United States District Court, D. New Jersey
ON DEFENDANT'S MOTION TO DISMISS [D.E. 6] AND PLAINTIFFS' MOTION TO REMAND [D.E. 7]
STEVEN C. MANNION, District Judge.
REPORT AND RECOMMENDATION
Before the Court is defendant United States' ("Defendant") motion to dismiss for lack of jurisdiction, (ECF Docket Entry No. ("D.E.") 6) and plaintiff Randolph Cadet's ("Plaintiff") motion to remand this case to state court. (D.E. 7). Pursuant to Local Civil Rule 72.1(a)(2), the Honorable Susan D. Wigenton, United States District Judge, has referred the instant matter to the undersigned for report and recommendation. Having considered the parties' respective submissions without oral arguments pursuant to Federal Rule of Civil Procedure 78, and for the reasons set forth herein, it is respectfully recommended that Defendant's motion to dismiss be GRANTED and Plaintiff's motion to remand be DENIED.
On May 20, 2014, plaintiff Cadet filed his Complaint pro se in the Superior Court of New Jersey, Law Division asserting that defendant Athena Pappas created a hostile work environment "since August 2013" and on May 15, 2014 published a defamatory e-mail about him. (Complaint, D.E. 1 at Exh. A).
On December 11, 2014, the United States removed this case to Federal court. (D.E. 1). The notice was supported by a Westfall Certification by the United States Attorney's Office that Pappas "was acting within the scope of her employment with the United States of America at the time of the incident(s) out of which this suit arose...." (D.E. 1, Exh. C). Four days later, it filed a notice of substitution for defendant Pappas pursuant to 28 U.S.C. § 2679(d)(2). (D.E. 2).
On December 23, 2014, the United States moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (D.E. 6). Plaintiff did not "oppose, " but filed a request to remand on January 23, 2015, (D.E. 7), which Defendant opposed. (D.E. 8).
On March 8, 2015, the Court sua sponte extended Plaintiff's time to oppose the dismissal motion and Defendant's time to respond to Plaintiff's objection to the Westfall Certification. (D.E. 9). Plaintiff did not file any additional submissions, but Defendant did. See (D.E. 10).
III. DISCUSSION AND ANALYSIS
The Complaint alleges that defendant Athena Pappas created a hostile work environment "since August 2013" and on May 15, 2014 published a defamatory e-mail about him. (Complaint, D.E. 1 at Exh. A). The Federal Tort Claims Act ("FTCA"), however, bars claims against the United States for wrongful use of civil proceedings and defamation. Brumfield v. Sanders, 232 F.3d 376, 382-383 (3d Cir. 2000) (citing 28 U.S.C. § 2608(h)). This result equally applies despite efforts to distinguish claims "by draping them with different dress and labels fail to disguise their substantive similarity." Id. at 383. Thus, if the United States is the real party here, Plaintiff's claims should be dismissed.
Plaintiff conceded in his Motion to Remand "that if the conduct [by Pappas] was committed within the scope of employment, substitution of the United States as the defendant and removal to federal court was appropriate." (D.E. 7 at ¶ III). Of course dismissal would then also be appropriate.
In 1988, Congress clarified the terms of the United States' waiver of sovereign immunity under the FTCA through the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act"). The Westfall Act provides absolute immunity to federal employees in the wake of Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), by making suit under the FTCA against the United States the exclusive remedy for negligent or wrongful ...