United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
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.
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.
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.
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.
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.
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).
Law and Analysis
Standards governing the Motion to Dismiss.
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.
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).
Hunter's Complaint is barred by ...