Belisle et al v. United States of America

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or, In the Alternative, For Lack of Subject Matter Jurisdiction

D. AlaskaOctober 21, 2016

Belisle v. United States, Case No. 3:16-cv-00168-RBB BENJAMIN MIZER Principal Deputy Assistant Attorney General Civil Division Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515 JAMES G. TOUHEY, JR. Director, Torts Branch Civil Division RUPERT M. MITSCH Assistant Director, Torts Branch U.S. Department of Justice Civil Division, Torts Branch PHILIP D. MACWILLIAMS Trial Attorney E-mail: phil.macwilliams@usdoj.gov U.S. Department of Justice Civil Division, Torts Branch 1331 Pennsylvania Ave., NW Room 8080N Washington, DC 20004 Telephone: (202) 616-4285 Facsimile: (202) 616-5200 Attorneys for the United States of America UNITED STATES DISTRICT COURT DISTRICT OF ALASKA Nicola Belisle, Executrix of the Estate ) of Richard W. Belisle and Deborah ) Hopkins, Executrix of the Estate of ) James Hopkins ) Plaintiffs, ) ) v. ) ) Case No. 3:16-cv-00168-RRB United States of America, ) ) Defendant. ) ) ____________________________________) DEFENDANT UNITED STATES OF AMERICA’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, FOR LACK OF SUBJECT MATTER JURISDICTION Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 1 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 2 Defendant United States of America respectfully moves this Court to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim or, in the alternative, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. This Court must dismiss this action for failure to state a claim because it is barred by the Federal Tort Claims Act’s statute of limitations. 28 U.S.C. § 2401(b). Alternatively, this Court must dismiss this action for lack of subject matter jurisdiction because the claims brought by the Belisle estate are barred by the Federal Employees Compensation Act (“FECA”), 5 U.S.C. §§ 8101 et seq.; the claims brought by the Hopkins estate are barred by Feres v. United States, 340 U.S. 135 (1950); and all claims are barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The grounds for this motion are set forth more fully in the accompanying memorandum of points and authorities. Dated: October 21, 2016 Respectfully submitted, BENJAMIN MIZER Principal Deputy Assistant Attorney General Civil Division Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515 JAMES G. TOUHEY, JR. Director, Torts Branch Civil Division RUPERT M. MITSCH Assistant Director, Torts Branch U.S. Department of Justice Civil Division, Torts Branch Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 2 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 3 /s/ Philip D. MacWilliams PHILIP D. MACWILLIAMS Trial Attorney E-mail: phil.macwilliams@usdoj.gov U.S. Department of Justice Civil Division, Torts Branch 1331 Pennsylvania Ave., NW Room 8080N Washington, DC 20004 Telephone: (202) 616-4285 Facsimile: (202) 616-5200 Attorneys for the United States of America Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 3 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB UNITED STATES DISTRICT COURT DISTRICT OF ALASKA Nicola Belisle, Executrix of the Estate ) of Richard W. Belisle and Deborah ) Hopkins, Executrix of the Estate of ) James Hopkins ) Plaintiffs, ) ) v. ) ) Case No. 3:16-cv-00168-RRB United States of America, ) ) Defendant. ) ) ____________________________________) MEMORANDUM IN SUPPORT OF DEFENDANT UNITED STATES OF AMERICA’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR, IN THE ALTERNATIVE, FOR LACK OF SUBJECT MATTER JURISDICTION I. INTRODUCTION Nicola Belisle, as executrix of the estate of Richard W. Belisle, and Deborah Hopkins, as executrix of the estate of James Hopkins (collectively “Plaintiffs”), bring suit against the United States of America (“Defendant”), under the Federal Tort Claims Act (“FTCA”) 28 U.S.C. §§ 1346(b)(1), 2671-2680, for wrongful death. At the time of their deaths, Richard Belisle was a civilian employee of the U.S. Coast Guard, and James Hopkins was an active duty service member with the U.S. Coast Guard. The United States is immune from liability absent its consent, and the terms of that consent define a court’s jurisdiction to entertain a suit against the United States. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Absent a specific waiver, sovereign immunity bars the suit for lack of subject matter jurisdiction. See FDIC v. Meyer, 510 Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 4 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 2 U.S. 471, 475-76 (1994). The terms of the United States’ consent to be sued as delineated in the FTCA define the parameters of a federal court’s jurisdiction to entertain such suits. See United States v. Orleans, 425 U.S. 807, 814 (1976) (“the United States can be sued only to the extent that it has waived its immunity”). The FTCA is a limited waiver of sovereign immunity that authorizes suits against the United States for: money damages . . . 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). This Court must dismiss this action for failure to state a claim because it is barred by the FTCA’s statute of limitations. See Lehman v. United States, 154 F.3d 1010, 1012 (9th Cir. 1998) (affirming dismissal under Rule 12(b)(6) for failure to comply with 28 U.S.C. § 2401(b)). Specifically, Plaintiffs failed to present their administrative claims to the Coast Guard within two years of the date on which their claims accrued pursuant to 28 U.S.C. § 2401(b). Additionally, this action is untimely. Following a denial of an administrative claim, a claimant must file an action “within six months after the date of mailing” of said denial by the agency. 28 U.S.C. § 2401(b). However, Plaintiffs failed to file this action within six months of the denial of their administrative claims and failed to toll this six-month period by timely filing a request for reconsideration with the Coast Guard pursuant to 28 C.F.R. § 14.9(b). Furthermore, this Court must dismiss the claims by the Belisle estate on the ground that they are barred by the Federal Employees Compensation Act (“FECA”), 5 U.S.C. §§ 8101 et seq., which is the exclusive remedy for “the disability or death of an employee resulting from personal injury sustained while in the performance of his duty[.]” 5 U.S.C. § 8102(a). Where Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 5 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 3 FECA applies, the claim must be dismissed for lack of subject matter jurisdiction. See Moe v. United States, 326 F.3d 1065, 1068 (9th Cir. 2003). Moreover, this Court must dismiss the claims by the Hopkins estate based on Feres v. United States, 340 U.S. 135 (1950), where the Supreme Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146. Where Feres applies, the claim must be dismissed for lack of subject matter jurisdiction. See Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997). Finally, the FTCA’s waiver of sovereign immunity is subject to several exceptions set forth in 28 U.S.C. § 2680. These exceptions “are designed to protect certain important government functions and prerogatives from disruption.” Molzof v. United States, 502 U.S. 301, 311 (1992); see also Richards v. United States, 369 U.S. 1, 13 n.28 (1962). This Court must dismiss all claims by Plaintiffs, because the Coast Guard’s decisions regarding the supervision and retention of its employees are immunized by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Where the discretionary function exception applies, the claim must be dismissed for lack of subject matter jurisdiction. See Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996). II. PLAINTIFFS’ ALLEGATIONS Coast Guard civilian employee Richard Belisle and Coast Guard Electronics Technician (ET1) James Hopkins were both killed on April 12, 2012, at Building T2 (the “Rigger Shop”) at the United States Coast Guard Communication Station Kodiak, Alaska, after being shot by Coast Guard civilian employee James Wells. Compl. ¶ 10. Wells also was assigned to the Rigger Shop, and was under the supervision of Hopkins. Compl. ¶ 11. Both Belisle and Hopkins died Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 6 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 4 “while performing their duties at the United States Coast Guard Communications Station Kodiak.” Compl. ¶ 9. Plaintiffs allege that the Coast Guard knew or should have known that Wells was “a disgruntled and dangerous employee who posed a serious threat to other employees in the Rigger Shop[,]” and that the Coast Guard “negligently retained James Wells as an employee in the rigger shop despite the fact that he was clearly a dangerous and out-of-control disgruntled employee with numerous reprimands and disciplinary sanctions.” Compl. ¶ 11. Plaintiffs also allege that the Coast Guard “placed Belisle and Hopkins in harm’s way by assigning Hopkins to be Wells’ supervisor and appointing Belisle to take over the duties and tasks that Wells’ [sic] formerly performed and subsequently refused to perform as a disgruntled and recalcitrant employee.” Id. Plaintiffs further allege that the failure to exercise reasonable care in the supervision and control of Wells, and in retaining Wells as an employee, was the proximate cause of their injuries. Compl. ¶ 12. III. STANDARDS OF REVIEW When a motion to dismiss is brought pursuant to Rule 12(b)(6), factual allegations set forth in the complaint are taken as true, but conclusory allegations of law are insufficient to defeat a motion to dismiss. See Lee v. City of Los Angeles, 250 F.3d. 668, 679 (9th Cir. 2001) (citation omitted). A court may consider materials that are submitted as part of the complaint, and take judicial notice of matters of public record. Id. at 688-89. A court also may consider documents that are not attached to or referenced in the complaint, but are integral to the Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 7 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 5 complaint and the authenticity of which are not disputed. See Fields v. Legacy Health Sys., 413 F.3d 943, 958 n.13 (9th Cir. 2005).1 Where subject matter jurisdiction is lacking, dismissal pursuant to Rule 12(b)(1) is the appropriate disposition. MacKay v. Pfiel, 827 F.2d 540, 543 (9th Cir. 1987). Once the defendant objects based on a lack of subject matter jurisdiction, plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A Rule 12(b)(1) motion may launch a facial or factual jurisdictional attack. In a facial attack, “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In evaluating a facial attack, the Court must accept the factual allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). However, the court does not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). For a factual attack, by contrast, the Court may consider extrinsic evidence and does not have to assume the allegations are truthful. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Factual attacks permit the court to look beyond the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The court may weigh affidavits and other evidence properly before it in determining whether it has jurisdiction, resolving factual disputes where necessary, without converting the motion to a summary judgment motion under Rule 56. See Biotics 1 Because a plaintiff must first comply with the time-limitations set forth at 28 U.S.C. § 2401(b) before filing an action in district court, the administrative claims and denials thereof are integral to the complaint. See Thompson v. United States, Case No. 15-2181, 2016 WL 265991, *2 n.4 (D. Md. May 10, 2016); Riad v. United States, Case No. 11-7777, 2012 WL 986753, *2 n.2 (E.D. Pa. Mar. 22, 2012). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 8 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 6 Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). “No presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill Publ’g Co. v. Gen. Tel. Elecs, 594 F.2d 730, 733 (9th Cir. 1979); see also Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001). As noted below, the allegations in the complaint, taken as true, demonstrate that this Court lacks subject matter jurisdiction based on FECA, the Feres doctrine, and the discretionary function exception to the FTCA. Thus, this Court may treat this motion as a facial attack. Furthermore, the United States has submitted several exhibits which bolster the applicability of these defenses. If the Court deems it necessary to consider this evidence when determining the applicability of these jurisdictional defenses, then this motion may be viewed as a factual attack. IV. ARGUMENT A. Plaintiffs’ Claims Are Barred By the FTCA’s Statute of Limitations The FTCA sets forth two time-related limitations provisions that limit the ability of a claimant to bring suit against the United States: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). A claim accrues “once a plaintiff becomes aware of her injury and its immediate cause[.]” Gallardo v. United States, 755 F.3d 860, 864 (9th Cir. 2014) (citing United States v. Kubrick, 444 U.S. 111, 122 (1979)). In cases arising out of an assault, a claim accrues at the time of the assault. See id. The fact that the identity of the assailant is not known at the time of Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 9 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 7 the assault does not delay the date on which the claim accrues. See Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (“[A]s a general rule, ignorance of the involvement of government employees is irrelevant to accrual of a federal tort claim.”); Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) (“ignorance of the involvement of United States employees is irrelevant.”) (quoting Dyniewicz v. United States, 742 F.2d 484, 487 (9th Cir. 1984)). Plaintiffs’ claims accrued on April 12, 2012, the date on which the assault took place. Compl. ¶ 9. Thus, any claim presented to the Coast Guard beyond April 12, 2014 is untimely. 28 U.S.C. § 2401(b). Plaintiffs did not present their administrative tort claims to the Coast Guard until September 23, 2014, well after the FTCA’s two-year limitations period had run.2 Therefore, their suits are barred by the two-year time period in 28 U.S.C. § 2401(b).3 This action is barred for the additional reason that it was not begun within six months of the Coast Guard’s denial of Plaintiffs’ administrative claim. The six-month limitations period begins to run on the date of the mailing of the agency’s denial of the claim, see 28 U.S.C. § 2401(b); Berti v. Veterans Affairs Hosp., 860 F.2d 338, 340 (9th Cir. 1988), and “the final day of the limitations period is the six-month ‘anniversary’ of the date of mailing of the denial of the claim.” Gervais v. United States, 865 F.2d 196, 197 (9th Cir. 1988); see also Lehman, 154 F.3d 2 See Declaration of Brian Judge and attachments thereto (marked as Defendant’s Exhibit A). 3 Notably, a criminal complaint was filed against Wells on February 15, 2013, charging him with the murder of Mr. Belisle and ET1 Hopkins, see Case No. 3:13-CR-00008 (D. Alaska) (Dkt. # 1), and an arrest warrant was issued on February 19, 2013. See id. at Dkt. # 9. Both events occurred well over a year before the limitations period at § 2401(b) expired, leaving Plaintiffs ample to time to present administrative claims to the Coast Guard after learning the identity of the assailant. See Case No. 3:13-CR-00008 (D. Alaska) (Dkt. # 1) (criminal complaint against James Wells). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 10 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 8 at 1014 (six-month time period begins to run on date denial is mailed).4 When an administrative claim is denied, a claimant may toll the six-month limitations period in which to file suit by filing with the agency a request for reconsideration pursuant to 28 C.F.R. §14.9(b). Berti, 860 F.2d at 340. However, that request must be received by the agency “prior to the expiration of the 6–month period provided in 28 U.S.C. 2401(b).” 28 C.F.R. §14.9(b); see also Gervais, 865 F.2d at 197-98 (“Under the applicable regulations, the request for reconsideration is deemed ‘filed’ when received by the agency.”). Here, the administrative claims were denied on March 31, 2015.5 Thus, Plaintiffs had, at the latest, until September 30, 2015 to file an action in district court or a request for reconsideration with the Coast Guard. Plaintiffs opted to file requests for reconsideration, but their requests, while dated September 30, 2015, were not received by (and thus “filed” with) the Coast Guard until October 13, 2015.6 Because Plaintiffs did not file their action in the district court within six-months and failed to toll the six-month limitations period by timely filing requests for reconsideration, this action is barred by § 2401(b). Lehman, 154 F.3d at 1014. B. FECA Bars the Belisle Estate’s Claims FECA provides that “[t]he United States shall pay compensation . . . for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty . . . .” 5 U.S.C. § 8102(a). Further, FECA expressly provides that: 4 See also Jackson v. United States, 751 F.3d 712, 717 (6th Cir. 2014) (a claim is denied on the date the agency mails the denial, regardless of whether the claimant actually receives the denial). 5 See Declaration of Brian Judge (Def. Exhibit A). 6 See id. Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 11 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 9 [t]he liability of the United States . . . under [FECA] . . . with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States . . . to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States . . . because of the injury or death . . . in a civil action . . . under a Federal tort liability statute. 5 U.S.C. § 8116(c). Thus, where FECA applies, such coverage constitutes the exclusive remedy against the United States, and a plaintiff may not elect to proceed under the FTCA. As the Supreme Court has held: [§ 8116(c)] was designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign immunity. In enacting this provision, Congress adopted the principal compromise – the “quid pro quo” – commonly found in workers’ compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government. Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983); see also Moe, 326 F.3d at 1068 (“FECA’s exclusivity provision bars recovery under the FTCA.”); Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (“FECA provides the exclusive remedy against the federal government for federal employees injured at work.”).7 Therefore, “[w]hether it is liability in employing a dangerous employee, or failing to supervise, or negligently maintaining its property, FECA preempts all claims for employees’ physical injury and death.” Saltsman v. United States, 104 F.3d 787, 791 7 See also Johansen v. United States, 343 U.S. 427, 436 (1952) (FECA provides “clearly that the liability of the United States under the Compensation Act shall be exclusive of all other liability of the United States on account of the same injury.”); Noble v. United States, 216 F.3d 1229, 1234 (11th Cir. 2000) (“Congress amended FECA in 1949 expressly to provide that FECA is the federal employee's exclusive remedy against the federal government for on-the-job injuries.”); Heilman v. United States, 731 F.2d 1104, 1109-10 (3d Cir. 1984) (“FECA is also the exclusive remedy for injuries falling within its coverage.”) (emphasis in original). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 12 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 10 (6th Cir. 1997). Moreover, the exclusivity of FECA applies even if the particular type of damage or consequence the claimant suffered is not compensable under FECA. See Noble v. United States, 216 F.3d 1229, 1234 (11th Cir. 2000) (“Because the United States’ liability for work-related injuries under FECA is exclusive, see § 8116(c), respondent cannot recover from the United States for losses such as pain and suffering that are not compensated under FECA.”) (citing United States v. Lorenzetti, 467 U.S. 167, 169 (1984).8 That Mr. Belisle’s death occurred while in the performance of his duty is evident from the face of the complaint, which alleges that his death occurred at his place of work “while performing [his] duties at the United States Coast Guard Communications Station Kodiak.” Compl. ¶ 9. This alone requires that the Belisle estate’s FTCA claim be dismissed for lack of jurisdiction. See Moe, 326 F.3d at 1068 (“If a plaintiff has a colorable claim under FECA, the federal courts should dismiss any action arising under the same facts for lack of subject matter jurisdiction.”); Heilman, 731 F.2d at 1110 (dismissing claim when “allegations in the pleadings themselves establish FECA coverage to a certainty”). Further, the Belisle family’s application for, and the award of, survivor benefits under FECA conclusively precludes any effort to recover under the FTCA. FECA provides that “[t]he Secretary of Labor shall determine and make a finding of facts and make an award for or against payment of compensation under this subchapter . . . .” 5 U.S.C. § 8124. The Office of Workers’ 8 See also Saltsman, 104 F.3d at 790-791 (FECA barred FTCA claims for loss of spousal and parental consortium asserted by spouses and children of federal employees killed in workplace shooting incident even if such damage was not compensable under FECA); Swafford v. United States, 998 F.2d 837, 843 (10th Cir. 1993) (if employee was injured in performance of duty, Secretary of Labor’s determination of FECA coverage is binding on court, regardless of whether compensation is actually awarded). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 13 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 11 Compensation Programs (“OWCP”), a component of the Department of Labor, acting as designee of the Secretary of Labor, has determined that Mr. Belisle’s death occurred in the performance of his duty and therefore is covered under the Federal Employees Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq.9 FECA provides that “[t]he action of the Secretary or his designee in allowing or denying payment under [FECA] is . . . not subject to review . . . by a court by mandamus or otherwise.” 5 U.S.C. § 8128(b); see also Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 281 (9th Cir. 1988). As explained in Noble: the Secretary [of Labor] is authorized to administer and decide all questions arising under FECA . . . . Under the authority granted in [5 U.S.C.] § 8145(2), the Secretary has delegated responsibility for administering FECA to the Director of the OWCP . . . . Once the OWCP determines that a disability or death resulted from a work-related injury . . . , the claimant is limited to the remedies authorized by FECA, even if a particular type of damage or consequence the claimant suffered is not compensable under FECA. 216 F.3d at 1234. In short, “FECA contains an ‘unambiguous and comprehensive’ provision barring any judicial review of the Secretary of Labor’s determination of FECA coverage.” Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (quoting Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 780 & n.13 (1985)); see also 5 U.S.C. § 8128(b). Consequently, “the courts have no jurisdiction over FTCA claims where the Secretary determines that FECA applies.” Southwest Marine, 502 U.S. at 90; Wilson-Sauls v. Curtis, 359 Fed. App’x 856, 858 (9th Cir. 2009) (when a claim for benefits was submitted and benefits were awarded, the district court must dismiss the FTCA suit); 9 See Declaration of Julia A. Tritz and attachments thereto (marked as Defendant’s Exhibit B). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 14 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 12 Noble, 216 F.3d at 1234 (once OWCP determines that an employee’s death is work- related, the claimant is limited to the remedies authorized by FECA). This determination that Mr. Belisle’s death is covered under FECA is not subject to judicial review, and the FTCA claim against the United States therefore must be dismissed for lack of jurisdiction. C. The Feres Doctrine Bars the Hopkins Estate’s Claims In Feres, the Supreme Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146. This broad exception has been labeled “the Feres doctrine,” and extends to members of the Coast Guard. See United States v. Johnson, 481 U.S. 681, 692 (1987) (holding that claim by estate of Coast Guard helicopter pilot was barred). The Ninth Circuit has summarized the rational for the Feres doctrine as follows: The Supreme Court has enunciated three policy rationales for the Feres doctrine: 1) the distinctively federal nature of the relationship between the Government and the armed forces requires a uniform system of compensation for soldiers stationed around the country and around the world; 2) a generous compensation scheme for soldiers (the Veterans’ Benefits Act) serves as an ample alternative to tort recovery; and 3) permitting military personnel to sue the armed forces would endanger discipline. Costo v. United States, 248 F.3d 863, 866 (9th Cir. 2001) (citing Johnson, 481 U.S. at 684 n.2).10 The Feres doctrine “provides a broad blanket of immunity to protect the government against allegations of negligence in military contexts.” McAllister v. United States, 942 F.2d 1473, 1479 (9th Cir. 1991). Feres bars all torts incident to service, including both intentional 10 The doctrine is intended not merely to preclude liability, but also litigation itself. Henninger v. United States, 473 F.2d 814, 815-16 (9th Cir. 1973) (“it is the suit, not the recovery, that would be disruptive of discipline and the orderly conduct of military affairs.”). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 15 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 13 torts and negligence claims. Bowen, 125 F.3d at 803 (citation omitted); see also Dexheimher v. United States, 608 F.2d 765, 766 (9th Cir. 1979) (applying Feres doctrine to suit arising out of service member’s physical and sexual assault while in the disciplinary barracks). Moreover, the doctrine applies even when, as here, the harm was caused by a person who himself is not a service member. Johnson, 481 U.S. at 686 (stating that the Supreme Court has “never suggested that the military status of the alleged tortfeasor is crucial to the application of the doctrine. . . . Instead, the Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based upon service-related injuries.”). Simply put, “[i]t is of no consequence that the alleged tortfeasors were civilians.” Costco, 248 F.3d at 868.11 Further, Feres bars claims where the injury or death occurs while the service member was carrying out his military duties, regardless of whether military judgments are specifically implicated by the suit. See Johnson, 481 U.S. at 691 (“Even if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission.”). Finally, Feres broadly applies to all claims that have their “genesis in injuries to members of the armed forces.” Ritchie v. United States, 733 F.3d 871, 875 (9th Cir. 2013) (quoting Grosinsky v. United States, 947 F.2d 417, 418 (9th Cir. 1991)). A 11 In Costco, two sailors were killed during a rafting trip that was organized and led by civilian employees assigned to the base’s recreation department. The estates of the sailors brought suit against the United States under the FTCA, alleging that the Navy was negligent in, among other things, failing to properly supervise and train those civilian employees who led the rafting trip. Costco, 248 F.3d at 865. Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 16 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 14 widow’s wrongful death suit arising from the harm suffered by a service member certainly has its genesis in the harm to the service member. See McAllister, 942 F.2d at 1480. To determine whether a claim is barred by the Feres doctrine, the Ninth Circuit considers four factors: (1) the place where the negligent act occurred; (2) the duty status of the plaintiff when the negligent act occurred; (3) the benefits accruing to the plaintiff because of his status as a service member; and (4) the nature of the plaintiff's activities at the time the negligent act occurred. Costco, 248 F.3d at 867 (citations omitted). Hopkins was an active duty service member at the time of the shooting, who was killed at his assigned duty location while performing his military duties. See Compl. ¶¶ 9-10 (alleging that Hopkins died “while performing [his] duties at the United States Coast Guard Communications Stations Kodiak” and that the incident occurred at “Building T2 (Rigger Shop)”). These factors alone make the Feres doctrine applicable. See Johnson, 481 U.S. at 691- 92 (Feres applied where Coast Guard member was killed while performing mission). Moreover, the shooting incident was at the hands of a person under the supervision of the Coast Guard. See Compl. ¶ 11 (noting that Wells was under the direct supervision of ET1 Hopkins). 12 That Wells was under the military command structure further solidifies the applicability of the Feres doctrine, as calling into question the supervision and retention of Wells directly implicates the Coast Guard’s judgments and decisions that are inextricably intertwined with the conduct of its mission. See Costco, 248 F.3d at 868 (noting that the negligent employees ultimately fell under 12 See also Declaration of Scott Reckner and attachment thereto (marked as Defendant’s Exhibit C) (providing overview of the command structure at Kodiak and demonstrating that civilian employees in Rigger Shop fell under military command structure). The attachment to this declaration is the same organizational chart introduced into evidence as Exhibit 393 in the criminal trial of Wells (attached hereto as Defendant’s Exhibit D). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 17 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 15 the command of the base’s commanding officer). Thus, it is clear that Hopkins’ death was incident to military service, and the Feres doctrine therefore bars his estate’s claims. D. The Discretionary Function Exception Bars Each of Plaintiffs’ Claims The United States is not liable for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court has enunciated a two-part test for determining whether a claim is barred by the discretionary function exception. First, courts must determine whether the act “involv[es] an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991). Pursuant to this first part, courts look to whether “a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow[.]” Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). To survive a motion to dismiss, the plaintiff must identify a statute, regulation or policy that is both specific and mandatory, as well as conduct that violates said statute, regulation, or policy. See Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (citing Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989)). Second, if the conduct does involve judgment or choice, courts then look to “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536). “The basis for the discretionary function exception was Congress’ desire to ‘prevent judicial second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Berkovitz, 486 U.S. at 536-537 (quoting United States Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 18 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 16 v. Varig Airlines, 467 U.S. 797, 814 (1984)). Thus, the exception protects “governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323 (citation and internal quotation marks). It is immaterial whether various policy considerations actually were considered, because “[t]he focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325; see also Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) (“Notably, to be protected from suit, the challenged decision ‘need not actually be grounded in policy considerations’ so long as it is, ‘by its nature, susceptible to a policy analysis.’”) (quoting Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998)). Furthermore, “[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 323; Nurse, 226 F.3d at 1001. Also, the discretionary function exception applies even if the government’s conduct was negligent or an abuse of discretion. See Gaubert, 499 U.S. at 323. “For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime.” Id. at 324-25. Plaintiffs contend that Wells should not have been retained as an employee in the Rigger Shop in light of his attitude and disciplinary history, and that the Coast Guard was negligent in re-assigning some of his duties to Belisle and placing him under the supervision of Hopkins. Compl. ¶ 12. However, the complaint fails to identify any statute, regulation, or agency policy that mandated the termination of Wells, or that prohibited the manner in which he and his duties were assigned. In fact, the relevant agency manual pertaining to the supervision of civilian Coast Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 19 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 17 Guard employees – the Commandant Instruction on Civilian Personnel Actions, COMDTINST M12750.4 (1999) (“Manual”)13 – makes clear that supervisors of civilian Coast Guard employees are afforded a great deal of discretion in deciding what, if any, disciplinary measures to take in response to an employee’s performance issues or conduct. In particular, the Coast Guard’s general policy is as follows: The primary objective of discipline is to correct an employee’s conduct and/or performance while maintaining high productivity, discipline and morale among all employees. Accordingly, it is the policy of the Coast Guard to impose the minimum remedy that can reasonably be expected to meet this objective. Only when prior warning, disciplinary, or adverse action has failed to correct an offending employee, or when an employee has committed a particularly serious first offense may removal/termination action be taken. It should be noted that adverse action, up to and including removal, may only be taken for such cause as will promote efficiency of the service. Manual at ¶ 1.A (pp. 1-1). The Manual further provides, in the section titled “Determining Appropriate Action”: After an investigation of relevant facts, information, and discussion(s) with the employee, a determination of the appropriate corrective action to be taken, if any, must be made. If formal disciplinary action is determined to be necessary, the supervisor should first refer to the U.S. Coast Guard schedule of offenses and remedies (enclosure (2)) which defines the general range of remedies for specific offenses. He or she should then tentatively determine the appropriate remedy, bearing in mind any special considerations that may be present. The most appropriate remedy is the least serious action that will correct the problem. Additionally, such action should be reasonably consistent with actions taken against other civilian employees for like offenses in similar circumstances. Manual at ¶ 1.J (pp. 1-7) (emphasis added). Thus, when deciding the appropriate course of action, Coast Guard supervisors exercise their judgment in considering, among other things, what will “reasonably” meet the overall 13 See Declaration of Joanne Turner and attachment thereto (marked as Defendant’s Exhibit E). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 20 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 18 objective, whether the conduct is a “particular serious” offense, whether the remedy will “promote efficiency,” what is an “appropriate remedy,” what is the “least serious” remedy that will correct the problem, and what “special considerations” are present. Clearly, then, the Coast Guard did not have a non-discretionary duty to take any particular personnel action against Wells in response to his conduct or job performance. On the contrary, the Coast Guard policy gives supervisors a great deal of discretion in determining whether to take any disciplinary measures at all, and, if so, the most suitable remedy under the circumstances. Regarding the second prong of the Gaubert test, employment decisions relating to the supervision and retention of an employee are inherently policy-laden decisions. In Sydnes v. United States, 523 F.3d 1179 (10th Cir. 2008), the Tenth Circuit aptly summarized why the discretionary function exception shields a Federal agency’s employment decisions: We have previously and unqualifiedly held that [d]ecisions regarding employment and termination – the kind of conduct at issue here – are precisely the types of administrative action the discretionary function exception seeks to shield. . . . Whatever may’ve occurred in the specifics of plaintiffs’ situation, employment and termination decisions are, as a class, the kind of matters requiring consideration of a wide range of policy factors, including budgetary constraints, public perception, economic conditions, individual backgrounds, office diversity, experience and employer intuition. . . . Choosing how to evaluate these various policy considerations, determining which to give more weight to, and ultimately deciding whether a particular individual with a certain skill-set and temperament will help an agency fulfill its mission all involve sensitive policy judgments, and an employer or supervisor must decide which blend of skills will best aid the agency in performing its legally-prescribed duties. Forcing the government, at the jurisdictional stage, to defend its rationale for its employment decision in particular cases would, moreover, eviscerate the benefits of sovereign immunity that Congress has chosen to retain in discretionary function cases, and essentially enmesh us in a mini-trial about the merits. Id. at 1185-86 (citations and internal quotation marks omitted). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 21 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 19 The Ninth Circuit likewise has held that claims alleging the “negligent and reckless employment, supervision and training of [Federal employees] . . . fall squarely within the discretionary function exception.” Nurse, 226 F.3d at 1001 (citations omitted); see also Xue Le v. Powell, 621 F.3d 944, 950 (9th Cir. 2010) (decisions regarding employment and disciplinary matters are protected by the discretionary function exception); Doe, 557 F.3d at 1084 (“[T]he decision of whether and how to retain and supervise an employee, as well as whether to warn about his dangerous proclivities, are the type of discretionary judgments that the exclusion was designed to protect. We have held the hiring, supervision, and training of employees to be discretionary acts.”) (citations omitted); Vickers v. United States, 228 F.3d 944, 950 (9th Cir. 2000) (failure to terminate employee protected by the discretionary function exception).14 The exception shields employment decisions relating not only to supervision and discipline, but also the placement of employees and allocation of duties, because “decisions involving the allocation and deployment of limited governmental resources are the type of administrative judgment that the discretionary function exception was designed to immunize from suit.” Fang v. United States, 140 F.3d 1238, 1241 (9th Cir. 1998). For these reasons, Plaintiffs’ claims are barred by the discretionary function exception. IV. CONCLUSION For the foregoing reasons, Plaintiffs’ claims should be dismissed for failure to state a claim or, in the alternative, for lack of subject matter jurisdiction. 14 See also Burkhart v. Washington Metro. Area Trans. Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997) (“The hiring, training, and supervision choices that [the agency] faces are choices ‘susceptible to policy judgment.’”). Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 22 of 23 Belisle v. United States, Case No. 3:16-cv-00168-RBB 20 Dated: October 21, 2016 Respectfully submitted, BENJAMIN MIZER Principal Deputy Assistant Attorney General Civil Division Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515 JAMES G. TOUHEY, JR. Director, Torts Branch Civil Division RUPERT M. MITSCH Assistant Director, Torts Branch U.S. Department of Justice Civil Division, Torts Branch /s/ Philip D. MacWilliams PHILIP D. MACWILLIAMS Trial Attorney E-mail: phil.macwilliams@usdoj.gov U.S. Department of Justice Civil Division, Torts Branch 1331 Pennsylvania Ave., NW Room 8080N Washington, DC 20004 Telephone: (202) 616-4285 Facsimile: (202) 616-5200 Attorneys for the United States of America CERTIFICATE OF SERVICE I hereby certify that on October 21, 2016, I caused to be served on the following counsel a copy of the foregoing Motion to Dismiss and Memorandum in Support via ECF filing and U.S. Mail: Jill Wittenbrader Law Offices of Jill Wittenbrader 506 Marine Way, Suite 3 Kodiak, AK 99615 s/ Phil MacWilliams Case 3:16-cv-00168-RRB Document 8 Filed 10/21/16 Page 23 of 23 Case 3:16-cv-00168-RRB Document 8-1 Filed 10/21/16 Page 1 of 1