Roiger v. Veterans Affairs Health Care System

Background

Kenneth A. Roiger worked for the Department of Veterans Affairs Health Care System in Minneapolis from July 2002 until his employment was terminated in September 2008. He alleged that the termination was based on a purported positive alcohol test that he denied occurred. He also alleged that he had a disability, including alcoholism, and that VA employees took adverse actions against him after he contacted his union.

Roiger asserted three claims: (1) a wrongful-termination claim under the Federal Tort Claims Act, a law allowing certain claims for injuries caused by federal employees; (2) a Rehabilitation Act claim alleging termination because of his disability; and (3) a Rehabilitation Act retaliation claim based on complaints he made to his union.

Federal Tort Claims Act claim

The court held that presenting an administrative claim to the appropriate federal agency is a jurisdictional prerequisite to an Federal Tort Claims Act lawsuit. The claimant must provide written notice of the incident, enough information for the agency to investigate, and the amount of damages sought, generally within two years after the claim accrues.

Roiger’s complaint did not allege that he presented a claim to the VA. The defendants submitted evidence that no such claim appeared in the VA’s tort-claims database, and Roiger did not dispute that he had not presented one. The court rejected Roiger’s argument that his Freedom of Information Act requests or other contacts with the VA satisfied the Federal Tort Claims Act’s presentment requirement.

The court therefore ordered that Count I be dismissed without prejudice for lack of subject-matter jurisdiction. The court also rejected the defendants’ request for dismissal with prejudice, explaining that a court without subject-matter jurisdiction cannot enter a merits judgment. The court did not reach the defendants’ argument that the Civil Service Reform Act might provide the exclusive remedy for the alleged wrongful termination.

Rehabilitation Act claims

The court explained that exhaustion of administrative remedies for Rehabilitation Act claims is not jurisdictional in the Eighth Circuit. Instead, it operates like an affirmative defense similar to a statute of limitations, and the defendants bear the burden of proving it. Accordingly, the defendants’ exhaustion argument was not properly brought under Rule 12(b)(1), which concerns subject-matter jurisdiction.

For practical reasons, the court treated the defendants’ motion as one under Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim. The complaint itself did not establish that Roiger failed to exhaust administrative remedies because it did not discuss exhaustion, and Roiger did not have to plead exhaustion. The court therefore concluded that dismissal on that basis under Rule 12(b)(6) would be inappropriate based only on the complaint.

The defendants had submitted a declaration stating that a search of the VA’s system did not locate an administrative equal-employment claim by Roiger. Because that evidence was outside the pleadings, the court treated the motion as one for summary judgment under Rule 56 and recognized that Roiger needed a reasonable opportunity to submit pertinent evidence.

The court ordered Roiger to file any additional material relevant to the motion by March 1, 2019. It stated that it would decide the remainder of the defendants’ motion after that filing. The court deferred the defendants’ alternative argument that Count III failed to allege protected activity, as well as their argument concerning the proper defendant for the Rehabilitation Act claims.

Disposition

The court dismissed Count I without prejudice. It did not finally decide the defendants’ motion concerning Rehabilitation Act Counts II and III; instead, it converted that portion of the motion to a summary-judgment motion and allowed Roiger additional time to respond. Judge Eric C. Tostrud signed the memorandum opinion and order.