McClain-Leazure et al v. Colvin

Filing 29

ORDER granting 16 Motion to Dismiss. This action as to the named defendant is dismissed. As to the named defendant only Counts I and IV are dismissed without prejudice, and Count III is dismissed with prejudice. As to all defendants, Count II is dismissed with prejudice. Signed by District Judge William H. Steele on 5/15/18. (mbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIM MCCLAIN-LEAZURE, et al.,
Plaintiffs,
v.
NANCY A. BERRYHILL, etc.,
Defendant.

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) CIVIL ACTION 17-0144-WS-MU
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ORDER

This matter is before the Court on the named defendant’s motion to
dismiss. (Doc. 16). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 16, 22, 24-27), and the motion is ripe
for resolution. After careful consideration, the Court concludes the motion is due
to be granted.
BACKGROUND
According to the complaint, (Doc. 1-1),1 the lead plaintiff (“KML”) was
employed by the Social Security Administration (“SSA”) as an Administrative
Law Judge. Beginning in or about September 2012, KML experienced
harassment, leading her to file a succession of EEO claims. These claims were
resolved by settlement in October 2015. These events form the “background” and
“context” of the case but are not the basis of the lawsuit. (Id. at 4-6).

1

An “amended complaint” filed in state court prior to removal is instead a onesentence amendment altering the name of the defendant. (Doc. 12-5).

The complaint sets forth four counts, all brought against the named
defendant in her official capacity as SSA Commissioner.2 Count I alleges that,
since the settlement agreement (“the Agreement”) was executed, SSA has
committed the tort of outrage/intentional infliction of emotional distress in
violation of Alabama law. (Doc. 1-1 at 6-9). Count II alleges that SSA breached
its duty under Alabama’s Employer’s Liability Act. (Id. at 9-10). Count III
alleges that SSA has violated the Agreement and thus has breached a contract in
violation of Alabama law. (Id. at 10-15). Count IV is brought by KML’s husband
(“William”) and asserts a claim for loss of consortium. (Id. at 15-16). The
defendant seeks dismissal of all four counts pursuant to Rules 12(b)(1) and
12(b)(6).
DISCUSSION
A challenge under Rule 12(b)(1) can be either facial or factual. When a
defendant mounts a factual challenge, “matters outside the pleadings, such as
testimony and affidavits are considered.” McElmurray v. Consolidated
Government, 501 F.3d 1244, 1251 (11th Cir. 2007) (internal quotes omitted).
“Since such a motion implicates the fundamental question of a trial court’s
jurisdiction, a trial court is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case without presuming the truthfulness of the
plaintiff’s allegations.” Makro Capital of America, Inc. v. UBS AG, 543 F.3d
1254, 1258 (11th Cir. 2008) (internal quotes omitted).
I. Outrage.
The defendant argues that Count I is due to be dismissed on grounds of
sovereign immunity, preemption and failure to exhaust administrative remedies.
The Court considers these arguments in turn.
2

The complaint also lists several vaguely described fictitious defendants, none of
which have been identified in the 15 months since suit was filed.
2

A. Sovereign Immunity.
“It is well settled that the United States, as a sovereign entity, is immune
from suit unless it consents to be sued.” Zelaya v. United States, 781 F.3d 1315,
1321 (11th Cir. 2015).3 However, “[t]hrough the enactment of the FTCA, the
federal government has, as a general matter, waived its immunity from tort suits
based on state law tort claims.” Id. The defendant argues that KML’s outrage
claim is among those excepted from this waiver by 28 U.S.C. § 2680(h). (Doc.
16 at 10 n.3; Doc. 27 at 4 n.3). If the defendant is correct, the Court lacks subject
matter jurisdiction over this claim. Zelaya, 781 F.3d at 1322.
The FTCA excepts from its general waiver of immunity “[a]ny claim
arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” 28 U.S.C. § 2680(h). Although
outrage/intentional infliction of emotional distress is not mentioned in this list,
thanks to the “arising out of” language even an unlisted tort will fall within the
exception “if the governmental conduct that is essential to the plaintiff’s cause of
action is encompassed by that tort.” Zelaya, 781 F.3d at 1333; accord GonzalezJiminez de Ruiz v. United States, 378 F.3d 1229, 1231 n.2 (11th Cir. 2004); JBP
Acquisitions, LP v. United States ex rel. Federal Deposit Insurance Corp., 224
F.3d 1260, 1264 (11th Cir. 2000); Metz v. United States, 788 F.2d 1528, 1534 (11th
Cir. 1986).
In order to determine whether KML’s outrage claim is barred, therefore, an
examination of the governmental conduct essential to her claim must be
undertaken. The complaint identifies the following governmental conduct as
underlying the outrage claim: (1) the chief judge that had previously harassed
3

“The immunity of the sovereign … extends to its agencies … and the officers of
these agencies” when sued in their official capacities. Simons v. Vinson, 394 F.2d 732,
736 (5th Cir. 1968); Nalls v. Bureau of Prisons, 359 Fed. Appx. 99, 101 (11th Cir. 2009);
Ishler v. Internal Revenue, 237 Fed. Appx. 394, 397 (11th Cir. 2007).
3

KML was moved to an office next door to hers; (2) KML could not rely on her
legal assistant – an ally of her harasser – to perform the legal assistant’s duties,
such that KML performed such duties (such as purchasing rubber stamps) for
several months; (3) KML was denied a reasonable accommodation for a medical
condition, forcing her to resign in order to safeguard her health; (4) KML’s health
insurance was canceled prematurely, causing her to miss chemotherapy and to
delay surgery; (5) KML’s request for severance pay as per governmental policy
has not been addressed; and (6) the government actors knew of KML’s fragile
condition and that their conduct would threaten her health and life. The actors
were motivated by retaliation for KML’s pre-settlement conduct in reporting fraud
within the agency. (Doc. 1-1 at 6-9).
It is certainly possible for an outrage claim to rely on conduct encompassed
by a tort listed in Section 2680(h). In Metz, the Eleventh Circuit ruled that the
plaintiffs’ claims for intentional infliction of emotional distress under Georgia law
fell within that provision because the governmental conduct essential to their
claim arose from an alleged false arrest and slander – both of which torts are listed
in Section 2680(h). 788 F.2d at 1534-35; see also Gonzalez-Jiminez, 378 F.3d at
1231 n.2 (“[I]f the plaintiffs’ allegations of deceit are essential to their intentional
infliction of emotional distress claim, we lack jurisdiction under the FTCA to
entertain that claim.”). Here, however, the defendant has not explained, and the
Court does not discern, how the governmental conduct alleged in support of
KML’s outrage claim could show that her claim arises from battery, slander,
deceit or any other listed tort.
B. Preemption.
“Under the Civil Service Reform Act of 1978 [“CSRA”]…, certain federal
employees may obtain administrative and judicial review of specified adverse
employment actions.” Elgin v. Department of Treasury, 567 U.S. 1, 5 (2012).
The defendant argues that the CSRA provides KML’s exclusive recourse and
4

preempts her outrage claim. KML concedes she is or was a federal employee to
whom the CSRA applies but denies that her tort claim is precluded by the CSRA.
“[W]here … an employee challenges personnel actions within the scope of
the Act’s coverage under state law, those challenges are preempted by the CSRA.”
Broughton v. Courtney, 861 F.2d 639, 644 (11th Cir. 1988). At least when the
adverse action: (1) is by an employee with “authority to take, direct others to take,
recommend, or approve any personnel action” under 5 U.S.C. § 2302(b); (2)
constitutes a “personnel action” under Section 2302(a)(2); and (3) was taken for a
reason constituting a “prohibited personnel practice” under Section 2302(a)(1) and
(b), the CSRA preempts a state law claim based on the action. Id.
With respect to the first requirement, the plaintiffs admit that “the Outrage
claim is based on conduct of various SSA employees who were acting within the
line and scope of their duty.” (Doc. 22 at 6).
With respect to the second requirement, “[p]ersonnel actions” include “any
… significant change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2). The complaint affirmatively asserts that moving KML’s harasser
next door to her “changed [her] working conditions to a level which she could not
tolerate.” (Doc. 1-1 at 6). The complaint likewise expressly alleges that KML’s
“working conditions changed drastically” by having a legal assistant allied with
her harasser. (Id.).
With respect to the third requirement, a “prohibited personnel practice”
includes taking or failing to take a personnel action due to: (1) an employee’s
disclosure of information she reasonably believes evidences a violation of law,
rule or regulation, gross mismanagement, gross waste of funds or an abuse of
authority (if disclosure is not prohibited by law or in the interest of national
defense or the conduct of foreign affairs); or (2) the employee’s exercise of any
appeal, complaint or grievance right. 5 U.S.C. § 2302(b)(8), (9). The complaint
alleges that the actors were motivated by retaliation for KML’s pre-settlement
conduct in reporting fraud within the agency. (Doc. 1-1 at 8).
5

In summary, to the extent KML’s outrage claim is based on her harasser’s
proximity and the unreliability of her legal assistant, it appears likely that the
claim is preempted by the CSRA. The defendant does not address the remaining
conduct on which KML’s outrage claim is based – denial of reasonable
accommodation, premature cessation of health insurance and failure to address
severance pay. On the contrary, the defendant concedes that only the “bulk” of the
conduct challenged by KML is subject to CSRA preemption, with KML’s “chie[f]
complain[t]s” being the proximity of her harasser and the unreliability of her legal
assistant. (Doc. 16 at 8). The Court understands these statements as
acknowledging that other portions of the outrage claim are not subject to CSRA
preemption.4 Because, as discussed in Part I.C, KML’s outrage claim must be
dismissed for failure to exhaust her administrative remedies, the Court pretermits
further consideration of the defendant’s preemption argument and the plaintiffs’
response.
C. Exhaustion.
A state law tort action permitted under the FTCA “shall not be instituted”
before the claimant has “presented the claim to the appropriate Federal agency and
his claim [has] been finally denied by the agency in writing” or, at the claimant’s
option, has been unresolved for at least six months after being filed. 28 U.S.C. §
2675(a). “Because the FTCA bars claimants from bringing suit in federal court
until they have exhausted their administrative remedies, the district court lacks
subject matter jurisdiction over prematurely filed suits.” Turner ex rel. Turner v.
4

The defendant suggests that CSRA preemption applies whenever a “prohibited
personnel practice” is implicated, even if the practice does not concern a “personnel
action.” (Doc. 16 at 9). This does not seem possible with respect to the only prohibited
personnel practices implicated here, since they are by their terms limited to “personnel
action[s]” taken or not taken for the prohibited reason. 5 U.S.C. § 2302(b)(8), (9).
Certainly Broughton, on which the defendant relies, does not support her position. See
861 F.2d at 644 (“A prohibited personnel practice is a personnel action which is taken
for a prohibited purpose.”) (emphasis added, internal quotes omitted).

6

United States, 514 F.3d 1194, 1200 (11th Cir. 2008) (internal quotes omitted);
accord Barnett v. Okeechobee Hospital, 283 F.3d 1232, 1237 (11th Cir. 2002).
The complaint does not allege that KML presented a claim to SSA or that
the claim was denied formally or by passage of time. The defendant has submitted
the declaration of SSA’s FTCA team leader for the proposition that the plaintiffs
have submitted no administrative tort claim as required by Section 2675(a).5
KML has filed an affidavit in response to the defendant’s motion to dismiss, but it
is silent regarding any submission of a claim under Section 2675(a). (Docs. 2426). Nor do the plaintiffs assert in brief that a clam was ever submitted.
It is thus uncontroverted that the plaintiffs have not complied with Section
2675(a) and therefore have not exhausted their administrative remedies. Due to
their failure, the Court lacks subject matter jurisdiction over KML’s outrage
claim.6
KML offers three objections, all without merit. First, she argues that the
conduct on which her outrage claim is based is “not related to personnel actions
which would be covered by the FTCA.” (Doc. 22 at 7). The FTCA, however, is
not limited in scope to suits by employees, much less to suits over personnel
actions. 28 U.S.C. §§ 1346(b), 2674.
Second, KML argues that the defendant has mounted only a facial attack on
jurisdiction and thus cannot resort to material beyond the face of the complaint.
(Doc. 22 at 3). KML is mistaken. The defendant in her brief notes the difference
between facial and factual attacks on jurisdiction and explicitly asserts that
5

The declarant directs the activities of SSA employees responsible for receiving
investigating, processing and adjudicating such claims. He also causes records
concerning such claims to be maintained in the ordinary course of business, and complete
records of such claims are in fact maintained. A search of those records reveals no
administrative tort claim filed against SSA by either plaintiff or anyone on their behalf.
(Doc. 16-3).
6

Because the defendant does not address whether the plaintiffs’ failure to exhaust
administrative remedies is capable of cure, dismissal of Count I will be without prejudice.

7

“Plaintiffs’ Complaint is subject to dismissal on its face and based on the
declarations submitted in support of this motion.” (Doc. 16 at 3 (emphasis
added)).7
Third, KML proposes that any ruling on subject matter jurisdiction be
postponed pending discovery, on the grounds that the jurisdictional issue is
“inextricably intertwined” with the merits of her claim. (Doc. 22 at 6). On the
contrary, whether the plaintiffs submitted an administrative tort claim to SSA is
completely independent of whether KML has a meritorious claim of outrage. Nor
is it easy to imagine what discovery the plaintiffs could require in order to show
they complied with Section 2675(a), since it is within their own personal
knowledge whether they did so.
II. Employer’s Liability Act.
The plaintiffs concede that Count II is due to be dismissed. (Doc. 22 at 10).
III. Breach of Contract.
The defendant argues that Count III is due to be dismissed on grounds of
immunity and failure to exhaust administrative remedies. The Court finds the first
argument to be dispositive.8

7

There is no question but that a defendant may raise non-compliance with Section
2675(a) as a factual attack on subject matter jurisdiction. E.g., Barnett, 283 F.3d at 123738.
8

In an abundance of caution, the defendant argues that any post-Agreement
claims under Title VII or the Rehabilitation Act have not been exhausted by resort to the
governing administrative procedures. (Doc. 16 at 16-17). While it does mention certain
post-Agreement conduct that might support a claim under those statutes, the complaint
asserts no cause of action under these or any other statutes; the claims advanced in the
complaint are limited to those addressed in text.

8

The Agreement settled KML’s EEO claims. (Doc. 1-1 at 6; Doc. 16-1 at 23). As relief for breach of the Agreement, the complaint seeks compensatory and
punitive damages. (Doc. 1-1 at 15).
“Congress has, admittedly, waived sovereign immunity in Title VII suits
where the federal government is the employer.” Frahm v. United States, 492 F.3d
258, 262 (4th Cir. 2007). “However, this statutory waiver does not expressly
extend to monetary claims against the government for breach of a settlement
agreement that resolves a Title VII dispute.” Id. Because only an unequivocal
waiver of sovereign immunity will suffice, Title VII does not waive immunity
with respect to such claims. Id.; accord Taylor v. Geithner, 703 F.3d 328, 333-35
(6th Cir. 2013); Munoz v. Mabus, 630 F.3d 856, 860-61 (9th Cir. 2010); Lindstrom
v. United States, 510 F.3d 1191, 1195 (10th Cir. 2007). Nor do the regulations
promulgated thereunder. Taylor, 703 F.3d at 335; Mabus, 630 F.3d at 861-63;
Lindstrom, 510 F.3d at 1195.9 The same goes for the Rehabilitation Act. Id. at
1194.10 And, to the extent the Agreement itself could work a waiver of sovereign
immunity by providing for suit in case of breach, Frahm, 492 F.3d at 262, it does
not do so. (Doc. 16-1).
The Eleventh Circuit apparently has issued no published opinion
comparable to those from the Fourth, Sixth, Ninth and Tenth Circuits, but the
plaintiffs offer no reason to believe it would reach any different conclusion. Nor
do they disagree with the defendant’s characterization of Thompson v. McHugh,
388 Fed. Appx. 870 (11th Cir. 2010), as standing for a similar proposition. (Doc.
9

Those regulations envision only administrative consideration of claims that an
agency has failed to comply with the terms of a settlement agreement, with the only
favorable outcome being an administrative order either to comply with the settlement
agreement or reinstating the employee’s administrative complaint for further processing.
29 C.F.R. § 1614.504; see also Frahm, 492 F.3d at 262-63 (“By its plain language,
[Section 1614.504] sets out the only alternatives that may be chosen.”).
10

The defendant indicates that one or more of KML’s EEO charges implicated
the Rehabilitation Act. (Doc. 16 at 2, 14).

9

16 at 14). In Thompson, the Court ruled that neither Title VII nor regulations
promulgated thereunder waive sovereign immunity with respect to claims for
rescission of a settlement agreement. Id. at 872-73. The Fifth Circuit in Charles
v. McHugh, 613 Fed. Appx. 330 (5th Cir. 2015), has agreed with Thompson on the
grounds that claims for settlement agreement rescission are of a piece with claims
for settlement agreement breach – both are contract claims as to which the United
States has not waived its sovereign immunity. Id. at 334-35.
The plaintiffs, while addressing at length the defendant’s exhaustion
argument, are silent regarding the threshold issue of sovereign immunity. For the
reasons stated above, the Court concludes that KML’s contract claim is barred by
that doctrine.11
IV. Loss of Consortium.
“A loss-of-consortium claim is derivative of the claims of the injured
spouse. Therefore, [William’s] loss-of-consortium claim must fail if [KML’s]
claims fail.” Flying J. Fish Farm v. Peoples Bank, 12 So. 3d 1185, 1196 (Ala.
2008); accord Lyons v. Vaughan Regional Medical Center, LLC, 23 So. 3d 23, 29
(Ala. 2009). Because KML’s claims fail, William’s claim also must fail.
The plaintiffs suggest that William’s claim should be analyzed
independently of KML’s claims. (Doc. 22 at 9). Because his claim is derivative
of hers, that approach is erroneous, but it would not assist him in any event. The
plaintiffs’ only argument is that the FTCA does not bar claims for loss of
consortium. (Id.). If that assertion is correct, it defeats the defendant’s invocation
of sovereign immunity. See Part I.A, supra. It does not, however, address or
defeat her invocation of failure to exhaust administrative remedies. See Part I.C,
supra. As noted therein, it is uncontroverted that neither KML nor William
submitted a claim to SSA. See note 5, supra. Because William did not exhaust
11

Because the plaintiffs cannot avoid that bar, dismissal of Count III will be with
prejudice.
10

his administrative remedies, the Court would lack jurisdiction over his claim even
if it could properly be analyzed independently of KML’s claims.12
CONCLUSION
For the reasons set forth above, the motion to dismiss is granted. This
action as to the named defendant is dismissed. As to the named defendant only,
Counts I and IV are dismissed without prejudice, and Count III is dismissed
with prejudice. As to all defendants, Count II is dismissed with prejudice.
DONE and ORDERED this 15th day of May, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

12

Because it is derivative of Count I, and because Count I is to be dismissed
without prejudice, Count IV likewise will be dismissed without prejudice.

11