Lewis v. Department of Homeland Security

Filing 26

ORDER & REASONS re dft's 13 Motion to Dismiss: Because the Court does not have jurisdiction over plaintiff's lawsuit, the Court GRANTS defendant's motion and DISMISSES plaintiff's claims without prejudice. Signed by Chief Judge Sarah S. Vance on 1/31/2012. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIELLE LEWIS

CIVIL ACTION

VERSUS

NO: 11-2137

JANET NAPOLITANO, SECRETARY,
DEPARTMENT OF HOMELAND
SECURITY

SECTION: R(1)

ORDER AND REASONS
Before the Court is defendant Janet Napolitano’s motion to
dismiss.1

Because the Court lacks jurisdiction over plaintiff’s

claims, defendant’s motion is GRANTED.

I.

BACKGROUND
Plaintiff Danielle Lewis worked as a Transportation Security

Officer for the Transportation Security Administration (“TSA”) at
the New Orleans airport between November 2008 and May 2009.
Plaintiff alleges that Rufus Davison, the Assistant Federal
Security Director, sexually harassed her in her workplace during
the period of her employment.

According to Lewis, Davison

physically groped her and made offensive sexual remarks directed
toward her.

Plaintiff contends that she did not report the

conduct immediately because Davison threatened her with
termination.

1

After learning that other female employees had

R. Doc. 13.

filed complaints reporting similar behavior, Lewis filed a
complaint with the Federal Security Director about Davis’s
harassment on July 1, 2010.
On August 29, 2011, Lewis filed a complaint in federal
court.2

She alleges that Davison committed sexual battery,

battery, and threatened to terminate her employment.

Plaintiff

argues that the defendant, Napolitano, is liable under the
Federal Tort Claims Act (“FTCA”) for Davison’s conduct, and for
the infliction of emotional distress caused by Davison’s conduct,
because it failed to prevent or stop Davison’s conduct.
Plaintiff also contends that the defendant is liable for failing
to follow the Department of Homeland Security’s sexual harassment
policy, for creating a hostile work environment, and for failing
to appropriately address Lewis’s complaint.
The defendant filed a motion to dismiss plaintiff’s
complaint.3

First, defendant argues that this Court does not

have jurisdiction over the case because the Department of
Homeland Security is not the proper defendant under the FTCA.
Further, the defendant asserts that even if the plaintiff amended
the complaint to name the United States as the sole defendant,
the Court would still lack jurisdiction over plaintiff’s
intentional tort claims because they are not covered by the FTCA.

2

R. Doc. 1.

3

R. Doc. 13.
2

Finally, the defendant argues that plaintiff’s exclusive remedy
for her alleged injuries is the Federal Employees’ Compensation
Act (“FECA”).

II.

STANDARD
Federal courts are courts of limited jurisdiction and

possess power over only those cases authorized by the United
States Constitution and federal statutes.
244, 248 (5th Cir. 1996).

Coury v. Prot, 85 F.3d

If a district court lacks jurisdiction

over the subject matter of a plaintiff’s claims, dismissal is
required.

See FED. R. CIV. P. 12(b)(1).

The lack of subject

matter jurisdiction may be raised at any time during the pendency
of the case by any party or by the court.

See Kontrick v. Ryan,

540 U.S. 443, 456 (2004)(“A litigant generally may raise a
court’s lack of subject-matter jurisdiction at any time in the
same civil action, even initially at the highest appellate
instance.”); McDonal v. Abbott Labs, 408 F.3d 177, 182 n.5 (5th
Cir. 2005)(“[A]ny federal court may raise subject matter
jurisdiction sua sponte.”).
In ruling on a Rule 12(b)(1) motion to dismiss, the court
may rely on (1) the complaint alone, presuming the allegations to
be true, (2) the complaint supplemented by undisputed facts, or
(3) the complaint supplemented by undisputed facts and by the
court’s resolution of disputed facts.
3

Den Norske Stats

Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.
2001); see also Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).

The party asserting jurisdiction bears the

burden of establishing that the district court possesses
jurisdiction.
Cir. 2001).

Ramming v. United States, 281 F.3d 158, 161 (5th

A court’s dismissal of a case for lack of subject

matter jurisdiction is not a decision on the merits, and the
dismissal does not ordinarily prevent the plaintiff from pursuing
the claim in another forum.

See Hitt v. City of Pasadena, 561

F.2d 606, 608 (5th Cir. 1977).

III. DISCUSSION
A. United States as Sole Defendant
The Federal Tort Claims Act is a limited waiver of the
immunity of the United States as a sovereign.
2671-80.

28 U.S.C. §§ 1346,

FTCA claims may be brought against only the United

States “and not the responsible agency or employee.”

Galvin v.

Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir.
1988); 28 U.S.C. §§ 2679(a), (b)(1) (providing that the FTCA does
not authorize suits against federal agencies or federal employees
acting within the scope of their employment).

When a plaintiff

files an FTCA claim against a federal agency or employee, that
claim must be dismissed for lack of jurisdiction.

See Galvin,

860 F.2d at 183 (“Thus, an FTCA claim against a federal agency or
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employee as opposed to the United States itself must be dismissed
for want of jurisdiction.”).

Here, plaintiff asserted her FTCA

claims against Janet Napolitano, the Secretary of the Department
of Homeland Security.

Accordingly, the Court does not have

jurisdiction over plaintiff’s suit.
B. Intentional Tort Exceptions to the FTCA
Even if the plaintiff amended her complaint to name the
United States as the sole defendant, the Court still would not
have jurisdiction over her claims because the conduct underlying
plaintiff’s claims falls within the intentional tort exception to
the FTCA.
The FTCA vests district courts with exclusive jurisdiction
over “civil actions on claims 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”.

28 U.S.C. § 1346(b)(1).

The FTCA “is a limited waiver of sovereign immunity that subjects
the United States to liability to the same extent as a private
party”.

Tindall by Tindall v. United States, 901 F.2d 53, 55

(5th Cir. 1990).

The plaintiff bears the burden of showing

“Congress’s unequivocal waiver of sovereign immunity.”

Spotts v.

United States, 613 F.3d 559, 568 (5th Cir. 2010)(citing Kokkonen
v. Guardian of Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

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Several exceptions limit the waiver of sovereign immunity under
the FTCA.

One such exception is the intentional tort exception,

which bars suits brought against the United States for claims
“arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.”
28 U.S.C. § 2860(h).

Exceptions to the FTCA are to be strictly

construed in favor of the Government.

McNeily v. United States,

6 F.3d 343, 347 (5th Cir. 1993).
In determining whether the plaintiff’s claims arise out of
the enumerated exceptions, the Court examines “the conduct upon
which the plaintiff’s claim is based.”
26 F.3d 591, 594 (5th Cir. 1994).

Truman v. United States,

A plaintiff’s claim, even if

styled so that it is not listed in Section 2680(h), “is still
barred when the underlying governmental conduct essential to the
plaintiff’s claim can fairly be read to arise out of conduct that
would establish an excepted cause of action.”

Id. (citing

McNeily, 6 F.3d at 347)(internal quotations omitted).

In other

words, if the conduct alleged by Lewis “arises out of” the
assault or battery of a government employee, the federal courts
have no jurisdiction to hear her claims.

Id.

Plaintiff asserts

claims for battery, sexual battery, sexual harassment,
negligence, negligent hiring, negligent supervision, and
intentional infliction of emotional distress.

6

Plaintiff’s claim of battery is explicitly excepted from
FTCA coverage by the language of Section 2680(h).

See 28 U.S.C.

§ 2680(h) (suits brought against the United States for claims
“arising out of... battery” are exceptions to FTCA coverage).
Plaintiff’s claim of sexual battery similarly falls outside the
reach of the FTCA.

See Garcia v. United States, 776 F.2d 116,

116-17 (5th Cir. 1985) (holding that allegations of sexual
misconduct or assault fall within the enumerated exclusions of
Section 2680(h) because they amount to “assault” or “battery”).
The Court also lacks jurisdiction over plaintiff’s claims of
negligence, negligent hiring, and negligent supervision.
“[F]raming [a] complaint in terms of [the government’s] negligent
failure to prevent the excepted harm” does not allow a plaintiff
to circumvent the enumerated exceptions to the FTCA.
95 (quoting McNeily, 6 F.3d at 347).

Id. at 594-

Plaintiff’s claims of

negligence are predicated upon conduct that constitutes battery,
a tort enumerated in § 2680(h).

See Id. (holding that the

federal courts have no jurisdiction to hear a claim for negligent
supervision of a government employee who committed sexual
assault).

Accordingly, these claims do not escape the reach of

Section 2680(h).
Finally, plaintiff’s claim of intentional infliction of
emotional is excludable under Section 2680(h).

In Truman, the

Fifth Circuit considered an Air Force Base employee’s claim of

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intentional infliction of emotional distress stemming from sexual
harassment.

The plaintiff in that case alleged that the

defendant made numerous sexual insults, comments and innuendos
that damaged her and caused her to suffer mental anguish and
anxiety.

The Fifth Circuit concluded that the alleged sexual

harassment did not constitute assault or battery because there
was never an “offensive contact” or “imminent apprehension of
harmful or offensive contact.

Truman, 26 F.3d a 596.

As a

result, the Court found that plaintiff’s claim of intentional
infliction of emotional distress could not be characterized as
“arising out of” conduct that constituted assault or battery.
Here, by contrast, the underlying conduct did involve offensive
contact.

Lewis alleges that Davison “physically groped...her

buttocks....while [he] was making offensive sexual remarks to
her”.4

Further, she predicates liability for her intentional

infliction of emotional distress claim on Davison’s offensive
touching and remarks.

Accordingly, the conduct underlying

plaintiff’s claim of intentional infliction of emotional distress
arises out of conduct that constitutes a tort enumerated in
Section 2680(h).

See Stidham v. United States, 252 F.3d 434,

2001 WL 360682, at *1 (5th Cir. Mar 13, 2001) (distinguishing
Truman and holding that the exceptions in Section 2680(h) barred
plaintiff’s claim for intentional infliction of emotional

4

R. Doc. 1 at 2.
8

distress because the alleged underlying conduct involved sexual
contact); Dardar v. Potter, 2004 WL 422008 (E.D. La. Mar. 4,
2004) (finding that because, unlike in Truman, the underlying
conduct included “words accompanied by threatened and actual
offensive contact”, the United States could not be liable for
intentional infliction of emotional distress).

Because the

intentional tort exception to the FTCA applies, the Court does
not have jurisdiction over plaintiff’s claims.
C. Law Enforcement Proviso
Section 2680(h) contains a law enforcement proviso which
provides that sovereign immunity is waived for “acts or omissions
of investigative or law enforcement officers of the United States
Government.”

28 U.S.C. § 2680(h).

The FTCA defines an

“investigative or law enforcement officer” as “any officer of the
United States who is empowered by law to execute searches, to
seize evidence, or to make arrests for violations of Federal
law.”

Id.

In order to be considered a law enforcement officer

for purposes of the FTCA, the government employee must be
“engaged in investigative or law enforcement activities.”

Cross

v. United States, 159 Fed. Appx. 572, 576 (holding that soldiers
were acting in a security capacity and not a law enforcement
capacity for FTCA purposes when they stopped plaintiff) (quoting
Employers Ins. of Wausa v. United States, 815 F.Supp. 255, 259
(N.D. Ill. 1993)).

This construction “avoids converting the

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statutory proviso into one that is triggered by mere status
rather than by actual conduct.”

Employers Ins., 815 F.Supp. at

259.
Lewis argues that the exceptions of Section 2680(h) do not
apply to her claims because the offending government employees
are law enforcement officers.

Lewis, however, does not allege

that Davison, or any other TSA employee, was investigating or
otherwise engaged in law enforcement activities when the alleged
conduct occurred.5

See Devillier v. United States, 2010 WL

476722, at *5 (W.D. La. Feb. 10, 2010) (finding that correctional
officer, in attempting to stop an assault on an inmate, was not
acting as a law enforcement officer when plaintiff did not allege
that the officer “was arresting him or investigating anything”).
Accordingly, the conduct does not fall within the law enforcement
proviso, and the intentional tort exception to the FTCA applies
to this suit.

5

In any event, the Government indicates that Davison did
not have the power to execute searches, to seize evidence, or to
make arrests for violations of federal law. See R. Doc. 25 at 2.
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IV.

CONCLUSION
Because the Court does not have jurisdiction over

plaintiff’s lawsuit, the Court GRANTS defendant’s motion and
DISMISSES plaintiff’s claims without prejudice.

New Orleans, Louisiana, this 31st day of January, 2012.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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