Firebaugh v. The United States of America et al

Filing 46

ORDER granting 21 Motion to Dismiss. Signed by Judge Miranda M. Du on 8/9/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CURTIS FIREBAUGH,

Case No. 3:12-cv-00242-MMD-WGC
Plaintiff,

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ORDER
v.

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(Def.’s Motion to Dismiss – dkt. no. 21)

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UNITED STATES OF AMERICA, et al.,

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Defendants.

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I.

SUMMARY
Before the Court is Defendant United States of America’s Motion to Dismiss (dkt.

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no. 21). For the reasons set forth below, the Motion is granted.

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II.

BACKGROUND

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A.

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Plaintiff Curtis Firebaugh was an employee of Bertolini Trucking Company

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(“Bertolini”) from September 2007 until his termination on January 9, 2008. (Dkt no. 1

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¶¶ 10, 16.) Bertolini is a commercial motor carrier with its principle place of business in

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California. (Id. ¶ 9.) Plaintiff alleges that he was terminated for: (1) refusing, during the

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period of mid-November 2007 to January 2008, to haul a trailer because it had an

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unsafe welded leaf spring; and (2) threatening to report the safety violation. (Id. ¶¶ 8, 11,

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17.) He states that Bertolini management falsely claimed that he was terminated for

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refusing to take a drug test. (Id. ¶ 8.)

Factual Background

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Plaintiff states that on November 29, 2007, Defendant Tim Vedder, an employee

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of Bertolini, instructed him to take a drug test that same day in Elko, Nevada. Plaintiff

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claims he would have exceeded his service hours had he driven to the testing facility

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and so instead took the test the next day, on November 30, 2007. (Id. ¶¶ 13, 14.) The

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drug test results were negative. (Id. ¶ 15.) Plaintiff continued to drive for approximately

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five weeks following the drug test until he was fired on or about January 9, 2008. (Id.

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¶ 16.)

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Plaintiff filed complaints with the United States Department of Labor/Occupational

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Safety and Health Administration (“OSHA”) on January 18, 2008, and with the United

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States Department of Transportation (“USDOT”) on January 19, 2008, regarding his

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termination from Bertolini. (Id. ¶¶ 18, 19.) The USDOT is tasked with, among other

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responsibilities, enforcing the Federal Motor Carrier Safety Regulations. (See dkt. no.

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21-1 at 1, 4.) As part of their enforcement work, the USDOT conducts investigations

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concerning compliance with these regulations. (See id. at 5.) Plaintiff stated that the

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USDOT investigated his Complaint in March 2008 but failed to confirm that the welded

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leaf spring on the trailer was unsafe. (Dkt. no. 1 ¶ 21.) USDOT determined that Bertolini

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appropriately terminated Plaintiff for refusing to take the November 29, 2007, drug test.

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(Id.) The parties disagree on the date that USDOT completed its investigation and

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informed Plaintiff of its decision. On May 7, 2010, OSHA completed its investigation and

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found that Plaintiff was terminated for threatening to report the condition of the trailer and

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not for refusing to take the drug test. (Id. ¶ 4.)

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B.

Procedural History

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Plaintiff filed his Complaint on May 3, 2012, bringing a negligence claim against

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the United States and defamation claims against Brian Bertolini and Tim Vedder. (Dkt.

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no. 1.) Defendant United States filed its Answer on October 1, 2012 (dkt no. 14), and a

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Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on December 19,

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2012 (dkt no. 21).

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III.

LEGAL STANDARD

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A Motion to Dismiss under Rule 12(b), such as the one at issue in this case,

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cannot be filed after a responsive pleading. The rule states that “[a] motion asserting any

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[12(b)] defenses must be made before pleading if a responsive pleading is allowed.”

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Fed. R. Civ. P. 12(b). As Defendant has, however, provided evidence in support of its

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Motion, the Court will construe the Motion to Dismiss as a Rule 56 motion for summary

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judgment.

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The purpose of summary judgment is to avoid unnecessary trials when there is no

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dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18

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F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings,

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the discovery and disclosure materials on file, and any affidavits “show there is no

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genuine issue as to any material fact and that the movant is entitled to judgment as a

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matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine”

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if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for

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the nonmoving party and a dispute is “material” if it could affect the outcome of the suit

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under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

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In evaluating a summary judgment motion, a court views all facts and draws all

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inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v.

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Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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IV.

DISCUSSION

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Plaintiff alleges that the USDOT performed its investigation of his administrative

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complaint negligently. (See dkt. no. 1 ¶¶ 33, 34.) He brings this claim under the Federal

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Tort Claims Act (“FTCA”). The FTCA removes the United States’ sovereign immunity

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from suits in tort for “‘injury or loss of property, or personal injury or death caused by the

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negligent or wrongful act or omission’ of federal employees acting within the scope of

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their employment.” Levin v. United States, 133 S. Ct. 1224, 1228 (2013) (quoting 28

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U.S.C. § 1346(b)(1)). The result of the FTCA is that the United States is liable “‘to the

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same extent as a private individual under like circumstances,’ § 2674, under the law of
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the place where the tort occurred, § 1346(b)(1), subject to enumerated exceptions to the

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immunity waiver, §§ 2680(a)-(n).” Id. As a threshold matter, therefore, the United States

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can only be subject to suit if a private individual, under the laws of their state, would be

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liable for the same alleged “negligent or wrongful act.” See 28 U.S.C. § 1346(b)(1).

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The FTCA has no application here because the “negligent or wrongful act” at

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issue in this case, specifically the USDOT’s alleged negligent investigation of Plaintiff’s

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administrative complaint, has no analogue for private individuals. The USDOT is

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required to investigate complaints of substantial violations of the Federal Motor Carrier

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Safety Regulations. 49 C.F.R. § 386.12. Investigation into whether federal regulations

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are violated is a unique government function that private persons do not perform. See

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Cortez v. Equal Employment Opportunity Commission, 585 F. Supp. 2d 1273, 1284

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(D.N.M. 2007) (“A public regulatory function such as processing and investigating

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discrimination charges is a uniquely governmental function that private persons are

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incapable of performing.”) (citing United States v. Agronics, Inc., 164 F.3d 1343, 1345–

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46 (10th Cir. 1999).

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Even if the Court held that the FTCA applied, this case would fall within the law’s
discretionary function exception. The government is not liable for:

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[a]ny claim based upon an act or omission of an employee of the
Government exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused.

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28 U.S.C. § 2680(a). There is a two-part test for determining whether the discretionary

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function exception applies: (1) whether the challenged actions involve any element of

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judgment or choice; and (2) whether that judgment is of the kind that the discretionary

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function exception was designed to shield. United States v. Gaubert, 499 U.S. 315, 322-

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23 (1991).

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The United States has satisfied both parts of the test. While the USDOT is obliged

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to conduct an investigation for substantial violations, its investigators have discretion
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regarding how each investigation is conducted. (See dkt. no. 21 at 6.) The Ninth Circuit

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has held that the discretion deployed by agencies in conducting investigations satisfies

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prong 1. See, e.g., Sabow v. United States, 93 F.3d 1445, 1451-53 (9th Cir. 1996);

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Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000). Additionally, investigations

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by federal agencies have been found to clearly involve the “considerations of social,

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economic, or political policy” that the exception is designed to shield. In re Glacier Bay,

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71 F.3d 1447, 1450 (9th Cir. 1995); see also Sabow, 93 F.3d at 1453–54. The

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investigation at issue in this case therefore falls within the discretionary function

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exception.

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In sum, even viewing all facts and drawing all inferences in the light most

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favorable to Plaintiff, his claim against the United States does not fall within the FTCA.

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Even if the FTCA applies, the conduct about which he bases his claim falls within the

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discretionary function exception. Accordingly, Plaintiff’s claim against the United States

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fails as matter of law.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion.

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IT IS THEREFORE ORDERED that Defendant’s Motion (dkt. no. 21) is
GRANTED.
DATED THIS 9th day of August 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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