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Hammer v. Federal Public Defender Organization of Eastern District of California

United States District Court, S.D. California

June 22, 2017

BRIAN HAMMER, Plaintiffs,


          Barry Ted Moskowitz, Chief Judge United States District Court.

         On August 30, 2016, Plaintiff Brian Hammer filed a complaint (“Complaint”) against Defendants Federal Public Defender Organization of the Eastern District of California, Does 1-50 (“Federal Public Defender”) and the United States of America (“United States”). Defendant United States moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 11.) For the reasons discussed below, Defendant United States' motion is GRANTED.

         I. BACKGROUND

         On or about March 31, 2003, Plaintiff was found guilty of mail and wire fraud in the Eastern District of California, was subsequently sentenced to 36 months in prison, and ordered to pay restitution in the amount of $35, 000. (ECF Nos. 1-2, Compl. ¶ 16.) However, Plaintiff contends that he should not have been required to pay any restitution because Plaintiff's father had previously settled with the victims in state court in May of 2002. Id. at ¶ 17. Plaintiff believes that the previous settlement was in “complete recompense” for his victim's losses and that the “related settlement offsets were incorrectly entered in the restitution sentencing table.” (ECF No. 19, Reply in Response to Motion at 8.) Despite Plaintiff's belief, in August 2014 the U.S. Attorney's Office in the Eastern District of California sent Plaintiff a demand notice for $37, 380. (Compl. ¶ 18). Plaintiff attempted three separate times to correct what he believed to be a “restitution error, ” but was unable to do so. Id. at ¶ 20. Plaintiff then contacted The Federal Public Defender's office seeking assistance in resolving the matter.

         In February 2015, Magistrate Judge Carolyn K. Delaney appointed Defendant Federal Public Defenders to represent Plaintiff pursuant to 18 U.S.C. §3006A, and did so under Plaintiff's original case number. (Compl. at Ex. 1.) However, the Federal Public Defenders withdrew from representation four months later, claiming it could not “provide [Plaintiff] the assistance he desires.” (Compl. at Ex. 2.) Plaintiff then initiated the present action against Defendants Federal Public Defender and the United States.

         The core of Plaintiff's argument is Defendant Federal Public Defender negligently and incompetently represented Plaintiff in correcting the 2003 restitution order. (Compl. ¶¶ 22, 24.) Plaintiff contends that the Federal Public Defender “knowingly and willfully…failed to acknowledge their mistakes” made during the course of representation, and their actions are “in violation of their express and implied duties” pursuant to the legal services agreement and public policy. (Compl. ¶ 24.)

         Both Defendants Federal Public Defender and the United States brought separate motions to dismiss Plaintiff's Complaint. The Court now considers United States' motion to dismiss.

         II. DISCUSSION A. Standards:

         1. FRCP 12(b)(1) - Lack of Subject Matter Jurisdiction:

         Rule 12(b)(1) provides a party may move to dismiss a complaint that “lack[s]…subject-matter jurisdiction.” Fed.R.Civ.P.12(b)(1). A Rule 12(b)(1) attack on subject matter jurisdiction “may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (quoting White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial challenge, the movant argues that the allegations asserted in the complaint are “insufficient on their face to invoke federal jurisdiction, ” whereas in a factual attack, the movant challenges the truth of the allegations that “would otherwise invoke federal jurisdiction.” Id. at 1039. When the attack is facial, as it is in the instant matter, the “court must accept the allegations as true and must draw all reasonable inferences in the plaintiff's favor.” Romero v. Securus Technologies, Inc., 2016 WL 6157953, at 2 (S.D. Cal. Oct. 24, 2016) (quoting Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004).) However, as the federal courts are of limited jurisdiction, the burden of proving that an action lies within this limited jurisdiction “rests upon the party asserting jurisdiction, ” which in the present case is the Plaintiff. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (see also McNutt v. General Motors Acceptance Corp, 298 U.S. 178, 182-183 (1936).)

         2. Sovereign Immunity:

         The concept of sovereign immunity, which the Supreme Court has characterized as an “axiom of our jurisprudence, ” is the idea that the United States cannot be sued unless it has specifically consented. Price v. United States, 174 U.S. 373, 375-76 (1899). The presence of such consent is a “prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206 (1983) (see also United States v. Sherwood, 312 U.S. 584, 586 (1941).) For the United States to consent to suit, a waiver of sovereign immunity must be unequivocally expressed by Congress, and any conditions Congress attaches to a waiver of sovereign immunity “must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Accordingly, one must examine the terms and extent of the consent itself to “define [the] court's jurisdiction to entertain the suit.” Mitchell, 463 U.S. at 538.

         3. Federal Tort Claims Act:

         The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) and 20 U.S.C. §§ 2671-2680, was first adopted by Congress in 1946. The purpose of the FTCA is to allow recovery for certain tort claimants who are the victims of governmental negligence where such claims would normally be barred by sovereign immunity. E.g., Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955); Lehner v. United States, 685 F.2d 1187, 1189 (9th Cir. 1982). The FTCA permits the exclusive remedy of money damages for ...

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