Opinion
Case No. 1:04-CV-00098 PGC.
June 7, 2005
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
Defendants Dan G. Blair, Randall W. Richards, and Oscar H. Coleman have moved to dismiss plaintiff Helen Coleman's case in its entirety. The events surrounding Ms. Coleman's complaint involve divorce proceedings that happened between 1990-1994 in the Second District Court of Ogden, Utah. Ms. Coleman contends that the divorce decree issued by the state court contains errors that were provoked by the fraudulent actions of Mr. Coleman and Mr. Richards. She also has alleged that federal employee Mr. Blair is an accomplice to Mr. Coleman's and Mr. Richards's fraudulent scheme because his office is complying with the decree. For these reasons, Ms. Coleman filed this complaint.
All three defendants have brought motions to dismiss Ms. Coleman's complaint (Mr. Coleman and Mr. Richards brought their motions jointly). The three parties, although based on different premises, argue that the complaint must be dismissed because this court does not have proper subject matter jurisdiction over it. The court agrees, and, for the foregoing reasons, grants their motions.
BACKGROUND
According to Ms. Coleman's complaint, on December 17, 1990, the Second District Court of Ogden, Utah awarded to her a "Judgment and Decree of Separate Maintenance" (the "1990 Decree") under which she was to receive 50% of Mr. Coleman's Federal Civil Service Retirement Annuity (the "Annuity"). As alleged by Ms. Coleman, the 1990 Decree required that any future divorce decree include that same annuity award. On July 7, 1994, Ms. Coleman and Mr. Coleman were granted a divorce; a divorce decree was awarded (the "Divorce Decree"). The Divorce Decree provided that Ms. Coleman was to receive 40%, and not the 50% listed in the 1990 Decree, of the Annuity.
On September 2, 2004, Mrs. Coleman filed a "Complaint for Compelling Performance by OPM's Court Ordered Division" against Mr. Blair (the Acting Director of the United States Office of Personal Management (OPM)), Mr. Coleman (her ex-husband), Mr. Richards (Mr. Coleman's divorce attorney), and Pam Pontius (Mr. Richards's secretary). Ms. Coleman has since withdrawn her complaint as against Ms. Pontius. In her complaint, Ms. Coleman alleges that Mr. Coleman and Mr. Richards prepared a fraudulent Decree of Divorce, misrepresented to the court that Ms. Coleman filed no timely objection after notice, and subsequently submitted the decree to the court for its signature. Ms. Coleman further accuses the OPM (via Mr. Blair) of having accepted and used written fraudulent, false, and inconsistent material statements contained in the Divorce Decree and acted thereon, thereby depriving her of 10% of the Annuity. By doing so, Ms. Coleman claims that the OPM became an accomplice to fraud and embezzlement.
DISCUSSION
It is axiomatic that the "[f]ederal courts are courts of limited jurisdiction . . . and possess only that power authorized by Constitution and statute." Arguing on different grounds, the defendants contend that there is no subject matter jurisdiction, and therefore, Ms. Coleman's claims must fail. The court will first examine the arguments made by federal defendant Mr. Blair and then the arguments by non-federal defendants Mr. Coleman and Mr. Richards.
Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994).
Claims Against Federal Defendant Dan Blair
Mr. Blair, a federal employee, contends that the doctrine of sovereign immunity requires that the court dismiss him as a defendant in the case. The doctrine provides that the United States cannot be sued without its consent. Without consent, "sovereign immunity shields the Federal Government and its agencies from suit." Furthermore, if the United States has not explicitly waived its sovereign immunity, or if the conditions under which the United States has agreed to waive that immunity have not been met, federal subject matter jurisdiction does not exist.
See e.g., United States v. Mitchell, 463 U.S. 206, 212 (1983).
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
See United States v. Sherwood, 312 U.S. 584, 586 (1941).
In her complaint, Ms. Coleman's alleges that her claims arise under the following federal statutes: 28 U.S.C § 1331, 5 U.S.C. § 8345(j)(1), 28 U.S.C. § 1361, 18 U.S.C. §§ 2, 1621, 1001, 1341, 371, 641. While Ms. Coleman has listed numerous federal statutes, she has failed to identify any waiver of sovereign immunity that would allow her claims to proceed against federal defendant Mr. Blair. For example, while 5 U.S.C. § 8345(j)(1) governs the payment of benefits from a Civil Service Retirement annuity, it does not allow a plaintiff to immediately file a federal lawsuit to enforce payment. As first required by statute, a plaintiff must exhaust her administrative remedies by filing a claim with the OPM. Should her petition be denied, she then would file an appeal with the Merit Systems Protection Board (MSPB). Only then, would a plaintiff be allowed to file a federal lawsuit. That lawsuit, however, must be filed with the United States Court of Appeals for the Federal Circuit. Therefore, even if Ms. Coleman had filed complaints with the OPM and MSPB — something she has not done — this court would nevertheless lack subject matter jurisdiction.
See 5 U.S.C. § 8347(b).
As for Ms. Coleman's other claims — brought under Titles 18 and 28 — they too must be dismissed for lack of subject matter jurisdiction. There is nothing in Title 18 that creates a private right of action or provides civil remedies for a private person allegedly affected by the illegal conduct. Without such allowance, Ms. Coleman's Title 18 causes of action must be dismissed. Regarding 28 U.S.C. §§ 1331 and 1361, there is nothing in those statutes that waive the government's sovereign immunity. Without any other statute waiving Mr. Blair's immunity as a federal defendant, Ms. Coleman's Title 28 claims must also be dismissed.
See e.g., Cental Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994); Kaw Nation v. Springer, 341 F.3d 1186, 1190 (10th Cir. 2003).
See Neighbors for Rational Develop., Inc. v. United States, 379 F.3d 956, 960-61 (10th Cir. 2004) (referring to 28 U.S.C. § 1331) (quoting Eagle-Picher Indus., Inc. v. United States, 901 F.2d 1530, 1532 (10th Cir. 1990)); See Lonsdale v. United States, 919 F.2d 1440, 1443-44 (10th Cir. 1990) (referring to 28 U.S.C. § 1361).
And lastly, the federal government also argues that since a pro se litigant's complaint must be liberally construed, any tort claim that may be implied in the complaint must also be dismissed because of Ms. Coleman's failure to exhaust her administrative remedies. All actions seeking to recover in tort against the United States, its agencies, or employees (acting within the scope of employment), are governed by the Federal Tort Claims Act (FTCA). While the statute provides for a waiver of sovereign immunity, it is a limited waiver. Exhaustion of administrative remedies is one of the conditions that must be satisfied before immunity can be waived. As a district court in this Circuit has held, "An action shall not be instituted upon a claim against the United States for money damages for injury or death caused by the negligent of wrongful act . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency. . . ." Here, Ms. Coleman has failed to allege that she filed an administrative tort claim with the OPM as required by § 2675(a). This failure to exhaust her administrative remedies deprives this court of subject matter jurisdiction over any tort claim asserted by Ms. Coleman. Therefore, any tort claim alleged by Ms. Coleman is dismissed. Claims Against Non-Federal Defendants Oscar H. Coleman and Randall W. Richards
See French v. Adams County Detention Center, 379 F.3d 1158, 1159 (10th Cir. 2004).
28 U.S.C. §§ 1346(b), 2671.
Perry v. United States, 101 F. Supp.2d 1354, 1355 (D. Kan. 2000).
Ms. Coleman's causes of action asserted against non-federal employees Mr. Coleman and Mr. Richards involve events surrounding divorce proceedings between Mr. Coleman and Ms. Coleman. For subject matter jurisdiction to exist, asserted claims must involve a federal question or diversity of citizenship between parties. Neither exists here. Furthermore, because Ms. Coleman's complaint seeks to modify the Divorce Decree or enforce one of its terms, such matters are exclusively reserved for state courts. As noted by defendants Mr. Coleman and Mr. Richards, the Supreme Court, in the case of Ankenbrandt v. Richards, held that, generally, domestic relations cases are excluded from the jurisdiction of the lower federal courts. Ms. Coleman has not demonstrated why this general rule should not be followed, and therefore, her claims against Mr. Coleman and Mr. Richards must be dismissed for lack of subject matter jurisdiction.
504 U.S. 689 (1992).
CONCLUSION
Without proper subject matter jurisdiction, the court must GRANT defendants' motions to dismiss [14, 21] and does so without prejudice. The court further grants Ms. Coleman's motion to dismiss Pam Pontius from the case[25]. Having done so, the court also finds moot the other pending motions filed by Ms. Coleman: motions (a) for appointment of counsel [4]; (b) for service of process [5]; © to add/join an additional party [7]; (d) to strike various memoranda and motions submitted by defendants [15, 17, 19]; (e) to award plaintiff mandamus to compel [27]; (f) to quash request for hearing [29]; (g) for judgment on the pleadings [39]; and (h) to enforce judgment [41]. The clerk of the court is directed to close the case.