LaBranche v. Department of Defense
Filing
31
ORDER & REASONS: ORDERED that Defendant's Motion to Dismiss (Rec. Doc. 11) is GRANTED as to Defendant's challenge that the district court lacks subject matter jurisdiction over this case; Plaintiff's complaint is DISMISSED without prejudice. Signed by Judge Carl Barbier on 2/12/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMIE LABRANCHE
CIVIL ACTION
VERSUS
NO. 15-2280
DEPARTMENT OF DEFENSE,
INSPECTOR GENERAL
SECTION “J” (1)
ORDER AND REASONS
Before the Court is a Motion to Dismiss filed by Defendant,
the Department of Defense, Inspector General (“Defendant”). (See
Rec. Docs. 11 and 16.) Plaintiff Jamie LaBranche (“Plaintiff”), a
pro se litigant, filed suit against Defendant alleging violations
of The Inspector General Act of 1978, Title VII, and the Federal
Tort Claims Act. (See Rec. Doc. 1.) The Department of Defense now
seeks dismissal of all of Plaintiff’s claims based on lack of
subject matter jurisdiction or, alternatively, failure to state a
claim. (See Rec. Doc. 11.) For the following reasons, the Court
GRANTS Defendant’s motion and dismisses Plaintiff’s complaint,
without prejudice, for lack of subject matter jurisdiction.
BACKGROUND AND PROCEDURAL HISTORY
The following is a brief summary of the facts and allegations
discernable from Plaintiff’s complaint. Plaintiff was an employee
of
Goodwill
Industries
(“Goodwill”), 1
a
contractor
of
the
1 Plaintiff’s complaint often states that his employer was “Goodworks”; however,
supporting exhibits indicate his actual employer was Goodwill Industries. (See
Rec. Doc. 1-1 at 2.) The exact name of Plaintiff’s employer does not matter for
the purposes of this Order and Reasons. The Court proceeds by referring to the
employer as “Goodwill.”
1
Department of Defense at the Belle Chase Naval Air Station (“the
base”). (See Rec. Doc. 1-1 at 1.) Concerned that Goodwill was
circumventing security protocol on the base and denying its workers
due fringe benefits, Plaintiff sent a letter on October 17, 2012,
to the Department of the Navy. See id. Plaintiff corresponded with
employees of Defendant over the following weeks. (See Rec. Doc. 11 at 29–36.) Plaintiff also apparently sent communications to
officials at the U.S. Attorney’s Office. (See, e.g., Rec. Doc. 11
at
16.)
According
to
Plaintiff,
at
least
one
employee
of
Defendant notified Goodwill of Plaintiff’s disclosures at some
point in October or early November. (See Rec. Docs. 1 at 2 and 11 at 78.) On November 16, 2012, Plaintiff filed suit against
Goodwill.
(See
Rec.
Doc.
1-1
at
12.)
On
November
19,
2012,
Plaintiff sent a letter to a Navy official complaining about a
leak of his protected disclosures to Goodwill by an employee of
Defendant. See id. at 18. On November 30, 2012, Goodwill terminated
Plaintiff’s employment as an alleged reprisal for Plaintiff’s
disclosures to Defendant. See id. at 12.
Plaintiff’s communication with employees of Defendant carried
on for some time after. (See generally Rec. Doc. 1-1.) In addition
to the suit against Goodwill, it appears at some point in late
2012 that Plaintiff communicated with Defendant to initiate a
whistleblower reprisal investigation pursuant to 10 U.S.C. § 2409.
(See Rec. Doc. 1-1 at 28, 36.) While the whistleblower reprisal
2
investigation was ongoing, Plaintiff agreed to a settlement of his
suit against Goodwill on April 18, 2013. See Rec. Doc. 1-1 at 87–
101; see also LaBranche v. Goodwill, No. 12-2786, Rec. Doc. 21
(E.D.La.
4/18/2013)
(Feldman,
J.)
(minutes
of
settlement
conference reflecting settlement reached). Plaintiff alleges and
references
email
exhibits
to
support
that
he
agreed
to
the
settlement at the order of another employee of Defendant, with
assurances
that
Defendant
would
carry
on
the
reprisal
investigation. (See Rec. Doc. 1 at 2–3.)
On May 15, 2013, the office of the Naval Inspector General
sent a notice to Plaintiff stating that it was closing the matter
after investigative authorities concluded upon preliminary inquiry
that appropriate security protocol was followed at the base. (See
Rec. Doc. 1-1 at 23.) In June 2014, Defendant released a report of
its
whistleblower
terminated
investigation,
Plaintiff’s
employment
concluding
for
reasons
that
other
Goodwill
than
the
protected disclosures Plaintiff made to Defendant. (See Rec. Doc.
1-1 at 129–37.)
On or around July 1, 2014, Plaintiff complained to Defendant
through a “Defense Hotline” that –– in contravention of assurances
that Plaintiff would be protected from reprisal –– Defendant’s
employee(s) had released Plaintiff’s identity to Goodwill, which
led to Goodwill’s retaliatory termination. (See Rec. Doc. 1-1 at
159.)
The
“Quality
Assurance
and
3
Standards
Internal
Review
Division” appears
to
have
subsequently
interviewed
Plaintiff,
reviewed the documents and information provided by Plaintiff, and
completed a report concluding that no misconduct by employees of
Defendant
occurred.
(See
Rec.
Doc.
1-1
at
159–60.)
While
significant portions of the November 3, 2014, report are redacted,
it appears the Internal Review Division concluded that, at least,
Plaintiff’s identity was not directly released to Goodwill and
that “although no one should guarantee” against reprisal, any such
assurance made to Plaintiff by an employee of Defendant would not
constitute misconduct. See id.
While
not
subsequently
mentioned
filed
an
in
his
official
initial
tort
complaint,
claim
with
Plaintiff
Defendant
on
December 28, 2014. (See Rec. Doc. 17 at 12.) The claim cites
October 24, 2012 as the date of the tort. See id. Defendant
disputes that Plaintiff actually submitted the claim and has
submitted a declaration of one its employees stating that the
employee has conducted a diligent search, yet was unable to track
down the December 28, 2014, claim. (See Rec. Doc. 22-1.) Plaintiff
filed the instant suit on June 23, 2015. (See Rec. Doc. 1.)
On August 3, 2015, before Defendant answered Plaintiff’s
complaint, Plaintiff filed a motion for summary judgment. (See
Rec. Doc. 6.) Before answering or responding to Plaintiff’s motion
for
summary
judgment,
Defendant
filed
the
instant
motion
to
dismiss. (See Rec. Doc. 11.) On September 16, 2015, the Court
4
issued an order that it would consider the issue of subject matter
jurisdiction before considering the motion for summary judgment.
(See Rec. Doc. 16.) On November 23, 2015, Plaintiff moved for leave
to file an amended complaint to add from United States Attorney
Jim Letten, Assistant United States Attorney Sharon Smith, and the
Department of Justice as defendants. (See Rec. Doc. 25.) Finding
the
amended
complaint
futile
for
lack
of
subject
matter
jurisdiction, the magistrate denied Plaintiff’s motion to amend.
(See Rec. Doc. 29 at 3.)
STANDARD OF REVIEW
As a threshold matter, the Court notes that it interprets
pleadings and briefs of pro se litigants liberally “to afford all
reasonable inferences which can be drawn from them.” In re Tex.
Pig Stands, Inc., 610 F.3d 937, 941 n.4 (5th Cir. 2010). Rule
12(b)(1) motions allow parties to challenge the subject matter
jurisdiction of a district court to hear a case. FED. R. CIV. P.
12(b)(1). A district court can assess whether it has subject matter
jurisdiction based upon any of the following: (1) the complaint
alone;
(2)
the
complaint
supplemented
by
undisputed
facts
evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.
See Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001). The burden
of proof rests on the party asserting jurisdiction. See id. In
assessing a Rule 12(b)(1) motion, a district court may consider
5
matters of fact that appear in dispute, but should grant the motion
only if it appears the party asserting jurisdiction can prove no
set of facts that would establish jurisdiction. See id.
DISCUSSION
While Plaintiff makes claims under The Inspector General Act,
Title VII, and the Federal Tort Claims Act, only the tort claim
merits detailed discussion. Neither the Inspector General Act nor
Title VII give Plaintiff a cause of action against Defendant in
this case. The plain language of the Inspector General Act makes
clear that it protects only employees of certain federal government
establishments, not employees of federal contractors. See 5 U.S.C.
App.
§§ 7(a)–(b),
12(2).
Furthermore,
nothing
in
the
plain
language of Inspector General Act suggests that the United States
has waived its sovereign immunity. See Williams v. McCausland, 791
F. Supp. 992, 1001 (S.D.N.Y. 1992). 2
The plain language of Title VII also makes clear that it does
not provide Plaintiff with grounds for relief against Defendant in
this case. Again, Title VII provides a cause of action against
employers. See 42 U.S.C. §§ 2000e-2, 2000e-16. Furthermore, even
if Defendant had been Plaintiff’s employer, nothing indicates that
2
Plaintiff’s brief in opposition to Defendant’s motion to dismiss raises the
argument that Defendant also violated 10 U.S.C. § 2409. (See Rec. Doc. 17 at
2.) While that statute does protect whistleblowing employees of federal
contractors from retaliation, it does not afford such employees with a cause of
action against the United States. See 10 U.S.C. § 2409(c)(2). Instead, it
affords a whistleblowing employee who has exhausted administrative remedies
with a cause of action against the retaliating federal contractor. See id.
6
Defendant took retaliatory actions against Plaintiff on account of
“race, color, religion, sex, or national origin.” Id. The Court
does
not
have
subject
matter
jurisdiction
under
either
the
Inspector General Act or Title VII.
What remains is Plaintiff’s claim under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b)(1). A tort claim against the United
States must be presented to the appropriate federal agency “within
two years after such claim accrues or unless action is begun within
six months after the date of mailing, by certified or registered
mail, or notice of final denial of the claim by the agency to which
it was presented. 28 U.S.C. § 2401(b). Should the appropriate
agency not make final disposition of the claim within six months
of the claim being filed, the claimant has the option of deeming
administrative remedies exhausted and bringing suit in district
court. See 28 U.S.C. § 2675(a); see also Ramming, 281 F.3d at 162.
A claim accrues “when the plaintiff knows or has reason to know of
the injury which is the basis of the action.” See Ramming, 281
F.3d at 162 (internal quotation omitted).
In
this
case,
Plaintiff
alleges
the
tort
––
defendant
revealing to Goodwill that he had made protected disclosures to
Defendant –– occurred October 24, 2012. See Rec. Doc. 17 at 12. A
November 19, 2012, communication from Plaintiff to a Navy official
reflects
Plaintiff’s
purported
knowledge
that
an
employee
of
Defendant had leaked to a supervisor at Goodwill Plaintiff’s
7
disclosures to Defendant. (See Rec. Doc. 1-1 at 18.) Even assuming
the date of injury actually occurred on November 30, 2012 (when
Plaintiff’s employment was terminated) 3 and even assuming Plaintiff
did actually file an administrative tort claim with Defendant, the
claim was not filed until December 28, 2014––more than two years
after the date of the injury. 4 Because it is reasonable to conclude
that Plaintiff’s claim accrued before December 28, 2012, the Court
3
The Court notes that Plaintiff makes reference to Defendant’s involvement in
his lawsuit against Goodwill. Other than the conclusory allegation that an
employee of Defendant caused Plaintiff to settle his lawsuit, the complaint and
attached exhibits provide no further factual allegations suggesting Defendant
in any way “ordered” Plaintiff to settle his lawsuit against Goodwill. (Rec.
Doc. 1 at 2; see also Rec. Doc. 1-1 at 101, 95–122.) The Court concludes that
it is not reasonable to infer from Plaintiff’s complaint that he alleges a tort
as to defendant’s alleged involvement in his lawsuit against Goodwill. If
anything, the email exhibits included in the complaint demonstrate that
Plaintiff had an ongoing awareness of the injury giving rise to a possible tort
claim against Defendant. (See, e.g., Rec. Doc. 1-1 at 102 (employee of Defendant
asking Plaintiff on October 16, 2013, to notify Defendant in the case he decides
to pursue a claim against Navy Civil contracting officer), 108 (Plaintiff asking
for update on January 31, 2014, and noting his awareness of and concern about
filing deadlines), and 111 (Plaintiff advising Defendant on February 27, 2014,
of his intent to “move in” on Civil Navy contracting officer.)) Furthermore, it
is not apparent that Plaintiff’s alleged December 28, 2014, administrative claim
complained about the settlement. Accordingly, the Court finds it reasonable to
conclude that Plaintiff’s claim accrued at the latest on November 30, 2012.
4 Even assuming for the sake of argument that Plaintiff’s July 1, 2014, hotline
complaint constituted the filing of a tort claim within the two year period of
limitation, Plaintiff became aware of the end result of that complaint on
December 19, 2014, yet did not file the instant complaint until June 23, 2015.
(See Rec. Docs. 1 and 1-1 at 158–60.) While close, that means that more than
six months passed between Plaintiff becoming aware of Defendant “denying” the
merits of his claim and Plaintiff filing suit. See 28 U.S.C. § 2401(b). It may
be that Plaintiff had the good faith belief for months or even years following
the accrual of his claim that a tort claim against Defendant was unnecessary to
vindicate his rights, since he was pursuing other means of protecting his
interests. (See Rec. Docs. 1 at 2 and 1-1 at 28 (describing plaintiff’s lawsuit
against Goodwill and defendant’s whistleblower reprisal investigation.))
However, even if equitable factors existed to suggest a judge-made tolling of
the limitation period might be appropriate in this case, district courts do not
have equitable authority when it comes to statute of limitations as they apply
to private citizen suits against a sovereign. See Ramming, 281 F.3d at 165.
8
does not have subject matter jurisdiction over Plaintiff’s tort
claim.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Rec.
Doc. 11) is GRANTED as to Defendant’s challenge that the district
court
lacks
subject
matter
jurisdiction
over
this
case;
Plaintiff’s complaint is DISMISSED without prejudice.
New Orleans, Louisiana, this 12th day of February, 2016
_____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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