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Oliveira v. United States

United States District Court, D. Arizona

July 26, 2017

John Oliveira, Plaintiff,
v.
United States of America, et al. Defendants.

          ORDER

          DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE

         Plaintiff John Oliveira alleges that Defendants the United States of America, the Department of the Interior (DOI), Acting Secretary of the Interior Kevin Haugrad, Acting Assistant Secretary of the Interior Weldon “Bruce” Loudermilk, Bureau of Indian Affairs (BIA) Internal Affairs Division Chief Damon Edminsten, BIA Special Agent in Charge Carleen Fischer, and BIA Contracting Officer Technical Representative Ann Button violated the Federal Tort Claims Act (FTCA) by disseminating inaccurate information from records relating to his employment at the Bureau of Indian Affairs (BIA).[1] At issue is Defendants' Motion to Dismiss the FTCA Claims (Doc. 15). The motion is fully briefed and the Court heard oral argument on July 14, 2017. For the following reasons, the motion is granted.

         I. Background[2]

         Oliveira worked for the BIA from 2000 to 2006. (Doc. 1 ¶ 14.) Eight years after he left the BIA, he was involved in an intertribal dispute at a casino in Coarsegold, California in his capacity as Chief of Tribal Police for the Chukchansi Tribal Police Department, which led to an investigation by the Madera County Sheriff's Department (MCSD). (¶¶ 20-23.)

         As part of the MCSD investigation, BIA agents disclosed allegedly inaccurate personal information relating to Oliveira's prior employment with the agency. Specifically, Defendant Fischer spoke with MCSD detectives on October 16, 2014, and discussed the Chukchansi Tribe's internal dispute as it related to the BIA. (¶ 24.) Regarding Oliveira's history as a BIA employee, Fischer disclosed confidential information relating to Internal Affairs (IA) investigations she conducted, and advised the MCSD to make a formal inquiry with Defendant Edminsten. (¶¶ 28-30.) Oliveira claims that he was not the subject of any disciplinary proceeding resulting from any internal affairs (IA) investigations. (¶ 18.)

         The MCSD subsequently reached out to Edminsten who, in an October 22, 2014 letter, provided allegedly false information regarding three IA investigations in Oliveira's file. (¶ 31.) ABC News obtained and aired the contents of this letter in November 2014. (¶ 34.)

         The following year, when Oliveira was under consideration for a position as the Chief of Police for White Mountain Apache Tribal Police Department (WMATPD) in Arizona, Defendant Button communicated false information to the WMATPD about Oliveira's prior employment with the BIA and advised the WMATPD not to hire him. (¶ 50.) WMATPD ultimately revoked Oliveira's employment offer. (¶ 51.)

         These disclosures are the basis of Oliveira's claims for negligent file maintenance, false light invasion of privacy, negligent/intentional infliction of emotional distress, and negligent/intentional interference with prospective employment relations. Oliveira brings these claims against Defendants under the FTCA, which “waives the United States' sovereign immunity in a defined category of cases involving negligence committed by federal employees in the course of their employment.” Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1018 (9th Cir. 2007) (internal quotation and citation omitted). Defendants move to dismiss, arguing that the Court lacks jurisdiction because the United States has not waived its sovereign immunity for the torts Oliveira has alleged.

         II. Legal Standard

         A complaint may be dismissed under Rule 12(b)(1) if the court lacks subject matter jurisdiction. Subject matter jurisdiction may be challenged facially or factually. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial challenge, a defendant asserts that the complaint fails to allege facts sufficient to invoke federal jurisdiction. Id. A factual attack disputes the veracity of the allegations in the complaint that, if true, would invoke federal jurisdiction. Id. When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction. Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001), abrogated on other grounds by Herz Corp. v. Friend, 559 U.S. 77 (2010).

         III. Discussion

         Sovereign immunity is jurisdictional and, absent a waiver, shields the United States and its agencies from suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The FTCA acts as a limited waiver of sovereign immunity for specific types of torts committed by government employees, and is the exclusive remedy for tortious conduct by the United States. See F.D.I.C. v. Craft, 157 F.3d 697, 706-07 (9th Cir. 1998). The FTCA's limited waiver of sovereign immunity does not extend to “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). “When a claim falls within a statutory exception to the FTCA's waiver of sovereign immunity, the court is without subject matter jurisdiction to hear the case.” Mundy v. United States, 983 F.2d 950, 952 (9th Cir. 1993). To determine whether a claim “arises out of” a tort enumerated in § 2680(h), courts examine the conduct upon which a plaintiff's claim is based, rather than the label attached to the claim. Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th Cir. 1990) (“[W]e look beyond [the complaint's] characterization to the conduct on which the claim is based.”)

         A. Negligent File Maintenance (Count II)

         Oliveira styles his second cause of action as a “negligent file maintenance” claim. “Most courts which have considered claims for negligent recordkeeping have found them barred under the libel and slander exception to the FTCA.” Talbert v. United States, 932 F.2d 1064, 1067 (4th Cir. 1991).[3] When assessing negligent file maintenance claims brought under the FTCA, the Ninth Circuit distinguishes claims based on the performance of operational tasks from claims based on communication of information. Guild v. United States, 685 F.2d 324, 325 (9th Cir. 1982). The government may be held liable under the FTCA for injuries resulting from negligence in the performance of operational tasks even though misrepresentations are collaterally involved. Id. But claims essentially based on the communication of negative information about a plaintiff to ...


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