Krafsur v. Davenport
| Decision Date | 05 March 2013 |
| Docket Number | NO. 2:11-CV-170,2:11-CV-170 |
| Parties | GERALD I. KRAFSUR, Plaintiff, v. MICHAEL J. DAVENPORT, individually and in his official capacity, and the SOCIAL SECURITY ADMINISTRATION, Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
This matter is before the Court on defendants' motion to dismiss plaintiff's Second Amended and Supplemental Complaint, [Doc. 27]. Plaintiff has responded in opposition, [Doc. 29], defendants have replied, [Doc. 33], and the matter is now ripe for disposition. For the reasons which follow, the motion to dismiss will be GRANTED.
On June 13, 2011, the plaintiff, an administrative law judge ("ALJ") with the Social Security Administration ("SSA") filed his initial complaint, [Doc. 1]. All defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), [Doc. 4]. On October 4, 2011, plaintiff filed an Amended and Supplemental Complaint, [Doc. 13], and defendants again moved to dismiss, [Doc. 16]. After full briefing on the motion to dismiss, plaintiff was granted leave by the Magistrate Judge to file a second amended complaint, [Doc. 25], and the Second Amended and Supplemental Complaint was filed on June 26, 2012, [Doc. 26].
In the pending motion to dismiss, defendants argue the complaint must be dismissed because (1) the plaintiff's claims are constitutional tort claims, known as "Bivens claims," for which federal agencies and federal officials have not waived sovereign immunity and the AdministrativeProcedures Act and the Tucker Act are not applicable to the plaintiff's "Bivens claims"; (2) the plaintiff's claims, including the plaintiff's claims against the defendant Davenport in his individual capacity, allege prohibited personnel actions which are preempted by the comprehensive statutory scheme of the Civil Service Reform Act ("CSRA"); and (3) the plaintiff's tort claim for intentional infliction of emotional distress against defendant Davenport in his individual capacity fails because it is also preempted by the CSRA and because the plaintiff has failed to exhaust his administrative remedies under the Federal Tort Claims Act.
II.Facts
The following facts, taken from the Second Amended and Supplemental Complaint, are accepted as true:
The plaintiff, a licensed attorney, is an ALJ for the SSA assigned to SSA's Region Four field office in Kingsport, Tennessee. He hears and decides claims for Social Security disability benefits and conducts hearings in Kingsport, Morristown, Tennessee and Asheville, North Carolina. Krafsur also decides claims for attorney's fees by successful claimants. Defendant Michael J. Davenport ("Davenport") is the Hearing Office Chief ALJ ("HOCALJ") for the Kingsport field office.
Krafsur "has been routinely conservative in awarding attorney's fees in response to fee petitions" from claimant's attorneys who have no fee agreement with their clients. The fees are paid by the claimants and deducted from their disability awards. In September, 2010, Davenport began pressuring Krafsur to make higher attorney's fee awards. Krafsur objected to the "illegal" directive from Davenport "on the grounds that it interfered with his judicial independence." Davenport then began to retaliate against Krafsur to punish him for refusing to make higher attorney's fee awards.
Since 1991, Krafsur had established a pattern of working several hours on some Saturdaysand after normal office hours during the week to complete his assigned cases. He was not paid extra, and did not request extra pay, for Saturday and after-hours work. Davenport, in retaliation for Krafsur's refusal to grant higher attorney's fees, directed Krafsur to stop his Saturday and after-hours work, causing Krafsur to "suffer mental and physical distress," making it more difficult for him to perform his job duties.
In further retaliation, Davenport began to deny Krafsur's request for personal "use or lose" leave, unless he presented the leave request to Davenport in person, contrary to the prior office practice of placing such request for leave in the timekeeper's interoffice box. Other ALJs were allowed to continue the prior practice. Davenport declared Krafsur "AWOL" for approximately 26 hours of requested leave which had not been presented to him personally and accused Krafsur of being "insubordinate." As a result of the "unapproved" leave, money was withheld from Krafsur's paycheck by Davenport and Krafsur's available "use or lose" leave hours were reduced to match the reduction in pay, depriving Krafsur of both pay and leave hours.
In January, 2011, Davenport retaliatorily cancelled hearings Krafsur had scheduled in Asheville, North Carolina without Krafsur's agreement. Krafsur was notified of the cancellations by Davenport by telephone before he drove to Asheville. Krafsur objected that Davenport did not have the authority to cancel hearings and Davenport "announced" he had done so because of bad weather. Krafsur was embarrassed by the cancellations.
Krafsur notified the Office of Special Counsel ("OSC"), Davenport and SSA regional managers by his January 6, 2011 letter of his objection to Davenport's "illegal and retaliatory interference with his judicial independence." Krafsur's letter advised OSC that he considered Davenport's actions to be "constructive and involuntary adverse employment actions" and that SSAhad not advised him of his appeal rights to the Merit Systems Protection Board (" MSPB") as required by the CSRA. Neither OSC nor SSA responded to Krafsur's letter and have "stonewalled" his complaints.
In May, 2011, Davenport "disparaged" plaintiff's work performance to Region Four supervisors and "threatened" to deny the plaintiff non-emergency leave if Krafsur did not meet performance "benchmarks." Davenport has continued to retaliate against Krafsur by "insisting" that he present leave requests personally and "threatening" Krafsur with disciplinary action if "he requests or takes leave without meeting" performance benchmarks which were imposed on plaintiff but not other ALJs.
Retaliation against plaintiff has continued since the filing of the initial complaint. In July, 2011, the "defendants" altered a leave request slip submitted by Krafsur while Davenport was out of the office on vacation. The leave request was altered "by a co-conspirator in the retaliation cabal" to reflect that Krafsur had requested two hours of leave on July 14, 2011, instead of eighteen hours of leave for July 14 - 18, 2011. As a result, Krafsur was again declared AWOL and one day's pay deducted from his next paycheck. When Krafsur advised Davenport after Davenport returned from his vacation that he had called the Kingsport SSA office on July 18, Davenport accused him of being a "liar." Krafsur submitted a duplicate leave request at Davenport's insistence, which Davenport then rejected. Davenport subsequently sent plaintiff two letters demanding that Krafsur and Davenport discuss the July leave situation as if the prior discussion and duplicate leave request had never occurred. Krafsur requested that the Inspector General investigate the illegal alteration of the leave request by letter dated August 23, 2011.
In further retaliation, Davenport then misrepresented the July leave situation to Region Foursupervisors. As a result, Regional Chief ALJ Ollie Garmon ("Garmon") issued a written reprimand to Krafsur. Davenport "withheld" from his report to Region Four supervisors that the interim HOCALJ had approved Krafsur's request for leave during Davenport's absence on vacation, that an SSA employee in the Kingsport office altered the request, that Krafsur and Davenport had discussed the July leave report in detail when Krafsur returned to the office, and that Davenport had insisted that Krafsur submit a duplicate leave request. SSA later reimbursed the plaintiff's AWOL pay deduction.
Krafsur has suffered further "retaliation" since the filing of his Amended and Supplemental Complaint. In March, 2012, Krafsur was notified by Garmon that he would be investigating Krafsur's disability hearing procedures and conduct. On or about April 12, 2012, Garmon came to Kingsport and "interrogated" Krafsur for approximately 6.5 hours regarding several of his 2011 disability decisions. The questioning was an effort by SSA to harass and intimidate Krafsur and "discourage him from continuing to pursue this federal court action." Garmon instructed Krafsur to refrain from discussing topics involving the SSA.
On May 10, 2012, Davenport placed Krafsur on paid administrative leave and began reassigning Krafsur's disability cases to other ALJs. Krafsur was ordered to turn over all case files. When Krafsur telephoned Garmon later on May 10, Garmon confirmed that Krafsur had to return his files to the Kingsport office. Krafsur did as directed. During a telephone conference, Garmon directed Krafsur to clean out his office, turn in his government identification and certification documents, and to remain at his residence until further notice. Defendants' actions effectively removed Krafsur from his ALJ position without affording him any administrative civil service remedies.
Krafsur seeks injunctive relief, compensatory and punitive damages against Davenport, and compensatory damages against SSA "not to exceed $10,000.00."
III.Standard of Review
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) where the court lacks subject matter jurisdiction over a plaintiff's claim. Fed. R. Civ. P. 12(b)(1). If a Rule 12(b)(1) motion challenges the court's subject matter jurisdiction based on the sufficiency of the pleadings' allegations, the motion is a facial attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In reviewing a Rule 12(b)(1) facial attack, the court must accept all material allegations as true and construe them in a light most favorable to the non-moving party. Id. The defendants here...
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