Griener v. United States

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is the defendant's Rule 12(b)(1) motion to dismiss. For the following reasons, the motion is GRANTED.

         Background

         This is 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.

         After 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.

         Dr. 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.

         In 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.^[1]

         I.

         Motions 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).

         Contrary 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)).

         12(b)(1) 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).

         II.

         In 1978 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 ...