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ASSAAD-FALTAS v. GRIFFIN

April 24, 1989

MARIE-THERESE H. ASSAAD-FALTAS, PLAINTIFF
v.
ROBERT GRIFFIN, DEFENDANT


Elsijane T. Roy, United States District Judge.


The opinion of the court was delivered by: ROY

ELSIJANE T. ROY, UNITED STATES DISTRICT JUDGE

 The Judgment entered on March 16, 1989, 708 F. Supp. 1035, is amended to include the following:

 In the event it is determined that Public Law 100-694 is applicable to this claim, the Court finds that pursuant to 28 U.S.C. § 2679(b)(1), an action against the United States under the Federal Tort Claims Act is now the exclusive remedy for state law or common law torts committed by government employees while acting within the scope of their federal employment. 28 U.S.C. § 2679(b)(2). Consequently, the Federal Tort Claims act is the exclusive remedy for the plaintiff's claims of libel and slander against federal defendant Robert Griffin.

 The United States Attorney has certified that the individual defendant Robert Griffin was acting within the course and scope of his employment at all times relevant to the claims of Marie-Therese H. Assaad-Faltas. Substitution of the United States as the party defendant is mandated upon a scope of employment determination by the Attorney General or his delegate. 28 U.S.C. § 2679(d)(1); § 2679(d)(4) and 28 C.F.R. 15.3 Judicial review of the scope of employment certification is available only to a federal employee and then only when the Attorney General, or his designed, refuses to certify that the federal employee was acting within the scope of federal employment. 28 U.S.C. § 2679(d)(3). Accordingly, the United States of America is by operation of law substituted for the individual federal defendant Robert Griffin on the plaintiff's common law tort claims against him.

 Upon certification of scope of employment as set forth in 28 U.S.C. § 2679(d), the action shall proceed as though initially filed against the United States of America under the Federal Tort Claims act and shall be subject to all of the limitations and exceptions applicable to FTCA actions. 28 U.S.C. § 2679(d)(4). The United States retains all of its defenses under the FTCA.

 In the present case, the plaintiff's common law tort claims against the substituted defendant United States of America is dismissed for failure to present an administrative claim to the appropriate federal agency, as required by 28 U.S.C. § 2675(a). This is a jurisdictional prerequisite. See Snyder v. United States, 717 F.2d 1193 (8th Cir. 1983); Smith v. United States 588 F.2d 1209, 1211 (8th Cir. 1978). Further, claims arising out of libel and slander are excluded from the FTCA, and such claims cannot be maintained against the United States. 28 U.S.C. § 2680(h).

 Based upon the foregoing, the Court hereby finds that the plaintiff's claims against defendant Robert Griffin should be, and are hereby dismissed.

 ENTERED this 24th day of April, 1989.

19890424

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