McMillan v. Lavigne

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Peter A. McMillan, No. CV-20-02397-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Travis E. Lavigne, et al., 13 Defendants. 14 At issue is Defendant United States’s Motion to Dismiss (Doc. 21, “MTD”), to 15 which Plaintiff filed a Response (Doc. 25, “Resp.”), and Defendant filed a Reply (Doc. 31). 16 Also at issue are Plaintiff’s Motion for Entry of Default (Doc. 9), Motion to Dismiss for 17 Lack of Jurisdiction, Motion for Sanctions, and Request for Rule 16 Scheduling 18 Conference (Doc. 11), Motion for Amendment to all Responsive Pleadings (Doc. 15), and 19 Motion to Compel (Doc. 26). The Court will also address Plaintiff’s “Counterclaim” 20 against Assistant United States Attorney Kwan Piensook, Chief of the Civil Division for 21 United States Attorney – District of Arizona Michael Ambri, and United States Attorney 22 Michael Bailey for Abuse of Process (Doc. 24). For the following reasons, the Court will 23 grant Defendant’s Motion to Dismiss and will deny all of Plaintiff’s Motions. The Court 24 will further strike Plaintiff’s Counterclaim. 25 I. BACKGROUND 26 Plaintiff is a retired United States Drug Enforcement Administration (“DEA”) agent 27 who worked in the Phoenix Field Division. On or around July 10, 2020, Cheri Oz, DEA [28] 1 Special Agent in Charge, and Travis Lavigne, DEA Acting Assistant Special Agent in 2 Charge, sent the following security bulletin to the entire Phoenix DEA Office. 3 *** This message is authorized for distribution by A/ASAC Travis E. Lavigne *** [4] 5 Recently OPR contacted the Phoenix Division and relayed that Retired Special Agent Peter McMillan had recently made some threatening and alarming 6 statements via email. At this time we believe Mr. McMillan could be dangerous. Mr. McMillan is no longer allowed access to our buildings or any [7] other DEA facility, and should be trespassed if observed on those premises. If 8 Mr. McMillan refuses to vacate the properties or is making any threatening statements, local law enforcement will be called to assist with the incident. [9] Everyone should remain diligent when coming and going from DEA facilities. 10 A photograph of Mr. McMillan will be posted in each DEA Facility. 11 (Doc. 1-2, Complaint at 1.) Plaintiff subsequently filed a Complaint in Arizona Superior 12 Court for Defamation against Mr. Lavigne and Ms. Oz. Upon receipt of the Complaint, 13 Defendants removed it to the Federal District Court for the District of Arizona pursuant to [14] 28 U.S.C. § 2679 (d)(2) and 42 USC § 233 (c) (Doc. 1, Notice of Removal). Mr. Ambri then 15 certified that Mr. Lavigne and Ms. Oz were acting within the scope of their federal 16 employment when they issued the bulletin (Doc. 6-1, Certification). Based on this 17 certification, the United States filed a Notice of Substitution to substitute the United States 18 as the Defendant (Doc. 6, Notice of Substitution). 19 The United States then filed a Motion to Dismiss Plaintiff’s Complaint for lack of 20 jurisdiction. Defendant argues that because Mr. Ambri correctly certified that Ms. Oz and 21 Mr. Lavigne were acting within the scope of their employment, the United States properly 22 substituted itself as the Defendant and thus Plaintiff must bring its defamation claim under 23 the Federal Tort Claims Act (“FTCA”). The FTCA bars defamation suits against the United 24 States. Accordingly, the Court lacks jurisdiction over this matter. 25 II. LEGAL STANDARD 26 A. Suits Against Federal Employees 27 Under the FTCA, the United States has waived its sovereign immunity “under 28 circumstances where the United States, if a private person, would be liable to the claimant 1 in accordance with the law of the place where the act or omission occurred.” Shirk v. United 2 States ex rel. Dep’t. of Interior, 773 F.3d 999, 1003 (9th Cir. 2014) (quoting 28 U.S.C. 3 § 1346(b)(1)). 4 However, the Federal Employees Liability Reform and Tort Compensation Act of 5 1988, commonly known as the Westfall Act, 28 U.S.C. § 2679 , is an exception to the 6 waiver of sovereign immunity and gives federal employees absolute immunity from 7 common law tort claims that arise out of actions taken within the course of their official 8 duties. Osborn v. Haley, 549 U.S. 225, 229 (2007). Congress enacted the Westfall Act in 9 response to the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), which 10 added a “discretionary function” requirement as part of the criteria for granting a federal 11 officer immunity. Under the procedures in place pursuant to the Westfall Act, when a 12 federal employee is named in a tort suit, the Attorney General or his designee may certify 13 that the employee was acting within the scope of his employment when he committed the 14 alleged tort. Osborn, 549 U.S. at 230 . “The United States Attorney in the proper district . . 15 . or any Director of the Torts Branch, Civil Division, Department of Justice, is authorized 16 to make the statutory certification that the [f]ederal employee was acting within the scope 17 of his office or employment with the [f]ederal [g]overnment at the time of the incident out 18 of which the suit arose.” 28 C.F.R. § 15.4 . Once this certification occurs, the United States 19 will then be substituted as the defendant and the action will be governed by the FTCA. 20 Osborn, 549 U.S. at 230 . 21 The certification by the Attorney General as to whether the federal employee was 22 acting within the scope of his employment is judicially reviewable, for purposes of 23 substitution. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 435 (1995); Billings v. 24 United States, 57 F.3d 797, 800 (9th Cir. 1995). If a party seeks to challenge the 25 certification, that party must “allege sufficient facts that, taken as true, would establish that 26 the defendant’s actions exceeded the scope of his employment.” Saleh v. Bush, 848 F.3d 27 880, 889 (9th Cir. 2017) (quoting Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009)). 28 The challenging party bears the burden of presenting evidence and disproving the Attorney 1 General’s decision to grant or deny the certification by a preponderance of the evidence. [2] Id. (quoting Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993)). 3 B. Removal Jurisdiction 4 Federal courts may exercise removal jurisdiction over a case only if subject matter 5 jurisdiction exists. 28 U.S.C. § 1441 (a); Valdez v. Allstate Ins. Co., 372 F.3d 1115 , 1116 6 (9th Cir. 2004). The removing party is required to provide a signed notice of removal that 7 contains a short and plain statement of the grounds for removal. 28 U.S.C. § 1446 (a). The 8 removing party carries the burden of establishing subject matter jurisdiction, and “[a]ll 9 doubts about federal jurisdiction should be resolved in favor of remand to state court.” In 10 re Prempro Prod. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010); see 28 U.S.C. § 1447 (c). 11 A plaintiff may seek remand to the state court from which it was removed if the district 12 court lacks jurisdiction or if there is a defect in the removal procedure. 28 U.S.C. § 1447 (c). 13 The district court must remand the case if it appears before final judgment that the court 14 lacks subject matter jurisdiction. Id. 15 C. Dismissal for Lack of Subject Matter Jurisdiction 16 “A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of 17 Civil Procedure 12(b)(1) may attack either the allegations of the complaint as insufficient 18 to confer upon the court subject matter jurisdiction, or the existence of subject matter 19 jurisdiction in fact.” Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006) 20 (citing Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 , 733 (9th Cir. 21 1979)). “Where the jurisdictional issue is separable from the merits of the case, the [court] 22 may consider the evidence presented with respect to the jurisdictional issue and rule on that 23 issue, resolving factual disputes if necessary.” Thornhill, 594 F.2d at 733; see also Autery 24 v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (“With a 12(b)(1) motion, a court may 25 weigh the evidence to determine whether it has jurisdiction.”). The burden of proof is on 26 the party asserting jurisdiction to show that the court has subject matter jurisdiction. See 27 Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). [28] 1 III. ANALYSIS 2 A. Certification and Substitution 3 In response to Defendant’s Motion to Dismiss, Plaintiff challenges Mr. Ambri’s 4 finding that Ms. Oz and Mr. Lavigne were acting within the scope of their employment 5 when they issued the bulletin.1 To prevail, Plaintiff must “present[] evidence and disprove[] 6 the Attorney General’s certification by a preponderance of the evidence.” Billings, 57 F.3d 7 at 800 . 8 “The question of whether a federal employee is acting within the course and scope 9 of his employment is determined by applying respondeat superior principles of the state in 10 which the alleged tort occurred.” Goss v. Bonner, No. CV-18-08295-PCT-SMB, 2019 WL 11 2137266, at *3 (D. Ariz. May 16, 2019) (citing Green v. Hall, 8 F.3d 695, 698-99 (9th Cir. 12 1993)). In Arizona, an employee is acting within the scope of employment if his/her 13 conduct is “of the kind the employee is employed to perform, it occurs substantially within 14 the authorized time and space limit, and it is actuated at least in part by a purpose to serve 15 the master.” Smith v. Am. Express Travel Serv. Co., Inc., 876 P.2d 1166, 1170 (Ariz. Ct. 16 App. 1994 ) (citing Love v. Liberty Mut. Ins. Co., 760 P.2d 1085, 1087 (Ariz. Ct. App. 17 1988); Duncan v. State, 754 P.2d 1160, 1165 (Ariz. Ct. App. 1988)). 18 Here, Defendant produced substantial evidence that Mr. Lavigne’s and Ms. Oz’s 19 issuance of the bulletin fell within the scope of their employment. As the Special Agent in 20 Charge of the Phoenix Field Division, Ms. Oz was responsible for the management of the 21 Office, including the assessment of potential security issues that could affect the safety of 22 Phoenix Field Division employees. (Declaration of Cheri Oz (“Oz Decl.”) ¶ 6, Exhibit A.) 23 She previously had issued office-wide security warnings on three other occasions. (Oz 24 Decl. ¶ 8.) Based on conversations with fellow employees who expressed concern about 25 Mr. McMillan, information from the Office of Professional Responsibility (“OPR”), as [26] 1 The Complaint contains pages of legal argument and conclusory statements that are 27 typically inappropriate at the pleading stage. Plaintiff’s Response purports to incorporate these arguments, which Defendant does not contest. Therefore, the Court will consider both 28 the legal arguments provided in the Complaint as well as Plaintiff’s Response when evaluating Defendant’s Motion to Dismiss. 1 well as emails Mr. McMillan sent to her and other employees, Ms. Oz determined that 2 Plaintiff was a security threat and directed Mr. Lavigne to issue a security bulletin. (Oz 3 Decl. ¶¶ 13-15.) Mr. Lavigne, who had previously issued or authorized the sending of 4 office-wide security warnings, sent the warning per Ms. Oz’s instructions. (Declaration of 5 Travis Lavigne (“Lavigne Decl.”) ¶¶ 8, 14-15.) 6 Plaintiff does not contest the veracity of Defendant’s evidence. Nor does he offer 7 countervailing evidence as to Mr. Lavigne’s and Ms. Oz’s responsibilities or previous 8 issuance of security bulletins. Rather, he argues that Mr. Lavigne and Ms. Oz could not 9 have acted within the scope of their employment if their actions in distributing the bulletin 10 were defamatory. (Resp. at 3.) However, an employee’s defamatory conduct may fall 11 within his scope of employment. See Dora v. United States, CV 05-565-PHX-MHM, 2007 12 WL 215615 , at *4-*5 (D. Ariz. Jan. 12, 2007), aff'd sub nom. Dora v. Achey, 300 Fed. 13 Appx. 550 (9th Cir. 2008) (holding that allegedly defamatory conduct fell within scope of 14 employment and explaining that whether conduct was defamatory does not play a role in 15 the court’s analysis); Tennenbaum v. Miller, No. CV-10-953-PHX-GMS, 2011 WL 16 3875870, at *3, *3 n. 4, 6 (D. Ariz. Sept. 2, 2011) (holding allegedly defamatory conduct 17 was within employee’s scope of employment). It is thus of no import that Mr. Lavigne or 18 Ms. Oz may have defamed Plaintiff when they released the bulletin, for purposes of 19 determining scope of employment. 20 Because Defendant has produced unrefuted evidence that Ms. Oz and Mr. Lavigne 21 released the bulletin pursuant to their official job duties, the Court finds that Mr. Ambri’s 22 Certification and the subsequent substitution of the United States as Defendant were both 23 proper. 24 B. FTCA and Sovereign Immunity 25 Having found Certification and substitution proper, the Court must determine 26 whether the United States has waived sovereign immunity over Plaintiff’s defamation 27 claim. Here, Plaintiff’s claim is governed by the FTCA. See 28 U.S.C. § 1346 ; 28 U.S.C. 28 § 2679(d)(4) (“Upon certification, any action or proceeding subject to paragraph (1), (2), 1 or (3) shall proceed in the same manner as any action against the United States filed 2 pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions 3 applicable to those actions.”). The FTCA generally authorizes suits against the United 4 States for damages resulting from injury or loss of property, including serious personal 5 injury or death, caused by the negligent or wrongful act or omission of any employee of 6 the government acting within the scope of his or her office or employment, under 7 circumstances where the United States, if a private person would be liable to the claimant 8 in accordance with the law of the place where the act or omission occurred. 28 U.S.C. 9 § 1346(b). 10 However, the United States has not waived its sovereign immunity to defamation 11 claims. Section 2680 specifically excepts from the FTCA “[a]ny claim arising out of ... 12 libel, slander, ... or interference with contractual rights....” Ninth Circuit Courts have 13 consistently held that this exception applies to defamation claims. See e.g. Kaiser v. Blue 14 Cross of Cal., 347 F.3d 1107 , 1117 (9th Cir. 2003) (dismissing Plaintiff’s claim because 15 Section 2680(h) “does not permit suits against the United States for defamation.”); 16 Khenaisser v. Zinke, 693 F. App'x 608, 609 (9th Cir. 2017) (holding court lacks subject17 matter jurisdiction because “the United States has not waived sovereign immunity over 18 defamation claims”). In this case, the United States did not waive its sovereign immunity 19 over Plaintiff’s defamation claim; therefore, the Court lacks subject-matter jurisdiction 20 pursuant to Rule 12(b)(1).2 21 Since Plaintiff cannot cure the defects in his claim, the Court will dismiss it with 22 prejudice. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 23 C. Plaintiff’s Counterclaim 24 On January 11, 2021, Plaintiff purported to file a Counterclaim against 25 Ms. Piensook, Mr. Ambri, and Mr. Bailey for Abuse of Process. Pursuant to Rule 13, 26 counterclaims may only be asserted against an opposing party. Because none of the named [27] 2 Because the Court will dismiss Plaintiff’s Complaint on the basis of sovereign immunity, 28 it need not reach the question of whether Plaintiff exhausted his administrative remedies prior to filing his lawsuit. 1 individuals are parties to the case, Plaintiff’s Counterclaim fails to comport with Rule 13 2 and is wholly inappropriate. Accordingly, the Court will strike it from the docket. 3 D. Plaintiff’s Additional Motions 4 On December 11, 2020, one day after Defendant removed the case to federal court, 5 Plaintiff filed a Motion for Entry of Default. The Motion lacks merit and is thus denied. 6 Subsequently on December 14, 2020, Plaintiff filed a Motion to Dismiss for lack of 7 Jurisdiction challenging the removal to federal court. While the Attorney General’s 8 “certification is subject to judicial review for purposes of substitution… it is conclusive for 9 purposes of removal.” Billings, 57 F.3d at 800 . Because the Attorney General properly 10 certified that Ms. Oz and Mr. Lavigne were acting within the scope of their employment, 11 Plaintiff cannot challenge Defendant’s removal of the case to federal court and thus the 12 Court will deny Plaintiff’s Motion to Dismiss. The Motion additionally requests that the 13 Court sanction Defendants and set a Rule 16 Scheduling Conference. The Motion for 14 Sanctions echoes Plaintiff’s Response, arguing that the United States Attorney’s Office 15 cannot represent Ms. Oz and Mr. Lavigne because they were acting outside of the scope of 16 their employment. For reasons previously discussed, this argument fails. Likewise, 17 Plaintiff’s request for a Rule 16 Conference to “discuss matters raised in this pleading” is 18 meritless. (Doc. 11 at 19.) Plaintiff appears to be requesting oral argument. Pursuant to 19 Local Rule 7.2(f), the Court finds these matters appropriate for decision without oral 20 argument. Therefore, Plaintiff’s request is denied. 21 Plaintiff further filed a Motion to Amend All Responsive Pleadings that purports to 22 satisfy the requirement that he notify the DEA and United States Attorney’s Office of his 23 intent to file a lawsuit for defamation. The Motion has no bearing on the Court’s 24 determination that the case must be dismissed for lack of subject matter jurisdiction. 25 Therefore, the Court will deny Plaintiff’s Motion to Amend as moot. 26 Finally, Plaintiff filed a Motion to Compel the production of the emails 27 Mr. McMillan allegedly sent to Ms. Oz (Doc. 26). Because discovery has not yet [28] 1 || commenced and the contents of the emails will not affect this Court’s decision that || dismissal is warranted, the Court will deny the Motion to Compel. 3 IT IS THEREFORE ORDERED granting Defendant’s Motion to Dismiss (Doc. 21). Plaintiff's Complaint is dismissed with prejudice. 5 IT IS FURTHER ORDERED striking Plaintiff's Counterclaim (Doc. 24). 6 IT IS FURTHER ORDERED denying Plaintiff's Motion for Entry of Default (Doc. 9). 8 IT IS FURTHER ORDERED denying Plaintiff's Motion to Dismiss (Doc. 11). 9 IT IS FURTHER ORDERED denying Plaintiff's Motion for Sanctions (Doc. 11). 10 IT IS FURTHER ORDERED denying Plaintiff's Request for Rule 16 Scheduling 11 || Conference (Doc. 11). 12 IT IS FURTHER ORDERED denying Plaintiffs Motion for Amendment to all 13 || Responsive Pleadings (Doc. 15). 14 IT IS FURTHER ORDERED denying Plaintiff's Motion to Compel (Doc. 26). 15 IT IS FURTHER ORDERED directing the Clerk of Court to close this matter. 16 Dated this 9th day of September, 2021. CN 17 “wok: 18 holee— Unifga StatesDistrict Judge [28] -9-