Libran-Salas et al v. United States of America Department of Agriculture et al
Filing
35
OPINION AND ORDER: Granting 19 "Motion to Dismiss;" and Granting 22 "Motion for Joinder and/or Motion to Dismiss." See opinion and order attached. Signed by Judge Pedro A. Delgado-Hernandez on 2/18/2015. (DJP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS LIBRAN-SALAS, et al.,
Plaintiffs,
v.
CIVIL NO. 14-1121 (PAD)
UNITED STATES OF AMERICA
DEPARTMENT OF AGRICULTURE, et
al.,
Defendants.
OPINION AND ORDER
Delgado-Hernández, District Judge.
Luis Librán-Salas, Ivette González-Miranda and their conjugal partnership initiated this
action against United States of America Department of Agriculture, Virgilio Vélez-Suárez, Ana
Denizard, and their conjugal partnership, seeking payment for damages under the Federal Tort
Claims Act, 28 U.S.C. § 2671 et seq. Before the Court are: (1) the United States of America’s
“Motion to Dismiss” (Docket No. 19); and (2) Vélez-Suárez and Ana Denizard’s “Motion for
Joinder and/or Motion to Dismiss” (Docket No. 22). Plaintiffs filed an omnibus opposition
(Docket No. 25), defendants replied (Docket Nos. 30 and 31), and plaintiffs sur-replied (Docket
No. 34).
For the reasons explained below, the motions are GRANTED and the case is
DISMISSED.
I.
BACKGROUND
In essence, plaintiffs claim that beginning in or around November 2011 and until March
2012, Mr. Librán-Salas was subjected to a pattern of continuous harassment by Mr. Vélez-Suárez,
his direct Supervisor at the United States Department of Agriculture (Docket No. 1 at ¶ 7). Such
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Civil No. 14-1121 (PAD)
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harassment was primarily on account of Mr. Librán-Salas’ medical condition. Id. at ¶¶ 9-10. It
included episodes of humiliation in front of coworkers, shouts, threats, insults, cancellation of
vacations and compressed work schedules that had been granted in connection to Mr. LibránSalas’ medical conditions. Id. at ¶ 8. According to Mr. Librán-Salas, one particular incident
involved violence. Id. at ¶ 11. As a result (1) an investigation was initiated by the USDA, (2) Mr.
Librán-Salas was transferred out of the Caguas office, and (3) fell into a deep depression. Id. at ¶
12. On May 13, 2013, Mr. Librán-Salas was discharged from his position at USDA for depression.
Id. at ¶ 13. Defendants now move the Court to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6).
II.
STANDARD OF REVIEW
A. Fed.R.Civ.P. 12(b)(1)
Fed.R.Civ.P. 12(b)(1) states that a party may seek dismissal of an action for lack of subject
matter jurisdiction. “When a district court considers a Rule 12(b)(1) motion, it must credit the
plaintiff’s well-pled factual allegations and draw all reasonable inferences in the plaintiff’s favor.”
Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). If it appears to the court at any time
that subject matter jurisdiction is lacking, the Court must dismiss the action. Fed. R. Civ. P.
12(h)(3); see also McCulloch v. Vélez, 364 F.3d 1, 5 (1st Cir. 2004). “A case is properly dismissed
for lack of subject matter jurisdiction under Rule 12(b)(1) when the Court lacks the statutory or
constitutional power to adjudicate the case.” Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1187 (2d Cir. 1996) and Prestige Capital Corp. v. Pipeliners of Puerto Rico, Inc., 849
F.Supp.2d 240 (D.P.R. 2012). In evaluating a motion to dismiss under Rule 12(b)(1) for lack of
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subject matter jurisdiction, the Court ordinarily may consider whatever evidence has been
submitted, such as depositions and exhibits. Carroll v. U.S., 661 F.3d 87, 94 (1st Cir. 2011).
B. Fed.R.Civ.P. 12(b)(6)
To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must allege a plausible
entitlement to relief. Rodríguez-Vives v. Puerto Rico Firefighters Corps., 743 F.3d 278, 283 (1st
Cir. 2014); Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013); RodríguezOrtiz v. Margo Caribe, 490 F.3d 92, 95 (1st Cir. 2007). Plausibility involves a context-specific
task calling on courts to examine the complaint as a whole, separating factual allegations (which
must be accepted as true) from conclusory allegations (which need not be credited). GarcíaCatalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013); Morales-Cruz v. Univ. of P.R., 676
F.3d 220, 224 (1st Cir. 2012).
While detailed factual allegations are not required, more than labels and conclusions are
needed. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Where the wellpleaded facts do not permit the court to reasonably infer more than the mere possibility of
misconduct, the complaint has alleged – but has not shown – that the pleader is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 663, 678 (2009).
III.
DISCUSSION
A. Disability-based Discrimination
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability against
otherwise qualified individuals working for an executive agency or a program receiving federal
funds. 29 U.S.C.A. §§ 791, 794. The statute constitutes the exclusive remedy for a federal
employee alleging disability-based discrimination. O'Hara v. Donahoe, --- Fed.Appx. ----, 2014
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WL 7210952, at *1, n. 1 (5th Cir. Dec. 19, 2014); Russell v. Lew, 549 F.Appx. 389, 394 (6th Cir.
2013). To the extent they are precluded by the Rehabilitation Act, plaintiffs’ claims of disabilitybased discrimination under the FTCA must be dismissed for want of subject matter jurisdiction.
B. Adverse Personnel Actions
The Civil Service Reform Act of 1978, Pub. L. No. 95–454, 92 Stat. 1111 (1978) (codified
as amended in scattered sections of Title 5 of the United States Codes), was enacted to provide a
comprehensive scheme for federal employees to challenge adverse personnel decisions. U.S. v.
Fausto, 484 U.S. 439, 455 (1988). Courts have consistently held that, when applicable, the CSRA
preempts any claim brought pursuant to the FTCA. See, Plasai v. Mineta, 212 Fed.Appx. 287, 292
(5th Cir. 2006); Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005); Grisham v. U.S., 103 F.3d
24, 27 (5th Cir. 1997); Steele v. U.S., 19 F.3d 531, 533 (10th Cir. 1994); Berrios v. Department of
Army, 884 F.2d 28, 30 (1st Cir. 1989).
Plaintiffs claim that as part of Mr. Vélez-Suárez’ harassment campaign, the latter cancelled
Mr. Librán-Salas’ vacations and compressed work schedules that had been granted in connection
to his medical conditions (Docket No. 1 at ¶ 8). Mr. Librán-Salas was employed by the Federal
Government, and his claims for adverse personnel actions are covered by the CSRA. 1
Consequently, plaintiffs’ claims brought pursuant to the FTCA on those grounds are preempted
and must be dismissed.
1
5 U.S.C.A. § 2302(b)(1)(D) provides, that any employee who has authority to take, direct others to take, recommend,
or approve any personnel action, shall not, with respect to such authority-- discriminate for or against any employee
or applicant for employment-- on the basis of handicapping condition, as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791).
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C. Mental Anguish and Suffering
The Federal Employees Compensation Act, 5 U.S.C. §§ 8101-8193, establishes a federal
workers’ compensation program for employees who suffer a “disability” as a result of an on-thejob injury. Rolland v. Potter, 492 F.3d 45, 48 (1st Cir. 2007). Liability under FECA is “exclusive
and instead of all other liability of the United States . . . to the employee, his legal representative,
spouse, dependents, next of kin, and any other person otherwise entitled to recover damages.” Gill
v. U.S., 471 F.3d 204, 206 (1st Cir. 2006). “FECA’s exclusive liability provision . . . was designed
to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had
been enacted to waive the Government's sovereign immunity.” Id.; see also, Bruni v. U.S., 964
F.2d 76 (1st Cir. 1992)(holding that the liability imposed by FECA supplants all other liability –
including tort liability under the FTCA or other statutes – on the part of the United States to an
injured federal employee).
The Secretary of Labor has the duty to administer and decide all questions arising under
the statute Gill, 471 F.3d at 206 (citing 5 U.S.C. § 8145), and has consistently construed the statute
so as to include claims for work-related emotional distress. Id. at 208; see also, Spinelli v. Goss,
446 F.3d 159, 160-161 (D.C. Cir. 2006) (stating that the Secretary's decision that FECA covered
plaintiff's emotional and psychological injuries “settles the matter,” and holding that dismissal was
appropriate); Bennett v. Barnett, 210 F.3d 272, 277 (5th Cir. 2000) (noting that the Secretary took
the position that plaintiff's emotional distress claim was covered by FECA, and that the district
court did not have jurisdiction to decide FTCA claim for the same injury); Farley v. U.S., 162 F.3d
613, 616 (10th Cir. 1998) (concluding that there was a substantial question of compensability
under FECA based on the recognition that the Secretary has in some instances found FECA
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coverage for emotional distress claims); McDaniel v. U.S., 970 F.2d 194, 197 (6th Cir. 1992)
(acknowledging the Secretary's determination that FECA covered plaintiff's “disabling emotional
condition,” and affirming dismissal of FTCA action for lack of jurisdiction). In line with these
principles, plaintiffs’ claims for mental anguish under FTCA are barred and must be dismissed.
D. Negligent Hiring, Training and Retention
The FTCA waives the government’s sovereign immunity for certain torts committed by its
employees in the scope of their employment. Mahon v. U.S., 742 F.3d 11, 12 (1st Cir. 2014).
However, there are exceptions. In this connection, the Federal Tort Claims Act does not effect a
waiver of sovereign immunity for “any claim . . . 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.” 28 U.S.C. §
2680(a).
The analytic framework employed when evaluating a discretionary function inquiry
consists of a two-pronged approach. A court must first zero in on the conduct that supposedly
caused the harm. Next, the court must ask whether the harm-producing conduct itself is
discretionary, knowing that when a statute, regulation, or policy actually dictates a course of
action, the agent has no choice but to follow the directive. Mahon, 742 F.3d at 14.
The hiring of an employee involves several public policy considerations including
weighing of the backgrounds of applicants, evaluation of candidates’ qualifications, consideration
of staffing requirements, and assessment of budgetary and economic factors. LeRose v. U.S., 285
Fed.Appx. 93, 97 (4th Cir. 2008). Because this process is multi-faceted, it is precisely the type of
decision that Congress intended to shield from liability through the discretionary function
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exception. Id.; see also, Snyder v. U.S., --- Fed.Appx. ----, 2014 WL 5437999 (6th Cir. 2014)
(finding that an agency’s supervisory and hiring decisions fall within the discretionary function
exception). It follows that plaintiffs’ claims for negligent hiring, training and retention against the
United States are barred by the discretionary function exception must be dismissed.
E. Alleged Violence in the Workplace
In the complaint, plaintiffs mention a violent incident that occurred between Mr. LibránSalas and Mr. Vélez-Suárez (Docket No. 1 at ¶ 11). The problem, however, is that the FTCA
contains an explicit exclusion for any claim arising out of assault or battery. Pinero-Ocana v. U.S.,
38 Fed.Appx. 34 (1st Cir. 2002). 2 The Supreme Court has described that exclusion as sweeping,
commenting that it not only bars claims for assault or battery but also any claim arising out of
assault or battery. Id. (citing United States v. Shearer, 473 U.S. 52, 55 (1985)). Thus, plaintiffs’
claim brought pursuant to this alleged incident must be dismissed.
F. Constitutional Torts
In their opposition, plaintiffs appear to raise, for the first time, constitutional claims against
the United States (Docket No. 25 at p. 4). Such claims are misplaced. Although the FTCA
comprises a limited waiver of federal sovereign immunity, Calderon-Ortega v. U.S., 753 F.3d 250,
252 (1st Cir. 2014), such waiver is not extensible to claims for constitutional torts. FDIC v. Meyer,
510 U.S. 471, 476-77 (1994); Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011)
(finding that constitutional tort claims are not cognizable under the FTCA). Therefore, plaintiffs’
constitutional claims against the United States are barred and must be dismissed.
2
See, 28 U.S.C. § 2680(h)
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IV.
CONCLUSION
In view of the foregoing, and taking plaintiffs’ allegations as true, the Court finds that they
do not amount to actionable claims under the FTCA. To the extent Docket Nos. 19 and 22 seek
dismissal, the motions are GRANTED. As such, the Court DISMISSES plaintiffs’ claims.
Judgment will be entered accordingly.
SO ORDERED.
In San Juan, Puerto Rico, this 18th day of February, 2015.
S/Pedro A. Delgado-Hernández
PEDRO A. DELGADO HERNANDEZ
U.S. DISTRICT JUDGE
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