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Ziya v. United States

United States District Court, Ninth Circuit

November 12, 2013

MARLENE ZIYA, Plaintiff,
v.
UNITED STATES, Defendant.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

Plaintiff Marlene Ziya filed a second amended complaint [180] alleging employment discrimination claims and various torts against Global Linguistic Solution ("GLS"), Thomas/Wright Inc. ("Thomas/Wright"), and two U.S. Army officials. I dismissed [236] the claims against Thomas/Wright and GLS with prejudice. I also dismissed with prejudice [235] the claims against the Army officials and substituted the United States in their place. The United States now moves to dismiss [240] Ms. Ziya's claims. Ms. Ziya filed a response [243], and also a number of motions [244, 245, 248, 250, 251], seeking, among other things, to add the Secretary of the Army and restore the Army officials and GLS as defendants. I grant the United States's motion [240] with prejudice and deny each of Ms. Ziya's motions.

FACTUAL AND PROCEDURAL BACKGROUND

GLS and its subcontractor Thomas/Wright hired Ms. Ziya to work as a translator for the United States Army in the spring of 2009. (2d Am. Compl. [180] at 2.) On May 5, 2009, she arrived in Iraq. Id. at 3. On September 17, 2009, Command Sergeant Major ("SGM") Bernardo Serna expressed concerns with the quality of her work. Id. at 28-32. Two days later, SGM Serna and a GLS employee informed her that her employment was terminated. Id. at 37. She returned to the United States no more than a week afterward. See id. at 45 (Ms. Ziya stayed in a hotel in Georgia on September 26, 2009).

Ms. Ziya originally filed suit against GLS, Thomas/Wright, SGM Serna, Sergeant First Class ("SFC") Susan Letendre, and numerous others not relevant at present. Under 28 U.S.C. § 2679(d)(1), I dismissed with prejudice the claims against SGM Serna and SFC Letendre and substituted the United States. I dismissed without prejudice state-law tort claims and with prejudice discrimination, harassment, and retaliation claims against GLS and Thomas/Wright. I then dismissed Ms. Ziya's claims against the United States with prejudice under the foreign country exception to the Federal Tort Claims Act ("FTCA") and for failure to exhaust administrative remedies.

In her second amended complaint [180], Ms. Ziya brings claims of breach of contract and of the implied covenant of good faith and fair dealing against Thomas/Wright; "violating public policy" and fraud against Thomas/Wright, GLS, and SGM Serna; intentional and negligent infliction of emotional distress against Thomas/Wright, GLS, SGM Serna, and SFC Letendre; and tortious interference and civil conspiracy against GLS and SGM Serna. (2d Am. Compl. [180] at 65-69.) She also alleges claims of discrimination and harassment based on a variety of protected statuses against GLS, Thomas/Wright, SGM Serna, and SFC Letendre. Id. at 67-68.

On August 9, 2013, I dismissed [236] all claims against Thomas/Wright and GLS with prejudice. On the same day, I again dismissed [235] the claims against SGM Serna and SFC Letendre with prejudice and substituted the United States as defendant. The United States moved to dismiss [240] thirty days later. Ms. Ziya seeks to reinstate SGM Serna and SFC Letendre [243, 250] and GLS [251] as defendants. She also seeks leave to amend her complaint [243, 244] to add the Secretary of the Army as a defendant.

DISCUSSION

I. This Court Lacks Subject Matter Jurisdiction Over Ms. Ziya's Claims Against the United States Under the Foreign Country Exception to the Federal Tort Claims Act.

As a sovereign, the United States "is immune from suit save as it consents to be sued." United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). A sovereign may consent to suit by waiving its immunity unequivocally; waiver will not be implied. Id. In the absence of a clear waiver of immunity by Congress, then, district courts lack jurisdiction over suits against the United States. Id.

Through the FTCA, the United States waived its sovereign immunity to liability for torts committed by government employees within the scope of their employment. 28 U.S.C. § 1346(b)(1). This waiver is subject to a number of exceptions. 28 U.S.C. § 2680. In particular, the United States has not waived its immunity with regard to "[a]ny claim arising in a foreign country." § 2680(k).

If the Attorney General certifies that a government employee defendant was acting within the scope of his employment when the alleged tort occurred, the United States is substituted for the employee as defendant. 28 U.S.C. § 2679(d)(1). If certification is granted, "the government employee is dismissed from the suit, and is immune from other civil actions arising from the alleged tort." Kashin v. Kent, 457 F.3d 1033, 1036-37 (citing 28 U.S.C. § 2679(b)(1)).

Here, the Department of Justice certified that SGM Serna and SFC Letendre were acting within the scope of their employment when they allegedly engaged in the conduct underlying Ms. Ziya's claims. (Order of Subst. [88] at 1.) Accordingly, I substituted the United States for SGM Serna and SFC Letendre and dismissed the claims against the two officials with prejudice. Id. at 1-2. I construed Ms. Ziya's subsequent attempt to reinstate SGM Serna and SFC Letendre as defendants as a request for review of the Department of Justice's certification. (Op. & Order [152] at 3.) On August 9, 2013, I found that Ms. Ziya "failed to meet her burden to disprove the scope-of-employment certification by a preponderance of the evidence." (Order [235].) I found also that certification was otherwise proper. Id. Accordingly, I dismissed the claims against SGM Serna and SFC Letendre in Ms. Ziya's second amended complaint with prejudice and substituted the United States as the proper defendant. Id.

Because Ms. Ziya's claims against the United States arise from conduct in Iraq, a foreign country, the FTCA does not apply and the United States is immune. This Court therefore lacks jurisdiction to hear Ms. ...


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