Berkeley-Dorchester v. U.S. Dept. of Health, C.A. No. 2:04-22950-23.

• Decision Date: 31 August 2005
• Docket Number: C.A. No. 2:04-22950-23.
• Citation: 395 F.Supp.2d 317
• Parties: BERKELEY-DORCHESTER COUNTIES ECONOMIC DEVELOPMENT CORP., Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Administration for Children and Families; Windy M. Hill, as Associate Commissioner of the Head Start Bureau, Administration for Children and Families, Defendants.
• Court: U.S. District Court — District of South Carolina

395 F.Supp.2d 317

BERKELEY-DORCHESTER COUNTIES ECONOMIC DEVELOPMENT CORP., Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Administration for Children and Families; Windy M. Hill, as Associate Commissioner of the Head Start Bureau, Administration for Children and Families, Defendants.

C.A. No. 2:04-22950-23.

United States District Court, D. South Carolina, Charleston Division.

August 31, 2005.

Joseph P. Griffith, Jr., Joe Griffith Law Firm, Paul Francis Tecklenburg, Rivers

Thomas Jenkins, III, Tecklenburg Law Firm, Charleston, SC, for Plaintiff.

Lee Ellis Berlinsky, U.S. Attorneys Office, Charleston, SC, for Defendants.

ORDER

DUFFY, District Judge.

This matter is before the court upon five pending motions: (1) Defendant United States Department of Health and Human Services ("HHS"), Administration for Children and Families's ("ACF")¹ Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6); (2) Defendant Windy M. Hill's Motion to Dismiss the claims asserted against her in her individual capacity pursuant to Fed.R.Civ.P. 12(b)(1) and (6); (3) Plaintiff Berkeley-Dorchester Economic Development Corporation ("Berkeley-Dorchester") Motion to Set Aside the Government's Certification of Defendant Windy Hill's Employment and for Discovery on the Scope of Commissioner Hill's Employment; (4) Plaintiff Berkeley-Dorchester's Motion for Leave to File a Second Amended Complaint; and (5) Berkeley-Dorchester's Amended Motion for Leave to File a Revised Second Amended Complaint. For the reasons set forth herein, the court grants Berkeley-Dorchester's Amended Motion for Leave to File a Revised Second Complaint and denies Berkeley-Dorchester's Motion to Set Aside the Government's Certification of Defendant Windy Hill's Employment. The court finds HHS/ACF's and Hill's motion to dismiss and Berkeley-Dorchester motion for leave to file a second amended complaint moot.

BACKGROUND

Plaintiff Berkeley-Dorchester is a South Carolina non-profit corporation that has served as a grantee under the federal Head Start program since the 1960s. The Head Start program is designed to provide qualified low-income children with pre-elementary instruction to enable them to succeed when they enter school, and is administered at the federal level by the DHSS's ACF. The program provides grants to local community-based non-profit organizations and school systems (such as Berkeley-Dorchester), with grant awards being made directly from ACF regional offices to the local entities. Defendant Windy M. Hill ("Hill") served as the Associate Commissioner of the Head Start Bureau of ACF during the events giving rise to Berkeley-Dorchester's claims; Defendant Hill apparently resigned from her post with ACF/HHS in late May of 2005.

The allegations of the present matter center on events that began in June of 2004, when ACF conducted on-site reviews of Charleston-area Head Start facilities run by Berkeley-Dorchester. Several months later, in September of 2004, ACF provided Berkeley-Dorchester with a Head Start Review Report ("Report") in which it notified Berkeley-Dorchester that it believed there were floor tiles containing asbestos at three of its facilities (John's Island, Awendaw, and New Isreal), as well as myriad other alleged deficiencies in Berkeley-Dorchester's facilities. ACF required Berkeley-Dorchester to submit evidence that the three facilities did not present an asbestos hazard within ten days. Berkeley-Dorchester submitted evidence that it deemed sufficient to demonstrate that there was no asbestos risk. The Government disagreed, and summarily suspended Berkeley-Dorchester's financial assistance on November 9, 2004. The next day, the parties had an informal meeting at which Berkeley-Dorchester attempted to present new evidence of the lack of an asbestos problem. According to Berkeley-Dorchester, Defendant Hill refused to consider any of the proffered evidence and was already in the process of giving a new grantee responsibility for the centers.

On November 10, 2004, Berkeley-Dorchester commenced this lawsuit seeking declaratory and injunctive relief. The court heard Berkeley-Dorchester's motion for a preliminary injunction on November 12, 2004. The court ordered that a temporary restraining order was to remain in effect for a ten day period and was to preserve the status quo by preventing Defendants from taking any further actions to carry out the suspension.

On November 17, 2004, Defendant Hill rescinded the summary suspension, but imposed prior deadlines by which Berkeley-Dorchester had to make its certifications of corrective action. Although this was allegedly an almost impossible task according to Berkeley-Dorchester, it met Hill's deadlines. On November 22, 2004, Berkeley-Dorchester filed an Amended Complaint adding the following causes of action against Defendant Hill: (1) a Bivens claim for violation of Constitutional protections; (2) civil conspiracy; (3) violations of 42 U.S.C.1985 and 1986; and (4) slander. Additionally, Berkeley Dorchester asserted a claim for further declaratory and injunctive relief barring Defendants from imposing unreasonable time frames and taking any adverse action against Defendants for their failure to comply with such time frames.²

After the Amended Complaint was filed, the Government conducted additional inspections of the three facilities from December 13-16, 2004 to confirm and verify that corrective actions had been taken. On January 21, 2005, Defendant HHS/ACF³ moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Primarily because the results of the December inspections had not been released, the court ruled that supplemental briefing and a hearing were required to resolve the motion to dismiss. Specifically, the court ruled that it needed more information on, inter alia, the status quo of the dealings between the parties, the likely course of future actions, whether any of Berkeley-Dorchester's claims were ripe or moot, and what damages, if any, Berkeley-Dorchester had incurred as a result of Defendants' actions.

On March 2, 2005, Berkeley-Dorchester received two letters from Defendant Hill. The first letter, dated February 28, 2005, purported to terminate assistance to Berkeley-Dorchester's facilities, alleging "new deficiencies" were found during the December inspections. Curiously, this letter (while purporting to terminate assistance) required corrective action be taken within thirty days. The second letter, dated March 2, 2005, required that Berkeley-Dorchester take corrective action to cure new areas of noncompliance within ninety days, or else Defendant Hill would use those areas of non-compliance as a grounds for termination.

After receiving these letters, Berkeley-Dorchester requested a minimum extension of 180 days to develop and implement a Quality Improvement Plan ("QIP"), which would address the areas of concern cited by the Government. Berkeley-Dorchester also requested training and technical assistance. Defendant Hill rejected these requests. On March 31, 2005, Berkeley-Dorchester filed a motion with HHS Appeals Board to dismiss Defendant Hill's February 28th letter purporting to terminate financial assistance. ACF moved for a stay until after yet another on-site inspection could be performed. While this was supposed to occur in June, two reviewers arrived unannounced prior to this date on May 16,2005. The court remains unaware of any factual developments occurring since May 16, 2005.⁴

ANALYSIS

As is apparent from the Background section of this order, this matter has presented the court with ever-changing factual developments, which have in turn produced myriad motions. In an attempt to clarify the status quo and move the litigation forward in an orderly manner, the court rules on two pending motions only: Berkeley-Dorchester's opposition to the Government's Certification of Hill's Employment, and Berkeley-Dorchester's Amended Motion for Leave to File a Revised Second Amended Complaint. The court finds moot all previously filed motions to dismiss, and directs the parties to file responsive pleadings to Berkeley-Dorchester's Second Amended Complaint.

The court first addresses the propriety of the Government's certification that Hill was acting in her official capacity at all relevant times, and then considers Berkeley-Dorchester's request for leave to file a revised second amended complaint.

A. Berkeley-Dorchester's Opposition to the Government's Certification of Hill's Employment

After Berkeley-Dorchester amended its complaint to add claims against Defendant Hill in her individual capacity, the Government, on May 2, 2005, filed a Certification of Employment in which a United States Attorney affirms that he has "inquired into and evaluated the circumstances surrounding the incidents in question in the captioned action, and that Defendant Windy M. Hill was acting within the scope of her employment as an employee of the United States at the times material to Plaintiff's action." (Cert. of Employment at 1-2.) Accordingly, the Government contends that the United States of America should be deemed the party defendant to the slander and conspiracy claims asserted against Ms. Hill.⁵

Berkeley-Dorchester opposes the certification of Hill's employment, as it wishes to pursue its tort claims against Hill in her individual capacity. Essentially, Berkeley-Dorchester's argument opposing certification is that Defendant Hill was acting "beyond her authority and outside the scope of her employment" in "her campaign to deprive Berkeley-Dorchester of its Head Start Program." (Pl. Mot. in Opp. to Cert. at 1-2, 4.) Berkeley-Dorchester contends that Hill "lacks any direct oversight for Head Start Program grantees, such as Berkeley-Dorchester, that are located in ACF Region IV." (Pl. Mot. in Opp. to Cert. at 2.)

The Federal Employee Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act amendment to the FTCA, provides that:

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