Donio v. US

• Decision Date: 18 September 1990
• Docket Number: Civ. A. No. 90-2522.
• Citation: 746 F. Supp. 500
• Parties: Michael G. DONIO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Jersey

746 F. Supp. 500

Michael G. DONIO, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 90-2522.

United States District Court, D. New Jersey.

September 18, 1990.

Michael G. Donio, Cherry Hill, N.J., pro se.

Michael Chertoff, U.S. Atty. by Paul A. Blaine, Asst. U.S. Atty., for defendant, U.S.

OPINION

COHEN, Senior District Judge:

This action comes before the Court on defendant's motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. For the reasons set forth below, we hold that this Court lacks jurisdiction over the subject matter of the present action and, accordingly, defendant's motion shall be granted.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Michael Donio, was the named defendant in a criminal case brought against him upon an indictment obtained by the United States Attorney for the District of New Jersey in United States District Court in Trenton. On May 26, 1988, defendant entered a plea of guilty to one count of illegal use of the mails to distribute child pornography. Peter Harvey was the Assistant United States Attorney responsible for the prosecution of that case. After Donio's guilty plea, Peter Harvey gave a statement to a reporter for the Philadelphia Inquirer concerning the nature of the charge, the consideration given Donio in exchange for the plea, and various details of background information. These statements were published in the May 27, 1988 New Jersey edition of the Inquirer.¹

On May 1, 1990, plaintiff commenced an action in the Superior Court of New Jersey against Peter Harvey individually. Plaintiff alleges that the statements in the May 27, 1990 article were false, that Harvey libeled and defamed him, and that plaintiff suffered economic and non-economic injury as a result of those statements.

Pursuant to 28 U.S.C. sections 2679(d)(2) and (4) (West Supp.1990), the action was removed to this Court and, upon the certification of the Attorney General that Harvey was acting within the scope of his employment with the United States Department of Justice, the United States of America was substituted for Harvey as defendant. Defendant now moves to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), on the ground that the United States is immune from liability for defamation.

II. DISCUSSION

A. The Federal Employees Liability Reform and Tort Compensation Act of 1988

The Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA"), Pub.L. 100-694, 102 Stat. 4563, was enacted in response to the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). In Westfall, the Court lessened the immunity previously available to federal employees for common law torts by holding that such employees are immune from suit only if the employee was acting within the scope of his or her employment and was exercising governmental discretion. The purpose of FELRTCA was to "`return Federal employees to the status they held prior to the Westfall decision,' that is, a status of absolute immunity for activities within their scope of employment." Melo v. Hafer, 912 F.2d 628, 639 (3d Cir.1990) (quoting H.R.Rep. No. 100-700, 100th Cong., 2d Sess., reprinted in 1988 U.S. Code Cong. & Admin.News, 5945, 5947).

Pursuant to 28 U.S.C. § 2679(d)(2), any civil action or proceeding commenced against a federal employee in a state court shall be removed to a United States District Court upon certification by the Attorney General that the defendant employee was acting within the scope of his employment.² The section provides that:

Upon certification by the Attorney General 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, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

28 U.S.C. § 2679(d)(2).

In Melo, the Third Circuit recently held that the government's scope of employment certification, while conclusive for the purposes of removal, is thereafter subject to judicial review. Melo v. Hafer, supra. The court based its reasoning on the language, structure, and legislative history of the FELRTCA. The court noted that other courts have divided on this issue. As several of these cases have noted, however, the United States has changed its position and now concedes that the district court may review the Attorney General's certification, although the government has contended that it should be given deference. See, e.g., Petrousky v. United States, 728 F.Supp. 890, 891-95 (N.D.N.Y.1990).

This Court must review the certification issued in this case. The issue of whether Harvey acted within the scope of his employment in making the statement to the Philadelphia Inquirer is the determinative jurisdictional issue. If he was acting within the scope of his employment, this Court will not have subject matter jurisdiction since it is beyond dispute that the United States is immune from liability for defamation actions.³ Although the standard for such a review has not been addressed in this Circuit, the scope of employment determination by the Attorney General is a factual issue going to this Court's subject matter jurisdiction and, therefore, the Court's resolution of this issue must at least satisfy the standards applicable to any other factual determination made pursuant to Fed.R.Civ.P. 12(b)(1) as will be discussed below.

Initially, however, we consider whether or not to give deference to the Attorney General's certification. In Petrousky, the court held that the certification should not be given deference because of constitutional due process concerns. The court held that plaintiffs had a constitutionally recognized property interest in litigating claims in the nation's courts and that section 2769 provides for no opportunity to be heard on the scope of employment issue. Id. at 892-94. Additionally, there is a strong potential for bias on the part of the certifier since "the Assistant U.S. Attorney who is defending such a case who is given authority pursuant to C.F.R. to make the certification may ... almost certainly assure the demise of the action he defends when certifying that the actions complained of are ones which a federal employee undertook within the scope of her employment." Id. at 894. Although not determinative in this case in light of our ultimate holding, we nonetheless decline to give deference to the certification as part of our factual inquiry.⁴

B. The Applicable Standard Under Rule 12(b)(1)

The burden of proving subject matter jurisdiction rests with the plaintiff. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Mortensen v. First Federal Savings & Loan Ass'n., 549 F.2d 884 (3d Cir.1977); cf. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). Often treated similarly, there are important distinctions between a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Unlike a dismissal under 12(b)(6), a dismissal under 12(b)(1) is not on the merits. Additionally, a court may review and receive any competent evidence to resolve factual disputes concerning the existence of subject matter jurisdiction. See, 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice, § 12.072.-1 (2d ed. 1990).

Generally, in resolving a motion to dismiss for lack of subject matter jurisdiction there are three bases for relief that a court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.1986). However, our Circuit has noted "a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face a facial attack and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact a factual attack, quite apart from any pleadings." Mortensen, 549 F.2d at 891. The significance of this distinction is that in a facial attack,

the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id.

Our inquiry may proceed as a factual attack. Although defendant does not contest that the statements were in fact made, it is the significance of the statements (i.e. whether or not they were made within the scope of employment of Assistant United States Attorney Harvey),⁵ not the fact of their making or their truthfulness⁶ that must be...