Chavez v. United States

• Decision Date: 09 March 2023
• Docket Number: 22-CV-1182 TWR (AHG)
• Parties: ANDRES E. CHAVEZ, JR., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of California

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ANDRES E. CHAVEZ, JR., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 22-CV-1182 TWR (AHG)

United States District Court, S.D. California

March 9, 2023

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (ECF NO. 5)

Honorable Todd W. Robinson, United States District Judge.

Presently before the Court is Defendant the United States of America's Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (ECF No. 5, “Mot.”), along with Plaintiff Andres E. Chavez, Jr.'s Opposition to (ECF No 6, “Opp'n”) and Defendant's Reply in Support of (ECF No. 8, “Reply”) the Motion. The Court took this matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (See ECF No 9.) Having carefully considered Plaintiff's Complaint (ECF No. 1, “Compl.”), the Parties' arguments, and the relevant law, the Court GRANTS Defendant's Motion to Dismiss WITHOUT PREJUDICE.

BACKGROUND

Plaintiff is a service-disabled veteran of the United States Marine Corps who owned and operated a business called StandBuy Distributors, Inc. (“SDI”). (Compl. at 10^[1]; Opp'n at 13.) SDI contracted with the Defense Logistics Agency (“DLA”) to supply Bushnell tactical range finders to the United States military. (See Compl. at 10-11; Opp'n at 13.) Plaintiff's contracts with DLA were part of the Service-Disabled Veteran-Owned Small Business Program, which gives the United States Army the authority to give servicedisabled veteran-owned small businesses preference for contracting opportunities. (Compl at 6-10.)

Plaintiff had a good relationship with a former supervisor at DLA who mentored and assisted Plaintiff and SDI with the DLA contracts. (Id. at 11-12.) But once that supervisor retired in early 2020, Plaintiff ran into issues with DLA. (Id.) DLA revoked acceptance of the range finders supplied by SDI and a contracting officer eventually issued a decision explaining that SDI owed DLA over $40,000 based on the officer's determination that SDI supplied the wrong type of range finder to DLA. (Compl. at 11; ECF 1-6 at 2.) DLA demanded that Plaintiff pay the amount requested or risk being barred from federal contracting. (Compl. at 11.)

Plaintiff appealed the contracting officer's decision to the Armed Service Board of Contract Appeals (“ASBCA”). (Id. at 14.) In July 2021, the ASBCA determined that DLA's revocation of its acceptance of the range finders was untimely, thereby reversing the contracting officer's decision. (ECF 1-6 at 2-8.)

In August 2022, Plaintiff filed a Complaint in this Court under the Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 2671 et seq., and the Rehabilitation Act, 29 U.S.C. § 794. (See Compl. at 2-3, 17-23.) In his Complaint, Plaintiff brings the following eight causes of action against the United States: (1) intentional infliction of emotional distress (“IIED”); (2) breach of fiduciary duty; (3) negligence; (4) negligent supervision; (5) abuse of process; (6) loss of consortium; (7) violation of the Rehabilitation Act; and (8) violation of Defendant's “mandatory statutes, regulations, and policies.” (Id. at 17-23.) The allegations in Plaintiff's Complaint are based on Plaintiff's claim that DLA employees

falsely accused Plaintiff of fraud by supplying China[-]made tactical range finders made by Bushnell under several awarded contracts and issued a ‘contracting officer's final decision' . . . to Plaintiff, which in short explained that Plaintiff and his company owed [DLA] tens of thousands of dollars (over $40k) and demanded Plaintiff pay the amount requested immediately or risk being barred from federal contracting and/or prosecution.

(Id. at 11.) Plaintiff claims DLA's employees negligently proceeded with an unjustified, unlawful, and frivolous contracting officer's decision that was based on false information and that Plaintiff was not “mentally prepared to receive.” (Id. at 12-13.) This negligent decision-making, Plaintiff claims, caused him to have a “severe mental breakdown.” (Id. at 13.) He thus seeks monetary damages from the United States for causing him to become increasingly disabled. (Id. at 13, 17, 24.)

MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)

I. Legal Standards

A. Federal Rule of Civil Procedure 12(b)(1)

A party may challenge the Court's subject-matter jurisdiction through a motion filed pursuant to Federal Rule of Civil Procedure 12(b)(1). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Because “[f]ederal courts are courts of limited jurisdiction,” “[i]t is to be presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Consequently, “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

“Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White, 227 F.2d at 1242. “A ‘facial' attack accepts the truth of the plaintiff's allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). “A ‘factual' attack, by contrast, contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Id. (first citing Safe Air for Everyone, 373 F.3d at 1039; and then citing Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)).

Here, Defendant facially attacks Plaintiff's Complaint-without disputing the facts in Plaintiff's Complaint, Defendant argues the Court lacks subject-matter jurisdiction over Plaintiff's claims. (See Mot. at 11-17.) “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite, 749 F.3d at 1121 (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)).

B. Sovereign Immunity

“Where the United States is a defendant, a mere showing of federal jurisdiction does not suffice.” United Aeronautical Corp. v. U.S. Air Force, No. 2:20-CV-1955-ODW (JDEx), 2021 WL 794500, at *3 (C.D. Cal. Mar. 2, 2021); see N. Side Lumber Co. v. Block, 753 F.2d 1482, 1484 (9th Cir. 1985). That is because the United States generally enjoys sovereign immunity from civil suits. See United States v. Sherwood, 312 U.S. 584, 586-87 (1941). But Congress may explicitly waive the United States' sovereign immunity and consent to suit in federal court. See United States v. King, 395 U.S. 1, 4 (1969); see also FAA v. Cooper, 566 U.S. 284, 290 (2012) (“We have said on many occasions that a waiver of sovereign immunity must be ‘unequivocally expressed' in statutory text.” (citation omitted)). “The United States' consent to suit is a prerequisite for jurisdiction.... Without a waiver of sovereign immunity, federal courts lack subject matter jurisdiction over cases against the government.” Allianz Glob. Risks U.S. Ins. Co. v. United States, No. 21-CV-1202-BAS-BGS, 2022 WL 1271140, at *5 (S.D. Cal. Apr. 28, 2022) (citation omitted). And courts “constru[e] waivers of sovereign immunity narrowly in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 195 (1996). Therefore, “[t]o sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.” Id. at 192.

“The FTCA provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment.” Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000); see Millbrook v. United States, 569 U.S. 50, 52 (2013) (“The [FTCA] gives federal district courts exclusive jurisdiction over claims against the United States for ‘injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission' of a federal employee ‘acting within the scope of his office or employment.'” (quoting 28 U.S.C. § 1346(b)(1))). “Under the FTCA, the United States may be held civilly liable for the torts of its employees ‘in the same manner and to the same extent as a private individual under like circumstances.'” Nurse, 226 F.3d at 1000 (quoting 28 U.S.C. § 2674). But the FTCA's waiver of immunity is limited by several statutory exceptions. Id.; see 28 U.S.C. § 2680. And if the plaintiff's causes of action “fall within one or more of these exceptions, then the federal courts lack subject matter jurisdiction to hear [his] claims.” Nurse, 226 F.3d at 1000.

II. Analysis

Defendant moves to dismiss Plaintiff's Complaint arguing the Court lacks subjectmatter jurisdiction over Plaintiff's claims see Fed.R.Civ.P. 12(b)(1), and, even if the Court had jurisdiction, each of Plaintiff's causes of action fails to state a claim, see Fed.R.Civ.P. 12(b)(6). (See Mot. at 16-35.) Defendant contends (1) all of Plaintiffs claims are barred by the Contract Disputes Act (“CDA”); (2) Plaintiff's FTCA claims are barred by the intentional torts and the discretionary function exceptions to the FTCA's limited waiver of sovereign immunity; (3) Plaintiff's Rehabilitation Act claim is barred because the United States has not waived immunity against claims for monetary damages under that Act; and (4) Plaintiff's Complaint fails to plausibly allege any claim. (Id.) Plaintiff contends that none of these jurisdictional bars apply to his claims and that...