Opinion
CIV 00-0652 PK/KBM
September 28, 2000
ORDER
THIS MATTER comes on for consideration of various pending motions. Upon consideration whereof,
(1) Plaintiffs Motion for Leave to File a Surreply in Response to Reply filed by Defendant in Support of Defendants Motion to Dismiss and Motion to Amend Pleading filed September 13, 2000 (doc. 50), is denied.
(a) These two motions should have been filed in separate pleadings because they seek different relief. Plaintiff should make a note of this for future filings.
(b) A surreply is unnecessary. Plaintiff responded (doc. 42) to the motion to dismiss; the governments two paragraph reply (doc. 47) does not warrant a surreply, which may only be filed with leave of court. See D. N.M. LR-Civ. 7.6(b).
(c) The motion to amend the complaint to add claims under the Clean Air Act and Solid Waste Disposal Act is untimely given the close of discovery, and the upcoming deadline for substantive motions (October 2, 2000 ). Although leave to amend shall be freely given when justice so requires, see Fed.R.Civ.P. 15(a), this court requested that any amended complaint be filed within thirty days of the entry of the IPTR (May 18, 2000 ) (doc. 19). At the July 10, 2000 , status conference, Plaintiff indicated that an amended complaint would not be filed. Neither the allegations contained in the facts section of the Plaintiffs complaint, nor the IPTR, would alert the Defendant to the claims Plaintiff seeks to add. In these circumstances, where leave sought is untimely and would prejudice the Defendant and additional discovery would be required, denial of leave to amend is warranted. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971).
(2) Defendants Motion to Dismiss Plaintiffs Retaliation Claim Arising Under the False Claims Act filed August 2, 2000 (doc. 37), is granted.
(a) The civil remedy provided in 31 U.S.C. § 3730(h) does not waive the federal governments sovereign immunity. Such a waiver must be unequivocally expressed in the statutory provision, not implied, see Lane v. Pena, 518 U.S. 187, 192 (1996), and the statute contains not a hint of waiver. See Daly v. Department of Energy, 741 F. Supp. 202, 205-06 (D.Colo. 1990) (reaching same conclusion).
(b) The civil remedy provided in 31 U.S.C. § 3730(h) does not apply to Plaintiff, a former government employee, in these circumstances. The Civil Service Reform Act provisions, see 5 U.S.C. § 1213; 2302(b)(8), are comprehensive and exclusive. See LeBlanc v. United States, 50 F.3d 1025, 1029-30 (Fed. Cir. 1995); Rivera v. United States, 924 F.2d 948, 952-54 (9th Cir. 1991) (rejecting argument that 5 U.S.C. § 1222 evidences Congressional intent to eliminate exclusivity); Premachandra v. United States, 739 F.2d 392 (8th Cir. 1984) (civil service remedies were exclusive; affirming dismissal of FTCA action); Daly, 741 F. Supp. at 204-05 (holding § 3730(h) inapplicable to federal employee).
IT IS SO ORDERED.
DATED this 28th day of September, 2000 at Denver, Colorado.