United States District Court, W.D. Louisiana, Alexandria Division
ERIC R. CERWONKA
PETER C. DANCY, JR.
PEREZ-MONTES MAG. JUDGE.
DRELL UNITED STATES DISTRICT COURT.
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.
FACTS & PROCEDURAL HISTORY
a clinical psychologist, was employed by the Department of
Veterans Affairs ("VA") for approximately fourteen
years. 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. 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.
filed suit against Dancy in the 15th Judicial District Court,
Parish of Lafayette, State of Louisiana, on April 10,
2017. 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. 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,
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. 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. On March 19,
2019, the government filed a motion to substitute itself in
place of Dancy as the defendant in this matter,
well as certification that Dancy was acting within the course
and scope of employment at all times relevant to this
suit. Cerwonka opposes the motion to
substituteand argues that the matter should be
LAW & ANALYSIS
12(b)(1) Motion to Dismiss
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).
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.
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.
government has filed scope-of-employment certification for
Cerwonka as provided for in the Westfall Act. 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. Accordingly,
the Court must decline to ...