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Hunter v. Dept. of Veterans Affairs Veterans Canteen Services

United States District Court, W.D. Louisiana, Alexandria Division

July 25, 2019

TERRI HUNTER, Plaintiff
v.
DEPT. OF VETERANS AFFAIRS VETERANS CANTEEN SERVICES, Defendant

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before the Court is a Rule 12(b)(1) Motion to Dismiss (Doc. 5) the claims asserted by Plaintiff Terri Hunter (“Hunter”) against Defendant the Department of Veterans Affairs Veteran Canteen Services (“VCS”) for lack of subject-matter jurisdiction. (Doc. 5). VCS argues that Hunter fails to satisfy the elements of a claim under 28 U.S.C § 1331 due to the absence of a waiver of sovereign immunity afforded to the government and its entities. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). In response, Hunter states that she does not contest the Motion to Dismiss on jurisdictional grounds. (Doc. 7, p. 2). Because Hunter's claims are barred by sovereign immunity, and because the motion is not contested, VCS's Motion to Dismiss (Doc. 5) should be GRANTED.

         I. Background

         Hunter began working for VCS on September 6, 2016 in Jackson, Mississippi. (Doc. 1, p. 3). On or about November 10, 2016, Hunter voluntarily transferred to the VCS in Alexandria, Louisiana. Id. Hunter became a probationary employee under guidelines set forth by VCS. Id.

         During her probationary period of employment for VCS in Alexandria, Hunter reported alleged legal violations of co-workers. Id. These violations included VCS employees participating in the following: (1) stealing and/or giving away food; (2) not maintaining food at proper temperatures; (3) storing food in unsanitary conditions; and (4) expired medications being stocked and sold. Id. Hunter states that she refused to participate in these “flagrant violations of the laws of the State of Louisiana.” (Doc. 1, p. 4). Hunter claims that she was retaliated against by her co-workers and superiors for reporting these alleged violations, and that such reports led to her forced resignation. Id.

         Hunter asserts two causes of action against VCS: (1) a constitutional claim under the First Amendment; and (2) a “whistleblower retaliation” claim under La. R.S. 23:967. (Doc. 1, p. 1). Hunter alleges that VCS used the assertion of her First Amendment rights as a substantial factor in the adverse actions taken against her. (Doc. 1, p. 5). Hunter states that, in applying La. R.S. 23:967 - which protects employees' interest when “whistleblowing” in good faith - VCS retaliated against her by forcing her resignation. Id.

         Hunter claims that the VCS's violation of her First Amendment rights, in conjunction with whistleblower retaliation, caused her irreparable damage. (Doc. 1, p. 7). Hunter requests, inter alia, that this Court declare the violation of her First Amendment rights and La. R.S. 23:967 are restrictions of free speech, recognize the harm which has befallen her, and award both actual and punitive damages. Id.

         VCS seeks dismissal for lack of subject-matter jurisdiction. (Doc. 5); see Fed.R.Civ.P. 12(b)(1). VCS asserts that Hunter has not met the necessary elements for a valid cause of action under 28 U.S.C § 1331 and has not stated a claim over which this Court has jurisdiction. Hunter does not contest dismissal of her claims. (Doc. 7, p. 2).

         II. Law and Analysis

         A. Standards governing the Motion to Dismiss.

         A court may grant a motion to dismiss due to a lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Attacks on subject-matter jurisdiction under Rule 12(b)(1) may take two forms: (1) facial attacks; and (2) factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1528-9 (11th Cir. 1990); see Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). In this instance, VCS challenges subject-matter jurisdiction on a facial basis.

         An attack on subject-matter jurisdiction under Rule 12(b)(1) challenges the Court's power to hear a case. Williamson, 645 F.2d at 413. When a defendant files a Rule 12(b)(1) motion, the plaintiff, as the party asserting federal jurisdiction, bears the burden of establishing jurisdiction. Babineaux v. Garber, 2018 WL 4938851, at *1 (W.D. La. Oct. 11, 2018); see New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008). Facial attacks “require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject-matter jurisdiction, and the allegations in (the) Complaint are taken as true for purposes of the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).

         B. Hunter's Complaint is barred by ...


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