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GREENE v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

September 7, 2005.

JAMES E. GREENE, Plaintiff,
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2607, Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION FOR REMAND AND GRANTING THE DEFENDANT'S MOTION TO DISMISS
I. INTRODUCTION
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.

  II. BACKGROUND

  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

  III. ANALYSIS

  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 ...


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