Opinion
Case No. 1:01-CV-651
April 8, 2002
OPINION
This matter is before the Court on Memorandum in Support of Motion for Judgment by Default in Favor of the Plaintiff, which the Court has construed as Plaintiff's Motion for Default Judgment. The Court will deny this motion.
This matter is also before the Court on Defendant's Motion to Dismiss and Plaintiff's Motion Not to Dismiss. The Court will grant Defendant's Motion to Dismiss and deny Plaintiff's Motion Not To Dismiss.
Plaintiff's Motion Not to Dismiss would have been more properly filed as a Response to Defendant's Motion to Dismiss, since a motion requests some action of the Court, not inaction. However, the Court considered Plaintiff's arguments in her motion and addresses them in conjunction with its discussion of Defendant's motion.
I. Standard of Review and Applicable Federal Rules
Defendant United States Postal Service (USPS) brings its motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), asserting this Court's lack of subject matter jurisdiction over the claims made and Plaintiff's failure to state a claim upon which relief may be granted. To survive a Rule 12(b)(1) motion, the plaintiff only need show that the complaint alleges a claim under federal law, and that the claim is "substantial," i.e., non-frivolous. Board of Trustees of Painesville Twp. v. City of Painesville, 200 F.3d 396, 398 (6th Cir. 1999). The plaintiff will survive the defendant's motion to dismiss by showing "any arguable basis in law" for the claims set forth in the complaint. Id. Plaintiff bears the burden of proving jurisdiction in the face of a Rule 12(b)(1) motion. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
II. Facts
Plaintiff Antoinette H. Johnson, proceeding pro se, brings a defamation claim in her Complaint against Defendant USPS. Plaintiff was an employee of Defendant USPS, and she alleges that Defendant USPS defamed her by labeling her a paranoid schizophrenic when such a diagnosis was not supportable by facts. Plaintiff alleges that this defamation caused her termination from employment at Defendant USPS, among other injuries.
Plaintiff's Complaint made only a defamation claim and described various injuries resulting therefrom. Plaintiff asserts that she has additional causes of action against Defendant USPS in her Motion Not To Dismiss, but those were not pled in the Complaint and, thus, the Court does not consider them here.
III. Analysis of Plaintiff's Motion for Default Judgment
Plaintiff has moved for default judgment against Defendant USPS because Defendant did not answer her Complaint within 20 days. Defendant USPS is correct, however, that Federal Rule of Civil Procedure 12(a)(3)(A) gives the United States 60 days after the United States Attorney General has been served to answer a Complaint. See Fed.R.Civ.P. 12(a)(3)(A); see also Fed.R.Civ.P. 4(i)(1)(B) (requiring service upon the United States to include service on the Attorney General in Washington, D.C.). Defendant USPS filed its Motion to Dismiss within 60 days of when Defendant USPS asserts that service was completed, which makes entry of default improper, and in turn, makes entry of default judgment improper. See Fed.R.Civ.P. 55(a), 55(b)(1) and (2). Therefore, Plaintiff's Motion for Default Judgment will be denied.
IV. Analysis of Defendant's Motion to Dismiss and Plaintiff's Motion Not to Dismiss
Defendant USPS moves to dismiss Plaintiff's defamation claim under a number of theories. Defendant asserts that this Court does not have subject matter jurisdiction over Plaintiff's claim because she has not alleged a proper jurisdictional basis and, further, because there is no proper jurisdictional basis; because Plaintiff failed to name the correct party as a defendant; and because Plaintiff has failed to show that she satisfied a jurisdictional prerequisite of exhausting administrative remedies. Defendant also asserts that if this Court has jurisdiction, Plaintiff is not entitled to a jury trial and her demand for one should be stricken.
The Court finds that it does not have jurisdiction over Plaintiff's claim because sovereign immunity bars defamation claims against Defendant USPS and will dismiss on that basis. As such, the Court does not reach whether it is deprived of jurisdiction on any other basis or whether Plaintiff would be entitled to a jury trial.
Defendant USPS is correct that this Court does not have subject matter jurisdiction over this dispute under the jurisdictional statute referenced in Plaintiff's Complaint, 28 U.S.C. § 1332. That statute is not applicable to this dispute as it governs diversity jurisdiction, which gives this Court jurisdiction over disputes where the parties are citizens of different states and in other situations not applicable here.
In Plaintiff's Motion Not to Dismiss, Plaintiff asserts that jurisdiction over her lawsuit is proper under 39 U.S.C. § 401 and 409. Defendant USPS asserts that if this Court has proper jurisdiction in this matter, it has jurisdiction only under the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 2671 et seq. Defendant USPS asserts that the FTCA excludes claims such as the one in the instant suit from this Court's jurisdiction.
Federal district courts have original jurisdiction over all actions brought against the USPS. 39 U.S.C. § 409(a). The federal government enjoys immunity from suit unless it has consented to be sued. See, e.g., Loeffier v. Frank, 486 U.S. 549, 562 (1988). Congress, however, has waived the sovereign immunity of certain federal entities in the enabling legislation provisions by stating that those entities may "sue and be sued." Id. By federal statute, Congress has granted the USPS the power "to sue and be sued in its official name," waiving the USPS's sovereign immunity. 39 U.S.C. § 401(1); see also Franchise Tax Bd. of California v. U.S. Postal Service, 467 U.S. 512, 519-20 (1984).
section also provides for an exception to original jurisdiction of federal district courts not relevant to this litigation.
However, the waiver of the USPS's sovereign immunity had its limits. "The provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service." 39 U.S.C. § 409(c). Within Title 28, § 2679(a) provides, "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S.C. § 2679(a). The Sixth Circuit Court of Appeals has stated it another way: "Thus, tort causes subordinate to the FTCA must conform to the rules, standards, and procedures of that Act; such actions may not be asserted against even a statutorily suable federal agency (such as USPS) in the manner that an identical claim would be pursued against a private juristic creature." Federal Express Corp. v. U.S. Postal Service, 151 F.3d 536, 540 (6th Cir. 1998).
The question, then, is whether Plaintiff's defamation claim is "cognizable under" 28 U.S.C. § 1346(b). That section reads,
. . . [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). Defamation is a tort covered by this section. Plaintiff's claim is one "for injury or loss of property, or personal injury . . . caused by . . . wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ." See id.
However, the FTCA explicitly excludes libel and slander, i.e., the defamation torts, from its coverage and does not waive sovereign immunity as to those claims. "The provisions of this chapter and section 1346(b) of this title shall not apply to . . . [a]ny claim arising out of . . . libel, slander . . . ." 28 U.S.C. § 2680(h). As a result, one could raise the question whether a defamation claim, because it cannot be brought under the FTCA, is thus not "cognizable under" the FTCA and therefore sovereign immunity has still been waived generally as to it in the "sue-and-be-sued" clause, or whether a defamation is still "cognizable under" the FTCA but has simply been exempted from its coverage, meaning sovereign immunity still exists as to it.
Other district courts have held that a defamation claim against the USPS was barred by sovereign immunity because of the § 2680(h) exemption under the FTCA, but have so held without considering this question. See Mackay v. U.S. Postal Service, 607 F. Supp. 271, 279-80 (E.D. Pa. 1985); Heywood v. United States, 585 F. Supp. 590, 592 (D. Mass. 1984). However, the Supreme Court, in a discussion about the sovereign immunity of the USPS as to Title VII claims, has had occasion to comment on the relationship between the general waiver of the USPS's sovereign immunity and the FTCA. In Loeffler v. Frank, the Supreme Court noted,
Although Congress enacted the FTCA to allow suits against many agencies that previously had been immune from suits in tort, it also wished to "place torts of 'suable' agencies of the United States [like the USPS] upon precisely the same footing as torts of 'nonsuable' agencies." H.R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945). Accordingly, Congress expressly limited the waivers of sovereign immunity that it had previously effected through "sue-and-be-sued" clauses and stated that, in the context of suits for which it provided a cause of action under the FTCA, "sue-and-be-sued" agencies would be subject to suit only to the same limited extent as agencies whose sovereign immunity from tort suits was being waived for the first time[.]Loeffler, 486 U.S. 549, 562 (1988). This indicates that to the extent that a "nonsuable" agency could not be sued for defamation because of the exemption under the FTCA, neither could the "suable" USPS. See also Federal Express Corp., 151 F.3d at 540 (noting that "tort causes subordinate to the FTCA . . . may not be asserted against even a statutorily suable federal agency (such as USPS) in the manner that an identical claim would be pursued against a private juristic creature") (citing Loeffler, 486 U.S. at 562).
As a result, this Court holds that the USPS's sovereign immunity as to defamation claims has not been waived, and there is no proper jurisdictional basis for Plaintiff's defamation claim against the USPS. Therefore, dismissal with prejudice is appropriate. See Mandel v. Nouse, 509 F.2d 1031, 1032 (6th Cir. 1975).
V. Conclusion
Therefore, the Court will deny what it has construed as Plaintiff's Motion for Default Judgment. The Court will also grant Defendant's Motion to Dismiss and deny Plaintiff's Motion Not to Dismiss. A judgment with prejudice consistent with this opinion will be entered.