Saunders v. Wilkie
| Decision Date | 30 October 2020 |
| Docket Number | CIVIL ACTION NO. 19-11482 SECTION "R" (5) |
| Parties | RALPH SAUNDERS v. ROBERT WILKIE, SECRETARY, U.S. DEPT. OF VETERANS AFFAIRS, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Defendants, in three motions, move to dismiss plaintiff's tort claims,1 breach of contract claim,2 and Title VII claims3 for lack of subject matter jurisdiction. First, the Court finds that it lacks subject matter jurisdiction over the tort claims and grants defendants' motion. Second, the Court finds that it lacks subject matter jurisdiction over the breach of contract claim and transfers it to the United States Court of Federal Claims. Finally, the Court concludes that it has subject matter jurisdiction over plaintiff's Title VII claims and denies defendants' motion.
Plaintiff, Ralph Saunders, was an employee at the New Orleans office of the Department of Veterans' Affairs ("VA") until 2005. Plaintiff alleges that he is "a fair skinned, light brown, Creole, African American, currently age 64, male," who worked as a housekeeper and painter for the VA.4 He allegedly suffered an on-the-job injury that led to disability retirement in May 2005.5
While employed at the VA, plaintiff brought several equal employment opportunity ("EEO") complaints. In October 2005, plaintiff signed a settlement agreement with the VA to resolve seven such claims.6 The agreement was finalized on November 9, 2005.7 As part of the settlement, Saunders withdrew all of his claims and agreed that he would not apply for future work with the VA.8 Among other terms, the VA agreed to pay $240,000.9 Saunders retained his right to file a claim for workers' compensation.10
From June 2005 until December 2017, plaintiff received a disability annuity from the U.S. Office of Personnel Management ("OPM").11 In 2017, Saunders began to inquire about alternate disability benefits.12 On December 5, 2017, the Department of Labor's ("DOL") Office of Workers' Compensation Programs ("OWCP") informed plaintiff that he would begin to receive benefits under the Federal Employees' Compensation Act ("FECA") in lieu of the OPM annuity.13 These FECA benefits, plaintiff claims, pay a significantly higher rate.14 The OWCP made the payment of FECA benefits retroactive to the date plaintiff's OPM annuity began.15
Plaintiff's complaint is primarily based on allegations that defendants intentionally transmitted false information to OPM and FECA investigators, which prevented him from receiving the higher FECA benefits earlier.16 Specifically, plaintiff alleges that defendants at the VA incorrectly told FECA and OPM investigators that he was not "retired-disabled" but had "resigned" or "resigned in lieu of termination."17 According to Saunders, this prevented him from receiving the higher-value FECA benefits between 2005 and2017.18 He alleges that these actions were discriminatory, based on his race, sex, and age, and were in retaliation for the EEO complaints he brought before his 2005 retirement.19
Based on these allegations, plaintiff brought a new EEO complaint to the VA's Office of Resolution Management ("ORM") on January 23, 2018.20 The ORM dismissed the complaint21 and, on appeal, the EEOC affirmed.22 This suit followed.23 In this Court, Saunders sued the VA and three groups of individual defendants: (1) high-level administrators of the VA, Robert Wilkie, the Secretary, and Jeffrey Reeder, chief counsel at the ORM; (2) employees at the VA's New Orleans office, Cassandra Holiday, Jeanette Butler, Debbie Richard, Linda Cosey, Anthony Smith, and William Insley (collectively the "local VA defendants"); and (3) employees of the EEOC, Janet Dhillon and Carlton Hadden.24 He brings tort claims, a claim that the VA breached the 2005 settlement agreement, and claims for Title VII discrimination and retaliation. The defendants ask the Court to dismiss these claims for lack of jurisdiction.
Federal Rule of Civil Procedure 12(b)(1) governs challenges to the Court's subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). Because a 12(b)(1) motion is jurisdictional, the Court considers such a motion "before addressing any attack on the merits," see In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012), in order to "prevent[] a court without jurisdiction from prematurely dismissing a case with prejudice." Id. at 286-87 (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).
In assessing a challenge to its subject matter jurisdiction, the Court "may dismiss . . . on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant Cty., 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Furthermore, plaintiff has the burden of demonstrating that subject matterjurisdiction exists. See Celestine v. TransWood, Inc., 467 F. App'x 317, 318 (5th Cir. 2012) (per curiam) (citing Ramming, 281 F.3d at 161).
First, the United States moves, under 28 U.S.C. § 2679(d)(1), to substitute itself as the proper party-defendant for the tort claims alleged against the individual defendants, to dismiss the tort claims against the individual defendants as a result of the substitution, and to dismiss the claims against the United States under Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust administrative remedies.25
The Government argues that, in light of its certification that the individual defendants were acting within the scope of their federal employment, the United States must be substituted as a party, and the Court must dismiss the individual defendants.26
Under the Westfall Act, an FTCA action against the Government is the exclusive remedy "for injury or loss of property, or personal injury or deatharising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ." 28 U.S.C. § 2679(b)(1). Any other action for money damages "arising out of or relating to the same subject matter against the employee . . . is precluded without regard to when the act or omission occurred." Id.
In an action under the FTCA, if the Attorney General or his designee certifies that an employee was acting within the scope of his employment at the time of the plaintiff's injury, the action "shall be deemed an action against the United States . . . , and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1). In this case, the civil chief of the United States Attorney's Office for the Eastern District of Louisiana certified that the defendants were acting within the scope of their employment at the time of the conduct alleged in the complaint.27 See 28 C.F.R. 15.4(a) and Justice Manual § 4-5.630.
Although a certification that an employee's conduct was within the scope of his employment is subject to de novo judicial review, Palmer v. Flaggman, 93 F.3d 196, 198-99 (5th Cir. 1996); Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995) (en banc) (citing Gutierrez de Martinez v.Lamagno, 515 U.S. 417, 420 (1995)), the plaintiff bears the burden of demonstrating that the employee's conduct was not within the scope of employment. Bolton v. United States, 946 F.3d 256, 260 (5th Cir. 2019) (quoting Williams v. United States, 71 F.3d 502, 506 (5th Cir. 1995)). To rebut the Government's certification, plaintiff must allege "specific facts that, taken as true, would establish that the defendant's actions exceeded the scope of his employment." Id. (quoting Jacobs v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013)). Plaintiff has no right to even "limited discovery," absent allegations sufficient to rebut the Government's certification. Id.
Plaintiff concedes that defendants Wilkie and Reeder were acting within the scope of their employment when the alleged tortious acts occurred.28 But, he maintains that the local VA defendants committed tortious acts outside the scope of their federal employment.29 He argues that the Court should set aside the United States' certification under the Westfall act and allow the tort claims to proceed against these individuals.
Whether a federal employee acted within the scope of his employment is determined by the law of the state in which the allegedly tortious conductoccurred. White v. United States, 419 F. App'x 439, 442 (5th Cir. 2011). In Louisiana, an employee's tortious conduct occurs within the scope of his employment if it is "so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests." LeBrane v. Lewis, 292 So.2d 216, 218-19 (La. 1974). To determine whether a tortious act occurred within the scope of employment, Louisiana courts consider whether the act: (1) was primarily employment rooted; (2) was reasonably incidental to the performance of the employee's duties; (3) occurred on the employer's premises; and (4) occurred during the hours of employment. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 484 (5th Cir. 2002) (citing Baumeister v. Plunkett, 673 So.2d 994, 996-97 (La. 1996)). All four of the factors need not be met in every case. White, 419 F. App'x at 442. Moreover, "that...
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