBS Division Directors and Service Center Directors to whom it is addressed.
Discussion
1. Motion to Substitute the United States as Defendant
Under the Federal Tort Claims Act ("FTCA"), the exclusive remedy for a claim "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" is a suit against the Government. 28 U.S.C. § 2679(b)(1). The Government is liable for these tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Individual government employees, however, are immune from common-law tort claims arising from acts committed within the scope of their employment. Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994); see also Rivera v. United States, 928 F.2d 592, 608-09 (2d Cir. 1991).
The FTCA provides that when the Attorney General has certified "that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2). This statute is interpreted to permit de novo review by a district court of the Attorney General's scope-of-employment certification. Gutierrez de Martinez v. Lamango, 515 U.S 417, 436-37 (1995); McHugh v. University of Vermont, 966 F.2d 67, 74 (2d Cir. 1991) (discussing standard of review). Judicial review is particularly important to preserve the plaintiff's rights when substitution of the United States as defendant will result in dismissal of the action. Gutierrez, 515 U.S. at 429.
The Attorney General may delegate to a United States Attorney the authority to certify that a defendant employee was acting within the scope of his federal employment. 28 C.F.R. § 15.3.
To trigger this review, a plaintiff must "allege with particularity facts relevant to the scope-of-employment issue."McHugh, 966 F.2d at 74. The determination of whether an employee was acting within the scope of employment is governed by the law of the state in which the alleged tort occurred. See Reynolds v. United States, 927 F. Supp. 91, 94 n. 4 (W.D.N.Y. 1996); McHugh v. University of Vermont, 758 F. Supp. 945, 951 (D.Vt. 1991) (citing H.R. Rep. No. 100-700 (1998)). Under New York law, an act is considered within the scope of employment if it "was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions."Riviello v. Waldron, 47 N.Y.2d 297, 302 (1979) (citation omitted); see also Pizutto v. County of Nassau, 239 F. Supp. 2d 301, 313 (E.D.N.Y. 2003). Among the factors a court should weigh are: "the connection between the time, place, and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one the employer could reasonably have anticipated."Riviello, 47 N.Y.2d at 303; see also Reynolds, 927 F. Supp. at 95. Only the general type of conduct, not the specific act, need have been within an employer's reasonable expectation.Riviello, 47 N.Y.2d at 304.
On April 14, 2004, the United States Attorney for the Southern District of New York ("United States Attorney") certified that Greenberg was acting within the scope of his employment at the time the alleged defamation of Tomscha occurred. As an initial matter, no judicial review is required as Tomscha has not alleged with particularity facts relevant to the scope-of-employment determination. Were such review necessary, however, the evidence demonstrates that, under New York law, Greenberg was acting within the scope of his employment when he sent the Memorandum.
Greenberg sent the Memorandum on GSA stationary and in his official capacity as Assistant Regional Administrator. The document was intended for PBS Directors and concerns the distribution of awards to personnel under Greenberg's supervision — a responsibility encompassed by his obligation to administer and control the funds and personnel in his region. Since Greenberg has consistently overseen negotiations with the Union, his actions in updating management on the status of these discussions could reasonably have been anticipated by his employer. There is no suggestion that the Memorandum was written at an uncommon time or place, that sending it was an uncommon act for an employee in Greenberg's position, or that it was sent in an uncommon manner. Tomscha's allegation that the Memorandum did not assist the PBS Directors in performing their duties is not material to the scope-of-employment determination.
The United States Attorney correctly certified that Greenberg acted within the scope of his employment when he sent the Memorandum at issue in this action. The United States of America is therefore substituted for Greenberg as the party defendant.
2. Motion to Dismiss for Lack of Subject Matter Jurisdiction
The party seeking to establish jurisdiction has the burden of "showing by a preponderance of the evidence that subject matter jurisdiction exists." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (citation omitted). "Jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Id. (citing Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)). When a defendant challenges a district court's jurisdiction, "the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998) (citation omitted).
It is well-established under the principle of sovereign immunity "that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2003) (citing United States v. Mitchell, 463 U.S. 206, 212 (1983)). "[A] waiver of sovereign immunity is to be construed strictly and limited to its express terms." Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003); see also Millares v. United States, 137 F.3d 715, 719 (2d Cir. 1998). Section 2680(h) of the FTCA lists various exceptions to the statute's waiver of immunity, explicitly barring tort claims against the Government based on libel and slander. 28 U.S.C. § 2680(h); see Devlin v. United States, 352 F.3d 525, 536 (2d Cir. 2003).
The express language of the FTCA bars a suit for money damages against the United States based on a claim for libel. There is therefore no subject matter jurisdiction over this action and Tomscha's claim is dismissed.
Conclusion
The Government's motion to substitute the United States of America for Allen Greenberg as party defendant is granted. The Government's motion to dismiss is granted. The Clerk of Court shall close the case.
SO ORDERED.