United States District Court, E.D. Louisiana
DR. THAYNE GRIENER
UNITED STATES OF AMERICA
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the defendant's Rule 12(b)(1) motion to
dismiss. For the following reasons, the motion is GRANTED.
a lawsuit under the Federal Tort Claims Act (FTCA). Dr.
Thayne Griener is a board certified otolaryngologist who
began working at the Southeast Louisiana Veterans Health Care
System in New Orleans in 2007. He initially learned about the
position from a medical school colleague, Dr. Mary
Fazekas-May, who also worked at the VA. When Dr. Griener
began working for the VA, he significantly curtailed his
private medical practice in Pascagoula, Mississippi. Dr.
Griener worked 40 hours per week every other week and 30
hours per week on the alternate weeks. This schedule
classified him as a part-time employee with an average of 35
hours per week.
working at the VA for nearly five years, Dr. Griener received
a termination notice on July 9, 2012. The notice informed him
that he was terminated because he engaged in alleged
inappropriate behavior. However, Dr. Griener responds that
his termination was in retaliation for his opposition to VA
practices and his vocal complaints about these practices. He
points out that he blew the whistle on VA practices that he
believed violated the laws, rules, and regulations which
govern patient care.
Griener complains that his termination caused him extreme
emotional distress, mental anguish, loss of enjoyment of
life, suffering, and personal and professional embarrassment.
He also alleges that reviving his private practice in
Pascagoula has been a slow and arduous task and that his loss
of income is substantial.
response to his termination, Dr. Griener filed an
administrative Federal Tort Claims Act claim with the United
States Department of Veterans Affairs; that claim was denied.
He then sought reconsideration of the denial; the
reconsideration request was also denied. Dr. Griener now
files this civil lawsuit against the government under the
FTCA. In response, the government contends that the
plaintiff's FTCA claims are preempted by the Civil
Services Reform Act (CSRA) and moves this Court to dismiss
the plaintiff's complaint.
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the Court's subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). "As a court
of limited jurisdiction, a federal court must affirmatively
ascertain subject-matter jurisdiction before adjudicating a
suit. The district court should dismiss where it appears
certain that the plaintiff cannot prove a plausible set of
facts that establish subject-matter jurisdiction."
Venable v. Louisiana Workers' Compensation
Corp., 740 F.3d 937, 941 (5th Cir. 2014)(citations and
internal quotations omitted).
to a 12(b)(6) motion, the Court may find a plausible set of
facts to support subject matter jurisdiction by considering
any of the following: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Spotts v. United States, 613 F.3d 559, 565-66 (5th
Cir. 2010)(citation omitted). "The burden of proof for a
Rule 12(b)(1) motion is on the party asserting
jurisdiction." Alfonso v. United States, 752
F.3d 622, 625 (5th Cir. 2014)(quoting In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th
Cir. 2011)(internal citation and quotation marks omitted)).
is similar to that applicable to motions to dismiss under
Rule 12(b)(6). See Williams v. Wynne, 533 F.3d 360,
364-65 n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1)
and Rule 12(b)(6) standards are similar, but noting that
applying the Rule 12(b)(1) standard permits the Court to
consider a broader range of materials in resolving the
motion). "'[T]he central issue [in deciding a motion
to dismiss] is whether, in the light most favorable to the
plaintiff, the complaint states a valid claim for
relief.'" Gentilello v. Rege, 627 F.3d 540,
544 (5th Cir. 2010)(citation omitted).
Congress enacted the Civil Services Reform Act to replace the
old service system, which was an “outdated patch work
of statutes and rules built up over almost a century.”
United States v. Fausto, 484 U.S. 439, 444 (1988)
(internal citation and quotation marks omitted). By enacting
the CSRA, Congress created “an integrated scheme of
administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal
employees with the needs of ...