United States District Court, D. Utah, Northern Division
W. HUBER, United States Attorney, JEFFREY E. NELSON,
Assistant United States Attorney, Attorneys for the
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND
BENSON UNITED STATES DISTRICT COURT JUDGE.
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.
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
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
Fed.Appx. 822, 826-27 (10th Cir. 2016) (unpublished) (citing
Twombly, 550 U.S. at 556).
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 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
Challenge to scope-of-employment certification.
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).
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.
hearing on October 10, 2018, Plaintiff attempted to challenge
the scope-of-employment 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.
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.
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