BONILLA-OLMEDO v. US, Civil No. 08-1842 (FAB/CVR).
| Decision Date | 12 November 2009 |
| Docket Number | Civil No. 08-1842 (FAB/CVR). |
| Citation | 677 F. Supp.2d 511 |
| Parties | Esperanza BONILLA-OLMEDO, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Julio Cesar Alejandro-Serrano, Nicolas Nogueras-Cartagena, Nicolas Nogueras Law Offices, San Juan, PR, for Plaintiff.
Hector Ramirez-Carbo, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendant.
Plaintiff Esperanza Bonilla-Olmedo (hereafter "plaintiff Bonilla-Olmedo") filed this federal claim as the widow of William Charles Merriweather (hereafter "Mr. Merriweather"), who was a civilian employee with the Department of Morale and Welfare in Fort Buchanan, Puerto Rico. It is therein claimed that as of July of 2005 and up to the time of his demise, Mr. Merriweather was the victim of harassment by his superiors who undermined the deceased's health and ultimately resulted in his death. The supervising personnel at the Army base had knowledge of the situation as of November 29, 2006, and failed to take any corrective action. This situation is depicted in to the sworn statements and grievances filed.
Plaintiff Bonilla-Olmedo and two of the grandchildren state they sought to continue their status as residents of Fort Buchanan after Mr. Merriweather's death and were confronted with unreasonable obstacles not previously experimented by other widows at the Army installation. When attempting to inquire about the grievances initiated by the deceased, plaintiff Bonilla-Olmedo was treated in a hostile fashion and was denied access to the record. Subsequently, they were all removed from the Army installation and denied privileges and access without justification. These actions were claimed to have been conducted outside the employer's immunity at the workplace and the legitimate activities of employment.
Plaintiff Bonilla-Olmedo claims the work harassment by the employer and the named individuals in the body of the complaint fall under Article II of the Constitution of the Commonwealth of Puerto Rico and the injuries suffered could be addressed as private individuals under Article 1802 and 1803 of the Puerto Rico Civil Code. As such, the defendant, United States of America is considered to have waived immunity in this tort case wherein private individuals are held liable for such conduct under state law for which the suit would not be barred by any provision of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674(b). (Docket No. 1).
On March 6, 2009, defendant the United States of America filed a "Motion to Dismiss and Memorandum in Support" claiming plaintiff Bonilla-Olmedo's claims under the FTCA should be dismissed inasmuch as plaintiff is not entitled to a cause of action against defendant. The United States submits the claim is barred by the Nonappropriated Fund Instrumentalities Act, the Longshoremen and harbor Workers Compensation Act as well as the FTCA. It is further claimed the complaint is time barred by the applicable statute of limitations. (Docket No. 17).
On April 13, 2009, plaintiff Bonilla-Olmedo filed a response in Opposition to Motion to Dismiss. (Docket No. 20). On April 14, 2009, defendant filed a Reply to Response. (Docket No. 23). On June 19, 2009, a Memorandum in Support and Supplement of Motion to Dismiss were filed. (Docket No. 31). A Memorandum in Opposition appears on same date. (Docket No. 32).
On September 14, 2009, the parties consented to jurisdiction by this United States Magistrate Judge at the Status Conference which was held. (Docket Nos. 36 and 38).
A defendant may move to dismiss an action against him, based solely on the complaint, for the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In assessing this motion, we "accept all well-pleaded facts as true, and we draw all reasonable inferences in favor of the plaintiff." Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971 (1st Cir. 1993). However, mere legal conclusions "are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). The complaint must demonstrate "a plausible entitlement to relief" by alleging facts that directly or inferentially support each material element of some legal claim. Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Twombly, 550 U.S. at 559, 127 S.Ct. 1955) (internal quotation marks omitted).
Under the FTCA, the United States waives its sovereign immunity for "injury or loss of property ... caused by the negligent act or omission of any employee of the Government while acting within the scope of his office or employment, under 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). The FTCA provides the exclusive remedy to compensate for a federal employee's tortious acts committed within his/ her scope of employment. See 28 U.S.C. § 2679(a). Such a remedy lies only against the United States for actions by its employees and is exclusive of any other civil action.
Congress authorized a limited waiver of sovereign immunity when federal employees commit torts while acting within the scope of their employment. 28 U.S.C. § 2675(a). A district court lacks jurisdiction over an FTCA action if the plaintiff has not complied with the notice requirements of Section 2675(a).
Accordingly, a tort action against the United States must be cognizable in accordance with the law of the place or local law. McCollum v. Bolger, 794 F.2d 602, 608 (11th Cir.1986). However, federal constitutional torts are not included within the law of the place, since local law and federal law by definition and terminology are different.
This waiver of immunity is subject to numerous conditions, including: (1) the presentation of a claim for a sum certain within two years of accrual of the cause of action to the appropriate federal agency and denial of the claim before bringing suit, see 28 U.S.C. § 2675(a); and (2) the filing of a civil suit within six months of denial of the administrative claim, see 28 U.S.C. § 2401(b).
Throughout the FTCA, the meaning of a legal term is what Congress intended and is not dependent on state law. See United States v. Neustadt, 366 U.S. 696, 705-06, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961) (); Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992) () (the definition of a term used in the FTCA is by definition a federal question). See Paul F. Figley, Understanding the Federal Tort Claims Act: A Different Methaphor, 44 Tort Trial & Ins. Prac. L.J. 1105 (2009).
We shall now examine hereinbelow the several grounds for dismissal submitted by defendant.
In defendant's argument as to the limited waiver of sovereign immunity provided by the FTCA, the United States would not be subject for liability as to violations of the Constitution of the Commonwealth of Puerto Rico for actions of its employees acting in their official capacity. More so when the United States has not even waived sovereign immunity for suits alleging violations of the United States Constitution.
We need not reach this constitutional issue since the plaintiff's action is not a constitutional tort as such but rather a vehicle whereby the Puerto Rico Constitution allows for the provisions of Article 1802 to be asserted.1
The Puerto Rico Supreme Court has specifically held that the constitutional rights to dignity and privacy as they appear in Art. II secs. 1 and 8 of the Bill of Rights of the Puerto Rico Constitution operate ex proprio vigore and, therefore, may be asserted against private parties via a claim sounding in tort pursuant to the provisions of Art. 1802 of the P.R. Civil Code, P.R. Laws Ann. tit. 31 § 5141 (1990); see Vega Rodríguez v. Telefónica de P.R., 156 D.P.R. 584, 600, 2002 WL 723309 (2002); Soc. Legal de Gananciales v. Royal Bank de P.R., 145 D.P.R. 178, 202 (1998); Arroyo v. Rattan Specialties, Inc., 117 D.P.R. 35 (1986).
Due to their peculiar nature by way of exception, private parties are liable for violations to dignity and privacy protections of their employees under local Commonwealth Constitution. The Puerto Rico Supreme Court distinguished coverage under these particular constitutional rights which operate ex proprio vigore from those that do require state action such as due process, freedom of speech and protection against unreasonable searches and seizures which mandate government intervention. Hence, these last provisions are not available vis a vis private parties and may only be asserted against government entities. Vega Rodríguez v. Telefónica de P.R., 156 D.P.R. at 613; Rosario v. United States, 538 F.Supp.2d 480 (D.Puerto Rico 2008)(claims for alleged violations to dignity and privacy protections under the Puerto Rico constitution translate into suits amenable to FTCA liability).2
Plaintiff's entitlement to a tort action as to defendant does not depend directly on...
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