Perry v. United States of America

Filing 13

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/2/2015. (jf2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT Qt. MARYLAND

ANTHONY W. PERRY,
Plaintiff,

v.

Civil Action No. TDC-14-2862

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM

OPINION

Plaintiff Anthony W. Perry brings this action under the Federal Tort Claims Act
("FTCA") 28 U.S,C,

99

1346(b), 2671-80 (2012), for claims arising from the execution of a

settlement agreement with the United States Census Bureau ("Census Bureau") to resolve an
action before the United States Equal Employment
Pending before the Court is Defendant's
Jurisdiction and Plaintiffs

Opportunity

Commission

("EEOC").

Motion to Dismiss for Lack of Subject Matter

Motion for Leave to Amend Complaint.

disposition, and no hearing is necessary to resolve the issues.

The Motions are ripe for

See Local Rule 105.6 (D. Md.

2014). Having reviewed the filings, the Court GRANTS the Motion to Dismiss and DENIES the
Motion for Leave to Amend.
BACKGROUND
Perry, a 29-year employee of the Census Bureau within the United States Department of
Commerce, alleges that, while he was employed by the Census Bureau in 2011, he was coerced
into signing a settlement agreement (the "Settlement Agreement") that resolved pending claims
he had filed with the EEOC. The Settlement Agreement required Perry to retire "volunlarily" by

September 4, 2012. 1st Am. Comp\. ~ 39-44, ECF No.4; 1st Am. Comp\. Ex. 8 at I, ECF No.
4-2. Perry alleges that the Census Bureau threatened to fire him immediately if he did not sign
the Settlement

Agreement.

He also alleges that the Settlement

Agreement

contained

a

nondisclosure provision that violates EEOC policy.
Perry signed the Settlement Agreement on August 16,2011.
2012, in accordance with the Settlement Agreement.

He then retired on April 2,

On February 18, 2014, Perry filed an

administrative FTCA claim with the Census Bureau challenging the Settlement Agreement.
also filed claims with the EEOC and the United States Merit Systems Protection
("MSPB")
claims.

I

challenging

the Settlement Agreement.

He

Roard

Each agency denied his administrative

The Census Bureau determined that Perry's claims were more appropriately brought

under Title VII of the Civil Rights Act of 1964. The EEOC found no coercion. After concluding
.that Perry failed to establish that the Census Bureau misled him into signing the Settlement
Agreement by stating that he would have no right to appeal if the Census Bureau removed him,
the MSPI3 denied his claim on jurisdictional grounds, because Perry waived his right to appeal in
the Settlement Agreement.
Perry then filed the Complaint in this action on September 9, 2014, followed by an
Amended Complaint on September 29, 2014. The United States moved to dismiss on November
26. 2014 on the grounds that (I) there is no subject matter jurisdiction

because the original

Complaint was filed more than two years after the alleged tort; and (2) Perry's claims are
preempted by tbe Civil Service Reform Act ("CSRA"), 5 U.S.C. S 1101 el seq. (2012). Instead

The Court takes judicial notice of the administrative decisions by the EEOC (Perry v. Pritzker,
Appeal No. 0120130129) and the MSPB (Perry v. Dep'l ojCummerce, Docket Nos. DC-075212-0486-8-1, DC-0752-12-0487-8-1).
I

2

of filing a Memorandum in Opposition to the Motion to Dismiss, Perry filed a Motion for Leave
to Amend Complaint, with a proposed Second Amended Complaint, on April 2, 2015.
DISCUSSION
I.

Legal Standards
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may seek dismissal of a

complaint based on a lack of subject matter jurisdiction.

See Fed. R. Civ. P. 12(b)(l).

When a

defendant asserts that the complaint fails to allege facts upon which subject matter jurisdiction
can be based, the facts alleged "'are taken as true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction."

Kern.'! v. United States, 585 F.3d

187,192 (4th Cir. 2009).
Under Federal Rule of Civil Procedure l2(b)(6), a defendant may seek dismissal based on
failure to state a claim upon which relief may be granted.

See Fed. R. Civ. P. 12(b)(6).

To

defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a
plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009). The Court must examine
the complaint as a whole, consider the factual allegations in the complaint as true, and construe
the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S.
266, 268 (1994); Lamheth v. Bd. of Comm 'rs of Davidson Cnry., 407 F.3d 266, 268 (4th Cir.
2005).

Moreover, the court may consider any documents attached to the complaint that are

"integral to the complaint."

Sec

y of Stale for

Defence v. Trimble Navigation Ltd., 484 F.3d 700,

705 (4th Cir. 2007).
II.

Timeliness of the fiTCA Claim
The United States first argues that Perry's claim must be dismissed under Rule 12(b)(1)

for lack of subject matter jurisdiction because Perry filed his Complaint more than two years

3

aftcr the alleged tort occurred. The FTCA provides that the United States only waives sovcreign
immunity for tort claims filed administratively with the relevant agency within two years of the
datc the cause of action arises, and only if the civil action is filed within six months of the denial
of the administrative claim by the agency. 28 U.S.c. ~ 2401(b) (2012).

Failure to meet hoth of

these requirements deprives a federal court of subject matter jurisdiction.

See id. (providing that

a claim is "forever barred" if not raised with thc appropriate agency within two years after the
claim accrues); Kokotis v. United States, 223 FJd 275, 278 (4th Cir. 2000) (explaining that the
timely filing of an administrative claim is a "key jurisdictional prerequisite").
The United States asserts that the alleged tort occurred on August 16,2011, the date that
he signed the allegedly coercive scttlcment agreement.

Because Perry's administrative claim

was not liled with the Census Bureau until February 18,2014, the Government argues, Perry did
not meet the two-year requirement.

It is not entirely clear, however, that the operative date for

the start of the two-year period is the date that Perry signed the settlement agreement.

Although

neither the United States of Appeals for the Fourth Circuit nor the Court of Appeals of Maryland
have addresscd this issue, the United States Court of Appeals for the District of Columbia Circuit
has concluded that, when a plaintiff alleges an agreement by coercion, the statute of limitations
"is tolled until the duress or coercion is no longer effective."

Goldman v. 8equai, 19 F.3d 666.

675 (D.C. Cir. 1994) (quoting 13 Williston on Contracts ~ 1627B (3d ed. 1970)). According to
the Complaint, Perry signed and complied with the settlement agreement for fear of losing his
job. Accepting the allegations as true, there is a plausible argument that the two-year limitations
period was tolled until Perry retired on April 2, 2012, when the fear of losing his job no longer
restrained him from challenging the agreement.

Whether a party subject to coercion "continued

to be subject to undue influence is a factual question which 'must be determined from all the

4

surrounding

facts and circumstances.'"

Goldman,

19 F.3d at 675 (quoting

13 Williston

~ 1627B). Accordingly, the Court declines to dismiss the Complaint for lack of subject matter
jurisdiction.
III.

Preemption

of .,'TCA Claims

The United States alternatively argues that the Complaint should be dismissed because all
of Perry's claims, brought under the fleA,

are preempted by the CSRA.2 Congress enacted the

CSRA in part to create "an elaborate new framework for evaluating adverse personnel actions
against federal employees."

United States v. Fausto, 484 U.S. 439, 443 (1988) (citation and

internal quotation marks omitted).

The Fourth Circuit has held that the CSRA "constitutes the

exclusive remedy for claims arising out of federal employment," even if relief may be available
under other statutes. See Hall v. Clinton, 235 F.3d 202, 203-06 (4th Cir. 2000) (holding that the
CSRA operates "to the exclusion of all other statutory remedies for claims arising out of the
federal employment relationship").

Under this preemption rule, FTCA claims that challenge

federal employment decisions are barred. See Nguyen v.
1994 WL 582642, at'l

u.s. Dep't

of Defense, 39 F.3d 1178,

(4th Cir. Oct. 25, 1994) (per curiam) ("A plaintiff may not avoid the

CSRA by cloaking his lawsuit in the guise of an FTCA action." (citation omitted»; Kennedy v.
United States, No. CCB-14-914, 2014 WL 3700350, '2 (D. Md. July 23, 2014) (dismissing an
FTCA discrimination claim as precluded, in part, by the CSRA).

It is unclear whether the United States is seeking dismissal on preemption grounds based on a
lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(I), or for failure to state a claim, Fed. R.
Civ. P. 12(b)(6). The Fourth Circuit has not affirmatively addressed which standard applies in
this instance, and the circuits appear to be split on the issue. Compare Mahtesian v. Lee, 406
F.3d 1131, 1135 (9th Cir. 2005) (affirming dismissal on preemption grounds based on lack of
subject matter jurisdiction), with Dodd v. Donahoe, 715 F.3d 151, 154 (6th Cir. 2013) (treating
dismissal on preemption grounds as a motion to dismiss for failure to state a claim). The Court
need not decide this issue because it finds that the outcome would be the same under either
standard.

2

5

Here, Perry's claim that he was coerced into signing the Settlement Agreement relates
squarely to a federal employment decision. In fact, Perry even sought review on this issue by the
MSPB under the CSRA, which ultimately denied the appeal on procedural grounds.
U.S.C.

S 7513(d)

is taken ...

See 5

(2012) (providing, under the CSRA, that an "employee against whom an action

is entitled to appeal to the Merit Systems Protection Hoard").

Accordingly, the

Court finds that Perry's claim is preempted by the CSRA. See Hall, 235 F.3d at 205.
Even if Perry's FTCA claim is classified as an employment discrimination

matter, his

claim would still be preempted by Title VII of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C.

SS

2000e el seq. (2012), and the Rehabilitation Act of 1973, 29 U.S.C.

S 794

(2012). The

Amended Complaint indicates that the underlying dispute leading to the Settlement Agreement
related to race, age, or disability discrimination that resulted in Perry filing a claim with the
EEOC. It could also be read as asserting a retaliation claim, based on the allegations that Perry
received a "Proposed
discrimination,

Removal"

the day after he made complaints

and that, following communications

Census Bureau proposed "nonnegotiable"
Compl.'131-35;

about reasonable

about race and age
accommodations,

terms including his forced retirement.

1st Am. Compl. Ex. A, ECF NO.4-I.

the

See 1st Am.

Indeed, when the Census Bureau denied

his claim that he was coerced into signing the Settlement Agreement, Perry filed an appeal to the
EEOC, which affirmed the Census Bureau's determination.
The Fourth Circuit has held that Title VII is "the exclusive judicial remedy for claims of
discrimination in federal employment."

Pueschel v. United States, 369 F.3d 345, 353 (4th Cir.

2004) (dismissing an FTCA claim as preempted by Title VII). Likewise, the Rehabilitation Act
is the sole judicial remedy for federal employees alleging disability discrimination

and would

preempt any FTCA claim relating to disability discrimination by the Census Bureau. See Brown

6

v. lIenderson, 6 F. App'x 155, 156 (4th ei,. 2001) (upholding dismissal of a claim of disability
discrimination

under the Americans with Disabilities Act of 1990 against the United States
Act); see also

Postal Service because the claim had to be brought under the Rehabilitation

Spence v. Straw, 54 F.3d 196,202 (3d CiT. 1995) (dismissing an equal protection claim because
"the Rehabilitation Act provides the exclusive means by which a litigant may raise claims of
discrimination
discrimination

on the basis of handicap by federal agencies").
claim.

Perry's

FICA

Thus, even if construed as a

claim would be preempted

by Title

VII and the

Rehabilitation Act and is therefore dismissed.
IV.

Motion for Leave to Amend
In response to the Motion to Dismiss, Perry attempted to file a proposed

Amended Complaint.

Second

When the Clerk of the Court declined to accept it without leave of the

Court, Perry filed a Motion for Leave to Amend Complaint to which he attached the proposed
Second Amended Complaint.

This revised version of the Complaint asserts additional claims

under the FTCA for negligence, intentional infliction of emotional distress ("UEO"), fraud,
conspiracy

to commit

fraud, extortion,

conspiracy

to commit

extortion,

defamation,

and

negligent training and supervision.
Because Perry has already amended the Complaint once before, he may amend his
pleading "only with the opposing party's written consent or the court's leave."
15(a)(2). "The court should freely give leave when justice so requires,"

Id.

Fed. R. Civ. P.
Leave to amend

should only be denied "when the amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or the amendment would have been futile."
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citation and internal quotation marks
omitted).

7

Here, the proposed amendment would be futile because the additional proposed causes of
action are either preempted under the same analysis discussed above or are not actionable under
the FTCA.

First, the proposed claims for negligence, lIED, and negligent training and

supervision explicitly arise from his removal from the Census Bureau.

Those claims are

therefore preempted by the CSRA, Title VII, or the Rehabilitation Act. See Hall, 235 F.3d at
206; Venahle v. Blank, No. JFM-12-2406, 2012 WL 5416458, at 'I

(D. Md. Nov. 2, 2012)

(concluding that a negligence claim "is barred because the CSRA provides an exclusive remedy
for negligence claims arising from federal employment"); see a/so Puesche/, 369 F.3d at 353;
Brown, 6 F. App'x at 156.
Extortion and conspiracy to commit extortion are crimes in Maryland, not torts. See

Yang v. Lee, 163 F. Supp. 2d 554, 563 (D. Md. 2001) ("Maryland ... recognizes no civil cause
of action for extortion."). Because the United States is only liable under the FTCA for tortious
conduct, extortion and conspiracy to commit extortion are not actionable under the FTCA. See
28 U.S.C.

i 2674

(2012) ("The United States shall be liable, respecting the provisions of this title

relating to tort claims, in the same manner and to the same extent as a private individual under
like circumstances." (emphasis added».
defamation under the FTCA. See

Finally, the United States cannot be sued for fraud or

i 2680(h)

(providing that the FTCA does not apply to any

claim arising out of libel, slander, misrepresentation, or deceit). Because the proposed Second
Amended Complaint does not offer any viable additional actions, the Motion for Leave to
Amend is denied on the grounds that amendment would be futile.

8

CONCLUSION
For the foregoing reasons. the Motion to Dismiss for Lack of Subject Matter Jurisdiction
is GRANTED,
DISMISSED.

and the Motion for Leave to Amend Complaint is DENIED.
A separate Order follows.

Date: June 2, 2015
THEODORED.
United States Dis

9

The case is