Taylor et al v. United States Office of Personnel Management et al
Filing
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ORDER DENYING MOTION FOR RECONSIDERATION re 45 , 51 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/23/2015. (emt, )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). Scarlett A. Taylor and Chanel E. Taylor served by first class mail at the address of record on January 23, 2015.
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 DENYING MOTION FOR
RECONSIDERATION
ORDER DENYING MOTION FOR RECONSIDERATION
I.
INTRODUCTION.
Plaintiffs Scarlett A. Taylor and Chanel E. Taylor
(collectively, “Plaintiffs”) filed a “Motion – Plaintiffs’
Objection to Order Granting the Federal Defendants’ Motion to
Dismiss.”
See ECF No. 51.
The court has construed the document
as a motion for reconsideration.
See ECF No. 52.
This court dismissed claims against 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”).
See ECF No. 45.
Dismissal was based on Plaintiffs’ failure to seek administrative
resolution of their claims against the Federal Defendants prior
to filing suit in this court.
Plaintiffs’ motion for
reconsideration is denied.1
II.
STANDARD.
Plaintiffs seek reconsideration of an interlocutory
order.
That is, Plaintiffs seek reconsideration of an order that
granted dismissal of some claims while leaving others for future
adjudication.
Accordingly, the reconsideration motion is
governed by Local Rule 60.1, under which motions for
reconsideration of interlocutory orders can be brought only upon
the following grounds: (1) an intervening change in controlling
law; (2) the discovery of new evidence not previously available;
and (3) the need to correct clear or manifest error in law or
fact in order to prevent manifest injustice.
Wereb v. Maui
Cnty., 830 F. Supp. 2d 1026, 1031 (D. Haw. 2011).
“Mere
disagreement with a previous order is an insufficient basis for
reconsideration.”
(D. Haw. 2006).
White v. Sabatino, 424 F. Supp. 2d 1271, 1274
“Whether or not to grant reconsideration is
committed to the sound discretion of the court.”
Id. (internal
quotation marks omitted).
Plaintiffs do not identify the basis for their motion
for reconsideration, although it appears that Plaintiffs seek
1
This court exercises its discretion under Local Rule 7.2(d)
to decide this motion without a hearing.
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reconsideration to correct alleged errors in law or fact.
III.
ANALYSIS.
Plaintiffs make a number of arguments as to why they
believe reconsideration is warranted, but none is persuasive.
The court addresses each of those arguments in turn.
Plaintiffs object to this court’s adjudication of the
Federal Defendants’ motion to dismiss without a hearing.
Under
Local Rule 7.2(d), “the court, in its discretion, may decide all
matters, including motions, petitions, and appeals, without a
hearing.”
No error results from the court’s exercise of its
discretion under Local Rule 7.2(d) to decide motions without a
hearing.
Reconsideration, therefore, is not warranted on that
basis.
Plaintiffs also argue that the hearing scheduled for
January 5, 2015, was “summarily dismissed without notification to
the Plaintiffs.”
ECF No. 51, PageID # 568.
The court noted on
December 30, 2014, however, that it would be deciding the Federal
Defendants’ motion to dismiss on a nonhearing basis and that the
hearing scheduled for January 5, 2015, would not be held.
ECF No. 44.
See
This court’s order on January 2, 2015, granting the
Federal Defendants’ motion to dismiss also explained that the
motion was being decided on a nonhearing basis.
PageID # 452.
See ECF No. 45,
Under such circumstances, there is no support for
Plaintiffs’ claim that they failed to receive notice that the
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January 5, 2015, hearing had been cancelled.
Additionally, even
assuming that Plaintiffs did not receive such notice, Plaintiffs
do not demonstrate how that failure would entitle them to
reconsideration.
Plaintiffs also object to this court’s issuance of its
order granting the Federal Defendants’ motion to dismiss before
receiving Plaintiffs’ motions objecting to the lack of a hearing
and objecting to the Federal Defendants’ reply memorandum.
ECF No. 51, PageID # 564.
See
Those motions had not been received in
the judge’s chambers before the order granting dismissal was
filed, but the court noted shortly after receipt of the motions
that both were denied.
See ECF No. 48.
Plaintiffs fail to show
any error in this court’s denial of those motions.
With respect to Plaintiff’s motion objecting to the
lack of a hearing, the court has already noted that Local Rule
7.2(d) specifically permits adjudication of motions on a
nonhearing basis.
With respect to Plaintiffs’ other motion,
Plaintiffs were not entitled to file a written response to the
Federal Defendants’ reply memorandum.
Local Rule 7.4 provides
for an opposition and for a reply and states, “No further or
supplemental briefing shall be submitted without leave of court.”
The court, therefore, was under no obligation to refrain from
issuing its order until after it had received Plaintiffs’
objection to the Federal Defendants’ reply memorandum.
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Further,
as this court noted in denying the motion objecting to the reply
memorandum, the information contained in that motion does not
demonstrate that Plaintiffs satisfied the statutory requirements
necessary to pursue their claims against the Federal Defendants
in this court.
While Plaintiffs attached documents evidencing
communication with various federal officials, none of those
documents shows that Plaintiffs presented their tort claim
against the Federal Defendants in accordance with the
requirements of the Federal Tort Claims Act (“FTCA”).
Plaintiffs also seek reconsideration based on their
belief that the order granting the Federal Defendants’ motion to
dismiss was drafted by the Federal Defendants’ attorney, Edric
Ching.
Plaintiffs’ argument is wholly unsupported.
The order
granting the Federal Defendants’ motion to dismiss was drafted by
this court in this court’s chambers and filed by this court.
Edric Ching had no hand in preparing or filing the order, and
Plaintiffs’ allegations of misconduct by Edric Ching are
unfounded.
Plaintiffs may be questioning the conduct of the
Federal Defendants’ attorney based, in part, on a misconception
as to the nature of the document granting the Federal Defendants’
motion to dismiss.
In their motion for reconsideration,
Plaintiffs state that the Federal Defendants’ attorney “[is]
abusing the Judge’s proposal process by not submitting the
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proposal to the Plaintiffs for review before submitting it to the
Judge.”
ECF No. 51, PageID # 569.
This and other statements in
the motion for reconsideration suggest that Plaintiffs may be
viewing the order granting the Federal Defendant’s motion to
dismiss as a proposal.
No proposed order was entertained by this
court in granting the Federal Defendants’ motion to dismiss.
This court itself issued the order of January 2, 2015, without
offering any party an opportunity to revise or edit the order.
When a judge writes an order, the judge need not follow the
procedure set forth in Local Rule 58.2, which addresses the
situation in which a prevailing party prepares a proposed order
and sends it to the opposing party, who may submit objections.
This judge filed an order that took effect upon filing; it was
not proposed, did not need to be circulated to the parties to
obtain their objections, and did not invite their comments.
In seeking reconsideration, Plaintiffs also appear to
argue that this court mistakenly concluded that it lacked subject
matter jurisdiction because (1) Plaintiffs’ alleged damage
occurred in the Hickam Air Base Office of Personnel Management in
the State of Hawaii; (2) the basis for the Complaint is “fact,”
not “allegation”; and (3) the cases cited by the court in
outlining the standard under Rule 12(b)(1) of the Federal Rules
of Civil Procedure show that this court has subject matter
jurisdiction.
ECF No. 51, PageID # 566-67.
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None of these
arguments establishes that reconsideration is warranted.
With respect to the first argument, the court concluded
in its order granting the Federal Defendants’ motion to dismiss
that it lacked jurisdiction because Plaintiffs had failed to
present their claims against the Federal Defendants for
administrative resolution in accordance with the FTCA.
This
court’s ruling did not turn on where Plaintiffs’ alleged damage
occurred.
With respect to the second argument, Plaintiffs appear
to be reading the cases the court cited to distinguish between
facial and factual challenges under Rule 12(b)(1) of the Federal
Rules of Civil Procedure as requiring Plaintiffs to state whether
their Complaint is based on “allegation” or “fact.”
51, PageID # 567.
See ECF No.
Those cases impose no such requirement, and
this court nowhere suggested that the cases imposed such a
requirement.
As noted in this court’s order granting the Federal
Defendants’ motion to dismiss, 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,” while
a factual attack “disputes the truth of the allegations that, by
themselves, would otherwise invoke federal jurisdiction.”
This distinction determines the evidence that the court may
Id.
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consider and the posture the court takes in considering that
evidence when it decides a motion to dismiss for lack of subject
matter jurisdiction.
The court viewed the Federal Defendants’
motion to dismiss as a factual challenge and explained how that
affected the court’s consideration of the motion.
45, PageID # 454.
See ECF No.
Plaintiffs were not required to state whether
their Complaint was based on “allegation” or “fact,” and no error
in this court’s order relates to that issue.
Plaintiffs’ third argument on subject matter
jurisdiction is that the three cases this court cited in
outlining the standard used to evaluate a motion under Rule
12(b)(1) of the Federal Rules of Civil Procedure support the
existence of subject matter jurisdiction in this case.
No. 51, PageID # 567.
See ECF
As previously noted, this court granted
the Federal Defendants’ motion to dismiss based on Plaintiffs’
failure to present their claims against the Federal Defendants
under the FTCA.
The three cases Plaintiffs rely on–-Courthouse
News Service v. Planet, 750 F.3d 776 (9th Cir. 2014); Meyer, 373
F.3d 1035; and Savage v. Glendale Union High School, District No.
205, Maricopa County, 343 F.3d 1036, 1040 (9th Cir. 2003)–-do not
in any way negate this court’s conclusion that Plaintiffs failed
to submit their tort claims against the Federal Defendants for
administrative resolution.
Contrary to Plaintiffs’ assertions, Plaintiffs have
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brought an action against the United States that triggers the
requirements of the FTCA.
Filing suit against agencies of the
United States and employees of United States agencies in their
official capacities is filing suit against the United States.
Because Plaintiffs have commenced an action seeking money damages
from the Federal Defendants based on allegedly wrongful conduct
by federal agents acting within the scope of their employment,
Plaintiffs are required to present their claims to the
appropriate federal agency in accordance with 28 U.S.C.
§ 2675(a).
As noted in this court’s order granting the Federal
Defendants’ motion to dismiss, 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 must comply with this
requirement regardless of whether anybody previously informed
them of it.
Plaintiffs do not demonstrate any clear or manifest
error in law or fact in this court’s order concluding that
Plaintiffs failed to comply with 28 U.S.C. § 2675(a) prior to
filing suit in this court.
This court assures Plaintiffs that,
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contrary to their assertions, this conclusion has nothing to do
with their pro se status.
The crux of this court’s earlier order
is that this court is bound by a federal statute that requires
claimants alleging wrongful conduct by federal employees of the
nature alleged by Plaintiffs to seek to resolve the matter
administratively before coming to court.
While Plaintiffs
clearly sought to recover insurance proceeds before coming to
court, that is simply not the same as seeking administrative
resolution of FTCA claims against the Federal Defendants.
Any arguments in Plaintiffs’ motion regarding the
merits of the underlying dispute have been disregarded.
This
court has determined that it lacks jurisdiction over Plaintiffs’
claims against the Federal Defendants, and Plaintiffs have not
shown any error in that conclusion.
Because this court lacks
jurisdiction over the claims against the Federal Defendants, it
may not entertain any argument as to the merits of those claims.
Plaintiffs’ remaining contentions are unpersuasive.
IV.
CONCLUSION.
Plaintiffs’ motion for reconsideration is denied.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 23, 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 DENYING MOTION FOR RECONSIDERATION
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