United States District Court, D. Nevada
March 28, 2014
Bradley Smith, Plaintiff,
United States of America, Defendant.
DEFENDANT'S MOTION TO DISMISS [DOC. 8]
JENNIFER A. DORSEY, District Judge.
Plaintiff Bradley Smith sues the United States Government on a number of legal theories alleging that, during his employment with the Government, his supervisor's hostile treatment induced him to attempt suicide. See Doc. 1. The United States moves to dismiss the entire action under Fed. R. Civ. Proc. 12(b)(1), arguing that Smith's failure to exhaust his administrative remedies deprives this Court of jurisdiction. The Court agrees that it lacks subject matter jurisdiction over Smith's claims as pled and grants Smith leave to amend his complaint.
Smith's allegations stem from his work as a Human Resource Assistant with the U.S. Department of Veterans Affairs, Southern Nevada Healthcare System ("VA"). Doc. 1 at 2. Smith claims that his VA Human Resource Chief, Donald Zurfluh, subjected him to unspecified severe and pervasive harassment and a hostile work environment. Doc. 1 at 2. In response, Smith applied for an "interim relief request" to the VA, seeking transfer from existing current work assignment; before this request was granted, however, Zurfluh's hostile conduct prompted Smith to attempt suicide on October 31, 2012, in his home, "by taking tylenol pm and put[ting] a bag over [his] head, but the bag fell off and [he] woke up the next morning." Id. at 2, 14. Smith was hospitalized in connection with this attempt on that day. Id. at 2. Smith claims that he then filed an Standard Form-95 claim for damage, injury, or death within the agency on December 1, 2012, under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Doc. 1 at 9.
The government has produced five SF-95s that Smith submitted between November 11, 2012, and December 1, 2012,  in which Smith alleged that he suffered negligent infliction of emotional distress. His first SF-95, submitted on November 11, 2012, claims "Employment Negligence" in training, retention, entrustment, and supervision. Doc. 8-1 at 2. His second SF-95, submitted on November 17, 2012, brings claims for negligent confinement, false imprisonment, and first amendment claims for freedom of association. Doc. 8-1 at 14. Smith's third SF-95, submitted on November 18, 2012, alleges negligent misrepresentation and invasion of privacy. Doc. 8-1 at 19. Smith's fourth SF-95, submitted on December 1, 2012, claimed "Conduct unbecoming a federal law enforcement and oversight agency, " for which a Bivens action was "forthcoming." Doc. 8-1 at 23. According to the form, Smith's actions were comprised of a "failure to prevent, investigate, and/or remediate whistle blower retaliation, reprisal, and harassment resulting in the ongoing and continuation of whistle blower retaliation, reprisal, and harassment" of Smith. Id. Smith's fifth and final SF-95 was also submitted on December 1, 2012, and claimed employment negligence "subsequent to consequential Duty of Care Breach" that resulted in his suicide attempt. Doc. 8-1 at 24.
On December 20, 2012, Anita Varna, the VA's Acting Regional Counsel, mailed Smith a letter acknowledging Smith's five SF-95s but denying all of five of the claims, reasoning that "all of [Smith's] allegations are personnel issues and therefore not cognizable under the FTCA. The proper fora for these complaints are the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC)." Doc. 1 at 7-8. The letter also informed Smith that since he had exhausted his administrative remedies, he could "file suit directly under the FTCA, which provides for judicial review when an agency denies an administrative tort claim." Id. at 8.
On January 9, 2013, Smith filed this action, alleging claims of "Employment negligence, " namely negligent supervision and breach of the duty of care (Count 1), and negligent infliction of emotional distress which resulted in his suicide attempt (Count 2). Id. at 3-4. Smith seeks $300, 000 for each of his two counts. Id. at 5-6. The government now moves to dismiss Smith's suit, alleging that he has failed to plead a case within the court's subject matter jurisdiction.
A. Motion to Dismiss
Federal district courts are courts of limited jurisdiction, and "presume that a cause lies outside this limited jurisdiction." Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction,  which may be attacked either facially or factually. In so doing, a litigant may "rely on affidavits or any other evidence properly before the court." When a challenge to subject matter jurisdiction has been properly raised, the opposing party must "present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction."
1. Reliance on Evidence of Other SF-95s
The government attaches all five of the SF-95's that Smith submitted between November 11, 2012 and December 1, 2012, even though Smith attached only one of his December 1, 2012 Sf-95s to his Complaint. See Doc. 8-1. Smith claims that the four additional SF-95s are "immaterial" to his cause of action, so he elected not to reference them in his Complaint. Doc. 10 at 2. In so doing, Smith relies on the rule, developed for Rule 12(b)(6) motions to dismiss for failure to state a claim for which relief can be granted, that a court may "generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice" without converting the motion to one for summary judgment under Rule 12(d).
Smith's reliance is misplaced. When considering a motion to dismiss for lack of subject matter jurisdiction, the Court may "rely on affidavits or any other evidence properly before the court" without converting the motion to one for summary judgment. Extrinsic evidence, in this case documents not referenced in Smith's complaint or attached thereto, is relevant for purposes of ascertaining jurisdiction. Indeed, the December 20, 2012 letter which Smith received from the VA which he claims operated to exhaust his administrative remedies referred and discussed all five SF-95s. See Doc. 1 at 7-8. The Court finds the context of the other SF-95s helpful in ascertaining the jurisdictional basis of the suit.
Even if Smith were somehow correct that the Rule 12(b)(6) standard bars documents not "referenced" in the complaint, Smith's SF-95s are formal filings in the administrative claims process and are properly considered as matters of public record. Under Federal Rule of Evidence 201(b)(2), the court may take judicial notice of documents where "a fact is not subject to reasonable dispute because it... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." The Seventh and Fifth Circuits have specifically permitted a Court to take judicial notice of documents which show filing of an administrative claim such as a Standard Form 95,  a position no Ninth Circuit authority contravenes. Thus, for either reason, the Court may consider all five of Smith's SF-95s in deciding Defendant's motion to dismiss.
2. The CSRA as an FTCA Bar
The Government's factual attack argues, consistent with its December 20, 2012, letter, that the allegations in Smith's SF-95s pertain to "personnel actions" properly brought under the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 1101, et seq. Doc. 8 at 8. This, in turn, required Smith to present his claims to the Merit Systems Protection Board ("MSPB"), instead of styling them as FTCA claims and bringing them before the District Court. See Doc. 8 at 8. Smith concedes that the CSRA provides a common remedy for his grievances, which "effectively eliminates/nullifies any thought of... filing a future complaint regarding those particular Tort Claims in this Court venue." Doc. 10 at 2. Even if the Court was inclined to consider Smith's statement as a judicial admission, the plain language of the concession goes only to any future filing he may make, and so the Court is obligated to address the merits of his present action.
The Federal Tort Claims Act "waives the federal government's sovereign immunity, rendering the United States liable in the same manner and to the same extent as a private individual under like circumstances." This broad waiver is qualified, however, when the claimed conduct falls within a comprehensive administrative remedial scheme. The CSRA is such a scheme, as it permits federal employees to challenge their employers' "prohibited personnel practices, " which include taking "personnel action[s]" violative of its merit system principles. A "personnel action" is broadly defined, particularly as it relates to an action which constitutes a "significant change in duties, responsibilities or working conditions."
On the whole, the majority of the conduct alleged in Smith's five SF-95's is comprised of "personnel actions" within the CSRA's cognizance-particularly his November 12, 2012 SF-95, pertaining to actions such as training, retention, entrustment, and supervision. Doc. 8-1 at 2. The fact that Smith has styled them as "employment negligence" and "negligent infliction of emotional distress" is of no moment. For example, in Mangano v. United States , the Ninth Circuit considered whether an FTCA clam for intentional infliction of emotional distress and intentional interference with the right to practice a profession, stemming from an employer's alleged retaliation for an employee's whistleblowing activities, fell under the FTCA. The Court found that the alleged retaliation, which consisted of institution of administrative proceedings against a government doctor after complaints were filed against him by his supervisor was a "quintessential personnel action" that should have been brought under the CSRA. For similar reasons, the Court finds that Smith's allegations state claims regarding "personnel actions" within the CSRA.
Smith also attempts to allege Bivens actions for negligent confinement, false imprisonment, and First Amendment claims for freedom of association in his November 17, 2012, SF-95. Doc. 8-1 at 14. And, one of Smith's December 1, 2012, SF-95s that a Bivens action was "forthcoming" for "failure to prevent, investigate, and/or remediate whistle blower retaliation, reprisal, and harassment resulting in the ongoing and continuation of whistle blower retaliation, reprisal, and harassment" of Smith. Doc. 8-1 at 23. These claims also fail. In Bivens v. Six Unknown Named Agents of the Federal Narcotics Bureau, the Supreme Court held that a federal officer who acted under color of law could be liable for damages caused after a violation of Fourth Amendment rights. Bivens liability is not universally available for all other Constitutional provisions. However, the Court need not speculate whether Smith's recovery is possible because the Ninth Circuit held in Saul v. United States that an employee may not bypass the CSRA by styling employment-related claims as constitutional torts-even where the prospective Bivens action concerns activities not explicitly provided for under the CSRA. Thus, Smith may not utilize constitutional tort principles to circumvent the CSRA.
Finally, Smith alleges invasion of privacy and negligent misrepresentation in his November 18, 2012 SF-95; a December 1, 2012 SF-95 also claims employment negligence "subsequent to consequential Duty of Care Breach, " which resulted in Smith's suicide attempt. Doc. 8-1 at 19, 24. To the degree Smith's claims are properly classified as common law tort claims, Saul forecloses recovery thereunder. In Saul, a federal employee brought claims for negligent infliction of emotional distress, for which he faulted two of his supervisors. He claimed that because his tort claim related to the deterioration of his working relationship but not his pay, his claim for relief was not a CSRA remedy. The Saul court found that this argument focused on the "wrong fact, " and pointed out that a state court claim could be preempted through a conflict between competing state and federal concerns-the controlling factor for which "must be whether the employee could challenge the action through the CSRA." And even to the degree that a CSRA remedy was not available for Smith's claims, the same are still precluded because in enacting the CSRA, congress clearly intended to occupy the field of workplace relations and left "no room for [common law tort claims] to operate."
In sum, the CSRA preempts Smith's FTCA actions, and Smith's proper remedy lies in filing his claims with the Merit Systems Protection Board. Smith has failed to avail himself of this remedy, and the Court is without jurisdiction to hear his claims, which must now be dismissed.
3. FECA as an FTCA Bar
After conceding that the CSRA applies to his cause of action, Smith proposes as an alternative remedy that he suffered an "off work" injury when he attempted suicide at home, such that he had the option of filing his claim either before an administrative agency, or through the FTCA. Doc. 10 at 2. The Government's reply points out that a separate statutory scheme governs workers' compensation recovery, such that an FTCA claim is improvidently brought. See Doc. 12 at 3-4.
The Federal Employee's Compensation Act ("FECA") governs workplace-related injuries, 5 U.S.C. § 8116(c), with the Secretary of Labor empowered to "administer and decide all questions arising under" FECA. 5 U.S.C. § 8145. The Labor Secretary's decision is not subject to judicial review, 5 U.S.C. § 8128(b), and the Ninth Circuit has found that a federal employee may not bring a claim an FTCA suit so long as a "substantial question" exists whether the subject matter of the suit could have been properly brought under FECA. Figueroa v. United States, 7 F.3d 1405, 1407 (9th Cir. 1993).
Smith's alternative "off-site" injury theory fails because the Employees' Compensation Appeals Board ("ECAB"), the adjudicative body charged with reviewing FECA claims, has exercised jurisdiction over suicide claims such that there is a "substantial question" that the suit should have been properly brought there. The Court thus lacks jurisdiction to hear Smith's claim if styled as a "workers compensation" action, and Smith cannot avoid dismissal of his claims on this basis.
B. Leave to Amend
Although Smith has never requested leave to amend his allegations, "a district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegations." The court abuses its discretion when it dismisses a complaint without previously granting leave to amend or determining that the allegations, if adequately pled, could survive a motion to dismiss. Indeed where, as here, a motion to dismiss has been filed before an answer, a motion for leave to amend "must be granted if filed." Although Smith has not sought leave to amend his complaint, out of an abundance of caution and in the interest of fairness, the Court grants Smith 30 days from the date of this Order to file any amended complaint. Plaintiff is cautioned that under Local Rule 15-1 any amended complaint that is filed with the court must be complete in itself without reference to prior filings. Any allegations, parties, or requests for relief from prior papers that are not carried forward and reasserted in the amended complaint no longer will be before the court and will be deemed abandoned. Plaintiff is further cautioned that his failure or inability to cure the deficiencies identified in this order and to plead sufficient facts to state a viable legal claim will result in the dismissal of his claims with prejudice.
C. Smith's Supplemental Filings
After the Government filed its reply to the motion to dismiss, Smith submitted both a response, Doc. 13, and an amended response, Doc. 15. Smith's filings are surreplies. Local Rule 7-2(a) governs motion briefing. Nothing in the rule authorizes any documents beyond the motion, response, and reply "unless otherwise ordered by the Court." Courts in this district routinely interpret Local Rule 7-2 to allow surreplies only by leave of court, "and only to address new matters raised in a reply to which a party would otherwise be unable to respond." Filing of surreplies is highly disfavored, as it typically constitutes a party's improper attempt to have the last word on an issue-even where, as here, the filer is proceeding pro se.  When a party does nothing more than seek to reserve the right to amend or supplement its filing, the "reservation" preserves nothing because "allowing a party to file supplemental arguments and evidence whenever they wish it would subvert the local rules that are in place to ensure timely responses." As Smith has failed to seek leave to file his surreplies and it does not appear that surreplies are justified by the contents of the replies, the Court declines to consider the arguments made in those documents.
Accordingly, based upon the reasons above and with good cause appearing and no reason for delay,
It is HEREBY ORDERED that the United States' Motion to Dismiss [Doc. 8] is GRANTED.
It is FURTHER ORDERED that Smith has 30 days leave of court to file an amended complaint if he can cure the claim deficiencies identified in this order. Plaintiff is cautioned that under Local Rule 15-1 any amended complaint that is filed with the court must be complete in itself without reference to prior filings. Any allegations, parties, or requests for relief from prior papers that are not carried forward and reasserted in the amended complaint no longer will be before the court and will be deemed abandoned. Plaintiff is further cautioned that his failure or inability to cure the deficiencies identified in this order and to plead sufficient facts to state a viable legal claim will result in the dismissal of his claims with prejudice.