# Peevy v. Donahue

> District Court, District of Columbia · March 6, 2012 · 846 F. Supp. 2d 130

URL: https://www.frixlaw.com/law-library/cases/2662803

## Case

- **Full name:** Susan PEEVY, Plaintiff, v. Patrick R. DONAHUE, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** March 6, 2012
- **Citations:** 846 F. Supp. 2d 130; 2012 U.S. Dist. LEXIS 29261; 2012 WL 699516
- **Precedential status:** Published
- **Opinion:** Opinion by Howell
- **Judges:** Judge Beryl A. Howell
- **Nature of suit:** Civil
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUSAN PEEVY,
Plaintiff,

v. Civil Action No. 11-1209 (BAH)
Judge Beryl A. Howell
PATRICK R. DONAHUE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Susan Peevy initiated the instant lawsuit on June 29, 2012 against her former

employer, the United States Postal Service, and Postmaster General Patrick R. Donahue alleging

that the manner in which she was terminated violated her Constitutional rights. Specifically, the

plaintiff contends that the defendants provided her with fifteen days to appeal her termination,

but dismissed her appeal as untimely after erroneously concluding that it was filed one day late.

The plaintiff alleges that the denial of her appeal, and the failure to provide her with a hearing,

violates the Due Process Clause of the Fifth Amendment. The defendants have moved to dismiss

this action, arguing that the Civil Service Reform Act (“CSRA”) and the Federal Tort Claims Act

(“FTCA”) preclude judicial review of this dispute and the Court therefore lacks subject matter

jurisdiction over the Complaint. The Court agrees and the plaintiff’s Complaint is dismissed.

I. BACKGROUND

A. Factual Background

On May 27, 2011, plaintiff Susan Peevy, a twenty-three year employee of the United

States Postal Service (hereinafter “USPS”), was terminated from her position as an EAS-21 Sales

Support/Account Management Specialist. Compl. ¶¶ 9, 22. The plaintiff’s termination followed

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an investigation by the USPS Office of the Inspector General (“IG”) into the plaintiff’s alleged

misuse of priority shipping labels. Id. ¶¶ 8-12.

Specifically, on August 13, 2010, the IG issued a Report of Investigation (“ROI”) in

which it concluded that the plaintiff provided Permit No. G-10 priority mail labels to a non-

USPS employee, who then used them for non-USPS business. Id. ¶ 8. This investigation was

triggered when postal employees in Nashville, Tennessee observed an individual attempting to

use the labels to ship five packages bearing the plaintiff’s name and work address as the return

address to Washington, D.C. Id. ¶¶ 6, 7. When postal employees questioned the individual

using the labels, the individual “claimed that she was instructed to drop off the packages at the

Post Office and no postage would be due.” Id. ¶ 7. The postal employees reported the

suspicious use of the G-10 labels, and the IG began an investigation. Id.

As part of the IG’s investigation, the plaintiff was interviewed on three separate

occasions, and admitted that she was familiar with the individual attempting to use the labels,

and had given that individual rides in her car on prior occasions. Id. ¶¶ 8-10. The IG also

interviewed the individual who attempted to use the labels. Id. Following this investigation, the

IG concluded that the plaintiff was responsible for the unauthorized use of labels, and the

resulting loss of $194.30 in Postal Service revenue. Id. ¶ 12.

Following issuance of the IG’s ROI, the plaintiff was placed on administrative leave on

September 24, 2010. Id. ¶ 11. Approximately four months later, on December 14, 2010, a USPS

supervisor issued a Notice of Proposed Removal charging the plaintiff with (1) unauthorized use

of Priority Mail Labels with Permit No. G-10 and (2) lack of candor during the IG’s

investigation. Id. ¶ 12. The USPS and the plaintiff then attempted to mediate the issue, but

those efforts were unsuccessful. Id. ¶ 13.

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In a letter dated April 29, 2011 (the “decision letter”), the USPS formally notified the

plaintiff that she would be terminated on May 6, 2011. Id. ¶ 13. This letter informed the

plaintiff that she had fifteen days from receipt of the letter to submit a written appeal and request

a hearing. Id. ¶¶ 14-15.

The plaintiff alleges that she and her counsel received the decision letter on Monday,

May 2, 2011. Id. ¶ 16. On May 17, 2011, fifteen days following the plaintiff’s alleged receipt of

the decision letter, plaintiff’s counsel faxed a request for additional time to file an appeal. Id. ¶

19. The plaintiff states that her counsel did not receive a response to her extension of time

request, and, consequently, proceeded to finalize the plaintiff’s appeal and “faxed it . . . before

midnight on May 17, 2011.” Id. ¶ 21.

In a letter dated May 24, 2011, the USPS dismissed the plaintiff’s appeal as untimely,

stating that the decision letter had been received by the plaintiff and her counsel on Saturday,

April 30, 2011 and her period to file an appeal expired on May 16, 2012. 1 Id. ¶¶ 22-23. The

letter denying the plaintiff’s appeal stated:

The Letter of Decision was sent to your address of record at 115A Pasture
Side Place, Rockville, MD 20850-6005 via Express Mail (E0051013992US)
and was delivered on Saturday, April 30, 2011, at 11:13 am as evidenced by
copy of the Express Mail Delivery Notice enclosed with this letter. A copy of
the Letter of Decision was sent to your attorney of record at the time, Gretchen
K. Athias White, Esquire, via Priority Mail with Delivery Confirmation. Your
attorney received this letter on Saturday, April 30, 2011, at 9:57 am at her
Bowie, Maryland office. A copy of the Priority Mail Delivery Notice is
enclosed.
Defs.’ Mot. Dismiss, ECF No. 15, Decl. Michele Mulleady, Attach. C, Denial of Appeal dated

May 24, 2011. Despite the fact that the USPS “track and confirm statements” indicate that the

decision letter was delivered on April 30, 2011, the plaintiff argues that “neither of the track and

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The defendants noted that “[w]ithout including the date of receipt, the (15) fifteen calendar day window for
appealing the Letter of Decision expired on Sunday, May 15, 2011. Because Sunday is not a delivery day, the date
for receipt of the appeal moved to Monday, May 16, 2011. Since the appeal was not received until Tuesday, one day
later, it is untimely.” Defs.’ Mot. Dismiss, ECF No. 15, Decl. Michele Mulleady, Attach. C, Denial of Appeal dated
May 24, 2011.

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confirm statements specified either an address or an addressee to which the packages were

delivered” and asserts that plaintiff and her counsel actually received the decision letter on May

2, 2011. Compl. ¶¶ 28-29. Following the denial of the plaintiff’s appeal, the plaintiff was

terminated from her position at the USPS on May 27, 2011. Id. ¶ 22.

B. Procedural History

On June 29, 2011, the plaintiff filed a Complaint against defendants USPS and

Postmaster General Patrick R. Donahue, alleging that “[w]ith the dismissal as untimely of

[plaintiff’s] appeal and request for a hearing, and her termination of employment, [the plaintiff]

has been effectively denied her constitutional right to due process of law.” Id. ¶ 30. The

plaintiff asserts that the defendants violated the Due Process Clause of the Fifth Amendment of

the Constitution (Counts I and II), and are additionally liable for defamation of character (Count

III), and intentional infliction of emotional distress (Count IV). Id. ¶¶ 31-43. In compensation

for these alleged unlawful acts, the plaintiff requests, inter alia, an order directing “the

defendants to reinstate Plaintiff Peevy to her employment including with back pay, front pay,

benefits, costs and attorney fees.” Compl., Prayer for Relief, ¶ 9.

Simultaneously with the filing of the Complaint, the plaintiff moved for a temporary

restraining order (“TRO”) and preliminary injunction, seeking to “restrain[] and enjoin[] all

Defendants . . . from terminating Plaintiff’s employment with the [USPS] and attendant benefits

without due process of law . . . .” and to “preserve the status quo as of May 17, 2011.” Pl.’s Mot.

TRO, ECF No. 2, at 1; Mem. Supp. Pl.’s Mot. TRO, ECF No. 2, at 1. On July 1, 2011, prior to

the defendants’ appearance in the case, the Court denied the plaintiff’s motion for a TRO

because she had, inter alia, failed to demonstrate irreparable harm. Mem. Op. & Order, ECF No.

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9. The Court then ordered the parties to confer and submit a mutually-agreeable briefing

schedule to address the plaintiff’s pending motion for a preliminary injunction. Id.

Three weeks later, on July 22, 2011, the parties submitted a Joint Motion for a briefing

schedule, which extended briefing on the plaintiff’s motion for preliminary injunction to August

12, 2011. ECF Nos. 12-13; Minute Order dated July 25, 2012. In accordance with the briefing

schedule, the defendants filed their opposition to the plaintiff’s motion for a preliminary

injunction on July 27, 2011, and also moved to dismiss the plaintiff’s Complaint for lack of

subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). ECF No. 15. In the plaintiff’s

opposition to the motion to dismiss and her reply in support of her preliminary injunction, the

plaintiff failed to address a key requirement for her motion for a preliminary injunction: namely,

how the plaintiff would be irreparably harmed without injunctive relief. In any event, in light of

the jurisdictional issue raised by the defendants, the Court combined consideration of the

plaintiff’s motion for preliminary injunction with the defendants’ motion to dismiss.

As explained below, upon consideration of the defendants’ motion to dismiss, the Court

concludes that it lacks subject matter jurisdiction over the plaintiff’s claims. Consequently, the

defendants’ motion to dismiss is GRANTED and the plaintiff’s motion for preliminary

injunction is DENIED.

II. STANDARD OF REVIEW

On a motion to dismiss for lack of subject matter jurisdiction, under Rule 12(b)(1) of the

Federal Rules of Civil Procedure, the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. Mostofi v. Napolitano, No. 11-0727, 2012 U.S. Dist. LEXIS

9563, at *4 (D.D.C. Jan. 27, 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992)); Ki Sun Kim v. United States, No. 08-01660, 2012 U.S. Dist. LEXIS 2094, at *8 (D.D.C.

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Jan. 9, 2012). As the Supreme Court has explained “many times,” the “district courts of the

United States . . . are ‘courts of limited jurisdiction. They possess only that power authorized by

Constitution and statute.’” Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005)

(quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)) (internal

citations omitted); see also Micei Int’l v. DOC, 613 F.3d 1147, 1151 (D.C. Cir. 2010) (“[T]wo

things are necessary to create jurisdiction in an Article III tribunal other than the Supreme Court .

. . The Constitution must have given to the court the capacity to take it, and an act of Congress

must have supplied it.”) (internal citations and quotation marks omitted). For this reason, a

“federal district court’s initial obligation is to ascertain its subject matter jurisdiction.” Malyutin

v. Rice, 677 F. Supp. 2d 43, 45 (D.D.C. 2009), aff’d, No. 10-5015, 2010 U.S. App. LEXIS 13869

(D.C. Cir. July 6, 2010). When a court lacks subject matter jurisdiction, it must dismiss the case.

See Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 48 (D.D.C. 2011); McManus v. District of

Columbia, 530 F. Supp. 2d 46, 62 (D.D.C. 2007).

The Court must be assured that it is acting within the scope of its jurisdictional authority

and therefore must give the plaintiff’s factual allegations closer scrutiny when resolving a Rule

12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim.

See Macharia v. United States, 334 F.3d 61, 64 (D.C. Cir. 2003); Westberg v. FDIC, 759 F.

Supp. 2d 38, 41 n.1 (D.D.C. 2011); Dubois v. Wash. Mut. Bank, No. 09-cv-2176, 2010 WL

3463368, at *2 (D.D.C. Sept. 3, 2010); Hoffman v. District of Columbia, 643 F. Supp. 2d 132,

135 (D.D.C. 2009). In this respect, it is “the plaintiff’s burden to prove subject matter

jurisdiction by a preponderance of the evidence.” Sai v. Clinton, 778 F. Supp. 2d 1, 5 (D.D.C.

20011) (quoting Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C.

2000)). In deciding whether to grant a motion to dismiss for lack of jurisdiction, “the district

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court may consider materials outside the pleadings” but “must still accept all of the factual

allegations in the complaint as true.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253

(D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992) and

United States v. Gaubert, 499 U.S. 315, 327 (1991)); see also Coal. for Underground Expansion

v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (noting that courts may consider materials outside

the pleadings in ruling on a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction);

Citizens for Responsibility & Ethics in Wash. v. FEC, No. 11-951, 2011 U.S. Dist. LEXIS

149672, at *6 (D.D.C. Dec. 30, 2011). The court, however, “need not accept as true a legal

conclusion couched as a factual allegation, nor inferences that are unsupported by the facts set

out in the complaint.” Mostofi, No. 11-0727, 2012 U.S. Dist. LEXIS 9563, at *5 (citations and

quotation marks omitted).

III. DISCUSSION

The plaintiff alleges in Counts I and II that the defendants violated the Due Process

Clause of the Fifth Amendment when they improperly denied her appeal and an opportunity for a

hearing before terminating her employment. The plaintiff further alleges in Counts III and IV

that the defendants are liable for defamation of character and Intentional Infliction of Emotional

Distress, respectively. The defendants argue that the Court lacks jurisdiction over Counts I and

II because the Civil Service Reform Act precludes judicial review of employment actions

relating to the plaintiff. Counts III and IV must be dismissed, according to the defendants,

because the Federal Tort Claims Act bars the plaintiff from asserting those claims. The

defendants’ arguments are addressed below.

A. Counts I and II Must Be Dismissed Because The Civil Service Reform Act
Precludes This Court From Granting Relief

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Counts I and II allege that the defendants’ violated the Fifth Amendment’s Due Process

Clause when they denied the plaintiff’s appeal and terminated her employment without providing

her an opportunity for a hearing. Specifically, although the plaintiff clearly received the letter

informing her of her right to appeal, the plaintiff alleges that the defendants improperly denied

her appeal as untimely because they relied on delivery confirmation receipts that (1) did not

detail where the decision letter was delivered and (2) only indicate the date on which the decision

letter was delivered, not when it was actually received by the plaintiff. The defendants argue that

the Court lacks subject-matter jurisdiction over these claims because the Civil Service Reform

Act (“CSRA”), 5 U.S.C. §§ 4303, 7513, provides the exclusive remedy for federal employees

challenging adverse employment actions, and does not provide the plaintiff with a judicial

remedy. The Court agrees.

1. The CSRA Precludes Review of the Defendants’ Termination of the Plaintiff

The CSRA, codified in Title 5 of the United States Code, “established a comprehensive

system for reviewing personnel action taken against federal employees.” United States v.

Fausto, 484 U.S. 439, 455 (1988); see also Peter B. v. United States, 579 F. Supp. 2d 78, 81

(D.D.C. 2008) (“When enacted, the CSRA established an elaborate new framework for

evaluating adverse personnel actions [taken] against certain categories of federal employees.”)

(internal citation and quotations omitted). This statutory scheme is the “exclusive framework for

judicial review of adverse disciplinary actions taken by federal agencies,” id. (quoting Am.

Postal Workers Union v. U.S. Postal Serv., 940 F.2d 704, 709 (D.C. Cir. 1991)), and “precludes

non-CSRA remedies for an adverse personnel action even where the CSRA does not make those

remedies available to the plaintiff.” Feldman v. CIA, 797 F. Supp. 2d 29, 45 (D.D.C. 2011); see

also Am. Postal Workers Union, 940 F.2d at 708-09. In other words, “what you get under the

8
CSRA is what you get” and the provisions of the CSRA “[cannot] be supplemented by an

implied private right of action.” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005). This is

because, as the D.C. Circuit has noted, the “failure to include any relief within the remedial

scheme of so comprehensive a piece of legislation reflects a congressional intent that no judicial

relief be available.” Id. at 66.

Under the CSRA, civil service employees are classified into three categories: Senior

Executive Service, 5 U.S.C. § 2101a; Competitive Service, 5 U.S.C. § 2102; and Excepted

Service, 5 U.S.C. § 2103. Within each of these categories, certain veterans and their relatives are

provided preferential treatment and are granted rights not available to non-preference employees.

5 U.S.C. § 2108. Prior to her termination, the plaintiff was employed as an EAS-21 Consumer

Research Analyst, which designated her under the CSRA as a non-preference employee in an

Excepted Service. See 5 U.S.C. §§ 2103, 2108, 7511; Defs.’ Mot. Dismiss, ECF No. 15, Ex. A,

Decl. Michele Mulleady.

As a non-preference employee in an Excepted Service, the CSRA permits the plaintiff to

challenge her termination for unacceptable job performance, 5 U.S.C. § 4301 et seq., or for

misconduct, 5 U.S.C. § 7501 et seq., to the Merit System Protection Board (“MSPB”). See also

Garrow v. Gramm, 856 F.2d 203, 205 (D.C. Cir. 1988). The plaintiff is not, however, entitled to

any additional administrative or judicial review. Id.; Fausto, 484 U.S. at 448 (“The

comprehensive nature of the CSRA, the attention that it gives throughout to the rights of

nonpreference excepted service employees, and the fact that it does not include them in

provisions for administrative and judicial review contained in Chapter 75, combine to establish a

congressional judgment that those employees should not be able to demand judicial review for

the type of personnel action covered by that chapter.”); Am. Postal Workers Union, 940 F.2d at

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704. This Court therefore does not have subject matter jurisdiction over any claim challenging

the defendants’ decision to discharge the plaintiff.

2. The CSRA Precludes Review of the Plaintiff’s Due Process Claims

The plaintiff argues, however, that Counts I and II should not be dismissed because the

plaintiff “has not raised the merits of the USPS underlying action as a basis of this Court’s

jurisdiction, only the denial of her right to due process is before this Court.” Pl.’s Opp’n Mot.

Dismiss, ECF No. 17, at 10. She contends that “[p]ursuant to the 5th Amendment of the

Constitution of the United States, this court has jurisdiction to hear [plaintiff’s] claim of denial of

due process.” Id. This argument is incorrect.

As the defendants note, “[e]ven where an employee brings a constitutional claim to

challenge his or her removal, the CSRA still precludes a judicial remedy.” Defs’ Mot. Dismiss,

ECF No. 15, at 7. Indeed, simply alleging “constitutional violations does not take [] claims

beyond the remedial provisions of the CSRA.” Hunt v. Dep’t of Agriculture, 740 F. Supp. 2d 41,

48 (D.D.C. 2010); Steadman v. Governor, U.S. Soldiers’ and Airmen’s Home, 918 F.2d 963, 967

(D.C. Cir. 1990) (declaring that federal employees may not circumvent the CSRA even when

they raise constitutional claims). A federal employee covered by the CSRA may maintain

constitutional claims in district court “[o]nly in the unusual case in which the constitutional claim

raises issues totally unrelated to the CSRA procedures.” Steadman, 918 F.2d at 967 (dismissing

federal employee’s claim for lack of jurisdiction where plaintiff brought Due Process claim

challenging adverse employment action covered by CSRA); cf. Weaver v. United States

Information Agency, 87 F. 3d 1429, 1432-35 (exhaustion of CSRA remedies not required

because the Court would have jurisdiction over the plaintiff’s claim that the regulation at issue

violated her First Amendment rights if asserted outside the context of the agency’s personnel

10
action against her); Andrade v. Lauer, 729 F.2d 1475, 1490-93 (D.C. Cir. 1984) (exhaustion of

CSRA not required where plaintiffs had challenged the defendants’ constitutional authority to

issue regulations). The plaintiff’s instant constitutional challenge does not fall within this narrow

exception.

The plaintiff argues that she “has not placed the merits or bases of defendant USPS’s

action against her before this Court. It is strictly the lack of due process afforded her through the

machinery or grievance procedure which the USPS has established for employees in Plaintiff

Peevy’s category that she challenges through this action.” Pl.’s Opp’n Mot. Dismiss, ECF No.

17, at 4. This, however, mischaracterizes the Complaint.

While it is true that the plaintiff does not seek review of the IG’s ROI or the basis for the

plaintiff’s underlying termination, the Complaint makes clear that the plaintiff seeks “injunctive

relief against [] wrongful and illegal termination” and claims that the defendants “erroneously”

terminated her from her position. Compl. at 1; ¶ 32. Indeed, the plaintiff seeks as relief, inter

alia, an order directing the defendants “to reinstate Plaintiff Peevy to her employment including

with back pay, front pay, benefits, [and] costs . . . .” Compl., Prayer for Relief, ¶ 9. This is

clearly not the “unusual case” where the plaintiff’s claims are “totally unrelated” to her

termination so as to provide the Court with jurisdiction over the plaintiff’s constitutional claims.

See Steadman, 918 F.2d at 967. Rather, the plaintiff’s constitutional claims appear to be an

effort to circumvent the CSRA and obtain renewed reconsideration of the defendants’

employment decision.

3. The Plaintiff’s Constitutional Claims Have No Merit

That said, even if the Court could reach the plaintiff’s constitutional claims, her claims

have no merit. The plaintiff’s constitutional claims reduce to one discrete issue: The plaintiff

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contends that the defendants incorrectly denied the plaintiff’s appeal as untimely, and denied her

a hearing, because they concluded that the plaintiff had fifteen days from delivery of the decision

letter, rather than from receipt of that letter. Pl.’s Opp’n Mot. Dismiss, ECF No. 17, at 6. The

plaintiff states that she received that letter on May 2, 2011, and her appeal was thus timely filed

on May 17, 2011. Compl. ¶ 16. Contrary to plaintiff’s assertion that “no evidence” shows

delivery was made prior to May 2, 2011, the defendants have submitted to the Court delivery

confirmation statements indicating that the decision letter was delivered to the plaintiff and her

attorney on April 30, 2011. Pl.’s Opp’n Mot. Dismiss, ECF No. 17, at 6; Defs.’ Mot. Dismiss,

ECF No. 15, Decl. Michele Mulleady, Attach. B. The defendants did not err in relying on these

confirmation statements, nor in their decision to equate delivery of the decision letter with

receipt of that letter for the purposes of initiating the plaintiff’s time to appeal. It is true that the

defendants’ Employee and Labor Relations Manual states that employees may request a hearing

within “15 calendar days of receipt of a letter of decision,” but the defendants have reasonably

interpreted that receipt is satisfied upon delivery of the letter. See Defs.’ Mot. Dismiss, ECF No.

15, Decl. Michele Mulleady, Attach. A. To require otherwise would not only place an undue

administrative burden on the defendants, but may also incentivize employees to evade receipt of

the decision letter in an effort to forestall their dismissal.

4. The Declaratory Judgment Act Does Not Provide Jurisdiction for the
Plaintiff’s Constitutional Claims

The Court does not have subject matter over the plaintiff’s constitutional claims and

therefore denies the plaintiff’s request for declaratory judgment. Federal courts may grant

declaratory relief under the Declaratory Judgment Act, which provides that “[i]n a case of actual

controversy within its jurisdiction . . . any court of the United States . . . may declare the rights

and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a).

12
A prerequisite to declaratory relief, however, is that the Court must initially have jurisdiction to

adjudicate the plaintiff’s claims. See Citizens for Responsibility and Ethics in Washington v.

Cheney, 593 F. Supp. 2d 194, 222 (D.D.C. 2009) (stating that the Declaratory Judgment Act “is

not an independent source of federal jurisdiction”); Seized Prop. Recovery, Corp. v. U.S.

Customs and Border Protection, 502 F. Supp. 2d 50, 64 (D.D.C. 2007) (stating that the

Declaratory Judgment Act only applies “if a judicially remediable right already exists”). As

discussed above, the CSRA precludes judicial review of the plaintiff’s claims. Accordingly, the

Court may not grant declaratory relief.

B. Count III and IV Are Dismissed Pursuant to the Federal Tort Claims Act

Counts III and IV assert that the defendants are liable for defamation of character and

intentional infliction of emotional distress. Compl. ¶¶ 37-43. The defendants argue that both of

these claims are barred by the Federal Tort Claims Act (“FTCA”). The plaintiff failed to address

the argument that Counts III and IV should be dismissed in her opposition brief. The Court

therefore deems dismissal of Counts III and IV as conceded. See Beattie v. Astrue, No. 01-cv-

2493, 2012 WL 628346, at *3 n.13 (D.D.C. Feb. 28, 2012) (“An argument in a dispositive

motion that the opponent fails to address in an opposition may be deemed conceded,” quoting

Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22 (D.D.C. 2010)). Even on the merits, however, the

defendants are correct that the FTCA bars the plaintiff from asserting her tort claims and these

claims must be dismissed.

1. Count III is Dismissed Because the Federal Tort Claims Act Bars Plaintiff’s
Defamation Claim.

Count III alleges that the defendants defamed the plaintiff by wrongly accusing her of

unauthorized use of priority shipping labels and by “portray[ing] her as a thief.” Compl. ¶ 38.

13
The plaintiff may not, however, assert a defamation claim against the defendants because the

government has not waived sovereign immunity as to these claims.

“The FTCA waives the sovereign immunity of the United States with respect to some,

but not all, torts. Those torts for which the United States retains immunity are enumerated in 28

U.S.C. § 2680(h).” Peter B., 579 F. Supp. 2d at 83 (internal citations and quotations omitted).

The statute’s waiver is limited, and it explicitly bars suits against the United States with regards

to claims of “libel, slander, misrepresentation, deceit, or interference with contract rights.” 28

U.S.C. § 2680(h). Therefore, courts in this Circuit uniformly dismiss misrepresentation and

defamation claims against the United States. Marcus v. Geithner, No. 09-cv-1686, 2011 WL

4402362, at *4 (D.D.C. Sept. 22, 2011) (concluding that the FTCA bars “claims that arise from

alleged misrepresentations, whether negligent or intentional,” citing Block v. Neal, 460 U.S. 289,

296 (1983)) (internal citations and quotations omitted); see also Gardner v. United States, 213

F.3d 735, 737 n.1 (concluding that the plaintiff’s defamation claim against the United States was

barred); Wilson v. U.S. Dep’t of Transp., 759 F. Supp. 2d 55, 64 (D.D.C. 2010) (dismissing a

former federal employee’s defamation claim because the FTCA explicitly bars such claims);

Upshaw v. United States, 669 F. Supp. 2d 32, 44 (D.D.C. 2009) (dismissing defamation claim of

former Library of Congress employee due to lack of subject matter jurisdiction under the FTCA);

DeGeorge v. United States, 521 F. Supp. 2d 35, 40 (D.D.C. 2007) (holding that the FCTA barred

plaintiff’s claim for misrepresentation where alleged false statements made by U.S. agents

resulted in destruction of plaintiff’s boat); Bonham v. U.S. Gov’t Med. Review Bd., No. 90-cv-

0733, 1990 WL 169297 (D.D.C. Oct. 19, 1990) (concluding that FCTA barred suit over former

Army employee’s defamation claim for alleged false statements made about him by the United

States Government Medical Review Board). Given that the defendants retain sovereign

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immunity against claims of defamation, and the FTCA explicitly bars such claims, Count III of

the plaintiff’s Complaint is dismissed.

2. Count IV is Dismissed Because the Plaintiff Failed to Exhaust Her
Administrative Remedies

Count IV alleges that the defendants are liable for intentional infliction of emotional

distress because “terminating [plaintiff’s] employment without a hearing was with malice and

with an intentional manner to inflict emotional distress by depriving her of her health insurance

and other benefits, as well as her income.” Id. ¶ 43. Although otherwise cognizable under the

FTCA, this claim must be dismissed because the plaintiff did not exhaust her administrative

remedies prior to filing the instant lawsuit.

The plaintiff may only assert an intentional infliction of emotional distress claim against

a federal agency pursuant to the FTCA. Wilson, 759 F. Supp. 2d at 64 (“[C]laims for negligent

and intentional infliction of emotional distress against a federal agency can only be pursued via

the FTCA.”); Johnson v. DiMario, 14 F. Supp. 2d 107, 111 (D.D.C. 1998). In order to bring suit

under the FTCA, a plaintiff must have exhausted all available administrative remedies, which

requires her to have “(1) presented a federal agency with a claim describing, with particularity,

the alleged injury and damages and (2) either received a written denial of the claim from the

agency or waited six months from the date of filing without obtaining a final agency

disposition.” Totten v. Norton, 421 F. Supp. 2d 115, 122 (D.D.C. 2006); 28 U.S.C. § 2675(a);

see also Wilson, 759 F. Supp. 2d at 64 (D.D.C. 2011) (citing McNeil v. United States, 508 U.S.

106, 111, 113 (1993)). Failure to comply with the administrative requirements of the FTCA

deprives the Court of jurisdiction to hear the case. Id. at 122; see also GAF Corps. v. United

States, 818 F. 2d 901, 905 n.6 (D.C. Cir. 1987).

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The Complaint does not allege that the plaintiff complied with the FTCA and filed an

administrative tort claim with the defendants prior to initiating this case. The defendants attest

that the plaintiff has not done so, Decl. Elinor Brown, ECF No. 16, ¶ 4, and plaintiff does not

rebut this assertion. Having failed to comply with the FTCA and exhaust her administrative

remedies, the plaintiff may not pursue her intentional infliction of emotional distress claim in this

Court. Accordingly Count IV is dismissed.

IV. CONCLUSION

As explained above, the Court lacks subject matter jurisdiction over the plaintiff’s claims

and the defendants’ motion to dismiss is therefore GRANTED. Consequently, the plaintiff’s

pending motion for preliminary injunction is DENIED. An Order consistent with this

Memorandum Opinion will be entered.

DATED: MARCH 6, 2012
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2662803. Public record. Not legal advice.