Ashe v. Broder

Filing 15

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 9/14/2017. Associated Cases: 8:17-cv-02071-PJM, 8:17-cv-02073-PJM, 8:17-cv-02074-PJM, 8:17-cv-02076-PJM, 8:17-cv-02077-PJM(c/m 9/14/2017 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KEITH ALEXANDER ASHE
Plaintiff
v.
COLLEEN M. GUAY BRODER
Defendant.

KEITH ALEXANDER ASHE
Plaintiff
v.
HERBERT JACOBI
Defendant.

KEITH ALEXANDER ASHE
Plaintiff
v.
LAURA MCINTYRE
Defendant.

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Civil No. PJM 17-2071

Civil No. PJM 17-2073

Civil No. PJM 17-2074

KEITH ALEXANDER ASHE
Plaintiff
v.
KATHLEEN MEE
Defendant.

KEITH ALEXANDER ASHE
Plaintiff
v.
DEBORAH E. WILSON
Defendant.

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Civil No. PJM 17-2076

Civil No. PJM 17-2077

MEMORANDUM OPINION
Pro se Plaintiff Keith Alexander Ashe has sued the above individual Defendants, all
employees of the United States Department of Health and Human Services (“HHS”). In his
Complaints, he alleges that each made defamatory statements about him in connection with
administrative proceedings regarding whistleblower disclosures purportedly made by him. The
Defendants have filed Motions to Substitute (ECF No. [9] in 17-2071; ECF No. [8] in 17-2073,
17-2074, 17-2076, 17-2077), arguing that the United States is the proper defendant in suits for
allegedly tortious acts committed by government employees acting within the scope of their
employment for the United States of America.
The Court will GRANT Defendants’ Motions to Substitute (ECF No. [9] in 17-2071;
ECF No. [8] in 17-2073, 17-2074, 17-2076, 17-2077).

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I.

FACTS AND PROCEDURAL HISTORY

Ashe was employed at the National Institutes of Health (“NIH”) for approximately nine
years. 17-2071 Compl. at 2. During that period, he was supervised by Deborah Wilson, the
Division Director of HHS’ NIH Division of Occupational Health and Safety. 17-2071 Compl. at
2. He also worked with Laura McIntyre, an employer relationship specialist at HHS, and Herbert
Jacobi, the Deputy Director of the Division of Occupational Health and Safety. 17-2073 Compl.
at 2; 17-2074 Compl. at 2. Ashe states that he made whistleblower disclosures regarding the
fabrication of an engineering regulatory report and contract fraud involving two NIH contractors,
and that as a consequence of those disclosures, Wilson retaliated against him by requesting that,
among other things, Ashe be suspended for 14 days and removed from Federal Government
service. 17-2071 Compl. at 2. Broder was responsible for evaluating the evidence put forth by
Ashe and Wilson regarding the dispute, and decided to suspend Ashe for fourteen days and to
ultimately remove him from his position. 17-2071 Compl. at 2. Following Broder’s decision,
Ashe appealed his case to the United States Merit Systems Protection Board (“MSPB”), where
HHS was represented by Kathleen Mee, Esquire. 17-2076 Compl. At 2. McInterye and Jacobi
provided evidence that was reviewed both by Broder and the MSPB. 17-2074 Compl. at 3; 172073 Compl. at 3.
Ashe avers that each Defendant made defamatory statements in connection with his
whistleblower proceedings. On May 1, 2017, he filed the five present Complaints in the District
Court of Maryland for Montgomery County, seeking $5,000 in damages in each, a total of
$25,000. On July 24, 2017, all five cases were removed to this Court. On July 26, Defendants
filed Motions to Substitute (ECF No. 9 in 17-2071; ECF No. 8 in 17-2073, 17-2074, 17-2076,
17-2077) the United States as Defendant. Ashe has filed no opposition.

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II.

ANALYSIS

Suits against employees of the United States for torts committed during the course of
employment are governed by the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 2679(b)(1).
The FTCA provides that the exclusive remedy for such a suit is a suit against the “United
States.” 28 U.S.C. § 2674 (permitting FTCA suits only against the “United States” as a
defendant). The FTCA does not provide for any remedy against federal employees in their own
names for torts they allegedly commit during the course of their employment. Here, Ashe has
alleged that Defendants, all HHS employees, made defamatory statements during the course of
their involvement in his disciplinary proceedings, which is to say while in the scope of their
employment. Under these facts, the FTCA provides that the exclusive remedy is a suit against
the United States.
The FTCA also provides that, upon certification by the Attorney General that a federal
employee was acting within the scope of his or her office or employment at the time of the
incident out of which a state law claim arises, any civil action arising out of the incident shall be
deemed an action brought against the United States, and the United States shall be substituted as
the defendant with respect to those claims. 28 U.S.C. § 2679(d)(1). The Attorney General has
delegated certification authority to the United States Attorneys. 28 C.F.R. § 15.3. Stephen M.
Schenning, Acting United States Attorney for the District of Maryland, has made the appropriate
certification for each Defendant in the present cases. (ECF No. 9-1 in 17-2071; ECF No. 8-1 in
17-2073, 17-2074, 17-2076, 17-2077).

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Accordingly, the Court will GRANT Defendants’ Motions to Substitute, ECF No. [9] in
17-2071; ECF No. [8] in 17-2073, 17-2074, 17-2076, 17-2077.

/s/
_
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
September 14, 2017

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