United States District Court, D. Columbia
September 7, 2005.
JAMES E. GREENE, Plaintiff,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2607, Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PLAINTIFF'S MOTION FOR REMAND AND GRANTING THE
DEFENDANT'S MOTION TO DISMISS
This matter comes before the court on the plaintiff's motion
for remand and the defendant's motion to dismiss. The plaintiff
initiated this suit on January 26, 2005, in the Superior Court
for the District of Columbia ("Superior Court"). On February 25,
2005, the defendant removed the action to this court based on
federal question jurisdiction. Because the plaintiff's claims are
preempted by the Civil Service Reform Act (the "CSRA" or the
"Act"), the plaintiff is not entitled to judicial relief.
Accordingly, the court denies the plaintiff's motion for remand
and grants the defendant's motion to dismiss.
During the plaintiff's employment with the United States
Department of Education, Hung Nguyen ("Nguyen"), the plaintiff's
supervisee, filed a grievance against the plaintiff alleging
sexual harassment. Def.'s Mot. to Dismiss ("Def.'s Mot.") at 2;
see also Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 7. In the grievance
proceedings, Nguyen was represented by Adrienne Chute ("Chute"),
an employee of the defendant, American Federation of Government
Employees, AFL-CIO Local 2607 ("Local 2607" or the "Union").
Defs.' Mot. at 2-3; see also Compl. ¶ 2. The plaintiff alleges
that during the grievance proceedings, Nguyen and Chute committed
defamation and false light invasion of privacy by making at least
one false statement concerning the plaintiff's sexual behavior.
Compl. ¶¶ 3, 7.
The plaintiff filed the instant action against the Union in the
Superior Court on January 26, 2005. He also filed a separate
action there against Nguyen and Chute. Greene v. Nguyen,
D.D.C.C.A. No. 05-0407. The plaintiff bases the instant suit on
the theory of respondeat superior, contending that Chute was
acting as an agent of the Union when she allegedly made the
defamatory statements. Compl. ¶ 2. The Union removed the action
to this court on February 25, 2005. It premised the removal on
the contention that the CSRA governs the plaintiff's claims and,
therefore, the district court has federal question jurisdiction
over the action. Not. of Removal ¶¶ 7-8.
On June 10, 2005, the Union filed a motion to dismiss, arguing
that because the plaintiff's claims fall within the purview of
the CSRA, the Act preempts the tort claims of defamation and
false light invasion of privacy, rendering the plaintiff's claims
unentitled to judicial review, and thus stripping the court of
subject matter jurisdiction. The plaintiff is requesting that the
court remand this action to the Superior Court, contending that
the CSRA does not preempt his tort claims, and that removal based
on federal question jurisdiction is therefore improper. Pl.'s
Mot. to Remand ("Pl.'s Mot.") at 5. The court now addresses the plaintiff's motion for remand and the defendant's motion for
dismissal in turn.*fn1
A. The Plaintiff's Motion for Remand
1. Legal Standard for Remand
Federal courts are courts of limited jurisdiction and therefore
the law presumes that "a cause lies outside of [the court's]
limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 288-89 (1938). According to the
removal statute, a defendant may properly remove to federal court
an action brought in a state court when original subject matter
jurisdiction exists in the form of diversity. 28 U.S.C. § 1441(a)
(1996); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987). Diversity jurisdiction exists when the action involves
citizens of different states and the amount in controversy
exceeds $75,000.00 per plaintiff, exclusive of interest and
costs. 28 U.S.C. § 1332(a); Carden v. Arkoma Assocs.,
494 U.S. 185, 187 (1990).
Additionally, a defendant may properly remove to federal court
an action brought in a state court when the federal court enjoys
original subject matter jurisdiction, that is, a claim arising
under the Constitution, treaties, or laws of the United States.
28 U.S.C. § 1441(b); Hardin-Wright v. Dist. of Columbia Water &
Sewer Auth., 350 F. Supp. 2d 102, 104 (D.D.C. 2005) (citations
omitted). "If, however, state law creates the cause of action,
the court must determine whether the adjudication of those state law claims
requires resolution of a substantial question of federal law, ?
because the mere presence of a federal issue in a state cause of
action does not automatically confer federal-question
jurisdiction." Id. at 104-05 (internal quotation marks and
citations omitted) (citing Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804, 813 (1986); Franchise Tax. Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983)).
"[F]ederal courts have fashioned a two-pronged test in order to
determine if a state cause of action can provide the basis for
federal removal jurisdiction. The removing party must show (1)
that the plaintiff's right to relief necessarily depends on a
question of federal law, and (2) that the question of federal law
is substantial." Int'l Union of Bricklayers & Allied
Craftworkers v. Ins. Co. of the W., 2005 WL 713608, at *4
(D.D.C. 2005) (internal citations and quotation marks omitted);
see generally Merrell Dow, 478 U.S. 804.
Courts must strictly construe removal statutes. Williams v.
Howard Univ., 984 F. Supp. 27, 29 (D.D.C. 1997) (citing
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09
(1941)). The court must resolve any ambiguities concerning the
propriety of removal in favor of remand. Univ. of S. Ala.,
168 F.3d at 411; Nwachukwu v. Karl, 223 F. Supp. 2d 60, 66 (D.D.C.
2002). When the plaintiff makes a motion to remand, the defendant
bears the burden of proving federal jurisdiction. Kokkonen,
511 U.S. at 377; Wilson v. Republic Iron & Steel Co., 257 U.S. 92,
97 (1921); Nat'l Org. for Women v. Mut. of Omaha Ins. Co.,
612 F. Supp. 100, 101 (D.D.C. 1985).
If a defect in removal procedures or lack of subject matter
jurisdiction becomes apparent at any point prior to final
judgment, the removal court must remand the case to the state
court from which the defendants originally removed the case.
28 U.S.C. § 1447(c). In the event that the federal court lacks
subject matter jurisdiction, remand is mandatory. Republic of
Venez. v. Philip Morris, Inc., 287 F.3d 192, 196 (D.C. Cir. 2002);
Johnson-Brown v. 2200 M St. LLC, 257 F. Supp. 2d 175, 177-78
2. CSRA Preempts the Plaintiff's State law Claims
The plaintiff contends that the CSRA does not preempt his state
tort claims of defamation and false light invasion of privacy and
therefore removal to this court was improper. Pl.'s Mot. at 5.
The court disagrees. Congress enacted the CSRA in 1978 to
supplant the increasingly inefficient civil service system with
an "integrated scheme of administrative and judicial review,
designed to balance the legitimate interests of the various
categories of federal employees with the needs of sound and
efficient administration." United States v. Fausto,
484 U.S. 439, 445 (1988) (citation omitted); see also Hisler v. Gallaudet
Univ., 344 F. Supp. 2d 29, 36 (D.D.C. 2004). The CSRA provides
for an administrative process to avoid litigation to resolve
employment-related complaints. Carducci v. Regan, 714 F.2d 171,
174 (D.C. Cir. 1983) (stating that prohibited personnel practices
have been "eliminate[d] . . . from direct judicial review").
Judicial review of a complaint for an alleged unlawful personnel
action is allowed only for specified types of complaints, only in
the Federal Circuit, and only after a claimant exhausts the
administrative remedies established in the Act. Ward v.
Kennard, 133 F. Supp. 2d 54, 60 (D.D.C. 2000); see also
Carducci, 714 F.2d at 175 (outlining the CSRA's administrative
scheme for the resolution of complaints related to personnel
actions);*fn2 5 U.S.C. §§ 1214, 7703.
The CSRA preempts a state tort claim if the claim falls within
the purview of the Act. Saul v. United States, 928 F.2d 829,
840-43 (9th Cir. 1991) (concluding that the CSRA preempts state
law claims); Hall v. Clinton, 143 F. Supp. 2d 1 at *5 (D.D.C.
2001) (citations omitted); see also Carducci, 714 F.2d at 174.
Moreover, the CSRA provides the exclusive remedy even if the Act
prescribes no remedy for that claim. Hill, 143 F. Supp. 2d at
*5 (citations omitted); see also Spagnola v. Mathis,
859 F.2d 223, 229 (D.C. Cir. 1988) (holding that the CSRA preempted the
plaintiff's constitutional claim even though the CSRA provided
him with no remedy). In Carducci v. Regan, for example, the
plaintiff sought judicial review after he was reassigned due to
poor performance. 714 F.2d at 172. Because the defendant's
alleged conduct was considered a nonmajor personnel action (as
opposed to an "adverse action") under the CSRA, the plaintiff was
not entitled to be heard by the Office of Special Counsel ("OSC")
regarding his complaint. Id. at 173. The Carducci court found
that the Act preempted the plaintiff's claims notwithstanding the
fact that the Act did not provide relief for his claims. The
court explained that, "failure to include some types of nonmajor
personnel action within the remedial scheme of so comprehensive a
piece of legislation reflects a congressional intent that no
judicial relief be available[.]" Id. at 174 (internal footnote and citation
omitted). The court justified Congress's failure to provide for
relief for nonmajor personnel actions, concluding that it would
be unjust to deny judicial relief to victims of adverse personnel
actions, but to grant such relief to victims of personnel actions
that were "less significant than adverse actions . . . [or] so
insignificant as not even to bear mention in the statute." Id.
at 175 (emphasis in original).
The principle articulated in Carducci applies to the instant
action. Because the plaintiff's allegations concern a grievance
that a coworker filed against him, as well as another federal
employee's conduct resulting from that grievance, the court
determines that his claims fall within the scope of the Act's
provisions regarding personnel actions. Because the CSRA preempts
the plaintiff's claims, removal from the Superior Court on the
basis of federal question jurisdiction was proper. Accordingly,
the court denies the plaintiff's motion for remand.
B. The Defendant's Motion to Dismiss
1. Legal Standard for a Motion to Dismiss Pursuant to Rule
Federal courts are courts of limited jurisdiction and the law
presumes that "a cause lies outside this limited jurisdiction."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994); St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283
, 288-89 (1938); see also Gen. Motors Corp. v. Envtl. Prot.
Agency, 363 F.3d 442
, 448 (D.C. Cir. 2004) (noting that "[a]s a
court of limited jurisdiction, we begin, and end, with an
examination of our jurisdiction").
Because "subject-matter jurisdiction is an `Art. III as well as
a statutory requirement[,] no action of the parties can confer
subject-matter jurisdiction upon a federal court.'" Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003)
(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de
Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the
plaintiff bears the burden of establishing that the court has
subject-matter jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). The court may dismiss a complaint for
lack of subject-matter jurisdiction only if "`it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.'" Empagran S.A. v.
F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Because subject-matter jurisdiction focuses on the court's
power to hear the claim, however, the court must give the
plaintiff's factual allegations closer scrutiny when resolving a
Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)
motion for failure to state a claim. Macharia v. United States,
334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C.
2001). Moreover, the court is not limited to the allegations
contained in the complaint. Hohri v. United States,
782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Instead, to determine whether it has jurisdiction over
the claim, the court may consider materials outside the
pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992).
2. The Court Grants the Defendant's Motion to Dismiss
For the reasons discussed in III(A)(2) supra, the court
concludes that the CSRA preempts the plaintiff's claims of
defamation and false light invasion of privacy. The court
reiterates that under the CSRA, only claims involving major
personnel actions, or minor actions involving prohibited
personnel practices, are entitled to any judicial review.
Carducci, 714 F.2d at 175. Furthermore, in those cases subject
to judicial review, such review is proper only after a
determination by the OSC and an appeal to the Merit Systems
Protection Board. 5 U.S.C. § 1214.
The plaintiff's complaint does not implicate a major personnel
action, otherwise referred to as an adverse action, as defined in
5 U.S.C. § 7512. See n. 2 supra (stating that an adverse
action is defined as a removal, suspension, reduction in grade or
pay, or furlough). What's more, the plaintiff, himself, argues
that his complaint does not implicate a prohibited personnel
practice. It is by no leap of logic that the court concludes that
the plaintiff's claims for defamation and false light invasion of
privacy are minor actions that are not afforded judicial review.
Stated differently, even if the plaintiff had attempted to
exhaust his administrative remedies prior to bringing suit, he
would not be entitled to judicial review because he alleges
neither a major personnel action nor a prohibited personnel
practice. Carducci, 714 F.2d at 175.
The court's determination that, although the CSRA preempts the
plaintiff's claims, the Act affords the plaintiff no judicial
remedy and therefore dismissal for lack of subject matter
jurisdiction is proper, fits squarely with the Carducci court's
analysis of the CSRA's "exhaustive remedial scheme[.]" Id. at
174. This court declines to allow the plaintiff original judicial
review of his claims when parties claiming any of the prohibited
personnel practices articulated in 5 U.S.C. § 2302(b) are denied
such review. To do so would give the plaintiff "an access to the
courts more immediate and direct than the statute provides" to
parties claiming prohibited personnel practices. Id. at 174.
This result would frustrate the CSRA's aim of standardizing the
scheme of relief for employment-related complaints by federal
employees. Karahalios v. Nat'l Fed'n of Fed. Employees,
489 U.S. 527, 536 (1989) (concluding that the CSRA's congressional
scheme precludes the plaintiff from seeking judicial rather than
administrative remedies for his claim); see also Hall v.
Clinton, 143 F. Supp. 2d 1, 5 (D.D.C. 2001) (determining that
"Congress intended for the CSRA to be a comprehensive remedy for federal
employees with individualized job grievances"). Accordingly, the
court grants the defendant's motion to dismiss for lack of
subject matter jurisdiction.
For all the foregoing reasons, the court denies the plaintiff's
motion for remand and grants the defendant's motion to dismiss.
An order consistent with this Memorandum Opinion is separately
and contemporaneously issued this 7th day of September 2005.
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