DiGiovanni v. Transportation Security Administration et al
ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Timothy M. Burgess on 1/27/14. (RMC, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Case No. 1:13- cv-00005-TMB
ADMINISTRATION and DEPARTMENT OF
The Transportation and Security Administration (“TSA”) and Department of Homeland
Security (“DHS”) (together “Defendants”) move to dismiss this action based on a lack of subject
matter jurisdiction. 1 Plaintiff Thomas DiGiovanni (“Plaintiff”) opposes the motion. 2 The
parties have not requested oral argument and the Court finds this matter suitable for disposition
without oral argument. 3 For the following reasons, the Defendants’ Motion to Dismiss is
Plaintiff brought this action in the Superior Court for the State of Alaska alleging that
Defendants breached the implied covenant of good faith and fair dealing in his employment
See Fed. R. Civ. P. 58(b); D.Ak. L.R. 7.2(a)(3).
contract. 4 Plaintiff claims he was terminated “based on the personal agenda of [his] direct
supervisor.” 5 He claims damages exceeding $100,000. 6
Plaintiff began working for Defendants as a TSA Transportation Security Manager in
September 2002. 7 Plaintiff alleges that he “received glowing performance reviews for his work
as a Transportation Security Manager” from December 2002 until October 2009, when “Terry
Shipley [‘Shipley’] became the Assistant Federal Security Director for Screening in Southeast
Alaska” and his direct supervisor. 8
In August 2010, Shipley and all Transportation Security
Managers met to discuss Shipley’s management style. 9 Plaintiff alleges that because he voiced
concerns about Shipley at the meeting, he was overlooked for various employment
In September 2012, Plaintiff was assigned to be the Drug Program Liaison (“DPL”) at the
Juneau TSA station. 11 At some point after his assignment, Shipley requested a meeting with
Plaintiff where he was reprimanded for not following DPL policies and procedures. 12 In
December 2012, Plaintiff contacted TSA Ombusdman Jackie Hoffman complaining of his
Dkt. 7-1 ¶¶ 31-38.
Id. ¶ 36.
Id. ¶ 4.
Id. ¶ 6.
Id. ¶ ¶ 7-8.
Id. ¶¶ 15-16.
Id. ¶¶ 18-19. Plaintiff alleges that he was overlooked for a lateral employment opportunity in
December 2010 and was also overlooked to act as the Acting Assitant Federal Security Deputy
for Screening in Southeast Alaska.
Id. ¶ 27.
Id. ¶ 28.
treatment by Shipley since October 2009 and asking for advice, assistance, and guidance over
how to proceed. 13 Plaintiff also contacted the TSA Office of Inspection on January 7, 2013
regarding the same issues. 14 The TSA Office of Inspection contacted Plaintiff on January 18,
2013 notifying him that his complaint was being forwarded to the Management Inquiries Unit for
On April 5, 2013, TSA removed Plaintiff and terminated his employment for failure to
follow Standard Operating Procedures, failure to follow procedures, failure to follow
instructions, lack of candor, and for failure to exercise supervisor duties. 16 On April 24, 2013,
Plaintiff’s counsel emailed TSA’s counsel a Settlement Demand Letter for his alleged wrongful
termination. 17 On May 15, 2013, TSA’s counsel notified Plaintiff’s counsel that “TSA cannot
accept your offer of settlement.” On May 22, 2013, Plaintiff filed this lawsuit in Superior Court
for the State of Alaska First Judicial District at Juneau. 18 Defendants removed to this Court on
June 13, 2013. 19 Defendants now move to dismiss this action for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). 20
Dkt. 10-1 at 7-8.
Id. at 1-2.
Dkt. 8 at 1.
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute . . .” 21 “A party invoking the federal court's jurisdiction
has the burden of proving the actual existence of subject matter jurisdiction.” 22 On a Rule
12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court is not “restricted to
the face of the pleadings, but may review any evidence, such as affidavits and testimony, to
resolve factual disputes concerning the existence of jurisdiction.” 23 “Once the moving party
[converts] the motion to dismiss into a factual motion by presenting affidavits or other evidence
properly brought before the court, the party opposing the motion must furnish affidavits or other
evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” 24
Defendants argue for dismissal because Plaintiff’s “exclusive remedy for challenging his
removal is limited to the remedies provided by the Civil Service Reform Act (CSRA),” which
establishes the Merit Systems Protection Board (MSPB) as the entity to which Plaintiff must
appeal his removal. 25 Plaintiff responds that “Defendants have waived their right to object to
Plaintiff’s failure to appeal the Notice of Decision with the MSPB” and that they should be
stopped from raising a defense of failure to exhaust administrative remedies. 26 Plaintiff also
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996).
McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988).
Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).
Dkt. 8 at 4-5.
Dkt. 10 at 3-7.
argues that the case should not be dimisssed, but should instead be transferred to the U.S. Court
of Federal Claims. 27
Plaintiff’s Failure to Appeal to the MSPB
The CSRA provides the exclusive remedies by which Plaintiff may challenge his
removal. 28 “[F]ederal courts have no power to review federal personnel decisions and
procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere.” 29
The CSRA allows an employee who is removed from their position to appeal to the MSPB. 30
Plaintiff does not claim to be seeking a remedy under any other manner expressly authorized by
Congress, therefore the appeal to the MSPB is the only procedure by which Plaintiff may contest
his removal. Plaintiff concedes that he did not appeal his removal to the MSPB, even though he
was given notice in his removal letter that he must do so within 30 days of his removal and was
provided a copy of the appeal form. 31
However, Plaintiff argues that Defendants have waived their right to object to his failure
to appeal to the MSPB and that they should be estopped from asserting such a defense. 32
Plaintiff claims that because he sought TSA review of his allegations against Shipley,
Dkt. 10 at 7.
5 U.S.C. § 7501.
Veit v. Heckler, 746 F.2d 508, 511 (1984); See also Blue v. Widnall, 152 F.3d 1149, 1150-51
(1998) (“As the CSRA does not authorize judicial review of Blue’s alleged violations of the
VPA, even if those violations deprived Blue of property and procedural rights . . . we lack
jurisdiction to review these claims.”); see also Blue v. Widnall, 162 F.3d 541 (1998) (holding
that Plaintiff forfeited any remedies available under the CSRA by failing to present his
allegations to the MSPB).
5 U.S.C. § 7513(d).
Dkts. 10 at 4, 11-1 at 8-10.
Dkt. 10 at 4 -6.
“Defendant’s [sic] had every opportunity to initiate administrative procedures relative to
Plaintiff’s alleged acts of wrongdoing but failed to do so.” 33 Plaintiff argues that because
Defendants did not investigate his claims against Shipley, they should now be subject to review
by this Court. 34 Plaintiff further contends that after he was removed, he submitted wrongful
termination claims to TSA’s legal counsel but they employed “delaying tactics” by failing to
respond to him before the deadline to appeal to the MSPB. 35
Plaintiff offers no evidence that Defendants intentionally delayed responding to his
settlement offer. Plaintiff presents evidence that Defendant received his offer on April 24, 2013,
before his deadline to appeal with the MSPB, and that Defendant “took note of his deadline.” 36
Defendant rejected his offer on May 15, 2013. 37 However, Plaintiff’s own correspondence with
Defendant does not note the deadline or request that they respond to his offer by a certain time. 38
Therefore, Defendants’ comment that they “took note of his deadline” serves as much to put
Plaintiff on notice that he was still required to file an appeal with the MSPB as to prove that they
intentionally delayed responding to his settlement offer. Plaintiff also claims that Defendants
Dkt. 10 at 5.
Dkt. 10-3 at 1.
Dkt. 10-3 at 1-2. The email in which Plaintiff’s former counsel transmitted the settlement
offer only introduces himself as representing Plaintiff and notes the attachment of a settlement
offer. The Court has no evidence to suggest that Plaintiff requested a response by a certain date.
requested extensions of time to respond to his settlement offer, but offers no evidence to support
that claim. 39
Moreover, Plaintiff’s argument that his complaint against Shipley constitutes the
initiation of administrative action, which negates his need to appeal to the MSPB has little merit.
Although Plaintiff did complain to the TSA about Shipley prior to his removal, his complaint to
the TSA does not replace the settled procedure of appealing removals to the MSPB. Plaintiff’s
arguments that Defendants waived defenses or are estopped from asserting them are not properly
before this Court. The MSPB is the appropriate entity to which Plaintiff must appeal.
Accordingly, Plaintiff has not met his burden of proving that subject matter jurisdiction exists.
Transfer to the U.S. Court of Federal Claims
Plaintiff argues that this case should be transferred to the U.S. Court of Federal Claims. 40
Plaintiff argues that because he claims damages exceeding $100,000, the Court of Federal
Claims has exclusive jurisdiction under the Tucker Act. 41 It is true that the Tucker Act vests the
U.S. Court of Federal Claims with exclusive subject matter jurisdiction over contract claims
seeking damages in excess of $10,000. 42 However, Plaintiff is essentially requesting judicial
review of a personnel decision, despite his claim that “Defendant breached the [employment
contract’s] implied covenant of good faith and fair dealing.” 43 Federal courts may not review
federal personnel decisions in the first instance unless provided for by Congress.
Dkt. 10 at 6.
Id. at 7.
Id. at 7.
28 U.S.C. § 1491(a)(1); 28 U.S.C. § 1346(a)(2).
7-1 at 6-7.
Further, “Federal employees, both military and civilian, serve by appointment, not
contract . . .” 44 “[C]ourts have consistently refused to give effect to government-fostered
expectations that, had they arisen in the private sector, might well have formed the basis for a
contract or an estoppel.” 45 Here, Plaintiff served by appointment. 46 Thus, he may not claim to
have had a contract with the United States. Additionally, the U.S. Court of Federal Claims has
been clear that “waiver of the time limit for appealing [a personnel decision] is a matter
committed to the [MSPB’s] discretion and this court will not substitute its own judgment for that
of the MSPB.” 47 Therefore, the U.S. Court of Federal Claims will not decide whether Plaintiff’s
failure to file an appeal with the MSPB should be waived. Accordingly, the Court determines
that transfer to the U.S. Court of Federal Claims is not appropriate.
For the foregoing reasons, Defendant’s motion for dismissal based on a lack of subject
matter jurisdiction (at Dkt. 8) is GRANTED. Plaintiff’s complaint is dismissed with prejudice.
Dated at Anchorage, Alaska, this 27th day of January, 2014.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
U. S. DISTRICT JUDGE
Schism v. United States, 316 F.3d 1259, 1274-75 (Fed. Cir. 2002).
Adams v. United States, 391 F.3d 1212, 1221 (Fed. Cir. 2004). See also Mendoza v. Merit
Systems Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992).
Dkt. 8, Ex. 1, Ex.2.
Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986).
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