United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, UNITED STATES DISTRICT JUDGE
matter is before the Court on various motions to dismiss
(Docs. 10, 26, 38, 39, 47, 50, 65), a motion to remand by
plaintiffs (Doc. 34), and a motion for admission pro hac vice
(Doc. 62). The Court has reviewed these motions and concludes
that oral argument is unnecessary.
Court first notes that this matter was properly removed by
defendant Elizabeth Warren pursuant to 28 U.S.C. §
1442(a)(1), which provides, in part, that any officer or
agency of the United States may remove an action from state
court when sued “for or relating to any act under color
of such office.” This statute is construed broadly and,
where its requirements are satisfied, the right to removal is
absolute. Willingham v. Morgan, 395 U.S. 402, 405
member of Congress, Warren is an “officer of the United
States.” See Hill Parents Ass'n v. Giamo,
287 F.Supp. 98, 99 (D. Conn. 1968).
in order to satisfy the “under color of such
office” requirement, Warren need only demonstrate a
“causal connection” between her official position
and the claim against her. Willinghan, 395 U.S. at
409. Here, it is abundantly clear that Warren's statement
posted via her official Twitter account on a matter of
national interest - an incident on the National Mall with
perceived political ramifications - was meant to communicate
her position on the event as an elected representative.
See, e.g., Giamo, 287 F.Supp. At 100 (removal proper
under 28 U.S.C. § 1442 as defendant Congressman was
acting under color of office when making allegedly libelous
statement to media).
Warren has asserted a colorable federal defense of sovereign
immunity, as next discussed.
removal was proper, and plaintiffs' motion to remand on
this basis is not well taken.
Warren and defendant Deborah Haaland, who is a United States
Representative from New Mexico, raise the defense of
sovereign immunity to plaintiffs' claims against them.
axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite
for jurisdiction. U.S. v. Mitchell, 463 U.S. 206,
212 (1983). Sovereign immunity “extends to agencies of
the United States” or “federal officers [acting]
in their official capacities.” Whittle v. United
States, 7 F.3d 1259, 1262 (6th Cir. 1993).
other side of the sovereign immunity coin is the Federal Tort
Claims Act (FTCA). The FTCA functions as a limited waiver to
sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471,
475 (1994). In fact, if acting “within the scope of
employment, ” the FTCA is the exclusive remedy for
claims against employees of the United States. 28 U.S.C.
FTCA applies, then the plaintiff must first exhaust
administrative remedies before proceeding against the
defendant. 28 U.S.C. § 2675(a). The plaintiff must first
present their claim to the “appropriate federal
agency”; the plaintiff ...