The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the Motion to Dismiss filed by Defendant United States of America ("United States"). (Doc. # 13).
On January 20, 2009, Plaintiffs Mark Crozier and Kevin Greenfield filed a Complaint for Damages for Slander and Libel ("Complaint") against David Byrnes and Carl Newberry in the Superior Court for the State of California, County of San Diego. (Doc. # 1 at 3). The Complaint alleges that Byrnes and Newberry made false statements concerning Plaintiffs to a representative of the Civilian Human Relations Department for Marine Corps Base Camp Pendleton and several other persons unknown to Plaintiffs. (Doc. # 1 at 4).
On March 13, 2009, the United States, on behalf of Byrnes and Newberry, removed the case to this Court pursuant to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679(d). (Doc. # 1). In the Notice of Removal, the United States asserts that Byrnes and Newberry were acting within the scope of their employment as federal employees with respect to the events giving rise to the allegations in Plaintiffs' Complaint. The United States concurrently filed a Notice of Substitution of United States of America as Defendant, and a Certification of Scope of Employment pursuant to 28 U.S.C. § 2879(d). (Docs. # 2, 3).
On April 6, 2009, Plaintiffs filed a response and objection to the notice of substitution of United States of America as Defendant. (Doc. # 9).
On May 14, 2009, the Court issued an Order finding that Byrnes and Newberry were acting within the scope of their employment and ordering that "the United States shall be substituted as a Defendant in place of David Byrnes and Carl Newberry, and that the title of the action be amended accordingly." (Doc. # 12).
On June 12, 2009, the United States filed a Motion to Dismiss Plaintiffs' Complaint on the grounds that the United States is immune from slander and libel claims, and Plaintiffs failed to exhaust their administrative remedies prior to filing suit. (Doc. # 13).
Plaintiffs have not responded to the Motion to Dismiss.
"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, 461 U.S. 273, 287 (1983). Absent a Congressional waiver of sovereign immunity, a claim against the United States must be dismissed for lack of subject matter jurisdiction. See Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 343 (9th Cir. 1993); Gilbert v. Da Grossa, 756 F.2d 1455, 1458 (9th Cir. 1985).
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., provides a remedy for persons injured by the tortious activity of an employee of the United States, where the employee was "acting within the scope of his ... employment." 28 U.S.C. § 1346(b). "[T]here are certain limitations to the right to bring suit against the United States under the FTCA.... First, 28 U.S.C. § 2680(h) specifically excepts from the FTCA '[a]ny claim arising out of ... libel, slander, ....' Section 2680(h)'s exceptions are jurisdictional in nature."
Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 742-43 (9th Cir. 1991) (citing Morrill v. United States, 821 F.2d 1426, 1426-27 (9th Cir. 1987)). "Second, 28 U.S.C. § 2675(a) establishes that a FTCA action 'shall not be instituted' against the United States unless the claimant first presents his claim to the 'appropriate Federal agency' and the claim is denied. The claim requirement of § 2675(a) is ...