The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff, Sharon Viehdeffer, commenced this action seeking damages and injunctive relief for the alleged deprivation of property without due process of law in violation of the Fifth Amendment and for alleged state tort claims. Presently before this Court is the motion to dismiss and/or for summary judgment of Defendants Todd Tryon, Jisuan Kim, Secretary Janet Napolitano, and U.S. Immigration and Customs Enforcement ("ICE"). (Docket No. 14.) Also before this Court is the motion of Defendant Valley Metro-Barbosa Group ("Valley Metro") for judgment on the pleadings and for summary judgment dismissing the complaint. (Docket No. 23.) The Court has considered the submissions and finds oral argument unnecessary. For the reasons that follow, both motions are granted.
As alleged in her complaint, Plaintiff was previously employed by Valley Metro as a detention officer at the Buffalo Federal Detention Center. (Compl. ¶ 11, Docket No. 1.) Plaintiff was a member of the Service Employees International Union, Local 200 United ("Union"), and pursuant to the applicable collective bargaining agreement ("CBA"), her employment with Valley Metro could only be terminated for just cause. (Compl. ¶ 12.) On October 9, 2010, Plaintiff "was given an appearance ticket . . . [but] was not otherwise charged with second degree harassment or any other misdemeanor or felony" for a non-work related incident. (Compl. ¶ 16; see Aff. of Plaintiff Sharon Viehdeffer ¶ 15, Docket No. 24-1.) Plaintiff alleges that in May or June 2011, Valley Metro transmitted information to ICE "falsely alleging that she had been arrested, had committed criminal harassment, and or failed to report an incident to Valley Metro and/or ICE." (Compl. ¶ 14.)
After the allegations of misconduct were reported by Valley Metro, Defendant Jisuan Kim, a contracting officer for ICE at the Buffalo Federal Detention Center, informed Valley Metro by letter dated June 14, 2011, that it was "necessary that [Plaintiff] be permanently removed from working on this or any other ICE contract." (Compl. ¶¶ 9, 15, Ex. A.) Kim stated:
Pursuant to an internal ICE investigation, it became known that [Plaintiff] was arrested by local law enforcement for harassment 2nd on October 9, 2010. [Plaintiff] failed to report the arrest to either Valley Metro management or ICE. Failure to report the arrest is a violation of the contract Performance Work Statement. (Compl. Ex. A.) Kim further noted that Plaintiff concealed this information for over nine months, and that she denied the arrest when confronted with the allegations. (Compl. Ex. A.) Plaintiff was terminated from her employment by Valley Metro as a result. (Compl. ¶ 2 18.)
The Union grieved Plaintiff's termination on her behalf in July 2011. (Compl. ¶ 19 Ex. B.) Valley Metro denied the grievance on the ground that "ICE retains the sole and final authority for granting/withdrawing an employee[']s site security clearance." (Compl. ¶ 20 Ex. B.)
Plaintiff commenced the instant action in this Court on January 10, 2012, alleging six different causes of action. Specifically, Plaintiff alleges that: (1) she was deprived of her property right to continued employment without due process of law by Defendants Kim, Todd Tryon, Secretary of Homeland Security Janet Napolitano, and ICE (collectively "the Federal Defendants") in violation of the Fifth Amendment; (2) she was stigmatized by the actions of the Federal Defendants without due process and has been precluded from obtaining work in her chosen profession in violation of the Fifth Amendment; (3) Valley Metro knowingly and/or negligently or recklessly communicated false information to ICE resulting in Plaintiff's termination (defamation); (4) Valley Metro intentionally inflicted emotional distress on Plaintiff by purposely and with malice aforethought transmitting false information regarding her to ICE; (5) the Federal Defendants, collectively and/or individually, intentionally inflicted emotional distress on Plaintiff by purposely and with malice aforethought causing her employment termination; (6) and the Federal Defendants and Valley Metro negligently inflicted emotional distress on Plaintiff by failing to investigate the false allegations regarding Plaintiff.
A. Lack of Subject Matter Jurisdiction against the Federal Defendants*fn1
The Federal Defendants contend that the state law tort claims asserted against them, specifically the fifth and sixth causes of action for the intentional and negligent infliction of emotional distress,*fn2 must be dismissed because, pursuant to the Federal Tort Claims Act ("FTCA"), these claims cannot be maintained against either a federal agency or a federal employee acting within the scope of his or her employment. See 28 U.S.C. § 2679 (a),(b)(1); (Fed. Def's Mem. of Law at 5-6, Docket No. 18.) Plaintiff, as the party asserting jurisdiction, has the burden of affirmatively showing by a preponderance of the evidence that subject matter jurisdiction exists, and such a showing "is not made by drawing from the pleadings inferences favorable to [Plaintiff]." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (citation and internal quotation marks omitted); see Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007); Luckett v. Bure, 290 F.3d 493, 496-497 (2d Cir. 2002). She has failed, however, to offer any opposition to the Federal Defendants' arguments on this point, nor has she requested that the United States be substituted as the appropriate party. It is therefore appropriate to consider the fifth and sixth causes of action abandoned as against the Federal Defendants. Anwar v. Fairfield Greenwich Ltd., 826 F.Supp.2d 578, 583 (S.D.N.Y. 2011).
In any event, the Federal Defendants have established that subject matter jurisdiction does not exist with respect to the tort claims asserted against them. "The FTCA's purpose is both to allow recovery by people injured by federal employees or by agents of the Federal Government, and, at the same time, to immunize such employees and agents from liability for negligent or wrongful acts done in the scope of their employment." Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005). This Act therefore provides that the exclusive remedy for causes of action based upon such negligent or wrongful acts is an action against the United States, not the individual employee. Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991); De Masi v. Schumer, 608 F.Supp.2d 516, 520 (S.D.N.Y. 2009). Here, Plaintiff has failed to allege in her complaint that any of the Federal Defendants were acting outside the scope of his or her employment, nor is there any evidence in the record from which to infer that fact. Therefore the fifth and sixth causes of action must be dismissed as against them. See Sitka v. United States, 903 F.Supp. 282, 284-285 (D. Conn. 1995). Similarly, ICE, as a federal agency, is also not an appropriate defendant under FTCA. 28 USC § 2679 (a).
Moreover, there is no reason to substitute the United States as the appropriate party. See 28 U.S.C. § 2679(d)(2)(upon certification that a federal employee was acting within the scope of employment, the action "shall be deemed an action against the United States"). These claims would ultimately fail even if they had been properly asserted against the United States under the FTCA, as this act requires that any claimant first file an administrative claim with the appropriate agency prior to commencing a lawsuit. 28 U.S.C. § 2675 (a); Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983), cert denied 464 U.S. 864 (1983). This requirement is jurisdictional and cannot be waived. Keene Corp., 700 F.2d at 840; Mele v. Hill Health Ctr., 609 F.Supp.2d 248, 257 (D. Conn. 2009). Plaintiff has neither alleged in her complaint nor argued in opposition that she previously filed a claim with the Department of Homeland Security. Further, the Federal Defendants submitted the Declaration of Scott A. Whitted, Deputy Chief of ICE's District Court Litigation Division, who asserted that a search of the relevant records revealed no claim by or on behalf of Plaintiff. (Docket No. 16 ¶¶ 1-2); see Zappia Middle East Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)(a court may look outside the pleadings to resolve a factual challenge to subject matter jurisdiction). Although Plaintiff submitted evidence that she received a response letter from Secretary Napolitano's office, this letter merely acknowledges the receipt by DHS of an October 3, 2011 letter from Plaintiff and asserts that it was referred to the ICE office of Professional Responsibility. (Pl. Aff. Ex H.) Thus, even if this letter constituted a claim, there was no final determination issued and less than six months had passed from the filing to the time Plaintiff commenced this action in January 2012. See 28 U.S.C. § 2675(a)(an agency's failure to make a final disposition on a claim within six months after filing shall, at a claimant's option, be deemed a denial). There is also no indication in either the "draft" letter that Plaintiff asserts she submitted to Secretary Napolitano or in the DHS response that Plaintiff requested a sum certain, a requirement for an administrative claim. Estate of George v. Veteran's Admin. Med. Ctr., 821 F.Supp.2d 573, 577 (W.D.N.Y. 2011); (Pl. Aff. Exs. G, H.) This Court is therefore without jurisdiction to consider the merits of the fifth and sixth causes of action as asserted against the Federal Defendants. Mele, 609 F.Supp.2d at 257.
The Federal Defendants also correctly argue that this Court lacks subject matter jurisdiction over the first and second causes of action insofar as Plaintiff seeks relief pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against ICE. (Def's Mem. of Law at 8-9). Plaintiff cannot assert a Bivens claim against a federal agency. F.D.I.C. v. Meyer, 510 U.S. 471, 484-486, 114 S.Ct. 996, 127 L.Ed.308 (1994); Swchweitzer v. Dept. of Veterans Affairs, 23 Fed. Appx. 57, 59 (2d Cir. 2001), cert denied 535 U.S. 955 (2002). The first and second causes of action must also be dismissed against ICE.
B. Failure to State a Bivens Claim against the Federal Defendants
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12 (b)(6), a court must accept all factual allegations in the complaint as true and make all reasonable inferences in a plaintiff's favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In order to survive such a motion, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); ATSI Commc'ns, Inc., 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In making its determination, a court is entitled to consider, as relevant here: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents 'integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) . . . , and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356-357 (S.D.N.Y. 2003)(citations omitted), aff'd 396 F.3d 161 (2d Cir. 2005), cert denied 546 U.S. 935 (2005); see Weiss v. Inc. Vill. of Sag ...