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Neal, et al v. United States

December 8, 2011

NEAL, ET AL
v.
UNITED STATES



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons stated below, the motion to remand [8-1] is denied. The motion to dismiss [6-1] is denied without prejudice. The government is directed to file no later than December 16, 2011, a response to the plaintiffs' argument challenging the scope of employment issue as it relates to Diez. Any reply is due no later than December 30, 2011. In their filings, the parties shall discuss whether an evidentiary hearing is necessary, and if so, whether the plaintiffs have met their burden of demonstrating a genuine issue of material fact regarding the scope of employment issue. Once the court has reviewed the parties' filings, it will determine whether an evidentiary hearing will be held.

O[ For further details see text below.]

STATEMENT

Plaintiffs Robert Neal and Angela Cotton filed a civil action in the Circuit Court of Cook County alleging slander and libel against Deborah Diez. According to the plaintiffs. Diez made false allegations of sexual harassment against them. Because Diez is a federal employee, the United States removed the case and the Attorney General's designee certified pursuant to 28 U.S.C. § 2679 that the defendant was acting within the scope of her employment. Thus, the United States was substituted in as the defendant in Diez's place.

The government then moved to dismiss the complaint on the ground that the plaintiffs failed to exhaust their administrative remedies prior to filing a tort claim, as required by the Federal Tort Claims Act. Soon after, the plaintiffs moved to remand the case to state court on the ground that the government's determination that the defendant was acting within the scope of her employment was improper. The court stayed consideration of the government's motion to dismiss pending a ruling on the motion for remand. Although the plaintiffs have not yet filed a reply brief in support of their motion for remand, the court concludes that a reply is unnecessary.

For the reasons stated below, the motion to remand [8-1] is denied. The motion to dismiss [6-1] is denied without prejudice. The government is directed to file no later than December 16, 2011, a response to the plaintiffs' argument challenging the scope of employment issue as it relates to Diez. Any reply is due no later than December 30, 2011. In their filings, the parties shall discuss whether an evidentiary hearing is necessary, and if so, whether the plaintiffs have met their burden of demonstrating a genuine issue of material fact regarding the scope of employment issue.

Background

As noted above, the plaintiffs filed this case in state court. Upon the United States' certification by the Attorney General's delegate that Diez was acting within the scope of her federal employment when she made the allegedly slanderous comments, the United States removed the case to this court pursuant to the Westfall Act, 28 U.S.C. § 2679. The Westfall Act "accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 225 (2007). Title 28 U.S.C. § 2679(d)(2) states 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.

Id. (emphasis added).

At the same time, and again pursuant to § 2679(d)(2), the United States was substituted as the defendant in place of Diez. "[S]ubstitution of the United States as the exclusive defendant under the Westfall Act confers immunity on the defendant employee." Taboas v. Mlynczak, 149 F.3d 576, 580 (7th Cir. 1998). If the United States' substitution was proper, then the plaintiffs have no individual claims against Diez and they must proceed against the United States under the Federal Tort Claims Act ("FTCA").

The government filed a motion to dismiss asserting that the plaintiff had failed to exhaust her administrative remedies under the FTCA. In response, the plaintiff, through the instant motion to remand, challenged the government's assertion that Diez was acting within the scope of her ...


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