CADET v. UNITED STATES OF AMERICA

Filing 12

REPORT AND RECOMMENDATIONS re 6 MOTION to Dismiss for Lack of Jurisdiction 7 application to remand filed by UNITED STATES OF AMERICA Objections, if any, to R&R due by 6/1/2015. Signed by Magistrate Judge Steven C. Mannion on 5/17/2015. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
RANDOLPH CADET,

Civ. Action No.

Plaintiff,

2:14-cv-7728-SDW-SCM
ON DEFENDANT’S MOTION TO
DISMISS [D.E. 6] AND
PLAINTIFFS’ MOTION TO REMAND
[D.E. 7]

v.
UNITED STATES OF AMERICA,
Defendant.

REPORT AND RECOMMENDATION
STEVEN C. MANNION, United States Magistrate Judge.
I.

INTRODUCTION
Before the Court is defendant United States’ (“Defendant”)

motion to dismiss for lack of jurisdiction, (ECF Docket Entry
No.

(“D.E.”)

6)

and

plaintiff

Randolph

Cadet’s

(“Plaintiff”)

motion to remand this case to state court. (D.E. 7).

Pursuant

to Local Civil Rule 72.1(a)(2), the Honorable Susan D. Wigenton,
United States District Judge, has referred the instant matter to
the

undersigned

considered

the

for

report

parties’

and

respective

recommendation.
submissions

Having

without

oral

arguments pursuant to Federal Rule of Civil Procedure 78, and
for the reasons set forth herein, it is respectfully recommended

1

that Defendant’s motion to dismiss be GRANTED and Plaintiff’s
motion to remand be DENIED.

II.

BACKGROUND
On May 20, 2014, plaintiff Cadet filed his Complaint pro se

in the Superior Court of New Jersey, Law Division asserting that
defendant

Athena

Pappas

created

a

hostile

work

environment

“since August 2013” and on May 15, 2014 published a defamatory
e-mail about him. (Complaint, D.E. 1 at Exh. A).
On December 11, 2014, the United States removed this case
to Federal court. (D.E. 1).1

The notice was supported by a

Westfall Certification by the United States Attorney’s Office
that Pappas “was acting within the scope of her employment with
the United States of America at the time of the incident(s) out
of which this suit arose….” (D.E. 1, Exh. C).

Four days later,

it filed a notice of substitution for defendant Pappas pursuant
to 28 U.S.C. § 2679(d)(2). (D.E. 2).
On December 23, 2014, the United States moved to dismiss
Plaintiff’s

Complaint

pursuant

Procedure 12(b)(1). (D.E. 6).

to

Federal

Rule

of

Civil

Plaintiff did not “oppose,” but

1

A notice of removal must include copies of all “process, pleadings, and
orders served upon such defendant … in such action.” 28 U.S.C. § 1446(a).
Defendant’s Notice of Removal included copies of the Summons, Complaint, and
a Certification of Scope of Employment. (D.E. 1).

2

filed a request to remand on January 23, 2015, (D.E. 7), which
Defendant opposed. (D.E. 8).
On March 8, 2015, the Court sua sponte extended Plaintiff’s
time to oppose the dismissal motion and Defendant’s time to
respond to Plaintiff’s objection to the Westfall Certification.
(D.E. 9).

Plaintiff did not file any additional submissions,

but Defendant did.

See (D.E. 10).

III. DISCUSSION AND ANALYSIS
The Complaint alleges that defendant Athena Pappas created
a hostile work environment “since August 2013” and on May 15,
2014 published a defamatory e-mail about him. (Complaint, D.E. 1
at Exh. A).
claims

The Federal Tort Claims Act (“FTCA”), however, bars

against

the

United

States

for

wrongful

use

of

civil

proceedings and defamation. Brumfield v. Sanders, 232 F.3d 376,
382 - 383 (3d Cir. 2000) (citing 28 U.S.C. § 2608(h)).

This

result equally applies despite efforts to distinguish claims “by
draping them with different dress and labels fail[] to disguise
their substantive similarity.” Id. at 383.

Thus, if the United

States is the real party here, Plaintiff’s claims

should

be

dismissed.
Plaintiff conceded in his Motion to Remand “that if the

3

conduct

[by

Pappas]

was

committed

within

the

scope

of

employment, substitution of the United States as the defendant
and removal to federal court was appropriate.” (D.E. 7 at ¶
III).

Of course dismissal would then also be appropriate.

The Substitution
In 1988, Congress clarified the terms of the United States'
waiver of sovereign immunity under the FTCA through the Federal
Employees Liability Reform and Tort Compensation Act of 1988
(the

“Westfall

Act”).

The

Westfall

Act

provides

absolute

immunity to federal employees in the wake of Westfall v. Erwin,
484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), by making
suit under the FTCA
remedy

for

negligent

against the United States the exclusive
or

wrongful

acts

committed within the scope of employment.

by

federal

Lomando v. U.S., 667

F.3d 363, 375 (3d Cir. 2011).
Title 28 U.S.C. § 2679(d)(2) states that:
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 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
4

employees

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. [Id.]

The Certification by the United States Attorney’s Office in
support of removal stated that Pappas “was acting within the
scope of her employment with the United States of America at the
time of the incident(s) out of which this suit arose….” (D.E. 1,
Exh. C).

Plaintiff challenges the substitution of the United

States and essentially asserts that Pappas was not acting within
the scope of her Federal employment.
In

the

Circuit

has

context

of

recognized

Westfall

Certifications,

that

court

a

can

the

rule

Third

on

the

certification without conducting discovery or a hearing and may
resolve
Schrob

the
v.

scope

of

Catterson,

employment
967

F.2d

issue
929,

as

935–36

a

matter
(3d

Cir.

of

law.

1992).

Determining whether the government employee was acting within
the scope of his employment requires a court to consult the
relevant state law of respondeat superior. Brumfield v. Sanders,
232 F.3d 376, 380 (3d Cir. 2000).

A plaintiff may rebut a

Westfall Certification by pleading facts sufficient to establish
that the employee acted outside the scope of his employment.
5

Sharratt v. Murtha, 437 Fed.Appx. 167, 172 (3rd Cir. 2011).
New Jersey law provides that an employee acts within the
scope of employment if the action is (1) of the kind that the
servant
within

is
the

employed

to

authorized

perform;

time

and

(2)
space

it

occurs

limits;

substantially

and

(3)

it

is

actuated, at least in part, by a purpose to serve the master.
Abbamont v. Piscataway Tp. Bd. Of Educ., 138 N.J. 405, 650 A.2d
958, 963 (1994); Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508
(1982).
liability

If all three criteria are satisfied, the employer’s
“‘may

extend

even

to

intentional

or

criminal

acts

committed by the servant” and even to acts not authorized by the
employer

“if

they

are

clearly

incidental

to

the

master's

business.’” See Brumfield, 232 F.3d at 381 (citation omitted);
Kielty v. Ali, Civil Action No. 07-5719, 2008 WL 2783340, *4
(July 16, 2008).
(1) Conduct The Servant Is Employed to Perform
Plaintiff acknowledges that Athena Pappas “is the 421 GS-7
Plant Protection Technician who has been employed by USDA for
approximately 12 years.” (D.E. 7 at ¶ IV).

He argues that

Pappas acted outside her role as a Plant Protection Technician.
(D.E. 7 at ¶ V).

6

The
claims

defense

was

the

argues
type

of

“representing
action

she

employees

[Pappas]

in

was

their

EEO

employed

to

perform. Cadet had approved her use of official time for that
purpose.” (D.E. 10 at 7, citing D.E. 8, Pltf. Motion to Remand).
“Although her position description does not mention it, APHIS
explicitly sanctioned employees’ use of official time to conduct
EEO activity.”

(D.E. 10 at 7).

From the correspondence attached to Plaintiff’s submission,
and the Defendant’s submissions, it is clear Pappas was acting
as an Equal Employment Opportunity representative for another
employee at all times relevant.

It is immaterial that in that

role she was not acting as a Plant Protection Technician per se,
she was performing a recognized collateral duty that could be
assigned to any employee.
(2) Time and Location of Conduct
Defendant

asserts

that

“Pappas

wrote

the

e-mail

substantially within the authorized time and space limits of her
employment.” (D.E. 10 at 7).

Plaintiff does not dispute that

the subject email was sent from Pappas’ work email at 8:30 a.m.,
during her regular work hours. (D.E. 7 at ¶ III; D.E. 10-1 at ¶
3).

Thus, this factor supports substitution.

7

(3) Purpose of The Conduct
Plaintiff
herself

as

signature.

further

the

contends

Pappas

“Representative

(D.E. 7 at ¶ V).

for

W.

improperly

identified

McNeil”

her

in

email

The defense counters that “Pappas’

conduct was actuated, at least in part, by a purpose to serve
the master, i.e., the USDA. To determine the USDA’s purpose, one
needs to consider what the agency’s interests were.

Here, the

USDA needed to comply with its equal opportunity obligations.”
(D.E. 10 at 7).
This Court agrees.

The motion record is clear that Pappas’

conduct was motivated at least in part to serve her employer’s
mission

to

prevent

employment

discrimination,

and

thus,

recommends a finding that Pappas acted within the scope of her
employment.

Consequently,

the

removal

and

substitution

were

appropriate and dismissal is required because the Federal Tort
Claims Act bars claims against the United States for wrongful
use of civil proceedings and defamation. Brumfield, 232 F.3d at
382 - 383 (citing 28 U.S.C. § 2608(h)).

The remand motion

should therefore be denied or deemed moot.

IV.

CONCLUSION
In

conclusion,

it

is

respectfully
8

recommended

that

Defendant’s

Motion

to

Dismiss

(D.E.

6)

be

GRANTED

and

Plaintiff’s Motion to Remand (D.E. 7) be DENIED.
The
objections

parties
to

this

have

fourteen

Report

and

days

to

Recommendation

U.S.C. § 636 and L. Civ. R. 71.1(c)(2).

5/17/2015 4:35:37 PM

c (via ECF):
Defense Counsel
c (via U.S. Mail):
MR. RANDOLPH CADET
20 MILL POND ROAD
JACKSON, NJ 08527

9

file

and

pursuant

serve
to

28