United States District Court, E.D. California
GRACIELA M. CONTRERAS, Plaintiff,
THE CALIFORNIA NATIONAL GUARD, et al., Defendants.
TROY L. NUNLEY, District Judge.
This case was on calendar on January 17, 2014 for a hearing on a motion to dismiss filed by the U.S. Department of the Army and John McHugh, Secretary of the Army (collectively "defendants"). Chi Soo Kim, Assistant United States Attorney, appeared for defendants; R. Parker White appeared for Graciela Contreras ("plaintiff"). After considering the parties' arguments, the court GRANTS the motion.
On July 18, 2013 plaintiff filed a complaint against the California National Guard (the "Guard"),  the U.S. Department of the Army and John McHugh, alleging three claims stemming from plaintiff's termination from her employment with the Guard: (1) wrongful termination in violation of public policy against racial and disability discrimination in the workplace; (2) intentional infliction of emotional distress; and (3) harassment. ECF No. 1. She alleges generally that she was employed by the Department of the Defense for twenty-nine years, most recently as an Equal Employment Specialist, GS-0260-09, but that on August 2, 2012, defendants terminated her employment because of her disability and race. Id. ¶¶ 8, 10, 14. Specifically, on July 23, 2012, plaintiff was notified she had to report to duty on August 2, 2012 with a medical clearance from her doctor. Id. ¶ 22. She notified her supervisor she would need a two-week extension, as her doctor had recently moved from the area. Id. When she reported for duty on August 2, she was terminated for failure to bring a medical clearance. Id. ¶ 23.
On November 8, 2013, defendants filed a motion to dismiss for lack of subject matter jurisdiction, arguing that (1) the United States has not waived its sovereign immunity for the state law claims; (2) plaintiff cannot bring a tort claim based on facts that would support claims under Title VII or the Rehabilitation Act ("RA"); (3) plaintiff never submitted an administrative tort claim to the army and so cannot pursue claims under the Federal Tort Claims Act ("FTCA"); (4) plaintiff has not exhausted her claim of discriminatory termination because she voluntarily withdrew those claims from the EEO process; and (5) the Civil Service Reform Act ("CSRA") precludes judicial review. ECF No. 10 at 3. The court agrees with defendants that plaintiff cannot bring any claims under the FTCA, Title VII or the RA and so does not reach the preemptive effect, if any, of the CSRA.
II. STANDARD: MOTION TO DISMISS/LACK OF SUBJECT MATTER JURISDICTION
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377-78 (1994). Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1983). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming all the allegations are true and construing the complaint in the light most favorable to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
By contrast, in a factual attack, the challenger provides evidence that an alleged fact is false resulting in a lack of subject matter jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "Once the moving party has converted 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." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
III. SOVEREIGN IMMUNITY AND THE FEDERAL TORT CLAIMS ACT
Plaintiff asserts claims for wrongful termination in violation of public policy, intentional infliction of emotional distress and harassment. It is not clear there is a common law tort of harassment in California; plaintiff's claim is based on her termination for failure to provide a medical clearance and thus appears to be a claim of employment discrimination.
"In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity....'" Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). The doctrine, which protects not only the United States but its agencies and officials from suit, is jurisdictional. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (" Meyer "); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) ("The doctrine of sovereign immunity applies to federal agencies and federal employees acting within their official capacities."). The party who sues the United States bears the burden of demonstrating a waiver of sovereign immunity. Holloman, 708 F.2d at 1401.
Plaintiff argues "defendant has failed to show... whether Defendants were acting under color of state or federal law" and so dismissal is not proper. Opp'n, ECF No. 12 at 3. She cites to Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986), which considered whether "Air National Guard ("ANG") technician supervisory personnel and the New Jersey Adjutant General act under color of state law for purposes of 42 U.S.C. § 1983... when participating in personnel decisions resulting in the dismissal of ANG technicians." Id. at 387. Johnson did not consider, much less resolve, whether there was a waiver of sovereign immunity for state-law tort claims brought against a federal agency and the head of that agency acting in his official capacity. Moreover, as plaintiff has not brought a civil rights claim, the question whether the federal defendants could be deemed to have acted under color of state law has no relevance to the resolution of the jurisdictional issues presented by the motion to dismiss.
Defendants recognize that the FTCA provides a limited waiver of sovereign immunity for certain torts committed by federal employees, Meyer, 510 U.S. at 477; 28 U.S.C. §1346(b), but argue plaintiff has not exhausted administrative remedies under the Act. Exhaustion of administrative remedies is a jurisdictional prerequisite to an FTCA suit in federal court. Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (stating that a tort claimant cannot bring suit against the United States "without first filing [his] claim with an appropriate federal agency and either receiving a conclusive denial... or waiting for six months to elapse without a final disposition of the claim") (internal quotation marks & citation omitted); Holloman, 708 F.3d at 1402 (when claimants did not file administrative claim, the FTCA's "waiver of sovereign immunity is not available to them").
Defendants have presented the declaration of Lorenzo Ferguson, the Chief of the Army's Operations and Records Branch. Decl. of Lorenzo Ferguson, ECF No. 10-2 ¶ 1. Ferguson avers he has access to records of all claims, including FTCA claims, for which the Army has investigative responsibility and his search of those records did not disclose an administrative claim under the FTCA filed by plaintiff. Id. ¶¶ 1-2. Plaintiff has not presented any evidence demonstrating any efforts to exhaust and therefore cannot pursue her claims against the Army and Secretary McHugh. Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1254 (9th Cir. 1997) ...