United States District Court, E.D. New York
Zabell & Associates, P.C., by: Saul D. Zabell, Esq., of Counsel, Bohemia, NY, for the Plaintiff.
Ranni Law Firm, by: Joseph James Ranni, Esq., of Counsel, Florida, NY, for the Defendant and Third-Party Plaintiff Norma Herbst.
Loretta A. Lynch, United States Attorney for the Eastern District of New York, by: James Halleron Knapp, Assistant United States Attorney Thomas McFarland, Assistant United States Attorney, Central Islip, NY, for the United States of America.
SPATT, District Judge.
This case was commenced in the Supreme Court of the State of New York, County of Suffolk, on or about February 7, 2012. The Plaintiff, a supervisory-level United States Postal Service (" USPS" ) employee, seeks damages arising from alleged defamatory statements made by the Defendant Norma Herbst, a USPS clerk, to USPS management, concerning the Plaintiff's work habits and the manner in which he supervises his employees.
On April 13, 2012, pursuant to the authority vested in the United States Attorneys' Office by the Attorney General under 28 C.F.R. § 15.3, Assistant United States Attorney James H. Knapp certified that, on the basis of the information available with respect to the defamation, the Defendant Norma Herbst was acting within the scope of her employment as an employee of the USPS. Therefore, the United States of America was substituted as a party Defendant pursuant to 28 U.S.C. § 2679(d)(1), and the action was removed to this federal court.
On May 25, 2012, the Government filed a stipulation to substitute the United States of America as the sole defendant and to dismiss the third-party complaint. The Plaintiff opposes this substitution. In letters to this Court dated May 30, 2012 and
September 7, 2012, the Plaintiff denies that Herbst's defamatory statements arose out of her employment with the USPS. Accordingly, the Plaintiff requested a conference with this Court to establish a briefing schedule on the issue, as well as to conduct discovery related to the scope-of-employment question.
On November 19, 2012, the Court held a conference with the parties. At that time, the Court permitted limited discovery solely with regard to the scope-of-employment question— namely the deposition of the Defendant Norma Herbst and the production of certain time records— and set a hearing for January 2, 2013. At the hearing on January 2, 2013, the Court heard oral argument from all counsel and reserved decision on the scope-of-employment issue.
Under the Federal Torts Claims Act (" FTCA" ), a plaintiff's exclusive remedy for nonconstitutional torts committed by federal employees in their official capacity is a lawsuit against the United States. See 28 U.S.C. § 2679(b)(1); Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994) (" a claimant's exclusive remedy for nonconstitutional torts by a government employee acting within the scope of his employment is a suit against the government under the FTCA." ); accord Sereika v. Patel, 411 F.Supp.2d 397, 409 (S.D.N.Y.2006); Dufort v. Burgos, No. 04 Civ. 4940, 2005 WL 2660384, at *4 (E.D.N.Y. Oct. 18, 2005).
When an action is commenced against an individual employee, and not against the United States, " the FTCA provides a mechanism for substituting the United States as a party." Lipkin v. U.S. S.E.C., 468 F.Supp.2d 614, 622 (S.D.N.Y.2006). Section 2679 provides: " Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment[,] ... any civil action ... shall be deemed an action against the United States ... and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).
In this case, the United States Attorney's Office has certified that Herbst was acting within the scope of her federal employment during the events that gave rise to this lawsuit. Thus, the United States contends that, upon certification, all claims pending against Herbst are deemed to be claims against the United States, so that substitution is appropriate. See 28 U.S.C. § 2679(d)(1); see also Osborn v. Haley, 549 U.S. 225, 252, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (noting that upon certification, the action is deemed to be brought against the United States). This substitution " immunizes the governmental employee" and also allows the substituted defendant, the United States, to take advantage of numerous limitations on tort actions based on sovereign immunity that are not available to an individual defendant, such as a right to trial by the court, a two-year federal statute of limitations, the unavailability of punitive damages, and a bar to certain kinds of tort actions, including assault, battery, false imprisonment, ...