United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Defendants' Motion to Dismiss. (Doc.
15). Also pending before the Court is Plaintiff's Motion
for Judgment on the Pleadings, Motion for Sanctions Against
Defendants, Motion for Entry of Default as to Defendants,
Motion to Strike Defendants' Motion to Dismiss, and
Motion to Amend Complaint. (Docs. 16, 23). For the following
reasons, the Court grants Defendants' Motion to Dismiss
and denies Plaintiff's Motion for Sanctions, Motion for
Default, and Motion to Strike. Plaintiff's Motion for
Judgment on the Pleadings and Motion to Amend Complaint are
dismissed as moot.
Theresa Garner brings this suit, pro se, against the United
States of America, U.S. Department of Defense (DOD), U.S.
Department of Commerce (DOC), U.S. Social Security
Administration (SSA), U.S. Department of Justice (DOJ),
Acting U.S. Attorney Elizabeth Strange, Secretary James
Mattis, Secretary Alexander Acosta, Secretary Wilbur Ross,
Attorney General Jefferson Sessions, and Acting Commissioner
Nancy Berryhill (collectively, “Defendants”).
2016, Ms. Garner was employed by the DOC as a field
representative with the Census Bureau. While working, Ms.
Garner slipped and fell on a driveway in Tonopah, Arizona.
Ms. Garner filed a claim with the Office of Worker's
Compensation Programs (OWCP), the agency responsive for
processing federal employees' worker's compensation
claims. The OWCP accepted Ms. Garner's claims for
injuries to her wrist, hip, ankle, lumbar, knee, and teeth.
As such, the OWCP paid compensation benefits for the period
Ms. Garner was unable to work, August 16, 2016 to September
6, 2016. Ms. Garner later filed a request to
upgrade her hip injury from a sprain to a fracture. The OWCP
ultimately denied this request due to insufficient medical
OWCP stopped paying wage loss compensation benefits to Ms.
Garner in September 2016 because Ms. Garner began working
again, this time with DOD's Defense Commissary Agency. On
November 4, 2016, Ms. Garner injured herself while moving
boxes at work. Ms. Garner filed two claims stemming from this
injury. First, on November 4, 2016, Ms. Garner filed a claim
with OWCP stating that her leg and hip were in pain due to
her work accident. OWCP denied Ms. Garner's claim on
December 30, 2016 due to insufficient evidence that the work
incident had caused her injuries. Ms. Garner appealed this
decision on January 11, 2017. At the time of briefing, Ms.
Garner's appeal was still pending. Second, Ms. Garner
filed a claim for recurrence of her July injury on December
12, 2016. OWCP denied this claim because the November injury
was a separate incident and not a recurrence of her
original injury. At the time of briefing, Ms. Garner
had not brought an appeal of this decision.
Garner alleges that the OWCP has suppressed medical evidence
she has filed, falsely claimed nonreceipt of documents, and
delayed processing her claims. She further alleges that OWCP
failed to pay compensation benefits for the period of August
1, 2016 to September 14, 2016. Additionally, she notes that
certain medical bills stemming from her first claim were
unpaid as of the time of briefing. Ms. Garner disputes the
determinations of the OWCP in denying her recurrence claim
and her second injury claim.
the bulk of Ms. Garner's allegations center on her
worker's compensation benefits and the actions of OWCP,
she makes various claims against other government actors. She
states that the SSA also engaged in suppression of medical
evidence and falsely claimed nonreceipt of documentation. She
alleges that the DOD unlawfully delayed requests for sick
leave. Further, Ms. Garner alleges that the DOD, DOC, DOL,
and DOJ have engaged in various conspiracies against her that
have resulted in harassment in person and online.
filed a motion to dismiss for lack of subject matter
jurisdiction. Plaintiff objects to the timing of
Defendants' motion, and therefore seeks judgment on the
pleadings and to strike Defendants' motion.
Court may only reach the merits of a dispute if it has
jurisdiction to do so. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 93-95 (1998). Jurisdiction is
limited to subject matter authorized by the Constitution or
by statute. Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994). Under the Federal Rules of Civil
Procedure, a defendant may challenge at any time a federal
court's jurisdiction to hear the case. Fed.R.Civ.P.
12(b)(1), 12(h)(3). A facial challenge asserts that the
complaint, on its face, fails to allege facts that would
invoke federal jurisdiction. Safe Air For Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2003). In the
present case, Defendants present a facial challenge to the
Complaint, arguing that even if the allegations in the
Complaint are true, Plaintiff is either statutorily barred or
has failed to exhaust administrative remedies before bringing
resolving a motion under Rule 12(b)(1), the Court is not
limited to the allegations in the pleadings if the
“jurisdictional issue is separable from the merits of
the case.” Roberts v. Corrothers, 812 F.2d
1173, 1177 (9th Cir. 1987). The Court “may view
evidence outside the record, and no presumptive truthfulness
is due to the complaint's allegations that bear on the
subject matter [jurisdiction] of the court.” Greene
v. United States, 207 F.Supp.2d 1113, 1119 (E.D. Cal.
2002) (citing Augustine v. United States, 704 F.2d
1074, 1077 (9th Cir. 1983)). Lack of subject matter
jurisdiction is an affirmative defense, but the “party
asserting jurisdiction has the burden of proving all
jurisdictional facts.” Indus. Tectonics, Inc. v.
Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990)
(internal citation omitted).