Taylor et al v. United States Office of Personnel Management et al

Filing 45

ORDER GRANTING THE FEDERAL DEFENDANTS' MOTION TO DISMISS re: 37 . Signed by JUDGE SUSAN OKI MOLLWAY on 1/2/2015.Excerpt of Conclusion: "All claims in Plaintiffs' Complaint asserted against the Federal Defendants are dismissed without prejudice to Plaintiffs' pursuit of those claims administratively to the extent such pursuit is not untimely and is allowed by law. This order leaves for further adjudication the claims agai nst Defendant MetLife Insurance Company and Doe Defendants." (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SCARLETT A. TAYLOR, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OFFICE OF
)
PERSONNEL MANAGEMENT, et al., )
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00107 SOM/BMK
ORDER GRANTING THE FEDERAL
DEFENDANTS’ MOTION TO DISMISS

ORDER GRANTING THE FEDERAL DEFENDANTS’ MOTION TO DISMISS
I.

INTRODUCTION.
Plaintiffs Scarlett A. Taylor and Chanel E. Taylor

(collectively, “Plaintiffs”) are suing over life insurance
benefits they allege are payable in connection with the death of
James P. Taylor, who was a federal employee.
Defendants United States Office of Personnel Management
(“OPM”); Katherine Archuleta, in her official capacity as OPM
Management Director; Patrick E. McFarland, in his official
capacity as OPM Inspector General; Timothy Watkins, in his
official capacity as Counsel to the OPM Inspector General; Hickam
Air Base OPM Office Supervisor; Cynthia Miike, in her official
capacity as Hickam Air Base OPM Agent; and Federal Employees
Group Life Insurance (“FEGLI”) (collectively, the “Federal
Defendants”) move to dismiss the claims asserted against them in
the Complaint.

The motion to dismiss is granted because

Plaintiffs’ failure to submit their claim for administrative

resolution deprives this court of jurisdiction.
This court exercises its discretion under Local Rule
7.2(d) to decide this motion without a hearing.

That is, the

hearing previously scheduled for January 6, 2015, is cancelled,
as the written record in this case is sufficient to permit this
court to rule without oral argument.
II.

FACTUAL BACKGROUND.
On March 4, 2014, Plaintiffs filed their Complaint in

this court against the Federal Defendants1 and MetLife Insurance
Company (collectively, the “Defendants”).

See ECF No. 1.

Plaintiffs allege that the Federal Defendants improperly paid
James Patrick Taylor’s life insurance benefits to his then-wife,
Elisa M. Omeechevarria, rather than to Plaintiff Scarlett A.
Taylor, James Taylor’s previous wife and the guardian of Chanel
E. Taylor, James Taylor and Scarlett Taylor’s daughter.
PageID # 5-8.

Id.,

Plaintiffs contend that they were injured because

the Federal Defendants failed: (1) to verify the authenticity of
a change of beneficiary form submitted by Ms. Omeechevarria; (2)
to recognize a conspiracy to fraudulently obtain Mr. Taylor’s
insurance benefits; (3) to verify Ms. Omeechevarria’s Social

1

Although Plaintiffs name FEGLI as a Defendant, it is not
clear that FEGLI is an entity that can be sued. FEGLI may be
merely a product offered to federal employees by the federal
government, and it may be that Plaintiffs should restrict their
claims to the public and private entities that administer FEGLI,
rather than to the life insurance product.
2

Security number; and (4) to adequately train their employees.
Id., PageID # 10-13.

In listing alleged damages, Plaintiffs also

appear to be complaining that they should have received other
benefits, including James Taylor’s retirement benefits.
PageID # 14-16.

Id.,

Plaintiffs request $4,294,612.88 in damages

against Defendants.

Id., PageID # 18.

The Federal Defendants move to dismiss all claims
against them under Rule 12(b)(1) of the Federal Rules of Civil
Procedure.

See ECF No. 37.

The Federal Defendants contend that

this court lacks subject matter jurisdiction over Plaintiffs’
claims against them because Plaintiffs failed to exhaust their
administrative remedies.
III.

ECF No. 37, PageID # 395.

STANDARD.
Under Rule 12(b)(1) of the Federal Rules of Civil

Procedure, a complaint may be dismissed for lack of subject
matter jurisdiction.
An attack on subject matter jurisdiction “may be facial
or factual.”

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

(9th Cir. 2004).

A facial attack asserts that “the allegations

contained in a complaint are insufficient on their face to invoke
federal jurisdiction.”

Id.

A factual attack, on the other hand,

“disputes the truth of the allegations that, by themselves, would
otherwise invoke federal jurisdiction.”

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Id.

If the moving party makes a facial challenge, the
court’s inquiry is “confin[ed] . . . to allegations in the
complaint.”

Savage v. Glendale Union High Sch., Dist. No. 205,

Maricopa Cnty., 343 F.3d 1036, 1040 (9th Cir. 2003).
allegations are taken by the court as true.

Those

Courthouse News

Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014).
If the moving party makes a factual challenge, as here,
the court may consider evidence beyond the complaint and the
court “need not presume the truthfulness of the plaintiff’s
allegations.”

Meyer, 373 F.3d at 1039.

“Once the moving party

has converted the motion to dismiss into a factual motion by
presenting affidavits or other evidence properly brought before
the court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of establishing
subject matter jurisdiction.”

Id. (quoting Savage, 343 F.3d at

1039 n. 2) (internal quotation marks omitted).
IV.

ANALYSIS.
Actions against the United States can be brought only

to the extent the sovereign immunity of the United States has
been waived.
Cir. 1995).

Valdez v. United States, 56 F.3d 1177, 1179 (9th
The Federal Tort Claims Act (“FTCA”) waives the

sovereign immunity of the United States for certain tort claims
arising out of conduct by government employees.

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Id.

Under the FTCA, before filing a tort action against the
United States in court, an individual “must seek an
administrative resolution of her claim.”
States, 966 F.2d 517, 518 (9th Cir. 1992).

Jerves v. United
Under the FTCA:

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. The
failure of an agency to make final
disposition of a claim within six months
after it is filed shall, at the option of the
claimant any time thereafter, be deemed a
final denial of the claim for purposes of
this section.
28 U.S.C. § 2675(a).

A claim is considered presented in

accordance with 28 U.S.C. § 2675(a) if a party files “(1) a
written statement sufficiently describing the injury to enable
the agency to begin its own investigation, and (2) a sum certain
damages claim.”

Blair v. I.R.S., 304 F.3d 861, 864 (9th Cir.

2002) (quoting Warren v. United States Dep’t of Interior Bureau
of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984)) (internal
quotation marks omitted).
Plaintiffs have failed to comply with 28 U.S.C.
§ 2675(a) prior to filing suit in this court.

Plaintiffs are

seeking money damages from the Federal Defendants as a result of
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allegedly wrongful conduct by federal employees acting within the
scope of their employment, and are thus bound by the requirements
imposed by 28 U.S.C. § 2675(a).
Plaintiffs nowhere contend or suggest that they have
presented their claims to any agency in compliance with the FTCA.
Instead, they appear to acknowledge that they have not done so.
See ECF No. 40, PageID # 422.

The declarations provided by the

Federal Defendants indicate that neither the Air Force nor the
Office of Personnel Management has any record of any claim
presented by Plaintiffs pursuant to the FTCA.
ECF No. 37-3.

See ECF No. 37-2;

At most, Plaintiffs question why they should

submit a claim to the Air Force relating to a civil service
employee and assert that the Office of Personnel Management was
derelict in failing to discern that Mr. Taylor’s signature on the
change of beneficiary form “was forged.”
# 414.

ECF No. 29, PageID

These arguments do not address the statutory requirement

that the Taylors submit their claim for administrative
resolution.
This is not a requirement that the Taylors can look to
any court to waive.

Congress has imposed this requirement, and

the Taylors must comply with it.

They may not commence an action

in this court without such compliance.
Because Plaintiffs have not presented their claims
against the Federal Defendants for administrative resolution by

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the appropriate federal agency in accordance with the FTCA, this
court lacks subject matter jurisdiction over those claims.

This

ruling is consistent with Burns v. United States, 764 F.2d 722
(9th Cir. 1985), in which the Ninth Circuit affirmed the district
court’s ruling that a plaintiff’s failure to file a sufficient
administrative claim alleging medical malpractice against a
Veteran’s Administration hospital deprived the court of subject
matter jurisdiction.

Id. at 723.

As the Ninth Circuit said,

“The claim requirement of section 2675 is jurisdictional in
nature and may not be waived.”

Id. at 724; see also Johnson v.

United States, 704 F.2d 1431, 1442 (9th Cir. 1983) (“Exhaustion
of the claims procedures established under the Act is a
prerequisite to district court jurisdiction.”).
V.

CONCLUSION.
The Federal Defendants’ motion to dismiss is granted.

All claims in Plaintiffs’ Complaint asserted against the Federal
Defendants are dismissed without prejudice to Plaintiffs’ pursuit
of those claims administratively to the extent such pursuit is
not untimely and is allowed by law.

This order leaves for

further adjudication the claims against Defendant MetLife
Insurance Company and Doe Defendants.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 2, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Taylor, et al. v. United States Office of Personnel Management, et al., Civ.
No. 14-00107 SOM/BMK; ORDER GRANTING THE FEDERAL DEFENDANTS’ MOTION TO DISMISS

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