Opinion
CV-F-05-1095 OWW SMS.
July 31, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. 11)
I. INTRODUCTION
United States Department of Veterans Affairs ("Defendant") moves to dismiss the complaint of Cathy Pacilli ("Plaintiff") pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 11, filed April 17, 2006.) Plaintiff opposes the motion. (Doc. 14, filed May 12, 2006.)
II. FACTUAL AND PROCEDURAL HISTORY
On August 25, 2005, Plaintiff filed this lawsuit against Defendant, her former employer, alleging she had been mistreated during her employment. She seeks money damages.
Plaintiff's complaint alleges as follows. (See Doc. 1, Compl.) Defendant employed Plaintiff in the psychiatric ward of a hospital for veterans in Fresno, California. (Id. at 1:18-19.) In 2003, Plaintiff became concerned that administering the drug Bupernex to patients addicted to heroin, morphine, and methadone was dangerous and unlawful. (Id. at 1:22-27.) She was concerned that such use could result in injury or death to patients. (Id. at 1:25-27.)
Plaintiff stated her concerns to members of Defendant's staff, including supervisors of administrative personnel. (Id. at 2:1-3.) Before Plaintiff raised her concerns, her job performance and reviews were exemplary. (Id. at 2:12-13.) After Plaintiff complained, a supervisor and other members of the medical staff began harassing her. (Id. at 2:6-11.) The harassment included hostile meetings, in which supervisors and staff accused her of poor performance, insubordination, and attempting to undermine the authority of the supervisory staff. (Id.) Defendant's supervisory employees began informally investigating Plaintiff to determine whether she should be disciplined. (Id. at 2:14-17.)
Defendant, at some point, engaged in a course of conduct directed to defame and shame her. (Id. at 3:6-10.) The defamation included disparagement of her character in the community, including her mental and emotional stability, her ability to function as an employee, and her ability to function in a work environment. (Id.)
On October 3, 2003, security personnel met Plaintiff as she arrived for work and told her she could not enter the premises. (Id. at 2:18-19.) They told her an investigation was underway and that she might be allowed to return to work when it was completed. (Id. at 2:19-20.) During October, November, and December of 2003, Plaintiff was informed that her employment was uncertain and an investigation was ongoing. (Id. at 2:21-23.) Based on economic necessity, Defendant's harassment, threats of termination, and a fear of further sanctions stemming from the investigation, Plaintiff terminated her employment with Defendant and sought alternative employment. (Id. at 2:24-28.)
Defendant has moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. (Doc. 11.) Defendant contends that the United States has not waived its sovereign immunity over Plaintiff's claims based on reprisals for whistleblowing activity, tort law, and the United States Constitution. (Id. at 8:11-13:15.) Defendant also argues that Plaintiff has failed to state a cause of action for defamation. ( Id.)
Plaintiff's opposition argues that Defendant is estopped from asserting that sovereign immunity bars Plaintiff's claims because of certain representations a member of the Office of Special Counsel made to her. (Doc. 14 at 1:26-2:3.) Plaintiff also claims that she can amend her complaint to state other claims over which this court will have subject matter jurisdiction. ( Id. at 2:4-13.)
On May 22, 2006, the motion was heard. Plaintiff and her counsel of record did not attend. In counsel's place, another lawyer appeared who was not prepared to discuss the merits of the motion. The court directed Plaintiff to file a supplemental brief, no later than June 1, 2006, explaining why this court has subject matter jurisdiction over Plaintiff's claims. Plaintiff has filed no additional briefing.
III. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction places the burden on the plaintiff to prove that the court has jurisdiction to decide the claim. Thornhill Pub. Co. v. Gen. Tel. Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Challenges to subject matter jurisdiction under Rule 12(b)(1) come in two forms: facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack on subject matter jurisdiction, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. Where the defendant makes a factual attack on jurisdiction, the district court can properly review evidence beyond the face of the complaint without converting the motion into a motion for summary judgment. Id. "If the moving party converts `the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.'" Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Where a court evaluates a factual attack, "[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims." Thornhill, 594 F.2d at 733. Here, Defendant relies on extrinsic evidence in the form of the declaration of Donald Philips. Plaintiff does not dispute that the motion is a factual attack on subject matter jurisdiction. Nor does Plaintiff provide any affidavits or other evidence supporting the court's subject matter jurisdiction
"The doctrine of sovereign immunity precludes suit against the United States without the consent of Congress; the terms of its consent define the extent of the court's jurisdiction." Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990). Sovereign immunity extends to the United States government as well as its agencies. FDIC v. Meyer, 510 U.S. 471, 475 (1994). A waiver of the United States' immunity "`cannot be implied but must be unequivocally expressed.'" Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1983)). The plaintiff bears the burden of demonstrating an unequivocal waiver. Id.
IV. LEGAL ANALYSIS
A. Plaintiff's Showing
1. Waiver By Estoppel
Plaintiff only states one ground for subject matter jurisdiction in her three-page opposition. Plaintiff contends that Defendant is estopped from asserting that she has failed to exhaust administrative remedies because a member of the Office of Special Counsel ("OSC") advised her she could sue in this court.
Neither the government's attorney nor an officer of the United States may waive sovereign immunity. Shaw v. United States, 213 F.3d 545, 549 n. 5 (10th Cir. 2000); United States v. Richman (In re Talbot), 124 F.3d 1201, 1205 (10th Cir. 1997); see Lane v. Pena, 518 U.S. 187, 192 (1996). Plaintiff has not cited, nor is there, any statute by which Congress has "unequivocally expressed" an intent to bestow upon the OSC the authority to waive the United States' sovereign immunity. See Cato, 70 F.3d at 1107. Without an unequivocal statutory waiver, any representations by government officers are irrelevant. See Shaw, 213 F.3d at 549 n. 5; Lane, 518 U.S. at 192.
Even if the OSC had the authority to waive the United States' immunity, Plaintiff has not met her burden of demonstrating that the alleged representation occurred. As Defendant has presented the declaration of Donald Philips demonstrating that Plaintiff never filed and pursued the requisite claim nor did she administratively exhaust her claims, Plaintiff now bears the burden to establish subject matter jurisdiction through her own affidavits or other evidence. Wolfe, 392 F.3d at 362.
2. Unpled Claims
Plaintiff does not dispute Defendant's characterization of her claims. In her opposition, Plaintiff emphasizes that she can amend her complaint to state claims for constructive termination based on protected speech activities, civil conspiracy, the First Amendment, and due process, and claims under the California Labor Code. Plaintiff's unsupported assertion that such unpled claims fall under this court's subject matter jurisdiction does not meet her burden to defeat Defendant's motion to dismiss. See Thornhill, 594 F.2d at 733.
B. Whistleblower Protection Act
Defendant contends that this court lacks subject matter jurisdiction over Plaintiff's claims based on Defendant's alleged reprisals for whistleblowing activity. The Whistleblower Protection Act of 1989 (the "WPA") protects federal agency employees from reprisals for whistleblowing activity, such as "disclosing illegal conduct, gross mismanagement, gross wasting of funds, or actions presenting substantial dangers to health and safety." Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) (citing 5 U.S.C. § 2302(b)(8)). An employee claiming to have suffered an unlawful reprisal must bring her claim to the OSC, which then investigates the complaint. Id. (citing 5 U.S.C. § 1214). Following the OSC investigation, the claim can proceed to the Merit Systems Protection Board (the "MSPB"), either with or without the support of the OSC. Id.; see 5 U.S.C. §§ 1221, 1214(a)(3).
If the MSPB issues an initial decision that is unfavorable to the claimant, she has two options. First, before the initial decision becomes final, the claimant may file a petition for review of the initial decision with the MSPB. See Philips Decl. Ex. A at 4. After the initial decision becomes final, the claimant's only remedy is to appeal the MSPB decision to the Court of Appeals for the Federal Circuit. Stella, 284 F.3d at 142 (citing 5 U.S.C. § 7703). Such an appeal must be filed within 60 days after the claimant receives notice of the MSPB's order. 5 U.S.C. § 7703(b)(1). "Under no circumstances does the WPA grant the District Court jurisdiction to entertain a whistle-blower cause of action brought directly before it in the first instance." Stella, 284 F.3d at 142.
Plaintiff does not object to Defendant's characterization of her harassment and termination claims as claims under the WPA. Nor does she dispute the evidence Defendant submitted regarding her WPA claim.
The MSPB dismissed Plaintiff's claims in their entirety in its initial decision issued October 6, 2005. Philips Decl. Ex. A. This decision became final on November 10, 2005, because Plaintiff did not file a petition for review. Philips Decl. ¶ 4. Plaintiff has not filed an appeal to the Federal Circuit. Philips Decl. ¶ 5. The WPA does not permit Plaintiff to file her claim in this court. See Stella, 284 F.3d at 142. The United States' waiver of sovereign immunity permits Plaintiff to proceed only in the manner the statute specifies. See Cato, 70 F.3d at 1107. Accordingly, this court lacks subject matter jurisdiction over plaintiff's WPA claims.
C. Tort Claims
Defendant argues that Plaintiff's tort claims are infirm because she failed to comply with the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (the "FTCA"). The FTCA is a limited waiver of the United States' sovereign immunity that authorizes certain civil tort suits against the government for monetary damages. Vickers v. United States, 228 F.3d 944, 948 (9th Cir. 2000); see 28 U.S.C. §§ 2671- 2680. Compliance with the FTCA scheme allows a plaintiff to bring:
claims for damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Vickers, 228 F.3d at 948-49. Congress designed the FTCA to "prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort." Id. at 949 (citing United States v. Gaubert, 499 U.S. 315, 323 (1991)).
A tort claim against the United States is "forever barred" unless the plaintiff has presented the claim in writing to the agency within two years after the claim accrues. 28 U.S.C. § 2401(b). The plaintiff may proceed with a claim in court only after the agency has issued its final denial or has failed to act on a claim within six months of its submission. Id. Where a plaintiff files a suit without presenting the claim to the agency, the claim is subject to dismissal for lack of subject matter jurisdiction as the administrative claim requirement of 28 U.S.C. § 2675(a) is jurisdictional. Flamingo Indus. v. U.S. Postal Serv., 302 F.3d 985, 995 (9th Cir. 2002), rev'd on other grounds, 540 U.S. 736 (2004).
Plaintiff does not contend that there is a basis for subject matter jurisdiction over her tort claims other than the FTCA. To comply with the FTCA, Plaintiff was required to submit an "SF 95" form to Defendant's Regional Counsel. See 38 C.F.R. § 14.604(a); Philips Decl. ¶ 6. Defendant filed the declaration of Donald Philips, a member of Defendant's office of Regional Counsel in San Francisco, California. Mr. Philips stated that any claim the Plaintiff filed would have been "delivered to and processed by our office." Philips Decl. ¶ 6. The Regional Office has received no such claim. Id. Plaintiff does not contend that she submitted an SF 95 form or provided any other written notice of any tort claim to Defendant before bringing this lawsuit. The evidence that Defendant presented indicating that Plaintiff has failed to comply with the FTCA, combined with Plaintiff's failure to present any contrary evidence, requires that Plaintiff's tort claims be dismissed. See Flamingo, 302 F.3d at 995 (affirming district court's dismissal of tort claim based on declaration of agency official that the claim was unexhausted and plaintiff's failure to proffer evidence to the contrary). Accordingly, Plaintiff's tort claims are dismissed for lack of subject matter jurisdiction. D. Constitutional Claims
The court also lacks subject matter jurisdiction over any claims against the United States for libel, slander, or misrepresentation. 28 U.S.C. 2680(h); Siegert v. Gilley, 500 U.S. 226, 233 (1991).
Plaintiff's complaint seeks damages for infringement of her due process and First Amendment rights. Where the basis for alleged constitutional rights violations arises out of alleged tortious conduct, the claims cannot survive failure to satisfy the FTCA. Roundtree v. United States, 40 F.3d 1036, 1038 (9th Cir. 1994). Because Plaintiff has failed to satisfy the FTCA, Plaintiff's claims for violations of her constitutional rights are dismissed for lack of subject matter jurisdiction.
E. Administrative Procedure Act
The Administrative Procedure Act, 5 U.S.C. § 702 et seq. (the "APA"), waives sovereign immunity for actions against the United States and its agencies brought under federal question jurisdiction to the extent that relief other than monetary damages is sought. Blue v. Widnall, 162 F.3d 541, 544-45 (9th Cir. 1998); see 5 U.S.C. § 702.
The complaint does not seek relief other than money damages, though it does request "[a]ny further relief the Court deems proper." (Doc. 1, Compl. at 3:19.) Plaintiff did not express in her opposition her intent to seek relief other than money damages. Even if Plaintiff were to seek nonmonetary relief related to the personnel actions she faced, the APA would not confer jurisdiction over her claim. This is because "the general judicial review provisions of the APA never confer jurisdiction to review federal personnel actions." Blue, 162 F.3d at 545. The Ninth Circuit has concluded that the Civil Service Reform Act of 1978 evinces Congress's intent to preclude such judicial review under other provisions. Id.; see Veit v. Heckler, 746 F.2d 508, 509-10 (9th Cir. 1984); 5 U.S.C. §§ 4301- 4305, 5401-5405. Therefore, the APA does not demonstrate that Congress has waived sovereign immunity regarding Plaintiff's constitutional claims.