FINDINGS AND RECOMMENDATIONS
Defendants have moved for dismissal of this action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and/or for summary judgment pursuant to Federal Rule of Civil Procedure 56. Due to the pro se plaintiff's incarceration, the motion has been briefed and submitted without oral argument pursuant to Local Rule 78-230(m). Upon consideration of the parties' briefing and the entire record, the undersigned recommends that defendants' motion be granted.
Plaintiff alleges as follows: On August 7, 2003, he lost his wallet; on August 8, 2003, he went to a Social Security Administration office in Carmichael, California to apply for a duplicate Social Security card; Leslie J. Davis, a Social Security representative, assisted plaintiff with his application; plaintiff verified his identity with a California identification card, and he provided representative Davis with a Social Security number that ends with the numbers 3586; representative Davis told plaintiff that the number on her computer monitor ended with the numbers 1565; when plaintiff asked representative Davis "if she was sure about this (inadvertent) social security number being listed under [his] profile," she repeated the number that ends with 1565; plaintiff then completed an application form using the social security number "said to [him] by Mrs. Leslie Davis as the social security number listed on her computer monitor"; plaintiff gave his completed form to representative Davis; two weeks later, plaintiff received a replacement social security card in the mail; on January 24, 2004, plaintiff purchased a vehicle at a dealership in Merced, California and applied for financing; plaintiff provided his replacement social security card for the credit check and processing of his application for financing; plaintiff returned to the dealership two days later to sign additional documents; while plaintiff was at the dealership, officers from the Merced Police Department arrived and took plaintiff to the police station, where they questioned him about his social security number and told him the number on the replacement card belonged to another person who is also named Stanley Crump; plaintiff was charged with identity theft, larceny, and commercial burglary.
Plaintiff claims that representative Davis failed to adequately investigate his social security number when he applied for a replacement card and that she negligently issued him a card bearing another person's social security number, in violation of federal statutes and regulations. By his complaint, plaintiff seeks compensatory and punitive damages from representative Davis and the Social Security Administration for libel and slander; loss of employment, wages, and future earning capacity; emotional distress, mental anguish, and pain and suffering; and unlawful arrest, conviction, and incarceration, all of which are alleged to have resulted from representative Davis' omissions, wrongful acts, and negligence while acting within the scope of her employment.
In a previous action filed in Sacramento County Superior Court in December 2004, plaintiff sued the Social Security Administration concerning the events at issue in this case. Plaintiff presented the case as a tort action for damages. Defendant removed the case to federal court on February 7, 2005, and moved to dismiss the action for failure to exhaust administrative remedies. The case was dismissed on May 16, 2005 at plaintiff's request See Stanley Crump v. Social Security Admin., case No. CIV S-05-0247 MCE KJM PS.
Plaintiff filed the present action under the Federal Tort Claims Act on November 16, 2005. Plaintiff's application to proceed in forma pauperis was granted, and the United States Marshal was directed to serve plaintiff's complaint on defendants Davis and Social Security Administration. Defendants certified that defendant Leslie Davis, now known as Leslie Robertson, is an employee of the Social Security Administration and that she was acting within the scope of her employment as an employee of the United States at the time of the alleged incidents. In accordance with 28 U.S.C. § 2679, defendants substituted the United States of America as defendant in place of defendant Davis. An answer was filed on behalf of the United States of America and the Social Security Administration. Pursuant to a scheduling order filed on June 6, 2007, discovery closed on September 21, 2007. Pretrial conference and trial dates have been vacated pending disposition of defendants' timely filed dispositive motion.
DEFENDANTS' MOTION TO DISMISS
I. Standards Applicable to Rule 12(b)(1) Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a defendant's Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). It is the plaintiff's burden to prove that jurisdiction does in fact exist. Thornhill Publ'g Co., 594 F.2d at 733.
Plaintiff seeks money damages from the United States and the Social Security Administration pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680. Defendants have moved for dismissal of plaintiff's FTCA claim against the Social Security Administration on the ground that the United States is the only proper defendant in a suit under the FTCA. Defendants have further moved for dismissal of plaintiff's FTCA claim against the United States on the ground that the torts of slander and libel are specifically excepted from the limited waiver of sovereign immunity granted by the FTCA and that, in the absence of a waiver of sovereign immunity to be sued for such torts, this court lacks subject matter jurisdiction over plaintiff's claim for defamation.
"The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Similarly, no federal agency can be sued unless Congress has explicitly revoked that agency's immunity. Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 343 (9th Cir. 1993); City of Whittier v. U.S. Dep't of Justice, 598 F.2d 561, 562 (9th Cir. 1979). Put another way, no court has jurisdiction to award relief against the United States or a federal agency unless the requested relief is expressly ...