Williams v. USA

Filing 33

MEMORANDUM DECISION and ORDER Granting Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. IT IS HEREBY ORDERED that the defendants Motion to Dismiss Plaintiff's Second Amended Complaint is GRANTED, and Plaintiff's Second Amended Complaint is dismissed with prejudice. Signed by Judge Dee Benson on 10/31/2018. (mas)

JOHN W. HUBER, United States Attorney (7226)
JEFFREY E. NELSON, Assistant United States Attorney (2386)
Attorneys for the Defendants
111 South Main Street, Suite 1800
Salt Lake City, Utah 84111
[phone]
[e-mail]
______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION

SCOTT WILLIAMS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT

v.
Case No. 1:18-cv-00006-DB
UNITED STATES of AMERICA and
KENNETH BRUNER,

District Judge Dee Benson

Defendants.

Before the Court is the defendants’ Motion to Dismiss Plaintiff’s Second Amended
Complaint (Dkt. 19). The motion has been fully briefed, and a hearing was held before the Court
on October 10, 2018. At the hearing, Scott Williams (“Plaintiff”) was represented by Andrew
Fackrell, and the defendants were represented by Jeffrey E. Nelson. Based on the parties’ written
and oral arguments, the pleadings, and the relevant law, the Court enters the following
Memorandum Decision and Order.
In his Second Amended Complaint, Plaintiff alleges that defendant Kenneth Bruner
violated Plaintiff’s Fifth Amendment due-process rights when he published defamatory
statements about Plaintiff. Pursuant to FED. R. CIV. P. 12(b)(6), the defendants have moved for

dismissal of Plaintiff’s Second Amended Complaint on the grounds that (1) the complaint fails to
state a claim on which relief can be granted under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971), and (2) defendant Kenneth Bruner is entitled to qualified immunity from
Plaintiff’s Bivens claim. See Mot. To Dismiss Pl.’s Sec. Am. Compl. (Dkt. 27). For the reasons
set forth below, the defendants’ Motion to Dismiss is GRANTED.

STANDARD OF REVIEW
To survive a motion under Rule 12(b)(6), a complaint must contain factual allegations
sufficient to state a claim that is plausible on its face. Anderson v. Suiters, 499 F.3d 1228, 1232
(10th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). “[T]he mere metaphysical possibility that some
plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the
complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007). The plaintiff bears the burden of demonstrating that the complaint
meets this threshold. Olson v. Carmack, 641 F. App’x 822, 826-27 (10th Cir. 2016)
(unpublished) (citing Twombly, 550 U.S. at 556).
The court accepts the allegations of the complaint as true and draws all reasonable
inferences in the plaintiff’s favor. Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d 381, 385 (10th

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Cir. 2016). However, the court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

DISCUSSION
I.

Challenge to scope-of-employment certification.
Plaintiff sued Mr. Bruner, an employee of the United States Air Force, in the Second

Judicial District Court of Davis County, State of Utah. See Pl.’s Compl. (Dkt. 2-2). Plaintiff
alleged that Mr. Bruner published false statements that defamed Plaintiff and damaged his
reputation. Id. ¶¶ 19-29. The United States removed that case to this Court based on the
certification of the United States Attorney that Mr. Bruner was acting within the scope of his
federal employment at the time of the events on which Plaintiff’s claim was based. See Notice of
Removal (Dkt. 2). Under 28 U.S.C. § 2679(d)(2), the case then proceeded as an action against
the United States under the Federal Tort Claims Act (FTCA).
Defamation claims fall within an exception to the FTCA’s waiver of the United States’
sovereign immunity. See 28 U.S.C. § 2680(h). Thus, the United States moved to dismiss the
defamation cause of action in Plaintiff’s Amended Complaint on the ground that the Court
lacked subject-matter jurisdiction over Plaintiff’s defamation cause of action because it is barred
by the FTCA’s exclusion of defamation claims. See Mot. to Dismiss Pl.’s Am. Compl. (Dkt. 12).
The Court issued a Memorandum Decision and Order dated May 2, 2018 (Dkt. 22), in which the
Court dismissed Plaintiff’s Amended Complaint and granted Plaintiff leave to amend his
complaint to assert a Bivens claim against Mr. Bruner. Plaintiff filed a Second Amended
Complaint (Dkt. 19), which is the subject of the Motion to Dismiss presently before the Court.

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At the hearing on October 10, 2018, Plaintiff attempted to challenge the scope-ofemployment certification by arguing that Mr. Bruner was not acting within the scope of his
federal employment when he made the allegedly defamatory statements about Plaintiff. If
Plaintiff could prove that Mr. Bruner was acting outside the scope of his employment, Plaintiff
would not be required to pursue his claim against the United States under the FTCA and thus
would not be subject to the FTCA’s exclusion of defamation claims.
A plaintiff who is dissatisfied with a scope-of-employment certification may challenge
the certification. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). However,
Plaintiff never raised a certification challenge when the FTCA claim was before this Court, and
the FTCA claim was dismissed by the Memorandum Decision and Order dated May 2, 2018
(Dkt. 22). The FTCA claim is no longer before the Court, and thus the time to challenge the
certification has passed.
II.

Plaintiff’s Second Amended Complaint fails to state a Bivens claim on which relief
can be granted because Mr. Bruner’s alleged defamation of Plaintiff does not
implicate a liberty interest under the Fifth Amendment.
Plaintiff seeks to extend Bivens liability in a defamation context by alleging that Mr.

Bruner violated his Fifth Amendment due-process rights when he made allegedly false
statements about Plaintiff. Pl.’s Second Am. Compl. ¶¶ 27, 31. Plaintiff alleges that Mr. Bruner’s
false statements caused Plaintiff to suffer “permanent damage to his good name and reputation,”
as a result of which “Plaintiff has been foreclosed from employment opportunities.” Pl.’s Second
Am. Compl. ¶¶ 20-21. In his Memorandum in Opposition to Motion to Dismiss (Dkt. 28),
Plaintiff acknowledges that “the nature of the claim is not the loss of current employment, it is

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the foreclosure of future employment opportunities.” Pl’s Opp. Mem. at 3. Plaintiff’s allegation
that Mr. Bruner damaged his reputation and thus foreclosed employment opportunities describes
a common-law defamation claim, not a deprivation of his Fifth Amendment due-process rights.
The Supreme Court has recognized a Bivens claim arising from defamation in very
limited circumstances arising from direct government action affecting a plaintiff’s legal rights,
which is not applicable here. In Paul v. Davis, 424 U.S. 693 (1976), the defendants were chiefs
of two police departments in Kentucky who had distributed flyers warning merchants to be
aware of suspected shoplifters in the area. Id. at 694-95. Plaintiff Davis’s picture and name were
printed on the flyers. Id. While Davis had been arrested and charged with shoplifting, the charge
had been withdrawn. Id. at 695-96.
Davis sued the police chiefs under 42 U.S.C. § 1983—the Bivens analog for claims
against state and local officials—claiming that the police chiefs had violated his Fourteenth
Amendment due-process rights by falsely labeling him a shoplifter. Davis sought damages
resulting from, among other things, the impairment of his future employment opportunities. Id. at
697. Davis argued that, because the police chiefs were government officials, their defamation of
him deprived him of a liberty interest protected by the Due Process Clause. Id. at 697-98.
The Supreme Court declined to extend the liability of public officials that far. The Court
noted that its prior cases had established that the “stigma” caused by an official’s defamatory
statements is not by itself sufficient to elevate a common-law tort claim to a deprivation of
liberty or property under the Fourteenth Amendment. Id. at 701-02. “[T]he weight of our
decisions establishes no constitutional doctrine converting every defamation by a public official

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into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment.” Id. at 702 and n.3 (noting that the liability of federal officials under the
Fifth Amendment’s Due Process Clause parallels that of state officials under the Fourteenth
Amendment). In the context of a claim of a loss of employment opportunities, the Court held that
a government official’s defamatory statements are actionable as a constitutional violation only if
the statements were made “in the course of the termination of employment.” Id. at 710.
Defamation by a government official occurs “incident to the termination” of employment
only if it occurs in the course of a termination or other employment action by a government
employer. Siegert v. Gilley, 500 U.S. 226, 233-34 (1991). In the absence of government action
directly affecting the plaintiff’s employment, the plaintiff’s remedy is under state tort law, not
the Constitution. Id.; see also Melton v. City of Oklahoma City, 928 F.2d 920, 926-27 (10th Cir.
1991) (in the context of a loss of employment, a liberty interest under the Due Process Clause
arises “[w]hen a public employer takes action to terminate an employee based upon a public
statement of unfounded charges of dishonesty or immorality” that foreclose employment
opportunities).
This principle is exemplified by Pendleton v. City of Haverhill, 156 F.3d 57 (1st Cir.
1998), a case with facts similar to those of the present case. In Pendleton, the plaintiff was
employed by a private nonprofit organization as a vocational counselor who advised public
school students about career opportunities. Id. at 61. Pendleton was arrested and charged with
cocaine possession and other crimes. Id. Pendleton pled not guilty, and the charges were
subsequently dismissed. Id.

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In an interview with a local newspaper, the arresting officers expressed indignation at the
dismissal of the charges and asserted that Pendleton in fact had been using cocaine. Id. at 61-62.
A month later, Pendleton’s private employer fired him. Id. at 62.
Pendleton sued the officers under 42 U.S.C. § 1983 claiming, among other things, that
the officers had defamed him. Id. Pendleton alleged that the officers’ statements caused him to
lose his job, thus depriving him of a liberty interest protected by the Due Process Clause of the
Fourteenth Amendment. Id. The district court granted summary judgment for the defendants on
this claim, and Pendleton appealed. Id.
The First Circuit affirmed the district court’s decision. The Court noted first that the
Supreme Court had established the principle that the stigma resulting from a government
official’s defamatory statements is not sufficient by itself to support a claim under the Due
Process Clause. Id. at 62-63 (citing Paul, 424 U.S. at 700-01). Rather, in the context of a loss of
employment, the false statement must be “uttered incident to the termination.” Id. at 63 (quoting
Siegert, 500 U.S. at 234). In Pendleton’s case, the defendants who allegedly defamed him were
not involved in the decision to terminate him, and thus the defamation could not have occurred
“incident to” the termination. Id. Under this so-called “stigma-plus” theory, a violation of
constitutional rights exists only if the plaintiff has been deprived of government employment as a
result of government action. Id. Pendleton was terminated by a private employer, and thus could
not establish the requisite “plus” to support his theory of recovery. Id.
Plaintiff’s claim in the present case fails for the same reason. Plaintiff alleges that Mr.
Bruner’s statements were made “during the termination process of the Plaintiff’s employment.”

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Pl’s Second Am. Compl. (Dkt. 19) ¶ 33. But this is nothing more than “a formulaic recitation of
the elements of a cause of action,” which the Supreme Court has said will not suffice to state a
cause of action without “further factual enhancement.” Iqbal, 556 U.S. at 677 (internal
quotations and citations omitted). Mr. Bruner’s allegedly defamatory statements would be
actionable only if Plaintiff had been a government employee. Siegert, 500 U.S. at 233-34.
Plaintiff, however, was employed by a private contractor, not the government. Pl’s Compl. (Dkt.
2-2) ¶ 5.
Plaintiff alleges that Mr. Bruner’s statements damaged his reputation in his work
community. Id. ¶¶ 18-20. Plaintiff alleges that due to the harm to his reputation, he “has been
foreclosed from employment opportunities” and thus has no sponsor for a security clearance to
work in his chosen profession. Id. ¶¶ 21-23. Plaintiff has alleged a “stigma,” but he cannot allege
the “plus” because the government was not his employer and thus did not fire Plaintiff or take
any other employment action against him. Plaintiff alleges that Mr. Bruner’s statements will
impair his future employment prospects, but “so long as such damage flows from injury caused
by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not
recoverable in a Bivens action.” Siegert, 500 U.S. at 234; see also Workman v. Jordan, 32 F.3d
475, 481 (10th Cir. 1994) (plaintiff’s alleged loss of employment opportunities due to a
government official’s alleged defamation is too “speculative” and “intangible” to constitute a
deprivation of a liberty interest). Plaintiff cannot meet the necessary stigma-plus factors because
he was not employed by the government, and thus Mr. Bruner’s alleged defamation of him could
not have occurred in the course of his termination by a government employer.

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III.

Plaintiff’s claims against the United States and against Mr. Bruner in his official
capacity will be dismissed because a Bivens claim can be brought only against a
federal official in his individual capacity.
Although Plaintiff’s Second Amended Complaint does not contain explicit allegations

against the United States, Plaintiff has named the United States as a defendant. The Court has
already ruled that it lacks jurisdiction over Plaintiff’s Bivens claim against the United States. See
Mem. Decision and Order (Dkt. 22) at 5 (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471,
484-86 (1994)). Thus, to the extent that Plaintiff’s Second Amended Complaint can be
interpreted to allege a claim against the United States, that claim will be dismissed for the same
reason that the Court previously dismissed it.
Plaintiff also purports to sue Mr. Bruner in both his individual and official capacities. See
Pl.’s Second Am. Compl. ¶ 7. A Bivens action, however, may not be brought against a
government employee in his official capacity. Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.
2002) (citing Meyer, 510 U.S. at 483-86).

ORDER
IT IS HEREBY ORDERED that the defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint is GRANTED, and Plaintiff’s Second Amended Complaint is dismissed
with prejudice.
Dated this 31st day of October, 2018.
BY THE COURT:

DEE BENSON
United States District Court Judge

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