1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND DOUGLAS, Case No. 2:21-cv-02285-DAD-JDP (PS) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION

TO PROCEED IN FORMA PAUPERIS AND

13 v. DENYING WITHOUT PREJUDICE

PLAINTIFF’S MOTIONS TO REMAND AND

14 SACRAMENTO JOB CORPS CENTER, DEFENDANT’S MOTION TO DISMISS 15 Defendant. ECF Nos. 3, 4, 7, & 10 16 17 18 Plaintiff Raymond Douglas was enrolled in defendant Sacramento Job Corps Center’s 19 program and resided at the center for four months. He alleges that while he was living at the 20 center several non-party individuals subjected him to physical and sexual battery, professional 21 negligence, and numerous other tortious acts. ECF No. 1-1. After the center tried unsuccessfully 22 to alleviate plaintiff’s concerns by moving him to different rooms, plaintiff was expelled from the 23 center. Id. at 8-15. 24 In January 2017, plaintiff commenced this action in Sacramento County Superior Court. 25 ECF No. 7-2 at 4. In December 2021, more than six months after plaintiff filed a second 26 amended complaint, the United States removed the case to this court on behalf of defendant. ECF 27 No. 1. The United States now moves to dismiss, arguing that plaintiff’s claims can only proceed 28 under the Federal Tort Claims Act (“FTCA”) and that the United States is the only proper 1 defendant under the FTCA. It further argues that even if plaintiff is permitted to amend his 2 complaint to name the United States, the court lacks jurisdiction because plaintiff failed to 3 exhaust his administrative remedies. Plaintiff has filed two motions to remand, arguing that 4 removal was untimely and that the court lacks jurisdiction over his tort claims. The parties’ 5 motions are insufficiently briefed, making it difficult to assess their respective arguments. I 6 therefore deny the parties’ motions without prejudice to renewal.1 7 Motions to Remand 8 Plaintiff moves to remand this matter back to state court. ECF Nos. 7 & 10. He argues 9 that remand is proper because defendant is not a federal agency and because removal was 10 untimely. ECF No. 7 at 2 (citing 28 U.S.C. § 1446(b)). The United States responds that 28 11 U.S.C. § 2679 provides that the Attorney General shall “remove a case from state court at any 12 time before trial” upon certification that “the defendant [federal] employee was acting within the 13 scope of his office or employment.” Id. at §§ 2679(d)(1) & (2); see ECF No. 9 at 4. In plaintiff’s 14 second motion to remand, he appears to concede that § 2679(d) could provide a basis for removal, 15 but he argues that the Attorney General has failed to complete the requisite certification under 16 that provision. ECF No. 10 at 3-5. He also contends that because defendant is an independent 17 contractor under 28 U.S.C. § 2671(a) it is not a federal agency within the meaning of the removal 18 statute. Id. at 3. 19 When a federal employee is sued in state court, the Attorney General must review the case 20 to determine if the employee was acting within the scope of his or her employment when the 21 allegedly harmful conduct occurred. 28 U.S.C. § 2679(d)(1). If the Attorney General certifies 22 that the employee was acting within the scope of his or her employment, the United States can 23 remove the case to federal court at any time before trial. If the Attorney General certifies that the 24 employee acted within the scope of his or her employment, “the United States shall be substituted 25 as the party defendant . . . [and the action] shall be removed without bond at any time before trial 26

27 1 Plaintiff has filed an application to proceed in forma pauperis. ECF No. 4. Because defendant removed the case to this court, plaintiff is not required to pay a filing fee. His 28 application to proceed in forma pauperis is therefore denied as unnecessary. 1 by the Attorney General to the district court of the United States.” See 28 U.S.C. §§ 2679(d)(1)- 2 (2). Once the United States has been substituted as defendant, jurisdiction lies solely in federal 3 court. Staple v. United States, 740 F.2d 766, 769 (9th Cir. 1984) (“Once certification takes place, 4 the plaintiff can no longer proceed in state court; the situs of the lawsuit moves to federal court, 5 where the United States becomes the only proper defendant.”) (citing 28 U.S.C. § 2679(d)); see 6 also Osborn v. Haley, 549 U.S. 225, 231 (2007) (holding that “certification is conclusive for 7 purposes of removal, i.e., once certification and removal are effected, exclusive competence to 8 adjudicate the case resides in the federal court, and that court may not remand the suit to the state 9 court”). 10 The complaint contains no allegations that defendant is a federal agency, and the United 11 States has not shown that the Attorney General filed the required certification. If the United 12 States cannot make such a showing, removal under § 2679(d) is improper. However, because the 13 United States could potentially make such a showing, removal could ultimately be necessary 14 under the statute. See Staple, 740 F.2d at 769. Fuller briefing may provide greater clarity. At 15 this time, plaintiff’s motions are denied without prejudice. 16 Motion to Dismiss 17 The United States moves to dismiss, arguing that because defendant is a part of the U.S. 18 Department of Labor, sovereign immunity bars plaintiff’s claims unless they are brought against 19 the United States under the FTCA. ECF No. 3-1 at 1. Moreover, the United States argues that 20 even if plaintiff amended his complaint to sue the United States, this court lacks jurisdiction 21 because plaintiff has not exhausted his administrative remedies under the FTCA. Id. 22 Under Federal Rule of Civil Procedure 12(b)(1), a defendant can move to dismiss for lack 23 of subject matter jurisdiction. Attacks on jurisdiction under Rule 12(b)(1) can be either facial— 24 confining the inquiry to allegations in the complaint—or factual, permitting the court to look 25 beyond the complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Once the moving 26 party has converted the motion to dismiss into a factual motion by presenting affidavits or other 27 evidence properly brought before the court, the party opposing the motion must furnish affidavits 28 or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” 1 Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1040 n.2 2 (9th Cir. 2003) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). 3 The United States advances a factual attack on jurisdiction since there is no mention in the 4 complaint that defendant is a federal agency. See generally ECF No. 1 at 2-25. Therefore, the 5 court looks to any “affidavits or other evidence properly brought before the court” to determine if 6 the complaint should be dismissed for a lack of jurisdiction. See Savage, 343 F.3d at 1040. Here, 7 the United States offered a website link as its sole evidence of jurisdiction. See ECF No. 3-1 at 2 8 (citing https://www.dol.gov/general/topic/training/jobcorps). The link leads to a webpage that 9 states in its entirety: 10 Job Corps is a no-cost education and vocational training program administered by the U.S. Department of Labor that helps young 11 people ages 16-24 improve the quality of their lives by empowering them to get great jobs and become independent. 12 For information on Job Corps, including eligibility requirements 13 and location of the center nearest you, please visit JobCorps.gov or call 1-800-733-JOBS (5627). 14 Related Webpages 15 Job Corps Center Locations - There are 131 Job Corps centers 16 located throughout the United States, each offering educational training and a variety of vocational training programs. Visit this 17 page to learn more about centers located near you and what they have to offer. 18 Job Corps Program Information - Find key Job Corps program 19 information, including contact information. 20 This webpage, which makes no mention of defendant Sacramento Job Corps Center, is 21 insufficient to establish that defendant is an agency within the United States government. 22 Because the United States failed to supply “affidavits or other evidence” demonstrating that 23 defendant is a United States agency, the court cannot properly assess jurisdiction.2 24 2 The United States could have provided a declaration attesting that defendant is a U.S. 25 agency or a citation to a statute or other authority noting such a designation. The United States has provided a declaration from Sarah Naji, an attorney for Claims and 26 Compensation at the Department of Labor, attesting that the Department has no record of plaintiff 27 filing a “‘Claim for Damage, Injury, or Death’ or any other written notification of a claim for money damages in a sum certain.” ECF No. 3-2 at 1. The declaration, however, does not 28 establish that defendant is a part of the United States government. Id. While this declaration 1 Accordingly, it is hereby ORDERED that: 2 1. Plaintiff's motion to proceed in forma pauperis, ECF No. 4, is denied as unnecessary. 3 2. Defendant’s motion to dismiss, ECF No. 3, is denied without prejudice. 4 3. Plaintiff's motions for remand, ECF Nos. 7 & 10, are denied without prejudice. 5 4. Defendant shall file a renewed motion to dismiss on or before October 28th, 2022. 6 a. Plaintiff shall file his responsive brief as well as any cross motions by no later 7 | than November 11, 2022. 8 b. Defendant may submit a reply brief, and shall file a response to any cross 9 | motions, on or before November 18, 2022. 10 5. Plaintiff shall file a renewed motion to remand on or before October 28th, 2022. 11 a. Defendant shall file his responsive brief as well as any cross motions by no later 12 || than November 11, 2022. 13 b. Plaintiff may submit a reply brief, and shall file a response to any cross 14 | motions, on or before November 18, 2022. 15 6. Absent a court order, no hearing will be held on these motions. 16 7 IT IS SO ORDERED. 18 ( q oy — Dated: _ September 29, 2022 19 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

21 22 23 24 25 26 27 {|_| might be probative of plaintiff's ability to bring an FTCA claim, it is insufficient to establish 28 | jurisdiction.