United States District Court, D. Maryland
VICKY S. RICKS, and LOUIS RICKS, III, Plaintiffs,
NATIONAL INSTITUTES OF HEALTH, HEALTH AND HUMAN SERVICES SECRETARY BURWELL, DEPARTMENT OF LABOR SECRETARY PEREZ, SOMA MUDD, DANIEL WHEELAND, JERRY LAVIN, and DONNA PHILLIPS, Defendants.
THEODORE D. CHUNBANG United States District Judge.
Plaintiffs Vicky S. Ricks and her husband Louis Ricks, III ("Plaintiffs") filed suit against Defendants National Institutes of Health ("NIH"), Secretary of Health and Human Services Sylvia Matthews Burwell, Secretary of Labor Thomas Perez, Sonia Mudd, Daniel Wheeland, Jerry Lavin, and Donna Phillips (collectively, "Defendants"). Pending before the Court is Defendants' Motion to Dismiss. The Motion is fully briefed and ripe for disposition. No hearing is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion is GRANTED.
The following facts are presented in the light most favorable to Plaintiffs, the nonmoving parties:
I. The Federal Employees' Compensation Act Claim
Louis Ricks ("Ricks") is a maintenance mechanic for the NIH in Bethesda, Maryland. On April 4, 2015, he suffered an on-the-job injury to his back and right knee while carrying boxes. On April 21, 2015, he filed a claim for compensation under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. §§ 8101-93 (2012), with the United States Department of Labor's Office of Workers' Compensation Programs ("OWCP"). On August 20, 2015, the OWCP issued a Notice of Decision, signed by Claims Examiner Sonia Mudd, denying compensation because it had concluded that Ricks had not shown that the injury was causally related to the April 4 incident.
II. Procedural History
Three days before the OWCP issued its decision, Plaintiffs filed suit in the District Court of Maryland for Prince George's County. The Complaint alleges that Louis Ricks has yet to receive a workers' compensation award to which he is entitled. On August 31, 2015, Plaintiffs filed two Motions to Amend the Complaint, which the Court now grants. On September 18, 2015, Defendants removed the case to this Court pursuant to 28 U.S.C. § 1442, which allows for the removal of any action against an officer or agency of the United States "for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1) (2012). The Notice of Removal attached a certification from the United States Attorney for the District of Maryland attesting that Wheeland, Lavin, and Phillips were Louis Ricks's supervisors and are entitled to absolute immunity from the Plaintiffs' tort claims because they were acting within the scope of their employment during the events giving rise to Plaintiffs' claims. See 28 U.S.C. § 2679(d)(1); 28 C.F.R. § 15.4 (2015); id. § 50.15(a).
On October 8, 2015, Plaintiffs filed a Motion requesting that the Court accept documents with electronic signatures. Included with this Motion were "Amended Pleadings, " referencing both FECA and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80 (2012). The Court construes the Motion as seeking leave to amend the Complaint, which the Court now grants.
Also on October 8, 2015, Defendants filed a Motion to Dismiss, arguing that the Complaint should be dismissed for lack of subject matter jurisdiction. Based on the certification by the United States Attorney, Defendants also moved to dismiss Wheeland, Lavin, and Phillips from the action and to substitute the United States in their stead. On October 21, 2015, Plaintiffs filed two documents in response. The first, entitled "Plaintiffs Response to Defendants' Cross Claim / Motion to Dismiss for Lack of Subject Matter Jurisdiction, " challenged the proposed dismissal of Wheeland, Lavin, and Phillips. It also alleged that NIH management slandered and defamed Louis Ricks by misclassifying some of Ricks's injury-related absences as "Absent Without Leave." The second filing, bearing the same title as the first but identifying the defendants at issue as the Department of Labor and Mudd, argued against dismissal of the entire case. In this document, for the first time, Plaintiffs accuse Mudd of denying Ricks's FECA claim in retaliation for filing this suit. It alleges that Mudd "made false, misleading and erroneous statements when processing, handling and deciding Mr. Ricksf's] claim, which ultimately led to the claim being denied under [a] false and misleading theory." Pis.' Second Resp. to Mot. Dismiss at 2. Plaintiffs also suggest that Mudd "tamper[ed] with evidence." Id. at 1. On October 23, 2015, Defendants filed a Reply to Plaintiffs' Responses.
I. Motion to Substitute
Defendants argue that the United States should be substituted into the case in place of Wheeland, Lavin, and Phillips, who should be dismissed from the case. Such a substitution is warranted when the Attorney General has certified that a defendant employee was acting within the scope of employment at the time of the incident in question. See 28 U.S.C. § 2679(d)(1). Defendants note that the United States Attorney has certified that Wheeland, Lavin, and Phillips were acting within the scope of their employment.
Plaintiffs are correct that the filing of the certification does not prevent Plaintiffs from proving that these individuals were not acting in the scope of employment. Gutierrez de Martinez v. Drug Enf't Admin., Ill F.3d 1148, 1153-55 (4th Cir. 1997). Plaintiffs were, however, required to come forward with evidence to challenge that certification. Id. at 1155. Instead, Plaintiffs merely assert that the "discretionary conduct" of Wheeland, Lavin, and Phillips harmed Plaintiffs. Pis.' First Resp. to Mot. Dismiss at 2. Such "conclusory allegations and speculation" are insufficient to overcome the certification. Gutierrez de Martinez, 111 F.3d. at ...