Favors-Morrell v. United States Of America

Filing 31

ORDER denying as moot Plaintiff's 6 Motion to Change Venue; granting Defendant's 10 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Lisa G. Wood on 6/15/2015. (ca)

n the Eniteb Statto Maria Court
for the boutbern 38totrttt of georgia
runtuitk 3fthston
ANGELA FAVORS -MORRELL,
Plaintiff,
V

CV 214-164

.

UNITED STATES OF AMERICA,
Defendant.

Presently before the Court are Plaintiff Angela FavorsMorrell's Motion to Change Venue (Dkt. no. 6) and Defendant
United States of America's Motion to Dismiss for lack of subject
matter jurisdiction (Dkt. no. 10). Because this Court lacks
jurisdiction to consider whether the Department of Justice
improperly declined to initiate a grand jury investigation at
Plaintiff's bidding, the Court must GRANT Defendant's Motion to
Dismiss, and DENY AS MOOT Plaintiff's Motion to Change Venue
(Dkt. no. 6).
FACTUAL BACKGROUND
I.

Allegations in Plaintiff's Complaint

Plaintiff alleges that at her former job with the Federal
Law Enforcement Training Center ("FLETC"), the management
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"violated criminal statutes provided in 5 U.S.C. § 8103, 18
U.S.C. § 1920, 18 U.S.C. § 1922, . . . 20 C.F.R. [] 10.15 1
[and] 20 C.F.R. [] 10.204(b)." Compl. at 3-4. Plaintiff alleges
that she informed the Department of Justice about these
violations, but that First Assistant United States Attorney
James Durham denied her request for a grand jury investigation.
Id. at 4. Attached to Plaintiff's Complaint is a letter from Mr.
Durham denying Plaintiff's request for a grand jury
investigation and stating: "If you believe there have been
violations of federal criminal laws, I suggest that you contact
a federal investigative agency, such as the FBI." Id. at 11.
Plaintiff then filed the instant suit, seeking $442,272 in
compensation.
II. Additional Background,

For purposes of its motion to dismiss, Defendant has
offered the following additional information.
Assistant United States Attorney T. Shane Mayes says that
Plaintiff approached him outside of the Brunswick Courthouse

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See, e.g., 5 U.S.C. § 8103 (non-criminal statute providing that federal
employees may receive medical services and initial medical and other benefits
in certain circumstances); 18 U.S.C. § 1920 (criminalizing false statements
or fraud committed to obtain federal employees' compensation); 18 U.S.C.
§ 1922 (prohibiting an officer or employee of the United States from making a
false report, or withholding a report, concerning federal employees'
compensation); 20 C.F.R. § 10.15 (non-criminal statute providing that an
employer may not compel an employee to waive benefits under the Federal
Employees' Compensation Act); 20 C.F.R. § 10.204(b) (providing that, where an
employee is continuing to receive pay after stopping work due to a disabling
event, those payments shall terminate if the employee refuses to submit to a
medical examination)
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sometime before November, 2013. Dkt. no. 10-1 (Mays Aff.) ¶ 3.
Plaintiff told AUSA Mayes that she had filed claims against the
United States and that she intended to follow up with the U.S.
Attorney's Office regarding those claims. Id. On or about
November 12, 2013, Plaintiff met with AUSA Mayes at the U.S.
Attorney's Office in Savannah, Georgia, and requested that the
United States Attorney initiate criminal proceedings related to
the alleged improper handling of her prior claims against the
government. Id. ¶ 4. Particularly, Plaintiff alleged that FLETC
had mishandled her prior claims, and that United States District
Court Judge Anthony Alaimo was biased against her when he
previously presided over her prior civil actions concerning
related events. Id. Later, AUSA Mayes told Plaintiff that no
action by the U.S. Attorney's Office was warranted based on the
information Plaintiff had provided. Id. ¶ 7. AUSA Mayes says
this decision was an exercise of his own discretion as an AUSA
and was made in consultation with other members of the U.S.
Attorney's Office. Id. 91 9. First Assistant U.S. Attorney Durham
agreed to send Plaintiff written confirmation of this decision.
Id. ¶ 8.
PROCEDURAL BACKGROUND

Plaintiff filed her Complaint on October 31, 2014. Dkt.
no. 1. She was later granted a motion to proceed in forma
pauperis. Dkt. no. 5. On November 13, 2014, Plaintiff filed her
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Motion to Change Venue. Dkt. no. 6. Defendant filed its Motion
to Dismiss for lack of jurisdiction on December 22, 2014. Dkt.
no. 10.
Because Plaintiff is a pro .se litigant who may not be aware
of the consequences of failing to respond to a motion to
dismiss, the Magistrate Judge directed Plaintiff to file any
objections to Defendant's motion or otherwise inform the court
of her decision not to object. Dkt. no. 12. Plaintiff filed a
response on December 24, 2014, which does not directly respond
to Defendant's legal arguments but rather implores the Court to
construe her complaint liberally, as she is proceeding pro se.
Dkt. no. 13. Defendant replied, noting the response's
deficiencies. Dkt. no. 15. Plaintiff has since filed several
additional briefs of a similar nature to her initial response.
See Dkt. no. 16 (purporting to bring a 42 U.S.C. § 1986 claim
against the Defendant, and noting that Defendant had prosecuted
other (unrelated) fraud cases involving false claims violations,
workers compensation, and social security, as reported in the
media); Dkt. no. 19 (stating the legal standard for Rule
12(b) (6) motions to dismiss and informing Defendant that she
will be bringing a separate civil action); Dkt. no. 22 (alleging
that "Defendant has violated 5 C.F.R. Part 2635(E) [guiding
executive branch employees in maintaining impartiality when
performing official duties] by adjudicating this claim"); Dkt.
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no. 26 (generally informing Defendant of the possibility of
disbarment). Defendant's replies have reiterated the arguments
in its Motion to Dismiss and first reply, and purport to show a
pattern of "harassing" communications and "threats" from
Plaintiff. See Dkt. nos. 21, 25.
ANALYSIS

Defendant's Motion to Dismiss is based on the theory that
the Court does not have subject matter jurisdiction to hear
Plaintiff's claims.
I. Legal Standard

A motion to dismiss brought pursuant to Rule 12(b) (1) of
the Federal Rules of Civil Procedure may challenge the court's
subject matter jurisdiction based on the face of the pleadings
or the substantive facts of the case. Morrison v. Amway Corp.,
323 F.3d 920, 924 n.5 (11th Cir. 2003). When addressing a facial
challenge, allegations in the plaintiff's complaint are taken as
true, and the court determines whether the complaint
sufficiently alleges a basis for subject matter jurisdiction.
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (citing
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990))
When addressing a factual challenge, a court "is free to
weigh the evidence and satisfy itself as to the existence of its
power to hear the case." See Lawrence, 919 F.2d at 1528-29
(quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
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1981)); see also Scarfo, 175 F.3d at 960

("[M]atters outside the

pleadings, such as testimony and affidavits, are considered.")
Therefore, the presumption of truthfulness afforded a plaintiff
under Federal Rule of Civil Procedure 12(b) (6) does not attach
to a factual challenge to the court's subject matter
jurisdiction. See Scarfo, 175 F.3d at 960. The Plaintiff has the
burden of establishing jurisdiction when faced with a factual
challenge. OSI, Inc. v. United States, 285 F.3d 947, 951 (11th
Cir. 2002)
II. The Court Does Not Have Jurisdiction to Hear this Matter

Respect for prosecutorial discretion is a well-established
feature of our nation's judicial process. See United States v.
Batchelder, 442 U.S. 114, 124 (1979) ("Whether to prosecute and
what charge to file or bring before a grand jury are decisions
that generally rest in the prosecutor's discretion.");
Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868) ("Public
prosecutions, until they come before the court to which they are
returnable, are within the exclusive direction of the district
attorney . . •"). Today, absolute prosecutorial immunity extends
to "acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur
in the course of his role as an advocate for the State." Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993).

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Defendant relies on its prosecutorial immunity not as a
defense to a direct challenge, but rather as the basis for
establishing that the United States, which is traditionally
immune from suit, has not waived this immunity for the type of
claim Plaintiff brings here: a tort claim arising from an AUSA's
decision to not initiate a grand jury investigation at
Plaintiff's request. If the United States has not waived its
sovereign immunity as to claims of this nature, then this Court
does not have jurisdiction to hear the case.
"The United States, as sovereign, is immune from suit save
where it consents to be sued . . . •" United States v. Sherwood,
312 U.S. 584, 586 (1941) . Sovereign immunity is not merely a
defense on the merits—it eliminates a court's jurisdiction to
hear the case in the first instance. As such, if the sovereign
has waived its immunity, the terms of that waiver define the
court's subject matter jurisdiction. See JBP Acquisitions, LP v.
United States ex rel. FDIC, 224 F.3d 1260, 1263-64 (11th Cir.
2000). A waiver of sovereign immunity "must be strictly
construed in favor of the United States." Id. (quoting McNeily
v. United States, 6 F.3d 343, 347 (5th Cir. 1993)).
The United States has waived its sovereign immunity in
certain circumstances, which are enumerated in the Federal Tort
Claims Act. See 28 U.S.C. §§ 1346(b), 2671 et seq. However,
where an exception to that waiver applies, the United States
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retains its sovereign immunity. See, e.g., U.S. Aviation
Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th
Cir. 2009) ("When the discretionary function exception to the
FTCA applies, no federal subject matter jurisdiction exists.").
The FTCA specifically does not apply to:
Any claim based upon an act or omission of an employee
of the Government, exercising due care, in the
execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the
exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part
of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.
28 U.S.C. § 2680(a). Courts perform a two-part test to determine
whether challenged conduct falls within the discretionary
function exception. First, the discretionary function exception
will not apply "if a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow." United States v. Gaubert, 499 U.S. 315, 322 (1991).
Second, if the court determines that no federal statute,
regulation, or policy specifically prescribes a course of
action, the court must then consider whether the challenged
conduct "is of the kind that the discretionary function
exception was designed to shield." Id. at 322-23.
Here, there is no federal statute, regulation, or policy
specifically requiring a federal prosecutor to initiate a grand
jury investigation, or take any other step towards prosecution,

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at a private party's insistence. As the Defendant has shown, a
federal prosecutor's decision to pursue, or not pursue, a case
involves a case-by-case balancing of various policy concerns.
The decision in a particular case is not mandated by statute,
but is rather determined by the prosecutor's sound discretion.
In fact, AUSA Mayers stated that his decision to deny
Plaintiff's request was based on the exercise of his "discretion
as an Assistant United States Attorney and made in consultation
with other members of the United States Attorney's office."
Mayes Aff. ¶ 9.
Additionally, the discretionary function exception in the
FTCA was designed to shield precisely this type of prosecutorial
discretion. As other courts have observed, the Government's
approach to enforcing criminal statutes implicates national
policy. "If the government could [be] held liable for
prosecuting or failing to prosecute such a case, its choices in
this area could quite conceivably be affected by such a suit.
Thus, a policy decision of the federal government might be
influenced by a plaintiff with no governmental responsibility."
Smith v. United States, 375 F.2d 243, 247 (5th Cir. 1967)
"Prosecutorial decisions as to whether, when and against whom to
initiate prosecution are quintessential examples of governmental
discretion in enforcing the criminal law, and, accordingly,
courts have uniformly found them to be immune under the
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discretionary function exception." Gray v. Bell, 712 F.2d 490,
513 (D.C. Cir. 1983)
Thus, it is clear that Defendant's decision not to pursue a
grand jury indictment at Plaintiff's request does not give rise
to a cause of action under the FTCA, as the discretionary
function exemption exempts prosecutorial decisions from the
United States' waiver of its sovereign immunity. The FTCA, then,
does not apply here, and Defendant's sovereign immunity strips
this Court of jurisdiction to hear Plaintiff's case. The case is
DISMISSED.
III. Plaintiff's Request for the Court to Interpret Her Pro Se
Complaint Liberally

As the Court outlined in the "Procedural Background"
section above, Plaintiff never directly responded to Defendant's
legal arguments, but rather implored the court to hold her pro

se pleadings to a less stringent standard. See Dkt. no. 13. In
support of this request, Plaintiff notes that the "Federal Rules
of Civil Procedure are meant as a vehicle 'to facilitate a propr
decision on the merits,' not as a 'game of skill in which one
misstep . . . may be decisive." Id. at 1 (quoting Conley v.
Gibson, 355 U.S. 41, 48 (1957)).
The Court would like to make clear that Plaintiff's claim
does not fail because of some procedural misstep. As the
preceding discussion has shown, Plaintiff's claim fails because

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this Court does not have jurisdiction to consider it. This case,
then, was doomed from its inception. Plaintiff's Complaint
alleges a claim which the Court does not have jurisdiction to
consider, and no amount of liberal interpretation can convert
that claim into something which the Court has any power to
adjudicate.
CONCLUSION

The United States has not waived its sovereign immunity
from claims like Plaintiff's. As such, this Court does not have
subject matter jurisdiction over the claim, and must GRANT
Defendant's Motion to Dismiss for lack of subject matter
jurisdiction (Dkt. no. 10). Plaintiff's Motion to Change Venue
(Dkt. no. 6) is DENIED AS MOOT.

SO ORDERED, this 15TH day of June, 2015.

LISA GODBEY 1400D, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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