Fleming et al v. Department of Homeland Security

Filing 25

ORDER and REASONS granting 16 Motion to Dismiss for Lack of Jurisdiction as stated within document. Signed by Judge Kurt D. Engelhardt on 4/4/2012. (cab)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACKIE FLEMING, ET AL

CIVIL ACTION

VERSUS

NO. 11-2147

JANET NAPOLITANO, SECRETARY
DEPARTMENT of HOMELAND
SECURITY

SECTION “N” (2)

O R D E R AND REASONS
Before the Court is the “Motion to Dismiss” (Rec. Doc. 16), filed by Defendant Janet
Napolitano, Secretary, Department of Homeland Security (“Defendant”). This motion is opposed
by Plaintiffs Jackie Fleming and Rudolph Fleming (“Plaintiffs”) (Rec. Doc. 21). After considering
the memoranda filed by the parties, including Defendant’s Reply Memorandum (Rec. Doc. 24), the
Court rules as set forth herein.

I.

BACKGROUND

Plaintiff Jackie Fleming worked as Transportation Security Officer (“TSO”) in the
Transportation Security Administration at the New Orleans airport. Plaintiffs allege that from June
28, 2008 to 2010, Mrs. Fleming was subjected to sexual harassment at the hands of her supervisor,
Assistant Federal Security Director Rufus Davison (“Mr. Davison”). Plaintiffs state in their
complaint that Mr. Davison subjected Mrs. Fleming to unwelcome touching connected with sexual
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advances while also defaming her character by spreading rumors that she had engaged in sexual
activity with him. According to Plaintiffs, Mr. Davison threatened to terminate Mrs. Fleming’s
employment when she complained about his unwelcome sexual advances. Plaintiffs have brought
suit against Defendant because she is the Secretary of the Department of Homeland Security, the
agency that oversees the Transportation Security Administration.

II.

ARGUMENTS OF THE PARTIES

Defendant states that under the Federal Tort Claims Act (“FTCA”), the United States
is the proper defendant in this matter. However, Defendant argues that even if Plaintiffs’ complaint
were amended to name the United States as defendant, the matter must still be dismissed because
Plaintiffs’ claim arises out of an intentional tort for which the government has not waived sovereign
immunity under the FTCA. Because sovereign immunity is jurisdictional, Defendant asserts that
Plaintiffs’ claim must be dismissed for lack of subject matter jurisdiction. Defendant further argues
that Plaintiffs’ exclusive remedy for the tort alleged herein is through the Federal Employees’
Compensation Act (“FECA”).
On the other hand, Plaintiffs argue that if an individual plaintiff would be liable to
Plaintiffs for the torts complained of herein, then the United States may also be held liable.
Plaintiffs claim that, under Louisiana law, the United States is liable for the actions of Mr. Davison.
Plaintiffs further assert that FECA does not provide Ms. Fleming’s exclusive remedy for her injuries
because there is an intentional tort exception in Lousiana’s Workers’ Compensation law. Finally,
Plaintiffs state that Mr. Davison is a law enforcement officer, and that, as such, the intentional tort
exception in the FTCA does not apply to acts committed by him.
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III.

DISCUSSION

A.

Legal Standard

As courts of limited jurisdiction, federal courts have subject matter jurisdiction “over
only those cases authorized by the United States Constitution and federal statutes.” Lewis v.
Napolitano, No. 11-2137, 2012 WL 274415, at *1 (E.D. La. Jan. 31, 2012) (citing Coury v. Prot,
85 F.3d 244, 248 (5th Cir. 1996)). Subject matter jurisdiction may not be waived, and may be
examined at any stage in the pendency of an action upon the motion of a party or by the court sua
sponte. Coury, 85 F.3d at 248; Lewis, 2012 WL 274415, at *1. The burden of demonstrating subject
matter jurisdiction lies with the party invoking federal jurisdiction. Lewis, 2012 WL 274415, at *1
(citing Ramming v. United States, 74 F.3d 158, 161 (5th Cir. 2001)). When considering a motion
to dismiss pursuant to Rule 12(b)(1), the court may look to (1) the complaint alone, (2) the complaint
supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and the
court’s resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th
Cir. 1996). The court considers the complaint alone when a defendant makes a facial attack on the
plaintiff’s complaint by simply filing a Rule 12(b)(1) motion; the allegations in the complaint are
presumed to be true and the court evaluates whether the plaintiff has stated sufficient grounds for
asserting jurisdiction. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). On the other
hand, a defendant may make a factual attack on the complaint by submitting affidavits, testimony,
or other evidence along with his motion to dismiss. Id. A plaintiff responding to a factual attack
must also submit evidence to meet his burden of proving jurisdiction by a preponderance of the
evidence. Id.

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B.

Analysis

1. The United States as Sole Defendant
The FTCA constitutes a limited waiver of sovereign immunity, authorizing suits in
federal court against the United States “for injury . . . 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. The FTCA provides an exclusive remedy for plaintiffs injured by
a government employee’s wrongful or negligent acts or omissions occurring within the scope of his
employment, shielding federal employees from personal liability in these matters. 28 U.S.C. §
2679(b)(1). Suits brought under the FTCA must be brought against the United States, not against
any federal agency. 28 U.S.C. § 2679(a). A suit brought against a federal agency or employee under
the FTCA must be dismissed for lack of jurisdiction. Lewis, 2012 WL 274415, at *2 (citing Galvin
v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988)). Plaintiff herein has
brought suit against Janet Napolitano, Secretary of the Department of Homeland Security, and, as
such, the case must be dismissed.
2. Intentional Tort Exceptions to the FTCA
However, even if Plaintiffs were permitted to amend their complaint to name the
United States as defendant, the Court would still have to dismiss Plaintiffs’ action for lack of
jurisdiction because the conduct alleged by Plaintiffs falls in the intentional tort exception to the
FTCA. Several exceptions limit the FTCA’s waiver of sovereign immunity, and these exceptions
must be strictly construed in favor of the government. Truman v. United States, 26 F.3d 592, 594
(5th Cir. 1996) (citing Atorie Air. Inc. v. Federal Aviation Admin., 942 F.2d 954, 958 (5th Cir.
1991)). The intentional tort exception states that the FTCA does not apply to “[a]ny claim arising
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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. § 2680(h)
(emphasis added).
To determine whether a claim arises out of the intentional torts outlined in the
exception, “the Court examines ‘the conduct upon which the plaintiff’s claim is based.’” Lewis, 2012
WL 274415, at *3 (26 F.3d at 594). “If the conduct upon which a claim is based constitutes a claim
‘arising out of’ any one of the torts listed in section 2680(h), then the federal courts have no
jurisdiction to hear that claim.” Truman, 26 F.3d at 594. While the plaintiff may style a claim in
such a way that it is not listed in section 2680(h), the claim must still be dismissed for lack of
jurisdiction if the conduct giving rise to the claim would be sufficient to state an excepted cause of
action. Lewis, 2012 WL 274415, at *3 (quoting Truman, 26 F.3d at 594). Thus, even when a
plaintiff alleges negligence on the part of the government, the claim may still be barred if the basis
of the negligence is the failure to prevent an employee’s intentional tort. Id. Further, a court must
dismiss a claim arising out of conduct that would constitute a tort enumerated in section 2680(h),
even if the conduct may also establish an unenumerated tort. Truman, 26 F.3d at 594.
Here, Plaintiffs have asserted claims for battery, sexual harassment, slander,
negligence, negligent hiring, negligent supervision, intentional infliction of emotional distress, and
loss of consortium. Plaintiffs’ claims for battery and slander are specifically excepted under the
FTCA. 28 U.S.C. § 2680(h). In addition, Plaintiffs’ negligence claims must be dismissed as they
are based on Defendant’s failure to prevent these intentional torts of Mr. Davison. See Lewis, 2012
WL 274415, at *3 (quoting Truman, 26 F.3d at 594).
While sexual harassment and intentional infliction of emotional distress are not
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mentioned in section 2680(h), such claims are barred when based on conduct that would establish
a tort listed therein. Lewis, 2012 WL 274415, at *3. In Lewis v. Napolitano, Chief Judge Sarah
Vance granted defendant’s motion to dismiss in a case nearly identical to the one at hand. Id. The
plaintiff therein also worked for the Transportation Security Administration at the New Orleans
airport and alleged that she was harassed by Mr. Davison. Id. Because the plaintiff based her claim
on offensive touching and remarks, Chief Judge Vance found that “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).” Id.

Similarly, Plaintiffs herein assert liability for sexual

harassment and intentional infliction of emotional distress resulting from Mr. Davison’s making
inappropriate remarks to Mrs. Fleming, touching her body, and spreading rumors about her. These
allegations establish causes of action for assault, battery, and slander; Plaintiffs’ sexual harassment
and intentional infliction of emotional distress claims must be dismissed as well because they arise
out of actions that would constitute intentional torts enumerated in section 2680(h).
Finally, Plaintiffs contend that Defendant is liable to Mr. Fleming for loss of
consortium. Plaintiffs claim that their marriage suffered as a result of Mr. Davison’s treatment of
Mrs. Fleming; while they had a good sexual relationship prior to Mrs. Fleming’s employment under
Mr. Davison, the conduct of Mr. Davison disturbed Mrs. Fleming such that she was unable to engage
in sexual relations with Mr. Fleming. As with Plaintiffs’ other claims, the loss of consortium
resulted from the battery, assault, and slander committed by Mr. Davison. Section 2680(h) therefore
bars this claim, and it must be dismissed as well.

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3. Law Enforcement Proviso
Section 2680(h) states that while the enumerated intentional torts are generally
excepted, the FTCA does cover claims arising from an investigative or law enforcement officer’s
“assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” 28
U.S.C. § 2680(h). The statute goes on to explain that “‘investigative or law enforcement officer’
means 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.
Plaintiffs contend that this proviso applies here because Mr. Davison is a law
enforcement officer. In response, Defendant submits the affidavit of Larry Austin, who served as
Federal Security Director of the New Orleans airport from August 2008 through December 2010.
Exhibit A to Rec. Doc. 24. Mr. Austin states that Mr. Davison worked under his authority and that
“Mr. Davison was not empowered by law to execute searches, to seize evidence, or to make arrests
for violations of federal law.” Id. Plaintiffs have not submitted any evidence to contradict this
statement made by Mr. Austin; therefore, the only evidence before the court indicates that this Court
may not exercise jurisdiction over this case under the law enforcement proviso. Plaintiffs have thus
failed to meet their burden of proving federal jurisdiction by a preponderance of the evidence and
their claims must be dismissed. Paterson v. Weinberger, 644 F.2d at 523.

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IV.

CONCLUSION

Considering the foregoing, IT IS ORDERED that the “Motion to Dismiss” (Rec.
Doc. 16) is GRANTED.

New Orleans, Louisiana, this 4th day of April, 2012.

_________________________________
KURT D. ENGELHARDT
United States District Judge

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