COLLINS v. UNITED STATES OF AMERICA

Filing 16

ORDER granting 2 Motion to Dismiss Complaint. Ordered by Judge Clay D. Land on 12/27/2011. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARSHA COLLINS,

*

Plaintiff,

*

vs.

*

UNITED STATES OF AMERICA
on behalf of NICQOLLE HARRIS
TRUITT,

CASE NO. 4:11-CV-111 (CDL)

*
*

Defendant.

*
O R D E R

Plaintiff

Marsha

former coworker,
made

defamatory

Collins

Defendant

(“Collins”)

contends

that

her

Nicqolle Harris Truitt (“Truitt”),

statements

about

Collins

to

Collins’s

supervisors, causing Collins to be terminated from her job as a
civilian employee with the United States Army.

Though Collins

originally brought this action against Truitt, the action is
deemed

to

be

against

the

United

States

of

America

(“United

States”) because it has been certified that Truitt was acting
within the scope of her employment at the time of the conduct
alleged in the Complaint.

Notice of Substitution of Party Def.

Attach. 1, Certification of Scope of Employment, ECF No. 1-4;
see 28 U.S.C. § 2679(d) (providing that a claim based on the
acts or omissions of a United States employee who was acting
within the scope of her office or employment at the time of the

incident out of which the claim arose is deemed to be an action
brought against the United States).1

The United States filed a

Motion to Dismiss (ECF No. 2), which is presently pending before
the Court.

For the reasons set forth below, the Motion to

Dismiss is granted.
MOTION TO DISMISS STANDARD
In this action, the United States brings a facial challenge
to subject matter jurisdiction.

“Facial challenges to subject

matter jurisdiction are based solely on the allegations in the
complaint.”
572

F.3d

Carmichael v. Kellogg, Brown & Root Servs., Inc.,
1271,

1279

(11th

Cir.

2009).

Therefore,

when

considering a facial challenge to subject matter jurisdiction,
the

Court

must,

“as

with

a

Rule

12(b)(6)

motion,

take

the

complaint’s allegations as true” and determine whether subject
matter jurisdiction exists based on those allegations.

Id.

FACTUAL ALLEGATIONS
Collins alleges that she was formerly a civilian employee
of the U.S. Army at Ft. Benning, Georgia.

Notice of Removal

Attach. 2, Compl. ¶ 5, ECF No. 1-2 [hereinafter Compl.].

Truitt

is a civilian employee of the U.S. Army at Ft. Benning and was

1

Collins initially objected to the Notice of Substitution filed by the
United States, contending that Truitt was not acting within the scope
of her office or employment at the time of the incident out of which
the claim arose, but she has since withdrawn that objection
Pl.’s
Mot. to Withdraw Objection to Substitution of Party Def. 2, ECF No.
11.
Therefore, there is no dispute that the United States is the
proper defendant in this action.

2

formerly Collins’s coworker.
from

her

position

because

Id. ¶ 6.
of

Collins was terminated

statements

Collins to Collins’s supervisors.

Truitt

Id. ¶¶ 7-9.

made

about

Collins contends

that those statements were false and that they were made with
the intent of causing Collins’s employment to be terminated.
Id. ¶¶ 10-12.

Collins asserts a count for slander, id. ¶¶ 14-

18, and a count for libel, id. ¶¶ 19-22.
DISCUSSION
The United States contends that Collins’s claims are barred
by sovereign immunity.2
Claims

Act

(“FTCA”)

The Court agrees.

abrogates

the

United

The Federal Tort
States’

sovereign

immunity and allows the United States to be held liable to the
same extent as a private person for certain torts committed by
federal employees acting within the scope of their employment.
See 28 U.S.C. § 1346(b)(1).

This waiver does not apply to any

claim arising out of libel or slander.

28 U.S.C. § 2680(h);

accord O’Ferrell v. United States, 253 F.3d 1257, 1265-66 (11th
Cir. 2001) (discussing libel and slander exceptions to FTCA).
The only tort

claims

alleged in Collins’s Complaint are

2

for

Collins previously contended in her response to the Motion to Dismiss
that Truitt—not the United States—is the correct defendant and is not
entitled to sovereign immunity.
This contention was based on
Collins’s assertion that Truitt was not acting in the scope of her
employment at the time of the incident out of which the claim arose.
Collins has since withdrawn her objection to the Notice of
Substitution of Party Defendant, Pl.’s Mot. to Withdraw Objection to
Substitution of Party Def. 2, ECF No. 11, and there is now no dispute
that the United States is the proper defendant in this action.

3

slander and libel.

Compl. ¶¶ 14-22.

The United States has not

waived its sovereign immunity as to such claims, and the Court
therefore lacks subject matter jurisdiction over this action.
Accordingly, Collins’s Complaint must be dismissed.
CONCLUSION
As discussed above, the Motion to Dismiss of the United
States (ECF No. 2) is granted.
IT IS SO ORDERED, this 27th day of December, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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