Mackall v. Lemasters, Jr., et Al.

MOTION to Dismiss for Failure to State a Claim

D. Md.July 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TOBY R. MACKALL * Plaintiff, * v. * Civil No. 17-cv-774-RDB UNITED STATES DEPARTMENT OF * DEFENSE * Defendant. * * * * * * * * * * * * * TOBY R. MACKALL * Plaintiff, * v. * Civil No. 17-cv-865-ELH CLARK W. LEMASTERS, JR., et al. * Defendants. * * * * * * * * * * * * * * MOTION TO DISMISS Defendants, the United States Department of Defense (Civil No. 17-cv-00774-RDB) and Lieutenant Colonel Myron L. Bell, Colonel Timothy D. Leudecking, Major General Clark W. LeMasters, Jr and Major Matthew D. Tobin (Civil No. 17-cv-00865-ELH), through counsel, Stephen M. Schenning, Acting United States Attorney for the District of Maryland, and Joel W. Ruderman, Special Assistant United States Attorney, moves to dismiss the Plaintiff’s complaints in the above captioned actions pursuant to Fed. R. Civ. P. 12(b)(1) and (6). If the Court does not dismiss all common-law tort claims asserted by Plaintiff in Civil No. 17-cv-00865-ElH, Defendants also request the Court to substitute the United States as the proper defendant for any remaining common-law tort claims pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988. Case 1:17-cv-00865-ELH Document 10 Filed 07/07/17 Page 1 of 2 2 The grounds in support of this motion are set forth in the accompanying memorandum of law and the attached exhibits, which are incorporated herein by reference. WHEREFORE, the Defendants request that the Court grant this motion and dismiss Plaintiff’s complaints. Respectfully submitted, Stephen M. Schenning Acting United States Attorney /s/ Joel W. Ruderman Special Assistant United States Attorney Federal Bar No. 13125 36 South Charles Street, 4th Floor Baltimore, MD 21201 (410) 209-4000 joel.ruderman@usdoj.gov Counsel for the Defendants CERTIFICATE OF SERVICE I hereby certify that, on July 7, 2017, a copy of the foregoing Defendant’s Motion to Dismiss; Memorandum of Law in Support thereof; and Exhibits were mailed, first-class postage prepaid, to the self-represented Plaintiff at his address of record: Toby Roberto Mackall 1612 Shirley Avenue Joppa, MD 21085 Self-represented plaintiff /s/ Joel W. Ruderman Special Assistant United States Attorney Case 1:17-cv-00865-ELH Document 10 Filed 07/07/17 Page 2 of 2 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TOBY R. MACKALL * Plaintiff, * v. * Civil No. 17-cv-774-RDB UNITED STATES DEPARTMENT OF * DEFENSE * Defendant. * * * * * * * * * * * * * TOBY R. MACKALL * Plaintiff, * v. * Civil No. 17-cv-865-ELH CLARK W. LEMASTERS, JR., et al. * Defendants. * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Self-represented plaintiff, Major Toby Mackall, has filed two separate complaints with this Court asserting claims arising from events that occurred before and after an active shooter event in Major Mackall’s unit. In doing so, Major Mackall asserts claims against the United States Department of Defense (in civil no. 17-cv-774-RDB) and four officers of the United States Army (the “Individual Defendants”) (in civil no. 17-cv-865-ELH).1 The claims upon which Major Mackall seeks relief arise from or are incident to Major Mackall’s military service. 1 The Individual Defendants are Lieutenant Colonel Myron L. Bell, Colonel Timothy D. Leudecking, Major General Clark W. LeMasters, Jr. and Major Matthew D. Tobin. Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 1 of 19 2 As explained in detail below, Major Mackall fails to assert any claims upon which this Court may grant relief.2 If the Court does not dismiss all common-law tort claims asserted by Major Mackall, the Individual Defendants also request the Court to substitute the United States as the proper defendant for all remaining common-law tort claims alleged by Major Mackall against the Individual Defendants, under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”). FACTUAL BACKGROUND The Parties. Plaintiff, Major Toby Mackall, is a Major in the United States Army. From approximately June 24, 2012 to April 16, 2014, he was assigned as the Executive Officer (“XO”) of the 49th Movement Control Battalion (“49th MCB”), 4th Sustainment Brigade, 13th Sustainment Command, located at Fort Hood, Texas. Ex. 1, Department of Army, Investigative Report of Colonel John C. White. Defendant United States Department of Defense is an agency of the United States. Defendant Lieutenant Colonel (“LTC”) Bell is a Lieutenant Colonel in the United States Army. At all relevant times with respect to the allegations in Major Mackall’s complaints, LTC Bell was the commander of the 49th MCB. Major Mackall reported directly to LTC Bell. Defendant Colonel Leudecking is a Colonel in the United States Army. At all relevant times with respect to the allegations in Major Mackall’s complaints, Col. Leudecking was the 2 As noted above, Major Mackall is self-represented. The complaints filed by Major Mackall are difficult to follow. Based upon a liberal review of the complaints, undersigned counsel has attempted to ascertain and respond to each claim asserted by Major Mackall. Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 2 of 19 3 Brigade Commander of the 4th Sustainment Brigade. LTC Bell reported directly to Col. Leudecking. Defendant Major General LeMasters is a Major General in the United States Army. At all relevant times with respect to the allegations in Major Mackall’s complaints, Major General LeMasters was the Commander of the 13th Sustainment Command. Col. Leudecking reported directly to Major General LeMasters. Defendant Major Matthew D. Tobin is a Major in the United States Army. Major Tobin was named the Detailed Inspector General to investigate a certain whistleblower reprisal case involving Major Mackall (whistleblower reprisal case no. 15-6122). Complaint (ECF 1) Civil No. 17-cv-00865-ELH at 6. The Active Shooter Incident. On April 2, 2014, during a staff meeting led by Major Mackall, an active shooter incident occurred in Major Mackall’s unit and service members were killed. Complaint (ECF 1) Civil No. 17-cv-00865-ELH at 6; see also Ex. 1, Investigative Report at 1. When the shooting began, Major Mackall fled the staff meeting and did not return until the shooter had departed and the area secured. Ex. 1, Investigative Report at 4. At the same time, Sergeant First Class Daniel Ferguson was shot and killed as he prevented the shooter from entering the staff meeting. Id. According to Major Mackall, it was not his intent “to leave anyone behind, but a natural response to an event of this magnitude.” Id. Major Mackall’s Change of Duty. On April 16, 2014, LTC Bell held a meeting with those individuals present at the staff meeting led by Major Mackall during the active shooting, and discussed, among other things, the command climate within the 49th MCB. Id. at 5. As a result of this meeting, LTC Bell observed Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 3 of 19 4 a shared feeling of abandonment among the staff and heard strong objections to following Major Mackall into combat. Id. LTC Bell ultimately determined that Major Mackall could not overcome the staff’s loss of trust and confidence. Id. Shortly thereafter, LTC Bell informed Major Mackall that he would be recommending a change of duty, such that Major Mackall would no longer serve as XO of the 49th MCB. Id. Colonel Leudecking met with Major Mackall and informed Major Mackall that he agreed with LTC Bell’s recommendation to remove him as XO of the 49th MCB. Id. The following day, Major Mackall presented to Col. Luedecking an Article 138 Request for Redress. In the request, Major Mackall stated multiple improper reasons he believed that led to his change of duty: He believed he was removed as the XO due to members of the staff having a perception he was insensitive to them seeking behavioral health treatment, that it was an attempt by certain members of the staff to discredit his leadership style and character, that he was being targeted as the reason for the poor command climate in the unit and finally that his change of duty was in reprisal to his filing an IG Complaint into his allegations of senior leader misconduct. Id. On April 29, 2014, Major General LeMasters appointed Colonel John C. White to investigate the circumstances surrounding Major Mackall’s change of duty. Id. at 1. In his investigative report, Colonel White reported, among other things, that Major Mackall’s ability to serve as Commander of the 49th MCB was severely compromised by his response to the April 2, 2014 shooting and subordinates had lost faith and trust in Major Mackall’s ability to lead them. Id. at 6. Colonel White explained that the basis for Major Mackall’s change of duty was the result of a loss of trust and faith in Major Mackall as a leader: I find no individual engaged in an illegal or inappropriate means to damage MAJ Mackall’s reputation. His change of duty was not in retaliation for an IG complaint, for a poor command climate, for his allegations of misconduct against certain leaders in the battalion or for a perceived insensitivity towards Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 4 of 19 5 behavioral health treatment. COL Leudeking’s statement clearly defined why MAJ Mackall was removed as the Executive Officer of the 49th MCB, “the decision to remove Toby (MAJ Mackall) was not a result of poor decisions made on his part or insensitivity about concerns for continued behavioral health care. The decision was made because of reports we received from multiple people that they had lost the trust and faith in the ability of MAJ Mackall as a leader.” Id. (emphasis added). Major Mackall’s Allegations of Reprisal. On March 20, 2015, Major Mackall contacted the Department of Army Inspector General and alleged reprisal. Major Tobin was appointed the Detailed Inspector General to investigate Major Mackall’s allegations of reprisal. Civil No. 17-cv-00774-RDB. On March 21, 2017, Major Mackall filed in this Court a pro se complaint against the United States Department of Defense commencing Civil No. 17-cv-00774-RDB. In the complaint, Major Mackall appears to assert against the United States Department of Defense claims: • under the 5th and 14th Amendments to the United States Constitution for violation of Major Mackall’s presumption of innocence and due process rights; • for personal injury caused by negligence; and • for whistleblower retaliation. In Civil No. 17-cv-00774-RDB, Major Mackall asks for “$1.8 million in damages” and “injunctive relief in addition to relief for damages.” Complaint (ECF 1) Civil No. 17-cv-00774- RDB at 7. Civil No. 17-cv-00865-ELH. On March 30, 2017, Major Mackall filed in this Court a pro se complaint against Defendants LTC Bell, Col. Leudecking, Major General LeMasters and Major Tobin (the Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 5 of 19 6 “Individual Defendants”) commencing Civil No. 17-cv-00865-ELH. In the complaint, Major Mackall appears to assert against the Individual Defendants claims: • for interference with federal investigation under the 5th and 14th Amendments to the United States Constitution; • for defamation and libel; • for whistleblower retaliation under 10 U.S.C. § 1034; • for deprivation of rights under 42 U.S.C. § 1983; and • for fraud and false statements under 18 U.S.C. §§ 1001, 1038(b). In Civil No. 17-cv-00865-ELH, Major Mackall asks for $2.5 million in damages. Complaint (ECF 1) Civil No. 17-cv-00865-ELH at 7. Motion for Consolidation of Civil Nos. 17-cv-00774-RDB and 17-cv-00865-ELH. On May 30, 2017, the United States Department of Defense filed a motion seeking consolidation of civil nos. 17-cv-00774-RDB and 17-cv-00865-ELH. Motion to Consolidate and Extend Defendants’ Time for Filing an Initial Response (ECF 5) 17-cv-00774-RDB and (ECF 5) 17-cv-00865-ELH. Subsequently, the Individual Defendants joined the United States in support of the request to consolidate.3 See Reply in Support of Motion to Consolidate (ECF 9), Civil No. 17-cv-00865, at 1, n. 1. STANDARDS OF REVIEW Rule 12(b)(1) A federal court “generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction).” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co. v. 3 The United States’ request for consolidation was filed prior to the date that undersigned counsel learned that the United States was authorized to represent the Individual Defendants in civil no. 17-cv-00865-ELH. Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 6 of 19 7 Citizens for a Better Env’t, 523 U.S. 83, 93-102 (1998)). The requirement that the plaintiff establish subject matter jurisdiction “as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.’” Steel Co., 523 U.S. at 94-95 (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). Plaintiffs bear the burden of showing subject-matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Indeed, it is “presume[d] that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (citing Rule 12(h)(3)) (“The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). A defendant may contest subject matter jurisdiction in one of two ways: by attacking the veracity of the allegations contained in the complaint; or by contending that, even assuming that the allegations are true, the complaint fails to set forth facts upon which jurisdiction is proper. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Once this challenge is made, “the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also DaimlerChrysler Corp., 547 U.S. at 342, n.3 (“[T]he party asserting federal jurisdiction when it is challenged has the burden of establishing it.”); Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (collecting cases) (“It is elementary that the burden is on the party asserting jurisdiction to demonstrate that jurisdiction does, in fact, exist.”); Adams v. Bain, 697 F.2d 1213, 1219 (“The burden of proving subject matter jurisdiction on a motion to dismiss is on the plaintiff, the party asserting jurisdiction.”). Under a factual challenge, the trial court may go beyond the allegations of the Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 7 of 19 8 complaint and resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits, depositions, or live testimony, without converting the motion to a summary judgment proceeding. Kerns, 585 F.3d at 192 (quotation omitted). In a facial challenge, a plaintiff receives the same procedural protection as would be afforded under Rule 12(b)(6): “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id. Rule 12(b)(6) When ruling on a 12(b)(6) motion, the court must “accept the well-pled allegations of the complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). To survive a motion to dismiss, a complaint must “sufficiently allege each element of the cause of action so as to inform the opposing party of the claim and its general basis.” Chao v. Rivendell Woods, Inc., 415 F.3d 342, 348 (4th Cir. 2005). It must also contain “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. ARGUMENT I. Major Mackall fails to assert any viable claims against the Defendants for violation of his constitutional rights. Major Mackall asserts claims against the Defendants for violation of his constitutional rights under the 5th and 14th amendment. Complaint Civil No. 17-cv-865 (ECF 1) at 4 and Complaint Civil No. 17-cv-774, (ECF 1) at 4. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the United States Supreme Court authorized Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 8 of 19 9 a suit for damages against federal official whose actions violated an individual’s constitutional rights. Chappell v. Wallace, 462 U.S. 296, 298 (1983). The Supreme Court, however, has held that there can be no Bivens remedy where service members challenge the management of the military or the supervision of service members. See United States v. Stanley, 483 U.S. 669 (1987); Chappell, 462 U.S. at 297-300. In Chappell v. Wallace, the Court held that Navy enlisted personnel could not bring a Bivens claim against their superior officers for alleged race discrimination in the assignment of military duties, military performance evaluations, and military discipline. 462 U.S. at 297. In making this determination, the Court cited “[t]he need for special regulations in relation to military discipline, and the consequent need and justification for a special and exclusive system of military justice.” Id. at 300. The Court observed that “judges are not given the task of running the Army,” id. at 301 (quotation omitted), and “[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional judgments, subject always to civilian control of the Legislative and Executive Branches.” Id. at 302 (citation omitted; italics in original). The Chappell Court also held that it would be inappropriate to extend Bivens to the military context because “Congress has exercised its plenary authority over the military, has enacted statutes regulating military life, and has established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure.” Id. at 302. “The resulting system,” the Supreme Court observed, “provides for the review and remedy of complaints and grievances.” Id. By way of example, the Court emphasized that military personnel may avail themselves of the procedures and remedies created Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 9 of 19 10 by Congress in Article 138 of the Uniform Code of Military Justice, 10 U.S.C. § 938, which provides: “Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court- martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.” 462 U.S. at 302-03 (quoting 10 U.S.C. § 938). The Court also stressed that the Constitution contemplated, Congress created, and the Supreme Court “has long recognized two systems of justice, to some extent parallel: one for civilians and one for military personnel.” Id. at 303-04. On this point, Chappell highlighted that “Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers.” Id. As such, the Supreme Court held, “[a]ny action to provide a judicial response by way of such a remedy would be plainly inconsistent with Congress’ authority in this field.” Id. In United States v. Stanley, the Supreme Court reaffirmed that service members may not bring Bivens actions that arise out of service-related activity. Stanley held that a former service member could not bring a Bivens claim against military officers and civilians to recover damages for injuries sustained as a result of the Army’s secret administration of LSD to him while he was on active duty status. 483 U.S. at 707. Here, Major Mackall seeks redress against certain individual military officers and the Department of Defense for alleged violations of his constitutional rights under the 5th and 14th Amendments. Major Mackall’s claims arise directly from events that occurred before and after Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 10 of 19 11 an active shooter event in Major Mackall’s unit on April 2, 2014, at Fort Hood, Texas, which led to Major Mackall’s change of duty. Because the claims against the Defendants directly relate to the management of the military and the supervision of service members, Major Mackall cannot pursue such claims under the Supreme Court’s precedent in Chappell and Stanley. With respect to Major Mackall’s constitutional claims against the United States Department of Defense, such claims are similarly not viable. The Supreme Court, in F.D.I.C. v. Meyer, has expressly declined to authorize Bivens claims against agencies of the United States. 510 U.S. 471, 486 (1994); see also Doe v. Chao, 306 F. 3d 170, 184 (4th Cir. 2002) (“a Bivens action does not lie against either agencies or officials in their official capacity.”). Accordingly, this Court does not have jurisdiction over Major Mackall’s constitutional claims against the Individual Defendants or the United States Department of Defense, and the Court should dismiss such claims. II. Major Mackall fails to assert any viable tort claims. A. Major Mackall’s tort claims are barred against the Defendants under the Westfall Act. Major Mackall has asserted various common-law tort claims against the Defendants. Under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), Congress conferred on federal employees personal and absolute immunity from all common-law tort claims arising out of acts taken within the scope of their employment. 28 U.S.C. § 2679(b)(1); Osborn v. Haley, 549 U.S. 225, 229-30 (2007), Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 425-26 (1995). When a lawsuit is filed against an individual federal employee, rather than against the United States, the Westfall Act authorizes the Attorney General or his designee to issue a certification that “the defendant employee was acting within the scope of his office or Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 11 of 19 12 employment at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(1).4 Once the Attorney General or his designee issues a certification that the employee was acting within the scope of his or her employment, the suit “shall be deemed an action against the United States” under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, and “the United States shall be substituted as the party defendant.” Id.; accord, e.g., Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997) (“Once this certification has been made, the United States is substituted as the sole defendant . . . then the plaintiff’s sole route for recovery is the Tort Claims Act.”). On June 29, 2017, the Acting United States Attorney for the District of Maryland certified that each of the Individual Defendants named in the complaint “was an employee of the United States acting within the scope of his employment at the time of the alleged incident out of which the plaintiff’s claims arose.” See Ex. 2, Certification of Acting United States Attorney. Accordingly, this Court should substitute the United States of America for the Individual Defendants in this case for all common-law tort claims asserted by Major Mackall against the Individual Defendants. In addition, any common-law tort claims against the United States Department of Defense are also barred because it is well settled that the agency may not be sued eo nomine in tort. The FTCA provides that “[t]he authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.” 28 U.S.C. § 2679(a); see FDIC v. Meyer, 510 U.S. at 476; Bailey v. 4 Pursuant to 28 U.S.C. § 510, the Attorney General’s authority to certify has been delegated by regulation to United States Attorneys. 28 C.F.R. § 15.4(a) (the United States Attorney “is authorized to make the statutory certification that the Federal employee was acting within the scope of his office or employment with the Federal Government at the time of the incident out of which the suit arose.”); see, e.g., Guttierrez de Martinez v. DEA, 111 F.3d 1148, 1152 (4th Cir. 1997). Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 12 of 19 13 Veterans Admin., 833 F.2d 309, 1987 WL 38917 (4th Cir. 1987) (unpublished) (“[T]he VA, as an agency of the federal government, is not the equivalent of the United States . . . and may not be sued in its own name.”); Strong v. Dyar, 573 F. Supp. 2d 880, 885 (D. Md. 2008) (“suits brought against a federal agency eo nomine or against a federal employee individually are dismissible for lack of jurisdiction”). B. The United States has not waived its sovereign immunity for Major Mackall’s tort claims. Absent a specific waiver, sovereign immunity protects the federal government and its agencies from suit. FDIC v. Meyer, 510 U.S. at 476. The terms and conditions of the government’s consent to be sued in any court define the court’s jurisdiction to entertain the suit. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); Gould v. U.S. Dep’t of Health and Human Servs., 905 F.2d 738, 741 (4th Cir. 1990) (en banc). Moreover, the “limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman, 453 U.S. at 161 (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)). Specific to interpreting the FTCA, the Fourth Circuit has observed: It is well established that the United States may not be sued without its consent and that its consent must be unequivocally manifested in the text of a statute. Lane v. Pena, 518 U.S. 187, 192 (1996). “Moreover, a waiver of the Government’s sovereign immunity will be strictly construed, in terms of scope, in favor of the sovereign.” Id. These principles govern our approach in construing the FTCA. Williams v. United States, 242 F.3d 169, 172 (4th Cir. 2001); accord Radin v. United States, 699 F.2d 681, 684-85 (4th Cir. 1983) (citing United States v. Testan, 424 U.S. 392, 399 (1976)). Congress enacted the FTCA as a limited waiver of sovereign immunity for claims against the United States for money damages “arising out of torts committed by federal employees.” Ali v. Federal Bureau of Prisons, 552 U.S. 214, 217-18 (2008). Subject to certain conditions, “[t]he Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 13 of 19 14 Act gives federal district courts exclusive jurisdiction over claims against the United States for ‘injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission’ of a federal employee ‘acting within the scope of his office or employment.’” Millbrook v. United States, 569 U.S. ___, 133 S. Ct. 1441, 1442 (2013) (quoting 28 U.S.C. § 1346(b)(1)); see United States v. Kubrick, 444 U.S. 111, 117-18 (1979). Although the United States has waived its sovereign immunity through the FTCA, it can only be sued in accordance with the terms of that waiver. United States v. Orleans, 425 U.S. 807, 814 (1976); United States v. Varig Airlines, 467 U.S. 797, 808 (1984). In Feres v. United States, the Supreme Court squarely held that, in enacting the FTCA, Congress did not intend to authorize suits by service members that “arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146 (1950). In the 65 years since Feres was decided, the Supreme Court “has never deviated from this characterization of the Feres bar,” and has “consistently” applied the Feres doctrine “to bar all suits on behalf of service members against the Government based on service-related injuries.” United States v. Johnson, 481 U.S. 681, 686-88 (1987).5 Interpreting this precedent, the Fourth Circuit has observed that, “in recent years the Supreme Court has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military.” Stewart v. United States, 90 F.3d 102, 105 (4th Cir. 1996) (citation omitted; emphasis in original). 5 See United States v. Stanley, 483 U.S. 669; United States v. Shearer, 473 U.S. 52 (1985); Chappell v. Wallace, 462 U.S. 296; Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977); United States v. Muniz, 374 U.S. 150 (1963); United States v. Brown, 348 U.S. 110 (1954); see also, e.g., Kendrick v. United States, 877 F.2d 1201, 1202-03 (4th Cir. 1989) (“since its inception, the Feres doctrine has been broadly and persuasively applied by federal courts”). Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 14 of 19 15 Here, at all relevant times, Major Mackall was an officer in the United States Army, and remains an officer in the United States Army. See Complaint Civil Action Nos. 17-cv-00774- RDB and Complaint, Civil Nos. 17-cv-00865-ELH. Major Mackall’s claims arise out of or are in the course of activity incident to his military service. To permit an FTCA suit under these circumstances would involve a civilian court second-guessing military decisions concerning the composition, discipline, and control of a military force, which lie at the heart of “the peculiar and special relationship of the soldier to his superiors.” Shearer, 473 U.S. at 57 (citations omitted). The United States has not waived its immunity to be sued for any of the tort claims asserted by Major Mackall. Accordingly, this Court lacks subject matter jurisdiction over the tort claims asserted by Major Mackall in his complaints. C. Major Mackall’s tort claims are barred due to his failure to exhaust his administrative remedies. An essential prerequisite to an action under the FTCA (and a condition of the government’s limited waiver of sovereign immunity) is the presentation of an administrative claim to the government within two years of the accrual of the claim. 28 U.S.C. § 2401(b) (a tort claim “shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .”); Gould, 905 F.2d at 741. Significantly, “the requirement of filing an administrative claim is jurisdictional and may not be waived.” Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). Here, Major Mackall has not filed an administrative claim with the United States Army Claims Service. Ex. 3, Declaration of Connie M. McConahy, Acting Chief, Operations and Records Branch, United States Army Claims Service. Accordingly, Major Mackall has not exhausted his administrative remedies, and for this additional reason, this Court does not have jurisdiction over Major Mackall’s tort claims. Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 15 of 19 16 III. Major Mackall cannot pursue a cause of action under the Military Whistleblower Retaliation Act, 10 U.S.C. § 1034. In both complaints, Major Mackall asserts a claim under the Military Whistleblower Protection Act, 10 U.S.C. § 1034. The Military Whistleblower Protection Act “provides solely an administrative process for handling complaints of improper retaliatory actions.” Soeken v. United States, 47 Fed. Cl. 430, 433 (Fed. Cl. 2000). The act does not provide for a private cause of action. Acquisto v. United States, 70 F.3d 1010, 1011 (8th Cir. 1995); Bryant v. Military Department of State of Mississippi, 381 F. Supp. 2d 586, 590 (S.D. Miss. 2005); Soeken, 47 Fed. Cl. at 433. Accordingly, Major Mackall has no viable claim against any of the Defendants for any alleged violation of the Military Whistleblower Protection Act. IV. Major Mackall cannot pursue a claim under 42 U.S.C. § 1983. Major Mackall alleges jurisdiction of this Court, in Civil No. 17-cv-00865-ELH, based upon an alleged deprivation of his rights under 42 U.S.C. § 1983. Complaint (ECF 1) at 4. Section 1983, however, provides for a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . .” 42 U.S.C. § 1983. A plaintiff may pursue a claim against a state agent under Section 1983. However, a proper claim against a federal employee is a Bivens claim. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Hartman v. Moore, 547 U.S. 250, 254 n. 2 (2006) (“[A] Bivens action is the federal analog to suits brought against state officials under...42 U.S.C. § 1983.”); see Johnson v. United States Department of Justice, 2016 WL 4593467, 5 (D. Md. 2016) (Court construed claim brought by pro se plaintiff against United States Department of Justice and Federal Bureau of Investigations pursuant to 42 U.S.C. § 1983 for purported violation of federal and state law and Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 16 of 19 17 his fundamental rights as a Bivens claim,”). Accordingly, because each of the Individual Defendants are officers in the United States Army and not agents of any state, Major Mackall has failed to assert a claim upon which relief may be granted under 42 U.S.C. § 1983. V. Major Mackall cannot pursue claims under 18 U.S.C. §§ 1001 and 1038. Major Mackall alleges jurisdiction of this Court, in Civil No. 17-cv-00865-ELH, based upon 18 U.S.C. §§ 1001 and 1038(b) for “fraud and false statements.” Complaint (ECF 1) at 4. Section 1001 of Title 18 of the United States Code, however, is a federal criminal statute and no civil action lies under this statute. 18 U.S.C. § 1001; see also Bardes v. Massachusetts Mutual Life Ins. Co., 2011 WL 1790816, 3 (M.D. N.C. 2011). Major Mackall has no authority to initiate a federal criminal prosecution. See United States v. Nixon, 418 U.S. 683, 693 (1974). Moreover, “[u]nless there is a clear Congressional intent to provide a civil remedy, a plaintiff cannot recover civil damages for an alleged violation of a criminal statute . . . .” Bardes, 2011 WL 1790816 at 3; quoting Tribble v. Reedy, No. 89–6781, 888 F.2d 1337 (table), 1989 WL 126783, at 1 (4th Cir. 1989). Therefore, because Major Mackall has no authority to initiate a federal criminal prosecution and because no civil action lies under 18 U.S.C. § 1001, this Court should dismiss any claim asserted by Major Mackall under 18 U.S.C. § 1001. With respect to Major Mackall’s claim asserted pursuant to 18 U.S.C. § 1038(b), both the intent of Congress and the courts’ interpretations of section 1038, reveal that the statute was designed to deal with criminal or terrorist hoaxes, and not with the type of issues asserted by Major Mackall. See United States v. Davila, 461 F.3d 298, 304 (2d. Cir. 2006) (finding that Congress, in passing Section 1038, sought to address potential limitations in the existing law with respect to criminal hoaxes and terrorist threats); United States v. Evans, 478 F.3d 1332, 1344 (11th Cir. 2007) (referencing Section 1038 as a criminal statute designed to prosecute those Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 17 of 19 18 criminal and terrorist threats made against the country); see also H. R. Rep. No. 108–505, at 4, 7 (2004). Under 18 U.S.C. § 1038(b), a civil action lies to any party incurring expenses incident to any emergency or investigative response to the criminal activity set forth in section 1038(a). This section does not set forth a general remedy for providing false information. The civil action only exists as additional enforcement against a party who engages in a criminal violation of 18 U.S.C. § 1038(a)(1). Johnson v. Working Am., 2012 WL 3074775 at 2-3 (N.D. Ohio 2012). “It does not represent an independent civil cause of action for which a private citizen may file a complaint.” Id. Because Major Mackall's claims under 18 U.S.C. § 1038(b) are predicated upon a criminal statute, any claims under 18 U.S.C. § 1038(b) should also be dismissed. VI. Any claims by Major Mackall to correct an alleged error or injustice in his military records are barred, as Major Mackall has not exhausted his administrative remedies. Although not cited as a basis for jurisdiction, Major Mackall appears to be asserting a claim to correct an alleged error or injustice in his military records: Plaintiff has requested relief through the Army Review Board Agency (ARBA), but has received continued insufficient responses regarding status of complaints submitted. Complaint Civil Action Nos. 17-cv-00774-RDB, at 6. In each instance, however, in which Major Mackall has filed an application with the Army Board for Correction of Military Records (“ABCMR”), the ABCMR has responded by informing Major Mackall that he has not yet exhausted his administrative remedies by submitting a request through his “S1/unit administrator to the US Army Human Resources Command.” Ex. 4, letters from Army Review Boards Agency (“ARBA”) to Major Mackall.6 Because Major Mackall has not exhausted his 6 Major Mackall also requested that the ABCMR investigate a military whistleblower reprisal complaint. Ex. 4, letters from ARBA. The ABCMR informed Major Mackall that it did not have authority to investigate such Case 1:17-cv-00865-ELH Document 10-1 Filed 07/07/17 Page 18 of 19 19 administrative remedies with respect to any claim to correct his military records, this Court does not have jurisdiction over any such claim. See Wilt v. Gilmore, 62 Fed. Appx. 484, 488 (4th Cir. 2003) (Court dismissed complaint where Plaintiff failed to exhaust his claim before the ABCMR). CONCLUSION For the reasons expressed herein, the Court should dismiss the complaints with prejudice. Respectfully submitted, Stephen M. Schenning Acting United States Attorney /s/ Joel W. Ruderman Special Assistant United States Attorney Federal Bar No. 13125 36 South Charles Street, 4th Floor Baltimore, MD 21201 (410) 209-4000 joel.ruderman@usdoj.gov Counsel for the United States Department of Defense and the Individual Defendants requests. Id. As noted in section III above, Major Mackall cannot assert a cause of action under the Military Whistleblower Protection Act, 10 U.S.C. § 1034. 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