United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION TO REMAND AND
DEFENDANT'S MOTION TO DISMISS
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant United States'
Motion to Dismiss and Plaintiff Joni Carlson's Motion to
Remand. [Dkt #12 & #15]. Carlson is a USPS employee
stationed in Olympia and living in Shelton. She alleges that
her indirect supervisor, Alfredo Munoz, revealed her medical
information to third parties in Shelton as part of an
unauthorized worker's compensation fraud investigation.
Carlson sued Munoz in state court for intentional, reckless,
and negligent infliction of emotional distress; violation of
privacy; and defamation. The U.S. Attorney for this District
certified that Munoz was acting within the scope of his USPS
employment, and substituted the United States as the sole
defendant under the Federal Tort Claims Act. The United
States then removed the case here.
argues that substitution and removal was improper because
Munoz's alleged investigation was not within the scope of
his employment, and the FTCA does not apply. She argues that
Munoz is a customer service supervisor with no investigative
authority, and instead revealed her information because of
“personal vendetta issues” against her relating
to time she took off work and other reasons. [Dkt. #12 at p.
3]. The Government argues that the Attorney General's
certification is prima facie evidence that Munoz was
acting in the scope of his employment, and Carlson has not
met her burden of rebutting that evidence.
Government also argues that, because the Attorney
General's certification is valid, Carlson's
intentional tort claims of emotional distress and defamation
are barred by the FTCA. It argues that even if Carlson could
otherwise assert a proper FTCA claim, she has failed to
exhaust her administrative remedies and cannot bring suit.
Finally, it argues that whether or not Munoz was acting
within the scope of employment, Carlson's
“violation of privacy” claim is preempted by the
Civil Service Reform Act, which requires resolution of
disputes regarding personnel decisions through a CSRA
administrative process. It argues that because Carlson did
not engage in that process, the Court does not have subject
matter jurisdiction over her violation of privacy claim.
motion and response are more akin to streams of consciousness
than legal briefs. They contain few legal citations and no
law/fact analysis, but it appears that she seeks to challenge
the Attorney General's “scope of employment”
certification. If she succeeds, she may still assert the
emotional distress and defamation claims, but not the privacy
claim, which is governed by the CSRA. See Gutierrez de
Martinez v. Lamango, 515 U.S. 417 (1995); Mangano v.
United States, 529 F.3d 1243, 1247 (9th Cir. 2008)
(finding that the CSRA's scope is necessarily broad).
Violation of Privacy Claim
contends that Munoz violated her right to privacy when he
revealed her medical information to unauthorized third
parties. The Government responds that this claim falls under
the CSRA, not the FTCA, and can only be remedied through the
exclusive CSRA administrative process. It therefore argues
that the privacy claim should be dismissed for lack of
subject matter jurisdiction, whether Munoz was acting in the
scope of his employment or not.
CSRA provides administrative remedies for federal employees
challenging their supervisors' “prohibited
personnel practices.” Orsay v. U.S. Dep't of
Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (citing 5
U.S.C. § 2302), abrogated on other grounds by
Millbrook v. United States, 569 U.S. 50 (2013). This
process preempts the Privacy Act and the FTCA, even if it
provides no alternative remedy. Id. Prohibited
practices include “any ‘personnel action'
taken for an improper motive by someone who has authority to
take personnel actions, ” including retaliation.
Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir.
2005) (citing 5 U.S.C. §2302(b)); Orsay, 289
F.3d at 1129-1130. “Personnel actions” include
“implementation or enforcement of any nondisclosure
policy, form, or agreement.” 5 U.S.C. §
2302(a)(2)(A)(xi). Additionally, prohibited practices include
“taking ‘personnel actions' violative of [the
CSRA's] merit system principles, ” which include
treating employees “with proper regard for their
privacy and constitutional rights.” Saul v. United
States, 928 F.2d 829, 833 (9th Cir. 1991) (citing 5
U.S.C. § 2302(b)(2), (11)) (dismissing a federal
employee's invasion of privacy claim as preempted under
asserts that Munoz violated her privacy rights in retaliation
for the time she took off work. Violating an employee's
right to privacy and taking personnel actions with a
retaliatory motive fall squarely under the CSRA, and Carlson
can only remedy her privacy claim through its administrative
process. This Court does not have subject matter jurisdiction
over that claim. The Government's Motion to Dismiss
Carlson's violation of privacy claim is GRANTED, and that
claim is DISMISSED with prejudice and without leave to amend.
Scope of Employment Certification
argues that the Attorney General's “scope of
employment” certification was improper and the FTCA
does not apply. She argues that this case should be remanded
back to state court, with Munoz re-substituted as the
defendant. The Government argues that the certification is
prima facie evidence that Munoz was acting within
the scope of his employment and, while Carlson can challenge
that certification, she has failed to adequately do so. It
argues that the certification was therefore correct, and the
FTCA applies. Accordingly, Carlson's intentional tort
claims for emotional distress and defamation must be
dismissed, as the FTCA bars intentional tort claims. Finally,
it argues that even if Carlson's claims were not barred,
she has not exhausted her administrative remedies as required
by the FTCA and her claims must be dismissed for lack of
subject matter jurisdiction.
FTCA waives sovereign immunity to defend civil actions
brought against “any employee of the Government while
acting within the scope of his office or employment.”
28 U.S.C.S. § 2679(b). A claimant may not bring suit
under the FTCA “until they have exhausted their
administrative remedies.” McNeil v. United
States, 508 U.S. 106 (1993). The FTCA is an
“exclusive” remedy with “fatal
consequences, ” precluding “any other civil
action or proceeding…arising out of or relating to the
same subject matter against the employee.” 28 U.S.C.S.
§ 2679(b); Gutierrez, 515 U.S. at 421. It bars
claims “arising out of” intentional torts,
including emotional distress claims. 28 U.S.C.S. §
2680(h); see, e.g., Thomas-Lazear v.
F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (claim for
negligent infliction of emotional distress barred as