The Virginia Defamation Law Blog
If you work for the federal government and a co-worker spreads false and malicious rumors about you that damage your reputation, it will be very difficult to pursue a claim for libel or slander against the individual in question. The recent Maryland case of Shake v. Gividen demonstrates the hurdles a prospective plaintiff would face in pursuing such an action.
Donald Shake worked for the Department of Veterans Affairs until he was terminated in 2011. Teresa Gividen and Brian Sexton also worked at the Department of Veterans Affairs. Gividen was the Assistant Human Resources Chief. Shake claimed that Gividen and Sexton accused him of accessing the medical records of a veteran and not completing hundreds of work orders. He asserted that Gividen and Sexton started rumors that Shake was the subject of disciplinary proceedings and that numerous complaints had been lodged against him. Shake sued Gividen and Sexton for defamation, alleging that they slandered his name and reputation by making false and malicious statements about him. Shake alleged that he lost his job and retirement benefits as a result of the slander and that his reputation was harmed such that he was unable to secure subsequent employment.
The United States filed a motion contending that Gividen and Sexton should be dismissed because they were acting within the scope of their employment, and it asked to be substituted as the sole defendant in the case pursuant to the Federal Tort Claims Act (FTCA). The United States further argued that Shake’s defamation claim should then be dismissed for failure to exhaust administrative remedies and on sovereign immunity grounds. The court agreed.
The FTCA provides that when the Attorney General certifies that a defendant employee in a state court case was acting within the scope of his employment with the federal government at the time of the incident, the case shall 
be removed to federal court and be considered an action against the United States and the United states shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(2).
Here, the United Stated Attorney General for the District of Maryland, acting on behalf of the U.S. Attorney General, certified that both Gividen and Sexton were acting within the scope of their employment at all times relevant to Shake’s claims. Shake challenged the certification, and when certification is challenged, the burden shifts to the plaintiff to prove that the defendants were acting outside the scope of their employment.
In this case, Shake did not present any evidence nor hint at any evidence that might suggest that Gividen and Sexton were acting outside the scope of their employment. The court found that Shake therefore failed to meet his burden, and it dismissed the claims against Gividen and Sexton. The court substituted the United States as the sole defendant pursuant to the FTCA.
Under the FTCA, a plaintiff must exhaust his administrative remedies by presenting his claim to the appropriate federal agency before filing an action in federal court. Shake should have brought his complaint to the Department of Veterans Affairs. Shake claims that he appealed his termination to the Merit Systems Protections Board and therefore satisfied the exhaustion remedy. However, the United States provided evidence that there was no record of such a claim. The court found that Shake failed to file an administrative claim with the Department of Veterans Affairs as required by the FTCA and therefore it dismissed his claim.
The court went on to note that even if Shake had filed an administrative claim with the Department of Veterans Affairs, his action still would fail because the FTCA bars suits for slander against the federal government. See 28 U.S.C. § 2680(h).