Government App Solutions, Inc. v. City of New Haven ( 2021 )

1 PAHctIiLnLg IUPn Ait.e dT AStLaBteEs RATtt orney 2 PHILIP A. SCARBOROUGH (SBN 254934) Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 5 Philip.Scarborough@usdoj.gov 6 Attorneys for the United States 7 IN THE UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GOVERNMENT APP SOLUTIONS, INC., CASE NO. 2:21-CV-00696-TLN-KJN 11 Plaintiff, ORDER 12 v. 13 FEDERAL BUREAU OF INVESTIGATION, JUDGE: Hon. Troy L. Nunley et al., 14 Defendants. 15 16 17 Pending before the Court is the stipulation of plaintiff Government App Solutions, Inc. (“GAS”) 18 and defendants Michael Anderson, Amy S. Hitchcock, Rebekah Bills, Rachael LaChapelle, and the 19 United States, sued herein as the United States Attorney’s Office for the Eastern District of California 20 and the Federal Bureau of Investigation, to dismiss Count VI and Count XI of the First Amended 21 Complaint (“FAC”), and the stipulation of GAS and Hitchcock to dismiss any remaining claims in the 22 FAC asserted against Hitchcock without prejudice. Good cause appearing, the stipulation is 23 APPROVED. 24 Count VI of the FAC asserts that Anderson, Bills, LaChapelle, and the United States, acting 25 through the United States Attorney’s Office for the Eastern District of California and the Federal Bureau 26 of Investigation, are liable to GAS for negligence. See ECF 6 ¶¶ 94-102. Count XI of the FAC asserts 27 that Anderson and the United States, acting through the United States Attorney’s Office for the Eastern 28 District of California, are liable to GAS for negligence. See id. ¶¶ 142-153. GAS agrees that, with 1 respect to Count VI and Count XI, Anderson, Bills, LaChapelle, and Hitchcock were acting within the 2 course and scope of their federal employment. See id. ¶¶ 6-9. These two claims accordingly assert torts 3 against federal employees for acts or omissions that occurred within the course and scope of their federal 4 employment. See id. ¶¶ 6-9. The Westfall Act, 28 U.S.C. § 2679, “accords federal employees absolute 5 immunity from common-law tort claims arising out of acts they undertake in the course of their official 6 duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). Accordingly, Anderson, Hitchcock, Bills, and 7 LaChapelle are immune from suit for Count VI and Count XI. See 28 U.S.C. § 2679(b)(1). Those two 8 counts therefore must be dismissed to the extent either claim is asserted against any of the individual 9 federal employees, see Osborn, 549 U.S. at 229, and must be pursued, if at all, against the United States 10 under the Federal Tort Claims Act (“FTCA”). 11 Count VI and Count XI also assert tort claims against the United States Attorney’s Office for the 12 Eastern District of California and the Federal Bureau of Investigation. Under the FTCA, no subject 13 matter jurisdiction exists with respect to tort claims brought against a federal agency unless, prior to 14 filing suit, the plaintiff has complied with the administrative claim requirements of the FTCA. See 15 McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in 16 federal court until they have exhausted their administrative remedies.”). GAS has not yet exhausted its 17 administrative remedies under the FTCA. Accordingly, this Court lacks subject matter jurisdiction over 18 any tort claims asserted against the United States or any of its agencies. 19 GAS and Hitchcock further stipulate that any remaining claims asserted against Hitchcock in the 20 FAC be dismissed without prejudice, with each party to bear its own costs. 21 For the foregoing reasons, defendants Michael Anderson, Amy S. Hitchcock, Rebekah Bills, and 22 Rachael LaChapelle are immune to suit for Count VI and Count XI. Count VI and Count XI are 23 DISMISSED WITHOUT LEAVE TO AMEND to the extent they are asserted against Anderson, 24 Hitchcock, Bills, and LaChapelle. GAS, Anderson, Hitchcock, Bills, and LaChapelle shall each bear 25 their own costs with respect to Count VI and Count XI. 26 To the extent Count VI and Count XI are asserted against the United States, the United States 27 Attorney’s Office for the Eastern District of California, the Federal Bureau of Investigation, or any other 28 agency of the federal government, this Court presently lacks subject matter jurisdiction under the FTCA 1 || because GAS did not exhaust the administrative tort claim process required by the FTCA prior to filing 2 || suit. Accordingly, Count VI and Count XI are DISMISSED WITHOUT PREJUDICE to the extent they 3 || are asserted against the United States, the United States Attorney’s Office for the Eastern District of 4 || California, or the Federal Bureau of Investigation. This order of dismissal is made without prejudice to 5 || any argument the United States may make concerning the adequacy of GAS’s attempt to comply with 6 || the FTCA’s administrative claim procedure, including without limitation whether GAS’s administrative 7 || tort claims are barred by the applicable statute of limitations. 8 Any remaining claims in the FAC asserted against defendant Amy S. Hitchcock are DISMISSED 9 || WITHOUT PREJUDICE, with each party to bear its own costs. 10 IT IS SO ORDERED. ry /) " “ \/ Lu 12 || Dated: September 17, 2021 — MN NS Z Troy L. Nunley } 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER