Morkal v. Hawks et al
Filing
68
ORDER Granting 62 Motion to Dismiss. (CC: DQA) (Jan, Chambers Staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOHN VICTOR MORKAL,
Case No. 3:12-cv-00218 RRB
Plaintiff,
ORDER REGARDING
FEDERAL DEFENDANTS’
MOTION TO DISMISS
v.
TERRY HAWKS d/b/a FAR NORTH
MANAGEMENT SERVICES and at least
two unknown employees of the SOCIAL
SECURITY ADMINISTRATION of the U.S.
Department of Health & Human Services,
Defendants,
I.
INTRODUCTION
Plaintiff John Victor Morkal has filed suit against Defendant Terry Hawks and at least two
unidentified employees of the United States Social Security Agency ("Federal Defendants")
alleging Defendants participated in a scheme by which Plaintiff was defrauded of federal
Supplemental Security Income (SSI) benefit payments and Alaska Adult Public Assistance (ADA)
funds. The United States government, on behalf of Federal Defendants, has filed a motion to
dismiss at Docket 62. Plaintiff has filed no response.
II. BACKGROUND
Plaintiff is a recipient of both the Social Security Administration's SSI benefits and the
State of Alaska's APA benefits. These benefits were based on the Social Security Administration's
ORDER REGARDING FEDERAL
DEFENDANTS’ MOTION TO DISMISS - 1
3:12-cv-00218-RRB
determination that Plaintiff was sufficiently disabled and were provided to ensure Plaintiff's basic
needs were met. 1 Although Plaintiff qualified for these benefits, he was deemed incapable of
managing the benefits on his own and a licensed representative payee was required. 2 The Federal
Defendants allegedly provided Plaintiff with a list of pre-approved representative payees in or
around February 2011. 3 Defendants Hawks, the proprietor of Far North Management Services,
was included in this list of pre-approved representative payees.
Plaintiff first selected Hawks as his representative in or about February 2011 and she
represented him until May 2012. 4 Plaintiff’s claims stem from a dispute with Hawks over her
handling of his benefits and failure to provide him the corresponding funds upon his request. 5 This
dispute has led to Plaintiff's present suit. Plaintiff asserts that the Social Security Administration's
Anchorage office is an enterprise for purposes of the Racketeer Influenced and Corrupt
Organizations (RICO) Act, 18 U.S.C. §§ 1961-1968, and that Defendant Hawks and Federal
Defendants were employed or associated with this enterprise to engage in racketeering activities
to defraud and extort Plaintiff. 6 Plaintiff also claims that the actions of Hawks and Federal
Defendants constitute a tort claim for intentional infliction of emotional distress. 7 Defendant
Hawks filed an answer at Docket at 53, while Federal Defendants have responded with a motion
to dismiss at Docket 62.
1
Docket 43 at 3.
Id. at 7.
3
Id.
4
Id. at 8-9.
5
Id. at 9-10.
6
Id. at 10.
7
Id. at 14.
2
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DEFENDANTS’ MOTION TO DISMISS - 2
3:12-cv-00218-RRB
III. STANDARD OF REVIEW
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” 8 When there is a challenge to the district court's subject matter jurisdiction,
“no presumptive truthfulness attaches to a plaintiff's allegations.” 9 “Once challenged, the party
asserting subject matter jurisdiction has the burden of proving its existence.” 10
Jurisdictional challenges must be addressed before the Court considers the merits of a
case. 11 Moreover, as jurisdiction is a threshold issue, “when a federal court ... lacks subject-matter
jurisdiction, the court must dismiss the complaint,” either upon a Rule 12(b)1) motion from the
defendant or sua sponte. 12
B. Sovereign Immunity
The United States, as a sovereign, is immune from suit unless it waives such immunity.13
A motion to dismiss based on sovereign immunity is essentially a motion to dismiss for lack of
subject matter jurisdiction. 14 In the context of a Rule 12(b)(1) motion to dismiss on the basis of
8
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations
omitted).
9
Pistor v. Garcia, 791 F.3d 1104, 1110-11 (9th Cir. 2015) (internal quotation omitted).
10
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (quoting Rattlesnake Coal.
v. E.P.A., 509 F.3d 1095, 1102 n. 1 (9th Cir.2007)).
11
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93–94, 118 S. Ct. 1003 (1998).
12
Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n. 12 (9th Cir. 2012)
(quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235 (2006)).
13
Chadd v. United States, 794 F.3d 1104, 1108 (9th Cir. 2015) (citing FDIC v. Meyer, 510
U.S. 471, 475, 114 S. Ct. 996 (1994)).
14
See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988).
ORDER REGARDING FEDERAL
DEFENDANTS’ MOTION TO DISMISS - 3
3:12-cv-00218-RRB
sovereign immunity, the party asserting subject matter jurisdiction has the burden of proving that
immunity does not bar the suit. 15
For suits against government officials like the present case, “the crucial question...is
whether plaintiff[] sued these defendants...in their official capacities or in their individual
capacities.” 16 A government official sued in his official capacity is entitled to “forms of sovereign
immunity that the entity, qua entity, may possess” whereas an official sued in his individual
capacity, in contrast, cannot claim sovereign immunity from suit. 17
C. Federal Tort Claims Act
Under the Federal Tort Claims Act (FTCA), the United States has affirmatively waived its
sovereign immunity with regard to tort liability. 18 The FTCA waives the United States' immunity
for "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.” 19 However, "[a]n action
shall not be instituted upon a claim against the United States for money damages . . . 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 . . . ." 20 An action under the FTCA "require[s] complete
exhaustion of Executive remedies before invocation of the judicial process." 21 As the FTCA
15
Pistor, 791 F.3d 1111 (quoting Miller v. Wright, 705 F.3d 919, 923 (9th Cir.) cert.
denied, 133 S. Ct. 2829 (2013)).
16
Id. (internal quotation omitted).
17
Kentucky v. Graham, 473 U.S. 159, 166-67.
18
28 U.S.C. § 1346.
19
28 U.S.C. § 1346(b)(1).
20
28 U.S.C. § 2675(a).
21
Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992).
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waives sovereign immunity, the administrative claim requirement is jurisdictional and may not be
waived." 22
IV. DISCUSSION
Plaintiff has alleged that Defendants have violated RICO and caused the intentional
infliction of emotional distress. For the reasons set forth below, the Federal Defendants'
Motion to Dismiss is GRANTED.
A. RICO Claim
RICO does not waive sovereign immunity of the United States or its officials. 23 As Federal
Defendants have challenged jurisdiction and asserted that sovereign immunity applies, the burden
shifts to Plaintiff to establish the existence of jurisdiction. However, Plaintiff has filed no response
to Defendants' motion to dismiss and as a result, Plaintiff has failed to meet his burden establishing
subject matter jurisdiction. The Court therefore finds that sovereign immunity bars the suit against
Federal Defendants in their official capacity, and the claims against Federal Defendants in their
official capacities are DISMISSED WITH PREJUDICE.
Plaintiff has also brought suit against Federal Defendants in their individual capacities, for
which they are not immune. However, Plaintiff has not provided specific identification of the
Federal Defendants allegedly involved in this suit nor personally served these individuals. Persons
22
Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985); Jerves, 966 F.2d at 521.
Dees v. California State University, Hayward, 33 F.Supp.2d 1190, 1201 (N.D. Cal. 1998)
(“The RICO statutes do not indicate that the United States has waived its sovereign immunity” and
therefore “a RICO claim cannot be maintained against the United States.”); McMillan v.
Department of Interior, 907 F. Supp. 322, 326 (D. Nev. 1995), aff'd 87 F.3d 1320 (9th Cir. 1996)
(No RICO statute waives the sovereign immunity of the United States or its agencies); Dahmer v.
Hamilton, 238 F.3d 428 (9th Cir. 2000) (“RICO does not override states' sovereign immunity”);
Berger v. Pierce, 933 F.2d 393, 397; (6th Cir. 1991) (“it is clear that there can be no RICO claim
against the federal government”).
23
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DEFENDANTS’ MOTION TO DISMISS - 5
3:12-cv-00218-RRB
sued in their individual capacities are required by Rule 4(d)(1) of the Federal Rules of Civil
Procedure to receive personal service of the summons and complaint. 24 “Without personal service
in accordance with Rule 4, the district court is without jurisdiction to render a personal judgment
against a defendant." 25 Moreover, service at the defendant's place of employment is still
insufficient to obtain jurisdiction over federal officers in their individual capacities. 26 Without
personal service on Federal Defendants, the Court finds there to be insufficient service of process
as to Federal Defendants in their individual capacities. Accordingly, all claims against Federal
Defendants in their individual capacities are DISMISSED WITHOUT PREJUDICE.
B. Intentional Infliction of Emotional Distress Claim
Intentional infliction of emotional distress by the United States or its officials is a tort claim
covered by the FTCA. 27 In order to bring this claim before the Court, Plaintiff needed to have
presented his claim to the Social Security Administration for review and have it finally denied. 28
However, Plaintiff has alleged no such facts. In fact, Plaintiff's complaint makes no indication that
he pursued any administrative remedies before seeking redress before this Court. Without any
response from Plaintiff to Federal Defendants' motion to dismiss, the Court can only surmise that
there was no complete exhaustion of the administrative remedies before Plaintiff brought this
FTCA claim. The Court finds that Plaintiff did not comply with the administrative claim
requirements of the FTCA and his claim for intentional infliction of emotional distress is
DISMISSED WITHOUT PREJUDICE.
24
Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982).
Id.
26
Daly–Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987).
27
Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996); Ace v. Aetna Life Ins. Co.,
139 F.3d 1241, 1250 (9th Cir. 1998) (Alaska law).
28
28 U.S.C. § 2675(a).
25
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DEFENDANTS’ MOTION TO DISMISS - 6
3:12-cv-00218-RRB
V. CONCLUSION
For the reasons set forth above, Federal Defendants' Motion to Dismiss at Docket 62 is
GRANTED.
IT IS SO ORDERED this 19th day of October, 2015.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER REGARDING FEDERAL
DEFENDANTS’ MOTION TO DISMISS - 7
3:12-cv-00218-RRB
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