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Dahlstrom v. United States

United States District Court, W.D. Washington, Seattle

February 26, 2018

UNITED STATES OF AMERICA, et al., Defendants.


          Robert S. Lasnik, United States District Judge.

         This matter comes before the Court on the “United States' Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1)” (Dkt. # 38) and “Plaintiff's Motion for Leave to File Second Amended Complaint” (Dkt. # 47). The United States seeks dismissal of plaintiff's claims on the ground that it has not waived sovereign immunity for employment decisions of the Sauk-Suiattle Indian Tribe or enforcement decisions of the Tribe's Chief of Police. In the alternative, the United States argues that if the Tribe is considered a federal actor such that the Federal Tort Claims Act (“FTCA”) applies, the claims are nevertheless barred by the discretionary function exception of the FTCA, are barred by § 2680(h) of the FTCA, and/or not cognizable under Washington law.

         On October 19, 2017, the Court granted in part plaintiff's motion to deny or postpone consideration of the motion to dismiss. The Court found that plaintiff should be permitted to take discovery regarding whether the employment decisions of which he complains were encompassed by a federal contract or agreement under the Indian Self- Determination and Education Assistance Act of 1975 (“ISDEAA”). The Court therefore exercised its discretion under Fed.R.Civ.P. 56(d) to DENY that aspect of the United States' motion to dismiss. Plaintiff did not, however, meet his burden under Rule 56(d) of showing that discovery was necessary to respond to the discretionary function, § 2680(h), or state law arguments raised in the motion to dismiss. Plaintiff timely filed his response to the motion to dismiss[1] and also requested leave to file a second amended complaint to remedy deficiencies in the pleading. The Court has considered the allegations of the proposed complaint in ruling on this motion.

         Plaintiff alleges that he was wrongfully terminated from his employment as Health and Social Director for the Sauk-Suiattle Indian Tribe after he raised concerns about the safety of the vaccines the Tribe's medical team was distributing. The Court assumes, for purposes of this motion, that the tribal employees who allegedly caused plaintiff to lose his job in retaliation for his whistle-blowing activities and who escorted him from the reservation are agents or employees of the United States.

         A. Sovereign Immunity and the Discretionary Function Exception

         As a sovereign, the United States and its agencies are immune from suit unless the immunity has been affirmatively waived. Chadd v. U.S., 794 F.3d 1104, 1108 (9th Cir. 2015). “Sovereign immunity is jurisdictional in nature. Indeed, the terms of the United States' consent to be sued in any court define the court's jurisdiction to entertain the suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (internal quotation marks and alterations omitted). Congress waived the United States' immunity with regard to state tort claims through the Federal Tort Claims Act. 28 U.S.C. § 1346(b)(1). The waiver is not universal, however: Congress excepted from the waiver several types and classes of tort claims, including any 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 was abused.” 28 U.S.C. § 2680(a). See U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 707, 808 (1984). This discretionary function exception “marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Varig Airlines, 467 U.S. at 808.

         The United States argues that employment decisions, including the decision to fire an employee, decisions regarding the appropriate amount of supervision and training, and decisions regarding when and how to terminate employment, fall within the discretionary function exception and cannot be the basis for a tort claim against the United States. See Sydnes v. U.S., 523 F.3d 1179, 1185-86 (10th Cir. 2008) (“We have previously and unqualifiedly held that decisions regarding employment and termination -- the kind of conduct at issue here -- are precisely the types of administrative action the discretionary function exception seeks to shield.”) (internal quotation marks and alterations omitted); Nurse v. U.S., 226 F.3d 996, 1001-02 (9th Cir. 2000) (finding that the government's “allegedly negligent and reckless employment, supervision and training of the . . . defendants . . . fall squarely within the discretionary function exception.”). There are two prongs to the discretionary function analysis. First, the Court examines whether the government's actions were “discretionary in nature, [meaning] acts that involve an element of judgment or choice.” U.S. v. Gaubert, 499 U.S. 315, 322 (1991) (internal quotation marks and alterations omitted). The exception “will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.” Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 536 (1988). The second prong requires an analysis of whether the judgment exercised is of the kind that the discretionary function exception was designed to shield: in other words, is there a risk that the judiciary would be second-guessing a government decision “grounded in social, economic, or political policy through the medium of an action in tort”? Varig Airlines, 467 U.S. at 814. Plaintiff does not dispute that the decisions regarding supervision, training, and termination involve balancing social, economic, and political policy choices for purposes of the second prong of the analysis.

         With regards to the first prong, plaintiff seeks to amend his complaint in part to identify twelve federal statutes, the Sauk-Suiattle Indian Tribe's employee handbook, and a tribal code provision that allegedly limited defendants' discretion to terminate his employment for retaliatory reasons. Dkt. # 47-1 at ¶¶ 126-41 (repeated at Dkt. # 48 at 11-25).[2] These amendments are unavailing. The Tribe's internal codes and policies do not represent federal law and cannot, therefore, waive the federal government's immunity from suit. None of the federal statutes prescribes the circumstances in which plaintiff could be fired. Many have absolutely nothing to do with the facts of this case or plaintiff's employment. Although counsel spends pages describing the statutes, the words and phrases are strung together in such a way that they convey very little information, much less meaningful analysis. Plaintiff made no attempt to show how any of the statutes limited the Tribe's discretion in its employment decisions. By way of example, plaintiff cites the Patient Protection and Affordable Care Act, 26 U.S.C. § 4980H, as a bar against the type of retaliatory termination that allegedly occurred in this case. Plaintiff alleges that the Act applies to the Sauk-Suiattle Indian Tribe and contains an anti-retaliation provision which protects employees from retaliation for reporting violations of Title 1 of the Act, including discrimination based on receipt of health insurance subsidies, the denial of coverage based on preexisting conditions, and/or an insurer's failure to rebate excess premiums. Plaintiff does not allege that he reported any of these activities or that he was terminated because of such a report. Merely listing federal statutes, regulations, and/or policies -- even with lengthy descriptions and quotations -- does not establish that the Tribe lacked or exceeded its discretion as an employer in this case.

         Plaintiff also alleges that his discharge was prohibited by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and asserts both federal and state law claims arising from these violations. Dkt. # 47-1 at ¶ 141.[3] The FTCA's waiver of immunity extends only to circumstances “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The Supreme Court has held that the reference to “the law of the place” means the law of the state where the negligent or wrongful act occurred. Under § 1346(b)(1), immunity is waived only as to state law claims: a federal constitutional tort may not be pursued directly under the FTCA. Meyer, 510 U.S. at 477-78. To the extent plaintiff is asserting that the United States violated the federal constitution, the FTCA does not apply and the United States has not waived its immunity. To the extent plaintiff is asserting a wrongful termination claim under state law, however, violations of the First, Fifth, and/or Fourteenth Amendments could be used to show that defendants exceeded their discretion and are therefore not protected by the discretionary function exception. See Loumiet v. U.S., 828 F.3d 935, 942-46 (D.C. Cir. 2016).

         B. Sovereign Immunity and 28 U.S.C. § 2680(h)

         The waiver of sovereign immunity provided in § 1346(b) does not apply 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: Provided, That, with regard to the acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purposes of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

26 U.S.C. § 2680(h). Plaintiff asserts what purports to be an abuse of process claim against all defendants (Claim 6) and states that he accused defendant Richard M. McDonnell of false arrest, false imprisonment, and negligent infliction of emotional distress in October 2015 (Dkt. # 47-1 at ¶ 25). The United States points out that abuse of process, false arrest, and false imprisonment are specifically exempted from the FTCA waiver of sovereign immunity and that Mr. McDonnell is not an “investigative or law enforcement officer” enforcing federal laws within the meaning of the proviso to § 2680(h). The United States also argues that the emotional distress claim asserted against Mr. McDonnell arises from the same actions that gave rise to the jurisdictionally barred claims and fails for the same reasons. Plaintiff made no response to these arguments: his intentional tort claims are therefore dismissed for lack of jurisdiction.[4]

         C. Negligent Infliction of ...

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