Opinion
Civ. No. 02-4378 (RHK/AJB).
July 29, 2004
Jennie M. Brown, Brown Law Office, Eden Prairie, Minnesota, for Plaintiff.
Friedrich A.P. Siekert, Assistant United States Attorney, Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff George Smith alleges that in October 1991 his co-workers at the United States Postal Service ("USPS") in Minneapolis, Minnesota, falsely accused him of sexual harassment and physically attacked him. Two years later, in October 1993, his initial lawsuit was dismissed for failing to exhaust administrative remedies. Smith then filed this action in November 2002 under the Federal Tort Claims Act ("FTCA"). The United States has filed a Motion to Dismiss or, Alternatively, Judgment on the Pleadings, principally arguing that this Court lacks subject matter jurisdiction over Smith's claims. For the reasons set forth below, the Court will grant the United States's Motion.
Having determined that oral argument will not materially assist the Court in resolving the United States's Motion, the Motion is submitted on the written record.
Factual and Procedural Background
The Court may consider matters outside the pleadings in a challenge to subject matter jurisdiction. See Osborn v. United States, 918 F.2d 724, 728 n. 4 (8th Cir. 1990).
Smith then asked to see a supervisor and began to walk to the employee entrance, during which time Sirois followed him and continued to verbally accost him. (Id. ¶ VI.) At that point, another USPS employee, Michael Tiemann, came through the employee entrance, stood between Sirois and Smith, grabbed Smith's wrist, and forced him into the employee area. (Id.) As this was happening Sirois stated, "get this guy away from me or I'll hit him in the mouth." (Id. (internal quotations omitted).) Tiemann then sent Sirois away and Tiemann and another USPS employee, J.M. Collins, proceeded to again "verbally accost" Smith. (Id. ¶ VII.)
As a result of this altercation, the USPS suspended Smith for fourteen days. (See Gergen Decl. ¶ 6, Ex. A.) Thereafter, Smith grieved his suspension pursuant to the collective bargaining agreement between the USPS and the American Postal Workers Union, of which Smith was a member. (See id. ¶ 7, Exs. B, C.) On September 10, 1992, an arbitrator sustained Smith's grievance and found that he had been suspended without cause. (See id. ¶ 7, Ex. B; Am. Compl. ¶ VIII.)
On December 9, 1991, prior to the outcome of his grievance arbitration, Smith commenced his first action in Hennepin County District Court against numerous individuals, including Sirois, Tiemann, and Collins. (Siekert Decl. Ex. 1.) Smith alleged claims of conspiracy (Count I), defamation (Count II), and intentional infliction of emotional distress (Count III). (Id.) Thereafter, the action was removed to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Id.)
On March 24, 1992, the court, pursuant to the Federal Employee Liability Reform and Tort Compensation Act ("FELRTCA"), 28 U.S.C. § 2679(d)(1), substituted the United States as the defendant in the action and dismissed Smith's claims against the individual defendants with prejudice. (Siekert Decl. Ex. 2.) Upon substitution of the United States, Smith's Complaint was deemed an action against the United States under the FTCA. See Smith v. United States, Civ. No. 3-91-804, Memorandum Opinion and Order at 3 (D. Minn. Oct. 12, 1993) (Kyle, J.) (citing 28 U.S.C. §§ 2679(d)(2) and (d)(4)); (Siekert Decl. Ex. 4).
Smith v. Sawczuk et al., Civ. No. 3-91-804, Order (D. Minn. March 24, 1992) (Magnuson, J.); (see Siekert Decl. Ex. 2).
On October 12, 1993, the undersigned dismissed Smith's Complaint without prejudice for lack of subject matter jurisdiction because Smith failed to satisfy the FTCA's administrative claim requirement, 28 U.S.C. § 2675(a). Id. at 5-6. The Court also determined that Smith was required to file his administrative claim prior to recommencing his FTCA action. Id. at 6 (citing 28 U.S.C. § 2679(d)(5)).
28 U.S.C. § 2675(a) provides in pertinent part, then as now:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death 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, 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 in writing and sent by certified or registered mail.
On December 10, 1993, following the dismissal of his first Complaint, Smith mailed his administrative claim to the Postmaster General's Office in Washington, D.C. (Brennan Decl. Ex. A.) On December 14, 1993, Smith's claim was stamped "RECEIVED" by the USPS. (Id. ¶ 7, Ex. B.) On May 25, 1994, the USPS denied his claim. (Katznelson Decl. ¶ 6, Ex. C.) On November 5, 1994, Smith's employment was terminated by the USPS. (Am. Compl. ¶ VIII.) On November 23, 1994, Smith faxed his request for reconsideration of his administrative claim to the USPS. (Brown Decl. Exs. 1, 2, 6.) Smith never received a response from the USPS; the USPS contends it never received his request. (Katznelson Decl. ¶ 8; Jones Decl. ¶ 6, Ex. A.)
Smith's lawsuit regarding his termination was dismissed with prejudice in May 1998. Smith v. Runyon, Civ. No. 4-95-708, Memorandum and Order (D. Minn. May 12, 1998) (Montgomery, J.); (see Siekert Decl. ¶ 5, Ex. 7).
On February 7, 2000, more than five years after faxing his reconsideration request and more than six years after his Complaint had been dismissed, Smith filed a motion to reopen his case. His motion was denied, but the undersigned stated that "[i]f [Smith] wishes to pursue the present claim, a new Complaint must be filed." Smith v. United States, Civ. No. 3-91-804, Order (D. Minn. Feb. 17, 2000) (Kyle, J); (Siekert Decl. Ex. 6).
On November 21, 2002, more than two years later, Smith filed the instant Complaint against the United States, which he amended on May 29, 2003. Based upon the October 1991 incident, Smith alleges one count of "Conspiracy":
COUNT ONE
CONSPIRACY
For his claim, Plaintiff alleges paragraphs VII of this complaint.
Letters submitted by defendant's employees named above reveal that before and after the October 18, 1991 incident that they engaged in conspiracy designed to deprive plaintiff of his employment and to entrap him in a sexual harassment situation, and having failed, concocted the verbal altercation/physical intimidation charge and removed plaintiff for two weeks suspension after recommending his removal. On September 10, 1992, the arbitrator, Joseph S. Cannavo, Jr., issued an award sustaining Plaintiff's grievance and found that Plaintiff had been suspended without cause.
A cause of action for tortious interference for knowingly and intentionally interfering with contractual relations without justification exists in the state of Minnesota. It is an actionable tort. The above facts set forth in paragraphs I through VII of this complaint state facts to support an action for tort[i]ous interference with contractual relations as a form of conspiracy.
Because of the defendant's conspiratorial act, Plaintiff was terminated by the United States Postal Service on November 5, 1994 by a letter of decision dated October 18, 1994.
Plaintiff has a property interest in his employment and he was deprived of that property by the conspiratorial action of the United States Postal Service employees.
(Am. Compl. ¶ VIII.) The instant Motion followed.
Standard of Review
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a party may move to dismiss a pleading for lack of subject matter jurisdiction. Such a motion may challenge the sufficiency of the pleading on its face or may challenge the factual truthfulness of its averments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). Whether a Rule 12(b)(1) motion presents a A factual challenge @ to subject matter jurisdiction depends not on whether the movant has submitted matters outside the pleading for the district court's consideration, but rather on whether the district court must inquire into and resolve factual disputes. See Faibisch v. University of Minn., 304 F.3d 797, 801 (8th Cir. 2002). In a factual challenge, the court considers matters outside the pleadings. Osborn, 918 F.2d at 729 n. 6. "Jurisdictional issues, whether they involve questions of law or fact, are for the court to decide." Id. "[T]he trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. at 730, quoted in Faibisch, 304 F.3d at 801. The plaintiff bears the burden of proving that jurisdiction does in fact exist. Osborn, 918 F.2d at 730.
Analysis
As summarized in Smith's memorandum, "this is the second lawsuit brought by Mr. Smith arising out of being falsely accused of sexual harassment and a physical attack on Mr. Smith by the named conspirators." (Pl.'s Resp. to the Def.'s Mot. at 2.) The United States seeks to dismiss Smith's Complaint on a variety of jurisdictional grounds, two of which are that: (1) Smith's Complaint arises out of torts specifically excluded from coverage of the FTCA by 28 U.S.C. § 2680(h); and (2) Smith failed to timely present his administrative claim to the USPS as required under 28 U.S.C. § 2679(d)(5). (Def.'s Mem. in Supp. of Mot. at 7-10; Def.'s Reply Mem. in Supp. at 2-3, 6-12.) The Court will begin with the United States's first ground for dismissal."The FTCA was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances."Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2747 (2004) (citations and internal quotation omitted). The FTCA accordingly gives federal district courts jurisdiction over claims against the United States for injuries "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."Id. (citing 28 U.S.C. § 1346(b)(1)). However, the FTCA also provides that this broad grant of jurisdiction "shall not apply to . . . [a]ny claim arising out of assault, battery . . . libel, slander, misrepresentation . . . or interference with contract rights." 28 U.S.C. § 2680(h); see Sheridan v. United States, 487 U.S. 392, 398 (1988).
In this case, the United States argues that Smith's Amended Complaint sounds in assault, battery, libel, slander, misrepresentation, and interference with contract rights and is thereby excluded from FTCA coverage under § 2680(h). (Def.'s Mem. in Supp. at 10.) Smith offers no response to these arguments, focusing instead on whether he timely presented his claim to the USPS. (See Pl.'s Resp. to Def.'s Mot. at 2-6.) Upon review of the Amended Complaint, the Court agrees with the United States that Smith's claims are excluded from FTCA coverage and, consequently, that this Court lacks subject matter jurisdiction.
Reduced to its simplest terms, Smith claims that while he was working for the USPS in October 1991 USPS co-workers falsely accused him of sexual harassment and physically attacked him. (See Pl.'s Resp. to Def.'s Mot. at 2.) Viewed in a light most favorable to Smith, the alleged verbal accosting was an assault. Dahlin v. Fraser, 288 N.W. 851, 852 (Minn. 1939) ("An assault is an unlawful threat to do bodily harm to another with present ability to carry the threat into effect."). And to the extent the verbal accosting was false, i.e., false accusations of sexual harassment, it was libel, slander, or misrepresentation.Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003) (defamation); M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992) (intentional misrepresentation). The alleged grabbing of his wrist was, when viewed most favorably to Smith, a battery. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980) ("A battery is defined as an intentional unpermitted offensive contact with another." (citation and footnote omitted)). Smith also claims that these tortious acts were done for the purpose of intentionally interfering with his contractual relations with the USPS. (Am. Compl. ¶ VIII.) But assault, libel, slander, misrepresentation, battery, and interference with contractual relations are all specifically excluded from FTCA coverage. See 28 U.S.C. § 2680(h); Raz v. United States, 343 F.3d 945, 948 (8th Cir. 2003) (slander);Selland v. United States, 966 F.2d 346, 347 (8th Cir. 1992) (tortious interference with contractual relations); Bor-Son Bldg. Corp. v. Heller, 572 F.2d 174, 177 (8th Cir. 1978) (misrepresentation); Ruderer v. United States, 462 F.2d 897, 898 (8th Cir. 1972) (libel and defamation); Moos v. United States, 225 F.2d 705, 706 (8th Cir. 1955) (assault and battery). Smith's attempt to avoid the constraints of § 2680(h) by casting his claims as a conspiracy is of no avail. Under Minnesota law, a civil conspiracy is not an independent cause of action, but is based on the commission of an underlying tort.Gaming Corp. of America v. Dorsey Whitney, 88 F.3d 536, 551 (8th Cir. 1996) (citing Harding v. Ohio Cas. Ins. Co., 41 N.W.2d 818, 825 (Minn. 1950)). Accordingly, because the alleged torts underlying his conspiracy claim are excluded from this Court's subject matter jurisdiction under § 2680(h), Smith's Amended Complaint must be dismissed.
To the extent Smith also challenges his suspension or termination (see Am. Compl. ¶ VIII), his FTCA claims are barred by the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified in various sections of 5 U.S.C.) which "provide the exclusive remedy for wrongful discharge from government employ." Gergick v. Austin, 997 F.2d 1237, 1239 (8th Cir. 1993). In addition, although it is not clear that Smith alleges in his Amended Complain that his union breached its duty of fair representation implied by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., or that the USPS breached the collective bargaining agreement in violation of Section 301 of the NLRA, 29 U.S.C. § 185, to the extent such claims are alleged (see Pl.'s Resp. to Def.'s Mot. at 7) they are barred by the six month statute of limitations, see Del Costello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165, 172 (1983); Marshall v. Local Union No. 6, Brewers and Maltsters and Gen. Labor Dep'ts., 960 F.2d 1360, 1365 (8th Cir. 1992);Winkels v. George A. Hormel Co., 874 F.2d 567, 569 (8th Cir. 1989).
Alternatively, the Court determines that Smith did not present his initial claim to the USPS "within 60 days after dismissal of the civil action" as required under 28 U.S.C. § 2679(d)(5). Both parties agree that Smith had until December 11, 1993 to present his administrative claim. (See Pl.'s Resp. to Def.'s Mot. at 3; Def.'s Mem. in Supp. at 7.) Although Smith mailed his claim on December 10, 1993, a day before the deadline, it was not received by the USPS until December 14, 1993, three days after the deadline. (Brennan Decl. Exs. A, B.) "The presentment requirement is satisfied only when the appropriate federal agency actually receives the claim." Bellecourt v. United States, 784 F. Supp. 623, 627 (D. Minn. 1992) (footnote omitted), aff'd 994 F.2d 427 (8th Cir. 1993); see Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994). While the USPS did not deny Smith's claim on account of untimeliness (see Brennan Decl. ¶ 6, Ex. C), "[p]resentment of an administrative claim is jurisdictional and must be pleaded and proven by the FTCA claimant," Bellecourt, 994 F.2d at 430, and a "[l]ack of subject matter jurisdiction . . . cannot be waived," Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993) (citation omitted).