Walter Cadman v. United States ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16590
Non-Argument Calendar
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D.C. Docket No. 6:12-cv-00976-RDB-DAB
WALTER CADMAN,
Plaintiff-Appellee,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(August 29, 2013)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Walter Cadman appeals the district court’s dismissal of his claim against the
United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1),
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2671-80. Because we agree with the district court that Mr. Cadman’s claim is
barred by the libel-slander-misrepresentation exception to the FTCA, we affirm.
I
In 2008, Mr. Cadman, a federal contractor for Booz-Allen-Hamilton, was
hired by Immigration and Customs Enforcement to help run its “Secure
Communities” program. The program was controversial because it required
participating state and local law enforcement agencies and employees to submit
arrest information to ICE that could later be used for immigration and removal
proceedings.
Under the supervision of ICE officials, Mr. Cadman was directed to produce
position papers indicating whether participation in the program was statutorily
mandated or optional. Mr. Cadman subsequently delivered position papers to his
supervisors presenting his opinion that the program was mandatory.
In 2009, ICE officials decided not to enforce mandatory participation and
created an official opt-out policy. When ICE employees continued to take varying
positions on the issue, Mr. Cadman was asked to explore ways to deal with certain
localities’ resistance to participation. Mr. Cadman felt that the resistance was
politically driven and in response to one city’s choice to opt out of the program, he
wrote an e-mail saying, “This is not good, not good at all! . . . Time perhaps for a
full court press?”
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ICE’s inconsistent positions drew attention from a Congressional
Representative, the public, and the press. Amidst this concern, a large number of e-
mails (including Mr. Cadman’s) were released pursuant to a Freedom of
Information Act request. During this controversy, John Morton and Brian Hale,
agents of ICE, published statements attributing ICE’s inconsistent positions and
problems to Mr. Cadman. In March of 2011, ICE and Booz-Allen-Hamilton
terminated their contracts with Mr. Cadman. Agent Morton and Agent Hale issued
further communications to third parties implying that Mr. Cadman’s termination
“would cure or had cured the issues.”
Mr. Cadman filed an administrative claim with ICE for false light/invasion
of privacy and negligence under the FTCA. After ICE denied the claim in June of
2012, Mr. Cadman filed suit against the United States, alleging that Agents Morton
and Hale had made false statements about him and that their supervisors had
behaved negligently by failing to stop or correct the statements. After determining
that Mr. Cadman’s claims all “arose out of” certain torts—libel, slander, and
misrepresentation—which are expressly exempted under a provision of the FTCA,
the district court dismissed the complaint for lack of subject-matter jurisdiction
under Fed. R. Civ. P. 12(b)(1).
II
We review de novo a district court’s decision to dismiss a complaint for lack
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of subject-matter jurisdiction under the FTCA based on 28 U.S.C. § 2680(h). See
JBP Acquisitions, LP v. United States, 224 F.3d 1260, 1263 (11th Cir. 2000). We
accept the well-pleaded factual allegations of Mr. Cadman’s complaint as true. See
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
A
“[S]overeign immunity bars suit against the United States except to the
extent that it consents to be sued.” Means v. United States, 176 F.3d 1376, 1378
(11th Cir. 1999). The FTCA provides a limited waiver of sovereign immunity in
some situations, and federal district courts have jurisdiction over certain tort
actions against the United States. See 28 U.S.C. § 1346(b); Means, 176 F.3d at
1378-79. This limited waiver of sovereign immunity does not include suits “arising
out of . . . libel, slander, [or] misrepresentation . . . .” See 28 U.S.C. § 2680(h).
FTCA exemptions, like the one found in § 2680(h), are strictly construed in favor
of the United States. See JBP, 224 F.3d at 1263.
Mr. Cadman correctly notes that the substantive law which governs his
claims of false light/invasion of privacy and negligence is District of Columbia
law. See 28 U.S.C. § 1346(b)(1) (stating that liability is determined in accordance
with the “law of the place where the act or omission occurred”). The determinative
issue on appeal, however, involves a matter of federal law: whether Mr. Cadman’s
alleged false light/invasion of privacy and negligence claims are barred by §
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2680(h). See, e.g., Johnson v. United States, 788 F.2d 845, 851 (2d Cir. 1986)
(“The scope of § 2680(h) is a matter of federal law.”).
B
More than twenty-five years ago, we specifically addressed whether the torts
of invasion of privacy and intentional infliction of emotional distress come within
the § 2680(h) exemption. See Metz v. United States, 788 F.2d 1528, 1532 (11th
Cir. 1986). We held in Metz that the exceptions in the FTCA are not limited to the
torts specifically named, but instead encompass situations where “the underlying
governmental conduct which constitutes an excepted cause of action is ‘essential’
to plaintiff's claim.” Id. at 1534. See also O’Ferrell v. United States, 253 F.3d
1257, 1265-66 (11th Cir. 2001) (applying Metz and holding that false
light/invasion of privacy claims based on defamatory statements were barred by §
2680(h)).
Our sister circuits have also ruled that claims for false light/invasion of
privacy are barred by the libel and slander exception in § 2680(h). See Wuterich v.
Murtha, 562 F.3d 375, 379-81 (D.C. Cir. 2009) (holding that invasion of privacy
and false light claims arose out of libel or slander and were barred); Kugel v.
United States, 947 F.2d 1504, 1507 (D.C. Cir. 1991) (concluding that claims based
on “dissemination of [defamatory] information” were barred by the FTCA’s
exemptions). See also Johnson v. Sawyer, 47 F.3d 716, 725 (5th Cir. 1995) (noting
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that the district court held a false light claim was barred because “[i]ts essence is
injury to [plaintiff’s] reputation, and it therefore falls under 28 U.S.C. § 2680(h) . .
. .”); Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1206 (9th Cir. 1988) (rejecting an
“attempt to fashion the slander and libel claims into a claim for negligent infliction
of emotional distress . . . ” under the FTCA).
The underlying conduct in Metz and O’Ferrell—government officials’
statements about the plaintiffs—is similar to the alleged statements that harmed
Mr. Cadman here. See Metz, 788 F.2d at 1535; O’Ferrell, 253 F.3d at 1265-66.
The fact that there was “no other governmental action upon which the [false light
and intentional infliction of emotional distress] claims could rest” was dispositive
in Metz and O’Ferrell. See 788 F.2d at 1535; 253 F.3d at 1265-66. This same
rationale governs here. At bottom, all of the allegedly tortious actions here are
based on “statements, representations, or imputations,” and there is no other
independent government action on which Mr. Cadman’s claims can rest. We
therefore agree with the district court that Mr. Cadman’s claims come within, and
are barred by, the libel-slander-misrepresentation exemption of the FTCA.
C
Mr. Cadman argues that District of Columbia law recognizes an action for
false light/invasion of privacy different from a traditional action for defamation.
He says that the “representations made about [him] were not necessarily false,” and
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so, “they could not have given rise to an action for defamation.” 1 As we explained
in Metz, however, the “proper analysis is a comparison between the plaintiffs’
claim and the ‘traditional and commonly understood definition’ of the torts
excepted by that section, rather than a comparison with the law of any particular
state.” 788 F.2d at 1535 n.8. See also Rodney A. Smolla, Law of Defamation §
10:10 (2d ed. 1999) (explaining that any distinction between false light/invasion of
privacy and defamation is “often elusive . . . and not completely satisfactory”).
Accordingly, we reject Mr. Cadman’s argument that his possible inability to
recover for defamation in the District of Columbia necessarily means that “his
claims must not be for ‘libel [or] slander’ under the FTCA.”
D
On appeal, Mr. Cadman attempts to re-characterize his negligence claims. In
his complaint, Mr. Cadman alleged that the ICE agents’ statements about him were
negligent, and that there was an overall failure by the supervising agents who were
in charge of the Secure Communities program to train and supervise Agents
Morton and Hale and to mitigate the harm caused by the statements. Mr. Cadman
urges in his brief that “those directly in charge” of the program did not properly
present his work product to Agent Morton and Agent Hale. Moreover, he says that
those in charge failed to advise Agent Morton to review the documentation, which
1
See Jankovic v. International Crisis Group, 429 F. Supp. 2d 165, 173 (D.D.C. 2006)
(stating that a “false and defamatory statement” is a required element for a defamation claim).
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caused him to “erroneously attribute the problems” with the program to Mr.
Cadman and to “take direct action to terminate [his] employment.”
Even if we accept Mr. Cadman’s re-characterization of the negligence
claims, they cannot survive for two main reasons. First, the claims cannot
circumvent § 2680(h)’s bar because the sole basis for any harm caused to Mr.
Cadman were the statements made to third parties by Agent Morton and Agent
Hale that cast him in an alleged false light. See O’Ferrell, 253 F.3d at 1265-66
(rejecting an attempt to use a “negligent supervision” theory to avoid the holding
of Metz). No amount of “semantical recasting” can alter this fact. See United
States v. Shearer, 473 U.S. 52, 55 (1985) (stating that “no semantical recasting of
events [could] alter the fact that battery” – which was barred by § 2680(h) – was
the cause of the injury)). Second, the portion of the negligence claim alleging a
“failure to investigate,” which purportedly led to Mr. Cadman’s termination from
Booz-Allen-Hamilton, fails because the harm—interference with contract rights—
is another tort expressly barred by § 2680(h). See 28 U.S.C. § 2680(h) (exempting
claim arising out of “interference with contract rights”).
IV
For the foregoing reasons, the district court’s dismissal of Mr. Cadman’s
complaint is affirmed.
AFFIRMED.
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