Thompson
Filing
17
MEMORANDUM AND ORDER granting 8 Defendant's Motion to Dismiss; and granting 11 United States Motion to Dismiss. Signed by Judge Marvin J. Garbis on 9/21/12. (apls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CARL THOMPSON
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Plaintiff
vs.
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UNITED STATES OF AMERICA, and
STATE OF MARYLAND
CIVIL ACTION NO. MJG-12-739
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*
Defendants
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MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS
The Court has before it the State Defendant's Motion to
Dismiss [Document 8], the United States' Motion to Dismiss
[Document 11] and the materials submitted relating thereto. The
Court has held a hearing and had the benefit of the arguments of
counsel.
I.
BACKGROUND1
Plaintiff has been, since 2006, a commissioned officer
(rank not specified) in the Maryland Army National Guard (the
"Guard").
At some time (not specified), although qualified for
promotion, he was passed over although "others who fail to meet
1
The “facts” herein are as alleged by Plaintiff and are not
necessarily agreed upon by Defendants.
those qualifications have been retained and promoted."
Intro.
Compl.
The only such "other" identified by Plaintiff is a named
Major who was commissioned as an officer "sometime between 20002002."
Compl. ¶ 2.
The named Major did not have a required
bachelor's degree from an accredited institution.
The Guard,
although informed of the named Major's lack of a degree,
nevertheless decided to retain her.
Based upon these allegations, Plaintiff sues the United
States and the State of Maryland in four counts:
1.
Violation of 10 U.S.C. § 12205 (Officer Requisites)
2.
False Claims Act 31 U.S.C. §§ 3729-3733
3.
Negligence
4.
Negligent Failure to Instruct, Supervise
By the instant motions, the Defendants seek dismissal of
all claims.
II.
DISMISSAL STANDARD
A motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6)2 tests the legal sufficiency of a complaint.
A complaint need only contain “a short and plain statement of
the claim showing that the pleader is entitled to relief, in
2
All “Rule” references herein are to the Federal Rules of
Civil Procedure.
2
order to give the defendant fair notice of what the ... claim is
and the grounds upon which it rests.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
When
evaluating a 12(b)(6) motion to dismiss, a plaintiff’s wellpleaded allegations are accepted as true and the complaint is
viewed in the light most favorable to the plaintiff.
However,
conclusory statements or a “formulaic recitation of the elements
of a cause of action” will not suffice.
Id.
A complaint must
allege sufficient facts to “cross ‘the line between possibility
and plausibility of entitlement to relief.’”
Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly,
550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id.
Thus,
if the well-pleaded facts contained within a complaint “do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown –
that the pleader is entitled to relief.”
Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009)) (internal quotation marks
omitted).
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III. DISCUSSION
A.
State of Maryland
At the threshold, the State of Maryland asserts that the
instant case cannot proceed against it in federal court by
virtue of the Eleventh Amendment.
It is well established that:
The
Eleventh
Amendment
embodies
the
principle
of
sovereign
immunity
and
prohibits suit by private parties against
states in federal courts unless a state has
waived its immunity.
Weller v. Dep't of Social Servs. for City of Baltimore, 901 F.2d
387, 397 (4th Cir. 1990).
As in Weller, Plaintiff here "has not suggested to this
Court that Maryland has waived its immunity to actions brought
in federal court, nor have we discovered any such waiver."
See
id.
Accordingly, it is not necessary to address the State's
additional contentions.
All claims against the State of
Maryland in the Complaint shall be dismissed.
B.
The United States
1.
Count 1 - § 12205
Title 10 U.S.C. § 12205 states, in pertinent part:
(a) In General. - No person may be appointed
to a grade above the grade of first
lieutenant . . . or be federally recognized
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in a grade above the grade of first
lieutenant as a member of the Army National
Guard, unless3 that person has been awarded a
baccalaureate
degree
by
a
qualifying
educational institution.
The Court assumes that, as alleged by Plaintiff, the named
Major and others were appointed in violation of this provision.
Plaintiff presents nothing in the aforesaid statutory
provision, or in any legislative history, judicial decision or
other authority, that establishes, or even suggests, that §
12205 creates a private cause of action.
Nor, is there any
indication that the United States has waived its sovereign
immunity from suit based upon some violation of the statute.
Thus, all claims in Count 1 shall be dismissed.
2.
Count 2 - False Claims Act
The False Claims Act, 31 U.S.C. § 3729 et seq., creates
liability to the United States for any person who makes a false
claim against the United States.
The United States, by
definition, is the victim and cannot be the perpetrator of a
false claim creating liability under the False Claims Act.
Plaintiff, possibly, recognizes this, stating "[i]t was
never the intent of Plaintiff to bring an action under the FCA
against the United States."
3
Pl. Opp'n [Document 12] at 9.
Subject to certain exceptions.
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However, Plaintiff states that his "intent was to influence the
federal government to enforce the law, in its capacity in a qui
tam action" to force the Guard to follow § 12205.
Id. at 10.
Even if Count 2 were construed as a qui tam claim, it would be
subject to dismissal.
A False Claims Act qui tam claim is
brought by a plaintiff on behalf of the United States against a
defendant that would be liable to the United States.
The United
States cannot be such a defendant.
Accordingly, all claims in Count 2 shall be dismissed.
3.
Counts 3 and 4 - Negligence
In Counts 3 and 4, Plaintiff asserts common law negligence
claims against the United States.
The United States has waived
its sovereign immunity for tort claims brought pursuant to the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675.
To proceed on a claim under the FTCA, a plaintiff must
comply with the statute.
As stated by the United States Court
of Appeals for the Fourth Circuit:
A key jurisdictional prerequisite to filing
suit
under
the
FTCA
involves
the
presentation of an administrative claim to
the government within two years of the
incident. See 28 U.S.C. § 2401(b) (1994) (a
tort claim “shall be forever barred unless
it
is
presented
in
writing
to
the
appropriate Federal agency within two years
after such claim accrues ....”). Moreover,
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“the requirement of filing an administrative
claim is jurisdictional and may not be
waived.” . . .
An administrative claim must be properly
presented.
The
FTCA's
implementing
regulations consider a claim to be properly
presented when the government receives a
completed
SF
95
(or
other
written
notification of an incident), and “a claim
for money damages in a sum certain ....” 28
C.F.R. § 14.2(a) (1999) (emphasis added);
see also 39 C.F.R. § 912.5(a) (1999).
Requesting a sum certain is a necessary
element of any FTCA administrative claim.
Failure to request a sum certain within the
statute of limitations deprives a district
court of jurisdiction over any subsequently
filed FTCA suit.
Kokotis v. U.S. Postal Serv., 223 F. 3d 275, 279 (4th Cir.
2000)(internal citations omitted).
The Complaint does not include allegations that Plaintiff
complied with the administrative claim requirement.
Therefore,
the negligence claims shall be dismissed.
Inasmuch as Plaintiff indicated that he seeks leave to
amend, the Court will note that in the opposition to the United
States' dismissal motion, Plaintiff states that he "has filed
complaints with the Inspector General of the Department of
Defense, and has been denied relief, thereby meeting the
requirements of FTCA."
Pl. Opp'n [Document 12] at 10.
The
United States has provided an affidavit stating that the Guard's
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Inspector General's office is in possession of a letter from
Plaintiff – presumably a "complaint" or presentation of an
administrative claim filed by Plaintiff – and such letter does
not include a request for monetary damages.
At the hearing, the
Court requested to see a copy of the "complaint" or
administrative claim allegedly filed by the Plaintiff.
did not have one at the hearing.
Counsel
In any event, even if
Plaintiff had filed a proper administrative claim, the
negligence claims would be dismissed on other grounds.
The intramilitary immunity doctrine bars FTCA claims "for
injuries to servicemen when the injuries arise out of or are in
the course of activity incident to military service." Feres v.
United States, 340 U.S. 135, 146 (1950).
Military service for
purposes of the intramilitary immunity doctrine includes
military service in the National Guard. Dibble v. Fenimore, 339
F.3d 120, 125-128 (2d Cir. 2003). The negligence claims arise
from Plaintiff’s and the named Major's military service in the
Guard.
Accordingly, by virtue of the intramilitary immunity
doctrine, all claims in Counts 3 and 4 would be dismissed even
if the case were properly in court by virtue of the FTCA.
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IV.
CONCLUSION
For the foregoing reasons:
1.
The State Defendant's Motion to Dismiss [Document
8] is GRANTED.
2.
The United States Motion to Dismiss [Document 11]
is GRANTED.
3.
Judgment shall be entered by separate Order.
SO ORDERED, this Friday, September 21, 2012.
/s/__________
Marvin J. Garbis
United States District Judge
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