Terry v. Corporation for National and Community Service

Filing 59

MEMORANDUM & ORDER ADOPTING REPORT & RECOMMENDATIONS for 52 Report and Recommendations, 40 Motion for Judgment on the Pleadings filed by Corporation for National and Community Service. For the foregoing reasons, the Court adopts Judge Netbum's thorough and well-reasoned Report in its entirety. CNCS's motion for judgment on the pleadings is granted. The Clerk of Court is directed to close this case. SO ORDERED. (Signed by Judge Ronnie Abrams on 8/11/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------)(

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: 08/11/2017

ELIZABETH TERRY,
Plaintiff,
No. 15-CV-9660 (RA)
v.

MEMORANDUM & ORDER
ADOPTING REPORT &
RECOMMENDATION

CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE,
Defendant.

)(

RONNIE ABRAMS, United States District Judge:
Plaintiff Elizabeth Terry, proceeding pro se, brings this action against Defendant
Corporation for National and Community Service ("CNCS"), asserting a variety of claims related
to her participation in the Volunteers in Service to America ("VISTA") program. Before the Court
is the March 21, 2017 Report and Recommendation of the Hon. Sarah Netbum, United States
Magistrate Judge, recommending that the Court grant Defendants' motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the
Court adopts this recommendation.
BACKGROUND 1

Between August 30, 2014 and February 24, 2015, Terry served as a VISTA member. As
the agency charged with administering the VISTA program, CNCS placed Terry with World Cares
Center, a non-profit organization located in New York. On February 25, 2015, CNCS terminated
Terry's service for lack of a suitable reassigriment.

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The Court assumes familiarity with the facts underlying this case, see Report at 2-4, and recites
only those facts relevant to Plaintiffs objections.

On October 27, 2015, Terry filed suit against CNCS in state court. The action was then
removed to this Court, where Terry twice amended her complaint. Terry's second amended
complaint claims that CNCS did not pay her the full amount of her allowance under the VISTA
program, denied her unemployment insurance following her termination, did not provide her the
type of education her employer had promised, was negligent with respect to a cyberattack on the
Office of Personnel Management, and gave her an unreasonable workload. See SAC at 2, 4 (Dkt.
22-1). On September 26, 2016, CNCS moved for judgment on the pleadings. See Dkt. 40.
On March 21, 2017, Judge Netbum issued a Report and Recommendation (the "Report"),
recommending that the Court grant CNCS's motion in its entirety. See Dkt. 52. Judge Netbum
concluded that the Court lacks jurisdiction over this action because CNCS, as a federal agency,
had not waived sovereign immunity for Terry's claims. See Report at 6-8. Judge Netbum further
concluded that, to the extent that Terry sought to assert a claim for negligence under the Federal
Tort Claims Act, the Court would nonetheless lack jurisdiction because Terry had failed to name
the United States as a defendant. See id. at 8-9. Finally, Judge Netbum determined that, even if
the Court had jurisdiction over this action, Terry had failed to state a claim for relief. See id. at 918.
On April 26, 2017, after receiving an extension, Terry filed objections to the Report. See
Pl.'s Letter to Ct. (Apr. 26, 2017) ("Pl.'s Obj.") (Dkt. 56). On May 9, 2017, CNCS filed a response.
See Def. 's Resp. (Dkt. 57).
ST AND ARD OF REVIEW

A district court "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). Under Federal Rule of
Civil Procedure 72(b ), a party may make "specific written objections to the proposed findings and

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recommendations" within fourteen days of being served with a copy of a magistrate judge's
recommended disposition. Fed. R. Civ. P. 72(b)(2). A district court must review de nova "those
portions of the report or specified proposed findings or recommendations to which objection is
made." 28 U.S.C. § 636(b)(l). However, "[w]hen a party makes only conclusory or general
objections, or simply reiterates the original arguments, the Court will review the Report strictly for
clear error." George v. Prof'! Disposables Int'l, Inc., 221 F. Supp. 3d 428, 433 (S.D.N.Y. 2016)
(citation omitted); see also Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002) ("[O]bjections that are merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same arguments set forth in the original [papers] will
not suffice to invoke de nova review.").
DISCUSSION
Terry argues that, contrary to Judge Netburn's conclusion, the Court has jurisdiction over
her claims. See Pl. 's Obj. at 1. The Court need not decide whether to review this objection de nova
or for clear error, as it finds no error, clear or otherwise, in Judge Netburn's conclusion that the
Court lacks jurisdiction.
"Absent an 'unequivocally expressed' statutory waiver, the United States, its agencies, and
its employees (when functioning in their official capacities) are immune from suit based on the
principle of sovereign immunity." County ofSuffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010)
(quoting Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999)). "The waiver of
sovereign immunity is a prerequisite to subject-matter jurisdiction." Presidential Gardens Assocs.
v. United States, 175 F.3d 132, 139 (2d Cir. 1999); see also FDIC v. Meyer, 510 U.S. 471, 475
(1994) ("Sovereign immunity is jurisdictional in nature."). In this case, Terry has provided no
basis for concluding that CNCS, as an agency of the United States, has waived sovereign

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immunity. As Judge Netbum correctly explained, the government has waived sovereign immunity
over employment-related claims under certain statutes, such as the Civil Service Reform Act of
1978 ("CSRA") or the Fair Labor Standards Act of 1934 ("FLSA"). These statutory waivers of
sovereign immunity are inapplicable in this case, however, because Terry was not a federal
employee. With certain exceptions not applicable here, VISTA volunteers "shall not be deemed
Federal employees and shall not be subject to the provisions of laws relating to Federal officers
and employees and Federal employment." 42 U.S.C. § 5055(a); see Cameron v. Wofford, 955 F.
Supp. 1319, 1322 (D. Kan. 1997) ("Congress has expressly stated that a VISTA volunteer shall
not be considered a federal employee."). Accordingly, to the extent that Terry seeks to assert
employment-related claims under either the CSRA or the FLSA, neither of these statutes waives
sovereign immunity over her claims.
Nor does the Court have jurisdiction over Terry's negligence claim under the Federal Tort
Claims Act ("FTCA"). Pursuant to 42 U.S.C. § 5055(b), a VISTA volunteer may be deemed a
federal employee for the purposes of the FTCA, provided that she is enrolled for part-time service
of at least twenty hours per week for at least twenty-six consecutive weeks. See 42 U.S.C. §
5055(b). "The FTCA, however, precludes tort suits against federal agencies," and "[t]he only
proper federal institutional defendant in such an action is the United States." Rivera v. United

States, 928 F.2d 592, 609 (2d Cir. 1991) (citing 28 U.S.C. § 2679(a)). Thus, any FTCA claim
asserted against a federal agency must be dismissed for lack of federal jurisdiction. See id. Here,
Terry has named only CNCS, and not the United States, as a defendant. Even assuming that Terry
could be deemed a federal employee for purposes of asserting a claim under the FTCA, any FTCA
claim she seeks to assert must be dismissed for lack of jurisdiction. See id. Moreover, Judge
Netbum correctly recognized that even if Terry cured this defect through an amendment, she has

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not exhausted the FTCA's administrative remedies-a jurisdictional requirement that cannot be
waived. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
Judge Netbum was therefore correct in determining that the Court lacks jurisdiction over Terry's
negligence claim under the FTCA.
In sum, the Court lacks jurisdiction over this action. CNCS is entitled to judgment on the
pleadings under Rule 12(c).
CONCLUSION

For the foregoing reasons, the Court adopts Judge Netbum's thorough and well-reasoned
Report in its entirety. CNCS's motion for judgment on the pleadings is granted. The Clerk of
Court is directed to close this case.
SO ORDERED.
Dated:

August 11, 2017
New York, New York
Ror,mie Abrams
'
United States District Judge

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