Big Crow v. Stanley

BRIEF in Support re MOTION to Dismiss or MOTION to Substitute Party

D.S.D.September 12, 2016

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION FILED SEP 1 2 2016 ~4.~- ELIZABETH MARIE BIG CROW, CIV. 16- SO '8'2_ Plaintiff, v. GARY STANLEY, Defendant. BRIEF IN SUPPORT OF MOTION TO DISMISS The United States asks that this recently removed case be dismissed on the merits because Plaintiffs cause of action is founded in the Federal Tort Claims Act ("FTCA"). The FTCA has a jurisdictional bar in that federal courts do not obtain jurisdiction to hear these claims unless they have first been presented to the relevant agency and the plaintiff has exhausted his or her administrative remedies. Because Plaintiff failed to plead that she presented and exhausted this claim before the agency at issue and the agency offered evidence that Plaintiff, in fact, did not present or exhaust this claim, the Court does not have subject matter jurisdiction to hear her claims. The entire case should be dismissed. FACTUAL BACKGROUND Elizabeth Big Crow is a member of the Oglala Sioux Tribe. Notice of Removal, Exhibit 1 at 2. In the spring and summer of 2015, severe storms and flooding caused extensive damage to individual homes in the Pine Ridge Indian 1 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 1 of 8 PageID #: 26 Reservation in South Dakota. Declaration of Meghan K. Roche, Exhibit 2, Declaration of Gary Stanley if 3. As a result, the President of the United States Declared a Disaster Declaration whereby the Federal Emergency Management Agency ("FEMA") was dispatched to assist the Oglala Sioux Tribe and its Tribal Members. Id. Part of FEMA's assistance included the authority to implement a Permanent Housing Construction mission to help Tribal Members. Id. if 6. This consisted of two options: either providing new manufactured homes to members whose homes were damaged beyond repair or contracting to repair these individuals' homes if they were able to be salvaged. Id. If a home could not be salvaged, federal agencies and the Tribe agreed that the home should be destroyed to prevent hazards from remaining in the community. Id. if 7. Big Crow alleges that she purchased a trailer back in 1999 and then entered into a lease agreement with the Bureau of Indian Affairs on or about August 1, 2014, to put that trailer on a tribal trailer court. Notice of Removal, Exhibit 1 at 2. Eventually, Big Crow allowed Melvin Brewer to lease the trailer rent free if he agreed to fix it up. See id. at 5. Big Crow alleges that while she was in Wyoming on or about June 24-26, 2016, FEMA demolished her trailer. Notice of Removal, Exhibit 1 at 2. She further alleges that she was not compensated for the loss of her trailer, but instead Brewer was given a replacement trailer that he relocated to another property. Id. Big Crow requests that FEMA be declared responsible for the loss of the trailer. Notice of Removal, Exhibit 1 at 2-3. 2 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 2 of 8 PageID #: 27 On August 2, 2016, Plaintiff filed a complaint in the Oglala Sioux Tribal Court naming Gary Stanley, who was the Federal Coordinating Officer for the Disaster Declaration that was known as FEMA-4237-DR-OST, as an individual defendant. Stanley was stationed in Pine Ridge and was the senior federal official on site. See Notice of Removal, Exhibit 1; Roche Declaration, Exhibit 2. The United States was served on August 23, 2016. See Notice of Removal, Exhibit 1 at 1. The United States Attorney for the District of South Dakota has declared, in a contemporaneously-filed scope certification, that Stanley was acting in his official capacity with FEMA during the time period alleged in Big Crow's complaint and stating that the United States is the real party in this suit. Roche Declaration, Exhibit 1. The United States has removed this cause of action from the Oglala Sioux Tribal Court to this Court as the Tribal Court does not have jurisdiction and this Court is the exclusive forum to hear this claim. The United States asks that the case be dismissed on the merits for the reasons outlined below. LEGAL ANALYSIS I. The FTCA Provides Plaintiff's Exclusive Remedy Plaintiff attempted to bring this cause of action against a federal employee in Tribal Court. First, Tribal Court does not have jurisdiction over the United States, Untied States agencies, or United States' employees acting within the scope of their employment. Second, Plaintiffs claim is against FEMA for the alleged loss of her trailer or for money damages pertaining to the loss of 3 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 3 of 8 PageID #: 28 her trailer. The exclusive remedy for this type of cause of action is the Federal Tort Claims Act, and the exclusive party to be sued is the United States rather than an individual federal employee. Congress has provided immunity from suit for federal employees for alleged wrongful acts or omissions that arise out of the scope of their employment. See Primeaux v. United States, 181 F.3d 876, 878 (8th Cir. 1999) (citations omitted). Jurisdiction for bringing such actions against the United States as the proper defendant is found at 28 U.S.C. § 1346(b), which provides that: [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims 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[.] 28 U.S.C. § 1346(b). The legal remedy of pursuing an FTCA action against the United States is "exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim." 28 U.S.C. § 2679(b)(l). Congress set forth a process for substituting the United States as the proper defendant whenever federal employees are sued individually for acts or omissions undertaken within the scope of their employment in 28 U.S.C. § 2679(d)(2). That statute provides: Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney 4 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 4 of 8 PageID #: 29 General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal. 28 U.S.C. § 2679(d)(2). The Attorney General has delegated the certification authority to the local United States Attorney. Forrest City Mach. Works, Inc. v. United States, 953 F.2d 1086, 1087 (8th Cir. 1992) (citing 28 C.F.R. § 15.3(a)). South Dakota's United States Attorney has certified that Stanley was acting within the scope of his employment for any allegations made in the Tribal Court Complaint. Accordingly, the United States of America should be substituted as the proper defendant in this action if it survives. Regardless, because this action is really against the United States, this forum is the exclusive location where this claim can be pursued. II. The Case Should Be Dismissed Because Plaintiff Has Not Presented Her Claim to FEMA or Exhausted Administrative Remedies Although Plaintiffs claim may now be in the proper forum, it should be dismissed because she failed to present her claim to FEMA and exhaust her administrative remedies. A court may grant a motion to dismiss a complaint under Federal Rule Civil Procedure 12(b) for lack of subject matter jurisdiction and for a failure to state a claim. Camey v. Houston, 33 F.3d 893, 894 (8th Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pursuant to Fed. R. Civ. P. 12 (b) ( 1), a plain tiff bears the burden of establishing by a preponderance of the 5 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 5 of 8 PageID #: 30 evidence at the onset of a case that the Court possesses subject matter jurisdiction to hear the case. Federal courts have limited jurisdiction, and the law presumes that a cause of action lies outside its jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, but may consider material outside of the pleadings in an effort to determine whether it has jurisdiction. Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). The Court must first distinguish between a facial attack and a factual attack. Id. at 79. For a facial attack, allegations in the complaint are taken as true and disputed issues are construed and all reasonable inferences drawn in favor of the complaint. However, under a factual attack, the non-moving party loses the benefit of such safeguards. Id. Plaintiffs complaint cannot survive a facial or factual attack. "The timely filing of an administrative claim and exhaustion of administrative remedies are jurisdictional prerequisites to suit under the [FTCA]." Sanders v. United States, 760 F.2d 869, 872 (8th Cir. 1985); see also Rucker v. U.S. Dep't of Lab., 798 F.2d 891 (6th Cir. 1986); McNeil v. United States, 508 U.S. 106 (1993) (dismissing FTCA action when plaintiff failed to exhaust administrative remedies prior to filing claim in district court). 28 U.S.C. § 2675(a) provides: An action shall not be instituted upon a claim 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 6 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 6 of 8 PageID #: 31 of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified mail. "Section 2675 clearly makes the filing of an administrative claim a mandatory condition precedent to the filing of a civil action against the United States for damages arising from the negligent act or omission of any Government employee ... . "Melo v. United States, 505 F.2d 1026, 1028 (8th Cir. 1974); see also Manko v. United States, 830 F.2d 831 (8th Cir. 1987). Big Crow's claims are asking the United States for money damages. She seems to allege that some employee of FEMA was negligent when demolishing her trailer or when providing the new manufactured home to Brewer instead of her. As this is an FTCA claim, it must be presented to the agency (FEMA) and administratively exhausted. Big Crow has not alleged in her complaint that she presented and exhausted an administrative claim under the FTCA. This deficiency alone acts as ajurisdictional bar. See Sanchez v. United States, 49 F.3d 1329, 1329-30 (8th Cir. 1995) (concluding that the district court properly dismissed the FTCA claim when Plaintiff failed to allege he presented his claim to the relevant agency); Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993) (stating that "[p]resentment of an administrative claim is jurisdictional and must be pleaded and proven by the FTCA claimant"). Plaintiffs failure to plead presentment and exhaustion is sufficient to warrant dismissal, but additionally, FEMA also has established that there is no record of any administrative FTCA claim filed with FEMA by Elizabeth Marie 7 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 7 of 8 PageID #: 32 Big Crow. See Declaration of Kevin Yusman if 7. Because Big Crow has not met the jurisdictional presentment and exhaustion requirements of the FTCA, the Court does not have subject matter jurisdiction to hear this case, and the case should be dismissed. CONCLUSION Removal of this action was correct because Plaintiff cannot sue a federal employee acting in his official capacity in Tribal Court and because this Court has exclusive jurisdiction over her FTCA claim. Because Plaintiff failed to present this claim to FEMA or exhaust her administrative remedies, the Court has no authority to hear her claims. Dismissal is appropriate. Date: September 12, 2016. RANDOLPH J. SEILER United States Attorney MEG~~ Assistant U.S. Attorney P.O. Box 2638 Sioux Falls, SD 57101-2638 Phone: 605.357.2315 Fax: 605.330.4402 Meghan. Roche@usdoj.gov 8 Case 5:16-cv-05082-JLV Document 5 Filed 09/12/16 Page 8 of 8 PageID #: 33 OGLALA SIOUX TRIBAL COURT OGLALA SIOUX TRIBE IN RE: CIV 16-0405 ELIZABETH MARIE BIG CROW PETITIONER v. GARY STANLEY RESPONDENT ) ) ss: IN TRIBAL COURT DECLARATION OF KEVIN YUSMAN I, KEVIN YUSMAN, declare as follows: 1. I currently hold the position of Deputy Chief Counsel for the Mission Support, Federal Litigation and Claims branch in the Office of Chief Counsel of the Federal Emergency Management Agency (FEMA), Department of Homeland Security. I have held this position since July 2012. This declaration is based my personal knowledge and facts rep011ed to me by my staff. 2. The Secretary of the U.S. Department of Homeland Security, through the General Counsel of the Department, has delegated to the Chief Counsel of FEMA the authority to consider, ascertain, adjust, determine, compromise and settle administrative claims under the Federal Tort Claims Act (FTCA) alleging negligent or wrongful acts or omissions by employees of FEMA while acting within the scope of their employment. 3. My responsibilities as Deputy Associate Chief Counsel for Mission Supp011 Federal Litigation and Claims include acting as the Chief Counsel's designee to consider, ascertain, adjust, determine, compromise, and settle any administrative claims for money damages against the United States for injury or loss of any employee of FEMA who is acting within the scope of his/her employment at the time of the alleged act. Case 5:16-cv-05082-JLV Document 5-1 Filed 09/12/16 Page 1 of 2 PageID #: 34 4. FEMA's Office of Chief Counsel (OCC) is designated at 44 C.F.R. § 11..1 l(b) as the addressee of all administrative tort claims against the Agency. 5. OCC has in place routine procedures for handling administrative claims filed under the FTCA. When an FTCA administrative claim is received in OCC, the claim is dated and logged into a central docket. Claims Specialists in my division then adjudicate each claim and present recommendations for me to approve, disapprove, or compromise each claim. 6. I have directed my staff to review my division's docket of FTCA claims for any claim filed by Elizabeth Marie Big Crow. 7. My staff found no record of any administrative FTCA claim filed with FEMA by Elizabeth Marie Big Crow. 8. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and coll'ect to the best of my knowledge and belief. ocff Executed this "< / '-·-aay of August, 2016. K,e'vin "Yi $man Peput >Chief Counsel for Mission Support {Federal Litigation and Claims branch Office of the Chief Counsel Federal Emergency Management Agency Case 5:16-cv-05082-JLV Document 5-1 Filed 09/12/16 Page 2 of 2 PageID #: 35