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Carlson v. United States

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

June 25, 2019

JONI CARLSON, Plaintiff,
v.
UNITED STATES, Defendant.

          ORDER ON PLAINTIFF'S MOTION TO REMAND AND DEFENDANT'S MOTION TO DISMISS

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         THIS 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.

         Carlson 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.

         The 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.

         Carlson's 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).

         DISCUSSION

         1. Violation of Privacy Claim

         Carlson 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.

         The 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 the CSRA).

         Carlson 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.

         2. Scope of Employment Certification

         Carlson 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.

         The 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 ...


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