Silva v. United States

BARBARA SILVA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CV 17-1224 MV/JHR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

November 12, 2020

SUPPLEMENTAL PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

This matter comes before the Court pursuant to the Order Sustaining Plaintiff's Objection and Rejecting Magistrate Judge's Proposed Findings and Recommended Disposition, [Doc. 44], filed July 20, 2020, and the Order of Reference entered by presiding District Judge Martha Vazquez on August 28, 2019, which directed Magistrate Judge Jerry Ritter to "perform any legal analysis required to recommend to the Court an ultimate disposition of [this] case." [Doc. 39]. Judge Vazquez rejected my recommendation that this case be dismissed without prejudice for lack of subject matter jurisdiction under the Federal Tort Claims Act ("FTCA") (untimeliness) and remanded the case for further consideration of the grounds for dismissal stated in the United States' Motion to Dismiss. [See Docs. 31, 34, 42 and 43]; see generally 28 U.S.C. § 2401. Having carefully reviewed the briefing a second time and after consulting the applicable law, I conclude that the Court still lacks subject matter jurisdiction to consider Ms. Silva's claims under the FTCA, this time because the Act's exceptions apply, and therefore I again recommend that the government's motion be granted and that this case be dismissed without prejudice.¹

I. INTRODUCTION

The government mistakenly issued the same social security number to Ms. Silva that it had already issued to another person. [Doc. 23, p. 1]. There is no question that Ms. Silva was harmed by the resulting confusion of identities over many years, and the government all but admitted fault for at least some of the harm its negligence caused in a letter it sent to her in November 2015. [Doc. 31-1, p. 7]. Unfortunately, the government's admission of fault does not mean that Ms. Silva can state a claim to recover monetary damages for its failures.

As a general matter, the United States government enjoys sovereign immunity, which has only been waived in narrow circumstances by the Federal Tort Claims Act ("FTCA"). Even where, as here, the government has clearly erred and admitted fault, recovery for certain torts, and by extension, certain categories of damages, is prohibited by the language of the Act and case law construing it. The wisdom of these prohibitions is for Congress to determine, and several federal appellate courts, including the Tenth Circuit, have reasoned that claims analogous to Ms. Silva's cannot be brought even where a non-discretionary duty is identified. Finally, to the extent that Ms. Silva's non-contractual claims are not barred by the FTCA's exceptions, she does not state a valid claim for infliction of emotional distress under New Mexico law as required to recover under the FTCA. Therefore, I again recommend that this case be dismissed without prejudice.

II. BACKGROUND

Ms. Silva was issued a social security number that belonged to someone else when she was 10 years old, in June of 1976. [Doc. 23, p. 1]. In late 1992, while she was enlisted in the Navy, Ms. Silva became aware that a garnishment action was entered against her. [Id.]. In January 1993 she went to a Social Security Administration office and explained that someone else was using her social security number ("SSN"). [Id., p. 2]. At that time, Ms. Silva told the Administration that shehad to keep clearing her credit report and that she believed identity theft was involved. [Id.]. While the Administration issued Ms. Silva a new social security number and transferred wages paid from the old number to the new number for retirement purposes, it did not correct Ms. Silva's impression that her identity had been stolen and refused to provide sufficient documentation to allow Ms. Silva to clear her name and continue serving in the Navy, resulting in her decision to accept an honorable discharge after 15 years of service.

Plagued by creditors for years, Ms. Silva reached out to politicians to compel the Administration to take meaningful action. She wrote to Senator Martin Heinrich in September 2015, explaining that the Administration issued the same social security number to her and another person and that she had tried and failed to change her military records so she could re-enlist. [Doc. 31-1, p. 12]. Upon the Senator's inquiry, Ms. Silva received a letter from the office of the Regional Commissioner of Social Security in November 2015, admitting "fault in assigning you the Social Security number ... previously assigned to another individual...." [Doc, 31-1, p. 7 (ellipsis supplied)]. The Administration stated its sincere regret for "the error and the problems and inconvenience [Ms. Silva] experienced." [Id.].

After notifying the Administration that she intended to sue and receiving an administrative denial, Ms. Silva filed her initial Complaint in this Court on December 13, 2017. [Doc. 1]. Her operative Complaint states three claims. [See Docs. 23, 26]. First, Ms. Silva alleges that the Social Security Administration employee who issued her (the already-issued) social security number had a duty to ensure its accuracy. [Doc. 23, p. 3] Second, she claims that a second Administration employee had a duty to verify the first employee's actions to ensure accuracy. [Id.]. Third, Ms. Silva states that the Administration had a duty to notice the discrepancies in her retirement earnings as wages were earned and correct its mistake(s). [Id.; see also Doc. 23, p. 4]. As relief, she asksthat the Court hold the government accountable for its "deliberate indifference and negligent errors" affecting her privacy rights through an award of damages pursuant to the Federal Tort Claims Act and an order requiring the Administration to contact all private credit reporting and governmental agencies to replace the incorrect number with the correct one. [Doc. 23, p. 8].

The government filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on July 25, 2019, claiming that Ms. Silva's claims are barred because the United States did not waive sovereign immunity under the FTCA. [Doc. 31, p. 5]. First, the government argued that Ms. Silva's claims arise under the Social Security Act, not the Tort Claims Act, leaving the Court without subject matter jurisdiction. [Id., pp. 5-7]. Second, the government argued that Ms. Silva's claims sound in defamation, which is excepted from the Tort Claims Act's waiver of immunity. [Id., pp. 7-8]. Third, it argued that Ms. Silva's claims were untimely. [Id., pp. 8-10]. Finally, the government argued that Ms. Silva's claims are not cognizable under New Mexico law, precluding its liability under the Federal Tort Claims Act's waiver. [Doc. 31, pp. 10-15]. Ms. Silva responded to the motion on August 5, 2019 and submitted additional evidence on December 2, 2019. [Docs. 34, 40].

Finding the government's timeliness argument persuasive, I recommended that Ms. Silva's claims be dismissed without prejudice for lack of federal subject matter jurisdiction on May 16, 2020. [Doc. 42]. Ms. Silva objected, and presiding District Judge Vazquez sustained her objections on July 20, 2020. [Docs. 43, 44]. Judge Vazquez accordingly rejected my proposed disposition of this case and remanded the matter to me for further analysis of the issues raised by the government's motion to dismiss. [Doc. 44, p. 1].

III. LEGAL STANDARDS

The government's Motion asserts that this case must be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). [Doc. 31, p. 4]. Federal courts are courts of limited jurisdiction, and they must presume that they lack jurisdiction unless the party invoking federal jurisdiction proves otherwise. See Kucera v. Central Intelligence Agency, 754 F. App'x 735, 738 (10th Cir. 2018) (unpublished). While filings of pro se litigants are afforded liberal construction, all pleadings are held to this standard. Id. "Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citation omitted). "On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion: the court must consider the complaint's allegations to be true." De Baca v. United States, 403 F. Supp. 3d 1098, 1113 (D.N.M. 2019) (Browning, J.) (citation omitted). The Court finds that the government's jurisdictional arguments invoking sovereign immunity do not require analysis of the facts underlying Ms. Silva's claims; therefore, resolution of this case turns on the allegations stated in the complaint. Garling v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1293 n.3 (10th Cir. 2017) ("[W]hen a defendant asserts that [a] FTCA complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.") (quoted authority omitted).

The government's motion also relies on Federal Rule of Civil Procedure 12(b)(6), which permits dismissal of a plaintiff's case for failure to state a claim only on review of the facts as alleged. [See generally Doc. 31]. That is, when resolving motions brought under Rule 12(b)(6), the Court accepts as true all well-pleaded factual allegations in the Complaint and views them inthe light most favorable to Ms. Silva, drawing all reasonable inferences in her favor. See Garling v, 849 F.3d at 1292-1293. In other words, the Court may only dismiss a case for failure to state a claim under Rule 12(b)(6) where a reasonable person could not plausibly conclude that the facts alleged could result in a finding of liability. See Ashcroft v. Iqbal, 556 U.S....