Gartner v. United States of America

Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim AND Memorandum in Support.

D. Or.November 15, 2016

BILLY J. WILLIAMS, OSB # 901366 United States Attorney District of Oregon SEAN E. MARTIN, OSB # 054338 Assistant United States Attorney 1000 SW Third Ave., Suite 600 Portland, Oregon 97204-2902 sean.martin@usdoj.gov Telephone: (503) 727-1010 Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION PATRICK C. GARTNER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No.: 6:16-cv-01680-JR DEFENDANT’S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1) and 12(b)(6) AND MEMORANDUM IN SUPPORT Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 1 of 17 Page 2- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR I. MOTION Defendant United States of America moves to dismiss this action under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), as explained and supported by the following memorandum and exhibits. Pursuant to LR 7-1, counsel for the parties conferred telephonically, but were not able to avoid the need for this motion; this motion is opposed. II. MEMORANDUM INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Patrick Gartner asserts a negligence claim and an intentional infliction of emotional distress claim against the United States. Mr. Gartner’s claims allege tortious actions by Veterans Affairs (“VA”) management, when Mr. Gartner was a federal employee at the Roseburg VA Medical Center. Mr. Gartner attempts to invoke jurisdiction for this action under the Federal Tort Claims Act (“FTCA”), but his claims should be dismissed because: 1) Title VII bars his tort claims; 2) The Civil Service Reform Act pre- empts his tort claims; 3) sovereign immunity bars his constitutional damage claims; 4) the statute of limitations bars many of his tort allegations; 5) Oregon law bars his negligence claim; and 6) the discretionary function exception to the FTCA bars his allegations of negligent supervision and training. Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 2 of 17 Page 3- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR FACTUAL AND PROCEDURAL BACKGROUND Mr. Gartner alleges tortious conduct by VA management during the period 2013-14, when he was a federal employee at the Roseburg VA Medical Center. Mr. Gartner alleges that he provided health care services in June 2013, which led to a VA investigation of him that caused him “tremendous stress.” Dkt 1, Complaint ¶ 7. Mr. Gartner took vacation time in the summer of 2013 “to alleviate the stress.” Id. Later, in August 2013, Mr. Gartner alleges that he provided health care services to a veteran that led to an accusation of patient abuse. Id. ¶¶ 8-10. VA management initiated an investigation of Mr. Gartner, which he claims was illegally handled in various ways. Id. at ¶¶ 11-12. As a result of the investigation, Mr. Gartner alleges he was “reprimanded” for his conduct. Id. at ¶ 13. In approximately April 2014, Mr. Gartner alleges that he reviewed the VA’s investigative file on him, and that the file contained false statements, which caused him “additional stress and anxiety.” Id. at ¶ 14. Mr. Gartner also alleges that he filed an Equal Employment Opportunity (“EEO”) complaint, based on supposed sex discrimination against him and other male nurses and doctors. Id. at ¶ 15. Mr. Gartner filed his EEO complaint in October 2013. Exhibit A to Declaration of Delmer Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 3 of 17 Page 4- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR Davis (copy of final agency decision rejecting Mr. Gartner’s discrimination claims). The VA’s Office of Employment Discrimination Complaint Adjudication found no discrimination, in a final agency decision issued on September 12, 2014. Id. at 13. Under established time limits, Mr. Gartner had the right to appeal this final agency decision to the Equal Employment Opportunity Commission or the U.S. District Court. Id. at 13-14. Mr. Gartner did not appeal the final agency decision. Mr. Gartner also alleges that VA management created a “hostile work environment” for him, by initiating inappropriate investigations into him and by refusing to act when VA employees spread false rumors about him. Id. at ¶ 16. Mr. Gartner ended his VA employment in July 2014. Id. at ¶ 18. On February 4, 2016, Mr. Gartner presented an administrative tort claim to the VA. Dkt 1, Complaint ¶ 2; Exhibit A to Declaration of Michael Bartley (copy of Mr. Gartner’s tort claim form and accompanying letter). The VA rejected the tort claim in April 2016. Id. On August 19, 2016, Mr. Gartner filed this action raising two theories of tort liability against the United States. First, Mr. Gartner alleges that VA management was negligent in placing him in situations for which he was not prepared and “subsequently targeting” him for “investigation and discipline.” Dkt 1, Complaint ¶ 21. Second, Mr. Gartner alleges that VA management intentionally inflicted emotional distress on him by assigning him to a Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 4 of 17 Page 5- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR patient “without adequate support,” conducting a “retaliatory investigation” of him, and making a “retaliatory reassignment” to other job duties. Id. at ¶ 25. LEGAL STANDARDS AND BACKGROUND I. Dismissal under Fed. R. Civ. P. 12(b)(1). The burden is on a plaintiff to establish that this Court has subject- matter jurisdiction over his claims. See Ass’n of American Medical Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000). For motions to dismiss under Fed. R. Civ. P. 12(b)(1), this Court may consider affidavits or other evidence submitted regarding the issue of subject- matter jurisdiction. A Rule 12(b)(1) may be a facial or factual challenge to the court’s subject-matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If the challenge is factual, this Court may review outside evidence without converting the motion to dismiss into a motion for summary judgment, and this Court need not presume the truthfulness of the plaintiff’s allegations. Id. Here, the United States makes a factual challenge to subject-matter jurisdiction. II. Dismissal under Fed. R. Civ. P. 12(b)(6). Under Fed. R. Civ. P. 12(b)(6), a court may dismiss a complaint for failure to state a claim upon which relief can be granted. The factual allegations in the complaint are accepted as true and construed in the light Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 5 of 17 Page 6- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR most favorable to the non-moving party. Center for Community Action and Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 1023 (9th Cir. 2014). Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 as amended by 275 F.3d 1187 (9th Cir. 2001). If matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, courts may “consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Courts will not assume that plaintiffs “can prove facts which [they have] not alleged, or that the defendants have violated . . . laws that have not been alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). “A complaint may be dismissed under Fed. R. Civ. P. 12(b)(6) when there is “either a lack of a cognizable theory or the absence of sufficient facts alleged under a cognizable legal claim.” Center for Community Action, 764 F.3d at 1023 (citation omitted). Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 6 of 17 Page 7- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR III. The Federal Tort Claims Act. The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., waives the sovereign immunity of the United States with respect to certain tort claims based upon “injury or loss of property” caused “by the negligent or wrongful act or omission” of a federal employee acting within the scope of her office or employment. 28 U.S.C. § 1346(b)(1) (jurisdictional statute relating to the FTCA); Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (noting that the FTCA “provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment”). Under the FTCA, the government cedes its sovereign immunity to the extent that it may be sued “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The liability of the United States under the FTCA is determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). See, e.g., Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2009) (applying law of state where alleged tort took place). Courts must strictly construe the FTCA’s sovereign immunity waiver in favor of the government, and “may not enlarge its waiver beyond what the statute requires.” F.D.I.C. v. Craft, 157 F.3d 697, 707 (9th Cir. 1998). A waiver of sovereign immunity cannot be implied, and must be unequivocally Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 7 of 17 Page 8- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR expressed by Congress. See Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007). The FTCA expressly preserves sovereign immunity over certain types of claims enumerated in 28 U.S.C. § 2680. If a plaintiff’s claim falls within any of the section 2680 exclusions, then the court lacks subject-matter jurisdiction. Nurse, 226 F.3d at 1000. These excluded claims include any claims based on a discretionary function, and any claims arising out of certain enumerated “intentional” torts, including abuse of process. Id. §§ 2680(a), (h). The FTCA’s waiver of sovereign immunity is “severely limited” by these provisions. Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975). ARGUMENT I. Title VII is an exclusive remedy that bars Mr. Gartner’s FTCA action. Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of sex, race, and other factors. Brown v. General Services Administration, 425 U.S. 820, 825 (1976). Section 717 of the Act, 42 U.S.C. § 2000e-16, is the “exclusive, pre-emptive administrative and judicial scheme [available] for the redress of federal employment discrimination.” Brown v. General Services Administration, 425 U.S. 820, 829 (1976). A “hostile work environment” is cognizable as a form of unlawful discrimination Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 8 of 17 Page 9- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR under Title VII. Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 871 (9th Cir. 2001). Here, Title VII constituted the exclusive remedy for Mr. Gartner’s claims of federal employment discrimination, and this bars Mr. Gartner’s attempt now to invoke the FTCA. Mr. Gartner’s complaint is centered on allegations that VA management’s investigation into his workplace conduct was discriminatory on the basis of his sex and that the VA “created a hostile work environment.” Dkt 1, Complaint ¶¶ 15, 16. These allegations are squarely within the coverage of Title VII, and Title VII’s exclusive scheme bars this FTCA action. Mr. Gartner alleges that he was retaliated against for filing an EEO complaint. Id. ¶ 15. But “Title VII provides a statutory remedy for retaliation against filing an EEO charge,” and Title VII is the exclusive remedy for such retaliation. White v. General Services Administration, 652 F.2d 913, 917 (9th Cir. 1981); 42 U.S.C. § 2000e–3(a). This exclusivity bars his attempt to pursue tort claims regarding these allegations. Furthermore, Mr. Gartner not only had an exclusive remedy under Title VII, but he invoked it. Employing his Title VII remedies, Mr. Gartner litigated under the Equal Employment Opportunity administrative process. Dkt 1, Complaint ¶ 15; Exhibit A to Declaration of Delmer Davis. Mr. Gartner argued that the VA discriminated on the basis of his sex, created a Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 9 of 17 Page 10- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR hostile work environment, and retaliated against him. Id. at 1-5. The VA issued a final agency decision finding no discrimination. Id. at 13. The final decision provided for several avenues of appeal including judicial review in U.S. District Court, id. at 13-14, but Mr. Gartner chose not to exercise these rights. The failure of Mr. Gartner’s Title VII litigation, and his decision not to appeal the VA’s decision on his Title VII claims, is not grounds to now resurrect his employment discrimination claims as FTCA claims. For these reasons, this Court should dismiss this action for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). II. The Civil Service Reform Act pre-empts Mr. Gartner’s FTCA action. In the alternative, Mr. Gartner’s action is pre-empted by the Civil Service Reform Act (“CSRA”). The CSRA is the comprehensive remedy for prohibited personnel actions in the federal workplace. Veit v. Heckler, 746 F.2d 508, 509 (9th Cir. 1984) (“the comprehensive remedial nature of the [CSRA] indicates a congressional intent to preclude . . . judicial review [of federal personnel decisions and procedures] except as provided for in the statute itself”); Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991) (noting that the Supreme Court has refused “to recognize alternative remedies for government employees whose grievances fall within the scope of the CSRA”). Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 10 of 17 Page 11- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR The CSRA provides a sweeping remedial scheme through which federal employees can challenge “prohibited personnel practices.” 5 U.S.C. § 2302. The CSRA defines “prohibited personnel practices” as any “personnel action” taken for an improper motive, such as sex discrimination, by someone who has such authority. See id. at § 2302(b). In turn, “personnel action” is defined to include actions including disciplinary or corrective actions, reassignments, performance evaluations, decisions concerning pay or benefit, or any other significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A)(i)-(xi). Here, the heart of Mr. Gartner’s complaint is a challenge to VA personnel practices covered by the CSRA. Mr. Gartner complains that he was wrongly investigated and reprimanded by VA management. See, e.g., Dkt 1, Complaint ¶¶ 7, 13. “Plaintiff alleges that there was no legitimate basis for the investigation or the reprimand.” Id. ¶ 14. Mr. Gartner also complains that he was wrongfully “reassigned from his duties” by VA management, after “having been already removed from patient care” during the investigation. Id. ¶ 15. And he alleges further wrongful VA investigations against him. Id. ¶ 16. These allegations arise under the CSRA and its remedial scheme, which pre-empts this FTCA action. Congress’s purpose in enacting the CSRA was “to channel grievances and disputes arising out of government Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 11 of 17 Page 12- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR employment into a single system of administrative procedures and remedies.” Rivera, 924 F.2d at 951. As Rivera emphasized, permitting “FTCA claims to supplant the CSRA’s remedial scheme [] would defeat that purpose.” Id. For these reasons, this Court should dismiss this action for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). III. Mr. Gartner may not pursue constitutional damages claims against the United States. Mr. Gartner also attempts to obtain tort money damages against the United States for supposed due process and self-incrimination constitutional violations, but this is barred as a matter of law. See Dkt 1, Complaint ¶¶ 11, 22, 26 (alleging constitutional violations). The courts lack subject matter jurisdiction to hear constitutional damage claims against the United States, because the United States has not waived sovereign immunity with respect to such claims. See, e.g., Clemente v. United States, 766 F.2d 1358, 1363-64 (9th Cir. 1985). For these reasons, this Court should dismiss Mr. Gartner’s constitutional tort allegations under Fed. R. Civ. P. 12(b)(1). IV. The FTCA’s statute of limitations bars many of Mr. Gartner’s tort allegations. Much of Mr. Gartner’s tort case accrued – by his own allegations – in 2013. These key aspects of Mr. Gartner’s case are time-barred under the FTCA and should be dismissed under Fed. R. Civ. P. 12(b)(6). Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 12 of 17 Page 13- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR A plaintiff bringing an FTCA claim against the United States must first file an administrative claim with the appropriate agency “within two years after such claim accrues.” 28 U.S.C. § 2401(b). Otherwise, it is “forever barred.” Id. Once a plaintiff becomes aware of his injury and its immediate cause, his claim accrues. Kubrick v. United States, 444 U.S. 111, 122 (1979). The Supreme Court declined to “hold that Congress intended that ‘accrual’ of a claim must await awareness by the plaintiff that [her] injury was negligently inflicted.” Id. at 123. Accord Gallardo v. United States, 755 F.3d 860, 863-64 (9th Cir. 2014). Here, Mr. Gartner alleges he filed the requisite administrative tort claim on February 4, 2016. Dkt 1, Complaint ¶ 2. But most of Mr. Gartner’s allegations are time-barred under the FTCA, because they are based on allegations of tortious actions that occurred in 2013, well over two years before February 4, 2016. For example, Mr. Gartner complains about a 2013 VA investigation of him that “caused” him “tremendous stress” and which created his “fear” that he “would be placed into a situation for which he was not equipped and subsequently targeted for events outside his control.” Id. ¶ 7. As a result of this stress and fear, “Plaintiff took vacation time in the summer of 2013.” Id. Plaintiff also alleges that a later 2013 VA investigation of him was illegal. Id. at ¶ 11. All of these allegations are time-barred. Only tort allegations that accrued within two years of Mr. Gartner’s February 2016 Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 13 of 17 Page 14- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR administrative tort claim are cognizable. For these reasons, this Court should dismiss Mr. Gartner’s time-barred tort allegations under Fed. R. Civ. P. 12(b)(6). V. Mr. Gartner’s negligence claim is not viable under Oregon’s physical-impact rule. Under the applicable Oregon tort law, Mr. Gartner’s negligence claim fails to state a viable claim under Oregon’s physical-impact rule and should be dismissed under Fed. R. Civ. P. 12(b)(6). The liability of the United States under the FTCA is determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). See, e.g., Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2009). Oregon law does not permit the recovery of damages for negligence in the absence of evidence of a related physical injury. The physical-impact rule requires a “physical injury that gives rise to emotional distress.” Chouinard v. Health Ventures, 39 P. 3d 951, 955, 179 Or. App. 507, 514-15 (2002) (internal quotation omitted). See also Saechao v. Matsakoun, 717 P. 2d 165, 168, 78 Or. App. 340, 346 (1986) (noting that the impact rule requires “a direct accompanying injury to the person who suffers the emotional distress as a prerequisite to its compensability”). Mr. Gartner’s negligence claim fails, because his allegations of Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 14 of 17 Page 15- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR negligence do not allege a direct physical injury. Instead, his allegations claim that negligent VA management caused him “stress” and “fear” beginning in 2013. Dkt 1, Complaint ¶ 7. Plaintiff alleges he took vacation time in 2013 “to alleviate the stress.” Id. Plaintiff also alleges that viewing the allegedly inaccurate contents of an investigative file caused him in 2014 “additional stress and anxiety.” Id. ¶ 14. As a result of these events, Plaintiff then alleges that he developed high blood pressure and other physical symptoms. Id. ¶ 17. Mr. Gartner’s allegations of negligence—based on an indirect physical impact -- fail to state a viable claim. As this Court recognizes, Oregon law allows a negligence claim if a plaintiff first suffers a physical impact that gives rise to emotional distress. Andersen v. Atlantic Recording Corp., No. 07-cv-934-BR, 2010 WL 4791728 at * 6-7 (D. Or. Nov. 18, 2010). But here, Mr. Gartner is alleging emotional distress that later gave rise to physical symptoms. This formulation fails the physical-impact rule, as this Court emphasized in Andersen. Id. For these reasons, this Court should dismiss Mr. Gartner’s negligence allegations under Fed. R. Civ. P. 12(b)(6). VI. The FTCA’s discretionary function exception bars Mr. Gartner’s allegations of negligent supervision and training. Mr. Gartner alleges negligence against the United States regarding the Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 15 of 17 Page 16- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR supervision and training of himself and other VA employees. But these specifications of negligence are barred under the FTCA’s discretionary function exception in 28 U.S.C. § 2680(a), and this Court should dismiss them under Fed. R. Civ. P. 12(b)(1). See Dkt 1, Complaint ¶ 21 (alleging that the VA was negligent in “placing Plaintiff and other nurses in situations for which they were not prepared”); id. at ¶ 7 (alleging “serious understaffing” of nurses by VA management); id. at ¶ 8 (alleging “no protocol was in place allowing nurses to abandon care in the event a patient became violent”); id. at ¶25 (alleging that the VA wrongly assigned Plaintiff “to a violent patient without adequate support”). The Ninth Circuit has repeatedly recognized that claims of negligent supervision and negligent training are barred under the FTCA’s discretionary function exception. Nurse v. United States, 226 F.3d 996, 1001- 02 (9th Cir. 2000); Doe v. Holy See, 557 F.3d 1066, 1084-85 (9th Cir. 2009); Xue Lu v. Powell, 621 F.3d 944, 950 (9th Cir. 2010). The FTCA’s discretionary function exception bars “[a]ny 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 discretionary function exception is designed to “prevent judicial ‘second-guessing’ of legislative and administrative decisions Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 16 of 17 Page 17- DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM; Gartner v. United States, 6:16-cv-01680-JR grounded in social, economic, and political policy through the medium of an action in tort.” United States v. Gaubert, 499 U.S. 315, 323 (1991). For these reasons, Mr. Gartner’s allegations of negligent supervision and training should be dismissed for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). CONCLUSION This Court should dismiss this action under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Dated this 15th day of November, 2016. Respectfully Submitted, BILLY J. WILLIAMS United States Attorney District of Oregon /s/ Sean E. Martin SEAN E. MARTIN Assistant United States Attorney Case 6:16-cv-01680-JR Document 6 Filed 11/15/16 Page 17 of 17