Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00047-WQH-POR

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KAREN P. HEWITT United States Attorney CINDY M. CIPRIANI Assistant U.S. Attorney Deputy Chief, Civil Division California State Bar No. 144402 United States Attorney's Office Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7390 Facsimile: (619) 557-5004 Email: [email protected] Attorneys for Defendant John Potter Postmaster General, United States Postal Service

UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 CHARLES JORDAN, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) I INTRODUCTION This is the latest in a series of frivolous actions filed by Plaintiff, a disgruntled former letter carrier who was removed from the United States Postal Service ("USPS") in 1995. Plaintiff, Charles Jordan ("Jordan"), alleges claims against the Postmaster General for fraud, violations of California Labor Code §§ 98.6 and 132a, and violations of California Business and Professions Code § 17200. As set forth below, the Court lacks jurisdiction over each of these claims because the Government has not waived its sovereign immunity. /// Case No. 08cv0047- WQH (POR) MEMORANDUM OF POINTS AND AUTHORITIES BY DEFENDANT POSTMASTER GENERAL JOHN POTTER IN SUPPORT OF MOTION TO DISMISS Date: Time: Ctrm: Judge: April 14, 2008 11:00 10 Hon. William Q. Hayes

[No Oral Argument Unless Requested by the Court]

Case 3:08-cv-00047-WQH-POR

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II BACKGROUND

Jordan was employed by the USPS as a Letter Carrier.1/ He was also a member of the United States Air Force Reserve. Jordan was ordered to active reserve duty in Cuba from December 14, 1994, to March 16, 1995. Rather than seeking military leave from the USPS during this period, Jordan requested sick leave, annual leave, and leave without pay. When Jordan's supervisor, Wayne Davenport, discovered this, he reported it to his superiors because he believed that Jordan had deliberately misrepresented his physical condition, so as to receive paid leave from the USPS while also being paid to serve in the Air Force. After an investigation, Jordan was charged with misrepresenting his physical abilities, falsification of a form, and misrepresenting a request for leave. The deciding official sustained the charges, and Jordan was removed from employment with the USPS on July 1, 1995. B. PROCEDURAL HISTORY 1. The MSPB and Federal Circuit decisions

On September 28, 2000, Jordan filed a complaint with the Merit Systems Protection Board ("MSPB"), alleging that the agency's decision to terminate his employment violated the Uniformed Services Employment and Reemployment Rights Act of 1994, ("USERRA") (codified as amended at 38 U.S.C. §§ 4301-4333) because USPS allegedly discriminated against him based on his military service. He also alleged discrimination on the basis of race, religion, and age. In the original initial decision, the administrative judge rendered judgment on the written record against Jordan. Jordan v. U.S. Postal Serv., No. SF-3443-00- 0690-I-1 (M.S.P.B. Nov. 22, 2000) ("Jordan I"). On January 9, 2002, the MSPB vacated the initial decision and remanded the matter for further adjudication, finding that Jordan had requested a hearing. Jordan v. U.S. Postal Serv., 90 M.S.P.R. 525, 527-28 (2002) ("Jordan II").

The brief factual summary set forth herein is drawn from Merit Systems Protection Board and/or Federal Circuit rulings, which are attached hereto as Exhibits A to C. 2
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After a hearing on remand, the administrative judge held that Jordan had not satisfied his burden pursuant to USERRA, "of showing by a preponderance of the evidence that the employee's military service was a substantial or motivating factor in the adverse employment action." Jordan v. U.S. Postal Serv., No. SF-3443-00-0690-B-1, slip op. at 9-10 (M.S.P.B. May 2, 2002) ("Jordan III"). See Ex. A hereto). The administrative judge also dismissed Jordan's claims of discrimination based on race, religion, and age, holding that such claims "cannot be litigated in the course of a USERRA appeal." See Ex A, Jordan III, slip op. at 20. On June 18, 2003, the full Board denied review. Jordan v. U.S. Postal Serv., No. SF-3443-00-0690-B-1, 94 M.S.P.R. 482, 2003 WL 21458240 (M.S.P.B. June 19, 2003). See Ex. B hereto. Jordan timely sought review in the Federal Circuit, which had jurisdiction pursuant to 38 U.S.C. § 4324(d)(1). Noting that the MSPB administrative judge credited the testimony of Jordan's supervisors over Jordan's testimony, the Federal Circuit ruled that Jordan had not satisfied his burden under USERRA of establishing that his military service was a substantial motivating factor in his removal and found that the Board's decision was supported by substantial evidence. Jordan v. U.S. Postal Service, 82 Fed.Appx. 42, 2003 WL 22872527 (Fed.Cir. 2003) (not selected for publication, NO. 03-3237). See Ex. C hereto. 2. Plaintiff's District Court Actions

In 2005 and 2006, Plaintiff filed three district court complaints alleging facts similar to the instant case: Civil Case Nos. 05cv2203-W (against Potter and USPS); 05cv2168-L (against the U.S. Air Force); and 06cv0479-W (against USPS, the Secretary of the Department of Labor and the U.S. Air Force). All of these actions were resolved in the Government's favor. See Orders dismissing Plaintiff's district court actions.2/ /// ///

Defendant respectfully requests that the Court take judicial notice of the Orders dismissing District Court actions 05cv2203-W (against the United States and/or the Postmaster General and/or USPS); 05cv2168-L (against the U.S. Air Force); 06cv0479-W (against USPS, the Secretary of the Department of Labor and the U.S. Air Force). 3
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3.

The Instant Lawsuit

On November 16, 2007, Plaintiff filed a form complaint in San Diego Superior Court alleging the following claims against the Postmaster: fraud, violation of California Labor Code §§ 98.6 and 132a and violation of California Business and Professions Code § 17200. The complaint was removed to this Court on January 8, 2008. III DISCUSSION THE APPLICABLE LEGAL STANDARD 1. Motion to Dismiss

Federal courts are courts of limited jurisdiction and these limits, whether imposed by the Constitution or by Congress, cannot be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); Al Nieto v. Ecker, 845 F.2d 868, 871 (9th Cir. 1988) (a federal court's power to adjudicate claims is limited to that granted by Congress, and such grants are not to be lightly inferred). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. California ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir. 1979). A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may either attack the allegations of the complaint or may be made as a "speaking motion" attacking the existence of subject matter jurisdiction in fact. Thornhill Publ'g Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). The court may go beyond the allegations in the complaint and make evidentiary determinations relative to subject matter jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). The burden of proof on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). B. THE COURT LACKS JURISDICTION OVER PLAINTIFF'S CLAIMS 1. Plaintiff's Claims Are Barred by the Principle of Sovereign Immunity

The United States is immune from suit absent an express waiver of its sovereign immunity, "and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." ///

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United States v. Mitchell, 445 U.S. 535, 538 (1980), quoting United States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. Testan, 424 U.S. 392, 399 (1976). While Congress has waived sovereign immunity for the torts of its employees under certain circumstances outlined in the FTCA, that waiver of immunity extends only to damages or injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant." See 28 U.S.C. § 1346(b)(1). Congress expressly limited this waiver of immunity through exceptions stated in 28 U.S.C. § 2680; if a tort claim falls within one of the exceptions of Section 2680, the district court lacks subject matter jurisdiction. Rojas v. United States, 660 F. Supp. 652, 654 (D.P.R. 1987). Notably, Section 2680 contains an "intentional tort" exception, which clarifies that no waiver of immunity exists as to any claim arising out of "assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights .... " 28 U.S.C. § 2680(h). When a claim falls within this exception to the FTCA's waiver of sovereign immunity, the Court is without subject matter jurisdiction to hear the case. Mundy v. United States, 983 F.2d 950, 952 (9th Cir.1993) (as amended). The plain language of Section 2680(h) and the relevant case law establish that the intentional tort exception bars Plaintiff's recovery for fraud. See Wilson v. Drake, 87 F.3d 1073, 1077 (9th Cir. 1996) ("the FTCA expressly bars causes of action for intentional torts"); Washington v. U.S. Dept. of Housing and Urban Dev., 953 F. Supp. 762, 778 (N.D. Tex. 1996) (fraud, fraud in the inducement, and misrepresentation claims are excluded from being brought against the United States under the FTCA; sovereign immunity is not waived). See also United States v. Neustadt, 366 U.S. 696, 702 (1961) (section 2680(h) covers all claims arising out of negligent and willful misrepresentation). Likewise, Plaintiff cannot point to any basis for waiving sovereign immunity as to his California statutory claims under the Labor Code and Business and Professions Code. There is no legal support whatsoever for the proposition that the federal government can be sued under state statutes, absent an express waiver of sovereign immunity. Accordingly, Plainitff's California statutory claims must be

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dismissed for lack of subject matter jurisdiction. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (party who sues the United States bears the burden of pointing to an unequivocal waiver of immunity). 2. Plaintiff Has Not Alleged Exhaustion with FTCA Administrative Requirements

Under 28 U.S.C. § 2675(a), an FTCA action "shall not be instituted" against the United States unless the claimant first presents his claim to the "appropriate Federal agency" and the claim is denied. The claim requirement of § 2675(a) is a jurisdictional limitation. Wilson, 87 F.3d at 1077; Meridian Intern. Logistics, Inc. v. U.S., 939 F.2d 740, 745 (9th Cir. 1991). As such, it must be strictly adhered to, cannot be waived, and is strictly construed. See Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995); Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983). The administrative claim requirements of § 2675(a) are jurisdictional and must be pleaded and proven by the FTCA claimant. Meridian, 939 F.2d at 743. Moreover, the FTCA bars a tort claim against the United States "unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues...." 28 U.S.C. § 2401(b). Significantly, Plaintiff fails to either invoke jurisdiction under the FTCA or allege that he satisfied the administrative claim requirements. Because he complains primarily about conduct that occurred in the mid-1990s ­ more than a decade ago ­ it is too late to satisfy the jurisdictional prerequisites under the FTCA at this point. Burns v. United States, 764 F.2d 722, 724 (9th Cir.1985); Corey v. McNamara, 409 F. Supp. 2d 1225, 1227 (D.Nev. 2006) (where Plaintiff failed to invoke FTCA jurisdiction and demonstrate timely exhaustion of administrative remedies, court deprived of subject matter jurisdiction). Given the foregoing defects, and the fact that employment statutes provide his exclusive remedy (as discussed below), the tort claims must be dismissed with prejudice.3/ 3. Plaintiff's Claims are Barred Because Employment Statutes Provide Plaintiff's Exclusive Remedy

Significantly, all of Plaintiff's claims sound in employment. Title VII, its companion federal discrimination statutes, and the CSRA provide the exclusive judicial remedies for claims of Plaintiff has also failed to name the correct parties. Under the FTCA, the United States is the only proper defendant in cases alleging tortuous conduct. Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998). 6
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discrimination in federal employment. Brown v. General Services Admin., 425 U.S. 820, 835 (1976); see also Bush v. Lucas, 462 U.S. 367, 390 (1983) (Bivens remedies unavailable where Congress has established a comprehensive remedial scheme for violations by federal supervisors of their employees' First Amendment rights); Arnold v. United States, 816 F.2d 1306, 1311 (9th Cir.1987) (tort claims concerning alleged sexual harassment and employment discrimination precluded by Title VII); Rivera v. United States, 924 F.2d 948 (9th Cir.1991) (CSRA bars tort claims against federal employer); and Saul v. United States, 928 F.2d 829, 831-32, 842-43 (9th Cir.1991) (state common law tort claims for intentional infliction of emotional distress, defamation, and invasion of privacy preempted by CSRA). Here, Plaintiff is making yet another desperate attempt to allege claims that fall outside of the comprehensive remedial scheme set forth in federal employment statutes. Given the clear Supreme Court holdings in Brown, 425 U.S. at 825 and Bush, 462 U.S. at 390, that effort fails. IV CONCLUSION For all the foregoing reasons, Defendant respectfully requests that the Court dismiss the action for lack of jurisdiction. Dated: March 10, 2008 KAREN P. HEWITT United States Attorney s/ Cindy M. Cipriani Cindy M. Cipriani Assistant U.S. Attorney Attorney for Defendant United States of America

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