Tompkins v. Barker et al

Filing 71

ORDER (1) ADOPTING 63 REPORT AND RECOMMENDATION of the Mag Judge; (2) plaintiff's 69 Objection is OVERRULED; and (3) ADOE's 50 Motion to Remand is GRANTED and the 47 administrative matter removed to this Court is REMANDED back to th e administrative law judge presiding over the matter; directing the Clerk to take appropriate steps to effectuate this remand; further ORDERING that this case is REFERRED back to the Mag Judge for further proceedings. Signed by Honorable Judge Mark E. Fuller on 11/21/11. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JESSIE TOMPKINS,
Plaintiff,
v.
JIMMY BARKER, et al.,
Defendants.

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CASE NO. 2:10-CV-1015-MEF

ORDER
On September 9, 2011, the Magistrate Judge filed a Recommendation (Doc. # 63) that
this Court grant the Alabama Department of Education’s (“ADOE”) Motion to Remand
(Doc. # 50) the administrative matter removed to this Court by Plaintiff (Doc. # 47) to the
state administrative law judge presiding over this matter. Plaintiff has filed a timely
Objection to the Recommendation. (Doc. # 69.) The court reviews de novo the portion of
the Recommendation to which the Objection applies. 28 U.S.C. § 636(b)(1). For the reasons
that follow, the Objection is due to be overruled and the Recommendation adopted.
Plaintiff’s Notice of Removal states that the Montgomery County Board of Education
(“MCBOE”) is “attempting to revoke the Plaintiff[’s] professional certification under a law
designed to revoke the certification of sex offenders [who] are convicted of crimes against
children.” (Not. of Removal ¶ 5.) The Notice further states that a hearing is scheduled
before an administrative law judge, and that this Court has subject matter jurisdiction over
that administrative proceeding. (Not. of Removal ¶¶ 6, 7.) As the Magistrate Judge

succinctly stated, “this Court lacks jurisdiction over the pending administrative action.”
(Recommendation 2.) Issues regarding professional licenses and certifications are matters
of state law. See Am. Iron & Steel Inst. v. Occupational Safety & Health Admin., 182 F.3d
1261, 1275 (11th Cir. 1999). Plaintiff’s objection that this Court does have subject matter
jurisdiction because the administrative proceeding is allegedly retaliatory is confused.
Although Plaintiff may argue the retaliatory basis of the proceeding as part of a federal
employment discrimination claim, it does not entitle Plaintiff to remove the administrative
proceeding altogether.
Accordingly, it is ORDERED:
1.

The Magistrate Judge’s Recommendation (Doc. # 63) is ADOPTED;

2.

Plaintiff’s Objection (Doc. # 69) is OVERRULED; and

3.

ADOE’s Motion to Remand (Doc. # 50) is GRANTED and the administrative
matter removed to this Court (Doc. # 47) is REMANDED back to the
administrative law judge presiding over the matter. The Clerk of the Court is
DIRECTED to take appropriate steps to effectuate this remand.

It is further ORDERED that this case is REFERRED back to the Magistrate Judge for
further proceedings.
DONE this 21st day of November, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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