Bollenbach v. United States

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

EVELYN BOLLENBACH, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-233-G

)

UNITED STATES OF AMERICA, )

)

Defendant. )

ORDER

Now before the Court is Defendant United States of America’s Motion to Dismiss

(Doc. No. 9). Plaintiff Evelyn Bollenbach has responded (Doc. No. 10), and Defendant

has replied (Doc. No. 11).

BACKGROUND AND SUMMARY OF THE PLEADINGS

Plaintiff brings this suit to recover damages for injuries allegedly suffered as a result

of a motor-vehicle collision that occurred on October 12, 2017, involving herself and an

individual identified as “Robinson.” Compl. ¶¶ 2, 7 (Doc. No. 1). Plaintiff alleges that

Robinson ran a red light, striking another vehicle that in turn struck Plaintiff’s vehicle. Id.

¶ 7. Plaintiff alleges the collision resulted in “sever[e] property damage and severe

personal injury” and asserts claims for negligence and property damage. Id. ¶¶ 7, 11-18,

19-20.

The Complaint states that at the time of the collision, Robinson was an employee of

the Tribal Health and Welfare Department and was acting within the scope of her

employment. See id. ¶ 3. The Tribal Health and Welfare Department is an Indian

Contractor pursuant to the Indian Self-Determination and Education Assistance Act

(“ISDEAA”), Public Law 93-638, and therefore an entity under the administration of the

United States Department of Health and Human Services (“USDHHS”). Id. ¶¶ 3, 4, 13.

Plaintiff contends that, as a result of the Tribal Health and Welfare Department’s status as

an Indian Contractor, her exclusive remedy against Defendant is pursuant to the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 2401. See id. ¶¶ 4, 14.

DISCUSSION

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendant moves

to dismiss Plaintiff’s claims for lack of subject-matter jurisdiction. Specifically, Defendant

asserts that because Plaintiff has not adequately pled facts from which it may be inferred

that Robinson was an employee of the federal government and was acting within the scope

of her employment, the United States’ limited waiver of sovereign immunity in the FTCA

does not extend to Plaintiff’s claims. See Def.’s Mot. (Doc. No. 9) at 2, 4, 5; In re Franklin

Sav. Corp., 385 F.3d 1279, 1287 (10th Cir. 2004) (stating that the doctrine of sovereign

immunity “precludes suit against the United States without the consent of Congress” and

“the terms of its consent define the extent of the court’s jurisdiction” (internal quotation

marks omitted)).

Plaintiff responds that she has properly and sufficiently pled that Robinson “was an

employee in the Tribal Health and Welfare Department during the course and scope of

his/her employment duties.” Pl.’s Resp. (Doc. No. 10) at 2 (internal quotation marks

omitted). Pointing to evidence outside the Complaint, Plaintiff alternatively argues that

the Court should convert the Rule 12(b)(1) Motion to Dismiss to a Rule 56 motion for

summary judgment on the basis that the question of Robinson’s employment status is a

jurisdictional question intertwined with the merits of her case. See id. at 5-10. Plaintiff

also requests additional discovery to determine jurisdictional facts known to Defendant but

unavailable to her. See id. at 9-10.

Defendant replies that: (1) none of the factual allegations presented in Plaintiff’s

Response as supporting Robinson’s employee status at the time of the accident were

included in the Complaint and, therefore, should not be considered by the Court; (2) the

issue of employee status is not intertwined with the merits of the claims; and (3)

jurisdictional discovery would be improper as Defendant’s Motion is a facial, rather than

factual, attack on the pleadings. See Def.’s Reply (Doc. No. 11) at 1-2, 3.

Because subject-matter jurisdiction depends on whether the government’s sovereign

immunity has been waived, a motion contending there has been no such waiver (and

seeking dismissal on that basis) is properly asserted under Rule 12(b)(1). See Holt v.

United States, 46 F.3d 1000, 1002 (10th Cir. 1995); see also E.F.W. v. St. Stephen’s Indian

High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001). A Rule 12(b)(1) motion to dismiss

for lack of subject-matter jurisdiction takes one of two forms: a facial attack or a factual

attack. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). Here,

Defendant makes a facial attack on the sufficiency of the allegations contained in the

Complaint. Def.’s Mot. at 2, 4, 5; Def.’s Reply at 2. A facial attack questions the

sufficiency of the complaint’s allegations. Pueblo of Jemez, 790 F.3d at 1148 n.4. In

reviewing a facial attack, a district court confines its analysis to the pleadings and must

accept the allegations in the complaint as true. See id. This approach contrasts with that

for a factual attack, where the moving party challenges the facts upon which subject-matter

jurisdiction depends. Id.

As the party asserting federal jurisdiction, Plaintiff bears “the burden of alleging the

facts essential to show jurisdiction.” U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d

787, 797-98 (10th Cir. 2002) (internal quotation marks omitted). The FTCA provides “a

limited waiver making the Federal Government liable to the same extent as a private party

for certain torts of federal employees acting within the scope of their employment.” United

States v. Orleans, 425 U.S. 807, 813 (1976); see 28 U.S.C. § 1346(b). “[W]hen a defendant

asserts that the FTCA complaint fails to allege sufficient facts to support subject matter

jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume

the truthfulness of the facts alleged.” Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289,

1293 n.3 (10th Cir. 2017) (alteration and internal quotation marks omitted).

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id. at 679; see Robbins v.

Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (stating that “the degree of specificity

necessary to establish plausibility and fair notice, and therefore the need to include

sufficient factual allegations, depends on context”).

“The FTCA provides a limited waiver of sovereign immunity, allowing the United

States to be sued for damages arising from torts committed by government employees

acting within the scope of their employment.” Tsosie v. United States, 452 F.3d 1161, 1163

(10th Cir. 2006). The FTCA defines “employee of the government” to include a “person[]

acting on behalf of a federal agency in an official capacity, temporarily or permanently in

the service of the United States, whether with or without compensation.” 28 U.S.C. § 2671.

Plaintiff alleges the Tribal Health and Welfare Department is an Indian Contractor under

the ISDEAA and that Robinson was working for the Tribal Health and Welfare

Department. See Compl. ¶¶ 3, 4. These are sufficient facts to establish, if true, that

Robinson was a federal employee for purposes of the FTCA. See Tsosie, 452 F.3d at 1163

(“‘[E]mployees of the government include . . . employees of federal agencies . . . .”).

In order for Plaintiff’s claims to fall within the FTCA’s waiver of sovereign

immunity, Plaintiff must additionally show that Robinson was acting in the scope of that

employment at the time of the accident. As explained by the Ninth Circuit:

An employee’s conduct is covered by the FTCA if, while executing his

contractual obligations under the relevant federal contract, his allegedly

tortious conduct falls within the scope of employment as defined by state

law. Thus, the federal contract “defines the nature and contours of an

employee’s official responsibilities; but the law of the state in which the

tortious act allegedly occurred determines whether the employee was acting

within the scope of those responsibilities.” Lyons v. Brown, 158 F.3d 605,

609 (1st Cir. 1998).

Shirk v. U.S. ex rel. Dep’t of Interior, 773 F.3d 999, 1005-06 (9th Cir. 2014) (alteration

and footnote omitted); see also Tsosie, 452 F.3d at 1163. This scope-of-employment

inquiry involves a two-step approach:

[A] plaintiff in an FTCA suit must identify which contractual provisions the

alleged tortfeasor was carrying out at the time of the tort. At the first step of

the . . . inquiry, courts must determine whether the alleged activity is, in fact,

encompassed by the relevant federal contract or agreement. The scope of the

agreement defines the relevant “employment” for purposes of the scope of

employment analysis at step two. Second, courts must decide whether the

allegedly tortious action falls within the scope of the tortfeasor’s employment

under state law. If both of these prongs are met, the employee’s actions are

covered by the FTCA.

Shirk, 773 F.3d at 1006 (footnote omitted) (addressing a waiver of sovereign immunity

under the ISDEAA). Failure at either of these steps is sufficient to defeat subject-matter

jurisdiction. Id.; see Richie v. U.S. ex rel. U.S. Dep’t of Interior, No. CIV-15-1154-M,

2017 WL 354222, at *2 (W.D. Okla. Jan. 24, 2017) (denying motion to dismiss for lack of

subject-matter jurisdiction after applying Shirk in determining whether tribal police officer

was acting within the scope of his employment at the time of a motor-vehicle accident).

Here, the parties agree that Congress has extended the waiver of sovereign immunity

in the FTCA to claims arising under the performance of duties under an ISDEAA contract.

See Def.’s Mot. at 5-6; Pl.’s Resp. at 5. But Plaintiff has not alleged any facts identifying

the contractual provisions Robinson was allegedly carrying out at the time of the accident

or any other facts indicating she was acting in the scope of her employment. Instead, the

Complaint merely includes the conclusion that Robinson was acting within the course and

scope of her employment for the Tribal Health and Welfare Department. See Compl. ¶¶ 3,

8, 12.

Plaintiff argues that the documents she has attached to her Response allow a

reasonable inference “that the tortfeasor was acting within the course and scope [of her

employment] at the time of the accident.” Pl.’s Resp. at 6. These documents appear to

reflect that the vehicle driven by Robinson was owned by the U.S. Department of Health

and Human Services and that a tribal insurance administrator acknowledged that Robinson

was an employee of the Tribal Health and Welfare Department acting in the course and

scope of her employment duties at the time of the accident. See Doc. Nos. 10-1 to 10-5.

These facts are not recited in the Complaint; nor are the cited documents attached to or

specifically referenced in the Complaint. Thus, they cannot be considered in an

examination of the facial sufficiency of the pleadings.

Plaintiff requests that the Court convert Defendant’s Rule 12(b)(1) motion to

dismiss into a Rule 56 motion for summary judgment or otherwise allow Plaintiff to

conduct discovery on the issues raised in the Rule 12(b)(1) motion. Neither of these steps

is appropriate here, where Plaintiff has failed to allege facts in the Complaint that plausibly

establish that Robinson was acting in the scope of her employment. The deficiency here

is an absence of relevant facts on which to base jurisdiction, not a failure of support for any

such fact.

In sum, Plaintiff’s conclusory statements are insufficient to allow a reasonable

inference that Robinson was acting in the scope of her employment for the federal

government at the time of the accident. Defendant’s Motion must be granted. The Court,

however, noting the documentation attached to Plaintiff’s Response and that Plaintiff has

not previously amended her Complaint, grants Plaintiff leave to do so.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 9) is

GRANTED. Plaintiff, however, may file an amended complaint within 21 days of this

Order. Otherwise the action will be dismissed without prejudice for lack of subject-matter

jurisdiction.

IT IS SO ORDERED this 31st day of March, 2020.

CHARLES B. GOODWIN

United States District Judge

QO