United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE
before the Court are three motions. The seven individual
Defendants filed a Motion to Dismiss in the Coconino County
Superior Court before this action was removed to this Court,
(Doc. 32); Defendant United States then filed a
Motion to Dismiss in this Court (Doc. 12); and Plaintiff then
filed a Motion to Strike Substitution by USA/Scope
Certification (Doc. 16). All three motions have been fully
briefed and the Court elects to resolve the motions without
oral argument. See L.R. Civ 7.2(f).
Keith Goss is a podiatrist who previously worked for Tuba
City Regional Health Care Corporation (“TCRHCC”),
which is owned by the Navajo Nation and is operated under the
Indian Self-Determination and Education Assistance Act
(“ISDEAA”), Pub. L. 93-638, 88 Stat.
2203. Plaintiff filed this action on February 9,
2018, in Coconino County Superior Court (the “Superior
Court”). (Doc. 1-2 at 33). In response to a motion to
dismiss, the Superior Court dismissed the action and gave
Plaintiff an opportunity to amend the complaint. (Doc. 1-2 at
62) (Doc. 1-2 at 110). Plaintiff filed an amended complaint
(the “FAC”) in the Superior Court on August 17,
2018. (Doc 1-2 at 176). The FAC brings individual counts of
defamation against Lynette Bonar, Zane Kelley, Steven Holve,
Joe Magee, Kathryn Magee, Jennifer Whitehair, and Jayson
Watabe (the “Individual
Defendants”). Plaintiff alleges that beginning around
March 1, 2017 and continuing throughout June, he became aware
of statements made by each of the Individual Defendants to
people outside of official workplace proceedings. He alleges
that the statements were published to people and impeached
his honesty, integrity, or reputation. He also alleges that
the Individual Defendants knew that the statements were
false. In addition to the Defamation Counts, Plaintiff also
brings a count pursuant to 18 U.S.C. § 2520 against
Jayson Watabe, alleging that Watabe recorded and subsequently
used a recording of a private conversation. In the
alternative, Plaintiff brings a Bivens claim for
violation of right to privacy.
September 4, 2018, the Individual Defendants again moved to
dismiss all counts pursuant to Rule 12(b)(1), (2), and (6).
(Doc. 32). That motion remains pending. On October 19, 2018,
the United States concurrently removed this action from the
Superior Court to this Court and filed a “Notice of
Substitution, ” substituting the United States for the
Individual Defendants in each of the seven defamation claims
pursuant to the Federal Employees Liability Reform and Tort
Compensation Act of 1988, commonly known as the
“Westfall Act, ” 28 U.S.C. § 2679. (Doc. 1)
(Doc. 4) (the “Scope Certification”). The
Director of the Torts Branch, Civil Division, United States
Department of Justice, acting on behalf of the Attorney
General, certified that the Individual Defendants “were
covered persons acting within the scope of their deemed
federal employment as employees of the Indian Health Service
in carrying out functions authorized under the
Self-Governance Compact with TCRHCC at the time of the
incidents giving rise to suit.” (Doc. 4-1 at 2- 3). The
United States then brought a motion to dismiss the Defamation
Counts pursuant to Rule 12(b)(1). (Doc. 12).
Motion to Strike Substitution by USA/Scope
Court will first address Plaintiff's Motion to Strike
Substitution by USA/Scope Certification. (Doc. 16). The
United States filed a Response, (Doc. 22), as did the
Individual Defendants jointly through counsel, (Doc. 23).
Plaintiff has also filed a Reply to the Responses. (Doc. 24).
challenge to the Attorney General's Certification is
often raised by a plaintiff in response to a motion to
dismiss, see, e.g., Meridian Int'l
Logistics, Inc. v. United States, 939 F.2d 740, 742 (9th
Cir. 1991) (raising a certification challenge in response to
a motion to dismiss), Plaintiff here has chosen to attack the
Scope Certification in a separate motion. Both the United
States and Individual Defendants challenge the procedural
posture of Plaintiff's motion, arguing that it fails
under Rule 12(f). (Doc. 22 at 2) (Doc. 23 at 2). While
Plaintiff has styled his motion as a “motion to strike,
” it is clear from the content of the motion that
Plaintiff is raising a challenge to the Scope Certification.
The Court therefore construes this motion as a challenge to
the Scope Certification, and not as a motion to strike under
Rule 12(f). Because Plaintiff's Response to the United
States' Motion to Dismiss also incorporates an attack
against the Scope Certification, the Court will also consider
arguments raised by Plaintiff in his Response (Doc. 21).
The Westfall Act
federal employee is sued for a wrongful or negligent act, the
Westfall Act “authorizes the Attorney General to
certify that a United States employee was acting within the
scope of his employment at the time of an incident which
gives rise to a civil claim.” Meridian, 939
F.2d at 743 (citing 28 U.S.C. § 2679(d)(1)-(2)). Such
certification has the following effect: “Upon
certification, the employee is dismissed from the action and
the United States is substituted as defendant.”
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420
(1995). Once certification is given in a civil action,
federal law also mandates that if the case is pending in
state court, it must be removed to federal court. 28 U.S.C.
§ 2679(d)(2). The action then proceeds under the Federal
Tort Claims Act (“FTCA”). Gutierrez, 515
U.S. at 420. However, “[b]ecause the government has not
waived its sovereign immunity under the . . . FTCA . . . for
claims arising out of libel or slander, ” the Court
lacks subject matter jurisdiction over a defamation claim
against the United States, and such claim must be dismissed.
See Dora v. Achey, 300 Fed.Appx. 550, 551 (9th Cir.
Attorney General's certification is ‘the first, but
not the final word' on whether the federal officer is
immune from suit and correlatively, whether the United States
is properly substituted as defendant.” Osborn v.
Haley, 549 U.S. 225, 246 (2007) (quoting
Lamagno, 515 U.S. at 432). “Certification by
the Attorney General is prima facie evidence that a federal
employee was acting in the scope of [his or] her employment
at the time of the incident and is conclusive unless
challenged.” Billings v. United States, 57
F.3d 797, 800 (9th Cir. 1995). Accordingly, the party
challenging the certification “bears the burden of
presenting evidence and disproving the Attorney General's
certification by a preponderance of the evidence.”
Jackson v. Tate, 648 F.3d 729, 732 (9th Cir. 2011).
“The United States . . . must remain the federal
defendant in the action unless and until the District Court
determines that the employee, in fact, and not simply as
alleged by the plaintiff, engaged in conduct beyond the scope
of his employment.” Osborn, 549 U.S. at 231.
When a district court is reviewing a certification question,
“it must identify and resolve disputed issues of fact
necessary to its decision before entering its order.”
Arthur v. United States, 45 F.3d 292, 296 (9th Cir.
1995). The Court may do so by reviewing “specific
documentary proof provided by the parties.”
Pelletier v. Fed. Home Loan Bank of S.F.,
968 F.2d 865, 874 (9th Cir. 1992); see also Jenkins v.
Univ. of Minn., 50 F.Supp.3d 1084, 1097 (D. Minn. 2014)
(“[W]here a certification has been filed the Court
should proceed almost as if the motion for substitution was
one for summary judgment, requiring the plaintiff to come
forward with evidence to rebut the prima facie evidence of
scope of employment provided by the certification.”).
The district court is permitted to hold evidentiary hearings
if necessary, Arthur, 45 F.3d at 296, but federal
courts have held that “the party challenging the
certification must provide ‘something more than
conclusory abstractions' in order to obtain such a
hearing, ” Murrietta v. Banner Health Sys.,
No. CV-06-371-PHX-DGC, 2006 WL 1663236, at *2 (D. Ariz. June
9, 2006) (citing Day v. Mass. Air Nat'l Guard,
167 F.3d 678, 686 (1st Cir. 1999)). In order to rebut the
scope certification and obtain discovery, “a plaintiff
must ‘allege sufficient facts that, taken as true,
would establish that the defendant's actions exceeded the
scope of his employment.'” Saleh v. Bush,
848 F.3d 880, 889 (9th Cir. 2017) (quoting Wuterich v.
Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009)).
question of whether a federal employee is acting within the
course and scope of his employment is determined by applying
respondeat superior principles of the state in which the
alleged tort occurred. Green v. Hall, 8 F.3d 695,
698-99 (9th Cir. 1993). In cases where the United States is
substituted for an employee that is also a tribal employee,
“[t]he tribal employee must also be deemed to have
acted as a federal employee in carrying out the allegedly
tortious activity.” Wilson v. Horton's
Towing, 906 F.3d 773, 781 (9th Cir. 2018), cert.
denied, (2019 WL 825553, Apr. 22, 2019). The Ninth
Circuit recently articulated that the test found in Shirk
v. U.S. ex rel. Dep't of Interior, 773 F.3d 999 (9th
Cir. 2014), also applied to challenges to Attorney General
Certifications. Wilson, 906 F.3d at 781. The
Wilson court found that the test had two parts.
First, the district court looks at whether the language of
the federal contract encompassed “the activity that the
plaintiff ascribes to the employee.” Id.
(quoting Shirk, 773 F.3d at 1007). Second, the court
looks at whether the employee's activity fell within the
scope of employment as defined by state law. Id. In
Arizona, “[t]he conduct of a servant is within the
scope of employment if it is of the kind the employee is
employed to perform, it occurs substantially within the
authorized time and space limit, and it is actuated at least
in part by a purpose to serve the master.” Smith v.
Am. Express Travel Related Servs. Co., Inc., 876 P.2d
1166, 1170 (Ariz.Ct.App. 1994). An employer is liable for its
employee's conduct if at the time of injury, the employee
“was performing a service in furtherance of [the]
employer's business.” Id. at 1171 (citing
Ohio Farmers Ins. Co. v. Norman, 594 P.2d 1026, 1028
(Ariz.Ct.App. 1979)). “Conduct within the scope of
employment may be either of the same nature as that
authorized or incidental to that authorized.”
Arizona v. Schallock, 941 P.2d 1275, 1282 (Ariz.
1997). “Under Arizona law, intentional torts, including
defamation, may fall within the scope of employment.”
Dora v. Achey, 300 Fed.Appx. 550, 551 (9th Cir.
2008) (citing Phoenix Newspapers, Inc. v. Church,
537 P.2d 1345, 1359 (Ariz.Ct.App. 1975)).