Greene v. United States Department of Justice
ORDER granting 9 Motion to Dismiss. The Clerk of Court is DIRECTED to close this case. Signed by Senior Judge James C. Fox on 9/24/2014. (Grady, B.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
CHELSEA ELIZABETH GREENE,
UNITED STATES DEPARTMENT OF
This matter is before the court on Defendant's Motion to Dismiss [DE-9]. Plaintiff filed
a Memorandum in Opposition to the Motion to Dismiss [DE-12], to which Defendant filed a
Reply [DE-13]. This matter is ripe for disposition. For the reasons more fully stated below, the
Motion to Dismiss is ALLOWED.
I. STATEMENT OF THE CASE
Plaintiff ("Greene") filed the instant claim under the Federal Torts Claim Act, 28 U.S.C.
§ 2671, et seq., on April24, 2014 [DE-2]. She argues that the actions of federal government
employees on several occasions give rise to a claim for "negligent failure to prosecute." Compl.
On January 5, 2007, Greene filed a complaint in the United States District Court for the
Western District ofNorth Carolina ("WDNC") against her former employer, Omni Visions, Inc.
("Omni"), pursuant to the qui tam provisions of the False Claims Act. Pl.'s Opp. to Mot. to
Dismiss [DE-12] at 2; Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 1 [DE-10-1]. She alleged
that Omni had engaged in fraudulent billing practices. Compl.
17-18. On August 29, 2007, the
U.S. Attorney for the WDNC declined to intervene in the action, and Greene subsequently took a
voluntary dismissal. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 1 [DE-10-1]. She claims
that Omni, along with other of her employers, terminated her employment in response to bringing
the qui tam action. Compl. ~ 20.
On March 26, 2009, Greene filed an administrative complaint against Omni with the U.S.
Department of Labor ("DOL"), alleging that the company violated the whistleblower protections
ofthe Sarbanes-Oxley Act. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 2 [DE-10-2] at 1-3.
An administrative law judge dismissed the case based on Greene's late filing, and the DOL's
Administrative Review Board upheld the decision. !d. at 8. After the Fourth Circuit affirmed the
dismissal (Case No. 11-1550), Greene filed a writ of certiorari seeking review by the United
States Supreme Court. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 3 [DE-10-3]. On March
15, 2012, the Solicitor General waived his right to respond to the petition, and the Supreme Court
subsequently declined to review the case. !d.
Greene commenced an administrative tort claim against the DOL and the U.S.
Department of Justice ("DOJ") on September 10, 2012, alleging negligent handling of her qui
tam action and whistleblower appeal. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 4 [DE-104]. Throughout the following year, Greene contacted the DOJ several times requesting updates
on the status of her claim. Compl.
28-30. She received communications indicating that either
no determination had been made or that no status report was available. !d. Greene, pursuant to
28 U.S.C. § 2675, deemed her claim to be constructively denied and filed this action. !d.
Greene contends that Defendant ("the Government") "owed [her] a duty to protect her
under the various federal whistleblower laws .... " Compl. ~ 33. She argues that the
Government breached that duty by failing to 1) intervene in the qui tam action and prosecute
Omni; 2) submit a waiver and respond to her petition for certiorari in the whistleblower action;
and 3) make a timely determination regarding her tort claim. Jd
34. Greene alleges that this
"negligent failure to prosecute" directly and proximately caused her reputational damage and
emotional distress, and resulted in lost wages. Id
The Government asserts several defenses, including the statute of limitations and failure
to state a claim upon which relief can be granted. Mem. in Support of Def.'s Mot. to Dismiss
[DE-l 0] at 5-8.
Defendants move to dismiss plaintiffs complaint pursuant to Rules 12(b)(l) and 12(b)(6)
of the Federal Rules of Civil Procedure. In a motion to dismiss pursuant to Rule 12(b)( 1), the
plaintiff bears the burden of showing that federal jurisdiction is appropriate. McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936). A district court should allow a Rule
12(b)(l) motion to dismiss "only ifthe material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter oflaw." Evans v. B.F Perkins Co., 166 F.3d 642,
64 7 (4th Cir.1999) (internal citation omitted). In considering a motion to dismiss based on Rule
12(b)(l), the court is "to regard the pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for summary judgment."
Rule 12(b)(6) permits a court to dismiss an action for "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint need only contain
"a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a)(2). A 12(b)(6) motion should only be granted if"it appears certain that the plaintiff
cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of
Goldsboro, 178 F .3d 231, 244 (4th Cir. 1999). However, a complaint that proffers only "a
formulaic recitation of the elements of a cause of action" with no "further factual enhancement"
is insufficient. Bell At/. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). To survive dismissal,
a party must come forward with "enough facts to state a claim to relief that is plausible on its
face." !d. at 548. The plausibility standard is met "when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The court must accept as true all well-pleaded
allegations and must draw all reasonable factual inferences in favor of the plaintiff. See
Venkatraman v. REI Sys., Inc., 417 F .3d 418, 420 (4th Cir. 2005); Myan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993).
A court may consider documents not attached to a complaint without converting a Rule
12(b)(6) motion into a summary judgment motion when such documents are "integral to and
explicitly relied on in the complaint and [where] the [plaintiff does] not challenge [the
documents'] authenticity." Phillips v. LCI Intern., Inc., 190 F.3d 609, 618 (4th Cir. 1999).
Defendants may attach such documents to a motion to dismiss without converting it into a
summary judgment motion. Gasner v. Cnty of Dinwiddie, 162 F.R.D. 280,282 (E.D. Va. 1995)
(allowing the defendant to attach a "pertinent document" to its motion to dismiss without
converting the motion into one for summary judgment). Accordingly, the court will consider
documents from the related cases that Greene cites in her complaint, which the Government has
attached to its Memorandum in Support of its Motion to Dismiss.
Although the Government has not challenged Greene's standing, the court must consider
the issue sua sponte when necessary. See Boeing Co. v. Van Gernert, 444 U.S. 472, 488 n.4
(1980); Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1223 (4th Cir. 1980). To establish
standing, "a plaintiff must allege (1) an injury in fact which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the
injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a
favorable decision. Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992) (internal
quotation marks and citations omitted). If the plaintiff has no standing, the court lacks the
necessary subject matter jurisdiction. See Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)
("[T]he defect of standing is a defect in subject matter jurisdiction.").
In Caldwell v. Kagan, 865 F. Supp. 2d 35,39 (D.D.C. 2012) affd, No. 12-5298,2013
WL 1733710 (D.C. Cir. Mar. 22, 2013), a plaintiff brought suit against the Solicitor General for
waiving her right to respond to plaintiffs certiorari petition before the Supreme Court. The
plaintiff alleged that this led to the Supreme Court's denial of his petition. !d. at 39-40. The
court held that "[the] injury was not 'fairly ... traceable' to the challenged actions of the
defendants, because the Supreme Court, not the Solicitor General, denied plaintiffs petition for
certiorari." !d. at 41. Thus, the court found that the plaintifflacked standing. !d. at 42.
In the instant case, the DOL Administrative Review Board dismissed Greene's
administrative complaint alleging that Omni violated the whistleblower provisions of the
Sarbanes-Oxley Act. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 2 [DE-10-2], at 8. After
losing on appeal, Greene filed a certiorari petition seeking review in the Supreme Court. Mem.
in Support ofDef.'s Mot. to Dismiss, Ex. 3 [DE-10-3]. The Supreme Court denied her petition,
id., and Greene now alleges that the Solicitor General's "[failure] to submit a waiver and respond
to the petition ... resulted in the denial."' Compl. ~ 34c.
The court finds that, with regard to this allegation, Greene lacks standing. Greene has
alleged no facts that would establish the necessary causal connection between her injury - the
Supreme Court's denial of her certiorari petition- and the conduct complained of- the
Solicitor General's failure to submit a waiver or respond to her petition. To the extent that
Greene's claim for "negligent failure to prosecute" arises out of the Solicitor General's omission,
it is DISMISSED for lack of standing.
Statute of Limitations
"It is well established that the United States, as sovereign, is immune from suit unless it
consents to be sued." Gould v. United States Dep 't of Health and Human Servs., 905 F .2d 73 8,
741 (4th Cir. 1990). "[T]he terms of its consent to be sued in any court define that court's
jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941).
"Sovereign immunity is jurisdictional in nature." F.D.IC. v. Meyer, 510 U.S. 471,475 (1994).
Accordingly, when sovereign immunity prevents a plaintiff from recovering, a court lacks subject
matter jurisdiction to hear the plaintiffs claims. !d.
The FTCA acts as a limited waiver of sovereign immunity, but it "permits suit only on
terms and conditions strictly proscribed by Congress." Gould, 905 F.2d at 741. One of those
The court notes that, according to the Supreme Court docket, the Solicitor General did indeed
file a waiver of right to respond. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 3 [DE-10-3].
conditions is strict compliance with the Act's statute of limitations period. See Muth v. United
States, 1 F.3d 246,249 (4th Cir. 1993). A plaintiff must file an administrative tort claim within
two years after the cause of action accrues, or else be "forever barred" from bringing the claim.
28 U.S.C. § 2401(b); see also Gould, 905 F.2d at 741.
The Government contends that Greene's claim, as it pertains to the U.S. Attorney for the
WDNC's failure to intervene and prosecute Omni under the False Claims Act, falls outside of the
FTCA's prescribed statute oflimitations. 2 Mem. in Support ofDef.'s Mot. to Dismiss [DE-10]
at 6. Thus, the Government maintains, this allegation "is time-barred and must be dismissed for
lack of subject matter jurisdiction." Id Greene argues that this allegation is not time-barred
because it involves a "continuing wrong," in which case the statute of limitations begins to run
from the last day ofthe continuing offense. Pl.'s Opp. to Mot. to Dismiss [DE-12] at 6-7.
A "continuing offense" is a wrong that is part of an ongoing scheme or plan, as opposed
to a discrete occurrence. See Rodrigue v. Olin Emps. Credit Union, 406 F.3d 434, 441, 443 (7th
Cir. 2005). "To establish a continuing violation[,] the plaintiff must establish that the ... illegal
act was a fixed and continuing practice." Nat'/ Advert. Co. v. City of Raleigh, 947 F.2d 1158,
1166 (4th Cir. 1991) (internal quotation marks and citation omitted). This doctrine serves to
assist plaintiffs in situations where it is difficult "to discern at any particular point during that
time the wrongful and injurious nature of the defendant's conduct." Rodrigue, 406 F.3d at 445.
For a "continuing offense," the statute oflimitations "begins anew with each violation." Nat'/
Advert Co., 947 F.2d at 1167 (internal quotation marks and citation omitted).
Defendant concedes that Greene's allegations regarding the Government's failure to submit a
waiver or respond to her certiorari petition and failure to make a timely determination on her tort claims
are not time-barred. Mem. in Support of Def. 's Mot. to Dismiss [DE-l 0] at 6.
Greene argues that the Government's failure to properly prosecute her claim against
Omni constituted a continuing offense "[b]ecause the injury caused by Defendant ... was not a
one-time injury." Pl.'s Opp. to Mot. to Dismiss [DE-12] at 7. Greene filed her administrative
tort claim on September 10,2012. !d. As of September 10,2010, the Government's "negligent
failure to prosecute" was ongoing, and therefore, Greene argues, her claim is not barred by the
FTCA's two-year statute of limitations. !d.
The court agrees with the Government that the alleged acts do not amount to a continuing
offense. The U.S. Attorney's Notice of Election to Decline Intervention in Greene's qui tam
action against Omni was filed in the U.S. District Court for the WDNC on August 29, 2007.
Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 1 [DE-10-1]. This put Greene on notice that the
Government did not intend to prosecute Omni in her qui tam action. The U.S. Attorney's denial
to intervene was a discrete occurrence disconnected from Greene's other allegations, which relate
to government action taken by other attorneys that had no involvement in her qui tam action.
Greene has failed to establish that the alleged government acts amounted to a fixed and
continuing practice of"negligent failure to prosecute."
Greene's claim arising out of the alleged failure of the U.S. Attorney of the WDNC to
intervene and prosecute Omni under the False Claims Act accrued in 2007. Because her
administrative tort claim was not filed until September of2012, Greene's allegations pertaining
to this occurrence are time-barred.
Failure to State a Claim
Under the FTCA, "[t]he United States shall be liable ... in the same manner and to the
same extent as a private individual under like circumstances .... " 28 U.S.C. § 2674. A claim
under the FTCA is derived from applicable state law. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471,477-78. Thus, in the instant case, the Government will be liable to the extent that its
employees would be liable under applicable North Carolina law.
Under North Carolina law, an attorney can be held liable for negligently prosecuting a
client's civil claim under a legal malpractice theory. See Rorrer v. Cooke, 329 S.E.2d 355, 358
(N.C. 1985); Hodges v. Carter, 80 S.E.2d 144, 145-46 (N.C. 1954). A legal malpractice claim is
predicated upon the existence of an attorney-client relationship, which does not depend on a
formal contract or express verbal agreement, but can be reasonably inferred from the
circumstances. See Rorrer, 329 S.E.2d at 366; Broyhill v. Aycock & Spence, 402 S.E.2d 167, 172
(N.C. Ct. App. 1991).
Greene argues that, with regard to all of her allegations, the existence of an attorney-client
relationship between her and the involved government attorneys can be inferred. Pl.'s Opp. to
Mot. to Dismiss [DE-12] at 9. She maintains that she "reasonably relied on [the Government] to
prosecute her case with due care" and that the Government breached its duty by failing to 1)
intervene and prosecute Omni in her qui tam action under the False Claims act; 2) submit a
waiver and respond to her certiorari petition seeking discretionary review of her whistle blower
claim; and 3) make a timely final determination regarding her administrative tort claim. Id. at 910.
The court disagrees, and finds that she has failed to allege sufficient facts to support the
existence of an attorney-client relationship between her and the government attorneys involved in
her cases. The court will address Greene's allegations as to each attorney's office in tum.
1. The U.S. Attorney's failure to intervene and prosecute Omni in Greene's qui tam
action under the False Claims Act
Even if Greene's claim regarding the qui tam action was not time-barred, she has failed to
state a valid claim for relief. Greene has failed to allege sufficient facts that would establish an
attorney-client relationship between her and the U.S. Attorney that declined to intervene in the
First, as a qui tam relator, Greene was represented by independent counsel, who withdrew
only after the Government declined to intervene. Mem. in Support of De f.'s Mot. to Dismiss,
Ex. 1 [DE-l 0-1]. Being represented by her own counsel, no attorney-client relationship between
her and the U.S. Attorney can reasonably be inferred.
Second, as the Government rightly points out, an attorney-client relationship between the
government and a qui tam relator would give rise to several ethical violations under the North
Carolina Rules of Professional Conduct. Under the False Claims Act, the Government is not
bound by any act of the relator, and has the right to dismiss or settle a case over the objection of
the relator. 31 U.S.C. § 3730(c). Such action would violate North Carolina Rule of Professional
Conduct 1.2, which requires attorneys to "abide by a client's decision concerning the objectives
of representation," and "a client's decision whether to settle a matter." An attorney-client
relationship between the U.S. Attorney and Greene, as a qui tam relator, cannot be inferred in
these circumstances. Accordingly, the Government owed Greene no duty to intervene in the
action or prosecute Omni under the False Claims Act.
2. The Solicitor General's involvement in Greene's certiorari petition
Even assuming Greene has standing to bring a claim based on the Solicitor General's
alleged failure to submit a waiver or respond to her certiorari petition, Greene has failed to
present any facts that could plausibly establish an attorney-client relationship between her and the
Solicitor General. The Solicitor General represented the DOL- the very agency which had
denied her administrative whistleblower claim for which she was seeking review in the Supreme
Court. Mem. in Support ofDef.'s Mot. to Dismiss, Ex. 3 [DE-10-3]. The Solicitor General
stood adverse to Greene in this proceeding, and owed her no duty to "prosecute [her] claim
with due care." Pl.'s Opp. to Mot. to Dismiss [DE-12] at 9. Because no attorney-client
relationship can be inferred, Greene cannot maintain a claim predicated upon the legal
malpractice of the Solicitor General.
3. The Government's failure to make a final determination regarding Greene's
administrative tort claims
Greene filed an administrative tort claim with the DOJ and DOL alleging negligence in
the handling ofher qui tam and whistleblower cases. Mem. in Support ofDef.'s Mot. to
Dismiss, Ex. 4 [DE-10-4]. She received no final determination of her claim before filing the
instant action. Pl.'s Opp. to Mot. to Dismiss [DE-12] at 2. Greene now argues that the
Government breached its duty to "prosecute [her] claims with due care, as required by the federal
whistleblower statutes" by "failing to make a determination [regarding her tort claims] in a
timely manner." ld at 9; Compl.
To the extent that Greene alleges an attorney-client relationship between herself and the
government attorneys evaluating her administrative tort claims, the court finds no facts to support
the existence of such a relationship. The fact that her tort claims were adverse to the DOJ and
DOL precludes a reasonable inference that she formed an attorney-client relationship with the
DOJ or DOL attorneys. Greene has also failed to allege how the government attorneys
evaluating her tort claims could have owed her any duty with respect to the prosecution of her
whistleblower claims. Consequently, this allegation falls short of stating a valid claim for
negligent failure to prosecute.
Greene lacks standing to challenge the Solicitor General's alleged failure to submit a
waiver or respond to her certiorari petition. Additionally, her claim relating to the Government's
failure to intervene and prosecute Omni in her qui tam action is barred by the FTCA's statute of
limitations. To the extent that Greene has standing and her claims are not time-barred, Greene
has failed to state a valid claim for negligent failure to prosecute. Accordingly, the
Government's Motion to Dismiss [DE-9] is ALLOWED. The Clerk of Court is DIRECTED to
close this case.
SO ORDERED .
This the?. 1 day of September, 2014.
nior United States District Judge
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