WILSON v. FELICIANO

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
RONTARIUS WILSON,
Plaintiff,
vs. 	Case No. 4:25cv360-AW-MAF
UNITED STATES OF AMERICA,
Defendant.
_______________________________/
REPORT AND RECOMMENDATION
This case is about the destruction of Plaintiff’s property, valued at
$698.72. ECF No. 5. Plaintiff’s claim was filed in small claims court in
state court, but the United States of America filed a notice of removal on
August 22, 2025. ECF No. 1. The notice asserted that removal was
appropriate under 28 U.S.C. § 1442(a) because the case was filed in state
court and was brought against a federal officer of a United States agency.
Id. at 2. Four days later, the United States filed a motion to substitute
pursuant to 28 U.S.C. § 1346 and § 2679, seeking to substitute the United
States for the individual named as the Defendant - Jose Feliciano. ECF
No. 6. Attached to that motion was a certification of the United States
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Attorney that Jose Feliciano was “acting with the scope of his federal
employment at the time of the acts alleged” in Plaintiff’s complaint. ECF
No. 6-1.
After entry of an Order requiring clarification of the basis for federal
court jurisdiction, ECF No. 7, the United States filed a motion for leave to
amend the notice of removal. ECF No. 8. That motion advised 1 that the
notice of removal should have cited to 28 U.S.C. § 2679 as the basis for
removal. 	Id. 	An explanation of Defendant Feliciano’s actions and
employment was provided to show that § 2679 was the proper basis for
removal as the Defendant was acting “under color of such office,” the office
being his employment with the United States Postal Service (USPS). 	Id. at
3-4. In addition, the United States filed a motion to dismiss for lack of
jurisdiction. ECF No. 9. Plaintiff was given until September 22, 2025, to
1 At the time the notice of removal was filed, the pro se Plaintiff’s complaint was
far from clear in showing this case was filed under the Federal Tort Claims Act. See 28
U.S.C. § 2672, et seq. The complaint stated only that Plaintiff’s claim was for the
“disposal of personal items without knowledge.” ECF No. 5. No information was
provided as to when, where, or how the disposal occurred, nor did Plaintiff identify the
items disposed. Within the motion for leave to amend the notice of removal, however,
the United States clarified that Defendant Feliciano was acting within the scope of his
federal employment and was acting “at the direction of a USPS Postmaster” when he
cleaned out a room located at a United States Post Office. ECF No. 8 at 3.
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respond to both the motion to substitute, ECF No. 6, and the motion to
dismiss, ECF No. 9. ECF No. 10.
Plaintiff then filed his own “motion to dismiss.” ECF No. 11. Plaintiff
said he originally filed this case in “Small Claims Court” in state court and
claimed this Court was “not the proper forum.” 	Id. at 1. He requested
“dismissal so the matter may be pursued in the appropriate jurisdiction.” 	Id.
In doing so, Plaintiff claimed that Jose Feliciano “was not within the scope
of his employment as a Driver Safety Instruction” with the Postal Service
and he claimed a “station manager” had not “given authorization” for
Feliciano to be in the Quincy, Florida, Post Office. 	Id. at 1-2.
Another Order was entered, ECF No. 12, advising that it was not
appropriate to construe Plaintiff’s motion to dismiss as a request for
voluntary dismissal in light of his desire to re-file the case in state court.
ECF No. 12. Additionally, if construed as a motion to remand, the motion
would necessarily be denied in light of the certification filed by the United
States Attorney, see ECF No. 6-1, and the Supreme Court’s opinion in
Osborn v. Haley, 549 U.S. 225, 231, 127 S. Ct. 881, 888–89, 166 L. Ed. 2d
819 (2007). ECF No. 12 at 4-6; see Douse v. Eleventh Cir. Ct. of Appeals
Clerk of Cts., 760 F. App’x 880, 884 (11th Cir. 2019) (finding “the Attorney
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General’s certification conclusive for purposes of removal” under
§ 2679(d)(2)).
There was, however, another possible construction of Plaintiff’s
motion to dismiss - it could be construed as a motion for judicial review of
the Government’s certification. ECF No. 12 at 8-9. A plaintiff is permitted
to challenge the Attorney General’s scope-of-employment certification. De
Martinez v. Lamagno, 515 U.S. 417, 436-37, 115 S. Ct. 2227, 2237, 132 L.
Ed. 2d 375 (1995). Plaintiff’s motion, ECF No. 11, was so construed;
however, because Plaintiff presented an unsupported assertion that Jose
Feliciano was not authorized to be in the Quincy Post Office, see ECF No.
11 at 2, Plaintiff was provided an opportunity to file support for his motion.
ECF No. 12 at 9. Thereafter, the United States was provided an
opportunity to respond. 	Id. at 10.
On October 14, 2025, Plaintiff filed a supplemental motion for judicial
review, ECF No. 15, again arguing that “Jose Feliciano acted outside the
scope of his USPS employment when he disposed of Plaintiff’s personal
property at the Quincy Post Office.” 	Id. at 3. Plaintiff submitted a
declaration in support, stating that at all relevant times, Plaintiff was
employed by the Postal Service “as a Laborer Custodian domiciled at the
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Quincy, Florida Post Office.” ECF No. 15 at 8. Plaintiff said that
Mr. Feliciano “was employed as a Driver Safety instructor assigned to the
Lake Jackson/Tallahassee Post Office, not the Quincy facility.” 	Id. 	He
asserted that Mr. Feliciano’s “presence and conduct at the Quincy facility
were outside the scope of his employment and were not performed in
furtherance of USPS Driver Safety Instruction.” 	Id.
Plaintiff simultaneously filed a motion to compel limited discovery
concerning Mr. Feliciano’s scope of employment. ECF No. 17. That
motion was eventually granted, 2 ECF No. 24, over Defendant’s opposition,
ECF No. 23.
Plaintiff has now filed a supplemental memorandum in support of his
challenge to the Government’s scope of employment certification. ECF No.
25. He contends the following facts are “undisputed.” 	Id. at 2.
First, Plaintiff says that in April 2025, Jose Feliciano’s “official duty
station was the Lake Jackson/Tallahassee Post Office.” ECF No. 25 at 2.
The attached “Notification of Personnel Action” does not clearly support
2 Delay was due to the lapse in appropriations which required staying this case.
See ECF Nos. 13-14, 22.
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Plaintiff’s assertion because only a code (11-4351) is listed for the duty
station, id at 7, but Defendant has not otherwise challenged that statement.
Second, Plaintiff contends that Defendant did not produce a
temporary duty order or travel authorization for Mr. Feliciano. ECF No. 25
at 2. Plaintiff attached a copy of his discovery request in support, ECF No.
25 at 9, which asked for travel authorization or documentation showing
“permission to perform duties at the Quincy Post Office during April 7-11,
2025.” The response to that request advised: “Defendant is working on
determining if there are any responsive documents and will supplement this
response.” 	Id.
Third, Plaintiff states that no driver safety training or instruction
occurred at the Quincy Post Office during the relevant time period. 	Id. at 2.
Further, Plaintiff argued that the disposal of his personal property “was
unrelated to any Driver Safety Instructor function or USPS raining mission.”
Id. 	Thus, Plaintiff contends that the “record establishes that Mr. Feliciano’s
presence and conduct at the Quincy Post Office were not undertaken in
furtherance of USPS business and cannot support the Government’s
certification.” ECF No. 25 at 4.
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Defendant argues that Plaintiff’s “view of the issue . . . is too narrow.”
ECF No. 26 at 1-2. Defendant points out that “Mr. Feliciano’s presence at
the Quincy Post Office was authorized by the Quincy Postmaster.” 	Id. at 2.
Furthermore, Mr. Feliciano was authorized to clean out space at the Post
Office for his use as a workspace. 	Id.
Defendant relies upon the declaration of Postmaster Jennifer Lanier
to support the scope of employment certification. ECF No. 23-1; ECF No.
25 at 12-13. Jennifer Lanier is the Postmaster for the Post Office in
Quincy, Florida, and manages the operations of that office. ECF No. 23-1
at 1. She said that Mr. Jose Feliciano is employed as a Driving Safety
Instructor for the United States Post Office. 	Id. 	He came to the Quincy
office “seeking a workspace” because his workspace at the Lake Jackson
Post Office “was tight,” and the Quincy location was “closer to his home.”
Id. 	Postmaster Lanier told Mr. Feliciano that he “could use the unused Bulk
Mail Entry Unit ('BMEU’) area” which was not used for their operations, but
the space would need “to be cleaned up.” 	Id. at 2. The Postmaster
directed another employee to assist Mr. Feliciano in “sorting and cleaning”
out the room. 	Id.
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Postmaster Lanier added that Plaintiff “did not have permission” to
store “any personal items” at the Quincy Post Office. 	Id. 	“More than a
month prior to the alleged incident,” she instructed Plaintiff “to remove his
personal items from the” Post Office. 	Id. 	The Postmaster was unaware
that Plaintiff had continued to store “personal items in the BMEU area after
[she had] instructed him to remove any personal items.” 	Id.
The Supreme Court held in Osborn v. Haley, 549 U.S. 225, 127 S.
Ct. 881, 166 L. Ed. 2d 819 (2007), that the Attorney General’s certification
is “‘conclusive’ as to the federal forum’s jurisdiction,” and § 2679(d)(2)
“leaves the district court without authority to send a certified case back to
the state court” from which it was removed. 3 Osborn, 549 U.S. at 243-44,
127 S. Ct. at 895. Even so, the Court also held that the Government’s
scope of employment certification “is reviewable” by the Court. Lamagno,
515 U.S. at 420, 424, 115 S. Ct. at 2229, 1231 (noting that “when a
Government official’s determination of a fact or circumstance—for example,
3 Put simply, “when the Attorney General certifies scope of employment, his
certificate ‘conclusively establish[es] scope of office or employment for purposes of
removal.’” Osborn, 549 U.S. 225 at 241, 127 S. Ct. at 894 (quoting § 2679(d)(2)).
However, if the scope-of-employment certification is found to be incorrect, the case will
not be remanded to state court; the federal court will be established as the “forum to
adjudicate the case.” 549 U.S. at 242, 127 S. Ct. at 894.
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“scope of employment”—is dispositive of a court controversy, federal courts
generally do not hold the determination unreviewable.”).
In this case, there is no dispute between the parties that Jose
Feliciano is an employee of the United States Postal Service. The only
issue is whether he “acted with the scope” of that employment during the
week of April 7-11, 2025, when he disposed of Plaintiff’s personal property
which was located in the Quincy, Florida, Post Office. ECF No. 17 at 2.
A challenge to the government’s scope of employment certification is
subject to de novo review. Omnipol, A.S. v. Multinational Def. Servs., LLC,
32 F.4th 1298, 1305 (11th Cir. 2022) (citing to S.J. & W. Ranch, Inc. v.
Lehtinen, 913 F.2d 1538, 1543 (11th Cir. 1990)). The “certification serves
as prima facie evidence that the conduct at issue occurred within the scope
of employment.” Omnipol, 32 F.4th at 1305 (quoting Lehtinen, 913 F.2d at
1543). “[T]he burden of proving that an employee acted outside the scope
of employment is on the plaintiff.” Flohr v. Mackovjak, 84 F.3d 386, 390
(11th Cir. 1996) (quoted in Mullane v. Moreno, No. 21-13468, 2025 WL
1386666, at *1 (11th Cir. May 14, 2025)); see also Omnipol, 32 F.4th at
1305. “If a plaintiff successfully challenges the Attorney General’s
certification,” the result is not to remand the case to federal court, but to
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resubstitute the individual defendant in the action. Mullane, 2025 WL
1386666, at *1 (citing Lamagno, 515 U.S. at 434-35).
“The question of whether an employee acted within the scope of [his]
employment for purposes of § 2679(d)(1) “is an issue governed by the law
of the state where the incident occurred.” 32 F.4th at 1305 (quoting
Lehtinen, 913 F.2d at 1542). Because the incident occurred in Florida,
Florida law governs the scope of employment issue. Hunter v. United
States, 825 F. App’x 699, 701 (11th Cir. 2020).
“Under Florida law, the conduct of an employee is considered within
the scope of employment when it (1) is of the kind the employee is hired to
perform, (2) occurs substantially within the time and space limits authorized
or required by the work to be performed, and (3) is activated at least in part
by a purpose to serve the master.” Sussman v. Fla. E. Coast Props., Inc.,
557 So. 2d 74, 75-76 (Fla. 3d DCA 1990) (cited in 32 F.4th at 1306).
“Stated another way, the issue is ‘whether the employee was doing what
his employment contemplated.’ ” Mullane, 2025 WL 1386666, at *5.
Here, the Postmaster authorized Mr. Feliciano’s presence at the
Quincy Post Office. The activities of Mr. Feliciano occurred within the
confines of that Office, and cleaning out the room was of service to the
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Postmaster. While Mr. Feliciano was not actively engaged in driver
instruction or training, he was preparing a work space where he could
perform his job. Mr. Feliciano’s activities were not those of a civilian, postal
customer, or non-employee. The removal of property in the room was
pursuant to an employment direction, not a personal diversion. Put simply,
cleaning out the room and disposing of property that did not belong in that
room was an action undertaken “to serve the master.” The Court
concludes that Mr. Feliciano was acting within the scope of his employment
by the United States Post Office and pursuant to the direction of the
Postmaster. Therefore, the Plaintiff’s opposition to Defendant’s motion to
substitute 4 and request for judicial review of the certification, ECF No. 15, is
rejected.
Motion to Dismiss, ECF No. 9
As noted above, the United States filed a motion to dismiss for lack of
jurisdiction. ECF No. 9. Plaintiff was given until December 22, 2025, to file
a response if he opposed the motion. ECF No. 22. 5 Plaintiff’s response to
4 Defendant’s motion to substitute, ECF No. 6, was granted. ECF No. 12.
5 The December deadline was the third deadline given to Plaintiff to respond to
the motion to dismiss after the stay entered in this case was lifted. ECF No. 22.
Plaintiff was originally directed to respond to the motion to dismiss by September 22,
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the motion to dismiss was combined with his motion for judicial review of
Defendant’s certification. ECF No. 15. The motion to dismiss is also ready
for a ruling.
As correctly identified by Defendant, this case is a tort case. ECF
No. 9 at 1. Plaintiff seeks to recover costs for the disposal of two of his
personal items - “two 700-watt cold spark machines and eight large
packages of Ti powder.” 	Id. at 1-2. Defendant presents two reasons this
case should be dismissed. 	Id. at 2. “First, this Court lacks subject matter
jurisdiction because the state court lacked subject matter jurisdiction, and
this Court’s jurisdiction is derivative.” 	Id. 	Second, dismissal is required
because Plaintiff “failed to exhaust administrative remedies as required by
28 U.S.C. § 2675.” 	Id.
The exhaustion argument has been considered first. To bring an
FTCA claim, a Plaintiff must have first exhausted administrative remedies.
McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124
L.Ed.2d 21 (1993) (“The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies.”). “To
2025. ECF No. 10. The deadline was extended until October 15, 2025, after Plaintiff
filed his own motion to dismiss, ECF No. 11. ECF No. 12.
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exhaust administrative remedies, ‘the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or registered
mail.’” 28 U.S.C. § 2675(a) (quoted in Caldwell v. Klinker, 646 F. App’x
842, 846 (11th Cir. 2016)). Defendant argues that Plaintiff “has not shown
that he presented his claim to the appropriate agency.” ECF No. 9 at 6.
Plaintiff has not countered that argument and has not filed a copy of his
administrative claim. Accordingly, the motion to dismiss should be granted
for failure to exhaust administrative remedies as required by 28 U.S.C. §
2675(a). 6
6 Federal law would permit Plaintiff to still pursue his administrative claim. The
relevant statute provides that:
(5) Whenever an action or proceeding in which the United States is
substituted as the party defendant under this subsection is dismissed for
failure first to present a claim pursuant to section 2675(a) of this title, such
a claim shall be deemed to be timely presented under section 2401(b) of
this title if--
(A) the claim would have been timely had it been filed on the date the
underlying civil action was commenced, and
(B) the claim is presented to the appropriate Federal agency within 60
days after dismissal of the civil action.
28 U.S.C.A. § 2679(5). Furthermore, § 2401 requires a federal tort claim to be
“presented in writing to the appropriate Federal agency within two years after such claim
accrues . . . .” 28 U.S.C. § 2401(b).
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The jurisdiction issue has also been considered. The FTCA (Federal
Tort Claims Act) is “the exclusive remedy for torts committed by
government employees within the scope of their employment.” Barrett v.
United States Postal Serv., No. 20-60156-CV, 2020 WL 2764265, at *2
(S.D. Fla. Feb. 10, 2020) (citing United States v. Smith, 499 U.S. 160, 173
(1991) (holding that, “with respect to a tort committed by ‘any employee of
the Government’ within the scope of employment, the FTCA provides the
exclusive remedy”); see also 28 U.S.C. § 2679. Furthermore, “a plaintiff
cannot proceed ‘against the federal agencies or employees in their own
names.’” Caldwell v. Klinker, 646 F. App’x 842, 846 (11th Cir. 2016)
(quoted in Barrett, 2020 WL 2764265, at *2). A federal court has “exclusive
jurisdiction” over FTCA claims. 28 U.S.C. § 1346(b)(1).
“[W]hile this Court may have had jurisdiction over this case had it
been filed here in the first instance, the ‘jurisdiction of the federal court on
removal is, in a limited sense, a derivative jurisdiction.’” Lambert Run Coal
Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922) (quoted in 2020 WL
2764265, at *2). “If the state court lacks jurisdiction of the subject-matter or
of the parties, the federal court acquires none, although it might in a like
suit originally brought there have had jurisdiction.” Lambert Run Coal Co.,
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258 U.S. at 382, 42 S.Ct. 349 (quoted in Reynolds v. Behrman Cap. IV
L.P., 988 F.3d 1314, 1320 (11th Cir. 2021)); see also Freeman v. Bee
Mach. Co., 319 U.S. 448, 451, 63 S. Ct. 1146, 1148, 87 L. Ed. 1509 (1943)
(explaining the Lambert decision as holding “that defects in the jurisdiction
of the state court either as respects the subject matter or the parties were
not cured by removal”).
The Eleventh Circuit explained subsequent changes made by
Congress to the “derivative jurisdiction” doctrine in Reynolds v. Behrman
Cap. IV L.P., 988 F.3d 1314, 1321 (11th Cir. 2021) (discussing 1985 and
2002 amendments to § 1441). Importantly, Congress added § 1441(f) to
specifically address “derivative removal jurisdiction,” and that statute shows
that the derivative jurisdiction doctrine has been abrogated in part.
“The court to which a civil action is removed under this section
is not precluded from hearing and determining any claim in
such civil action because the State court from which such civil
action is removed did not have jurisdiction over that claim.”
28 U.S.C. § 1441(f). Courts have concluded that Congress abrogated the
derivative removal doctrine “for proceedings removed under the general
removal statute, see 28 U.S.C. § 1441(f), but the doctrine still applies to
proceedings removed under § 1442, see Rodas v. Seidlin, 656 F.3d 610,
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615–16 (7th Cir. 2011).” Conklin v. Kane, 634 F. App’x 69, 73 (3d Cir.
2015); see also Lopez v. Sentrillon Corp., 749 F.3d 347, 351 (5th Cir.
2014), as revised (Apr. 28, 2014) (finding that the 2002 amendment to the
statute and the addition of the “new § 1441(f) limits the abrogation of the
derivative jurisdiction doctrine to cases removed under 28 U.S.C. § 1441”).
This case was removed pursuant to 28 U.S.C. § 1442 permitting
actions commenced against a federal officer or agency. Thus, the
derivative jurisdiction doctrine applies, and this Court lacks subject matter
jurisdiction over this case. 	See Barrett, 2020 WL 2764265, at *2
(dismissing action removed under § 1442 pursuant to the “derivative
jurisdiction” doctrine); Goodnow v. Third Cong. Dist. of Fla., No.
1:20-CV-257-RH-GRJ, 2021 WL 2004811, at *4 (N.D. Fla. Mar. 17, 2021),
report and recommendation adopted, No. 1:20cv257-RH-GRJ, 2021 WL
2002439 (N.D. Fla. May 19, 2021). The motion to dismiss, ECF No. 9,
should also be dismissed for lack of subject matter jurisdiction.
RECOMMENDATION
It is respectfully RECOMMENDED that Defendant’s motion to
dismiss, ECF No. 9, be GRANTED, that all other motions be DENIED, and
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this case be DISMISSED without prejudice for failure to exhaust
administrative remedies and lack of subject matter jurisdiction.
IN CHAMBERS at Tallahassee, Florida, on February 11, 2026.
S/ 	Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific written
objections to these proposed findings and recommendations. 	Fed. R.
Civ. P. 72(b)(2). A copy of the objections shall be served upon all other
parties. 	A party may respond to another party’s objections within
fourteen (14) days after being served with a copy thereof. Fed. R. Civ.
P. 72(b)(2). 	Any different deadline that may appear on the electronic
docket is for the Court’s internal use only and does not control. 	If a
party 	fails 	to 	object 	to 	the 	Magistrate 	Judge’s 	findings 	or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge on
appeal the District Court’s order based on the unobjected-to factual and
legal conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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