Frank Douglas v. United States ( 2016 )


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  •                Case: 14-11444        Date Filed: 02/29/2016      Page: 1 of 24
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-11444
    ________________________
    D.C. Docket No. 5:12-cv-00379-WTH-PRL
    FRANK DOUGLAS,
    Plaintiff-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (February 29, 2016)
    Before TJOFLAT and MARTIN, Circuit Judges, and ROSENTHAL, * District
    Judge.
    MARTIN, Circuit Judge:
    Frank Douglas, a federal inmate, appeals the District Court’s dismissal of his
    Federal Tort Claims Act (FTCA) case. He claims that a Bureau of Prisons (BOP)
    *
    Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
    Texas, sitting by designation.
    Case: 14-11444     Date Filed: 02/29/2016   Page: 2 of 24
    official withheld wages he was owed for his work while incarcerated. The District
    Court held that this claim was barred by the FTCA’s discretionary function
    exception. Mr. Douglas also filed related claims of discrimination, retaliation, and
    intentional infliction of emotional distress. The District Court dismissed these
    other claims based on the FTCA’s exhaustion requirements. We reverse the
    District Court on the pay claim and affirm for the others.
    I.
    Mr. Douglas is a 56-year-old federal inmate. When he filed this lawsuit, he
    was incarcerated at FCC Coleman, a penitentiary in Florida, where he worked a
    trash shift multiple days a week. According to Mr. Douglas, this shift required him
    to “operate[] a very dangerous recycl[ing] machine for card-board.” Mr. Douglas
    was one of two operators of this machine, the contents of which “weighed one or
    two tons” and had to be loaded into a semi-truck three or four times a week.
    The BOP assigns inmate workers to one of four grades of “performance
    pay,” with Grade 1 workers paid the most. See 28 C.F.R. § 545.26(b). According
    to Mr. Douglas’s complaint, “[m]e and my supervisor went over my grade and pay
    numerous times.” Then, on March 15, 2012, Mr. Douglas and his supervisor both
    signed a “Work Performance Rating” form indicating that Mr. Douglas had
    worked 154 hours of “satisfactory work” in the past month. The form also
    indicated that Mr. Douglas’s “Performance Pay Grade Class” was 1 and that he
    2
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    would be paid $91.60. However, when Mr. Douglas was paid four days later, he
    received $7.20. The same thing happened the next month, when Mr. Douglas’s
    supervisor again approved $91.60 for 154 hours of Grade 1 work but Mr. Douglas
    was paid only $12.00. Mr. Douglas alleges that these changes to his pay were
    made by a prison official named Lieutenant Barker. According to the complaint,
    Lt. Barker’s role with respect to inmate pay is entering pay data into a computer
    system. Mr. Douglas also alleges that Lt. Barker said that he reduced the pay
    because “I don’t like Inmate Douglas black ass and I’m going to pay him what I
    want.”
    Based on these allegations, Mr. Douglas filed a “Small Claims for Property
    Loss” form with the BOP on April 9, 2012. The BOP sent Mr. Douglas a final
    denial of this claim on June 21, 2012. Mr. Douglas then filed this lawsuit on June
    27, 2012. By the time he sued, Mr. Douglas had also filed BOP complaints
    alleging retaliation, racial discrimination, and intentional infliction of emotional
    distress, but these were not fully appealed until later. The government moved to
    dismiss the suit under Rule 12(b)(6), arguing that Mr. Douglas’s pay claim was
    barred by the FTCA’s discretionary function exception and that the other claims
    were barred by the FTCA’s exhaustion requirements. The motion was styled
    “alternatively” as a motion for summary judgment and included excerpts from
    various BOP documents, as well as a declaration by the prison’s Inmate
    3
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    Performance Pay Coordinator. The District Court granted the motion to dismiss on
    March 12, 2014.
    II.
    We first address whether Mr. Douglas’s pay claim was barred by the
    FTCA’s discretionary function exception. We review this question of law de novo.
    See Cohen v. United States, 
    151 F.3d 1338
    , 1340 (11th Cir. 1998).
    A.
    The FTCA’s discretionary function exception provides that the United States
    does not waive sovereign immunity for claims “based upon the exercise or
    performance or the failure to exercise or perform a discretionary function or duty
    on the part of a federal agency or employee of the Government.” 28 U.S.C. §
    2680(a). We apply this exception by answering two questions. “First, we consider
    the nature of the conduct and determine whether it involves ‘an element of
    judgment or choice.’” Ochran v. United States, 
    117 F.3d 495
    , 499 (11th Cir. 1997)
    (quoting United States v. Gaubert, 
    499 U.S. 315
    , 322, 
    111 S. Ct. 1267
    , 1273
    (1991)). “[C]onduct does not involve an element of judgment or choice, and thus
    is not discretionary, if ‘a federal statute, regulation, or policy specifically
    prescribes a course of action for an employee to follow, because the employee has
    no rightful option but to adhere to the directive.’” 
    Id. (quoting Gaubert,
    499 U.S.
    at 
    322, 111 S. Ct. at 1273
    ). “Second, if the conduct at issue involves the exercise
    4
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    of judgment, we must determine whether that judgment is grounded in
    considerations of public policy.” 
    Id. When a
    plaintiff challenges the actions of an individual employee who is
    working within a broader administrative scheme, “a court must first consider
    whether the action is a matter of choice for the acting employee.” Berkovitz v.
    United States, 
    486 U.S. 531
    , 536, 
    108 S. Ct. 1954
    , 1958 (1988). “This inquiry is
    mandated by the language of the exception,” which “protects the discretion of the
    executive or the administrator to act according to one’s judgment of the best
    course.” 
    Id. (quotation omitted).1
    “For a complaint to survive a motion to dismiss,
    it must allege facts which would support a finding that the challenged actions are
    not the kind of conduct that can be said to be grounded in the policy of the
    regulatory regime.” 
    Gaubert, 499 U.S. at 324
    –25, 111 S. Ct. at 1274–75.
    1
    Justice Scalia’s Gaubert concurrence spells out in more detail why the discretionary
    function exception focuses on whether the individual employee had discretion to make a choice,
    regardless of whether the agency as a whole had this same discretion:
    The dock foreman’s decision to store bags of fertilizer in a highly compact
    fashion is not protected by this exception because, even if he carefully calculated
    considerations of cost to the Government vs. safety, it was not his responsibility
    to ponder such things; the Secretary of Agriculture’s decision to the same effect is
    protected, because weighing those considerations is his task. In Indian Towing
    Co. v. United States, 
    350 U.S. 61
    , 
    76 S. Ct. 122
    [] (1955), the United States was
    held liable for, among other things, the failure of Coast Guard maintenance
    personnel adequately to inspect electrical equipment in a lighthouse; though there
    could conceivably be policy reasons for conducting only superficial inspections,
    the decisions had been made by the maintenance personnel, and it was assuredly
    not their responsibility to ponder such things. This same factor explains why it is
    universally acknowledged that the discretionary function exception never protects
    against liability for the negligence of a vehicle driver. The need for expedition vs.
    the need for safety may well represent a policy choice, but the Government does
    not expect its drivers to make that choice on a case-by-case 
    basis. 499 U.S. at 335
    –36, 111 S. Ct. at 1280 (Scalia, J., concurring) (citations omitted).
    5
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    B.
    Before getting to the details of the government’s discretionary function
    challenge, we must address a preliminary question: whether our review is limited
    to the allegations in Mr. Douglas’s complaint, or whether we should consider the
    extrinsic evidence that the government filed in the District Court. The government
    attached several documents to its motion to dismiss, which was styled
    “alternatively” as a summary judgment motion. The District Court dismissed the
    case without considering this evidence or allowing Mr. Douglas to conduct
    discovery to respond to it.
    When reviewing a discretionary function decision “entered on a motion to
    dismiss,” the standard of review is usually straightforward: we “accept all of the
    factual allegations in [the] complaint as true and ask whether the allegations state a
    claim sufficient to survive a motion to dismiss.” 
    Gaubert, 499 U.S. at 327
    , 111 S.
    Ct. at 1276 (quotation omitted); see also Mesa v. United States, 
    123 F.3d 1435
    ,
    1437 (11th Cir. 1997). The government says this rule doesn’t apply here because
    “this Court has long treated a section 2680 bar as jurisdictional.” According to the
    government, this means its attack on Mr. Douglas’s complaint is based on Rule
    12(b)(1), which deals with subject matter jurisdiction, rather than Rule 12(b)(6),
    which asks if the plaintiff properly stated a claim. Whereas 12(b)(6) challenges are
    “facial” (meaning we accept the allegations in a complaint as true), 12(b)(1)
    6
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    challenges can be “factual” (meaning we can use extrinsic evidence). See
    Carmichael v. Kellogg, Brown & Root Servs., Inc., 
    572 F.3d 1271
    , 1279 (11th Cir.
    2009).
    The problem with this argument is that the government expressly moved to
    dismiss based on Rule 12(b)(6). The District Court then granted the government’s
    motion based solely on the allegations in Mr. Douglas’s complaint. That means
    the dismissal was facial. See McElmurray v. Consol. Gov’t of Augusta-Richmond
    Cty., 
    501 F.3d 1244
    , 1251 (11th Cir. 2007) (deciding that a dismissal for lack of
    subject matter jurisdiction was facial because “[t]he district court did not decide
    any issues of disputed fact”); Stalley ex rel. United States v. Orlando Reg’l
    Healthcare Sys., Inc., 
    524 F.3d 1229
    , 1233 (11th Cir. 2008) (per curiam) (deciding
    that a subject matter jurisdiction challenge was “a facial attack on the complaint”
    because “the record establishes that the district court considered only the complaint
    and the attached exhibits”). If the District Court had decided a factual challenge,
    this case would have come to us in a very different form. That is because “in a
    factual challenge the district court must give the plaintiff an opportunity for
    discovery and for a hearing that is appropriate to the nature of the motion to
    dismiss.” 
    McElmurray, 501 F.3d at 1251
    (citing Williamson v. Tucker, 
    645 F.2d 404
    , 414 (5th Cir. 1981)). Mr. Douglas was not given these opportunities here.
    No matter the reason behind a dismissal, we can’t convert a facial dismissal into a
    7
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    factual one on appeal. If we did, we would be finding facts for the first time on
    appeal.
    There is another reason to treat the government’s challenge as facial: the
    challenge turns on the merits of the overall case. “We have cautioned [] that the
    district court should only rely on Rule 12(b)(1) if the facts necessary to sustain
    jurisdiction do not implicate the merits of plaintiff’s cause of action. If a
    jurisdictional challenge does implicate the merits of the underlying claim then:
    ‘[T]he proper course of action for the district court . . . is to find that jurisdiction
    exists and deal with the objection as a direct attack on the merits of the plaintiff’s
    case.’” Morrison v. Amway Corp., 
    323 F.3d 920
    , 925 (11th Cir. 2003) (quoting
    Garcia v. Copenhaver, Bell & Assocs., 
    104 F.3d 1256
    , 1261 (11th Cir. 1997)).
    This serves to protect “the plaintiff who in truth is facing a challenge to the validity
    of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56
    . . . both of which place great restrictions on the district court’s discretion.” 
    Id. (quotation omitted).2
    2
    Other courts have applied this rule specifically to the discretionary function exception.
    See, e.g., Young v. United States, 
    769 F.3d 1047
    , 1052–53 (9th Cir. 2014); S.R.P. ex rel.
    Abunabba v. United States, 
    676 F.3d 329
    , 344 (3d Cir. 2012); Franklin Sav. Corp v. United
    States, 
    180 F.3d 1124
    , 1129 (10th Cir. 1999). And this Court has used the same reasoning to
    reverse a 12(b)(1) dismissal that was based on another FTCA exception. See Lawrence v.
    Dunbar, 
    919 F.2d 1525
    , 1530 (11th Cir. 1990) (per curiam) (“When the jurisdictional basis of a
    claim is intertwined with the merits, the district court should apply a Rule 56 summary judgment
    standard when ruling on a motion to dismiss which asserts a factual attack on subject matter
    jurisdiction.”).
    8
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    The government’s discretionary function challenge is based on factual
    contentions that go right to the merits of the overall case: questions like whether
    Mr. Douglas’s pay grade was correct, who can set this grade, who can review this
    decision, and when exactly Mr. Douglas’s pay vested. If the government wishes to
    press on with this challenge, “the proper course of action for the district court . . . is
    to find that jurisdiction exists and deal with the objection as a direct attack on the
    merits of the plaintiff’s case.” 
    Id. (quotation omitted).
    The court can then address
    this challenge in the proper manner: after discovery and with the protections of
    either a trial or review on summary judgment.3 In this appeal, we “accept all of the
    factual allegations in [the] complaint as true and ask whether the allegations state a
    claim sufficient to survive a motion to dismiss.” 
    Gaubert, 499 U.S. at 327
    , 111 S.
    Ct. at 1276 (quotation omitted).
    Also, our Court recently questioned whether the FTCA’s exceptions are a limit on subject
    matter jurisdiction. See Zelaya v. United States, 
    781 F.3d 1315
    , 1339 (11th Cir. 2015). Other
    courts have said they aren’t. See, e.g., Parrott v. United States, 
    536 F.3d 629
    , 634 (7th Cir.
    2008). Zelaya reviewed these cases, along with recent Supreme Court cases holding that similar
    limits on the scope of other statutes do not implicate the court’s subject matter jurisdiction. 
    See 781 F.3d at 1339
    –40. But the Court ended up holding that this distinction didn’t matter in that
    case because the outcome would have been the same under both 12(b)(1) and 12(b)(6). 
    Id. at 1340.
    We need not address this question today either. Here, the District Court decided a facial
    challenge based on Rule 12(b)(6). We cannot convert this facial challenge into a factual one for
    the first time on appeal.
    3
    The government is wrong to criticize Mr. Douglas for arguing we should not consider a
    BOP Program Statement the government attached to its motion to dismiss while “himself readily
    rel[ying] on the federal regulations reiterated in the Bureau of Prisons’ applicable Program
    Statement.” The reason Mr. Douglas can cite, and we can rely on, the BOP’s regulations is not
    because they are “reiterated” in a program statement. It’s because they have the force of law.
    See Albertson’s, Inc. v. Kirkingburg, 
    527 U.S. 555
    , 570, 
    119 S. Ct. 2162
    , 2171 (1999).
    9
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    C.
    At the pleading stage, Mr. Douglas must allege a plausible claim that falls
    outside the discretionary function exception. Autery v. United States, 
    992 F.2d 1523
    , 1526 n.6 (11th Cir. 1993). The exception does not cover government acts
    that “violated a mandatory regulation or policy that allowed no judgment” or acts
    that, although a permissible exercise of discretion, were not “grounded in the
    policy of the regulatory regime.” 
    Id. at 1526–27
    (quoting 
    Gaubert, 499 U.S. at 325
    , 111 S. Ct. at 1275). The relevant act alleged is Lt. Barker’s refusal at the
    payroll record data-entry stage to enter a wage amount that Mr. Douglas was
    entitled to receive because it was based on his pay grade and hours worked; the
    wages had been approved by Mr. Douglas’s supervisor; and Mr. Douglas’s right to
    the wages had vested. The record shows that BOP regulations allowed no
    discretion to refuse to pay the wages at that stage and that the refusal was not
    grounded in policy. The District Court erred in dismissing the claim on the basis
    of the pleading allegations.
    1.
    The BOP has promulgated regulations describing the process by which an
    inmate’s pay “becomes vested.” 28 C.F.R. § 545.26(h). These regulations
    generally give prisons discretion to decide which inmates will work and which
    types of work, if any, will be compensated at which pay grade. See 
    id. § 10
                   Case: 14-11444       Date Filed: 02/29/2016       Page: 11 of 24
    545.25(b); 
    id. § 545.26(a)–(b).
    But once an inmate’s work is assigned a pay grade
    and evaluated by his supervisor, the regulations make clear that the inmate is
    entitled to the pay that the supervisor computed. The regulations state that “[a]t the
    end of each month the work detail/program supervisor shall compute the hours
    worked by the inmate and the pay to be awarded for that month.” 
    Id. § 545.26(e)(1).
    A supervisor is required to “rate the inmate’s performance,”
    “review the evaluation with the inmate,” and “request that the inmate sign the
    evaluation form.” 
    Id. § 545.26(e)(3).
    Following this review, the regulations
    declare that “[a]n inmate’s performance pay, once earned, becomes vested.” 
    Id. § 545.26(h).
    4
    This process is exactly what Mr. Douglas says happened with his pay, up
    until Lt. Barker intervened. Mr. Douglas says his supervisor evaluated his work
    for both March and April 2012 and approved 154 hours of satisfactory work at
    Grade 1 each month. The supervisor then computed that Mr. Douglas would be
    paid $91.60 each month. Both the supervisor and Mr. Douglas then signed the
    evaluation. Assuming these allegations are true, Lt. Barker had no discretion to
    input a lower pay grade at this point. According to the BOP’s own regulations,
    4
    We are aware of no case interpreting this language. But the text is clear. “Earn” means
    “[t]o acquire by labor, service, or performance,” or “[t]o do something that entitles one to a
    reward or result, whether it is received or not.” Black’s Law Dictionary 620 (10th ed. 2014).
    “Vest” means “[t]o give (a person) an immediate, fixed right of present or future enjoyment.” 
    Id. at 1794.
    Thus, once an inmate does the work the prison requires, he enjoys an “immediate, fixed
    right of . . . enjoyment” in any performance pay that was promised.
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    Mr. Douglas’s pay had already vested. A government employee’s conduct “is not
    discretionary[] if ‘a federal statute, regulation, or policy specifically prescribes a
    course of action for an employee to follow, because the employee has no rightful
    option but to adhere to the directive.’” 
    Ochran, 117 F.3d at 499
    (quoting 
    Gaubert, 499 U.S. at 322
    , 111 S. Ct. at 1273). Once a supervisor evaluated Mr. Douglas’s
    work and computed his pay, the decision to pay him the computed amount was not
    discretionary. It was mandated by the BOP’s own regulations.
    The District Court held otherwise. It reasoned that “[i]f the BOP has
    discretion with respect to work assignments, it follows that there is discretion with
    respect to the amount to pay prisoners for their work.” That is true. But Mr.
    Douglas has challenged something narrower. He says Lt. Barker changed his pay
    grade after BOP officials exercised discretion to approve his pay and his supervisor
    approved the hours he worked, in accordance with BOP regulations setting out
    how and when inmate pay vests. See 28 C.F.R. § 545.26(e)–(h). If discretion to
    set inmate pay is the same as discretion to withhold pay an inmate already earned,
    then the BOP’s entire regulatory scheme for inmate pay – codified through notice-
    and-comment rulemaking – would mean nothing. If a prison can at every point say
    that inmates haven’t earned their pay because the prison could have paid them less
    in the first place, then the rule wouldn’t be that “[a]n inmate’s performance pay,
    12
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    once earned, becomes vested.” 28 C.F.R. § 545.26(h). It would be: pay becomes
    vested only when the prison says so.
    The government has one more argument for why Lt. Barker had discretion to
    withhold Mr. Douglas’s performance pay. It argues that the BOP’s pay regulations
    reference the ability of the “Warden” or “Department Head” to approve “bonus
    pay” and “special bonus” pay. See 28 C.F.R. § 545.26(f)–(g).5 But the
    government doesn’t contend that Lt. Barker is a Warden or Department Head. It
    also doesn’t claim that anyone – let alone a Warden or Department Head – told Lt.
    Barker to lower Mr. Douglas’s pay. Even if the government had raised either of
    these contentions, we would have to ignore them at the 12(b)(6) stage. Besides,
    even if we assume that a Warden or Department Head ordered the reduction of Mr.
    Douglas’s pay, there’s another problem: the regulations only require Warden or
    Department Head approval for bonus pay, not performance pay. See 
    id. For performance
    pay, the regulations say that pay vests after a “work detail/program
    supervisor” evaluates an inmate’s work and computes his pay. 
    Id. § 545.26(e)(3).
    6
    5
    The government’s brief never cites a specific regulation in making this argument.
    Instead, it mostly refers to the extrinsic evidence the government filed in the District Court.
    While this extrinsic evidence sometimes quotes the regulations, the government’s brief often
    refers to the evidence without any citation to the record. We are therefore left to assume that the
    government is referring to 28 C.F.R. § 545.26(f)–(g).
    6
    Along the same lines, the evaluation form attached to Mr. Douglas’s complaint has a
    blank “Signature and Date of Dept. Head Approval” field. The parties didn’t address this field
    until asked about it at oral argument, but it could be read to require a Department Head’s
    approval for inmate pay. On the other hand, the field sits below a section marked “Bonus
    13
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    Mr. Douglas says that is precisely what happened here: his supervisor evaluated his
    work and computed his pay, so it vested.
    2.
    Not only has Mr. Douglas plausibly alleged an act that disregarded and
    violated a mandatory BOP regulation, he has alleged a violation that was not
    grounded in policy. And, if as Mr. Douglas claims, Lt. Barker unilaterally altered
    Mr. Douglas’s wages out of racial animus, Lt. Barker’s conduct, even if
    discretionary, “cannot be said to be based on the purposes that the regulatory
    regime seeks to accomplish.” 
    Gaubert, 499 U.S. at 325
    , 111 S. Ct. at 1275.
    III.
    The government offers a few more arguments on appeal. It says Mr.
    Douglas’s pay claim is barred by two additional FTCA exceptions: 28 U.S.C.
    § 2680(h), which bars claims based on “misrepresentation, deceit, or interference
    with contract rights,” and 28 U.S.C. § 2680(c), which bars “[a]ny claim arising in
    respect of . . . the detention of any . . . property by any . . . law enforcement
    officer.” Neither bar was raised in the District Court, where the government
    moved to dismiss solely based on the discretionary function exception. But the
    Justification.” This implies that the signature is for bonuses, not performance pay. That would
    be consistent with the regulation, which requires Department Head approval for “bonus pay” and
    “special bonus pay” but not for “performance pay.” See 28 C.F.R. § 545.26(f)–(g). At the very
    least, this is another factual dispute. At the Rule 12(b)(6) stage, we must accept Mr. Douglas’s
    allegations that his supervisor computed his performance pay, just as the regulation requires.
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    government quotes our rule “that the judgment of a district court may be affirmed
    upon any adequate ground, even if it is other than the one on which the court
    actually relied.” Greenberg v. Nat’l Geographic Soc’y, 
    533 F.3d 1244
    , 1272 n.28
    (11th Cir. 2008) (en banc).
    Mr. Douglas responds that “a factual subject-matter jurisdiction argument”
    is not one of the grounds on which “this Court may affirm based on arguments
    never presented to the district court.” This is true. Again, a “factual attack” on
    subject matter jurisdiction “challenge[s] the existence of subject matter jurisdiction
    in fact, irrespective of the pleadings, and matters outside the pleadings, such as
    testimony and affidavits are considered.” In re CP Ships Ltd. Sec. Litig., 
    578 F.3d 1306
    , 1311–12 (11th Cir. 2009) (quotation omitted), abrogated on other grounds
    by Morrison v. Nat’l Australia Bank Ltd., 
    567 U.S. 247
    , 
    130 S. Ct. 2689
    (2010). If
    we decide this kind of challenge for the first time on appeal, we necessarily have to
    act as a fact finder. Here, both the § 2680(c) and the § 2680(h) challenges require
    us to look beyond the facts alleged in Mr. Douglas’s complaint.
    First, “[t]he test in applying [the § 2680(h)] exception is whether the essence
    of the claim involves the government’s failure to use due care in obtaining and
    communicating information.” JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 
    224 F.3d 1260
    , 1264 (11th Cir. 2000). Mr. Douglas’s complaint does not claim
    “failure to use due care in obtaining or communicating information” to him. He
    15
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    does not allege that the prison made a false statement to him, deceived him, or
    entered into a contract with him. Instead, he says Lt. Barker wrongfully reduced
    his pay after it vested. Once the case gets past the pleadings stage, the government
    may offer proof that Mr. Douglas was in fact set for lower pay or that his pay
    didn’t vest until after Lt. Barker entered it. But we can’t hold Mr. Douglas
    responsible for raising this kind of claim without going beyond his complaint.
    The same is true about § 2680(c), which bars “any claim arising in respect of
    . . . the detention of any . . . property by any . . . law enforcement officer.” Mr.
    Douglas alleges that a prison official wrongfully interfered with his pay. This is
    not a claim that someone wrongfully took custody or possession of his property,
    like in both of the § 2680(c) cases the government cites. See Ali v. Bureau of
    Prisons, 
    552 U.S. 214
    , 
    128 S. Ct. 831
    (2008); Krug v. United States, 442 F. App’x
    950 (5th Cir. 2011) (per curiam) (unpublished). From the face of the complaint,
    Mr. Douglas has not raised a claim about “detention” of property.
    IV.
    Finally, Mr. Douglas argues that the District Court erred when it found that
    his remaining claims of discrimination, retaliation, and intentional infliction of
    emotional distress were not exhausted. Before filing an FTCA lawsuit, a plaintiff
    must fully exhaust administrative remedies for his claims. McNeil v. United
    States, 
    508 U.S. 106
    , 113, 
    113 S. Ct. 1980
    , 1984 (1993). The BOP has
    16
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    promulgated regulations describing how prisoners should file administrative FTCA
    claims against the BOP. 28 C.F.R. § 543.30. Prisoners may file suit only after the
    final agency action. 
    Id. § 543.32(g).
    Mr. Douglas failed to fully exhaust the BOP’s administrative remedies
    before filing suit. Mr. Douglas filed his claims through the BOP’s Administrative
    Remedy Program (ARP), which handles all inmate claims relating to confinement.
    This appears to be separate from the BOP’s procedure for inmate FTCA claims.
    See 
    id. § 542.10(c);
    id. § 543.31. 
    The government argues that exhausting through
    the ARP does not satisfy the FTCA’s exhaustion requirement. We need not decide
    this question now because Mr. Douglas submitted his earliest ARP appeal on July
    31, 2012. This was weeks after he filed this suit. We therefore agree with the
    District Court that Mr. Douglas failed to fully exhaust administrative remedies
    before filing suit.
    V.
    For these reasons, we reverse the District Court on Mr. Douglas’s pay claim,
    affirm the remainder of the court’s holdings, and remand for further proceedings
    consistent with this opinion. 7
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    7
    This opinion is fully consistent with Judge Tjoflat’s concurrence, and in keeping with
    his characterization of the current state of the law.
    17
    Case: 14-11444        Date Filed: 02/29/2016       Page: 18 of 24
    TJOFLAT, Circuit Judge, concurring:
    For the reasons given in the court’s considered opinion, I agree that the
    District Court improperly dismissed Douglas’s pay-grade claim under
    Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 I write separately to
    emphasize the narrowness of this holding and to explain what must happen on
    remand.
    If this were a typical case, the path forward would be clear. Because
    Douglas has plausibly stated a claim upon which relief could be granted, taking as
    true the allegations in his complaint, the United States’ motion to dismiss would be
    defeated and the case would proceed to discovery. See Fed. R. Civ. P. 12(b)(6);
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678–79, 
    129 S. Ct. 1937
    , 1949–50, 
    173 L. Ed. 2d 868
    (2009); Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 554–56, 
    127 S. Ct. 1955
    ,
    1964–66, 
    167 L. Ed. 2d 929
    (2007). Following discovery and absent a settlement,
    the United States or Douglas could then move for summary judgment or, if
    genuine disputes of material fact remained, proceed to trial. Either way, the result
    would be a decision on the merits.
    But this is not a typical case. Douglas sued the United States, which would
    normally be immune from suit because of its sovereign immunity, under the
    Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1). The FTCA waives
    1
    I too see no reason to disturb the District Court’s conclusion that Douglas had failed to
    exhaust the remainder of his claims.
    Case: 14-11444        Date Filed: 02/29/2016       Page: 19 of 24
    the United States’ “traditional all-encompassing immunity” in certain
    circumstances. Rayonier Inc. v. United States, 
    352 U.S. 315
    , 319, 
    77 S. Ct. 374
    ,
    377, 
    1 L. Ed. 2d 354
    (1957). Relevant here, Douglas seeks “money damages” for
    “loss of property”—his allegedly vested pay—that was “caused by the negligent or
    wrongful act or omission” of a government employee—Lt. Barker—“acting within
    the scope of his office or employment, under circumstances where the United
    States, if a private person, would be liable to the claimant in accordance with the
    law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). If
    Douglas can make this showing and none of the exceptions enumerated in 28
    U.S.C. § 2680 apply to bar his suit, the United States has waived its immunity to
    suit and Douglas’s case may proceed. If Douglas cannot make this showing or one
    of the § 2680 exceptions applies, the United States has not waived its immunity
    and Douglas’s case must be dismissed.2
    The complicating factor for cases like Douglas’s is simply put: “Sovereign
    immunity is jurisdictional in nature.” Fed. Deposit Ins. Corp. v. Meyer, 
    510 U.S. 2
              Our precedent holds that the § 2680 exceptions are jurisdictional, not merits
    provisions—that is, they go to our “power to hear a case” rather than to whether they “entitle [a
    plaintiff] to relief.” See Morrison v. Nat’l Austrl. Bank Ltd., 
    561 U.S. 247
    , 254, 
    130 S. Ct. 2869
    ,
    2877, 
    177 L. Ed. 2d 535
    (2010) (citations and quotation marks omitted). This precedent
    conflicts with that of several other circuits and has been thrown into doubt by recent Supreme
    Court decisions. See Zelaya v. United States, 
    781 F.3d 1315
    , 1338–40 (11th Cir. 2015), cert.
    denied, 
    136 S. Ct. 168
    (2015); see also United States v. Kwai Fun Wong, 575 U.S. __, __, 135 S.
    Ct. 1625, 1636–38, 
    191 L. Ed. 2d 533
    (2015). I agree with this court’s opinion, however, that we
    need not resolve these questions today, though they may create additional wrinkles in future
    cases.
    19
    Case: 14-11444      Date Filed: 02/29/2016    Page: 20 of 24
    471, 475, 
    114 S. Ct. 996
    , 1000, 
    127 L. Ed. 2d 308
    (1994). Federal courts are
    courts of limited jurisdiction. The existence of subject-matter jurisdiction as a
    necessary prerequisite to decide “Cases” and “Controversies” is critical to our
    Constitution’s separation-of-powers principles and the rule of law in a system of
    limited government. U.S. Const. art. III, § 2. That is why litigants cannot waive a
    lack of subject-matter jurisdiction, and why federal courts have an independent
    duty to inquire into their own jurisdiction when it may be in doubt. See
    Commodity Futures Trading Comm’n v. Schor, 
    478 U.S. 833
    , 850–51, 
    106 S. Ct. 3245
    , 3256–57, 
    92 L. Ed. 2d 675
    (1986) (“When these Article III limitations are at
    issue, notions of consent and waiver cannot be dispositive because the limitations
    serve institutional interests that the parties cannot be expected to protect.”). In line
    with these principles, a party may move to dismiss for lack of subject-matter
    jurisdiction at any time. Fed. R. Civ. P. 12(b)(1), (h)(1). And if “the court
    determines at any time that it lacks subject-matter jurisdiction, the court must
    dismiss the action.” Fed. R. Civ. P. 12(h)(3).
    So what happens when, as is the case here, there is a sufficient pleading of
    subject-matter jurisdiction under the FTCA based on waiver of sovereign
    immunity as a facial matter—that is, taking as true the allegations contained in the
    complaint—but serious doubts remain as a factual matter? The answer depends on
    where you bring suit. Some circuits take the approach that courts should make a
    20
    Case: 14-11444     Date Filed: 02/29/2016   Page: 21 of 24
    threshold finding under Rule 12(b)(1), which may entail limited discovery and
    jurisdictional fact-finding, before ruling on the merits because it would be
    improper to proceed before subject-matter jurisdiction has been properly
    established. See CNA v. United States, 
    535 F.3d 132
    , 144–45 (3d Cir. 2008);
    Hamm v. United States, 
    483 F.3d 135
    , 137–38 (2d Cir. 2007); see also Crawford v.
    United States, 
    796 F.2d 924
    , 927–28 (7th Cir. 1986), abrogated on other grounds
    by United States v. Kwai Fun Wong, 575 U.S. __, 
    135 S. Ct. 1625
    , 
    191 L. Ed. 2d 533
    (2015). Other circuits take the approach that the finding of subject-matter
    jurisdiction should be made together with a merits determination under Rule 56
    when, as will often be the case, the two are sufficiently “intertwined.” See Kerns v.
    United States, 
    585 F.3d 187
    , 192–94 (4th Cir. 2009); Torres-Negrón v. J & N
    Records, LLC, 
    504 F.3d 151
    , 162–63 (1st Cir. 2007); Montez v. Dep’t of the Navy,
    
    392 F.3d 147
    , 149–51 (5th Cir. 2004); Augustine v. United States, 
    704 F.2d 1074
    ,
    1077–78 (9th Cir. 1983). Our precedent puts us squarely in the second camp. See
    Lawrence v. Dunbar, 
    919 F.2d 1525
    , 1530–31 (11th Cir. 1990) (per curiam).
    There is great underlying tension motivating these divergent approaches. On
    the one hand, the core principles of a limited federal judiciary and respect for
    sovereign entities’ immunity from unconsented-to suits clearly cut against
    proceeding when jurisdiction remains uncertain. On the other hand, the additional
    procedural safeguards offered by Rule 56 not present in Rule 12(b)(1)—most
    21
    Case: 14-11444     Date Filed: 02/29/2016    Page: 22 of 24
    notably, that the court is to view all facts and make all reasonable inferences “in
    the light most favorable to the nonmoving party,” Hill v. Cundiff, 
    797 F.3d 948
    ,
    967 (11th Cir. 2015)—work to ensure that potentially meritorious but factually
    contested claims are not prematurely dismissed. How to strike the proper balance
    between these competing interests, as evidenced by the split in authority, is a
    difficult question indeed. Until the United States Supreme Court or the Eleventh
    Circuit sitting en banc rules otherwise, we are bound by our precedent. We must
    therefore remand for additional fact-finding on the many intertwined
    jurisdictional–merits questions raised by the record. The District Court should
    then assess its jurisdiction under the Rule 56 summary-judgment standard.
    In this case and others like it, however, the fact-finding on remand should be
    carefully limited to avoid aggravating the Article III and sovereign-immunity
    problems discussed above. The outcome of this appeal is driven by its posture.
    The United States did not raise its motion to dismiss under Rule 12(b)(1), though it
    did request the District Court, in the alternative, to convert its motion to dismiss
    into one for summary judgment. The record demonstrates that the District Court
    addressed Douglas’s pay-grade claim under the Rule 12(b)(6) motion-to-dismiss
    standard as a facial matter; the District Court refused to consider any evidence
    extrinsic to the pleadings, including the exhibits the United States attached to its
    motion. Had the United States also moved to dismiss for lack of subject-matter
    22
    Case: 14-11444        Date Filed: 02/29/2016       Page: 23 of 24
    jurisdiction under Rule 12(b)(1) or had the District Court considered the evidence
    presented to it and made jurisdictional fact-findings on summary judgment under
    Rule 56, the result may well have been different.
    Going forward, the District Court should make sufficient findings to resolve
    the jurisdictional–merits questions identified by the court’s opinion. 3 These
    findings may, but need not necessarily, extend beyond the exhibits the United
    States attached to its motion to dismiss. The District Court should then decide
    whether it has subject-matter jurisdiction over Douglas’s suit in line with our
    decision in 
    Lawrence, 919 F.2d at 1530
    –31. Though other cases may prove
    trickier to resolve and thus require relatively extensive discovery and jurisdictional
    3
    Among the other jurisdictional–merits determinations the District Court must make, I
    highlight Douglas’s burden to show that “the United States, if a private person, would be liable
    to the claimant in accordance with the law of the place where the act or omission occurred.” 28
    U.S.C. § 1346(b)(1). The substance of Douglas’s claim is complicated by the “uniquely
    governmental functions” performed by the Federal Bureau of Prisons. See Zelaya v. United
    States, 
    781 F.3d 1315
    , 1323–25 (11th Cir. 2015), cert. denied, 
    136 S. Ct. 168
    (2015). Though
    Douglas is not precluded from showing a state tort analog solely for this reason, he must
    nonetheless identify “a valid state tort cause of action” because the tort-analog requirement “is a
    sine qua non of FTCA jurisdiction.” 
    Id. at 1324.
            The exact content of the tort analog under Florida law advanced by Douglas remains
    unclear. The main thrust of Douglas’s argument—that Lt. Baker improperly denied him money
    the Bureau of Prisons had previously agreed to pay—sounds largely in interference with contract
    and conversion. But 28 U.S.C. § 2680(h) excepts claims for “misrepresentation, deceit, or
    interference with contract rights” from the United States’ waiver of sovereign immunity under
    the FTCA. And Florida’s doctrine of conversion requires that a plaintiff have a possessory
    interest to the allegedly converted property, Page v. Matthews, 
    386 So. 2d 815
    , 816 (Fla. Dist. Ct.
    App. 1980); see also Balcor Prop. Mgmt., Inc. v. Ahronovitz, 
    634 So. 2d 277
    , 279 (Fla. Dist. Ct.
    App. 1994) (requiring the same for civil theft), which Douglas cannot show because he never
    received the additional money he asserts he was owed.
    Assuming that, with the benefit of limited fact-finding, Douglas may be able to show that
    his claim is not barred by the FTCA’s discretionary-function exception, he must still identify a
    valid tort analog under Florida law to establish federal subject-matter jurisdiction.
    23
    Case: 14-11444     Date Filed: 02/29/2016   Page: 24 of 24
    fact-finding, this does not appear to be so here, given the straightforward nature of
    Douglas’s pay-grade claim.
    With that said, I concur fully in the court’s opinion.
    24
    

Document Info

Docket Number: 14-11444

Filed Date: 2/29/2016

Precedential Status: Precedential

Modified Date: 3/1/2016

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Torres-Negron v. J & N RECORDS, LLC , 504 F.3d 151 ( 2007 )

franklin-savings-corporation-franklin-savings-association-v-united-states , 180 F.3d 1124 ( 1999 )

Ochran v. United States , 117 F.3d 495 ( 1997 )

Cohen v. United States , 151 F.3d 1338 ( 1998 )

Carmichael v. Kellogg, Brown & Root Services, Inc. , 572 F.3d 1271 ( 2009 )

In Re CP Ships Ltd. Securities Litigation , 578 F.3d 1306 ( 2009 )

Nell D. Autery, as Administratrix of the Estate of Roy ... , 992 F.2d 1523 ( 1993 )

jbp-acquisitions-lp-v-united-states-of-america-ex-rel-the-federal , 224 F.3d 1260 ( 2000 )

Elizabeth M. Hamm v. United States, Docket No. 06-3964-Cv , 483 F.3d 135 ( 2007 )

Stalley Ex Rel. United States v. Orlando Regional ... , 524 F.3d 1229 ( 2008 )

Dolcie Lawrence v. Peter Dunbar, United States of America , 919 F.2d 1525 ( 1990 )

David L. Morrison v. Amway Corporation, N.K.A. Alticor, Inc.... , 323 F.3d 920 ( 2003 )

McElmurray v. CONSOLIDATED GOV'T, AUGUSTA-RICHMOND COUNTY , 501 F.3d 1244 ( 2007 )

Mesa v. United States , 123 F.3d 1435 ( 1997 )

Kerns v. United States , 585 F.3d 187 ( 2009 )

John D. Williamson, Plaintiffs-Appellants-Cross v. Gordon G.... , 645 F.2d 404 ( 1981 )

Bruce Crawford v. United States , 796 F.2d 924 ( 1986 )

S.R.P. Ex Rel. Abunabba v. United States , 676 F.3d 329 ( 2012 )

Cna v. United States , 535 F.3d 132 ( 2008 )

Montez v. Department of the Navy , 392 F.3d 147 ( 2004 )

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