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8 United States District Court 9 Central District of California

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11 ROBERT R. JIMENEZ, Case № 2:25-cv-04415-ODW (PDx)

12 Plaintiff, ORDER DENYING PLAINITFF’S

13 v. MOTION TO REMAND [10]; AND

GRANTING DEFENDANTS’

14 MONICA CHESSER et al., MOTION TO DISMISS [8]

15 Defendants.

16 17 I. INTRODUCTION 18 Plaintiff Robert R. Jimenez, pro se, initiated this defamation action against 19 seven individual Defendants. (Notice Removal (“NOR”) Ex. A (“Compl.”), ECF 20 Nos. 1, 1-1.) The United States removed this case on behalf of six of those 21 Defendants (“Removing Defendants”). (NOR 1.) Before the Court are Plaintiff’s 22 Motion to Remand and Removing Defendants’ Motion to Dismiss. (Mot. Remand, 23 ECF No. 10; Mot. Dismiss, ECF No. 8.) For the reasons below, the Court DENIES 24 Plaintiff’s Motion to Remand and GRANTS Removing Defendants’ Motion to 25 Dismiss.1 26 27

28 1 Having carefully considered the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND2 2 Jimenez was a “District Manager in the Covina field office” of the United 3 States Railroad Retirement Board (“RRB”). (Compl. 7, 73.3) Defendants Monica 4 Chesser, Griselda Vivero-Monjaraz, and Lashanda Chadwick were RRB claims and 5 program representatives. (Id. at 7, 21.) Defendant Jeramie Wondercheck was 6 Jimenez’s supervisor. (Id. at 58, 66.) Defendants Felicia Adams and Phenesha Odom 7 were American Federation of Government Employees (“AFGE”) representatives. (Id. 8 at 85, 98.) These six Defendants are Removing Defendants. Defendant Scott 9 Doellinger, who is not a Removing Defendant, was an independent investigator from 10 Doelli LLC. (Id. at 35.) 11 Chesser and Vivero-Monjaraz filed internal harassment complaints against 12 Jimenez. (Id. at 5.) Jimenez alleges that Defendants defamed him through statements 13 made in connection with internal workplace complaints against him and investigations 14 thereof. (See, e.g., id. at 8, 27, 58–61.) For example, he alleges that Chesser made a 15 defamatory statement in a harassment complaint against him by relaying that 16 Vivero-Monajaraz “called [her,] scared[,] stating she received a very threatening and 17 intimidating email from” Jimenez while both were in the office. (Id. at 23.) As a 18 result of these defamatory statements and subsequent investigations, the Director of 19 Field Services for RRB terminated Jimenez’s employment. (Id. at 18.) 20 On March 20, 2025, Jimenez filed this action in Los Angeles Superior Court, 21 asserting claims for defamation against Defendants. (Compl.) On May 16, 2025, 22 Removing Defendants removed this action to this Court pursuant to the Westfall Act, 23 28 U.S.C. § 2679(d)(2). (NOR.) Along with the notice of removal, Removing 24 Defendants submitted a Certification of Scope of Federal Employment, signed by 25 David M. Harris, Chief of the Civil Division of the United States Attorney’s Office 26 for the Central District of California. (NOR Ex. 2 (“Certification”), ECF No. 1-2.) In 27 2 All factual references derive from the Complaint, as well-pleaded factual allegations are accepted 28 as true for purposes of these Motions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 Page numbers refer to the bottommost number of each page of the Complaint. 1 the Certification, Harris declared “upon the information now available to [him] with 2 respect to the incidents referred to in the Complaint,” that Removing Defendants 3 “were acting within the course and scope of employment with the United States at all 4 times material to the incidents alleged in the Complaint.” (Id. ¶ 2.) 5 On May 23, 2025, Removing Defendants filed a Motion to Dismiss. (Mot. 6 Dismiss.) Plaintiff filed an opposition, (Opp’n Mot. Dismiss, ECF No. 12), and 7 Removing Defendants filed a reply, (Reply ISO Mot. Dismiss, ECF No. 14). On 8 May 27, 2025, Plaintiff filed a Motion to Remand. (Mot. Remand.) Removing 9 Defendants filed an opposition, (Opp’n Mot. Remand, ECF No. 13), and Plaintiff did 10 not file a reply. 11 III. LEGAL STANDARD 12 A. Motion to Remand 13 Federal courts are courts of limited jurisdiction and possess only that 14 jurisdiction as authorized by the Constitution and federal statute. Kokkonen v. 15 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 1441(a), 16 a party may remove a civil action brought in a state court to a district court only if the 17 plaintiff could have originally filed the action in federal court. The Westfall Act 18 provides that, “[u]pon certification by the Attorney General that the defendant 19 employee was acting within the scope of his office or employment at the time of the 20 incident out of which the claim arose,” a civil action in state court “shall be removed 21 without bond at any time” to federal court. 28 U.S.C. § 2679(d)(2). 22 B. Motion to Dismiss 23 A court may dismiss a complaint under Federal Rule of Civil Procedure 24 (“Rule”) 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to 25 support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 26 901 F.2d 696, 699 (9th Cir. 1988). To survive a dismissal motion, a complaint need 27 only satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short and 28 plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The 1 factual “allegations must be enough to raise a right to relief above the speculative 2 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the “complaint 3 must contain sufficient factual matter, accepted as true, to state a claim to relief that is 4 plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). 5 The determination of whether a complaint satisfies the plausibility standard is a 6 “context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. at 679. A court is generally limited to the 8 pleadings and must construe all “factual allegations set forth in the complaint . . . as 9 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 10 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 11 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 12 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 13 Where a district court grants a motion to dismiss, it should generally provide 14 leave to amend unless it is clear the complaint could not be saved by any amendment. 15 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 16 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 17 determines that the allegation of other facts consistent with the challenged pleading 18 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 19 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 20 denied . . . if amendment would be futile.” Carrico v. City & County of San 21 Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011). 22 IV. DISCUSSION 23 The Court first addresses Jimenez’s Motion to Remand before turning to 24 Removing Defendants’ Motion to Dismiss. 25 A. Motion to Remand 26 Removing Defendants removed this action to this Court under the Westfall Act. 27 That act provides: 28 Upon certification by the Attorney General that the defendant employee 1 was acting within the scope of his office or employment at the time of the 2 incident out of which the claim arose, any civil action or proceeding 3 commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court 4 of the United States for the district and division embracing the place in 5 which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United 6 States under the provisions of this title and all references thereto, and the 7 United States shall be substituted as the party defendant. This 8 certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal. 9 10 28 U.S.C. § 2679(d)(2). The director of the civil division of the district where the 11 civil action or proceeding is brought may make this certification. 28 C.F.R. § 15.4(a). 12 As noted, the Chief of the Civil Division of the United States Attorney’s Office for the 13 Central District of California has declared that Removing Defendants “were acting 14 within the course and scope of employment with the United States at all times material 15 to the incidents alleged in the Complaint.” (Certification ¶ 2.) 16 In the Motion to Remand, Jimenez argues that the Certification is deficient 17 because it is conclusory “without stating facts sufficiently to have support from the 18 statutes and vested authority.” (Mot. Remand 4.) Pursuant to 28 U.S.C. § 1346(b)(1), 19 district courts “shall have exclusive jurisdiction of civil actions on claims against the 20 United States, for money damages, . . . for injury or loss of property, or personal 21 injury or death caused by the negligent or wrongful act or omission of” government 22 employees working within the scope of employment. Jiminez contends that 23 Removing Defendants were required to, but did not, carry their “burden to clearly 24 identify ‘claims which are cognizable under’” this section. (Id. at 4 (quoting 25 28 U.S.C. § 2679(a)).) He further argues that because § 1346(b) does not apply to 26 defamation claims, see 28 U.S.C. § 2680(h), his “claims for defamation run[] against 27 the individually named, federal employee[s],” not the United States. (Mot. 28 Remand 6.) 1 Jimenez’s arguments miss the mark. “[W]hen the Attorney General certifies 2 scope of employment, his certificate ‘conclusively establish[es] scope of office or 3 employment for purposes of removal.’” Osborn v. Haley, 549 U.S. 225, 242 (2007) 4 (second alteration in original) (quoting 28 U.S.C. § 2679(d)(2)). Therefore, “[f]or 5 purposes of establishing a forum to adjudicate the case, . . . § 2679(d)(2) renders the 6 Attorney General’s certification dispositive.” Id. Section 2680(h), which lists libel 7 and slander as exceptions to the Federal Tort Claims Act (“FTCA”)’s waiver of 8 sovereign immunity, does not override the Attorney General’s authority to effect 9 removal through a scope of employment certification. See Trump v. Carroll, 10 292 A.3d 220, 226 (D.C. 2023) (noting, in defamation case, that “the Attorney 11 General’s certification operates to remove the case from state court to the federal 12 district court”). Rather, § 2680(h) provides that if the United States is properly 13 substituted as a defendant for the government employee in a defamation case, then 14 such substitution “bars any recovery.” Id.; see Pauly v. U.S. Dep’t of Agric., 348 F.3d 15 1143, 1151 (9th Cir. 2003) (affirming substitution of United States as defendant and 16 subsequently dismissing case because plaintiff’s “tort claims are barred by 28 U.S.C. 17 § 2680(h)”). As the Certification complies with § 2679(d)(2), it conclusively 18 establishes Removing Defendants’ right to remove the instant case to federal court. 19 Accordingly, the Court DENIES Jimenez’s Motion to Remand. 20 B. Motion to Dismiss 21 Removing Defendants move to dismiss this case for lack of subject matter 22 jurisdiction. Removing Defendants argue that 28 U.S.C. § 2680(h) bars Jimenez’s 23 defamation claims. (Mot. Dismiss 4–5.) This argument relies on this being a suit 24 against the United States.4 25 “A party may bring an action against the United States only to the extent that 26 the government waives its sovereign immunity.” Valdez v. United States, 56 F.3d 27

28 4 Removing Defendants also contend that Jimenez did not exhaust administrative remedies before bringing this case, as required by the FTCA. (Mot. Dismiss 2–4.) 1 1177, 1179 (9th Cir. 1995). The FTCA “represent[s] a limited waiver of that 2 sovereign immunity for tort claims arising out of the conduct of a government 3 employee acting within the scope of his or her employment.” Id. However, a 4 defamation claim is not actionable under the FTCA, as the FTCA does not apply to 5 “[a]ny claim arising out of . . . libel [or] slander.” 28 U.S.C. § 2680(h). Thus, if 6 Jimenez’s suit is against the United States, then the suit must be dismissed; if it is 7 against the Removing Defendants, then the suit can continue. Carroll, 292 A.3d 8 at 226–27 (explaining that, if United States is substituted as defendant in defamation 9 case, then the FTCA bars the claim, but if United States is not substituted as 10 defendant, then the FTCA does not bar the claim). 11 Rather than argue that he can maintain a defamation claim against the United 12 States, Jimenez appears to challenge the United States’s Certification and substitution 13 as defendant, arguing that Removing Defendants’ “acts are not within the course and 14 scope of any federal employment at any time.” (Opp’n Mot. Dismiss 7.) Unlike with 15 removal, the Attorney General’s certification does not conclusively establish scope of 16 office or employment for purposes of trial. Osborn, 549 U.S. at 242. “[T]he party 17 seeking review bears the burden of presenting evidence and disproving the Attorney 18 General’s decision to grant or deny scope of employment certification by a 19 preponderance of the evidence.” Saleh v. Bush, 848 F.3d 880, 889 (9th Cir. 2017). 20 “To rebut the scope certification, a plaintiff must allege sufficient facts that, taken as 21 true, would establish that the defendant’s actions exceeded the scope of his 22 employment.” Id. (cleaned up). Under the Westfall Act, courts look the “the 23 principles of respondeat superior of the state in which the alleged tort occurred.” Id. 24 (emphasis omitted). Here, that is California. (See Compl. 4 (discussing incidents 25 occurring at the RRB’s field office located in California).) 26 In California, an employee acts within the scope of employment when it is 27 “engendered by, typical of or broadly incidental to, or . . . a generally foreseeable 28 consequence of” the employer’s enterprise. Lisa M. v. Henry Mayo Newhall Mem’l 1 Hosp., 12 Cal. 4th 291, 300 (1995) (internal quotation marks omitted). Put otherwise, 2 an employee’s activity falls within the course and scope of employment when, “in the 3 context of the particular enterprise[,] an employee’s conduct is not so unusual or 4 startling that it would seem unfair to include the loss resulting from it among other 5 costs of the employer’s business.” Farmers Ins. Grp. v. County of Santa Clara, 6 11 Cal. 4th 992, 1003 (1995) (emphasis omitted). 7 Making statements in a report regarding hostile work environment and other 8 “workplace problems” is “garden variety conduct that falls within the scope of 9 employment.” Beveridge v. United States, No. 15CV2209-LAB (JMA), 2016 WL 10 7474825, at *1–2 (S.D. Cal. Dec. 28, 2016) (analyzing statements a co-worker made 11 to a human resources employee); see, e.g., Whitcomb v. Moser, No. 23-55723, 12 2024 WL 4224908, at *1 (9th Cir. Sept. 18, 2024) (affirming that statements made 13 “during an interview as part of a workplace investigation into sexual harassment” are 14 within the scope of employment); Fowler v. Howell, 42 Cal. App. 4th 1746, 1751 15 (1996) (“[A]n employee who has been encouraged to complain and provided a 16 procedure to complain of sexual harassment by a coworker acts within ‘the scope of 17 [her] employment’ by making such a complaint.” (second alteration in original)). 18 Here, accepting Jimenez’s allegations as true, Removing Defendants’ 19 defamatory statements were made within the scope of their employment. Jimenez was 20 a “District Manager in the Covina field office” of the RRB. (Compl. 73.) And 21 Removing Defendants were all RRB employees. (Compl. 7, 21, 75 (alleging that 22 Chesser, Vivero-Monjaraz, and Chadwick were claims and program representatives of 23 the RRB), 58, 66 (alleging that Wondercheck was Jimenez’s manager), 85, 98 24 (alleging that Odom and Adams were AFGE representatives).) 25 Removing Defendants’ alleged defamatory statements were made in connection 26 with internal workplace complaints to the RRB or investigations thereof. (See, e.g., 27 Compl. 7 (discussing “false and malicious statements . . . via written affidavits and 28 interviews, under oath” to Doellinger as part of an RRB investigation), 27 (discussing 1 filing of RRB Anti-Harassment complaint), 35 (alleging false statements in reports of 2 investigations).) These complaints concerned Jimenez’s workplace conduct. (See, 3 e.g., id. at 9 (alleging statement that Jimenez sent a “threatening and intimidating 4 email” while Jimenez and Vivero-Monjaraz were in the office), 16 (alleging 5 motivations for false statement included resentment against Jimenez for taking 6 intern’s side in incident between employee and intern), 31 (alleging that Jimenez 7 made inappropriate comments about employee’s gender, age, and marital status when 8 discussing her future at RRB), 75 (alleging statement that Jimenez “violated 9 [employee’s] employment rights” and “obstructed her job training and 10 development.”).) In fact, the RRB made an adverse finding in the investigation 11 against Jimenez, and he tried to appeal to the Equal Employment Opportunity 12 Commission. (Id. at 12–13.) As a result of Removing Defendants’ false statements, 13 Jimenez was “remov[ed] from his position and occupation in federal service[,] . . . 14 tantamount to a dishonorable discharge.” (Id. at 95.) To the extent Jimenez’s 15 defamation allegations are based on the Removing Defendants’ statements, they were 16 made within the scope of their employment for the United States. 17 Jimenez has not alleged facts to establish that Removing Defendants’ actions 18 exceeded the scope of their employment and thus has not met his burden to rebut the 19 Certification. Saleh, 848 F.3d at 889. Thus, the Court lacks jurisdiction to hear 20 Jimenez’s defamation claims. Abbey v. United States, 112 F.4th 1141, 1145 (9th Cir. 21 2024) (“[F]ederal courts lack jurisdiction over suits against the United States unless it 22 consents to be sued.” (internal quotation marks omitted)). Accordingly, the Court 23 DISMISSES Jimenez’s defamation claims against Removing Defendants. 24 C. Leave to Amend 25 Jimenez requests to amend his complaint to raise a claim under Bivens v. Six 26 Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) for defamation against the 27 Removing Defendants. (Opp’n Mot. Dismiss 11–12; Mot. Remand 6–7.) 28 1 In Bivens, the Supreme Court “authorized a damages action against federal 2 officials for alleged violations of the Fourth Amendment.” Egbert v. Boule, 596 U.S. 3 482, 486 (2022). Since then, the Supreme Court has authorized Bivens causes of 4 action for Fifth Amendment (sex discrimination) and Eighth Amendment (inadequate 5 care) violations. Id. at 490. In the last forty-five years, the Supreme Court “has 6 consistently declined to extend Bivens to new contexts.” Goldey v. Fields, 606 U.S. 7 942, 945 (2025); see Egbert, 596 U.S. at 486 (“We have declined 11 times to imply a 8 similar cause of action for other alleged constitutional violations.”). 9 To state a Bivens claim, a plaintiff must “allege[] facts rising to a constitutional 10 violation.” Arnold v. United States, 816 F.2d 1306, 1311 (9th Cir. 1987). Even if a 11 plaintiff alleges a constitutional violation, courts apply a two-step test to determine 12 whether a Bivens claim may proceed. Goldey, 606 U.S. at 944. First, courts ask 13 “whether the case presents ‘a new Bivens context’—that is, whether the case ‘is 14 different in a meaningful way’ from the cases in which th[e Supreme] Court has 15 recognized a Bivens remedy.” Id. (quoting Ziglar v. Abbasi, 582 U.S. 120, 139 16 (2017)). Second, if a case presents a new context, courts “then ask whether there are 17 ‘special factors’ indicating that the Judiciary is at least arguably less equipped than 18 Congress to weigh the costs and benefits of allowing a damages action to proceed.” 19 Id. (internal quotation marks omitted) (quoting Egbert, 596 U.S. at 492). In applying 20 the second test, courts “face[] only one question: whether there is any rational reason 21 (even one) to think that Congress is better suited to weigh the costs and benefits of 22 allowing a damages action to proceed.” Egbert, 596 U.S. at 496 (internal quotation 23 marks omitted). 24 Jimenez does not identify which of his constitutional rights Removing 25 Defendants have violated. Instead, he asks for an “opportunity to plead a Bivens claim 26 against each individually named Defendant[] for their intentional tort action of 27 defamation,” (Opp’n Mot. Dismiss 11), and “to present and frame a 5 C.F.R 28 1 § 735.2035 question within the context of defamation,” (Mot. Remand 7). An 2 intentional tort action of defamation cannot support a Bivens claim because it is not a 3 constitutional violation. See Arnold, 816 F.2d at 1311 (denying Bivens claim where 4 allegations are not constitutional violations but “claims sounding instead in tort”). 5 Even if Jimenez alleged constitutional violations, such as a Fifth Amendment 6 due process violation or a First Amendment retaliation claim, these claims would 7 present a “new context.” See Harper v. Need, 71 F.4th 1181, 1184, 1187 (9th Cir. 8 2023) (holding that former federal employee’s Fifth Amendment due process 9 challenge to adverse employment action presented a “new context”); Egbert, 596 U.S. 10 at 498 (holding that First Amendment retaliation claims presents a “new context” 11 because the Supreme Court “ha[s] never held that Bivens extends to First Amendment 12 claims”); 13 Based on the facts Jimenez alleges, the Court could not find that Bivens extends 14 to this new context. See Mejia v. Miller, 61 F.4th 663, 669 (9th Cir. 2023) (“Under 15 Egbert, rarely if ever is the Judiciary equally suited as Congress to extend Bivens even 16 modestly.”). “Where Congress has designed a program that provides what it considers 17 adequate remedial mechanisms for constitutional violations, Bivens actions should not 18 be implied.” Berry v. Hollander, 925 F.2d 311, 314 (9th Cir. 1991). “This case 19 involves an internal Executive Branch employment dispute governed by a separate 20 legal mandate, the Civil Service Reform Act of 1978 (CSRA), Pub. L. 95-454, 21 92 Stat. 1111 (1978) (codified in various sections of 5 U.S.C.).” Harper, 71 F.4th 22 at 1187. “Serious adverse employment actions,” like termination, “may generally be 23 appealed to the Merit Systems Protection Board (MSPB), with judicial review of those 24 decisions available in federal court.” Id. (citing 5 U.S.C. §§ 7512, 7513(d), 25 7703(b)(1)); (see Notice Lodging Ex. A (“Termination Letter”) 8–10, ECF No. 19-1 26 (notifying Jimenez of his right to appeal to the MSPB, Office of Equal Opportunity, 27

28 5 5 C.F.R. § 753.203 provides that “[a]n employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.” 1 || and Office of Special Counsel).) “Because Congress passed the CSRA to” address disciplinary disputes, “extending Bivens to allow government employees to sue their 3 || supervisors for damages over disciplinary actions would significantly intrude into 4|| those functions.” Harper, 71 F.4th at 1188; cf Berry, 925 F.2d at312, 315-16 5 || (declining to find “new context” for claims concerning violation of “First Amendment 6 || free expression rights and Fifth Amendment due process rights’). 7 Therefore, amendment to add a Bivens claim would be futile. Accordingly, 8 | Jiminez is not permitted leave to amend. 9 Vv. CONCLUSION 10 For the reasons discussed above, the Court DENIES Jimenez’s Motion to 11 || Remand. (ECF No. 10.) The Court also GRANTS Removing Defendants’ Motion to 12 | Dismiss without prejudice and without leave to amend. (ECF No. 8.) 13 That leaves Jiminez’s claims against Defendant Doellinger. The parties do not 14 || appear to contend that Jiminez’s claims against Doellinger were removed to the Court. 15 || (See NOR.) To the extent the Court may have jurisdiction over these claims, the 16 || Court declines to exercise supplemental jurisdiction over them and REMANDS this 17 || case to the Superior Court of California, County of Los Angeles, 111 N. Hill Street, 18 || Los Angeles, CA 90012, Case No. 25STCV07990. The Clerk shall close the case. 19 20 IT IS SO ORDERED. 21 22 August 6, 2025 23 wg Gédliod 5 OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE

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