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Ivey v. National Treasury Employees Union

March 27, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


This matter is before the Court on defendant's motion to dismiss. On consideration of plaintiff's complaint, as amended, defendants' motion and plaintiff's opposition thereto, the Court will grant defendant's motion and will dismiss this action.


"Effective March 7, 2001, [plaintiff] was terminated from his GS-13 Data Transcriber position during his probationary period for failing to meet the required standards of performance in his position." Amd. Compl., Attach. 9 (Ivey v. Dep't of the Treasury, 94 M.S.P.R. 224 (2003)).*fn1 In this action, plaintiff has alleged that his termination came about in part due to the improper and unconstitutional acts of the National Treasury Employees Union ("NTEU") and three of its representatives.*fn2 See Compl. at 1-2; Amd. Compl. at 1.

Plaintiff brings this action under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, various federal criminal statutes, and under Title VII of the Civil Rights Act ("Title VII"), see 42 U.S.C. § 2000e et seq.*fn3 See Compl at 3; Amd. Compl. at 2. In addition, plaintiff alleges that defendants Lisa Porter and Angela Strong libeled and slandered him. Amd. Compl. at 1. He demands unspecified compensatory and punitive damages. Id. at 6.


A. Motion to Dismiss under Rule 12(b)(1)

1. Dismissal for Lack of Subject Matter Jurisdiction

It is plaintiff's burden to establish this Court's subject matter jurisdiction by a preponderance of the evidence. See, e.g., Doe v. Goss, No. 04-2122, 2007 WL 106523, at *3 (D.D.C. Jan. 12, 2007); District of Columbia Retirement Bd. v. United States, 657 F.Supp. 428, 431 (D.D.C. 1987). "Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (citing 5A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 2d, § 1350). In ruling on a Rule 12(b)(1) motion, the court is not limited to the allegations in the complaint, and may consider material outside of the pleadings to determine whether it has jurisdiction in the case. See, e.g., EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).

2. Breach of Duty of Fair Representation

With respect to the NTEU, plaintiff complains of a Union steward's "inappropriate presence and coercion" in effecting his termination, Compl. at 1, and accuses the steward of "encourag[ing] Plaintiff to sign a false statement by Robert Hall that would incriminate" him notwithstanding plaintiff's repeated refusal to sign the statement. Id. at 2 & Attach. 2. Further, plaintiff alleges that the steward "contributed to the Treasury's improper removal of the Plaintiff from employment by recommending 'remov[al of] this employee as soon as possible.'" Id. at 3. According to plaintiff, the NTEU "acted in a manner discriminatory of the Plaintiff without regard to the Plaintiff's Civil Rights and proper procedure," id., and "attempt[ed] to discredit the Plaintiff so as to benefit the Treasury [Department] in related investigations/Civil Actions and to project itself as being non-partisan in the Plaintiff's attempt to seek remedies from the Union." Id.

All of plaintiff's claims against the NTEU stem from its representation of him in connection with his termination. Defendant characterizes these alleged allegations as a claim for breach of the union's duty of fair representation over which the Fair Labor Relations Authority ("FLRA") has exclusive jurisdiction. See Memorandum of Points and Authorities in Support of Defendant National Treasury Employees Union's Motion to Dismiss the Plaintiff's Amended Complaint for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted ("Defs.' Mot.") at 4-8. The Court agrees.

The NTEU is a labor union which, evidently, "has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees" in the bargaining unit. 5 U.S.C. § 7114(a)(1). A claim that a union has acted arbitrarily or in bad faith amounts to a claim of a breach of the union's duty to represent bargaining unit members fairly. Under Title VII of the Civil Service Reform Act ("CSRA"), see 5 U.S.C. § 7101 et seq., "[a] breach of the duty of fair representation is an unfair labor practice" because "it is 'an unfair labor practice for a labor organization . . . to otherwise fail or refuse to comply with any provision of [Title VII of the CSRA].'" Karahalios v. Nat'l Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 532 (1989) (quoting 5 U.S.C. § 7116(b)(8)). Such a claim falls squarely under the jurisdiction of the FLRA. Id.; Abbott v. United States, 144 F.3d 1, 4 (1st Cir. 1998) (concluding that "remedy for any breach of [union's] duty of fair representation lies with the [FLRA]"). The Supreme Court instructs that there is "no private cause of action to enforce federal employees unions' duty of fair representation." Karahalios, 489 U.S. at 533. This Court, then, lacks subject matter jurisdiction over plaintiff's claims against the NTEU and its representatives. See id.; Buesgens v. Coates, 435 F. Supp. 2d 1, 3-4 (D.D.C. 2006), appeal docketed, No. 06-5314 (D.C. Cir. Oct. 13, 2006).

Plaintiff cannot rely on his purported constitutional claims, see Amd. Compl. at 4-5 (alleging violations of First and Fifth Amendment rights), in order to establish this Court's subject matter jurisdiction. In this case, plaintiff's constitutional claims arise from the same set of facts as his breach of fair representation claim, and he cannot circumvent the procedures set forth in the CSRA "even if [his] claim is based as well on the ...

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