Articles Posted in Government Defamation

As a general rule, both the United States and the Commonwealth of Virginia enjoy sovereign immunity, which shields the government entities and their agencies from defamation lawsuits as well as most other types of litigation. The law becomes trickier when applied to the employees of those governments. Federal employees are immune from defamation claims based on things they said while acting within the scope of their employment. Those who work for the Commonwealth of Virginia, on the other hand, or one of its counties, cities, or towns, don’t have it so easy. Virginia employees do enjoy some degree of sovereign immunity for their actions, but–with limited exceptions–the protection they are afforded is less than the absolute protection federal employees receive. Like federal employees, state and local employees must be acting within the scope of their employment to be potentially entitled to claim immunity, but state employees need to meet additional criteria before they will be granted immunity.

The Virginia Supreme Court has described sovereign immunity as “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” This rule of social policy is essentially based on the following goals: (1) to protect the “public purse” (i.e., to preserve tax dollars), (2) to address the concern that officials might be unwilling to carry out their public duties if they lived in constant fear of being sued, (3) to encourage citizens to take public jobs, and (4) to permit the orderly administration of government by discouraging improper influence through vexatious litigation. (See Messina v. Burden, 228 Va. 301, 308 (1984)). Consideration of these policies is what guided the Virginia courts to develop a rule affording immunity to some state and local employees but not others.
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I previously reported on the Stafford County case of Suzanne Brown v. Katherine Schoeneman in which Brown, an FBI agent, brought a defamation action against Schoeneman for allegedly false reports Schoeneman made to superiors accusing Brown of making sexual advances toward her. The Government removed the case to federal court, substituted itself as the defendant under the Westfall Act, and moved to dismiss under the Federal Tort Claims Act. The court granted the motion as the FTCA’s waiver of sovereign immunity expressly excludes claims for libel and slander. See 28 U.S.C. § 2680(h).

The Westfall Act (aka the Federal Employees Liability Reform and Tort Compensation Act of 1988) amended the Federal Tort Claims Act to make it the exclusive remedy for torts committed by federal employees acting within the scope of their employment. It precludes federal employees from being sued for claims arising under state tort law (such as slander or intentional infliction of emotional distress) if they were acting within the scope of their employment. See 28 U.S.C. § 2679(b)(1). If the FTCA precludes recovery against the United States, then the plaintiff may be left without a remedy, as this case demonstrates.

Upon consideration of the Government’s motion to dismiss, the only issue before the court was whether the allegedly defamatory acts fell within the scope of Ms. Schoeneman’s employment. The plaintiff did not dispute that if the conduct was committed within the scope of employment, substitution of the United States as the defendant and removal to federal court was appropriate.

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.

In theory at least, when a government agency defames an individual, the defamation may be characterized as a violation of civil rights: a deprivation of “liberty” without due process of law. The United States Supreme Court, however, has held that an ordinary state-law defamation claim against the government will usually not be sufficient to state a civil rights claim. Under the “stigma plus” or “reputation-plus” test, a plaintiff must prove some loss beyond loss of reputation, such as the loss of a job. A recent New York case demonstrates how difficult it can be to maintain such an action.

Michael Jones, Jr., was Canandaigua, New York’s Planning Board Attorney in 2008. Per agreement, he billed at two rates, depending on the circumstances. The Town Board approved his billing statements until August when members of the Town Board challenged the billing. The Town Board investigated and published a report accusing Jones of ethical violations. It referred the matter to the District Attorney and took steps to get him fired, get him to resign, or prevent his contract from being renewed. He completed his contractual term but did not seek renewal, believing doing so would be futile.

Claiming the extensive press coverage hurt his legal practice, Jones sued the Town, the majority Town Board members, and the Town Board attorneys for several state law actions, including defamation. In his federal actions, he claimed the Town violated his right to substantive due process and his civil rights, denying him a property right plus.pngof continued service as Planning Board Attorney and defaming him so badly that the stigma has substantially harmed his ability to practice law.

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