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 ...