Clark v. United States of America

Filing 16

ORDER AND REASONS: IT IS ORDERED that Defendant's 8 Motion to Dismiss is GRANTED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 9/25/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PEGGY JEAN CLARK

CIVIL ACTION

VERSUS

NO. 17-2821

UNITED STATES OF AMERICA

SECTION “B”(3)

ORDER AND REASONS
Before this Court is Defendant’s, the United States of America
(the “Defendant”), “Motion to Dismiss pursuant to Rule 12(b)(1) of the
Federal

Rules

of

Civil

Procedure”

(Rec.

Doc.

8),

Plaintiff’s

“Opposition to the Motion” (Rec. Doc. 9), and the Defendant’s “Reply
to the Opposition” (Rec. Doc. 12).
For the reasons outlined below,
IT IS ORDERED that Defendant’s Motion to Dismiss is GRANTED.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On Tuesday, July 7, 2015 at 9:30 AM, Plaintiff arrived at the
Navy Air Station Joint Reserve Center in Belle Chasse, Louisiana where
she attempted to renew her Department of Defense/Uniformed Services
Identification and Privilege Card previously issued to her in 2011.
(Rec. Doc. 1 at 3). A government employee gave Plaintiff a Department
of Defense/Uniformed Services and Privilege Card (DD Form 2765) to
sign. Id.
The government employee denied the Plaintiff a copy of the form
but the government employee did allow Plaintiff to review a laminated
DD Form 2765. Id. at 4. Upon review of the document, Plaintiff noticed
1

that

the

box

Plaintiff

#28

(marital

informed

the

status)

government

was

blank.

employee

Id.

that

Additionally,

there

previously

existed an issue that prevented her from accessing benefits and
privileges she was entitled. Id. The government employee gave Plaintiff
a phone number, which she could contact with her concerns. Id.
Plaintiff

alleged

on

July

7,

2015,

the

government

employee

intentionally omitted and/or deleted her personal information from the
Defense

Enrollment

Eligibility

Reporting

System

or

pretended

to

process a Department of Defense/Uniformed Services Identification and
Privilege Card. Id. at 5. Additionally, Plaintiff alleged that the
employee who handled her updated application failed to follow displayed
instructions.
defrauded

her

Id.

Plaintiff

and

issued

argued
her

that
a

the

government

fraudulent

employee

Department

of

Defense/Uniformed Services Identification and Privilege Card.

Id.

Plaintiff seeks compensation for the loss of benefits as well as the
emotional distress inflicted upon her. Id. at 7.
On June 9, 2017 the Defendant filed a motion to dismiss on the
grounds that the Plaintiff lacked subject matter jurisdiction. (Rec.
Doc. 8 at 1). The Defendant argued that the claim falls under an
exception to the Federal Tort Claims Act (“FTCA”) and Plaintiff could
not

bring

the

case

forward.

Id.

Plaintiff

argues

that

the

FTCA

exception does not apply to state law claims of infliction of emotional
distress. (Rec. Doc. 9 at 4). Defendant counters that Plaintiff
obfuscated the lack of subject matter jurisdiction by characterizing
her claim as one of intentional infliction of emotional distress
2

instead of a claim of fraud that led to emotional distress. (Rec. Doc.
12 at 1).

Law and Analysis
A party may invoke Federal Rule of Civil Procedure 12(b)(1) to
challenge a district court’s subject matter jurisdiction. See Dow
Agrosciences, LLC v. Bates, 332 F.3d 323, 326 (5th Cir. 2003). The
court must grant a motion to dismiss for lack of subject matter
jurisdiction when it lacks the statutory or constitutional power to
adjudicate the case. See Home Builders Ass’n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party who invokes
federal

court

jurisdiction

bears

the

burden

of

showing

that

jurisdiction is proper. Bates, 332 F.3d at 326.
“In ruling on a motion to dismiss for lack of subject matter
jurisdiction, a court may evaluate (1) the complaint alone, (2) the
complaint supplemented by undisputed facts plus the court’s resolution
of disputed facts, or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed facts.” Den Norske Stats
v. HereMac Vof, 241 F.3d 420, 424; Barrera-Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996).
A plaintiff may bring suit against the United States through the
FTCA. 28 U.S.C. § § 1346, 2671-80. “The FTCA provides that the United
States can be liable in tort for any negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in
3

accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b). An FTCA claim cannot be brought against
the United States if the claim arises “out of . . . misrepresentation,
deceit, or interference with contract rights.” 28 U.S.C. § 2680(h).
This exclusion encompasses claims from both negligent and intentional
misrepresentation. Williamson v. U.S. Dep’t of Agric., 815 F.2d 368,
377 (5th Cir. 1987). The Fifth Circuit has already defined the phrase
“arising out of.” In Truman v. United States, the court stated that:
To determine whether a claim is one “arising out of” any of these
enumerated torts, we focus on the conduct upon which the
plaintiff's claim is based. 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. Even if a plaintiff styles a
claim so that it is not one that is enumerated in section 2680(h),
the plaintiff's claim 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.” Thus, the FTCA bars a claim based on
conduct that constitutes a tort listed in section 2680(h), even
though that conduct may also constitute another tort not listed
in section 2680(h). Similarly, a plaintiff cannot circumvent the
purpose of section 2680(h) by “framing his complaint in terms of
[the government's] negligent failure to prevent the excepted
harm.” Thus we held in Garcia v. United States, that a plaintiff
could not evade the reach of section 2680(h) by raising a claim
for negligence in the supervision of a military recruiter who
allegedly assaulted the plaintiff. For the purposes of section
2680(h), Garcia's negligence claim arose out of an assault and
battery.
26 F.3d 592, 594-95 (5th Cir. 1994).
Plaintiff

bears

the

burden

of

demonstrating

federal

subject

matter jurisdiction. Bates, 332 F.3d at 326. Plaintiff cites three
cases to support her argument that she has a standalone claim for
intentional infliction of emotional distress that is not based on fraud
or misrepresentation. Id. at 4-7. Consequently, she argues that she
4

has established federal question jurisdiction pursuant to the FTCA.
However, Plaintiff’s contentions are not persuasive.
First, Plaintiff cites Jimenez-Nieves v. United States, where the
plaintiff there, Jimenez, sued the United States Government over a
clerical

error

where

a

Social

Security

Office

Administrator

incorrectly dated Jimenez’ mothers death as 1975, instead of 1976.
682 F.2d 1, 1 (1st Cir. 1982). As a result of the error, Mr. Jimenez
claimed that several banks required him to pay back money from checks
his mother had endorsed. Id. The court held that the clerical error
was not the cause of the plaintiff’s injury, but rather “the internal
bureaucratic cause of other agency action(s)” that led to third parties
(several banks) committing tortious acts against Mr. Jimenez. Id. at
5.

The

court

reasoned

that

Mr.

Jimenez

did

not

rely

on

the

misrepresentation so the Government could not argue misrepresentation.
Id. By citing this case, Plaintiff argued that her pain and suffering
did not arise from the government employee’s fraudulent acts, but that
a third party intentionally inflicted emotional distress upon her.
However, Plaintiff does not sufficiently allege that in her complaint.
Second, Plaintiff cited Kohn v. United States, where the Kohn
sued the United States Government when the Government misrepresented
the circumstance around his son’s (an Army Private) death. Kohn v.
United States, 680 F.2d 922, 925 (2nd Cir. 1982). The Government
withheld information that Mr. Kohn’s son was the victim of manslaughter
and the perpetrator was another Army soldier. Id. The court held that
the

claim

could

not

be

dismissed
5

for

lack

of

subject

matter

jurisdiction because the claim was not commercial in nature. Id. Courts
have held that the FTCA fraud exception is only applicable when the
injury occurred from a commercial decision, where an individual relied
on the advice of a government employee to his own economic detriment.
Green v. United States, 629 F.2d 581, 584 (9th Cir. 1980); See United
States v. Neustadt, 366 U.S. 696, 710 (1961). In Kohn, the court
reasoned that Mr. Kohn’s injury did not arise from an economic loss,
but the loss of his son, so the FTCA fraud exception did not apply.
Kohn,

680

F.2d

at

925.

Here,

Plaintiff

argues

that

because

she

experienced emotional distress, her claim is non-commercial and is not
covered by the fraud exception. However, unlike in Kohn, where the
government’s misrepresentation dealt with the loss of human life
(something non-economic), the government employee allegedly defrauded
Plaintiff by erasing her information from a database that led to a
financial loss (Rec. Doc. 1 at 3). Since Plaintiff’s injury relates
directly to an economic loss, this is a commercial injury and Kohn is
inapplicable.
Finally, Plaintiff cites Waffen v. United States Dep’t of Health
& Human Services, where the National Institutes of Health (“NIH”)
misplaced

the

Plaintiff’s

medical

report

that

advised

further

examination. Waffen v. United States Dep’t of Health & Human Services,
799 F.2d 911, 914 (4th Cir. 1986). Later, doctors diagnosed the
Plaintiff with a malignant infiltrating carcinoma and gave her no hope
of long-term survival. Id. She sued the NIH. Id. The court held that
although there was a delay in the treatment, the Plaintiff failed to
6

prove that the delay caused by NIH’s negligence substantially reduced
her chance of survival. Id. at 923. It is unclear why Plaintiff cited
this case since it does not discuss the issues before the court today.
Waffen provides a discussion between legal injury and proximate cause,
which has no application to this case. Consequently, Plaintiff’s
attempt to establish subject matter jurisdiction are unavailing and
this court does not find there to be federal question jurisdiction
based on the applicable law and the complaint.
New Orleans, Louisiana, this 25th day of September, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

7