Rittgers v. United States

131 F.Supp.3d 644

Colbert RITTGERS, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 2:15–CV–94.

United States District Court, S.D. Texas, Corpus Christi Division.

Signed Sept. 15, 2015.

Charles C. Smith, Attorney at Law, Corpus Christi, TX, for Plaintiff.

Lance G. Duke, Office of the U.S. Attorney, Corpus Christi, TX, for Defendants.

ORDER

NELVA GONZALES RAMOS, District Judge.

Before 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 employment 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 Government¹ filed its motion to dismiss (D.E. 10), arguing that this Court does not have subject matter jurisdiction or that Rittgers has failed to state a claim upon which relief may be granted because:

• 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, 558 U.S. 67, 81–82, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). Defects in claims-processing, while they may be violations of mandatory prerequisites for relief, do not necessarily implicate a court's "adjudicatory domain"—its jurisdiction. Id. Because the jurisdictional classification brings with it a difference in the order of decision, the standard of review, and sometimes the prejudicial effect of any decision, the Court first determines which of the Government's claims are jurisdictional.

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 claim 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, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom., Cloud v. United States, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject matter jurisdiction if the court lacks 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).

The burden of proof is on the party asserting jurisdiction—Rittgers, here. Ramming, 281 F.3d at 161. In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact that may be in dispute. "Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id.(citing Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996) ).

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, 550 U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In a Rule 12(b)(6) context, the burden of proof is on the party challenging the claim—the Government, here.

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 pleader 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, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

Factual allegations are required, sufficient to raise the entitlement to relief above the level of mere speculation. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Those factual allegations must then be taken as true, even if doubtful. Id. In other words, the pleader must make allegations that take the claim from conclusory to factual and beyond possible to plausible. Id., 550 U.S. at 557, 127 S.Ct. 1955. The Twombly court stated, "[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." 550 U.S. at 570, 127 S.Ct. 1955.

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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. In dismissing the claim in Iqbal, the Court stated, "It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth." 556 U.S. at 681, 129 S.Ct. 1937.

A motion to dismiss for failure to state a claim upon which relief can be granted can be based not only on a plaintiff's 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, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

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 identified as central to the claims made therein; (b) documents attached to the motion to dismiss that are referenced in the complaint; and (c) documents that are subject to judicial notice as public record. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.2011) ; Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir.2000).

C. The Claims

1. Violation of the Privacy Act

The Privacy Act, 5 U.S.C. § 552a, " ‘safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records ... by allowing an individual to participate in ensuring that his records are accurate and properly used.’ " Jacobs v. Nat'l Drug...