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Cerwonka v. Dancy

United States District Court, W.D. Louisiana, Alexandria Division

May 9, 2019





         Before the Court is a Rule 12(b)(1) motion to dismiss (Doc. 25) filed by the United States of America ("the government"), an opposition (Doc. 31) filed by Plaintiff Eric R. Cerwonka, a reply (Doc. 32) filed by the government, a report and recommendation (Doc. 47), a motion to substitute party (Doc. 50) filed by the government, a certification of course and scope of employment (Doc. 51) filed by the government, an objection to the report and recommendation (Doc. 52) filed by the government, an opposition to the motion to substitute (Doc. 55) filed by Cerwonka, a response to the government's objection (Doc. 56) filed by Cerwonka, and a reply to Cerwonka's opposition (Doc. 57) filed by the government. For the following reasons, the Court must DECLINE TO ADOPT the report and recommendation. Additionally, the motion to substitute the government as party defendant will be GRANTED, the motion to dismiss will be GRANTED, any pending motions will be DENIED AS MOOT, and this matter will be DISMISSED WITHOUT PREJUDICE.


         Cerwonka, a clinical psychologist, was employed by the Department of Veterans Affairs ("VA") for approximately fourteen years.[1] He alleges that Peter C. Dancy, Jr., the Medical Center Director for the Alexandria VA Health Care System, engaged in a scheme to discredit him professionally and terminate his employment at the VA.[2] Cerwonka's employment with the VA was allegedly terminated on April 1, 2017, as a result of an investigation by an Administrative Investigation Board empaneled by Dancy.[3]

         Cerwonka filed suit against Dancy in the 15th Judicial District Court, Parish of Lafayette, State of Louisiana, on April 10, 2017.[4] There he sought monetary damages for: (1) damage to his reputation as a licensed clinical psychologist and VA employee; (2) illegal use of confidential patient records and information; and (3) libel.[5] The government, which was not named as a defendant in the petition, removed the case to this Court on May 12, 2017, pursuant to Title 28 U.S.C. § 1346(b) and Title 28 U.S.C. §§ 1442, et seq[6]

         The government filed a 12(b)(1) motion to dismiss on August 7, 2018, arguing that the Court lacks subject-matter jurisdiction over any of Cerwonka's claims.[7] On February 26, 2019, the magistrate judge issued a report and recommendation concluding that we indeed lack subject-matter jurisdiction over Cerwonka's claims under the derivative-jurisdiction doctrine and recommending that the government's motion to dismiss be granted and the case remanded.[8] On March 19, 2019, the government filed a motion to substitute itself in place of Dancy as the defendant in this matter, [9] as well as certification that Dancy was acting within the course and scope of employment at all times relevant to this suit.[10] Cerwonka opposes the motion to substitute[11]and argues that the matter should be remanded.[12]

         II. LAW & ANALYSIS

         1. 12(b)(1) Motion to Dismiss

         Pursuant to Fed.R.Civ.P. 12(b)(1), a party may obtain dismissal of a claim for lack of subject-matter jurisdiction. In deciding a 12(b)(1) motion, the court may consider evidence outside of the pleadings and the attachments thereto. Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009). More specifically, "under Rule 12(b)(1), the court may find a plausible set of facts by considering any of the following: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (internal quotation marks omitted) (citation omitted). However, "no presumptive truthfulness attaches to the plaintiffs allegations, and the court can decide disputed issues of material fact in order to determine whether or not it has jurisdiction to hear the case." Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004).

         2. Westfall Act

         "The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as 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, 229 (2007) (citing 28 U.S.C. § 2679(b)(1)). "When a federal employee is sued for wrongful or negligent conduct, the Act empowers the Attorney General to certify that the employee 'was acting within the scope of his office or employment at the time of the incident out of which the claim arose." Id. at 229-30 (quoting 28 U.S.C. § 2679(d)(1), (2)). Once the Attorney General issues scope-of-employment certification, the United States is substituted as defendant in place of the employee and the matter is thereafter governed by the Federal Tort Claims Act ("FTCA"). Id. at 230.

         Title 28 U.S.C. § 2679 provides that the scope-of-employment certification "shall conclusively establish scope of office or employment for purposes of removal." 28 U.S.C. § 2679(d)(2). The scope-of-employment is subject to judicial review. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). In terms of jurisdiction, however, the Supreme Court has held that that "[b]y declaring the Attorney General's certification 'conclusive' as to the federal forum's jurisdiction, Congress has barred a district court from passing the case back to the state court where it originated based on the court's disagreement with the Attorney General's scope-of-employment determination." Osborn, 549 U.S. at 243.

         The government has filed scope-of-employment certification for Cerwonka as provided for in the Westfall Act.[13] Although the scope-of-employment certification was filed after removal, it nonetheless conclusively establishes federal jurisdiction over the matter. See Johnson v. United States, 606 Fed.Appx. 237 (5th Cir. 2015) (affirming judgment in a case where scope-of-employment certification was filed subsequent to removal and the district court retained jurisdiction). The magistrate judge's well-reasoned report and recommendation has been rendered invalid by the filing of this scope-of-employment certification.[14] Accordingly, the Court must decline to ...

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