United States District Court, D. Utah, Northern Division
MEMORANDUM DECISION AND ORDER GRANTING UNITED
STATES' MOTION TO DISMISS
BENSON, United States District Court Judge
the Court is the United States' Motion to Dismiss
Plaintiff's Amended Complaint (Dkt. 12). The motion has
been fully briefed, and a hearing was held before the Court
on April 12, 2018. At the hearing, Plaintiff Scott Williams
was represented by Andrew Fackrell, and the United States was
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
sued Kenneth Bruner, an employee of the United States Air
Force, in the Second Judicial District Court of Davis County,
State of Utah. See Notice of Removal (Dkt. 2), Ex. A
(Dkt. 2-2). Plaintiff sued Mr. Bruner on theories of libel,
slander, and defamation, alleging that Mr. Bruner had
published false statements about him. Id. Ex. A
(Dkt. 2-2) ¶¶ 19-29. The United States removed the
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 against him was based. Id.,
Ex. B (Dkt. 2-3). Therefore, this case is now deemed to be an
action against the United States pursuant to the Federal Tort
Claims Act (FTCA). 28 U.S.C. § 2679(d)(2).
United States moved to dismiss Plaintiff's Complaint
pursuant to Fed.R.Civ.P. 12(b)(1), on the ground that this
Court lacks subject-matter jurisdiction over Plaintiff's
defamation claim; and pursuant to Fed.R.Civ.P. 12(b)(6), on
the ground that Plaintiff's defamation cause of action
fails to state a claim on which relief can be granted.
See Mot. to Dismiss Pl.'s Compl. (Dkt. 6).
Plaintiff responded by filing an Amended Complaint in which
he repeated his defamation cause of action and added two
causes of action alleging that (1) the United States violated
his constitutional rights under the Fifth and Fourteenth
Amendments to the U.S. Constitution by making the allegedly
false statements about him (Pl.'s Am. Compl. (Dkt. 8),
¶¶ 26-31), and (2) the false statements damaged
Plaintiff by placing him in a “false light”
(Id. ¶¶ 32-37). Plaintiff invokes the
Court's jurisdiction under 28 U.S.C. §§ 1331
and 1343; 42 U.S.C. §§ 1983 and 1988; 28 U.S.C.
1367(a); and “common law.” Id. ¶ 1.
United States has again moved to dismiss Plaintiff's
claims pursuant to Rules 12(b)(1) and 12(b)(6). See
Mot. to Dismiss Pl.'s Am. Compl. (Dkt. 12).
response to the United States' motion under Rule
12(b)(1), Plaintiff bears the burden of establishing that the
Court has subject-matter jurisdiction. Salzer v. SSM
Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th
Cir. 2014). Because the United States' motion is a facial
challenge to the jurisdictional basis of Plaintiff's
Amended Complaint, the Court accepts the allegations of the
Amended Complaint as true. Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995). The United States, as
sovereign, is immune from suit except to the extent it has
waived its immunity. Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 475 (1994). In the absence of a
waiver of sovereign immunity, the district courts lack
subject-matter jurisdiction over a claim against the United
survive a motion under Rule 12(b)(6), each cause of action of
Plaintiff's Amended 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, 560-62 (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, 679
(2009) (citation omitted). The Court accepts the allegations
of the Amended Complaint as true and draws all reasonable
inferences from the allegations in Plaintiff's favor.
Wasatch Equality v. Alta Ski Lifts Co., 820 F.3d
381, 385 (10th Cir. 2016).
Plaintiff's Claim of a Violation of his Constitutional
Plaintiff's first cause of action against the United
States alleges that Mr. Bruner's statements about
Plaintiff defamed him and thus violated his liberty interest
under the Fifth and Fourteenth Amendments to the U.S.
Constitution. See Pl.'s Am. Compl. (Dkt. 8)
¶¶ 26-31. Although Plaintiff's Amended
Complaint does not cite the FTCA as a jurisdictional basis
for his claims, this case is deemed to be an action under the
FTCA as a result of the United States' removal of the
case to this Court. 28 U.S.C. § 2679(d)(2). The FTCA,
however, does not waive the United States' immunity from
constitutional-tort claims. Meyer, 510 U.S. at
additional jurisdictional grounds cited in Plaintiff's
Amended Complaint do not provide a basis for this Court's
jurisdiction. Plaintiff cites 28 U.S.C. §§ 1331 and
1343, but while these statutes confer federal jurisdiction
over specified categories of claims, they do not waive the
federal government's sovereign immunity. Merida
Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005)
(“[D]istrict court jurisdiction cannot be based on
§ 1331 unless some other statute waives sovereign
immunity.” (citation and internal quotations omitted));
Salazar v. Heckler, 787 F.2d 527, 528-29 (10th Cir.
1986) (“This language [§ 1343(a)(4)] does not by
itself include any waiver of the sovereign immunity of the
next cites 42 U.S.C. §§ 1983 and 1988 as grounds
for this Court's jurisdiction. Section 1983 authorizes
claims for persons who have been deprived of their
constitutional rights by another person acting under the
color of state law, and Section 1988 authorizes an award of
fees for the prevailing party in a Section 1983 action. These
statutes, however, do not waive the federal government's
sovereign immunity and thus cannot provide a jurisdictional
basis for Plaintiff's claim. Belhomme v.
Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997)
(“[Plaintiff's] claim under 42 U.S.C. § 1983
fails as a matter of law because this section applies to
actions by state and local entities, not ...