United States District Court, D. Nevada
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, ...