Singleton v. USA
| Decision Date | 09 October 2001 |
| Docket Number | No. 00-4152,00-4152 |
| Parties | (6th Cir. 2002) James R. Singleton, Plaintiff-Appellant, v. United States of America, Defendant-Appellee. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 99-00472--Walter H. Rice, Chief District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted] Richard B. Reiling (argued and briefed), Walsh, Harrison & Reiling, Dayton, Ohio, for PLaintiff-Appellant.
Pamela M. Stanek, Asst. U.S. Atty., Dayton, Oh, Robert S. Greenspan (briefed), H. Thomas Byron III (argued and briefed), U.S. Department of Justice, Civil Rights Division, Washington, D.C., for Defendant-Appellee.
Before: JONES and MOORE, Circuit Judges; HAYNES, District Judge.*
Plaintiff-Appellant James R. Singleton, a Captain in the Ohio Air National Guard, appeals from the decision of the district court granting Defendant-Appellee United States' motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. In 1999, Singleton filed a complaint in Ohio state court against Thomas A. Hitzeman, a Major in the Ohio Air National Guard, alleging intentional infliction of emotional distress and defamation. A United States Attorney certified that Hitzeman was acting in the scope of his employment at the time of the alleged tortious conduct, and the government removed the case to the United States District Court for the Southern District of Ohio pursuant to the Westfall Act, 28 U.S.C. 2679(d)(2). The government then moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), claiming that the district court did not have subject matter jurisdiction because the United States could not be sued for defamation and Singleton had not exhausted his administrative remedies under the Federal Tort Claims Act for intentional infliction of emotional distress. In August of 2000, the district court granted the government's motion to dismiss, and Singleton timely appeals. For the following reasons, we AFFIRM the district court's grant of the United States' motion to dismiss.
On August 25, 1999, James R. Singleton, a Captain in the Ohio Air National Guard, filed a complaint in the Court of Common Pleas of Montgomery County, Ohio against Thomas A. Hitzeman, then a Major in the Ohio Air National Guard, claiming intentional infliction of emotional distress and defamation.1 In regard to the former claim, Singleton alleged that:
For the last three years . . . Plaintiff was subject to a continuing pattern of ridicule, harassment and discrimination on the basis of his personality, his lifestyle, his job performance and other like areas of concern by Defendant. Defendant has further attempted to have Plaintiff removed from his job and cause the loss of full time employment by the filing of false and degrading reports; punishing Plaintiff for pursuing his legal rights; leaking confidential information in regards to Plaintiff to certain third parties and other like actions.
Joint Appendix ("J.A.") at 12 (Compl.). Singleton further contended that "Defendant's aforesaid conduct falls outside the scope of his official duties as it does not bear any reasonable relationship to and/or in connection with the duties and responsibilities of Defendant." J.A. at 12. In regard to the latter claim, Singleton alleged that "[o]n several and various occasions over the course of Plaintiff's said employment, Defendant made false and defamatory statements in regards to Plaintiff's military service, his personality, his lifestyle, his mental condition, his job performance and other like areas of concern, all in the presence of certain other people." J.A. at 12.
On September 21, 1999, the United States substituted itself for Hitzeman as defendant and removed the case to the United States District Court for the Southern District of Ohio. Under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act"), the United States may substitute itself as party defendant in civil suits against federal employees "[u]pon 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." 28 U.S.C. 2679(d)(1). Pursuant to such certification, the government shall remove the case to federal district court. 28 U.S.C. 2679(d)(2). Sharon J. Zealey, the United States Attorney,2 certified that Hitzeman was acting in the scope of his employment at the time of the conduct alleged in Singleton's complaint, and the United States properly filed a notice of removal.
On November 29, 1999, the United States moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. At the same time, the government moved to stay all scheduling dates until the district court ruled on the motion to dismiss. Singleton moved on February 11, 2000 for leave to file an additional response, "a comprehensive affidavit setting forth information in opposition to Defendant's Scope Certification." J.A. at 141 (Pl.'s Mot. to File Additional Resp.). The district court granted Singleton's motion, but Singleton never filed such an affidavit. Singleton also moved, on February 17, 2000, to postpone a ruling on the motion to dismiss pending Singleton's deposition of Hitzeman. The district court overruled this motion, but the judge noted that the motion was "subject to renewal if [the] court determines factual issues prevent ruling on defendant's motion to dismiss." J.A. at 143 (Marginal Entry on Pl.'s Mot. to Postpone). After a failed attempt to depose Hitzeman in June of 2000,3 Singleton moved in July of 2000 to extend the discovery cutoff date, for sanctions against Hitzeman for failure to attend his deposition, and to compel Hitzeman to appear for his deposition. The district court scheduled a conference call for August 16, 2000 regarding Singleton's motions to extend the discovery cutoff date and for sanctions.
On August 7, 2000, the district court denied as moot the government's motion to stay all scheduling dates, and on August 16, 2000, the district court granted the government's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The court explained that determining whether Hitzeman had acted in the scope of his employment was subject to review by the district court -- the government's certification was not conclusive evidence. But the district court also explained that the government's certification was prima facie evidence that Hitzeman was acting in the scope of his employment and that Singleton had presented insufficient evidence to rebut the government's prima facie evidence. The court stated: J.A. at 24 (Decision and Order Granting Def.'s Mot. to Dismiss). Having decided that the United States appropriately substituted itself for Hitzeman, the district court concluded that Singleton's claims could not be heard in a district court under the Federal Tort Claims Act ("FTCA"). The court dismissed Singleton's defamation claim with prejudice pursuant to 28 U.S.C. 2680(h), which lists libel and/or slander as an exception to the United States' general waiver of sovereign immunity in 28 U.S.C. 2674. And the court dismissed Singleton's intentional infliction of emotional distress claim without prejudice; although such a claim can be brought under the FTCA, the district court found that Singleton had not exhausted his administrative remedies as required pursuant to 28 U.S.C. 2675(a).
Singleton argues on appeal that the district court erred by (1) "conducting a factual review in connection with Appellees' [sic] motion to dismiss" and (2) "determining Appellee's motion to dismiss prior to the deposition of Hitzeman." Appellant's Br. at 10-11. According to Singleton, the government's motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) was a facial attack on the district court's subject matter jurisdiction, and thus his complaint should have been sufficient evidence to defeat the government's motion to dismiss.4 Singleton further claims that he did try to provide additional evidence through a deposition of Hitzeman. Because the district court denied his motion to postpone ruling on the government's motion to dismiss pending his deposition of Hitzeman and because the court did not rule on his motions to extend the discovery cutoff or to compel Hitzeman to attend his deposition, Singleton alleges that the court erred in dismissing his claims for want of evidence that Hitzeman was not acting in the scope of his employment.
Under the Westfall Act, the "certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal." 28 U.S.C. 2679(d)(2). The Supreme Court has held, though, that the Attorney General's scope-of-employment certification is subject to judicial review for purposes of substitution. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995); see also Arbour v. Jenkins, 903 F.2d 416, 421 (6th Cir. 1990).5 We have stated that "[w]hether an employee was acting within the scope of his employment is a question of law, not fact, made in accordance with the law of the state where the conduct occurred." RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1143 (6th Cir. 1996). However, "when a district court is reviewing a certification question under the...
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