Court Dismisses Baraka Defamation Claims Under Westfall Act

Court Dismisses Baraka Defamation Claims Against Habba on Westfall Act Grounds

A federal judge in New Jersey dismissed Newark Mayor Ras Baraka's suit against Alina Habba and Ricky J. Patel on September 4, 2026. A Westfall Act certification converted his defamation and false light claims into Federal Tort Claims Act claims, which the court then dismissed for lack of jurisdiction.

Information last verified on September 6, 2026.

Status: Motion to dismiss granted. In Baraka v. Habba, Case No. 2:25-cv-06846 (BRM) (JBC) (D.N.J.), Judge Brian R. Martinotti granted the defendants' motion (ECF No. 23) and dismissed Counts I through IV without prejudice, giving Baraka twenty-one days to file a third amended complaint. The opinion (ECF No. 36, filed September 4, 2026) is marked NOT FOR PUBLICATION and is not binding precedent. The case is not finally resolved.

Jurisdiction scope: This ruling comes from the U.S. District Court for the District of New Jersey and applies New Jersey agency law to the scope-of-employment question, within Third Circuit precedent. It is an unpublished district court opinion, so its reasoning is persuasive at most, including inside New Jersey. Defamation rules for private defendants vary state by state.

What Happened

Baraka is the mayor of Newark. During the relevant period, Habba was the interim United States Attorney for the District of New Jersey, and Patel was the Special Agent in Charge of the Newark Division of Homeland Security Investigations, part of the Department of Homeland Security (slip op. at 2).

According to the second amended complaint, which the court accepted as true for most purposes, three members of the U.S. House of Representatives arrived at Delaney Hall, an ICE detention center in Newark owned and operated by the GEO Group, on May 9, 2025 for an inspection. Congresswoman LaMonica McIver invited Baraka to a post-inspection press conference outside the facility (slip op. at 2 to 3).

Baraka arrived at 1:42 PM. Eight minutes later, the complaint alleges, the GEO guard at the gate invited him inside the fence, saying it would "calm the crowd" (slip op. at 3). He waited inside the fence from 1:50 PM to 2:33 PM, when Patel told him to leave. Baraka said he was leaving, and Patel replied, "Okay, go." At 2:44 PM, five minutes after Baraka left the property, roughly twenty DHS agents arrested him, and the complaint alleges Patel ordered agents to "take him down" (slip op. at 3).

At 3:05 PM, before a complaint had been filed and before Baraka had been photographed and fingerprinted, Habba posted a statement on her personal social media account:

The Mayor of Newark, Ras Baraka committed trespass and ignored multiple warnings from Homeland Security Investigations to remove himself from the Ice detention center in Newark, New Jersey this afternoon. He has willingly chosen to disregard the law. That will not stand in this state. He has been taken into custody. NO ONE IS ABOVE THE LAW.

(slip op. at 4, quoting the second amended complaint.) The same day, Habba gave a telephone interview to Fox News in which she said, among other things, that Baraka "refused to leave, was put under arrest inside the facility, walked out when he was told he was under arrest, and then was cuffed" (slip op. at 4). Baraka alleges she knew those statements were false when she made them (slip op. at 4 to 5).

Baraka was held in federal custody for over five hours and had a virtual initial appearance that evening. Habba moved to dismiss the trespass charge, and U.S. Magistrate Judge André M. Espinosa granted the motion on May 21, 2025, remarking from the bench that "[t]he hasty arrest of . . . Mayor Ras Baraka, followed swiftly by the dismissal of these trespassing charges a mere [thirteen] days later, suggests a worrisome misstep by . . . [the U.S. Attorney's Office]" (slip op. at 5 to 6, quoting the transcript in United States v. Baraka, No. 25-cr-11131 (D.N.J. May 21, 2025), ECF No. 15).

Baraka filed his civil complaint on June 3, 2025 and his second amended complaint on May 8, 2026. It raised four counts: two Bivens claims for false arrest and malicious prosecution against both defendants, and defamation and false light claims against Habba alone in her individual capacity (slip op. at 6 to 7). The defendants moved to dismiss on June 9, 2026. Lawyers Defending American Democracy filed an amicus brief supporting Baraka. The court decided the motion without oral argument under Rule 78(b) (slip op. at 1).

What the Law Actually Says

The mechanism that decided the defamation half of this case is the Westfall Act, formally the Federal Employees Liability Reform and Tort Compensation Act of 1988, codified at 28 U.S.C. § 2679. It works in three steps, and each step narrows what a plaintiff can do.

Step one: certification and substitution. Section 2679(d)(1) provides that upon certification by the Attorney General that the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose," the suit "shall be deemed an action against the United States" and "the United States shall be substituted as the party defendant." Here, a Director of the Civil Division's Tort Branch issued that certification for Habba's statements about Baraka's arrest and prosecution (slip op. at 12).

Certification is not the end of the inquiry. The court applied Third Circuit law treating the certification as "prima facie evidence that [Habba's] challenged conduct was within the scope of employment," quoting Giordano v. Hohns, 159 F.4th 179, 185 (3d Cir. 2025), which in turn quotes Schrob v. Catterson, 967 F.2d 929, 935 (3d Cir. 1992) (slip op. at 14). The plaintiff carries the burden of coming forward with specific facts to rebut it, and under Schrob a court may resolve the scope question as a matter of law without discovery or a hearing (slip op. at 14 to 15).

Scope of employment is a question of state law where the conduct occurred, per Vanderklok v. United States, 868 F.3d 189, 203 (3d Cir. 2017). New Jersey follows the Restatement (Second) of Agency § 228: conduct is within the scope of employment if it is of the kind the servant is employed to perform, occurs substantially within the authorized time and space limits, and is actuated at least in part by a purpose to serve the master (slip op. at 15 to 16, citing Di Cosala v. Kay, 450 A.2d 508 (N.J. 1982)).

The court found all three elements satisfied. On the first, it reasoned that public communication about crime in the district is part of a head federal prosecutor's role, citing the Justice Manual's provision on senior officials engaging in public communications on social media and Donio v. United States, 746 F. Supp. 500, 506 (D.N.J. 1990), which held that press statements "are authorized as part of a prosecutor's regular responsibilities in administering the law" (slip op. at 16).

On the purpose element, Baraka argued that Habba's partisan statements in the weeks before the arrest showed she acted for personal or political ends. The court rejected that framing because "New Jersey has adopted [the] dual purpose exception, which provides [a] basis for employer liability when [an] employee is furthering [an] employer's business as well as his or her private interests," quoting Carter v. Reynolds, 815 A.2d 460, 467 (N.J. 2003) (slip op. at 19). It concluded that "the facts read in the light most favorable to Baraka suggest Habba had a dual purpose when she issued the statements at issue. Under New Jersey law, that is not enough" (slip op. at 19).

The court was candid about the underlying allegations. It wrote that "Baraka has listed a litany of facts that are, candidly, concerning" (slip op. at 19 to 20), and that "it is surely true that an innocent person may suffer great harm to his reputation and property by being erroneously accused of a crime," quoting Stolt-Nielsen, S.A. v. United States, 442 F.3d 177, 184 (3d Cir. 2006) (slip op. at 20). It still held the conduct within scope, reasoning that "although a federal prosecutor is certainly not employed to defame criminal defendants, if a federal prosecutor like Habba does so while publicly speaking on criminal activity within her jurisdiction, that is not outrageous for purposes of the scope of employment analysis" (slip op. at 20). In a footnote, the court was explicit that it was not ruling on the merits: "Because the Court does not reach the merits of Baraka's libel claim, the Court does not conclusively hold Baraka has sufficiently alleged actual malice" (slip op. at 20 n.15).

The bottom line on step one: "Baraka has failed to rebut the Westfall Certification because he has failed to show that Habba acted outside the scope of her employment" (slip op. at 24), so the United States was substituted and the FTCA governed.

Step two: the FTCA's exhaustion requirement. 28 U.S.C. § 2675(a) bars an action against the United States unless the claimant first presented the claim to the appropriate federal agency and the agency finally denied it in writing, with a six-month non-response option. The Supreme Court held in McNeil v. United States, 508 U.S. 106, 113 (1993), that the FTCA "bars claimants from bringing suit in federal court until they have exhausted their administrative remedies" (slip op. at 13), and the Third Circuit treats exhaustion as jurisdictional and not waivable (slip op. at 25).

Baraka had not pleaded exhaustion, which alone required dismissal for lack of subject matter jurisdiction. The court added in a footnote that "[b]eyond simply failing to plead exhaustion, Baraka has not, in fact, exhausted his administrative remedies," because he did not file an administrative tort claim with the Justice Department until after he commenced suit (slip op. at 25 n.17).

Step three: the intentional tort exception. Even a properly exhausted claim would have run into 28 U.S.C. § 2680(h), which withdraws the FTCA's waiver of sovereign immunity for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." The statute's law enforcement proviso restores FTCA coverage for some of those torts when investigative or law enforcement officers are involved, but libel and slander are not on that list. The court held that "defamation claims are categorically barred by the FTCA because they arise from false statements and must be dismissed," citing Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir. 2000), and it treated false light the same way because that tort "arises out of libel and slander and cannot support liability against the Government" (slip op. at 25, quoting Bohnenkamp v. Whisterbarth, 2021 WL 1600477, at *7 (W.D. Pa. Apr. 23, 2021)).

Notice how this interacts with ordinary state defamation law. Baraka pleaded New Jersey common law torts, and nothing in the opinion questions that the elements a defamation plaintiff must prove under New Jersey's defamation rules would apply to a private defendant who published the same words. What the Westfall Act does is change the identity of the defendant before those elements are ever reached, and once the United States is the defendant, the FTCA's own jurisdictional gates decide the case. The state-by-state defamation rules that would otherwise structure the claim are displaced by federal jurisdictional law, not by any finding about truth or falsity.

The Bivens counts followed a separate path. The court first construed the official capacity claims as claims against federal agencies and dismissed them, because FDIC v. Meyer, 510 U.S. 471, 486 (1994), forecloses Bivens actions against federal entities (slip op. at 26 n.18). On the individual capacity claims, the court applied the Ziglar v. Abbasi, 582 U.S. 120 (2017), framework as narrowed by Egbert v. Boule, 596 U.S. 482 (2022), and held that "this case presents a new context from Bivens" because Habba, an interim U.S. Attorney, and Patel, an HSI Special Agent in Charge, are new categories of defendants compared to the federal narcotics officers in Bivens (slip op. at 28). It then found at least one special factor: "It is apparent that at least one special factor exists. . . . Here, that factor is the availability of an alternative remedy" (slip op. at 30), pointing to the Hyde Amendment and 28 U.S.C. § 1495. Addressing the objection that neither remedy fits an arrestee who was never convicted, the court wrote that "[u]nlike a falsely convicted defendant, Baraka has no remedy, but that does not mean Congress has not created an 'alternative remedy'" (slip op. at 31 n.22), and that the relevant focus is deterrence rather than an individual plaintiff's recovery.

The court did not reach the defendants' remaining immunity arguments, because dismissal of all counts made them unnecessary (slip op. at 32 n.24).

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The striking feature of this opinion is how completely the scope-of-employment question decided a defamation case without anyone examining whether the statements were false. The court accepted, for purposes of the motion, allegations it described as concerning. It quoted the magistrate judge's criticism of the underlying arrest. It declined to hold that actual malice had been adequately pleaded, but it also declined to hold the opposite. None of that mattered to the outcome, because the analysis stopped at the courthouse door marked jurisdiction.

That sequencing is worth understanding on its own terms. In an ordinary defamation case against a private speaker, the fight is over publication, falsity, fault, and damages. In a case against a federal official, the Westfall Act asks a prior question: who is the real defendant? Once a certification is upheld, the answer is the United States, and the United States has not waived immunity for libel and slander. The Editorial Team's observation is that in a case like this one the certification decision can function as the practical merits decision, even though the court framed it purely as a jurisdictional step.

The court also addressed a theory that has surfaced repeatedly in litigation over politically charged prosecutions: that partisan motive pushes an official outside the scope of employment. The opinion rejected it on state agency law grounds, holding that New Jersey's dual purpose rule tolerates mixed motives so long as the employee was actuated at least in part by a purpose to serve the employer. The court also noted a structural concern borrowed from Bobulinski v. Goldman, a D.D.C. decision, that if a plaintiff could defeat certification simply by asserting that defamatory statements do not serve the government's interests, it would be difficult to see when a defamation defendant would ever be within scope (slip op. at 20).

Two details deserve emphasis for readers tracking this area. First, the personal social media account did not carry the weight Baraka placed on it. The court looked at the substance of the posts rather than the account they came from, citing Lindke v. Freed, 601 U.S. 187 (2024), on how blurred the line between official and personal accounts has become (slip op. at 17 to 18). Second, timing did not help either: the court rejected the argument that commenting before charges were formally filed placed the statements outside the temporal limits of the job, reasoning that a U.S. Attorney's responsibilities do not begin only at the charging stage (slip op. at 24).

The Editorial Team notes two limits on how far this opinion travels. It is expressly not for publication, which means it binds no other court and does not bind this one in a future case. And the exhaustion defect was curable in principle: Baraka did file an administrative tort claim, just after commencing suit, and McNeil holds that filing order matters. What the § 2680(h) holding suggests is that exhaustion was not the only obstacle on the defamation counts. We are not predicting any outcome. The court itself left the door open, writing that "[w]hile the Court has reservations regarding Baraka's ability to allege facts that would survive a motion to dismiss, Baraka may file a third amended complaint because it is not clear that an amendment would be futile at this stage" (slip op. at 32 n.25).

How This Affects You

This case involved a federal officer, so its machinery does not reach most defamation disputes. The Westfall Act and the FTCA apply only where the defendant is a federal employee; where the speaker is a private person, a business, or a state or local official outside any federal employment relationship, the claim is governed by ordinary state defamation law. Anyone comparing situations should start with the identity and employer of the speaker, because that is what determines which body of law even applies.

Three general points follow from the opinion. First, the Westfall Act route applies when the defendant is a federal employee and the Attorney General or a delegate certifies that the challenged conduct fell within the scope of employment. Second, when the United States is substituted into a tort suit, the FTCA's administrative claim process under § 2675(a) runs before the lawsuit, not alongside it, and courts in the Third Circuit treat that ordering as jurisdictional. Third, § 2680(h) leaves libel and slander outside the FTCA's waiver even when the law enforcement proviso covers other intentional torts.

For readers whose situation involves a private defendant rather than a federal one, our explainers on how defamation suits generally proceed and on the heightened fault standard that applies to public figures cover the framework this opinion never had to reach. Deadlines, privileges, and fault standards differ by state, and a licensed attorney in the relevant jurisdiction is the appropriate source of advice on any specific matter.

Not legal advice. This article reports on an unpublished opinion of the U.S. District Court for the District of New Jersey and on federal statutes as they read on the verification date. It is general information, not legal advice, and it does not create an attorney-client relationship. Defamation law, federal tort claim procedure, and filing deadlines vary by jurisdiction and change over time. Consult a licensed attorney in your state about your own circumstances. Verified September 6, 2026.

Related articles

• Defamation laws by state
• New Jersey defamation laws
• Public figure defamation and the actual malice standard
• Elements of a defamation claim
• How to sue for defamation of character

Last updated: 2026-09-06. This is a developing story; details verified as of 2026-09-06.

Frequently Asked Questions

Did the court decide whether Habba's statements about Baraka were false?

No. The court resolved the case on jurisdictional grounds and did not reach the merits of the defamation claim. In a footnote it stated that because it did not reach the merits of the libel claim, it did not conclusively hold that Baraka had sufficiently alleged actual malice.

What is a Westfall Act certification?

Under 28 U.S.C. 2679(d)(1), the Attorney General or a delegate may certify that a federal employee was acting within the scope of employment when the conduct at issue occurred. On certification, the suit is deemed an action against the United States and the United States is substituted as the defendant. The Third Circuit treats the certification as prima facie evidence of scope, and the plaintiff bears the burden of rebutting it with specific facts.

Why did the defamation and false light claims fail once the United States was substituted?

For two independent jurisdictional reasons. The court found Baraka had not pleaded FTCA administrative exhaustion and, in a footnote, had not exhausted before filing suit. Separately, 28 U.S.C. 2680(h) withdraws the FTCA's waiver of sovereign immunity for claims arising out of libel and slander, and the court treated false light as arising out of those torts.

Does 28 U.S.C. 2680(h) block every intentional tort claim against the federal government?

Not every one. The subsection lists several intentional torts, but its proviso restores FTCA coverage for claims arising out of assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution when investigative or law enforcement officers are involved. Libel and slander are not in that proviso.

Does an official's political motive take conduct outside the scope of employment in New Jersey?

The court held it did not on these allegations. New Jersey follows a dual purpose exception, under which an employee may act within the scope of employment while furthering both the employer's business and private interests. The court found the allegations suggested a dual purpose, which under New Jersey law was not enough to defeat the certification.

Why were the Bivens claims dismissed?

On separate reasoning. The court construed the official capacity claims as claims against federal agencies, which FDIC v. Meyer forecloses. On the individual capacity claims, it held that an interim U.S. Attorney and an HSI Special Agent in Charge are new categories of defendants, making this a new Bivens context, and that the availability of alternative remedies including the Hyde Amendment and 28 U.S.C. 1495 counseled against extending Bivens.

Is the case over?

No. The dismissal was without prejudice and the court gave Baraka twenty-one days from the September 4, 2026 opinion to file a third amended complaint. The court noted it had reservations but could not say amendment would be futile at this stage.

Is this opinion binding on other courts?

No. It is marked NOT FOR PUBLICATION. Unpublished district court opinions are not precedential, though their reasoning may be cited as persuasive authority.