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 THE SECOND AMENDED COMPLAINT
S. LASNIK, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the “United
States' Motion to Dismiss Plaintiff's Second Amended
Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6).” Dkt. # 68. The United States seeks dismissal
of most of plaintiff's claims on the ground that it has
not waived sovereign immunity for constitutional tort claims
or for Bivens claims based upon constitutional
violations committed by federal employees. The United States
also seeks dismissal of plaintiff's wrongful discharge in
violation of public policy claim because the supporting
allegations are nothing more than a threadbare recitation of
the elements of the cause of action and do not specify the
public policy at issue. Plaintiff opposes the
Subject Matter Jurisdiction, Fed.R.Civ.P. 12(b)(1)
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 (“FTCA”). 28 U.S.C.
§ 1346(b)(1). The waiver 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 therefore waived only as
to state law claims: a federal constitutional or statutory
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 U.S.
Constitution and/or discharged plaintiff in violation of
federal law, the FTCA does not apply and the United States
has not waived its immunity. Dkt. # 62 at 5-6.
responsive memorandum is virtually incomprehensible with
regards to the jurisdictional challenge. He spends twenty-one
pages (a) discussing irrelevant concepts related to mandamus,
class actions, state and tribal sovereign immunity, wrongs
allegedly committed by other defendants, other tribes, and/or
non-parties, a separate qui tam action,
declaratory relief, and trespass and (b) summarizing case
law, statutes, and legislative history with no effort to tie
the analysis to the facts of this case or the issues raised
in the United States' motion. In a one paragraph section
of the memorandum entitled “United States of America
has waived its Sovereign Immunity, ” plaintiff states:
The United States has waived its own and Federal
Defendant's sovereign immunity to the claims herein by
virtue of, without limitation, the FTCA/ISDEAA and the United
States fiduciary and trust obligations. Conduct which
violates the laws and Constitution of the United States, as
alleged herein, and thus, removes sovereign immunity as a
defense under the doctrine established by Exparte [sic]
Young . . ., Larsen v. Domestic and Foreign Commerce
Corp. . . ., and Bivens V. [sic] Six Unknown Named
Agent [sic] of Federal Bureau of Narcotics . . . .
Dkt. # 73 at 21.
makes no effort to explain how the Indian Self Determination
and Education Assistance Act of 1975 (“ISDEAA”)
effected a waiver of the United States' sovereign
immunity. The ISDEAA was enacted “to promote the goal
of Indian self-government, [reflecting Congress']
overriding goal of encouraging tribal self-sufficiency and
economic development.” Okla. Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S.
505, 510 (1991) (internal quotation marks and citation
omitted). Congress authorized the Secretary of the Interior
to enter into contracts with requesting tribes that would
transfer federal responsibilities and their associated
funding to the tribes for planning, execution, and
administration. 25 U.S.C. § 5321(a). Congress wanted to
limit the liability of tribes that agreed to these
arrangements, however, so it deemed tribes, their
organizations, and their contractors to be federal employees
while acting within the scope of their employment in carrying
out a self-determination contract under the ISDEAA.
Snyder v. Navajo Nation, 382 F.3d 892, 897 (9th Cir.
2004); 25 U.S.C. § 5321(d). Any claim against a tribe or
its employees arising from the performance of one of these
contracts is therefore an action against the United States
and is subject to the same sovereign immunity analysis as
would have been applied had the United States been named as
the defendant. See Snyder, 382 F.3d at 897 (United
States subjects itself to suit under the FTCA for torts of
tribal employees hired and acting pursuant to a
self-determination agreement). As discussed above, the FTCA
does not waive the United States sovereign immunity for
federal constitutional tort claims: the ISDEAA does not alter
Failure to State a Claim Upon Which Relief May Be Granted,
only claim asserted against the United States that may fall
within the FTCA's waiver of sovereign immunity is
plaintiff's state law claim for wrongful discharge in
violation of public policy. The claim is based on the
allegation that defendants' actions “constituted
retaliation and wrongful discharge under public policy
(including federal statutory rights and policies set forth
above) and in violation of Plaintiff's rights under the
1st, 5th and 14th amendments to the United States
Constitution.” Dkt. # 63 at ¶ 125. The reference
to “federal statutory rights and policies set forth
above” is so vague as to be unintelligible in light of
the preceding thirty pages of allegations and the thirteen
federal statutes, regulations, contracts, and/or policies
mentioned therein. While the reference to three
constitutional amendments is more specific, the supporting
allegations do not provide enough information to give rise to
a plausible inference that those rights form public policy in
Washington or that plaintiff's termination jeopardized
that public policy.
response memorandum, plaintiff clarifies the basis of his
claim, stating that he was fired because he engaged in
protected speech by raising concerns about dangerous medical
practices and fraud in the use of ISDEAA funds. The Court
accepts plaintiff's clarification: his retaliation and
wrongful discharge claim is based upon and hereby limited to
alleged whistle-blowing activities regarding the medical
services provided to the Sauk-Suiattle Indian Tribe and
fraud, waste, and abuse under the tribe's ISDEAA
offers no additional information regarding his retaliation
claim. The claim appears to be a restatement of the First
Amendment claim discussed and dismissed above. Plaintiff
alleges that he engaged in speech protected by the First
Amendment and suffered adverse consequences causally related
to that speech. There is no state law or claim at issue.
Because the United States has not waived its immunity from
claims arising under federal law, including constitutional
torts, this part of Claim VI fails as a matter of law.
regards to the whistle-blowing claim, the United States
argues that plaintiff failed to identify a clear public
policy that was jeopardized by his termination or to allege
that his whistle-blowing activities were causally related to
his dismissal. Dkt. # 68 at 17. Now that plaintiff has
clarified the basis for his wrongful termination claim, the
Court disagrees. The question for the Court on a motion to
dismiss is whether the facts alleged in the complaint
sufficiently state a “plausible” ground for
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim is facially plausible when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Somers v. Apple,
Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). All
well-pleaded factual allegations are presumed to be true,
with all reasonable inferences drawn in favor of the
non-moving party. In re Fitness Holdings Int'l,
Inc., 714 F.3d 1141, 1144-45 (9th Cir. 2013). Only if
the complaint fails to state a cognizable legal theory or
fails to provide sufficient facts to support a claim is
dismissal appropriate. Shroyer v. New Cingular Wireless
Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
alleges that he was employed by the Sauk-Suiattle Indian
Tribe as the Director of its Health and Human Services
Department between April and December 2015. In that role,
plaintiff alleges that he notified certain defendants that
their scheme to encourage patients to apply for health
coverage under the Affordable Care Act constituted illegal
double dipping, that he refused to falsify ISDEAA contract
documentation, that he lodged complaints regarding the safety
and efficacy of the vaccination program offered by the tribal
medical clinic, that he reported a fellow medical provider
for working outside the scope of her license, and that he
complained about violations of health and safety standards
related to the lack of sinks in the medical clinics.
Plaintiff further alleges that he was threatened with
termination if he pursued his vaccine-related investigation