Dowell v Department of the Interior, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEBBIE L. DOWELL, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 3: 24-cv-00697
) 	District Judge Trauger
DEPARTMENT OF THE INTERIOR, 	) 	Magistrate Judge Frensley
SECRETARY OF THE INTERIOR, 	)
et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This pro se employment action is before the court on defendants’ motion to dismiss for
lack of subject matter jurisdiction and failure to state a claim. Docket No. 53. The motion is briefed
(Docket Nos. 56 and 57) and ready for disposition. Following review of the record and the briefs,
the undersigned concludes the motion should be GRANTED IN PART and DENIED IN PART.
I. 	BACKGROUND
Debbie Dowell, a civil engineer at the United States Department of Interior (“DOI”),
Bureau of Indian Affairs (“BIA”), filed this fee-paid, pro se action alleging she was discriminated
against based on her race and color, African American, and gender, pursuant to Title VII of the
Civil Rights Act of 1964, and state law.
Dowell alleges the following in her Third Amended Complaint (“TAC”). 	She has been
employed by the DOI/BIA since November 2014 and is currently employed as a Civil Engineer in
a nonpaid status at the Nashville, Tennessee, duty station. Docket Nos. 52, at p. 7, 56. At all
relevant 	times, 	Plaintiff’s 	first 	level 	supervisor 	was 	Bryan 	Bald 	Eagle, 	Program
Supervisor/Administrative Officer. 	Her second level supervisor was Kim Bouchard, Regional
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Director. In the case caption of her form complaint, Plaintiff lists as defendants the “Department
of the Interior; Doug Burgum, Secretary of the Interior; Brenda Red Wing, Bryan Bald Eagle, et
al.” Docket No. 52, at p. 1. In the body of her complaint, she additionally lists Kimberly Bouchard
and Eric Wilcox as defendants. Id. at pp. 2-3. 	She states, “Plaintiff originally named Secretary
Deb Haaland and by this amendment has now substituted Secretary Doug Burgum.” Id. at p. 3.
She lists the BIA - Eastern Region as her employer. Id. at p. 3. She checked the boxes for Title VII
and “relevant state law,” including intentional or negligent infliction of emotional distress and
negligent supervision” as the basis for this court’s jurisdiction. Id. at p. 3.
In the section titled “Exhaustion of Federal Administrative Remedies,” Plaintiff stated she
filed charges with the EEOC on “multiple dates” but did not specify those dates. Id. at p. 5. She
left blank the boxes indicating whether the EEOC had issued a Notice of Right to Sue letter. Id.
She checked the boxes indicating the following discriminatory conduct: failure to promote,
unequal terms and conditions of employment, retaliation, and hostile work environment. Id. at p.
4. 	Plaintiff attached a separate 33-page TAC to her form complaint. Id. at pp. 7-39. She seeks
injunctive and declaratory relief and damages. Id. at p. 6.
II. 	DISCUSSION
A. 	Proper Party Defendants
Defendants move to dismiss the individually named defendants as improper party
defendants. They argue the “complaint should be dismissed with prejudice as to improper party
defendants because Plaintiff has named them as improper parties.” Docket No. 54, at p. 1. They
contend the complaint is “fatally flawed,” warranting dismissal of Deb Haaland, Brenda Red
Wing, Kimberly Bouchard, Bryan Bald Eagle, Eric Wilcox and any other individuals listed in the
TAC as party defendants because the DOI is a federal agency, and that the only proper defendant
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in a federal employment discrimination case is the head of the agency. Id.
The proper defendant in a federal employee employment discrimination case is the head of
the appropriate department or agency, not the department or agency itself. See 42 U.S.C. § 2000e-
16(c). Courts in this Circuit have construed this language as meaning “the only proper defendant
in such actions are the heads of a ‘department, agency, or a unit’ within the meaning of § 2000e-
16.” Hancock v. Egger, 848 F.2d 87, 89 (6th Cir. 1988); see also Mulhall v. Ashcroft, 287 F.3d
543, 550 (6th Cir. 2002); Lantz v. United States Postal Serv., No. 2:05-CV-207, 2006 WL
2882347, at *5 (W.D. Mich. Oct. 5, 2006).
Doug Burgam is the current Secretary of the Interior. See https://www.doi.gov/secretary-
doug-burgum (last visited November 25, 2025). Deb Haaland, named as a defendant in Plaintiff’s
prior 	complaints, 	was 	Burgam’s 	predecessor 	from 	2021 	to 	January 	20, 	2025. 	See
https://www.britannica.com/biography/Deb-Haaland (last visited November 25, 2025). Plaintiff
stated she had “originally named Secretary Deb Haaland and by this amendment has now
substituted Secretary Doug Burgum.” Id. at 3. The court agrees. Doug Burgum is a proper party
defendant and individually named defendants Brenda Red Wing, Kimberly Brouchard, Bryan Bald
Eagle and Eric Wilcox should be dismissed. The Clerk’s office should substitute Doug Burgum
for Deb Haaland as the proper party defendant.
B. 	State Law Claims for Intentional or Negligent Infliction of Emotional Distress
(IIED or NIED) and Negligent Supervision
In addition to her Title VII claims, Plaintiff asserts state law claims for IIED, NIED, and
negligent supervision. Docket No. 52, at p. 3. Defendants argue her state law claims should be
dismissed for failure to exhaust administrative remedies under the Federal Tort Claims Act. Docket
No. 54, p. 3. In support, Defendants submitted the declaration of Bennett Tuchawena, Human
Resources Specialist at DOI, who attested that Plaintiff has submitted no administrative claim to
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the Department related to a “Tort Claims Act” violation. Docket No. 55, at p. 2.1
Plaintiff responded, opposing the motion and contending her state law claims are properly
before the court pursuant to its supplemental jurisdiction under 28 U.S.C. § 1367(a). Docket No.
56, p. 2. 	She asserts an EEO complaint was presented to and investigated by the DOI with no
resolution prior to filing suit. 	Id. at p. 6. 	She attached a Notice of Acceptance from the DOI
acknowledging receipt of an administrative claim alleging disparate treatment and harassment, as
well as reprisal for prior EEO activity. Id. at p. 6.
The DOI replied, reiterating its argument and asserting that despite Plaintiff’s assertion that
she exhausted administrative remedies pertaining to her tort claims, she has failed to provide
documentation to that effect. Docket No. 57, p. 1.
The undersigned agrees.
An action must be dismissed if the court does not possess subject matter jurisdiction over
the plaintiff’s claims. Fed. R. Civ. P. 12(b)(1). 	As the party invoking jurisdiction, the plaintiff
carries the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). A plaintiff’s burden of pleading and proving the existence of
subject matter jurisdiction is well established. DHSC, LLC v. California Nurses Ass'n/national
Nurses Org. Comm., AFL-CIO, 700 F. App'x 466, 470 (6th Cir. 2017). Federal courts are courts
of limited jurisdiction; their jurisdiction cannot be presumed but must be affirmatively and
positively pled. Kokkonen, 511 U.S. at 377. That power is authorized by Constitution and statute.
Id. The “United States, as sovereign, is immune from suit save as it consents to be sued . . . and
the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.”
1 The undersigned notes it did not use or rely this defendant’s submission for purposes of ruling
on this motion.
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United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). 	“It is axiomatic that
Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the
United States ....” Roberts v. United States, 498 F.2d 520, 525 (9th Cir. 1974).
Accordingly, the court cannot adjudicate Plaintiff’s claims against DOI without some
statutory basis. 	Kokkonen, 511 U.S. at 375. 	The FTCA allows individuals to sue the federal
government for torts committed by federal employees “acting within the scope of [their] office or
employment....” 28 U.S.C. §§ 1346(b)(1), 2672 (2018). 	The FTCA does not create a new cause
of action; rather, it permits the United States to be held liable in tort by providing a limited waiver
of sovereign immunity “for injury or loss caused by the negligent or wrongful act of a Government
employee acting within the scope of his or her employment.” Pornomo v. United States, 814 F.3d
681, 687 (4th Cir. 2016) (citation omitted). Instead, the Act serves two functions. First, it waives
the United States’ absolute immunity from suit. Premo v. United States, 599 F.3d 540, 544 (6th
Cir. 2010). Although the federal government is generally immune from lawsuits for monetary
damages, the FTCA waives the government's sovereign immunity (subject to various exceptions)
where federal employees commit torts while acting within the scope of their employment. Id.
Second, the FTCA grants district courts “exclusive jurisdiction” over tort actions concerning the
conduct of federal employees when they act in the scope of their employment. 28 U.S.C. §
1346(b)(1). Thus, the FTCA simply provides a vehicle through which individuals can bring state
tort actions against the United States.
The FTCA also provides the “exclusive” remedy for state torts committed by federal
officials acting within the scope of their employment. 28 U.S.C. § 2679(b)(1) (2018). In other
words, individuals who are injured by a federal employee, while that employee was acting within
the scope of his or her employment, may only bring a tort action against the United States pursuant
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to the FTCA—they may not instead sue a federal official or a federal agency. Simmons v.
Himmelreich, 578 U.S. 621, 628 (2016). Thus, an individual such as Dowell who wishes to bring
a state tort action based on the conduct of a federal employee, has two avenues for relief in federal
court. If the official acted within the scope of his or her employment, then the plaintiff must bring
an FTCA action against the United States. Levin v. United States, 568 U.S. 503, 507, 510 (2013).
Alternatively, if the official did not act within the scope of his or her employment, then the plaintiff
may sue the official directly, provided that the plaintiff can assert some other basis for federal
jurisdiction. 28 U.S.C. § 2679(b)(1); Cf. Matthews v. United States, 805 F. Supp. 712, 715 (E.D.
Wis. Oct. 8, 1992) (“[W]hen an action is brought against a federal employee pursuant to some
other grant of jurisdiction—say, diversity jurisdiction—it may be converted into an FTCA case
upon the Attorney General's certification. 	If the action begins as an FTCA case, no such
certification is necessary.”).
Dowell’s complaint here does not fall within the purview of the FTCA. In an FTCA action,
the United States is the only proper defendant. 28 U.S.C. §§ 1346(b)(1), 2679(a). Actions against
federal agencies or government employees, even in their official capacities, are not cognizable
under the FTCA. Briscoe v. United States, 268 F. Supp. 3d 1, 9 (D.D.C. July 25, 2017) (dismissing
claims against FBI, DOJ, and individual defendants in their official capacities). Compare Meyer,
510 U.S. at 476 (1994) (the proper defendant in an FTCA action is the United States, not a federal
agency), with Loeffler v. Frank, 486 U.S. 549, 562 n.8 (1988) (recognizing that an official capacity
suit against a federal official is a suit against the official's agency, rather than the United States).
However, rather than bringing suit against the United States, Dowell brought her claim against a
federal agency; thus, she cannot bring this action via the FTCA. Cf. Elliott v. Telerico, No. 15-
3156, 2015 WL 4130755, at *3 (N.D. Cal. July 8, 2015)(dismissing FTCA complaint where it
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contained no allegations indicating that plaintiff exhausted his administrative remedies and
improperly named VA physician, not United States, as party defendant).
Because Dowell invokes the court’s federal question jurisdiction with her Title VII claims,
the court could exercise supplemental jurisdiction over her state court claims for IIED or NIED
and negligent supervision. However, because the FTCA provides the exclusive recourse for torts
committed by employees acting within the scope of their employment, Dowell may only bring a
tort claim against the individual defendants based on the court's supplemental jurisdiction if they
acted outside the scope of their employment. See Simmons, 578 U.S. at 628; Matthews, 805 F.
Supp. at 715.
Dowell does not allege that any of the individual defendants acted outside the scope of
employment, though. 	Under Tennessee law, in general, acts committed within the course and
scope of employment are those acts committed by an employee while that employee is engaged in
the service of his employer or on the employer's business. Thurmon v. Sellers, 62 S.W.3d 145, 153
(Tenn. Ct. App. 2001). 	Dowell’s state law claims stem entirely from her alleged work
environment, conduct which, if attributable to the individual defendant supervisors, would have
been taken within the scope of their authority and in furtherance of the DOI’s interests. Cf. Harper
v. U.S. Dep't of the Interior, No. 21-00197, 2022 WL 425058, at *5 (D. Idaho Feb. 11, 2022)
(Plaintiff failed to sufficiently address why the individual defendants’ actions fell outside the scope
of their employment under Idaho law); Robutka v. D.O.J., No. 06-0716, 2007 WL 1975407, at *4
(S.D. Cal. Apr. 18, 2007)(dismissing pro se complaint where plaintiff failed to show that his claim
falls within the FTCA or to establish a viable alternate basis for jurisdiction.). Therefore, because
Dowell does not allege any facts which, if taken as true, would demonstrate that defendants acted
outside the scope of their employment, the Court lacks supplemental jurisdiction over her state
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court claims.
Further, the undersigned agrees with DOI that Plaintiff has failed to demonstrate that she
exhausted administrative remedies before bringing her claims in federal court. Claims for NIED
and IIED against a federal agency can only be pursued via the FTCA. Johnson v. DiMario, 14
F.Supp.2d 107, 111 (D.D.C.1998) (black female employee of United States Government Printing
Office (“GPO”) sued agency under Title VII; “the only possible jurisdictional basis for plaintiff's
IIED claim is the FTCA). In order to bring suit under the FTCA, a plaintiff must have exhausted
all available administrative remedies, which requires her to have “(1) presented a federal agency
with a claim describing, with particularity, the alleged injury and damages and (2) either received
a written denial of the claim from the agency or waited six months from the date of filing without
obtaining a final agency disposition.” Totten v. Norton, 421 F. Supp. 2d 115, 122 (D. D. C. 2006).
Failure to comply with the administrative requirements of the FTCA deprives the court of
jurisdiction to hear the case. Id. at 122.
Thus, although the FTCA provides relief for NIED and IIED, Plaintiff has failed to
demonstrate that she complied with the required administrative procedure before filing suit.
Plaintiff contends these are supplemental state court claims. She asserts her EEO complaint
brought claims of IIED as a condition of continued employment. Docket No. 56, at p. 11. Plaintiff's
allegations of exhaustion and Notice of Acceptance of her EEO discrimination complaint (Docket
No. 56, at pp. 11, 22.), are not sufficient to establish jurisdiction. Adams v. United States Capitol
Police Bd., 564 F. Supp. 2d 37, 40 (D. D. C. 2008). As Plaintiff has not supplied evidence that she
has complied with the applicable FTCA procedures, her failure to comply with the administrative
requirements of the FTCA bars the court from adjudicating her claims for IIED and NIED. See
Totten, 421 F. Supp. 2d at 123 (dismissing plaintiff's IIED claim because the “[p]laintiff, who bears
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the burden of establishing jurisdiction, has patently failed to demonstrate that he took the necessary
steps to exhaust his administrative remedies....”). 	Plaintiff’s IIED and NIED claims should be
dismissed for failure to exhaust.
To the extent Plaintiff brings a negligent supervision claim, this claim also should be
dismissed for lack of subject matter jurisdiction. Snyder v. United States, 590 Fed. Appx. 505, 509
(6th Cir. 2014) (district court lacked subject matter jurisdiction to hear plaintiff's negligent hiring,
failure to train, and negligent supervision and retention claims against the United States because
the employment decisions of a federal agency are a “discretionary function,” and therefore not
subject to the United States' waiver of sovereign immunity under the FTCA).
III. 	CONCLUSION
For the reasons set forth herein, Defendants’ motion to dismiss (Docket No. 53) should be
GRANTED IN PART and DENIED IN PART. Defendants Brenda Red Wing, Kimberly
Brouchard, Bryan Bald Eagle and Eric Wilcox should be dismissed from the action and Doug
Burgum should be substituted for Deb Haaland as the proper party defendant. Defendants’ motion
to dismiss Plaintiff’s’ state law claims for lack of subject matter jurisdiction should be
GRANTED.
JEFFERY S. FRENSLEY
United States Magistrate Judge
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