M.G. v. United States
| Decision Date | 30 September 2020 |
| Docket Number | Case No.: 19-cv-1252-AJB-AHG |
| Court | U.S. District Court — Southern District of California |
| Parties | M.G., Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE
United States of America ("Defendant" or "United States") moves to dismiss Plaintiff M.G.'s ("Plaintiff") complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (See Doc. No. 13.) Plaintiff filed an opposition to Defendant's motion to dismiss. (See Doc. No. 18.) Defendant filed a reply in support of the motion. (See Doc. No. 19.) Pursuant to Civil Local Rule 7.d.1, the Court finds the matter suitable for determination on the papers and without oral argument. For the reasons discussed herein, the Court GRANTS Defendant's motion to dismiss.
Plaintiff brings this complaint under the Federal Torts Claim Act ("FTCA"). (First Amended Complaint ("FAC"), Doc. No. 10 ¶ 1.) Plaintiff alleges her psychiatrist, Leon Fajerman, "committed acts of sexual harassment and negligent physical contact against" Plaintiff for six months—from "January 2017 through June 2017." (Id. ¶¶ 3, 26.) The events took place at San Ysidro Health Center, a federally qualified health center, where Plaintiff claims Dr. Fajerman has a "history and practice of sexually assaulting and attacking his patients." (Id. ¶¶ 4-5.) Plaintiff states, unbeknownst to her, Dr. Fajerman was being investigated for similar conduct by the Medical Board, resulting in his license being suspended in July 2017. (Id. ¶¶ 35, 39-40.) On "January 18, 2019, Dr. Fajerman was sentenced to three years of probation and 365 days of house arrest" after pleading "guilty to felony sexual contact with seven patients and misdemeanor sexual battery." (Id. ¶¶ 45-46.)
On July 8, 2019, Plaintiff filed her complaint against Defendant, alleging claims for negligent failure to advise or warn, and negligent hiring, supervision, and retention under the FTCA. (Complaint ("Compl.") Doc. No. 1 ¶ 46.) Then on December 19, 2019, Plaintiff filed an amended complaint alleging claims for negligent supervision and retention under the FTCA. (FAC ¶ 54.) On January 21, 2020, Defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to the Federally Supported Health Centers Assistance Act ("FSHCAA"), the FTCA's waiver of sovereign immunity, and the discretionary function exception. (Doc. No. 13.) Plaintiff partially opposed the motion, and Defendant replied. (Doc. Nos. 18-19.) This order follows.
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Accordingly, "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The party asserting subject matter jurisdiction has the burden of persuasion for establishing it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010). Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the party asserts a facial challenge, the court limits its inquiry to the allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court assumes Plaintiff's "[factual] allegations to be true and draw[s] all reasonable inferences in [her] favor." Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Where the party asserts a factual challenge, the Court may consider extrinsic evidence demonstrating or refuting the existence of jurisdiction without converting the motion to dismiss into a motion for summary judgment. Id. Defendant argues Plaintiff's complaint fails to state a claim that is facially outside of the FSHCAA or the discretionary function exception to the FTCA. (Doc. No. 13 at 2.) Thus, the Court considers the allegations in the complaint and draws all reasonable inferences in favor of Plaintiff.
As a general principle, the United States "may not be sued without its consent. . . ." United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA, however, is an example of the federal government consent to be sued for certain types of actions. The FTCA provides that the United States may be sued "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 42 U.S.C. § 1346(b). The FTCA provides the exclusive remedy for tort lawsuits against the United States and allows the United States to be held liable to the same extent as a private employer under state law. 28 U.S.C. § 2679. Thus, California law governs this FTCA case. 28 U.S.C. §§ 1346(b)(1), 2674.
The FSHCAA, 42 U.S.C. § 233, extends the application of the FTCA to certain public health entities, their employees, and qualified contractors receiving federal grants under 42 U.S.C. § 254(b). The entities typically covered by the FSHCAA are community health centers that receive federal grants to serve underprivileged populations regardless of their ability to pay for service. H.R. Rep. No. 104-398 at 5 (1995).
Defendant argues the Court must dismiss the following claims: (1) failure to warn and advise Plaintiff of Dr. Fajerman's inappropriate conduct leading to his license being reviewed; and (2) negligent supervision and retention of Dr. Fajerman.
The Court notes that Plaintiff's partial opposition to Defendant's motion to dismiss states that Plaintiff does not allege Defendant's "failure to warn her of Dr. Fajerman's suspended license and history of sexual misconduct is independently actionable under the FTCA." (Doc. No. 18 at 2). Thus, the Court GRANTS Defendant's motion to dismiss to the extent Plaintiff does not oppose the dismissal of the failure to warn and advise claim. Next, the Court turns to Defendant's motion to dismiss Plaintiff's negligent supervision and retention claim for lack of subject matter jurisdiction.
Defendant argues that the San Ysidro Health Administration's ("SYH") supervision and retention of Dr. Fajerman does not fall within the scope of FSHCAA's and FTCA's waiver of sovereign immunity because these are "administrative/human resources/employment [in] nature" that are "not the performance of medical, surgical, or dental functions." (Doc. No. 13 at 7). Additionally, Defendant continues to argue that "related functions" as stated in FSHCAA does not encompass "supervisory and retention decisions." (Id. at 9.) Plaintiff retorts that the supervision and retention of a physician is a "related function" under the FSHCAA. (Doc. No. 18 at 7).
In the Court's recent decision in a companion case, the Court held that the plaintiff established a basis for jurisdiction in her negligent hiring, supervision, and retention claim based on the FSHCAA because the psychiatrist's "actions were related to his treatment of [plaintiff] and appears . . . to have arisen from his employment." Sanchez v. United States, No. 18-CV-1550-AJB-AGS, 2019 WL 3766615, at *4 (S.D. Cal. Aug. 9, 2019). The Court in Sanchez based its analysis from two cases. First, it reasoned that a "[h]ealth [c]enter's obligation . . . for vetting its physicians are 'inextricably woven into [its] performance of medical functions." Brignac v. United States, 239 F. Supp. 3d 1367, 1377 (N.D. Ga. 2017) (quoting Teresa T. v. Ragaglia, 154 F. Supp. 2d 290, 300 (D. Conn. 2001)). Second, the Court distinguished the plaintiff's case from another case where the court there recognized the sexual assault and murder of the victim was not related to the performance of dental functions. See La Casa de Buena Salud v. United States, No. CIV 07-238 JB/RHS, 2008 WL 2323495, at *20 (D.N.M. Mar. 21, 2008). However, the Court eventually granted the United States' motion to dismiss the plaintiff's negligent hiring, supervision, and retention claim for lack of subject matter jurisdiction on the basis that the discretionary function exception applies. Sanchez, 2019 WL 3766615, at *4.
Here, Defendant mainly raises similar arguments as those in Sanchez and admits they "failed to persuade the Court[.]" (Doc. No. 13 at 13-14.) Because this case raises substantially similar issues, the decision in Sanchez is dispositive. However, the Court acknowledges Defendant advances an additional argument and contends that the phrase "personal injury . . . resulting from the performance of medical, surgical, dental, or related functions" is ambiguous and the Court should give Auer deference to the U.S. Department of Health Services' ("HHS") limited application of the phrase to claims that "sound in medical malpractice." (Doc. No. 13 at 14.)
The Auer deference doctrine has recently been reassessed in a case before the United States Supreme Court about a "Vietnam War veteran seeking disability benefits from the Department of Veterans Affairs (VA)." Kisor v. Wilkie, 139 S. Ct. 2400, 2409 (2019). The Court laid out the following markers to be met before Auer deference is applied: (1) the regulation is genuinely ambiguous and a court must exhaust all the traditional tools of construction; (2) the agency's interpretation must be reasonable, under the text, structure, and history of the regulation; (3) the agency's interpretation must implicate its substantive expertise; (4) the interpretation must be the agency's authoritative or official position reflecting the agency's view, not merely an ad hoc statement; and (5) the agency's reading of the regulation must reflect fair and...
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