Aubart v. McCarthy
| Decision Date | 03 April 2020 |
| Docket Number | Civ. No. 19-00459-ACK-KJM |
| Parties | KEVIN T. AUBART, Plaintiff, v. RYAN MCCARTHY, Acting Secretary of the Army, Defendant. |
| Court | U.S. District Court — District of Hawaii |
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S AMENDED FEDERAL TORT CLAIMS ACT COMPLAINT
Plaintiff Kevin T. Aubart, a civilian employee of the United States Department of the Army, asserts claims under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 1346 et seq., against Defendant Ryan McCarthy, Acting Secretary of the Army (the "Army"). Plaintiff's eleven "negligence" claims allege misrepresentations and defamatory statements made to deprive him of certain benefits and insult his professional reputation, conduct infringing his free-speech rights, and retaliation in response to whistleblowing activities. The Army moves to dismiss Plaintiff's claims for want of subject matter jurisdiction. For the reasons detailed below, the Court GRANTS the Army's Motion to Dismiss, ECF No. 15 (the "Motion"). Counts 1, 2, 3, 4, 5, 8, 9, and 10 are dismissed WITHOUT PREJUDICE, while Counts 6, 7, and 11 are dismissed WITH PREJUDICE.
BACKGROUND
The following facts are primarily drawn from the operative complaint. See ECF No. 8 (the "Amended FTCA Complaint"). Also relevant is the existence of another action filed earlier in this district before Judge Kobayashi (and now on appeal before the Ninth Circuit), as well as documents filed in connection with a prior motion in this case. The Court takes judicial notice of the existence of the prior proceeding and the statements made by Plaintiff in this case, as detailed below and to the extent consistent with the proper scope of judicial notice.1
Before filing this case, Plaintiff brought a separate lawsuit in this district, Aubart v. Esper, Civ. No. 17-00611-LEK-KJM (the "2017 Reimbursement Action"), in which he sought reimbursement of travel expenses arising from his temporary relocation to Schofield Barracks from his permanent duty station at Fort Shafter. Judge Kobayashi issued an order on August 19, 2019, granting summary judgment in the defendant's favor, whichis currently on appeal before the Ninth Circuit. See 2017 Reimbursement Action, ECF Nos. 91 (order granting) & 95 (appeal).
After the defendant was granted summary judgment in the 2017 Reimbursement Action, Plaintiff filed a complaint in that same case asserting new claims under the Federal Tort Claims Act ("FTCA"). Id., ECF No. 92. Judge Kobayashi issued an order in response, noting that Plaintiff's amendment to his complaint was untimely. Id., ECF No. 94. Judge Kobayashi had previously dismissed Plaintiff's FTCA claims because he had failed to allege exhaustion of his administrative remedies. Id. She had allowed Plaintiff a designated time to amend his complaint but warned that failure to do so within that time would result in his FTCA claims being dismissed with prejudice. Id. When Plaintiff ultimately filed a "Motion to Withdraw FTCA Complaint," Judge Kobayashi construed that as "Plaintiff's statement of position acknowledging that his FTCA claim did not meet the exhaustion requirement," and that he would not file a second amended complaint. Id.
Judge Kobayashi went on to unequivocally reject Plaintiff's untimely request to amend his complaint:
[E]ven if the Court considered Plaintiff's untimely motion for leave to file the FTCA Complaint, to the extent the amended complaint is based on Defendant's denial of Plaintiff's request for travel reimbursement ("TDYClaim"), this Court has already determined that Defendant is entitled to summary judgment on the TDY claim. Therefore, that portion of Plaintiff's FTCA Complaint is now moot. Because it is moot, amendment would be futile.
See 2017 Reimbursement Action, ECF No. 94 (internal citations omitted). She did note, however, that certain claims in Plaintiff's proposed FTCA complaint were based on new facts and new claims—e.g., his whistleblower claim; retaliation claims; and First Amendment claims. Id. Thus, because those claims were not originally raised in the 2017 Reimbursement Action, Judge Kobayashi noted that Plaintiff was entitled to attempt to refile those claims in a separate action. Id.
Plaintiff did just that. He brought this action (the "FTCA Action") on August 25, 2019, and he filed the now-operative complaint on November 17, 2019. See Am. Compl. He originally filed an administrative claim with the government agency, a prerequisite to suit under the FTCA. See 28 U.S.C. § 2675(a); Am. Compl. ¶ 2. While he does not identify the specific agency, Plaintiff asserts that the agency failed to dispose of his claim within six months, which prompted him to file this Action. Am. Compl. ¶ 2.
While Plaintiff reframes and enhances his allegations to assert different causes of action, his claims stem to some degree from the same allegations made in the 2017 ReimbursementAction in which he sought reimbursement of mileage and certain travel benefits. The claims now before the Court in the Amended FTCA Complaint primarily relate to allegations that Army employees and leadership made various misrepresentations intended to deprive Plaintiff of such mileage and travel benefits. Specifically, Plaintiff asserts that Army employees made false statements that Plaintiff and other employees were informed of a permanent change of duty station. The Amended FTCA Complaint likewise alleges that Army employees made false statements to the court when they filed sworn declarations to this effect in the 2017 Reimbursement Action. Plaintiff alleges that employees and leadership also engaged in conduct that infringed his free-speech rights and constituted unlawful retaliation. Specifically, when Plaintiff complained of the allegedly-false statements, he asserts that Army employees and leadership retaliated.
The Amended FTCA Complaint asserts eleven counts of "negligence" against the Army. The claims are framed as hinging on violations of the Whistleblower Protection Act of 1989 (the "WPA"), 5 U.S.C. § 2302, et seq. and "other federal statutes." Id. ¶ 3. Count 1 of the Amended FTCA Complaint alleges that an Army employee negligently "directed" Plaintiff to drive his personal vehicle, in violation of the State Department of Defense's Joint Travel Regulations. The remainder ofPlaintiff's eleven claims can be classified into three categories: the "Misrepresentation Claims" (Counts 2-5 & 10), the "Whistleblower Claims" (Counts 6, 7, & 11), and the "First Amendment Claims" (Counts 8-9).
The Misrepresentation Claims allege various false statements that deprived Plaintiff of certain benefits, damaged his professional reputation, and caused him to incur unnecessary litigation costs. Specifically, Counts 2, 4, 5, and 10 allege that Army employees breached duties owed under the Standards of Ethical Conduct for Employees of the Executive Branch, 4 C.F.R. Ch. XVI, Subch. B., Pt. 2635 (the "Ethics Code"). See Am. Compl. Count 2 (allegations of misrepresentation that Plaintiff was notified of a permanent change of station), Count 4 (allegations of misrepresentation that Plaintiff refused an order to drive his personal vehicle), Counts 5 & 10 (allegations of failure to disclose material facts to the district court in the 2017 Reimbursement Action). And Count 3 alleges that Army employees breached duties under the "Army Core Principles of integrity" by negligently making false or misleading claims that Plaintiff was notified of a permanent change of station.
The Whistleblower Claims allege that Army employees breached duties owed under the WPA. Specifically, Count 6 asserts that an Army employee shared Plaintiff's complaint in retaliation and "for malicious purpose." Count 7 complains ofan Army employee's sharing of Plaintiff's complaint and canceling of his transfer to Okinawa, allegedly in retaliation for his filing of the complaint. And Count 11 alleges that Army leadership unlawfully refused to investigate Plaintiff's complaint or to "take any action to protect Plaintiff's rights under federal statutes."
Finally, the First Amendment Claims allege that Army employees negligently breached a duty to protect Plaintiff's First Amendment right to free speech by attempting to stop Plaintiff from communicating with Senator Brian Schatz and "any Army personnel."
Now before the Court is Defendant's Motion to Dismiss in which the Army argues that the Court lacks subject matter jurisdiction over Plaintiff's claims. The Army filed its Motion on December 20, 2019. Plaintiff filed his Opposition Brief on March 15, 2020, ECF No. 32, and Defendant filed its Reply Brief on March 17, ECF No. 34.2 The Court held a telephonic hearing on March 31, 2020.
STANDARDS
A defendant may challenge a court's subject matter jurisdiction under Federal Rule of Civil Procedure ("Rule") 12(b)(1). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).
A challenge to a court's subject matter jurisdiction may be either "facial" or "factual." Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In a facial attack, "the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). By contrast, in a factual attack, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. (quoting Safe Air, 373 F.3d at 1039). Here, the Army's Motion brings a facial attack on Plaintiff's Amended FTCA Complaint, arguing that the allegations therein do not invoke this Court's subject matter jurisdiction.
Pro se pleadings and briefs are to be construed liberally. Balisteri v. Pacifica Police Dep't....
To continue reading
Request your trial