Hammer v. Federal Public Defender Organization of the Eastern District of California et al
Filing
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ORDER granting Defendant's 11 Motion to Dismiss. Signed by Judge Barry Ted Moskowitz on 6/22/2017. (All non-registered users served via U.S. Mail Service) (fth)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 3:16-CV-02192-BTM-NLS
BRIAN HAMMER,
Plaintiffs,
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v.
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FEDERAL PUBLIC DEFENDER
ORGANIZATION OF THE
EASTERN DISTRICT OF
CALIFORNIA, DOES 1-50, and
UNITED STATES OF AMERICA,
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ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS
Defendants.
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On August 30, 2016, Plaintiff Brian Hammer filed a complaint (“Complaint”)
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against Defendants Federal Public Defender Organization of the Eastern District
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of California, Does 1-50 (“Federal Public Defender”) and the United States of
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America (“United States”). Defendant United States moved to dismiss Plaintiff’s
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Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 11.)
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For the reasons discussed below, Defendant United States’ motion is
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GRANTED.
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I. BACKGROUND
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On or about March 31, 2003, Plaintiff was found guilty of mail and wire
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fraud in the Eastern District of California, was subsequently sentenced to 36
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months in prison, and ordered to pay restitution in the amount of $35,000. (ECF
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Nos. 1-2, Compl. ¶ 16.) However, Plaintiff contends that he should not have
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been required to pay any restitution because Plaintiff’s father had previously
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settled with the victims in state court in May of 2002. Id. at ¶ 17. Plaintiff
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believes that the previous settlement was in “complete recompense” for his
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victim’s losses and that the “related settlement offsets were incorrectly entered in
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the restitution sentencing table.” (ECF No. 19, Reply in Response to Motion at
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8.) Despite Plaintiff’s belief, in August 2014 the U.S. Attorney’s Office in the
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Eastern District of California sent Plaintiff a demand notice for $37,380. (Compl.
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¶ 18). Plaintiff attempted three separate times to correct what he believed to be
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a “restitution error,” but was unable to do so. Id. at ¶ 20. Plaintiff then contacted
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The Federal Public Defender’s office seeking assistance in resolving the matter.
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In February 2015, Magistrate Judge Carolyn K. Delaney appointed
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Defendant Federal Public Defenders to represent Plaintiff pursuant to 18 U.S.C.
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§3006A, and did so under Plaintiff’s original case number. (Compl. at Ex. 1.)
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However, the Federal Public Defenders withdrew from representation four
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months later, claiming it could not “provide [Plaintiff] the assistance he desires.”
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(Compl. at Ex. 2.) Plaintiff then initiated the present action against Defendants
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Federal Public Defender and the United States.
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The core of Plaintiff’s argument is Defendant Federal Public Defender
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negligently and incompetently represented Plaintiff in correcting the 2003
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restitution order. (Compl. ¶¶ 22, 24.) Plaintiff contends that the Federal Public
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Defender “knowingly and willfully…failed to acknowledge their mistakes” made
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during the course of representation, and their actions are “in violation of their
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express and implied duties” pursuant to the legal services agreement and public
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policy. (Compl. ¶ 24.)
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Both Defendants Federal Public Defender and the United States brought
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separate motions to dismiss Plaintiff’s Complaint. The Court now considers
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United States’ motion to dismiss.
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II. DISCUSSION
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Standards:
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1. FRCP 12(b)(1) – Lack of Subject Matter Jurisdiction:
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Rule 12(b)(1) provides a party may move to dismiss a complaint that
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“lack[s]…subject-matter jurisdiction.” Fed.R.Civ.P.12(b)(1).
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attack on subject matter jurisdiction “may be facial or factual.” Safe Air for
A Rule 12(b)(1)
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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (quoting White v. Lee,
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227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial challenge, the movant argues
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that the allegations asserted in the complaint are “insufficient on their face to
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invoke federal jurisdiction,” whereas in a factual attack, the movant challenges
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the truth of the allegations that “would otherwise invoke federal jurisdiction.” Id.
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at 1039. When the attack is facial, as it is in the instant matter, the “court must
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accept the allegations as true and must draw all reasonable inferences in the
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plaintiff’s favor.” Romero v. Securus Technologies, Inc., 2016 WL 6157953, at 2
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(S.D. Cal. Oct. 24, 2016) (quoting Wolfe v. Strankman, 392 F. 3d 358 (9th Cir.
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2004).) However, as the federal courts are of limited jurisdiction, the burden of
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proving that an action lies within this limited jurisdiction “rests upon the party
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asserting jurisdiction,” which in the present case is the Plaintiff. Kokkonen v.
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Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (see also McNutt v.
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General Motors Acceptance Corp, 298 U.S. 178, 182-183 (1936).)
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2. Sovereign Immunity:
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The concept of sovereign immunity, which the Supreme Court has
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characterized as an “axiom of our jurisprudence,” is the idea that the United
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States cannot be sued unless it has specifically consented. Price v. United
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States, 174 U.S. 373, 375-76 (1899). The presence of such consent is a
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“prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206 (1983) (see
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also United States v. Sherwood, 312 U.S. 584, 586 (1941).) For the United
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States to consent to suit, a waiver of sovereign immunity must be unequivocally
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expressed by Congress, and any conditions Congress attaches to a waiver of
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sovereign immunity “must be strictly observed, and exceptions thereto are not to
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be lightly implied.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461
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U.S. 273, 287 (1983). Accordingly, one must examine the terms and extent of
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the consent itself to “define [the] court’s jurisdiction to entertain the suit.”
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Mitchell, 463 U.S. at 538.
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3. Federal Tort Claims Act:
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The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) and 20 U.S.C.
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§§ 2671-2680, was first adopted by Congress in 1946. The purpose of the FTCA
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is to allow recovery for certain tort claimants who are the victims of governmental
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negligence where such claims would normally be barred by sovereign immunity.
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E.g., Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955); Lehner v.
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United States, 685 F.2d 1187, 1189 (9th Cir. 1982). The FTCA permits the
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exclusive remedy of money damages for suits involving the tortuous conduct,
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wrongful acts, or omissions of the employees or agents of the United States. 28
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U.S.C. §2679(a) and (b).
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The FTCA’s waiver of sovereign immunity in tort actions is “subject to
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certain exceptions.” S.H. by Holt v. United States, 2017 WL 1314939, at 3 (9th
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Cir. Apr. 10, 2017). However, the FTCA, as a limited waiver of sovereign
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immunity, “must be strictly construed in favor of the United States.” Brady v.
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United States, 211 F.3d 499, 502 (9th Cir. 2000) (see also Dep’t of the Army v.
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Blue Fox, Inc., 525 U.S. 255, 261 (1999)). The Supreme Court has cautioned
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against finding implied waivers of sovereign immunity and stated that such
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waivers must not be enlarged “beyond what the language requires.”
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Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 (1983). Here, it is the
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Plaintiff who must bear the burden of showing such a waiver is “’unequivocally
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expressed’ in the statutory text.” Hajro v. U.S. Citizenship & Immigration Servs.,
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811 F.3d 1086, 1101 (9th Cir. 2016) (quoting Library of Congress v. Shaw, 478
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U.S. 310, 318 (1986)). Plaintiff must show that Congress consented to subject
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the United States government to suit pursuant to the FTCA under circumstances
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such as exist in the present case, and thus establish that this court has subject
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matter jurisdiction to hear the present case.
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B.
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Exception for Federal Public Defenders Under FTCA’s Definition of
“Employee of the Government”:
With respect to the Federal Public Defender, 28 U.S.C. §2671 explains that
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an “employee of the government” is defined as “…(2) any officer or employee of
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a Federal public defender organization, except when such officer or employee
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performs professional services in the course of providing representation under
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section 3006A of title 18.” As employees of a “Federal public defender
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organization,” Defendant Federal Public Defender falls within the definition of
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“employee of the government” unless the exception applies. This exception was
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specifically added to the definition by amendment in 2000. See Federal Courts
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Improvement Act of 2000, PL 106-518, November 13, 2000, 114 Stat. 2410. For
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the exception to apply, the Federal Public Defender employee must have been
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performing professional services pursuant to representation under section
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3006A.
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1.
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As discussed above, the appointment of Defendant Federal Public
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Defender as counsel to Plaintiff was made pursuant to 18 U.S.C. §3006A, as
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evidenced by the Order Appointing Counsel dated February 17, 2015. (Compl.
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at Ex. 1.) Additionally, the aforementioned order was issued under the same
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case number as the Plaintiff’s preceding criminal conviction. It seems clear that
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the U.S. District Court for the Eastern District of California assigned the Federal
Appointment Made Pursuant to 18 U.S.C. §3006A:
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Public Defender to represent Plaintiff under the belief that it was acting pursuant
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to the authority of §3006A and that said representation was in connection to
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Plaintiff’s original criminal case.
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Plaintiff contends, however, that the Federal Public Defender could not
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have been representing him under §3006A, as he was not a “financially eligible
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‘criminal defendant’” at the time or representation. (ECF Doc. No. 19, Plaintiff’s
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Opposition, at 10.) While Plaintiff admits to being indigent and thus “financially
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eligible,” he argues that at the time he received and subsequently challenged the
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demand notice ordering him to pay restitution, he was not a criminal defendant,
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but rather a civil one. Id., at 12. His argument is that under the Federal Debt
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Collection Procedures Act (“FDCPA”), unpaid criminal restitution orders (a
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“judgment on a debt”) are converted into civil judgments, as the statute provides
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solely for “civil procedures.” 28 U.S.C. §3001(a)(1). Plaintiff’s line of reasoning
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is as follows: if his criminal restitution order was converted into a civil judgment
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by way of the FDCPA, then, at the time of his representation, he must have been
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a “civil defendant” and §3006A could not have applied, thus rendering the
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exception under §2671 inapplicable and exposing the United States to liability.
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Plaintiff’s understanding of the FDCPA is incorrect. The Act does not
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convert a criminal restitution judgment into a civil one and subsequently
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transform a criminal defendant into a civil defendant. The purpose of the FDCPA
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is to “’create a comprehensive statutory framework for the collection of debts
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owed to the United States’…including criminal fines.” United States v. Coluccio,
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19 F.3d 1115, 1116 (6th Cir. 1994) (quoting H.R.Rep. No. 101-736, 101st Cong.,
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2d Sess. 23 (1990)). In the Coluccio case, the Government used a civil
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procedure to recover a fine “arising from a criminal proceeding,” an act which
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“falls squarely within the purview of the FDCPA.” Id., at 1116-7.
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States v. Rostoff, 956 F. Supp. 38 (D. Mass. 1997), a case Plaintiff cites in
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support of his argument, the court noted that the FDCPA provides “the
In United
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government with the express authority to enforce criminal fines by way of civil
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proceedings,” and therefore a criminal fine is “properly subject to a lawsuit” under
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the FDCPA. 956 F.Supp. at 44. The FDCPA does not convert a criminal
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restitution judgment into a civil one (and certainly does not change the nature of
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a particular defendant), but rather merely allows for the utilization of a civil
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procedure to collect on a criminal debt.
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Even if Plaintiff was correct as to his conversion argument, §3006A(c)
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would still allow Defendant Federal Public Defender to represent Plaintiff in
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“ancillary matters appropriate to the proceedings.” That is precisely what the
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court did in Plaintiff’s case. Whether the instant matter is classified as civil or
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criminal is “irrelevant” so long as it was “sufficiently related” to the original
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criminal case to be considered “an ‘ancillary’ proceeding for the purposes of 18
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U.S.C. §3006A(c).” United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir.
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1987); see United States v. Hayes, 385 F.3d 1226, 1229 (9th Cir. 2004) (holding
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that after a criminal conviction was overturned, “wrongfully paid restitution could
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be sought without bringing a separate Tucker Act claim,” a civil claim that was
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considered ancillary to the original criminal case); see also Telink, Inc. v. United
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States, 24 F.3d 42, 46 (9th Cir. 1994) (holding that a recovery of wrongly paid
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fines would be incident to overturning a criminal conviction, and a separate civil
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action to recover any paid fines was not necessary). In determining which
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matters are “ancillary,” the Guide to Judiciary Policy (“Guide”) explains that
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courts “should consider whether the matter…arose from, or [is the] same as or
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closely related to, the facts and circumstances surrounding the principal criminal
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charge.”1 The Guide also provides a non-exhaustive list of examples that would
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Criminal Justice Act Guidelines, Guide to Judiciary Policy, Vol. 7 Defender Services, Part A, Chapter 2,
§210.20.30, available at: http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2-ss-210representation-under-cja. See also U.S. Commodity Futures Trading Comm'n, No. 03-603-KI, 2004 WL 1305887,
at 3 (D. Or. Feb. 24, 2004) (further explaining that the Guide sets out a non-inclusive list in which counsel may be
assigned, and that they are not required to be initially assigned during the original criminal case).
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qualify as “ancillary matters,” which includes civil matters.
Given the restitution claim directly arose from the original criminal case and
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it is irrelevant whether it is civil or criminal in nature, the claim is within the
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meaning of “ancillary matters” for purposes of §3006A(c), and thus Defendant
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Federal Public Defender was properly assigned as Plaintiff’s counsel under the
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authority of 18 U.S.C. §3006A.
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2. Defendant Is Not an “Employee of the Government” for Purposes
of FTCA:
As previously explained, 28 U.S.C. §2671 specifically exempts “employees
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of a Federal public defender organization” providing “professional service”
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pursuant to representation under §3006A. This Court has determined that
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Defendant Federal Public Defender was undertaking representation pursuant to
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§3006A, and thus is exempt from §2671’s definition of “employees of the
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Government.” Plaintiff contends that the nature of the acts constituting an
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alleged breach of Defendant Federal Public Defender’s duties to Plaintiff were
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“outside the scope of employment.” (Plaintiff’s Opposition, at 1.) However, as
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explained above, Defendant Federal Public Defender’s representation of Plaintiff
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was clearly an “ancillary matter” to the original criminal case, and thus within the
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dominion of §3006A. Therefore, Defendant Federal Public Defender’s alleged
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malpractice lies outside of the scope of the FTCA.
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Notwithstanding the Court’s determination that Defendant Federal Public
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Defender’s representation of Plaintiff was undertaken pursuant to §3006A,
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Plaintiff’s argument that acts or omissions made during the representation were
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“outside the scope of employment” lacks merit. Defendant United States
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correctly points out in its Reply (ECF Doc. 20, at 7) that if the representation was
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indeed “outside the scope of employment,” the alleged negligence wouldn’t have
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occurred within the scope of employment as required for the FTCA to apply. 28
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U.S.C. §1346(b)(1). If the FTCA is inapplicable, then the United States has not
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waived its sovereign immunity, and Plaintiff thus has not carried his burden of
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proving this action lies within the limited jurisdiction of this Court.
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C.
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Plaintiff’s Suit Against Defendant United States is Barred:
There is no waiver of sovereign immunity in this case, as the express terms
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of the FTCA were not met. Without such a waiver, this Court has no jurisdiction
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to hear Plaintiff’s case against the United States, and the suit is therefore barred
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for want of subject matter jurisdiction.
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III. CONCLUSION
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For the reasons discussed above, Defendant United States’ motion to
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dismiss pursuant to Rule 12(b)(1) is GRANTED. The Court finds that this is a
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final decision as to Plaintiff’s claims against the United States, Sears, Roebuck &
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Co. v. Mackey, 351 U.S. 427, 437 (1956), and that there is no just reason for
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delay, Fed. R. Civ. P. 54(b). Accordingly, the Clerk shall enter a final judgment
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dismissing the complaint against the United States with prejudice.
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IT IS SO ORDERED.
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Dated: June 22, 2017
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