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Garner v. United States Department of Defense

United States District Court, D. Arizona

November 29, 2017

Theresa Garner, Plaintiff,
United States Department of Defense, et al., Defendants.


          Honorable G. Murray Snow United States District Judge

         Pending 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.


         Plaintiff 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”).

         In July 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.[1] 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 evidence.

         The 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.

         Ms. 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.

         Although 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.

         Defendants 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.


         I. Legal Standard

         The 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 suit.

         In 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).

         II. ...

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