Doe v. U.S.

83 F.Supp.2d 833

John DOE, Jane Doe, and Mary Doe v. UNITED STATES of America.

No. Civ.A. G-99-689.

United States District Court, S.D. Texas, Galveston Division.

February 10, 2000.

Joel M. Androphy, Berg & Androphy, Houston, TX, for plaintiffs.

Jeffrey L. Karlin, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

KENT, District Judge.

In March of 1997, the U.S. Attorney's Office for the Southern District of Texas posted a "News Release" on its website which falsely asserted that Plaintiffs had been indicted by a federal grand jury on charges of mail fraud and money laundering. Plaintiffs filed the present action on November 8, 1999, seeking money damages from the United States under two causes of action: invasion of privacy and intentional infliction of emotional distress. Now before the Court is Defendant's January 11, 2000 Motion to Dismiss. Pursuant to Fed.R.Civ.P. 12(b)(1), the United States contends that this Court lacks subject matter jurisdiction over this action because the federal government has not waived sovereign immunity for these intentional torts. For reasons explained more fully below, Defendant's Motion is GRANTED, and all of Plaintiffs' claims are DISMISSED WITH PREJUDICE.

I. Factual & Procedural Summary

Plaintiffs are associated with various temporary labor companies, and were the targets of a four year mail fraud investigation by the Federal Bureau of Investigation. The FBI apparently suspected Plaintiffs of acting to defraud various workers' compensation insurance providers as well as their own customers.

On March 21, 1997 the U.S. Attorney's Office for the Southern District of Texas posted a "News Release" on its website which indicated that some of the Plaintiffs had been charged with ten counts of mail fraud and with aiding and abetting each other in committing mail fraud. In addition, the News Release indicated that one of the Plaintiffs had been indicted on one count of money laundering. The New Release identified Plaintiffs by name, and referred to them as "Houston area residents."

In fact, none of the Plaintiffs were ever indicted as a result of the FBI's investigation. The United States concedes that the News Release falsely asserted that Plaintiffs had been indicted for violations of federal law which carried substantial criminal penalties.

On March 22, 1999 Plaintiffs, pursuant to 28 U.S.C. § 2401(b) and § 2675(a), presented an administrative claim to the United States Department of Justice. The United States took no action on the administrative claim within the six month time period specified in § 2675(a). Consequently, on November 8, 1999 Plaintiffs initiated the present suit seeking money damages from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

In their original Complaint, Plaintiffs asserted two causes of action, both of which focused solely on the publication of inaccurate information on the government's web page. The first cause of action is styled "Constitutional violation — invasion of privacy." Plaintiffs complain that the New Release "inaccurately publicized a litany of private facts," and that "being falsely labeled a criminal defendant is a matter that concerns the Plaintiffs' private lives." Plaintiffs go on to complain that the "publication of Plaintiffs' private facts is highly offensive to a reasonable person of ordinary sensibilities because of the stigma and embarrassment created by false reports of being indicted."

The second cause of action is intentional infliction of emotional distress. Plaintiffs complain that Defendant's conduct was "extreme and outrageous" and "beyond all bounds of decency." The government's conduct consisted of intentionally posting "on an international web page, an announcement that plaintiffs had been indicted by a federal grand jury, and as a consequence faced extensive terms of incarceration." Moreover, Plaintiffs assert that this conduct was "the legal and proximate cause of the emotional distress that the plaintiffs suffered, which was severe and is still continuing."

II. The Analytical Standards

Defendant has filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1), contending that this Court lacks 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. See Home Builders Ass'n of Miss., Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). The burden of proof on a motion to dismiss under Rule 12(b)(1) is on the party asserting jurisdiction. See Strain v. Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir.1984); McDaniel v. United States, 899 F.Supp. 305, 307 (E.D.Tex. 1995).

A motion to dismiss pursuant to Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). See Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010; Benton v. United States, 960 F.2d 19, 20 (5th Cir. 1992). When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993).

Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010 (standard applied in context of Rule 12(b)(1)); Home Capital Collateral Inc. v. FDIC, 96 F.3d 760, 764 (5th Cir.1996) (applying standard in context of Rule 12(b)(6)); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994) (Rule 12(b)(6)). The United States Court of Appeals for the Fifth Circuit has noted that dismissal for failure to state a claim is disfavored and will be appropriate only in rare circumstances. Mahone v. Addicks Util. Dist. of Harris County, 836 F.2d 921, 926 (5th Cir.1988).

It is well settled that the United States, as sovereign, is immune from suit unless it consents to be sued. See FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); McNeily v. United States, 6 F.3d 343, 347 (5th Cir.1993). Plaintiffs are suing the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a) (the "FTCA"). The FTCA is a limited waiver of sovereign immunity, and the exclusive remedy for tort claims brought against the United States for money damages. See 28 U.S.C. §§ 1346(b), 2679(a); United States v. Smith, 499 U.S. 160, 161-62, 111 S.Ct. 1180, 1182, 113 L.Ed.2d 134 (1991). Section 1346(b) states, in pertinent part:

[The] district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for ... personal injury ... 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

When Congress establishes terms and conditions for filing suit against the United States under a waiver of sovereign immunity, "those conditions must be strictly observed, and exceptions thereto are not to be lightly implied." Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983).

There are thirteen specified exceptions to § 1346(b) which preclude government liability for certain intentional torts. See 28 U.S.C. § 2680. Because these exceptions are jurisdictional in nature, if a claim falls within the scope of one of these exceptions, the district court lacks subject matter jurisdiction and dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is appropriate. See Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). Moreover, "the exceptions that do appear in the FTCA must be strictly construed in favor of the government." Id. (citing Atorie Air, Inc. v. Federal Aviation Admin., 942 F.2d 954, 958 (5th Cir.1991)).

Of particular relevance to the present case are the provisions of 28 U.S.C. § 2680(h), which provides an exception to the waiver of sovereign immunity for "any claim arising out of" libel or slander. By its plain language, § 2680(h) precludes a party from suing the United States not just for libel and slander, but also for any claim "arising out of" a set of facts which would support a libel or slander action. Consequently, a plaintiff cannot evade the jurisdictional limitations of § 2680(h) by using generic labels to artfully plead what is, in essence, a libel or slander action. See Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985) (rejecting plaintiff's attempt to evade the jurisdiction exception for assault and battery by labeling his claim as one for "negligence."); Bosco v. U.S. Army Corps of Engineers, 611 F.Supp. 449, 453 (N.D.Tex.1985) (dismissing plaintiff's claims because "[t]he Court cannot permit the obvious attempt by Plaintiffs to circumvent the bar of § 2680(h) by merely relabeling the theory upon which they seek recovery.")

III. Analysis

The United States contends, and the Court agrees, that § 2680(h), the libel/slander exception to the waiver of sovereign immunity, precludes the existence of subject matter jurisdiction and mandates the dismissal of Plaintiffs' claims. The Court begins by noting that all of Plaintiffs' alleged injuries flow excl...