Hammer v. Fed. Pub. Defender Org. of the E. Dist. of Cal.
| Decision Date | 02 August 2017 |
| Docket Number | Case No.: 3:16-CV-02192-BTM-NLS |
| Court | U.S. District Court — Southern District of California |
| Parties | BRIAN HAMMER, Plaintiffs, v. FEDERAL PUBLIC DEFENDER ORGANIZATION OF THE EASTERN DISTRICT OF CALIFORNIA, DOES 1-50, and UNITED STATES OF AMERICA, Defendants. |
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On August 30, 2016, Plaintiff Brian Hammer filed a complaint ("Complaint") against Defendants Federal Public Defenders Organization of the Eastern District of California, Does 1-50 ("Federal Public Defenders") and the United States of America ("United States"). Defendant Federal Public Defenders moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). (ECF No. 13.) For the reasons discussed below, Defendant Federal Public Defenders' motion is GRANTED.
On or about March 31, 2003, Plaintiff was found guilty of mail and wire fraud in the Eastern District of California, was subsequently sentenced to 36 months in prison, and ordered to pay restitution in the amount of $35,000. However, Plaintiff contends that he should not have been required to pay any restitution because Plaintiff's father had previously settled with the victims in state court in May of 2002. Id. at ¶ 17. Plaintiff believes that the previous settlement was in "complete recompense" for his victim's losses and that the "related settlement offsets were incorrectly entered in the restitution sentencing table." (ECF No. 19, Reply in Response to Motion at 8.) Despite Plaintiff's belief, in August 2014 the U.S. Attorney's Office in the Eastern District of California sent Plaintiff a demand notice for $37,380. (Compl. ¶ 18). Plaintiff attempted three separate times to correct what he believed to be a "restitution error," but was unable to do so. Id. at ¶ 20. Plaintiff then contacted The Federal Public Defender's office seeking assistance in resolving the matter.
In February 2015, Magistrate Judge Carolyn K. Delaney appointed Defendant Federal Public Defenders to represent Plaintiff pursuant to 18 U.S.C. §3006A, and did so under Plaintiff's original case number. (Compl. at Ex. 1.) However, the Federal Public Defenders withdrew from representation four months later, claiming it could not "provide [Plaintiff] the assistance he desires." (Compl. at Ex. 2.) Plaintiff then initiated the present action against Defendants Federal Public Defender and the United States.
The core of Plaintiff's argument is Defendant Federal Public Defender negligently and incompetently represented Plaintiff in correcting the 2003 restitution order. (Compl. ¶¶ 22, 24.) Plaintiff contends that the Federal Public Defender "knowingly and willfully...failed to acknowledge their mistakes" made during the course of representation, and their actions are "in violation of their express and implied duties" pursuant to the legal services agreement and public policy. (Compl. ¶ 24.)
Both Defendants Federal Public Defender and the United States broughtseparate motions to dismiss Plaintiff's Complaint. The Court now considers Defendant Federal Public Defender's motion to dismiss.
1. FRCP 12(b)(6) - Failure to State a Claim:
Rule 12(b)(6) provides a party may move to dismiss a complaint that "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P.12(b)(6). While Federal Rule of Civil Procedure 8(a) may only require a "short and plain statement of the claim showing that the pleader is entitled to relief," to survive a Rule 12(b)(6) challenge a complaint must state a cognizable legal theory and "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Indeed, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'" which would allow the "court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This claim must assert "more than a sheer possibility that a defendant has acted unlawfully." Id.
In considering a Rule 12(b)(6) motion, the Court must look at the "complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). While courts generally do not consider material beyond the pleadings in ruling on a 12(b)(6) motion, "[c]ertain written instruments attached to the pleadings may be considered," as well as non-attached documents which are incorporated by reference "if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Friedman v. AARP, Inc., 855 F.3d 1047,1051 (9th Cir. 2017) (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). The Court may also take judicial notice of "matters of public record," provided the facts noticed are not reasonably disputed. Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
2. Sovereign Immunity:
The concept of sovereign immunity, which the Supreme Court has characterized as an "axiom of our jurisprudence," is the idea that the United States cannot be sued unless it has specifically consented. Price v. United States, 174 U.S. 373, 375-76 (1899). The presence of such consent is a "prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206 (1983) (see also United States v. Sherwood, 312 U.S. 584, 586 (1941).) For the United States to consent to suit, a waiver of sovereign immunity must be unequivocally expressed by Congress, and any conditions Congress attaches to a waiver of sovereign immunity "must be strictly observed, and exceptions thereto are not to be lightly implied." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Accordingly, one must examine the terms and extent of the consent itself to "define [the] court's jurisdiction to entertain the suit." Mitchell, 463 U.S. at 538.
3. Federal Tort Claims Act:
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and 20 U.S.C. §§ 2671-2680, was first adopted by Congress in 1946. The purpose of the FTCA is to allow recovery for certain tort claimants who are the victims of governmental negligence where such claims would normally be barred by sovereign immunity. E.g., Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955); Lehner v. United States, 685 F.2d 1187, 1189 (9th Cir. 1982). The FTCA permits the exclusive remedy of money damages for suits involving the tortuous conduct, wrongful acts, or omissions of the employees or agents of the United States. 28 U.S.C. §2679(a) and (b).
The FTCA's waiver of sovereign immunity in tort actions is "subject to certain exceptions." S.H. by Holt v. United States, 2017 WL 1314939, at 3 (9th Cir. Apr. 10, 2017). However, the FTCA, as a limited waiver of sovereign immunity, "must be strictly construed in favor of the United States." Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (see also Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)). The Supreme Court has cautioned against finding implied waivers of sovereign immunity and stated that such waivers must not be enlarged "beyond what the language requires." Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 (1983). Here, it is the Plaintiff who must bear the burden of showing such a waiver is "'unequivocally expressed' in the statutory text." Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1101 (9th Cir. 2016) (quoting Library of Congress v. Shaw, 478 U.S. 310, 318 (1986)). Plaintiff must show that Congress consented to subject the United States government to suit pursuant to the FTCA under circumstances such as exist in the present case, and thus establish that this court has subject matter jurisdiction to hear the present case.
With respect to the Federal Public Defender, 28 U.S.C. §2671 explains that an "employee of the government" is defined as "...(2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18." As employees of a "Federal public defender organization," Defendant Federal Public Defender falls within the definition of "employee of the government" unless the exception applies. This exception was specifically added to the definition by amendment in 2000. See Federal Courts Improvement Act of 2000, PL 106-518, November 13, 2000, 114 Stat. 2410. For the exception to apply, the Federal Public Defender employee must have beenperforming professional services pursuant to representation under section 3006A.
As discussed above, the appointment of Defendant Federal Public Defender as counsel to Plaintiff was made pursuant to 18 U.S.C. §3006A, as evidenced by the Order Appointing Counsel dated February 17, 2015. (Compl. at Ex. 1.) Additionally, the aforementioned order was issued under the same case number as the Plaintiff's preceding criminal conviction. It seems clear that the U.S. District Court for the Eastern District of California assigned the Federal Public Defender to represent Plaintiff under the belief that it was acting pursuant to the authority of §3006A and that said representation was in connection to Plaintiff's original criminal case.
Plaintiff contends, however, that the Federal Public Defender could not have been representing him under §3006A, as he was not a "financially eligible 'criminal defendant'" at the time or representation. (ECF Doc. No. 19, Plaintiff's Opposition, at 10.) While Plai...
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