United States District Court, D. Arizona
Mark D. Davenport, Plaintiff,
United States Department of Homeland Security, Defendant.
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
plaintiff Mark D. Davenport sued the United States, alleging
various tort, constitutional, and statutory claims. Doc. 16.
Defendant moves to dismiss Plaintiff's first amended
complaint pursuant to Rule 12(b)(1) and (6). Doc. 18. The
motion is fully briefed, and no party requests oral argument.
Docs. 26, 29. For the following reasons, the Court will
dismiss Plaintiff's first amended complaint without
alleges that he began participating in an Equal Employment
Opportunity Commission (“EEOC”) case in April
2015 as a non-attorney representative for his fiancé,
a former employee of the Transportation and Security
Administration (“TSA”). Doc. 16 at 2. Debra
Wheeler was also involved in the EEOC case, as a TSA human
resources specialist. Id. Plaintiff alleges that
Wheeler retaliated against him and interfered with the EEOC
case by falsely alleging that he stalked and harassed her and
shot at her window with a gun (id. at 3-5),
releasing his private and personally identifiable information
to third parties (id. at 3), sending federal agents
to his home to interrogate him about the false allegations
(id.), and negligently and intentionally defaming
and slandering him (id. at 5-6). Plaintiff's
first amended complaint refers to the Federal Tort Claims Act
(“FTCA”), the First and Fourth Amendments, 5
U.S.C. § 552, 18 U.S.C. § 1001(a), 42 U.S.C. §
1983, and sections of the TSA employee code of conduct.
Id. at 7-8. Defendant argues that the Court lacks
subject matter jurisdiction over Plaintiff's claims and
that Plaintiff fails to state a claim for relief. Doc. 18.
Rule 12(b)(1) jurisdictional attack may be facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction.” Safe Air for Everyone, 373 F.3d
at 1039. “In a facial attack, the challenger asserts
that the allegations contained in the complaint are
insufficient on their face to invoke federal
jurisdiction.” Id. “The district court
resolves a facial attack as it would a motion to dismiss
under Rule 12(b)(6): Accepting the plaintiff's
allegations as true and drawing all reasonable inferences in
the plaintiff's favor, the court determines whether the
allegations are sufficient as a legal matter to invoke the
court's jurisdiction.” Leite v. Crane Co.,
749 F.3d 1117, 1121 (9th Cir. 2014).
motion makes a facial attack on Plaintiff's complaint.
The motion does not substantially challenge the truth of the
facts alleged. See Doc. 18. Thus, under 12(b)(1),
the Court will accept the alleged facts as true.
Federal Tort Claims Act.
FTCA provides a limited waiver of the government's
sovereign immunity for certain tort claims. 28 U.S.C. §
1346(b); United States v. S.A. Empresea de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 807-08
(1984). But the government remains immune from suits for
“[a]ny claim arising out of . . . malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
rights.” 28 U.S.C. § 2680(h).
Sheehan v. United States, 896 F.2d 1168 (9th Cir.
1990), the Ninth Circuit explained that “§ 2680(h)
bars suit for claims based on conduct which constitutes one
of the excepted torts, and bars suit for no other
claims.” Id. at 1171. The government's
alleged conduct, then, is the touchstone for determining
whether § 2680(h) bars Plaintiff's claims. If
Defendant's alleged conduct constitutes one of the torts
listed in § 2680(h), dismissal is required.
argues that Plaintiff's allegations about Wheeler are
based on libel, slander, and misrepresentation, and are thus
barred under § 2680(h). Doc. 18 at 5-6. Plaintiff
reiterates the factual bases for his claims and cites various
federal and state statutes and cases, but he does not
meaningfully respond. See Doc. 26. Among his
allegations, Plaintiff states that Wheeler:
intentionally, negligently and in bad faith, attempted[ed] to
“frame-up” Plaintiff; [made] malicious,
intentional, false and negligent publications, which did
defame and slander Plaintiff, causing him extreme anxiety,
humiliation, worry fear and emotional duress; [and] falsely
alleg[ed] Plaintiff was seen performing sex act . . . [and
that Plaintiff] caused damage to a window of [Wheeler's]
Doc. 16 at 3-4. Plaintiff also alleges that
“Wheeler's contrived and negligent allegations, . .
. [caused Plaintiff to] suffer extreme embarrassment,
anxiety, humiliation, worry, fear and emotional duress”
(id. at 3), and that Wheeler's actions
“were negligent and done intentionally with malice to