Griener v. United States

MOTION to Dismiss for Lack of Jurisdiction

E.D. La.December 20, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DR. THAYNE C. GRIENER * NO. 16-cv-13407 * SECTION “F” (5) versus * JUDGE MARTIN L. C. FELDMAN UNITED STATES * MAGISTRATE NORTH * * * * * MOTION TO DISMISS PLAINTIFF=S COMPLAINT NOW INTO COURT, through undersigned counsel, comes defendant, the United States of America, who respectfully moves this Honorable Court, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, as follows: 1. Plaintiff’s claims, filed pursuant to the Federal Torts Claims Act, are preempted by the Civil Service Reform Act. 2. The Civil Service Reform Act provides Plaintiff’s sole remedy against his former employer. WHEREFORE, defendant, the United States of America, prays that this motion be granted and that Plaintiff=s suit be dismissed. Respectfully Submitted, KENNETH A. POLITE, JR. UNITED STATES ATTORNEY Case 2:16-cv-13407-MLCF-MBN Document 9 Filed 12/20/16 Page 1 of 2 2 BY: s/Sandra Ema Gutierrez SANDRA EMA GUTIERREZ Assistant United States Attorney LA Bar #17888 650 Poydras Street, Room 210B New Orleans, Louisiana 70130 Telephone: (504) 680-3000 sandra.gutierrez@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that on the 20th day of January, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all parties of record. s/Sandra Ema Gutierrez SANDRA EMA GUTIERREZ Assistant United States Attorney Case 2:16-cv-13407-MLCF-MBN Document 9 Filed 12/20/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DR. THAYNE C. GRIENER * NO. 16-cv-13407 * SECTION “F”(5) versus * JUDGE MARTIN L. C. FELDMAN UNITED STATES * MAGISTRATE NORTH * * * * * MEMORANDUM IN SUPPORT OF MOTION TO DISMISS MAY IT PLEASE THE COURT: The United States, through the undersigned Assistant United States Attorney, respectfully urges this Honorable Court to dismiss Plaintiff’s claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. As discussed below, the above-captioned matter should be dismissed because the Plaintiff’s claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., are preempted by the Civil Service Reform Act (“CSRA”), 5 U.S.C. § 1101, et seq. Federal employees are precluded from bringing claims against the government under the FTCA when the claims arise out of an employment relationship that is governed by the CSRA. Accordingly, the United States respectfully moves this Honorable Court to dismiss Plaintiff’s claims. I. STATEMENT OF THE CASE. In a detailed Complaint, Plaintiff Dr. Thayne Griener alleges that he maintained a position as a part-time otolaryngologist at the Southeast Louisiana Veterans Health Care System (“VA”) in New Orleans, Louisiana, from November 2007 until his termination in July of 2012. Rec. Doc. 1, Complaint, ¶¶ 1, 5, 8. During the time he worked for the VA (approximately five years), Plaintiff Case 2:16-cv-13407-MLCF-MBN Document 9-1 Filed 12/20/16 Page 1 of 6 2 contends he significantly curtailed his private medical practice in Pascagoula, Mississippi, in order to accommodate the VA’s needs. Id., at ¶ 5. On July 9, 2012, Plaintiff was notified that his employment with VA was terminated because he had engaged in inappropriate behavior. Id., at ¶¶ 8, 9. However, according to Plaintiff, his termination was in retaliation for his opposition to VA practices and his vocal complaints thereof. Id., at ¶ 14. Plaintiff contends that he had blown the whistle on VA practices which he believed violated laws, rules, and regulations which govern patient care. Id. Defendant’s termination of Plaintiff’s employment caused him, inter alia, to suffer extreme emotional distress, mental anguish, loss of enjoyment of life, suffering, and personal and professional embarrassment. Id., at ¶ 24. After his termination, Plaintiff attempted to revive his private medical practice in Mississippi, however, it has been slow and arduous. Id., at ¶ 26. Plaintiff’s loss of income has been substantial. Id. Plaintiff filed an administrative FTCA claim with the United States Department of Veterans Affairs, which claim was denied. Id., at Preliminary Statement. Thereafter, Plaintiff sought reconsideration of the denial. Id. The reconsideration request was also denied. Id. In his complaint Plaintiff makes clear that his claims arise under the FTCA. Id., at Jurisdiction; Prayer for Relief. Equally clear is that all of Plaintiff’s claims stem from his federal employment with the VA and involve personnel practices and prohibitions within the coverage of the CSRA. Accordingly, Plaintiff’s action should be dismissed. II. STANDARD OF REVIEW: RULE 12(b)(1). Federal courts are courts of limited jurisdiction and possess power over only those cases authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). If a district court lacks jurisdiction over the subject matter of a plaintiff=s claims, Case 2:16-cv-13407-MLCF-MBN Document 9-1 Filed 12/20/16 Page 2 of 6 3 dismissal is required. See Fed. R. Civ. P. 12(b)(1). The lack of subject matter jurisdiction may be raised at any time during the pendency of the case by any party or by the court. See Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (AA litigant generally may raise a court=s lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance.@); McDonal v. Abbott Labs, 408 F.3d 177, 182 n.5 (5th Cir. 2005) (A[A]ny federal court may raise subject matter jurisdiction sua sponte.@). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court=s resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The party asserting jurisdiction bears the burden of establishing that the district court possesses jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A court=s dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not ordinarily prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). III. THE COURT LACKS JURISDICTION OVER PLAINTIFF=S CLAIMS. The sole remedy for a federal employee’s work-related claims is provided in the CSRA, 5 U.S.C. § 1101, et seq. See Rollins v. Marsh, 937 F.2d 134, 137-40 (5th Cir. 2008). The CSRA created an “elaborate new framework for evaluating adverse personnel actions against federal employees,” and “prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review.” United States v. Fausto, 484 U.S. 439, 443 (1988) (internal citations and quotations omitted). The merit system principles of the Case 2:16-cv-13407-MLCF-MBN Document 9-1 Filed 12/20/16 Page 3 of 6 4 CSRA provide that “[a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management,” 5 U.S.C. § 2301(b)(2). Significantly, Congress amended the CSRA to add whistleblowing claims to its framework with the Whistleblower Protection Act, and this portion of the CSRA lists several examples of prohibited personnel practices related to whistleblowing. Tubesing v. United States, No. CIV.A. 14-641-JJB, 2015 WL 1310570, at *2 (M.D. La. Mar. 24, 2015), aff'd, 810 F.3d 330 (5th Cir. 2016) (citing 5 U.S.C. §§ 2302(a)(2)(A)(i)-(xii) (2014)). Pertinent to Plaintiff’s allegations, the CSRA provides: “[e]mployees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences (A) a violation of any law, rule, or regulation, or (B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2301(b)(9); see also 5 U.S.C. § 2302(b)(8) (prohibited personnel practices listed). The Fifth Circuit has given “wide-berth” to the preclusive effects of the CSRA. Schwartz v. International Federation of Professional and Technical Engineers, 306 F. App’x 168, 172 (5th Cir. 2009). “[T]he purpose of the statute is to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government,” and “[o]ne way in which the CSRA achieves this goal is by prohibiting various personnel practices and providing an administrative system for addressing their commission.” Id. at 172 (internal citations omitted). When a federal employer’s alleged conduct constitutes “prohibited personnel practices,” that conduct falls within the coverage of the CSRA, and the employee’s claims are completely preempted by the CSRA. Id. at 173. In Rollins v. Marsh, 937 F.2d 134 (5th Cir. 2008), two civil-service employees challenged adverse personnel actions taken by their federal employer after the employer discovered that the Case 2:16-cv-13407-MLCF-MBN Document 9-1 Filed 12/20/16 Page 4 of 6 5 plaintiffs, a married couple, had posed for and published nude photographs. Id., at 135-36. The plaintiffs’ complaint was based in federal constitutional and statutory and state-law causes of action, including claims under the FTCA. Id. at 136-37. The Fifth Circuit Court, as had the district court below, considered Supreme Court precedent that held that federal employees’ First Amendment claims are precluded by the comprehensive federal statutory remedies provided by the CSRA, and expanded that reasoning to include claims under the FTCA in the preemption of the CSRA. Id. at 137-38 (citing Bush v. Lucas, 462 U.S. 367 (1983) (stating that “[b]ecause such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, … it would be inappropriate … to supplement that regulatory scheme with a new judicial remedy.”)) The Rollins Court also adopted the consideration and holding of the Ninth Circuit, describing “the CSRA remedies as being the comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government,” Id. at 139, and concluding that “‘Congress’s purpose in enacting the CSRA was to channel grievances and disputes arising out of government employment into a single system of administrative procedures and remedies, subject to judicial review. To permit FTCA claims to supplant the CSRA’s remedial scheme certainly would defeat that purpose.” Id., quoting Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991). The Fifth Circuit concluded that the remedies available under the CSRA preclude recovery under the FTCA. Id., at 139-40. Again, in Morales v. Dep’t of the Army, 947 F.2d 766 (5th Cir. 1991), the Fifth Circuit affirmed the preclusive effect of the CSRA to claims of retaliatory demotion, violations of other constitutional rights, state-law claims, and FTCA claims. When the actions taken by a federal employer are “personnel decisions arising out of [the employee’s] relationship with the federal Case 2:16-cv-13407-MLCF-MBN Document 9-1 Filed 12/20/16 Page 5 of 6 6 government,” a plaintiff “cannot maintain an FTCA action or an action for violation of his constitutional rights based on these alleged acts.” Id. at 769. Here, Plaintiff alleges that he was improperly terminated from his federal employment, and seeks tort remedies related to that adverse employment action. No such tort remedies exist for Plaintiff as the CSRA provides the exclusive grievance procedure and preempts any cause of action under the FTCA. Therefore, Plaintiff’s claims must fail. IV. CONCLUSION Based upon the foregoing, the United States respectfully prays that the instant motion be granted and Plaintiff’s suit be dismissed for want of jurisdiction. Respectfully Submitted, KENNETH A. POLITE, JR. UNITED STATES ATTORNEY BY: s/Sandra Ema Gutierrez SANDRA EMA GUTIERREZ Assistant United States Attorney LA Bar #17888 650 Poydras Street, 16th Floor New Orleans, Louisiana 70130 Telephone: (504) 680-3000 sandra.gutierrez@usdoj.gov Case 2:16-cv-13407-MLCF-MBN Document 9-1 Filed 12/20/16 Page 6 of 6 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DR. THAYNE C. GRIENER * NO. 16-cv-13407 * SECTION “F” (5) versus * JUDGE MARTIN L.C. FELDMAN UNITED STATES * MAGISTRATE NORTH * * * * * NOTICE OF SUBMISSION TO: Thayne C. Griener, plaintiff, through attorney of record, M.L. Juran, Esq. 3324 North Causeway Blvd. Metairie, LA 70002 PLEASE TAKE NOTICE that the foregoing Motion to Dismiss will be submitted for hearing on the 11th day of January, 2017, before the Honorable Martin L.C. Feldman, United States District Judge, United States Courthouse, 500 Poydras Street, New Orleans, Louisiana. Respectfully submitted, KENNETH ALLEN POLITE, JR. UNITED STATES ATTORNEY /s/ Sandra Ema Gutierrez SANDRA EMA GUTIERREZ Assistant United States Attorney LA Bar Roll # 17888 650 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 (504) 680-3124 sandra.gutierrez@usdoj.gov Case 2:16-cv-13407-MLCF-MBN Document 9-2 Filed 12/20/16 Page 1 of 1