Mallery v. Jewell

Filing 13

ORDER: The motion to dismiss (Doc. 7 ) is granted without leave to amend. The Clerk of the Court shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 6/10/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William H Mallery, IV,
Plaintiff,

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ORDER

v.

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No. CV-15-08305-PCT-DGC

Sally Jewell,

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Defendant.

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On December 21, 2015, Plaintiff William H. Mallery, IV, a Park Ranger with the

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National Park Service (“NPS”), initiated this action by filing a complaint alleging that the

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NPS violated his rights under the Family Medical Leave Act (“FMLA”).

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Defendant Sally Jewell, the Secretary of the Interior, moves to dismiss the action for want

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of subject matter jurisdiction, or, in the alternative, for failure to perfect service of

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process. Doc. 7. The motion has been fully briefed (Docs. 9, 11), and no party requests

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oral argument. The Court will grant the motion and dismiss without leave to amend.

Doc. 1.

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Mallery is a federal civil service employee with more than twelve months of

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service. See Doc. 1, ¶ 6 (alleging that Mallery began his employment with the NPS in

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June 2011). As such, his rights with respect to family and medical leave are governed by

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Title II of the FMLA. See Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018 (9th

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Cir. 1999); 5 U.S.C. § 6381(1)(a) (defining “employee” for purposes of Title II); § 6382

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(leave requirements for Title II employees).

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The Ninth Circuit has previously considered “whether federal employees covered

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by Title II of the [FMLA] may bring suit for violations of its provisions.” Russell, 191

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F.3d at 1018. The court noted that Title II of the FMLA – unlike Title I of the statute –

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did not provide a statutory right of action and did not otherwise waive the federal

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government’s sovereign immunity. Id. at 1019. The court determined that review was

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not available under the Administrative Procedure Act (“APA”), finding that the Civil

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Service Reform Act preempted the APA’s judicial review provision in this context. Id.

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The Court therefore concluded that the federal employee’s “claims under Title II of the

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[FMLA were] barred by sovereign immunity and preempted by the Civil Service Reform

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Act.” Id. at 1020.

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The Ninth Circuit reaffirmed this conclusion in Johnson v. Departments of Army

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& Air Force, upholding the dismissal of an FMLA claim brought by a federal employee

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with more than twelve months of service. 465 F. App’x 644, 645 (9th Cir. 2012) (“The

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district court properly dismissed Johnson’s claims under [the FMLA] because Johnson

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did not have a private right of action.”) (citing Russell, 191 F.3d at 1018-19). Other

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courts in this circuit have applied Russell to dismiss FMLA claims brought by federal

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civil service employees. See, e.g., Berg v. McHugh, No. 15-cv-02227-JSC, 2015 U.S.

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Dist. LEXIS 168418, at *25 (N.D. Cal. Dec. 16, 2015); Ibrahim v. Def. Language Inst.

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Foreign Language Ctr., No. 15-cv-00336-PSG, 2015 U.S. Dist. LEXIS 157320, at *6

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(N.D. Cal. Nov. 18, 2015). Thus, although federal employees like Mallery have rights

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under the FMLA, they cannot enforce these rights in federal court.1

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Mallery contends that the government has abdicated its duty under 5 U.S.C.

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§ 6387 to establish regulations implementing Title II. Doc. 9 at 1. He argues that this

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abdication leaves him without a remedy, and that the Court should supply one. Id. at 1-2.

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In fact, the government has established regulations implementing Title II. See 5 C.F.R.

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§§ 630.1201-630.1213. But even if it were otherwise, the Court would remain without

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Mallery argues that Russell was meant to be limited in temporal scope (Doc. 9 at
1), but nothing in the case supports that reading, and other courts have not found it to be
so limited.
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jurisdiction to hear individual cases under Title II of the FMLA because Congress has not

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conferred such jurisdiction.

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Mallery asks the Court to grant leave to amend. Doc. 9 at 2. He believes that he

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may be able to substitute his managers for Secretary Jewell under Graziadio v. Culinary

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Institute of America, 817 F.3d 415 (2d Cir. 2016). But it is well established that “[t]he

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bar of sovereign immunity cannot be avoided by naming officers and employees of the

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United States as defendants.” Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985)

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(citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)).

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Graziadio does not contradict this rule, as the defendant there was a private company, not

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a federal officer or employee. Because it is clear on the face of the complaint that

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Mallery is a federal civil service employee with more than twelve months of service, and

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it is clear as a matter of law that such an employee cannot sue to enforce his rights under

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Title II of the FMLA, the Court will dismiss the matter without leave to amend. See, e.g.,

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Ibrahim, 2015 U.S. Dist. LEXIS 157320, at *6 (“Ibrahim has no private right of action

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under the FMLA, and his FMLA claims are dismissed with prejudice.”); Taylor v.

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Donley, No. CIV S-08-0869 JAM DAD PS, 2010 U.S. Dist. LEXIS 21780, at *15 (E.D.

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Cal. Mar. 10, 2010) (“In the absence of a waiver of sovereign immunity for Title II

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employees, plaintiff’s FMLA claims are barred by sovereign immunity and should be

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dismissed [with prejudice].”).

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Mallery obviously believes that his rights have been violated and that it would be

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unfair for the Court to withhold a remedy. But as the Supreme Court has repeatedly

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explained, “Federal courts are courts of limited jurisdiction. They possess only that

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power authorized by Constitution and statute, which is not to be expanded by judicial

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decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal

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citations omitted). No provision of the Constitution and no statute authorizes the Court to

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enforce federal civil service employees’ right to family and medical leave. The Court

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must therefore dismiss this matter with prejudice.

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IT IS ORDERED that the motion to dismiss (Doc. 7) is granted without leave to

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amend. The Clerk of the Court shall enter judgment accordingly and terminate this case.
Dated this 10th day of June, 2016.

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