Long v. Hillsman et al

Filing 30

MEMORANDUM AND ORDER. The plaintiffs motion to remand (Dk. 10) is denied; the federal defendants motion to substitute the United States of America as the real party defendant and motion to dismiss for lack of subject matter jurisdiction (Dk. 6) is gr anted. United States of America added. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 11/15/2011. Mailed to pro se party: Mr. Charles Gordon Long, Reg. No. 80441-012, Pekin-FCI, PO Box 5000, Pekin, IL 61555 by regular mail. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES GORDON LONG,
Plaintiff,
Vs.

No. 11-3084-SAC

J. BENSON HILLSMAN, and
JOEL BAILEY,
Defendants.
MEMORANDUM AND ORDER
Charles Gordon Long, an inmate at the United States
Penitentiary, Leavenworth, Kansas, filed a pro se complaint in Leavenworth
County District Court on January 27, 2011. (Dk. 1, Notice of Removal, Ex.
1). Long alleges the defendants, J. Benson Hillsman and Joel Bailey, “wrote,
published, republished and caused to be distributed . . . the scandalous and
per se defamatory statement that the Plaintiff had committed a sex-related
crime and was a ‘Sex Offender.’” Id. at ¶ 4. Long asserts two causes of
action respectively denominating them as the torts of “defamation” and
“false light” for which he seeks damages, as well as injunctive and
declaratory relief. Id. at p. 3. The defendants removed this suit to federal
court, and the parties have filed several motions that are ready for decision.
Because two of these motions are dispositive here, the court will address
only the plaintiff’s motion to remand (Dk. 10) and the defendants’ motion to
substitute and to dismiss (Dk. 6). In this order, the court finds that the

action was properly removed but that it must be dismissed for lack of
jurisdiction because the plaintiff did not exhaust the required administrative
remedies before filing suit.
On April 22, 2011, the defendants filed a notice of removal
asserting federal jurisdiction under the federal officer removal provision, 28
U.S.C. § 1442(a). Filed with the notice was a certification from the United
States Attorney for the District of Kansas pursuant to 28 U.S.C. §
2679(d)(2).1 Exercising his authority given by the United States Attorney
General under 28 C.F.R. § 15.4, the United States Attorney certified and
found that the defendants Hillsman and Bailey were “employees of the
Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas,
[and] were acting within the scope of their employment as employees of the
United States of America at the time of the conduct alleged in the
Complaint.” (Dk. 1, Ex. B, Certification).
This notice of removal was not the defendants’ first attempt at
removing this state court action. The defendants filed a prior notice of
removal on March 1, 2011, resulting in the federal case of Long v. Hillsman,
et al., No. 11-3051-SAC. This court entered an order on April 12, 2011, that
granted the plaintiff’s motion to remand because the defendants had not

This provision is part of the Federal Employees Liability Reform and
Tort Compensation Act of 1988 (the “Westfall Act”) which amended the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680.
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provided a scope-of-employment certification and because neither the notice
of removal nor the plaintiff’s complaint provided a factual basis for
jurisdiction under § 1442(a). (Dk. 10, Ex. A, Order of Remand filed in Long
v. Hillsman, et al., No. 11-3051). Ten days later, the government filed the
notice of removal that resulted in the current action.
PLAINTIFF’S MOTION TO REMAND (Dk. 10)
The plaintiff advances several arguments for remand. The
defendants did not file their notice of removal within the thirty-day limit in
28 U.S.C. § 1446(b). The defendants’ notice does not comply with 28 U.S.C.
§ 1446(a) for they didn’t file with it a copy of the complaint and process.
The plaintiff challenges that the defendants should not be given a second
chance at removing this action. Finally, the plaintiff makes the alternative
request that the court would accept his voluntary dismissal of the monetary
damage claims and remand to state court his claims for injunctive and
declaratory relief.
While § 1446(b) certainly imposes a general thirty-day filing
period for a notice of removal, the defendants’ specific authority for
removing this action arises under § 2679(d)(2):
(2) 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

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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.
28 U.S.C. § 2679(d)(2) (underlining added). When confronted with this
apparent conflict between the thirty-day limit in § 1446(b) and the
expansive “any time before trial” in § 2679(d)(2), the courts have looked to
the express and specific terms of § 2679(d) and upheld removal actions as
timely if filed “at any time before trial.” See, e.g., McLaurin v. United States,
392 F.3d 774, 778-79 (5th Cir. 2004), cert. denied, 545 U.S. 1104 (2005);
Green v. Hill, 954 F.2d 694, 696 n.3 (11th Cir.), superseded in part on other
grounds, 968 F.2d 1098 (11th Cir. 1992); Wolfe v. United States, 2010 WL
2600740 at *2 (N.D. Ill. 2010); Allstate Inc. Co. v. Quick, 107 F. Supp. 2d
900, 905 (S.D. Ohio 1999).
The reasons behind these holdings are simple and compelling.
Congress expressly allowed for removal to proceed under the limited
circumstances of § 2679(d) “any time before trial,” and “Congress is not
presumed to have used words for no purpose.” McLaurin, 392 F.3d at 779
(internal quotation marks and citations omitted). The more specific and
express provision should control. See Wolfe v. United States, 2010 WL

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2600740 at *2; Allstate Ins. Co. v. Quick, 107 F. Supp. 2d at 905.2 This
being the Westfall “Act’s only temporal limitation on the certification
procedure,” fairness certainly speaks against imposing “a deadline for §
2679(d) notice that the Act itself does not impose.” Sullivan v. United States,
21 F.3d 198, 205-06 (7th Cir.), cert. denied, 513 U.S. 1060 (1994). Because
the 30–day time requirement for removal in § 1446(b) is not jurisdictional,3 a
court has the authority to review a notice untimely under § 1446(b) but
timely under § 2679(d). See Green v. Hill, 954 F.2d at 696 n.3. The
plaintiff’s argument on timeliness is meritless.
The plaintiff’s other arguments for remand are similarly without
merit. With the notice of removal, the defendants did comply with § 1446(a)
by filing copies of the summons and the plaintiff’s complaint. (Dk. 1, Ex. A).

The Supreme Court in Powerex Corp. v. Reliant Energy Services, Inc.,
551 U.S. 224, 234 (2007), noted that it had resolved a conflict between the
forum-determining provisions in § 1447(d) and § 2679(d):
“The Court's opinion in Osborn v. Haley, 549 U.S. 225, 127 S.Ct. 881,
166 L.Ed.2d 819 (2007), had nothing to say about the scope of review
that is permissible under § 1447(d), since it held that § 1447(d) was
displaced in its entirety by 28 U.S.C. § 2679(d)(2). See 549 U.S., at
243 – 244, 127 S.Ct., at 895 (reasoning that, of the two
forum-determining provisions—§ 1447(d), the generally applicable
section, and § 2679(d)(2), a special prescription governing Westfall
Act cases—‘only one can prevail’).”
This decision certainly establishes the judicial preference for resolving
statutory conflicts by relying on the specific terms of the Westfall Act.
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Farm & City Ins. Co. v. Johnson, 190 F. Supp. 2d 1232, 1236-1237
(D. Kan. 2002) (and cases cited therein).
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The plaintiff offers no convincing argument for recognizing either legal
doctrine--res judicata or law of the case--as applicable to the defendant’s
filing of a second notice of removal. The defendants did not rely on §
2679(d) nor followed its certification procedure in filing the first notice of
removal. So, there is no applicable prior ruling, as the court did not address
§ 2679(d) or review any certification before entering the remand order in
case No. 11-3051-SAC. The Westfall Act plainly imposes no additional time
restrictions and triggers removal only upon certification. The court finds no
grounds for considering the defendants to have “waived their Westfall Act
immunity by failing to invoke it sooner than they did.” Sullivan v. United
States, 21 F.3d at 205-06. Removal here is not simply because of an
available federal defense, for Congress expressly established the right of
removal under § 2679(d). The plaintiff’s off-handed reference to the
defendants’ certification affidavits as “woefully deficient” does not satisfy the
plaintiff’s “burden of rebutting” the certification with specific facts showing
the employees were not acting within the scope of their employment.
Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir. 1995); Daugherty v.
United States, 212 F. Supp. 2d 1279, 1285 (N.D. Okla. 2002), aff’d, 73 Fed.
Appx. 326 (10th Cir. 2003). Based on its ruling on the next motion, this
court finds itself without jurisdiction to entertain the plaintiff’s alternative
request for remanding his claims for declaratory and injunctive relief. The

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plaintiff’s motion to remand is denied.
DEFENDANTS’ MOTION TO SUBSTITUTE THE UNITED STATES OF
AMERICA AS THE REAL PARTY DEFENDANT AND MOTION TO DISMISS
(Dk. 6)
The individual defendants move the court for an order
substituting the United States as the real party defendant and dismissing this
action for lack of subject matter jurisdiction. The plaintiff responds
incorporating his arguments in support of remand, recasting his claims as
sounding not just in tort but as also seeking injunctive and declaratory relief,
challenging summarily the sufficiency of the certification affidavits, asserting
the employees violated state criminal acts outside the scope of their federal
duties, and finally conceding the government’s legal position on immunity
from the intentional torts pled in the plaintiff’s complaint.
In suing the individual defendants for defamation and false light,
the plaintiff is bringing a civil action against the individual defendants based
on their performance of official duties as case managers at USP Leavenworth.
The affidavits establish that Hillsman and Bailey had been assigned the
inmate Long as part of their case load and that they were responsible for
updating and maintaining the accuracy of inmate Long’s central file. (Dk. 1,
Ex. B, Att. A and B). Hillsman’s affidavit describes finding in Long’s central
file that he had been assigned a public safety factor of sex offender and then
providing Long with a notification form triggering Long’s right to appeal this

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assignment. (Dk. 1, Ex. B, Att. A). When Long challenged the assignment,
Hillsman was then required to investigate the accuracy of the information and
so contacted the United States Probation Office. Hillsman avers these actions
as a case manager form the basis of Long’s allegations that she published a
defamatory statement about him. The plaintiff has not come forward with
specific facts rebutting the scope-of-employment certification and supporting
affidavits. Richman v. Straley, 48 F.3d at 1145. The plaintiff has no basis
from these uncontested facts for now making any blanket assertion that
these employees in performing these duties committed state criminal
offenses outside the scope of their office.
“Under section 2679(d)(1) . . ., any civil action against an
individual defendant who is a government employee acting within the scope
of his employment is deemed an action against the United States. The United
States is then substituted as the sole defendant.” Richman, 48 F.3d at 1145
(footnote omitted). In short, the FTCA provides absolute immunity for
federal government employees “by making an FTCA action against the
Government the exclusive remedy for torts committed by Government
employees in the scope of their employment.” United States v. Smith, 499
U.S. 160, 163 (1991). Upon certification, like here, that the defendants were
acting within the scope of their office “at the time of the incident out of which
the claim arose,” 28 U.S.C. § 2679(d)(2) , the United States is substituted as

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a defendant and the plaintiff’s action must proceed as an action under the
FTCA with it being the plaintiff’s sole remedy. 28 U.S.C. § 2679(d)(1), (2),
and (4). Thus, certification establishes removal jurisdiction, and “district
courts [have] no authority to return cases to state courts on the ground that
the Attorney General’s certification was unwarranted.” Osborn v. Haley, 549
U.S. 225, 241 (2007).
“Because the FTCA constitutes a waiver of the government’s
sovereign immunity, the notice requirements established by the FTCA must
be strictly construed. The requirements are jurisdictional and cannot be
waived.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840,
852 (10th Cir. 2005) (internal quotation marks and citation omitted). Section
2675(a) establishes a jurisdictional prerequisite barring FTCA “claimants from
bringing suit in federal court until they have exhausted their administrative
remedies.” Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999)
(citations omitted). The government has established with proper proof that
Long submitted an administrative tort claim to the BOP on the matters raised
in this suit on September 16, 2010, and that the BOP sent a denial letter to
the plaintiff by certified mail on April 15, 2011. The court record shows the
plaintiff filed his complaint in Leavenworth County District Court on January
27, 2011, or before the six-month period for agency investigation under §
2675(a) expired and before the BOP formally denied his claim as sent by

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certified mail in April of 2011. There is no question that the plaintiff filed his
state court complaint before he had exhausted his administrative remedies.
Long’s pro se original complaint was filed prematurely under the
FTCA. “The FTCA bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies.” McNeil v. United States, 508
U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”). This exhaustion requirement is a
prerequisite to bringing suit and is not satisfied by a claimant who completes
the exhaustion of his administrative remedies after filing suit. McNeil, 508
U.S. at 111-12 (“The most natural reading of the statute [§ 2675(a)]
indicates that Congress intended to require complete exhaustion of Executive
remedies before invocation of the judicial process.”).

The filing of an

amended complaint after the exhaustion requirement is met does not cure a
premature original complaint:
We agree with the Sparrow [v. USPS, 825 F. Supp. 252 (E.D. Cal.
1993)] court’s conclusion that, as a general rule, a premature
“complaint cannot be cured through amendment, but instead, plaintiff
must file a new suit.” Sparrow, 825 F. Supp. at 255. Allowing
claimants generally to bring suit under the FTCA before exhausting their
administrative remedies and to cure the jurisdictional defect by filing an
amended complaint would render the exhaustion requirement
meaningless and impose an unnecessary burden on the judicial system.
See McNeil, 508 U.S. at 112; Sparrow, 825 F. Supp. at 255. “Congress
intended to require complete exhaustion . . . before invocation of the
judicial process.” McNeil, 508 U.S. at 112.

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Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (original complaint
filed in state court, and action removed to federal court). Because Long filed
his original complaint before his exhaustion of administrative remedies was
complete, this action must be dismissed for lack of subject matter
jurisdiction. See D’Addabbo v. United States, 316 Fed. Appx. 722, 724-25,
2008 WL 5062181, at *2 (10th Cir. 2008), cert. denied, 129 S. Ct. 1634
(2009); Stevens v. United States, 61 Fed. Appx. 625, 627, 2003 WL 1712123
at *2 (10th Cir. 2003).
IT IS THEREFORE ORDERED that the plaintiff’s motion to remand
(Dk. 10) is denied;
IT IS FURTHER ORDERED that the federal defendants’ motion to
substitute the United States of America as the real party defendant and
motion to dismiss for lack of subject matter jurisdiction (Dk. 6) is granted.
Dated this 15th day of November, 2011, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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