United States District Court, D. Arizona
G. Campbell Senior United States District Judge
Keith Goss has sued Defendants United States of America, Tuba
City Regional Health Care Corporation ("THC"), and
Lynette Bonar, alleging eight claims related to his
employment and resignation from THC. Doc. 1. THC and Bonar
move to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction. Doc. 17. The United States moves to
dismiss under Rule 12(b)(1) and (6) for lack of subject
matter jurisdiction and failure to state a claim. Doc. 21.
The motions are fully briefed, and no party has requested
oral argument. For the reasons that follow, the Court will
substitute the United States as a Defendant in place of THC
and Bonar on four claims, grant THC and Bonar's motion to
dismiss the other claims against them, and deny the United
States' motion to dismiss.
Court accepts Plaintiffs factual allegations as true for
purposes of these motions to dismiss. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
which is a tribal organization that has a self-determination
contract with the federal government, offers a wide range of
medical services from a former Indian Health Service Hospital
located in Tuba City on the Navajo Reservation. Doc. 17- 1 at
3, 43. Plaintiff worked as a podiatrist for THC from July 1,
2008 until he resigned on September 20, 2017. Docs. 1 at 4;
Doc 17-1 at 3. During his employment, Plaintiff made
complaints regarding inappropriate expenditures of hospital
money and inadequate medical care offered to tribal members.
Doc. 1 ¶¶12-14. After reports surfaced about
problems with care and corruption, THC placed Plaintiff on
administrative leave. Id. ¶ 17. An outside
attorney hired by THC interviewed Plaintiff regarding his
complaints and other statements he made in the course of his
employment, and characterized Plaintiffs other statements as
threats. Id. ¶¶ 18-19. Plaintiff alleges
that THC conducted this investigation and generally created a
hostile working environment to retaliate for the complaints
he made about the hospital. Id. ¶¶ 12-14.
Plaintiff resigned due to the results of the investigation.
Id. ¶ 22.
December 2017, Plaintiff submitted a Federal Torts Claim Act
("FTCA") claim to the Bureau of Indian Affairs,
alleging lost wages, lost future earnings, and emotional
distress. See Doc. 21-3 at 2-5. The claim was
denied. Doc. 17-1 at 81. In January 2018, Plaintiff sued
Bonar and several other employees of THC in Arizona Superior
Court, asserting a violation of federal wiretapping law, a
Bivens claim, and seven defamation claims. Doc. 17-1
at 84-97. The superior court granted defendants' motion
to dismiss for failure to state a claim and lack of subject
matter and personal jurisdiction. Doc. 32-1.
present complaint, Plaintiff alleges negligence and negligent
supervision against the United States and THC ("claim
1"); constructive discharge against THC ("claim
2"); intentional infliction of emotional distress
('TIED") against Bonar and THC ("claim
3"); breach of covenant of good faith and fair dealing,
apparently against all Defendants ("claim 4"); a
Bivens claim against Bonar ("claim 5");
negligent supervision against all defendants as to the
actions of THC employee Jayson Watabe ("claim 6");
violation of state whistleblower laws against THC and Bonar
("claim 7"); and violation of federal
whistleblowing laws against THC and Bonar. ("claim
The United States' Motion.
and the United States have stipulated that the United States
will be substituted as the sole defendant in claims 1, 2, 3,
and 6 pursuant to the FTCA. Doc. 24, ¶ 3 ("the
Parties stipulate that ... the United States is the sole and
proper party for the allegations raised in Counts 1, 2, 3,
and 6."). This appears to be a valid stipulation.
Federal regulations explain that "no claim may be filed
against a self-determination contractor or employee based
upon performance of non-medical-related functions under a
self-determination contract. Claims of this type must be
filed against the United States under the FTCA." 25
C.F.R. § 900.204. In light of this stipulation, THC and
Bonar will be dismissed as Defendants in claims 1, 2, 3, and
6, and these claims will proceed solely against the United
States. In the remainder of this order, the Court will
address these claims as being asserted against the United
States, properly substituted under 28 U.S.C. §
Jurisdiction for Employment-Related Claims.
United States argues that the FTCA excludes coverage for
employment-related claims between tribal employers and their
employees. Doc. 21 at 6. Without identifying specific claims,
the United States appears to argue that all of Plaintiffs
employment-related claims are actually breach of contract
claims excluded from coverage by the FTCA. Id.
FTCA does not cover claims for breach of contract. 28 U.S.C.
§ 2680(h); 25 C.F.R. § 900.183(a). Nor does it
permit the United States to substitute for a government
employee sued for breach of contract. See 28 U.S.C.
§ 2679(b)(1). By stipulating to substitute itself as the
sole defendant in claims 1, 2, 3, and 6, the United States
seems to concede that those claims are covered by the FTCA,
which would mean they are not breach of contract claims. And,
consistent with this position, the United States has not
sought to substitute for THC and Bonar on claim 4, which
asserts a breach of contractual covenant claim. See
Doc. 21 at 2.
reply brief, the United States cites Pink v. Modoc Indian
Health Project, Inc., 157 F.3d 1185 (9th Cir. 1998), for
the proposition that a plaintiff cannot bring
employment-related claims against the United States arising
from employment with a tribal entity. But Pink
contains very little discussion of this issue. It states only
that "Pink's proposed amendment to substitute the
United States would have been futile because Congress did not
waive sovereign immunity." Id. at 1188. In this
case, by contrast, the government has stipulated to
be substituted for the individual Defendants on claims 1, 2,
3, and 6. Doc. 24. And the other grounds for dismissal of the
plaintiffs claims in Pink have not been asserted by
the government in this case. See Id. at 188-89.
government also cites Locklear v. Gila River Indian
Cmty., No. 2:12-CV-01798-SLG, 2013 WL 12125745 (D. Ariz.
Apr. 5, 2013), in its reply brief. Like Pink,
Locklear addressed employment-related claims brought
against a tribe and various employees of tribal entities. The
United States was not named as a Defendant in that case and
did not substitute for any defendant. Locklear
addressed the plaintiffs various arguments that the tribal
defendants could be sued in federal court, and found none of
them correct. Id. at *2-4. The court did not
consider whether it could exercise jurisdiction over claims
brought against the United States under the FTCA.
government also argues in its reply brief that any
employment-related claims, whether asserted as torts or
breach of contract, must be brought in tribal court. Doc. 32
at 3-5. The government seems to suggest that FTCA liability
for actions of employees of tribal self-determination
entities is limited under 25 U.S.C. § 45Of(c) (now found
at 25 U.S.C. § 5321(d)) to claims arising out of the
provision of medical care, and, because Plaintiffs claims do
not stem from the provision of medical services, those claims
are not covered by the FTCA and cannot be asserted in this
case. Doc. 32 at 5. The Court has three problems with this
argument. First, it was not asserted in the United
States' motion to dismiss, and the Court will not
consider an argument made for the first time in a reply
brief. Second, it appears to be inconsistent with 25 C.F.R.
§ 900.204, which provides that claims "based upon
performance of non-medical-related functions under a
self-determination contract. . . must be filed against the
United States under FTCA." Third, it is inconsistent
with the government's substitution for THC and
Court will not dismiss the claims at this point on the basis
of these arguments, but does not preclude the government from
reasserting them at summary judgment.
Exhaustion and Plaintiffs IIED Claim.
United States argues that Plaintiffs claim for IIED should be
dismissed for failure to exhaust administrative remedies
because he failed to describe the injury sufficiently in his
administrative claim to the BIA. Doc. 21 at 8. The Court does
FTCA provides that '"an action shall not be
instituted upon a claim against the United States for money
damages' unless the claimant has first exhausted his
administrative remedies." McNeil v. United
States, 508 U.S. 106, 107 (1993) (quoting 28 U.S.C.
§ 2675(a)). Exhaustion "is a prerequisite to
district court jurisdiction." Johnson v. United
States, 704 F.2d 1431, 1442 (9th Cir. 1983). A claim is
considered "presented for purposes of § 2675 when a
party files (1) a written statement sufficiently describing
the injury to enable the agency to begin its own
investigation, and (2) a sum certain damages claim."
Blair v. United States, 304 F.3d 861, 863-64 (9th
administrative claim described his employment issues with THC
and claimed $150, 000 for emotional distress. See
Doc. 21-3 at 4-5. This was sufficiently detailed under 28
U.S.C. § 2675. Doc. 28 at 12. "The claim
presentation requirement of the FTCA is designed to ensure
that compensation is provided in a fair and equitable manner,
'not to provide a basis for a regulatory checklist, which
when not fully observed, permits the termination of claims
regardless of their merits.'" Blair, 304
F.3d at 868 (quoting Erxleben v. United States, 668
F.2d 268, 273 (7th Cir. 1981)). By specifically seeking
compensation for emotional distress, Plaintiff placed the
government on notice of his emotional distress claim. He
provided "information sufficient for [the agency] to
investigate." See Kinlichee v. United States,
929 F.Supp.2d 951, 960 (D. Ariz. 2013).