Douglas v. United States

• Decision Date: 29 February 2016
• Docket Number: No. 14–11444.,14–11444.
• Citation: 814 F.3d 1268
• Parties: Frank DOUGLAS, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

814 F.3d 1268

Frank DOUGLAS, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 14–11444.

United States Court of Appeals, Eleventh Circuit.

Feb. 29, 2016.

Timothy Brandon Waddell, Caplan Cobb, LLP, Atlanta, GA, Frank Douglas, Usp Beaumont, Beaumont, TX, for Plaintiff–Appellant.

Karin Bethany Hoppmann, U.S. Attorney's Office, Tampa, FL, Janelle Christine Dinicola, Federal Bureau of Prisons, Coleman, FL, for Defendant–Appellee.

Before TJOFLAT and MARTIN, Circuit Judges, and ROSENTHAL,^* District Judge.

MARTIN, Circuit Judge:

Frank Douglas, a federal inmate, appeals the District Court's dismissal of his Federal Tort Claims Act (FTCA) case. He claims that a Bureau of Prisons (BOP) official withheld wages he was owed for his work while incarcerated. The District Court held that this claim was barred by the FTCA's discretionary function exception. Mr. Douglas also filed related claims of discrimination, retaliation, and intentional infliction of emotional distress. The District Court dismissed these other claims based on the FTCA's exhaustion requirements. We reverse the District Court on the pay claim and affirm for the others.

I.

Mr. Douglas is a 56–year–old federal inmate. When he filed this lawsuit, he was incarcerated at FCC Coleman, a penitentiary in Florida, where he worked a trash shift multiple days a week. According to Mr. Douglas, this shift required him to "operate[ ] a very dangerous recycl[ing] machine for card-board." Mr. Douglas was one of two operators of this machine, the contents of which "weighed one or two tons" and had to be loaded into a semi-truck three or four times a week.

The BOP assigns inmate workers to one of four grades of "performance pay," with Grade 1 workers paid the most. See 28 C.F.R. § 545.26(b). According to Mr. Douglas's complaint, "[m]e and my supervisor went over my grade and pay numerous times." Then, on March 15, 2012, Mr. Douglas and his supervisor both signed a "Work Performance Rating" form indicating that Mr. Douglas had worked 154 hours of "satisfactory work" in the past month. The form also indicated that Mr. Douglas's "Performance Pay Grade Class" was 1 and that he would be paid $91.60. However, when Mr. Douglas was paid four days later, he received $7.20. The same thing happened the next month, when Mr. Douglas's supervisor again approved $91.60 for 154 hours of Grade 1 work but Mr. Douglas was paid only $12.00. Mr. Douglas alleges that these changes to his pay were made by a prison official named Lieutenant Barker. According to the complaint, Lt. Barker's role with respect to inmate pay is entering pay data into a computer system. Mr. Douglas also alleges that Lt. Barker said that he reduced the pay because "I don't like Inmate Douglas black ass and I'm going to pay him what I want."

Based on these allegations, Mr. Douglas filed a "Small Claims for Property Loss" form with the BOP on April 9, 2012. The BOP sent Mr. Douglas a final denial of this claim on June 21, 2012. Mr. Douglas then filed this lawsuit on June 27, 2012. By the time he sued, Mr. Douglas had also filed BOP complaints alleging retaliation, racial discrimination, and intentional infliction of emotional distress, but these were not fully appealed until later. The government moved to dismiss the suit under Rule 12(b)(6), arguing that Mr. Douglas's pay claim was barred by the FTCA's discretionary function exception and that the other claims were barred by the FTCA's exhaustion requirements. The motion was styled "alternatively" as a motion for summary judgment and included excerpts from various BOP documents, as well as a declaration by the prison's Inmate Performance Pay Coordinator. The District Court granted the motion to dismiss on March 12, 2014.

II.

We first address whether Mr. Douglas's pay claim was barred by the FTCA's discretionary function exception. We review this question of law de novo. See Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir.1998).

A.

The FTCA's discretionary function exception provides that the United States does not waive sovereign immunity for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government." 28 U.S.C. § 2680(a). We apply this exception by answering two questions. "First, we consider the nature of the conduct and determine whether it involves ‘an element of judgment or choice.’ " Ochran v. United States, 117 F.3d 495, 499 (11th Cir.1997) (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) ). "[C]onduct does not involve an element of judgment or choice, and thus is not discretionary, if ‘a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive.’ " Id. (quoting Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 ). "Second, if the conduct at issue involves the exercise of judgment, we must determine whether that judgment is grounded in considerations of public policy." Id.

When a plaintiff challenges the actions of an individual employee who is working within a broader administrative scheme, "a court must first consider whether the action is a matter of choice for the acting employee." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). "This inquiry is mandated by the language of the exception," which "protects the discretion of the executive or the administrator to act according to one's judgment of the best course." Id. (quotation omitted).¹ "For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Gaubert, 499 U.S. at 324–25, 111 S.Ct. at 1274–75.

B.

Before getting to the details of the government's discretionary function challenge, we must address a preliminary question: whether our review is limited to the allegations in Mr. Douglas's complaint, or whether we should consider the extrinsic evidence that the government filed in the District Court. The government attached several documents to its motion to dismiss, which was styled "alternatively" as a summary judgment motion. The District Court dismissed the case without considering this evidence or allowing Mr. Douglas to conduct discovery to respond to it.

When reviewing a discretionary function decision "entered on a motion to dismiss," the standard of review is usually straightforward: we "accept all of the factual allegations in [the] complaint as true and ask whether the allegations state a claim sufficient to survive a motion to dismiss." Gaubert, 499 U.S. at 327, 111 S.Ct. at 1276 (quotation omitted); see also Mesa v. United States, 123 F.3d 1435, 1437 (11th Cir.1997). The government says this rule doesn't apply here because "this Court has long treated a section 2680 bar as jurisdictional." According to the government, this means its attack on Mr. Douglas's complaint is based on Rule 12(b)(1), which deals with subject matter jurisdiction, rather than Rule 12(b)(6), which asks if the plaintiff properly stated a claim. Whereas 12(b)(6) challenges are "facial" (meaning we accept the allegations in a complaint as true), 12(b)(1) challenges can be "factual" (meaning we can use extrinsic evidence). See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.2009).

The problem with this argument is that the government expressly moved to dismiss based on Rule 12(b)(6). The District Court then granted the government's motion based solely on the allegations in Mr. Douglas's complaint. That means the dismissal was facial. See McElmurray v. Consol. Gov't of Augusta–Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.2007) (deciding that a dismissal for lack of subject matter jurisdiction was facial because "[t]he district court did not decide any issues of disputed fact"); Stalley ex rel. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir.2008) (per curiam) (deciding that a subject matter jurisdiction challenge was "a facial attack on the complaint" because "the record establishes that the district court considered only the complaint and the attached exhibits"). If the District Court had decided a factual challenge, this case would have come to us in a very different form. That is because "in a factual challenge the district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss." McElmurray, 501 F.3d at 1251 (citing Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir.1981) ). Mr. Douglas was not given these opportunities here. No matter the reason behind a dismissal, we can't convert a facial dismissal into a factual one on appeal. If we did, we would be finding facts for the first time on appeal.

There is another reason to treat the government's challenge as facial: the challenge turns on the merits of the overall case. "We have cautioned [ ] that the district court should only rely on Rule 12(b)(1) if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action. If a jurisdictional challenge does implicate the merits of the underlying claim then: ‘[T]he proper course of action for the district court ... is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.’ " Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir.2003) (quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997) ). This serves to protect "the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6)... or Rule 56 ... both of which place great restrictions on the district court's discretion." Id. (quotation...