ORDER
Bеfore the Court is United States of America’s (the Government’s) “Motion to Dismiss Complaint for Lack of Jurisdiction Under Fed.R.Civ.P. 12(b)(1) and for Failure to State a Claim Under Fed.R.CiV.P. 12(b)(6) or In the Alternative Motion for Summary Judgment” (D.E. -10), along with Plaintiff, Colbert Rittgers’s (Rittgers’s) Response (D.E. 14) and the Government’s Reply (D.E. 15). For the reasons set out below, the Court declines to convert the motion to one for summary judgment under Federal Rule of Civil Procedure 56. The Rule 12 motion to dismiss is GRANTED.
A. Rittgers’s Claims and the Arguments for Dismissal
Rittgers filed suit against the Government and the Honorable .John McHugh, Secretary, Department of the Army (Army) regarding issues related to his emрloyment at the Corpus Christi Army Depot (CCAD). Rittgers complains that, while conducting an investigation of the matter, the Government disclosed to Rittgers’s co-workers private information related to criminal accusations against Rittger involving child pornography found on his CCAD-allocated computer space. D.E. 3. He also complains of the Army’s use of his personal information (polygraph test results) and criminal investigation record without his effective consent in CCAD employment-related administrative actions taken against him. The claim contends that the Government and Army set out on a course to disclose private facts about Rittgers to the public. Id.
Ultimately, the child pornography criminal charges against Rittgers were dismissed without prosecution, citing a lack of sufficient evidence to proceed. However, because his private information was disclosed, Rittgers claims to have suffered mental and emotional distress along with lost or diminished financial opportunities. He sues for violation of the Privacy Act of 1974, 5 U.S.C. § 552a, and under the Federal Tort Claims .Act (FTCA), 28 U.S.C. §§ 1346(b) and 2679(a), for invasion of privacy-false light, defamation-plus or stigma-plus, abuse of process, and intentional infliction of emotional distress. D.E. 3.
The Government
• Rittgers did not file his claims within the statute of limitations of the Privacy Act;
• Rittgers did not file his claims within the statute of limitations of the FTCA;
• FTCA exceptions require dismissal based on sovereign immunity for claims arising out of libel, or slander, such as invasion of privacy by false light, defamation-plus, stigma-plus, and intentional infliction of emotional distress; and/or
• Rittgers’s FTCA claims are preempted by the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8116(c) et seq.
D.E. 10.
B. The Standards of Review
The Supreme Court has admonished courts to be linguistically precise when dismissing claims in order to be clear whether the dismissal is truly one for lack of jurisdiction or if it simply involves a fatal claim-processing defect. Union Pacific R. Co. v. Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment, Cent. Region,
The motion paints the bases for dismissal with a broad brush, seeking dismissal on each basis under Rule 12(b)(1) for lack of jurisdiction or alternatively under Rule 12(b)(6) for failure to state a clаim- upon which relief may be granted, without concern for which route the decisional process must take. For the reasons set out below, the Court finds that only the FTCA exception and FECA preemption claims are jurisdictional.
1. Rule 12(b)(1) Challenge to Jurisdiction Standard of Review
When a Rule 12(b)(1) motion is filed together with other Rule 12 motions, the court should address the jurisdictional attack before addressing any attack on the merits. Ramming v. United States,
The btirden of proof is on the party asserting jurisdiction — Rittgers, here. Ramming,
2. Rule 12(b)(6) Failure to State a Claim Standard of Review
The test of pleadings under Rule 12(b)(6) is devised to balance a party’s right to redress against the interests of all parties and the, court in minimizing expenditure of time, money, and resources devoted to meritless claims. Bell Atlantic Corp. v. Twombly,
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Furthermore, “Pleadings must be construed so as to do justice.” Rule 8(e). The requirement that the plеader show that he is entitled to relief requires “more than labels and conclusions^] a formulaic recitation of the elements of a cause of action will not do.” Twombly,
Factual allegations are required, sufficient to raise the entitlement to relief above the level of mere speculation. Twombly,
The Supreme Court, elaborating on Twombly, stated, “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,
A motion to dismiss for failure to state a claim upon which relief can be granted can be based not only on a plaintiffs claims but on matters that support an affirmative defense, such as limitations. Even if some allegations support a claim, if other allegations negate the claim on its face, then the pleading does not survive the 12(b)(6) review.
A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations,, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations • any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on -whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.
Jones v. Bock,
In a Federal Rule of Civil Procedure 12(b)(6) context, the court construes the facts alleged in the complaint as true. The court may also consider: (a) documents attached to the complaint or identi
C. The Claims
1. Violation of the Privacy Act
The Privacy Act, 5 .U.SiC. § 552a, “ ‘safeguards the public from unwarranted collection, maintenance, use and dissemination of personal informatiоn contained in agency records ... by allowing an individual to participate in’ ensuring that his records are accurate arid properly uséd.’” Jacobs v. Nat’l Drag Intelligence Center,
Rittgers’s Privacy Act claim falls under the fourth category in that it complains of the failure to maintain records in - confidence, resulting in adverse employment decisions and reputational and consequent financial harm. Additionally, while listed separately from the Privacy Act in his complaint, Rittgers’s invasion of privacy-false light allegations may be construed as a claim under the Privacy Act. Fares v. United States Immigration & Naturalization Service,
a. The Privacy Act’s Limitations Provision is Not Jurisdictional
There is a large body of case law, including at least’one Fifth Circuit opinion holding that the Privacy Act’s limitations provision is jurisdictional. Smith v. United States,
However, the Supreme Court initiated а change in analysis of such issues in Irwin v. Department of Veterans Affairs,
Thus the Supreme Court sought- to establish a new general rule rather thаn address cases on an “ad hoc” basis. Id., p. 95,
While the Fifth Circuit’s per curiam opinion in Smith (holding - that the limitations issue is jurisdictional) was decided after Irwin, this Court notes that it was an unpublished opinion, and also notes that the Fifth Circuit’s post-Irwin holding that the FTCA limitations provision was jurisdictional has been abrogated by the Supreme Court. United States v. Kwai Fun Wong, — U.S. —,
b. Limitations Bars Rittgers’s Privacy Act Claims
Rittgers was required to bring his Privacy Act claim within two years of the accrual of the claim or, if a misrepresentation materially obscured the claim, within two years after discovery of the misrepresentation:
An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without -regard to the amount in controversy, within-twо years from the date on which the cause of action arises, except that where an agencyhas materially and willfully misrepresented any information required under this’ section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.
5 U.S.C. § 552a(g)(5). Reading his pleading liberally, Rittgers appears to complain both that his personal informаtion was wrongly disseminated and that, through their forms, the.United States of America Criminal Investigation Division. (USACID) Special Agents failed to include in the “purposes” section of the consent form a warning that his personal information would be disseminated to CCAD as his employer, thus making a “misrepresentation material, to the establishment of liability of the agency.”- So in-evaluating the limitations argument, the Court considers both the time of the offending actions and the time Rittgers discovered them.
This action was filed on February 20,2015. D.E. 1. Therefore, Rittgers must be’ able to show that his сlaim arose, or that he discovered his claim, on or after February 20, 2013. Rittgers’s pleading contains a timeline of events relevant to the limitations determination, summarized as follows:
• September-15, 2009:. USACID Special Agent Mary E. Russell interviewed Rittgers; thereby improperly obtaining his personal information and failing to inform him of the principal purpose for which the information was requested. D.E. 1, pp. 3-t4„
• October 22, 2009: USACID Special Agent Matthew P. Titus conducted a polygraph test • on Rittgers without proper authority for obtaining his personal information and without properly informing Rittgers of the purpose for which the information would be used. Id., p. 7.
• May 2010: CCAD notified Rittgers that his access to, information technolo- . gy network was suspended.. Id., p. 4.
• August 2010: Rittgers’s supervisor placed him on administrative leave based , on the suspension of network access. Id.
• November 19, 2010: His supervisor gave Rittgers notice of a Proposed Indefinite Suspension because there was reason to believe the child pornography complaint involving the use of the Government’s'computers. Id.
• December 2, 2010: Rittgers was given the written decision that he was indefinitely suspended effective December 15,2010.' Id., pp. 4-5.
• April 19, 2012: The Administrative Judge for the Merit Systems Protection Board (MSPB) issued an initial decision discussing the use of the child pornography accusation as a basis for Rittgers’s Indefinite Suspension. Id., p. 5.
• May 15, 20Í2:.. Rittgers was arrested on a charge of possession of child por- , nography. Id., p, 6.
• August 15, 2012: Rittgers received and reviewed the entire USACID Report of Investigation on the child pornography accusation. At that time, Rittgers learned that USACID had policies of nondisclosure’ that the Special Agents had allegedly violated when sharing their investigative information with CCAD representatives. Id., pp. 6-7; D.E. 14, p. 9.
Rittgers’s allegations establish that the acts of dissemination of the information of which he complains took place prior to February 20, 2013.- And even if the Court were to ignore the notice of that dissemi-■ nation that should have been apparent to Rittgers from the administrative actions taken in connection with his employment, Rittgers admits that he knew of all of the facts relevant to making his claim by August 15, 2012. Yet Rittgers waited more than two years and six months to file his complaint — six months tоo long.
Rittgers contends that the additional six months can be excused because he filed an administrative action under the FTCA and that administrative proceedings that ended his government employment were not completed until December 26, 2013. D.E. 14, p. 9. Rittgers’s response fails to supply any specificity regarding those administrative proceedings and is unsupported by any authority that the limitations period for Privacy Act complaints may be tolled in this manner.
As the Government points out, the Privacy Act does not contain a provision requiring the exhaustion of any administrative remedies before suit for damages may be filed. 5 U.S.C. § 552a(g)(4), (5). A number of cases have pointed out that it is only when a claimant seeks to correct or amend a record, and not when the claimant sues for damages, that there is an administrative exhaustion requirement. See, e.g., Quinn v. Stone,
2. Tort Claims Under the FTCA
Rittgers brings five state law claims against the Government under the FTCA: invasion of privacy-false light, stigma-plus, defamation-plus, abuse of process, and intentional infliction of emotional distress. The FTCA provides the exclusive remedy for actions against the United States sounding in tort and seeking money damages. 28 U.S.C.' § 2679(b)(1); United States v. Smith,
a. Sovereign Immunity: FTCA’s Exception for Defamation Claims
There are thirteen specified exceptions to FTCA § 1346(b), which preclude government liability for certain intentional torts. See 28 U.S.C. § 2680(h). If a claim falls within the scope of one of these exceptions, the district court lacks subject matter jurisdiction. See Truman v. United States,
It is well-established that the FTCA is a limited waiver of sovereign immunity. E.g., United States v. Orleans,
The question béfore the Court is whether Rittgers’s false light, stigma-plus, defamation-plus, and intentional infliction of emotional distress claims may be said to “arise out of’ libel or slander theories such that they are excepted from the FTCA waiver of sovereign immunity.
To determine whether a claim is one “arising out of’ any of these enumerated torts, we focus on the conduct upon which the. plaintiffs claim is based. If the conduct upоn which a claim is based constitutes a claim, “arising out of’ any one of the torts listed in section 2680(h), then the federal courts have no jurisdiction to hear that claim. Even if a plaintiff styles a claim so that it is not one that is enumerated in section 2680(h), the plaintiffs claim is still barred “when .the underlying governmental conduct ‘essential’ to the . plaintiffs claim, can fairly be read to ‘arise out of conduct that would establish an excepted cause of action.” , Thus, the FTCA bars a claim based on conduct that constitutes a tort listed in section 2680(h), even though that conduct may also.constitute another tort not listed in section 2680(h).
Truman v. United States,
A plaintiff cannot evade the jurisdictional limitations of § 2680(h) by artful pleading that assigns some other label to what is, in essence, a libel or slander action. E.g., Garcia v. United States,
Defamation-plus and stigma-plus are theories complaining of injuries to .Rittgers’s reputation that have commercial consequences. See generally, Phillips v. Vandygriff,
The Government has not waived its sovereign immunity as to these four theories because, in the context of this case, they each arise out of libel or slender and thus fall within the § 2680(h) exception. This Court does not have jurisdiction to hear these claims and they are DISMISSED under Rule' 12(b)(1). However, the Government has not challenged Rittgers’s claims for abuse of process under any exception to the FTCA.
b. FECA Preemption
The Government does not address the abuse of process claim except to the extent that it is included in its global assertion that all of Rittgers’s tort claims are preempted by FECA. FECA provides compensation for personal injuries that a federal employee “sustained while in the performance of his duty.” 5 U.S.C. § 8102(a). “FECA functions as a federal workers’ compensation act and provides a substitute for, not supplement to, recovery.” Bennett v. Barnett,
FECA provides an exclusive administrative remedy for a federal employee’s personal injuries “sustained while in thе performance of his duty.” 5 U.S.C. § 8102(a); White v. United States,
The Fifth Circuit has described FECA’s preemptive nature as follows:
When an employee’s emotional disability results from his emotional reaction to his regularly or specially assigned work duties, or to a requirement imposed by the employment, the disability comes within the coverage of the FECA. Am employee’s emotional reaction to administrative actions or personnel matters taken by the employing establishment is not covered under the Act, as such matters pertain to procedures and requirements of the employer and do not bear a direct, .relation to the work required of the employee. However, if the factual circumstances surrounding the administrative or personnel action established error or abuse by the employing establishment, the disability is compensable under the FECA.
Schwartz v. Occupational Safety & Health Review Comm’n,
The question is whether Rittgers’s claim is within FECA’s scope, providing a remedy for “personal injury sustained while in the performance of his duty.” 5 U.S.C.A. § 8102. Rittgers suggests that his injury was nоt sustained “during the performance of his duties” as an Aircraft Mechanical Parts Repairer because the Government’s alleged wrongdoing took place while he was suspended and off premises, citing Bailey v. United States,
Bailey involved physical injuries to a civilian employee who was injured in a traffic accident on Government premises when driving home from work. The Bailey court rejected consideration of the “fortuitous” happenstance that the motor vehicle collision took place on Government premises and held that the Seсretary of Labor would not provide FECA benefits in such a case because the claimant was not injured while working. The 'Fifth Circuit has since substantially receded from the Bailey holding, writing that the premises upon which the injury takes place is one factor of many in the totality of the circumstances to be considered. White v. United States,
As demonstrated in White, the question is.whether there is a “sufficient nexus between the injury and the employment to sustain FECA coverage of the employee’s injuries.” White,
• The Government computer on which child pornography was allegedly found was used by Rittgers, incident to his employment;
• The discovery of the child pornography and the identification of it as being on part of the system allocated to Rittgers took place pursuant to Government maintenance policies for systems used by employees;
• The Government’s suspension of Rittgers was pursuant to its interpretation of pоlicies applicable, to its employees;
• The assignment of Government investigators was pursuant to Government interpretation of policies applicable to its employees;
• The investigation was, in part, to determine whether Rittgers’s employment should be terminated;
• The persons who received information regarding the charges against Rittgers, triggering his alleged mental suffering and injury from abuse of process, were co-workers or supervisors, involved because of their relationshipto Rittgers’s work and continued employment.
The alleged injury is closely relatеd to Rittgers’s employment. It is not necessary that the injury relate to his actual mechanical repairman function. It is enough that it relate to his computer access incident to his status of employment as a repairman. The fact that the- investigation and allegedly improper dissemination of information took place while Rittgers was off premises is of no moment. His injury is not related to his location.
While the Government admits that there is some question whether the type of injury Rittgers claims — emotional distress — is compensable under FECA, Rittgers has failed to sustain his burden of proof to demonstrate that FECA does not cover this claim. Therefore, this Court may not maintain jurisdiction. See Bennett v. Barnett,
For these reasons, the Court finds that Rittgers’s FTCA claim of abuse of process is preempted by FECA and this Court does not have jurisdiction.
c. The FTCA’s Limitations Period
The Supreme Court has very recently heíd that the FTCA’s statute of limitations is not jurisdictional. United States v. Kwai Fun Wong, — U.S.-,
CONCLUSION
For the reasons set out above, the Court GRANTS the Government’s- motion to dismiss and notes that the Army did not join the motion an'd no stipulation has been filed by which the' Court may treat them as identical for the purposes of these claims. Thus no ruling is made as to the Army at this time.
Under Federal Rule of Civil Procedure 12(b)(1), the Court DISMISSES the claims for .damages asserted against the Government under the Federal Tort Claims Act for invasion of privacy-false light, stigma-plus, defamation-plus, and intentional infliction of emotional distress as excepted from: the Government’s waiver of sovereign immunity. Also under Rule 12(b)(1), the Court DISMISSES the claim for damages for abuse of'process against the Government as preempted by FECA. Under Rule 12(b)(6), the Court DISMISSES the claims asserted against the Government for damages pursuant to the Privacy Act.
ORDERED.
. See also, Harrell v. Fleming,
. The parties did not brief this issue or examine the interplay of jurisdiction and preemption as it affects the burden of proof. The Court did not find any definitive cases in its own research. However, if the test was whether it was “arguable” that the federal agency had jurisdiction, preemption would be an affirmative defense, subject to waiver and with the burden of proof on the defendant. In that event, it would not be jurisdictional. See generally, Int’l Longshoremen’s Ass'n, AFL-CIO v. Davis,