Opinion
CIVIL NO. CCB-08-1352.
October 20, 2008
MEMORANDUM
Plaintiff Sim B. Moore, Jr. ("Mr. Moore") filed suit against the United States under the Federal Tort Claims Act ("FTCA") for damages stemming from his removal from federal employment with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). The United States moved to dismiss on the grounds that the court lacks subject matter jurisdiction over Mr. Moore's claim because he failed to file it within the FTCA's two-year statute of limitations. The parties have fully briefed the issue and no hearing is necessary. See Local Rule 105.6. For the reasons articulated below, the court will grant the motion to dismiss.
Background
Mr. Moore served as a criminal investigator for ATF in its Baltimore field division for approximately eleven years prior to his removal on October 25, 2002. ATF first disciplined Mr. Moore in March 2002, suspending him for fourteen days for refusing and/or failing to perform work assigned to him. Following the suspension, on April 10, 2002, Mr. Moore's supervisor, Daryl McCrary ("Mr. McCrary") directed Mr. Moore to review the work in question and submit a written response including updated information about the cases by the close of business on April 18, 2002. After receiving the assignment, Mr. Moore requested sick leave for April 18 and 19, 2002, which ATF granted. On the following Monday, April 22, 2002, at approximately noon, Mr. McCrary ordered Mr. Moore to submit his response to the request for documentation. Mr. Moore, believing that due to his approved sick leave he had until the close of business to complete the response, submitted it unfinished. Subsequent to this incident, ATF removed Mr. Moore from his position citing two charges of insubordination, one for incidents leading to the March 2002 suspension and one for refusing to provide requested documentation in response to the April 10 directive, and one charge of falsification of time and attendance records.
Mr. Moore filed a timely appeal with the Merit Systems Protection Board ("MSPB"). He argued that the first charge of insubordination was unjustified because he had already been suspended for that alleged misconduct, and that the second charge was unjustified because Mr. McCrary should have given him until the close of business on April 22, 2002 to finish his response to the request for documentation. He also argued in regard to the falsification charge that Mr. McCrary approved his time records as accurate after making slight adjustments, and that the remainder of the charge was covered by his previous suspension. The administrative law judge agreed with Mr. Moore as to the first charge of insubordination but affirmed his removal on the other two charges.
Mr. Moore next filed a Petition for Review with the full MSPB, which summarily denied his petition without addressing his factual and legal assertions. Mr. Moore then filed an appeal with the Court of Appeals for the Federal Circuit, which, following a hearing, affirmed his removal on February 22, 2005. More than two years later, on May 29, 2007, Mr. Moore filed his administrative FTCA claim with ATF. On May 27, 2008, Mr. Moore filed the FTCA claim presently before the court alleging that his supervisors fabricated his removal and suspension charges. He brings common law tort claims of negligence, misrepresentation, fraud, and intentional infliction of emotional distress, and seeks more than $2,500,000 in damages. On August 20, 2008, the United States filed its motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
Analysis
The Fourth Circuit has summarized the standard for reviewing a Rule 12(b)(1) motion contesting the factual basis for subject matter jurisdiction as follows:
When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id.; Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Trentacosta, supra, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Trentacosta, supra, 813 F.2d at 1558.Richmond, Fredericksburg and Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
"As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity." Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005). The FTCA creates a limited waiver of sovereign immunity by permitting a claimant to bring a civil suit seeking money damages against the United States "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" to the extent that a private party would be liable for those acts under state law. 28 U.S.C. § 1346(b)(1). All waivers of sovereign immunity must be "strictly construed . . . in favor of the sovereign." Welch, 409 F.3d at 650 (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). "When subject matter jurisdiction is challenged under the FTCA," as it is in the instant action, "the plaintiff bears the burden of persuasion and must establish an unequivocal waiver of immunity with respect to his claim." Lumpkins v. United States, 215 F.Supp.2d 640, 642 (D. Md. 2002).
A. FTCA's Statute of Limitations
Under the FTCA, a plaintiff must present a tort claim against the United States to the appropriate federal agency "within two years after such claim accrues" or that claim is barred. 28 U.S.C. § 2401(b); Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993) ("The FTCA explicitly provides that a tort claim is `forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues. . . .'"). An FTCA claim accrues when the claimant knows or, in the exercise of due diligence, reasonably should have known of the injury and its cause. See United States v. Kubrick, 444 U.S. 111, 120 (1979); Gould v. United States Dep `t of Health Human Servs., 905 F.2d 738, 742 (4th Cir. 1990) (en banc). Compliance with FTCA's presentment requirement is a key jurisdictional prerequisite to filing suit, Kokotis v. United States Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000), and federal courts require strict compliance with the FTCA's procedural requirements, see McNeil v. United States, 508 U.S. 106, 113 (1993) (affirming dismissal where pro se plaintiff failed to "strict[ly] adhere to [FTCA's] procedural [and timing] requirements"); Gould, 905 F.2d at 743 (noting that courts "with few exceptions have dismissed complaints where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiff's failure to submit a claim in a timely manner was the result of the plaintiff's ignorance of the defendant's status as a federal employee").
Mr. Moore contends that his FTCA claim should not be barred because he was unable, despite his due diligence, to ascertain material facts regarding his suspension and removal that would have enabled him to file suit within the statutory period. The record refutes that contention. Since his removal from ATF, Mr. Moore has continually challenged the validity of that action. He promptly and diligently pursued the administrative appeals process, arguing before the MSPB and the Federal Circuit that the charges on which ATF based his removal were unjustified, an argument he further presses in the present action. He has, for example, consistently maintained that ATF denied him adequate time to respond to its request for documentation, and then falsely charged him with failing to respond to the request. Yet he failed to file his FTCA claim within two years of his removal or even within two years of the end of his appeals process.
While Mr. Moore asserts that ATF concealed material information from him regarding the falsity of the charges, he does not and cannot claim that he was unaware of those charges or the facts and circumstances surrounding them at the time of his removal. Certainly if ATF personnel fabricated the charges, as Mr. Moore alleges they did, then he knew the charges were false as soon as he learned of them. Indeed, he has been arguing that the charges were unjustified or false since his first appeal to MSPB. Once Mr. Moore had knowledge of his injury and its cause — his disciplinary proceedings based on allegedly false charges — he had sufficient notice of facts and circumstances that should have compelled him to investigate whether his legal rights had been violated. See Gould, 905 F.2d at 744 ("The well-established rule is that once a prospective plaintiff learns of his injury, he is on notice that there may have been an invasion of his legal rights and that he should investigate whether another may be liable to him."). Thus, when Mr. Moore was removed from ATF based on what he alleges were false charges, his cause of action under the FTCA accrued. See id. at 742 (noting that a claim accrues when the plaintiff knows "both the existence and the cause of his injury"). Even assuming Mr. Moore's removal did not become actionable until his final appeal was denied by the Federal Circuit, and thus his cause of action did not accrue until that time, Mr. Moore failed to file his FTCA claim within the two-year statute of limitations.
B. Equitable Tolling
Mr. Moore contends that even if his FTCA claim accrued more than two years before he filed it with ATF, equitable tolling should extend the time he had to file his claim. As the Fourth Circuit has noted, "[e]quitable tolling is not appropriate where the claimant has failed to exercise due diligence in preserving his legal rights, and such relief is appropriate only for the most deserving complainant." Muth, 1 F.3d at 251 (internal quotation marks omitted). Moreover, equitable tolling is appropriate only "where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action," and the plaintiff "reasonably relied on the misrepresentation by neglecting to file a timely charge." Kokotis, 223 F.3d at 280; English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987).
The court notes that Mr. Moore has not indicated until when he believes the statute of limitations should be tolled or, for that matter, what circumstances arose that put him on notice to file his claim when he did.
As the court concluded above, Mr. Moore was on notice that ATF may have invaded his legal rights, at the latest, when his removal was affirmed by the Federal Circuit. Despite his diligent efforts in appealing his removal, he waited more than two years to file his FTCA claim. His failure to preserve his legal rights by further investigating and presenting his claim to ATF within the statutory period evidences a lack of due diligence that makes equitable tolling inappropriate. See Muth, 1 F.3d at 251 (concluding that plaintiff did not exercise due diligence where he had knowledge of injury and its cause and yet took no independent steps to determine whether he had a claim against the government). Moreover, while Mr. Moore asserts that ATF concealed material information from him, he does not offer an explanation for how this concealment misled him about the existence of a cause of action. To the contrary, Mr. Moore promptly and diligently appealed his removal, consistently maintaining that his removal was unjustified. Any suggestion that ATF's alleged misrepresentations masked the existence of a cause of action is undercut by Mr. Moore's steadfast insistence from his first administrative appeal that his removal was without merit. The very fact that Mr. Moore so thoroughly pursued his administrative appeals, arguing that ATF was unjustified in removing him, belies his contention that ATF's concealment left him unable to pursue available remedies. Thus the court concludes that Mr. Moore is not entitled to equitable tolling because he had ample opportunity to file a timely FTCA claim, and his failure to do so was not a result of any deceitful practices by ATF.
Mr. Moore seems to suggest that ATF's concealment of material facts prevented him from finding evidence that would have enabled him to prove a violation of his legal rights. He points to the failure of his appeals proceedings to uncover evidence of ATF wrongdoing, ( see Pl.'s Opp. to Mot. to Dismiss at 9 ("Mr. Moore has always filed timely diligent inquiries on this matter and has always through due diligence tried to get to the truth . . . by obtaining facts and hoping that certain tribunals would uncover facts when presented to them.")), and he contends he waited to file suit because he "could not have discovered information essential to the suit within two years of the accrual of the cause of action," ( id. at 1). Courts do not apply equitable tolling, however, to allow a plaintiff unlimited time to investigate a potential cause of action. Mr. Moore, and Mr. Moore alone, had the responsibility to investigate and present a viable claim within the statutory period. See Gould, 905 F.2d at 742 ("It is the plaintiff's burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.") ( quoting Dessi v. United States, 489 F.Supp. 722, 724 (E.D. Va. 1980)).
As a final matter, the court notes that ATF was under no obligation to inform Mr. Moore of his option to file an FTCA claim. In his opposition to the government's motion to dismiss, Mr. Moore suggests that, unlike his administrative appeal, ATF did not inform him that he had an option of filing an FTCA claim. The FTCA, however, does not require that government employers notify employees of their rights under the statute, and the ATF was under no obligation to inform Mr. Moore of his potential cause of action. See Gould, 905 F.2d at 745 ("The government is under no obligation to notify every prospective plaintiff of its identity and involvement through its employees in all potential legal actions.")
For the foregoing reasons, the court will grant the defendant's motion to dismiss. A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:1. The defendant's motion to dismiss (docket entry no. 6) is GRANTED;
2. The Clerk shall send copies of this Order and the Memorandum to plaintiff Sim Moore, Jr. and counsel of record; and
3. The Clerk shall CLOSE this case.