Rittgers vs. United States of America, et al.

Filing 21

ORDER granting 17 Motion to Dismiss; denying 20 Motion to Amend.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
COLBERT RITTGERS,
Plaintiff,
VS.
UNITED STATES OF AMERICA, et al,
Defendants.

November 03, 2015
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:15-CV-94
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ORDER
On September 15, 2015, this Court issued its Order (D.E. 16) granting the United
States of America’s (Government’s) motion to dismiss. Because that motion was not
joined by the Honorable John McHugh, Secretary, Department of the Army (Army), the
Court did not extend its order of dismissal to claims asserted against the Army. Now
before the Court is the Army’s “Motion to Dismiss Complaint for Lack of Jurisdiction
under Fed. R. Civ. P. 12(b)(1) and for Failure to State a Claim Under Fed. R. Civ. P.
12(b)(6)” (D.E. 17).

Also pending is Plaintiff’s “Motion for Leave to File Second

Amended Original Complaint” (D.E. 20). For the reasons set out below, the Court
DENIES Plaintiff’s motion for leave to amend (D.E. 20) and GRANTS the Army’s
motion to dismiss (D.E. 17).
DISCUSSION
Plaintiff Colbert Rittgers (Rittgers) asserted his claims against the Government
and the Army without distinguishing the facts or theories of liability between the two
Defendants. Amended Complaint, D.E. 3. The Army now seeks dismissal of those
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claims for the same reasons that this Court dismissed the claims against the Government.
Rittgers defends against the motion to dismiss, arguing that his unique factual scenario
requires a different result and he seeks to amend his complaint, adding three additional
paragraphs that describe his administrative appeal of the June 17, 2012 decision to
suspend him and ultimately remove him from his employment.
Nothing in Rittgers’ proposed amended complaint (D.E. 20-1) would require a
different result from that set out in the Court’s previous Order (D.E. 16), which is
incorporated herein by reference. Rittgers’ new allegations still reflect that the alleged
wrongful acts occurred, and he was aware of them, prior to February 20, 2013. While
Rittgers now seeks to cast his damages as loss of his Army job and the compensation he
would have earned—a loss that was not final until the Merit System Protection Board’s
ruling of August 21, 2013—that argument does not correspond to the legal theories on
which he sues.
The basis for liability pursuant to the theories Rittgers alleges is that the charges
made against him or the information gathered by the investigation into the child
pornography allegedly found on his computer space was disseminated outside the bounds
of any necessary investigation, causing collateral damage to his reputation and ability to
find work elsewhere. He does not allege wrongful termination of his Army employment,
even in his proposed second amended complaint. The Court’s determination of the
accrual of his causes of action and their limitations bar remains the same.
The Army further asserts, and Rittgers does not contest, that the Army is not a
proper party and this Court does not have jurisdiction over any claim against it under the
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Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2671, 2679(a), (b)(1) (providing that
FTCA does not authorize suits against federal agencies, and FTCA remedy is exclusive
with respect to injuries caused by federal employees acting within the scope of their
employment); Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th
Cir. 1988). The Court dismisses all claims under the FTCA asserted against the Army for
lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
CONCLUSION
For the reasons set out above, the Court DENIES Rittgers’ motion for leave to
amend (D.E. 20) and GRANTS the Army’s motion to dismiss (D.E. 17) under Rule
12(b)(1) with respect to the FTCA claims and for the reasons set out in this Court’s
previous Order (D.E. 16).

ORDERED this 3rd day of November, 2015.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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