Diaz-Romero v. Ashcroft

• Decision Date: 26 January 2007
• Docket Number: Civil No. 05-2180 (RLA).
• Citation: 472 F.Supp.2d 156
• Parties: Wilfredo DIAZ-ROMERO, M.D., et al., Plaintiffs v. Secretary of Justice, John ASHCROFT, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

472 F.Supp.2d 156

Wilfredo DIAZ-ROMERO, M.D., et al., Plaintiffs v. Secretary of Justice, John ASHCROFT, et al., Defendants.

Civil No. 05-2180 (RLA).

United States District Court, D. Puerto Rico.

January 26, 2007.

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Carmen Eva García-Cárdenas, Esq., Nicolás Nogueras-Cartagena, Esq., Nicolas Nogueras Law Offices, San Juan, PR, for Plaintiffs.

A.U.S.A. Maritza González, U.S. Attorney's Office, San Juan, PR, for Defendants.

ORDER GRANTING MOTION TO DISMISS

ACOSTA, District Judge.

The United States of America has moved the court to dismiss the instant complaint alleging lack of subject matter jurisdiction, lack of in personam jurisdiction, insufficiency of service of process, failure to state a claim, and failure to join an indispensable party. In the alternative, movant requests that summary judgment be entered in its favor.

The court having reviewed the memoranda filed by the parties hereby finds sufficient grounds to grant the petition for dismissal for the reasons set forth in this Order.¹

I. PROCEDURAL BACKGROUND

Dr. Wilfredo Diaz Romero, a former Public Health Service ("PHS") commissioned officer formerly assigned to the Bureau of Prisons ("BOP" or "Bureau") Metropolitan Detention Center in Guaynabo, Puerto Rico ("MDC Guaynabo"), his wife and their conjugal partnership instituted this action claiming damages arising from alleged employment discrimination against Dr. Diaz Romero while working at MDC Guaynabo based essentially on two separate events.

Specifically, the complaint alleges that: (1) Dr. Diaz Romero was demoted from his position as Clinical Director to the position of Medical Officer in retaliation for having been previously charged with sexual harassment, and (2) his performance evaluation was lowered in violation of his due process rights. The pleading further mentions a conspiracy to violate plaintiffs constitutional rights and a hostile work environment created by defendants' intentional or negligent discriminatory conspiracy actions.

The complaint cites violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., 42 U.S.C. §§ 1983, 1985 and 1986, the Fourth, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution as well as torts pursuant to art. 1802 of the Puerto Civil Code, P.R. Laws Ann. tit. 31, § 5191 (1990) under our supplemental jurisdiction.

Plaintiffs seek both compensatory and punitive damages.

Named defendants are: John Ashcroft and Richard Chavez in their official capacity² as well as several other current and former BOP and PHS employees both in their personal and official capacities.

We need only address the viability of plaintiffs Title VII cause of action as well as the tort and constitutional violations claims inasmuch as they are dispositive of this suit.

II. RULE 12(b)(1) AND RULE 12(b)(6)

Movant argues dismissal premised on both lack of subject matter jurisdiction as well as plaintiffs' failure to state a colorable claim.

The court's authority to entertain a particular controversy is commonly referred to as subject matter jurisdiction. ("In the absence of jurisdiction, a court is powerless to act.") Am Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1st Cir.2004).

Federal courts are courts of limited jurisdiction and hence, have the duty to examine their own authority to preside over the cases assigned. "It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction." McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.2004). See also, Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1st Cir.2001) ("Federal courts, being courts of limited jurisdiction, have an affirmative obligation to examine jurisdictional concerns on their own initiative.")

Further, subject matter jurisdiction is not waivable or forfeited. Rather, it involves a court's power to hear a case, it may be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004); United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). "The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1240, 163 L.Ed.2d 1097 (2006).

The proper vehicle for challenging the court's subject matter jurisdiction is Rule 12(b)(1) whereas challenges to the sufficiency of the complaint are examined under the strictures of Rule 12(b)(6). In disposing of motions to dismiss for lack of subject matter jurisdiction the court is not constrained to the allegations in the pleadings as with Rule 12(b)(6) petitions. Rather, the court may review extra-pleading material without transforming the petition into a summary judgment vehicle. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002); Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996).

In disposing of motions to dismiss pursuant to Rule 12(b)(6) Fed.R.Civ.P. the court will accept all factual allegations as true and will make all reasonable inferences in plaintiffs favor. Frazier v. Fairhaven School Com., 276 F.3d 52, 56 (1st Cir.2002); Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001); Berezin v. Regency Say. Bank, 234 F.3d 68, 70 (1st Cir.2000); Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 92 (1st Cir. 2000).

Our scope of review under this provision is a narrow one. Dismissal will only be granted if after having taken all well-pleaded allegations in the complaint as true, the court finds that plaintiff is not entitled to relief under any theory. Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir.1995) cert. den. 516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996); Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994). Further, our role is to examine the complaint to determine whether plaintiff has adduced sufficient facts to state a cognizable cause of action. Alternative Energy, 267 F.3d at 36. The complaint will be dismissed if the court finds that under the facts as pleaded plaintiff may not prevail on any possible theory. Berezin, 234 F.3d at 70; Tompkins, 203 F.3d at 93.

Regardless of which of these two procedural routes we take for examining the viability of claims asserted in these proceedings, we find that dismissal of the complaint is warranted.³

III. TITLE VII

The United States, as a sovereign, is immune from suit unless it waives its immunity by consenting to be sued. See, United States v. Mitchell 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."); Day v. Massachusetts Air Nat'l Guard, 167 F.3d 678, 681 (1st Cir.1999) ("[a]s sovereign, the United States may not be sued for damages without its consent.") In 1972 — by way of an amendment to the Civil Rights Act of 1964 — federal employees as well as applicants to federal employment were allowed to vindicate claims of discrimination in employment based on "race, color, religion, sex, or national origin" via judicial proceedings. 42 U.S.C. § 2000e-16(a). These remedies are exclusive and mandate that employees first exhaust the pertinent administrative steps prior to resorting to the court for relief. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Brown v. Gen. Servs. Admin., 425 U.S. 820, 829-30, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).

It is undisputed that plaintiff, Dr. Diaz Romero, was an active service commissioned officer in the PHS at all times relevant to the complaint. Pursuant to 42 U.S.C. § 213(f),⁴ he is deemed to be in active military service in the Armed Forces and hence, excluded from the provisions of Title VII, specifically 42 U.S.C. § 2000e-16 which extended its application to employees of the Federal Government. See, Hedin v. Thompson, 355 F.3d 746, (4th Cir.2004); Salazar v. Heckler, 787 F.2d 527 (10th Cir.1986); Middlebrooks v. Thompson, 379 F.Supp.2d 774 (D.Md. 2005).

Further, plaintiff's spouse has no valid claim under Title VII. Relief against the Government under this particular statute is limited to "employees or applicants for employment" in the federal system. 42 U.S.C. § 2000e-16(a). See also, Ramos v. Roche Prods., 694 F.Supp. 1018, 1026 (D.P.R.1988), vacated on other grounds, 880 F.2d 621 (1st Cir.1989) ("Though Congress intended Title VII to provide a broad foundation to remedy employment discrimination, it did not intend to provide a remedy to a spouse of a plaintiff having no employment connection with the employer".)

Accordingly the claims asserted under Title VII are hereby DISMISSED.⁵

IV. TORTS — INDIVIDUAL DEFENDANTS

Plaintiffs may not pursue a negligence cause of action against the individual defendants in this case. According to the Federal Tort Claims Act ("FTCA"), the United States is the only proper party defendant to a suit based on torts arising from the negligent acts or omissions of its employees when taken within the scope of their official duties. "The FTCA waives the sovereign immunity of the United States with respect to tort claims ... and provides the exclusive remedy to compensate for a federal employee's tortious acts, committed within his or her scope of employment." Roman v. Townsend, 224 F.3d 24, 27 (1st Cir.2000). Pursuant to 28 U.S.C. § 2679(b)(1), the remedies provided under the Federal Tort Claims Act against the United States for negligent suits is exclusive and federal employees — including members of the military⁶ — are immune from suits based on torts for acts taken within the scope of their employment.

The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act,...