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February 14, 1985


The opinion of the court was delivered by: Getzendanner, District Judge:


Plaintiff Jack L. Walker filed a one-count defamation complaint in Lake County Circuit Court against defendant Conner Gibson, Jr. on February 8, 8, 1984. Both parties were employees of the Department of the Army at the time of the actionable conduct. On March 15, 1984, Gibson filed a petition for removal under 28 U.S.C. § 2679(d), alleging that Walker sought monetary relief for actions taken by Gibson as a federal official and within the scope of his employment.

Walker filed a three-count First Amended Complaint on July 3, 1984. In Count I of his amended pleading, Walker repeats his claim of defamation, adding allegations that Gibson's conduct was outside of the scope of his duties. In Count II, he claims interference with his employment contract with the United States, adding allegations that Gibson threatened Walker with reprisals if Walker reported Gibson's behavior to the authorities. Count III is a claim directly under the first amendment.

According to his amended complaint, Walker started working for the Department of the Army at Fort Sheridan on June 29, 1981, as a Planner-Estimator under the Supervision of Gibson. Beginning in September 1981, Gibson "commenced a malicious campaign of false and defamatory statements regarding Plaintiff's conduct with fellow employees, Plaintiff's job performance, and Plaintiff's hygiene." (First Amended Complaint ¶ 6.) Gibson allegedly made these statements at staff meetings and during working hours to Walker's fellow employees and superiors. Walker further alleges that Gibson's behavior took on forms other than verbal harassment. For example, Gibson required Walker to complete an unwarranted fitness for duty examination and to suffer a hearing on an unwarranted sexual harassment charge. Finally, Gibson threatened Walker with reprisals if he complained of Gibson's behavior to the Inspector General and others. (Id. at ¶ 13.)

According to Walker, Gibson's harassment continued unabated from September 1981 to May 17, 1983. On the latter date, the United States Army Civilian Appellate Review Office conducted a hearing at Fort Sheridan regarding Gibson's conduct. The Examiner, John M. Stewart, reached the conclusion on July 21, 1983 that Gibson had subjected Walker to "undue harassment and intimidation" and that corrective action against Gibson was warranted. (Id. at ¶ 15.)

Before the court is Gibson's motion to dismiss all three counts of the First Amended Complaint. Gibson argues for dismissal based on failure to comply with the statute of limitations, failure to state a claim upon which relief may be granted, and failure to allege actions by Gibson falling outside the scope of absolute federal official immunity.

Removal Jurisdiction

The parties have not addressed the court's removal jurisdiction, but the court deems it important both to clarify the nature of the present case and to assure itself that it has subject matter jurisdiction. Removal was improper under the provision on which Gibson relies. Oddly, Gibson chose to remove under the Federal Drivers Act, 28 U.S.C. § 2679(b)-(e), which in turn is part of the Federal Torts Claims Act, 28 U.S.C. § 2671 ("FTCA"). A straightforward reading of the Federal Drivers Act makes clear that its removal provision is applicable to removal of actions against federal employees for losses and injuries resulting only "from the operation by an employee of the Government of any motor vehicle while acting within the scope of his office or employment. . . ." 28 U.S.C. § 2679(b). Removal was thus improper under this provision.

The impropriety of removal under this statute must be stressed, for otherwise the government risks misconstruing this action. Under the Federal Drivers Act, removal under § 2679(d) renders the removed action one exclusively against the United States, and therefore under the FTCA. The action cannot be maintained against the employee as well, for the Act provides that employees are not personally liable for injuries stemming from operation of motor vehicles within the scope of federal employment. (The Act provides that if the operation is not within the scope of employment, the case is not against the United States and should be remanded to state court as an action against the employee. 28 U.S.C. § 2679(d).)

Were this action properly removed under the Federal Drivers Act, therefore, it would now be a claim against the United States, and would be subject to the provisions of the FTCA. Rogers v. United States, 675 F.2d 123, 124 (6th Cir. 1982). This would require exhaustion of administrative remedies, compliance with special limitations periods, dismissal of such claims to which the United States has not consented to suit (such as claims for libel, slander, and interference with contract rights, 28 U.S.C. § 2680(h)), and dismissal of actions taken outside of the scope of the employee's duties.

Such a construction of Walker's claim would defeat his purpose in bringing the action against Gibson in the first place. Walker alleges that Gibson's acts were outside of his employment, and as Walker clearly does not intend to sue the United States, he has not alleged compliance with the FTCA. Walker's present allegations would allow immediate dismissal under the FTCA or remand under § 2679(d). The court thus stresses that removal under § 2679(d) was incorrect.

With this clarification, the court finds that it does have removal jurisdiction over this action. First, removal was proper under 28 U.S.C. § 1442(a)(1), which provides for removal of actions against federal officials. Second, as is usually the case, after removal to federal district court, plaintiff expanded his complaint, adding a claim under the federal constitution. Hence, removal based on 28 U.S.C. § 1331 would have been proper as well. The court now discusses the issues raised by Gibson's motion.

Statute of Limitations

Gibson argues that the statute of limitations on defamation actions bars the assertion of Count I against him. Walker does not dispute Gibson's contention that the Illinois limitations period for defamation actions is one year. Ill.Rev.Stat., ch. 110 ¶ 13-201. According to Gibson, as the alleged defamatory conduct began in September 1981, see First Amended Complaint ¶ 6, the February 8, 1984 filing exceeded the applicable period. Walker does not respond to this argument in his October 19, 1984 responding memorandum.

In his First Amended Complaint, Walker claims that the defamation "continued unabated up and through May 17, 1983 in the form of Defendant's false and defamatory statements regarding Plaintiff made at staff meetings and during regular conditions to Plaintiff's fellow employees and Plaintiff's superiors at Fort Sheridan, Illinois." Id. at ¶ 6. Hence, it is possible that the defamation complaint was timely filed, depending on when the action accrued. Gibson never attempts to define accrual under the Illinois statute. In addition, a motion to dismiss is not normally the proper vehicle for asserting a fact-based defense such as this where the allegations do not foreclose the possibility of a timely filing. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). The motion to dismiss on this ground is therefore denied.

Absolute Federal Official Immunity

A. Applicable Standard on Motion to Dismiss

Before discussing Gibson's claim of absolute immunity from this suit for damages, the court must determine whether the procedural posture of this case allows the court to rule in Gibson's favor on this issue. The pending motion is one to dismiss. The court is aware of circumstances in which questions of absolute immunity have been resolved on a motion to dismiss. For example, where the complaint alleges facts constituting an absolute defense to the claim asserted, the complaint is vulnerable to dismissal under Rule 12(b)(6). Lepucki v. Van Wormer, 587 F. Supp. 1390, 1393 (N.D.Ind. 1984). E.g., Lawrence v. Acree, 665 F.2d 1319, 1324-25 (D.C.Cir. 1981).

Immunity, however, is a fact-based issue that often requires the consideration of evidence before it may be determined. A motion for summary judgment, for example, is a proper vehicle for raising this defense. Granger v. Marek, 583 F.2d 781, 785-86 (6th Cir. 1978); e.g., Scherer v. Brennan, 379 F.2d at 610-11. Here, while Gibson attaches an affidavit to his motion to dismiss, the court excludes the affidavit and declines to construe this motion as one for summary judgment. Fed.R.Civ.P. 12(b). It is clear from Walker's responding memorandum that he did not believe he was required to join issue with Gibson's affidavit, and construction of the motion to dismiss as one for summary judgment would be unfair. The court's inquiry on this motion, therefore, is whether the allegations conclusively establish ...

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