United States District Court, W.D. Washington, Seattle
RAJU T. DAHLSTROM, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
ORDER GRANTING IN PART THE UNITED STATES' MOTION
TO DISMISS AND PLAINTIFF'S MOTION TO AMEND
S. Lasnik, United States District Judge.
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.
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 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
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.
Sovereign Immunity and the Discretionary Function
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.
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.
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). 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.
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 ¶
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).
Sovereign Immunity and 28 U.S.C. § 2680(h)
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
Negligent Infliction of ...