United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
se Plaintiff Keith Alexander Ashe has sued the above
individual Defendants, all employees of the United States
Department of Health and Human Services (“HHS”).
In his Complaints, he alleges that each made defamatory
statements about him in connection with administrative
proceedings regarding whistleblower disclosures purportedly
made by him. The Defendants have filed Motions to Substitute
(ECF No.  ¶ 17-2071; ECF No.  ¶ 17-2073,
17-2074, 17-2076, 17-2077), arguing that the United States is
the proper defendant in suits for allegedly tortious acts
committed by government employees acting within the scope of
their employment for the United States of America.
Court will GRANT Defendants' Motions to
Substitute (ECF No.  ¶ 17-2071; ECF No.  ¶
17-2073, 17-2074, 17-2076, 17-2077).
FACTS AND PROCEDURAL HISTORY
was employed at the National Institutes of Health
(“NIH”) for approximately nine years. 17-2071
Compl. at 2. During that period, he was supervised by Deborah
Wilson, the Division Director of HHS' NIH Division of
Occupational Health and Safety. 17-2071 Compl. at 2.
He also worked with Laura McIntyre, an employer relationship
specialist at HHS, and Herbert Jacobi, the Deputy Director of
the Division of Occupational Health and Safety. 17-2073
Compl. at 2; 17-2074 Compl. at 2. Ashe states that he made
whistleblower disclosures regarding the fabrication of an
engineering regulatory report and contract fraud involving
two NIH contractors, and that as a consequence of those
disclosures, Wilson retaliated against him by requesting
that, among other things, Ashe be suspended for 14 days and
removed from Federal Government service. 17-2071 Compl. at 2.
Broder was responsible for evaluating the evidence put forth
by Ashe and Wilson regarding the dispute, and decided to
suspend Ashe for fourteen days and to ultimately remove him
from his position. 17-2071 Compl. at 2. Following
Broder's decision, Ashe appealed his case to the United
States Merit Systems Protection Board (“MSPB”),
where HHS was represented by Kathleen Mee, Esquire. 17-2076
Compl. At 2. McInterye and Jacobi provided evidence that was
reviewed both by Broder and the MSPB. 17-2074 Compl. at 3;
17-2073 Compl. at 3.
avers that each Defendant made defamatory statements in
connection with his whistleblower proceedings. On May 1,
2017, he filed the five present Complaints in the District
Court of Maryland for Montgomery County, seeking $5, 000 in
damages in each, a total of $25, 000. On July 24, 2017, all
five cases were removed to this Court. On July 26, Defendants
filed Motions to Substitute (ECF No. 9 in 17-2071; ECF No. 8
in 17-2073, 17-2074, 17-2076, 17-2077) the United States as
Defendant. Ashe has filed no opposition.
against employees of the United States for torts committed
during the course of employment are governed by the Federal
Tort Claims Act (“FTCA”). 28 U.S.C. §
2679(b)(1). The FTCA provides that the exclusive
remedy for such a suit is a suit against the “United
States.” 28 U.S.C. § 2674 (permitting FTCA suits
only against the “United States” as a defendant).
The FTCA does not provide for any remedy against federal
employees in their own names for torts they allegedly commit
during the course of their employment. Here, Ashe has alleged
that Defendants, all HHS employees, made defamatory
statements during the course of their involvement in his
disciplinary proceedings, which is to say while in the scope
of their employment. Under these facts, the FTCA provides
that the exclusive remedy is a suit against the United
FTCA also provides that, upon certification by the Attorney
General that a federal employee was acting within the scope
of his or her office or employment at the time of the
incident out of which a state law claim arises, any civil
action arising out of the incident shall be deemed an action
brought against the United States, and the United States
shall be substituted as the defendant with respect to those
claims. 28 U.S.C. § 2679(d)(1). The Attorney General has
delegated certification authority to the United States
Attorneys. 28 C.F.R. § 15.3. Stephen M. Schenning,
Acting United States Attorney for the District of Maryland,
has made the appropriate certification for each Defendant in
the present cases. (ECF No. 9-1 in 17-2071; ECF No. 8-1 in
17-2073, 17-2074, 17-2076, 17-2077).
the Court will GRANT Defendants' Motions
to Substitute, ECF No.  ¶ 17-2071; ECF No.  ...