WILSON v. FELICIANO

1
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
RONTARIUS WILSON,
Plaintiff,
v. Case No. 4:25-cv-360-AW-MAF
UNITED STATES OF AMERICA,
Defendant.
_______________________________/
FINAL ORDER
Pro se Plaintiff Rontarius Wilson sued Jose Feliciano in state court. ECF No.
1-1. He alleged Feliciano “dispos[ed] of personal items without knowledge.” Id. The
United States removed the case. ECF No. 1.
Under the Westfall Act, the United States can remove state actions if it
certifies the defendant “was acting within the scope of his office or employment at
the time of the incident.” 28 U.S.C. § 2679(d)(2). This certification is conclusive for
purposes of removal. Id. Based on the United States’ certification, the magistrate
judge substituted the United States as the defendant. Id.; ECF No. 12. However, a
plaintiff can move for judicial review of the certification. De Martinez v. Lamagno,
515 U.S. 417, 434 (1995).
Both the United States and Wilson moved to dismiss. The United States
argued this court lacked jurisdiction for two reasons: faulty derivative jurisdiction
Case 4:25-cv-00360-AW-MAF Document 29 Filed 04/20/26 Page 1 of 5

2
and sovereign immunity. ECF No. 9 at 3-5. Wilson also challenged this court’s
jurisdiction and the Attorney General’s certification. ECF No. 11 at 1.
The magistrate judge construed Wilson’s motion as a motion for judicial
review of the certification. Wilson and the United States filed supplemental briefs.
ECF Nos. 25-26. The magistrate judge then issued a report and recommendation.
ECF No. 28. Neither side filed objections. After review, I now adopt the report and
recommendation in part.
I begin with the certification. While the court “must apply de novo review to
the Attorney General’s scope of employment certification,” the certification itself
“serves as prima facie evidence that the conduct at issue occurred within the scope
of employment.” Omnipol, A.S. v. Multinational Def. Servs., LLC, 32 F.4th 1298,
1305 (11th Cir. 2022). Thus, Wilson has the burden to prove that Feliciano acted
outside the scope of his employment. Id.
Florida law governs the question of whether an employee acted within the
scope of his employment. Id. Under Florida law, an act is within the scope of
employment if the act “is of the kind [the employee] is employed to perform, it
occurs substantially within the time and space limits of employment and it is
activated at least in part by a purpose to serve the master.” Kane Furniture Corp. v.
Miranda, 506 So. 2d 1061, 1067 (Fla. 2d DCA 1987). “Stated another way, the issue
is ‘whether the employee was doing what his employment contemplated.’” Nadler
Case 4:25-cv-00360-AW-MAF Document 29 Filed 04/20/26 Page 2 of 5

3
v. Mann, 951 F.2d 301, 305 (11th Cir. 1992) (quoting Morrison Motor Co. v.
Manheim Servs. Corp., 346 So. 2d 102, 104 (Fla. 2d DCA 1977)).
The pertinent facts are undisputed. The Postmaster attests that she told
Feliciano he could use an area of the Quincy post office as a workspace. ECF No.
23-1 ¶ 3. And she asked a custodian to help Feliciano clean the room. Id. ¶ 4. These
unrefuted assertions establish that Feliciano was acting in the scope of his
employment at the relevant time.
At any rate, Wilson has not met his burden. First, he says that Feliciano’s
“official duty station was the Lake Jackson/Tallahassee Post Office.” ECF No. 25 at
2. But he has not pointed to evidence that proves Lake Jackson/Tallahassee was
Feliciano’s only assigned station. See ECF No. 25 at 7 (identifying Feliciano’s duty
station as “GFA District Craft”); see also id. at 12 (postmaster attestation that she
offered Feliciano a new workspace at the Quincy post office). An employee can
certainly act within the scope of his employment when away from his duty station.
Second, Wilson points to a lack of documentary evidence that authorized Feliciano’s
presence at the Quincy post office. Id. at 3. But the Postmaster’s affidavit provides
evidence of that authorization. And because Wilson has the burden, a lack of
evidence would not help him. Third, Wilson argues the removal of property was
unrelated to Feliciano’s job as a driver safety instructor. Id. But the Postmaster’s
affidavit shows the job connection: he was cleaning out his new workspace. At
Case 4:25-cv-00360-AW-MAF Document 29 Filed 04/20/26 Page 3 of 5

4
bottom, Wilson has failed to prove Feliciano’s conduct occurred outside of the scope
of employment, so certification (and thus substitution) was proper.
After substitution, this lawsuit became one against the United States. 28
U.S.C. § 2679(d)(2). That means sovereign immunity applies. A prerequisite of the
FTCA’s waiver of sovereign immunity is presentment to the appropriate federal
agency. See 28 U.S.C. § 2679(d)(4) (“Upon certification, any action or
proceeding . . . shall proceed in the same manner as any action against the United
States filed pursuant to section 1346(b) of this title and shall be subject to the
limitations and exceptions applicable to those actions.”); see also id. § 2675(a)
(presentment requirement). Because Wilson has not shown that he presented his
claim to the appropriate agency, the court lacks jurisdiction.1
Wilson’s motion for judicial review of certification (ECF Nos. 11, 15) is
DENIED. The United States’ motion to dismiss (ECF No. 9) is GRANTED. The
report and recommendation is adopted to the extent consistent with this order.2 The
1 Wilson does say that he “followed proper procedure under Florida law.” ECF
No. 15 at 4. But because of the United States’ certification and substitution, he also
had to comply with the Federal Tort Claims Act. Wilson may still have an
opportunity to do so. See 28 U.S.C. § 2679(d)(5).
2 Because the exhaustion issue requires dismissal, I do not decide the
derivative-jurisdiction issue. It is not clear that the principle applies in the Westfall
Act context.
Case 4:25-cv-00360-AW-MAF Document 29 Filed 04/20/26 Page 4 of 5

5
clerk will enter a judgment that says, “This case is dismissed without prejudice for
lack of jurisdiction.” The clerk will then close the file.
SO ORDERED on April 20, 2026.
s/ Allen Winsor
Chief United States District Judge
Case 4:25-cv-00360-AW-MAF Document 29 Filed 04/20/26 Page 5 of 5