Goss v. Bonner

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE

         Pending 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);^[1] 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).

         BACKGROUND

         Plaintiff 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.^[2] 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”).^[3] 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.^[4]

         On 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.”^[5] (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).

         DISCUSSION

         I. Motion to Strike Substitution by USA/Scope Certification

         The 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).

         While a 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).

         A. The Westfall Act

         When a 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. 2008).

         “[T]he 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)).

         The 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)).

         B. ...