Coulter v James et al

Filing 21

ORDER signed by District Judge Stanley A Bastian on 6/22/17 ORDERING that Defendants' MOTION to DISMISS 18 is GRANTED, in part. On or before 7/5/2017, Plaintiff shall file additional briefing addressing the request for a stay and the Mangano d ecision. On or before 7/15/2017, Defendants shall file its responsive briefing. On or before 7/26/2017, Plaintiff shall file any reply. IT IS SO ORDERED. The Clerk of Court is directed to enter this Order and forward copies to counsel. (Mena-Sanchez, L)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 AT SACRAMENTO 9 10 CHRISTOPHER COULTER, 11 Plaintiff, 12 No. 2:16-cv-02076-SB v. 13 THE DEPARTMENT OF THE AIR ORDER GRANTING MOTION 14 FORCE, DEBORAH LEE JAMES, TO DISMISS, IN PART; 15 SECRETRARY OF THE DEPARTMENT ORDERING BRIEFING ON 16 OF THE AIR FORCE, UNITED STATES MOTION TO STAY 17 OF AMERICA, AND DOES 1-20, 18 Defendants. 19 20 Before the Court is Defendant’s Motion to Dismiss, ECF No. 18. The 21 motion was heard without oral argument. Plaintiff is represented by Waukeen Q. 22 McCoy; Defendants are represented by Gregory T. Broderick. 23 Plaintiff Christopher Coulter brought suit against his former employer, the 24 Department of the Air Force, alleging he was the target of retaliation and 25 harassment, and wrongful termination as a result of him reporting various safety 26 concerns. He is bringing five claims: (1) violation of the Whistleblower Protection 27 Act, 5 U.S.C. § 2301 et seq; (2) Violation of Due Process / Liberty Interest; (3) 28 Retaliation in violation of Cal. Lab. Code § 6310 (against the Department of the ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 1 1 Air Force); (4) Retaliation in violation of Cal. Lab. Code § 6310, 1102 (against the 2 Department of the Air Force); and (5) Intentional Infliction of Emotional Distress 3 under the Federal Tort Claims Act. 4 Defendants now move to dismiss these claims, asserting the Court does not 5 have jurisdiction to hear these claims because (1) the Whistle Blower Act does not 6 provide a private cause of action and Plaintiff failed to exhaust his administrative 7 remedies; (2) the United States may not be sued for constitutional claims; (3) the 8 United States did not waive its sovereign immunity with respect to California 9 employment statutes; and (4) Plaintiff has not complied with the administrative 10 claim requirements of the Federal Tort Claims Act. 11 In his response, Plaintiff indicates that he recently filed a claim with the 12 Merit Systems Protection Board and also filed an administrative tort claim. He 13 asks the Court to stay his first claim (Whistleblower), as well as his fifth claim 14 (Intentional Infliction of Emotional Distress). BACKGROUND FACTS 15 16 The following facts are taken from Plaintiff’s Complaint: 17 Plaintiff worked at Travis Air Force Base as a civilian Air Traffic 18 Controller. He was eventually promoted to Senior Airfield Operations Automation 19 Manager. In early 2013, there was a mishap at the Travis AFB where two Air 20 Force planes nearly collided in air. Plaintiff believed the mishap was caused by the 21 “Local Wind Resource Ares Windmills,” which had de-sensitized controllers from 22 effectively applying Primary Merging Target procedures. As a result, he began 23 compiling Automation Continuity of Operation information for self24 inspection/mitigation purposes. He reported the data he had collected, but his 25 supervisors took no action. 26 After he reported his safety concerns, he began experiencing allegedly 27 retaliatory behavior from his supervisors. He was the only civilian Air Traffic 28 Controller not to receive a year-end bonus or time-off reward for a three-year ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 2 1 period. Also, he was denied overtime pay, had false accusations made against him, 2 and his security clearance was placed under review. 3 Plaintiff filed multiple union grievances complaining about the retaliation 4 and harassment he was experiencing. The retaliation, harassment and hostile work 5 environment continued. Eventually he was placed on administrative leave and an 6 investigation regarding Plaintiff’s job performance was initiated. As a result, 7 Plaintiff began to experience symptoms of stress and dizziness and was diagnosed 8 with Neurocardiogenic Syncope. 9 Plaintiff was terminated from his position at Travis AFB in February, 2016. LEGAL STANDARDS 10 11 1. Rule 12(b)(1) 12 Pursuant to Fed. R. Civ. P. 12(b)(1), a district court must dismiss an action 13 if it lacks jurisdiction over the subject matter of the suit. A party seeking to invoke 14 federal jurisdiction bears the burden of establishing that jurisdiction exists “for 15 each claim he seeks to press’’ and for “each form of relief sought.” Oregon v. 16 Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting DaimlerChrysler 17 Corp. v. Duno, 547 U.S. 332, 352 (2006)). In deciding a 12(b)(1) motion, courts 18 assume the plaintiff’s factual allegations to be true and draw all reasonable 19 inferences in his favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). 20 2. Civil Service Reform Act (CSRA) - Merit Systems Protection 21 Board (MSPB) 22 The Civil Service Reform Act (“CSRA”) limits federal employees 23 challenging their supervisors’ “prohibited personnel practices” to an 24 administrative remedial system. If the conduct an employee challenges falls within 25 the scope of the CSRA’s “prohibited personnel practices,” the CSRA’s 26 administrative procedures are the employee’s only remedy. Orsay v. United States 27 Dep’t of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (abrogated on other grounds 28 by Millbrook v. United States, __ U.S. __, 133 S. Ct. 1441 (2013)); see also ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 3 1 Collins v. Bender, 195 F.3d 1076, 1079 (9th Cir. 1999) (“[E]ven if no remedy 2 were available to [the employee] under the CSRA, he still could not bring [his] 3 action if the acts complained of fell within the CSRA’s confines.”); Saul v. United 4 States, 928 F.2d 829, 835–43 (9th Cir. 1991) (holding the CSRA precludes both 5 constitutional and common-law tort claims). 6 The CSRA defines “prohibited personnel practices” as any “personnel 7 action” taken for an improper motive by someone who has authority to take 8 personnel actions. 5 U.S.C. § 2302(b) (delineating improper motives). “Personnel 9 action” as defined by the statute includes any appointment, promotion, disciplinary 10 or corrective action, detail transfer, reassignment, reinstatement, restoration, 11 reemployment, performance evaluation, pay or benefits decision, mandatory 12 psychiatric examination, or any other significant change in duties, responsibilities, 13 or working conditions. 5 U.S.C. § 2302(a)(2)(A)(i)-(xi). 14 “[A]lthough a federal district court can exercise federal question jurisdiction 15 under 28 U.S.C. § 1331, that general grant of jurisdiction does not apply where it 16 is fairly discernible that Congress intended a statutory review scheme to provide 17 the exclusive avenue to judicial review.” Kerr v. Jewell, 836 F.3d 1048, 1050 (9th 18 Cir. 2016). This principle applies to the CSRA. Elgin v. Dep’t of Treasury, __ U.S. 19 __, 132 S. Ct. 2126, 2132-33 (2012) (“Given the painstaking detail with which the 20 CSRA sets out the method for covered employees to obtain review of adverse 21 employment actions, it is fairly discernible that Congress intended to deny such 22 employees an additional avenue of review in district court.”). 23 The CSRA’s remedial scheme is “both exclusive and preemptive because 24 permitting Federal Tort Claim Act claims to supplant the CRSA’s remedial 25 scheme” would defeat Congress’ purpose of creating “a single system of 26 procedures and remedies, subject to judicial review.” Rivera v. United States, 924 27 F.2d 948, 951 (9th Cir. 1991). “[W]here Congress has provided a process for 28 processing prohibited personnel practices, other potential employee remedies are ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 4 1 preempted.” Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir 2008). “Both 2 the CSRA and its legislative history show that Congress did not intend that state 3 tort law operate within the interstices of the act.” Saul, 928 F.2d at 842. 4 In determining whether the CSRA preempts a claim, the court looks to the 5 conduct challenged in the lawsuit to determine whether it “falls within the scope 6 of the CSRA’s ‘prohibited personnel practices.’” Mangano, 529 F.3d at 1246. If it 7 does, the lawsuit is preempted and the CSRA’s administrative procedures are the 8 employee’s only remedy. Id. 9 The Merit Systems Protection Board (“MSPB”) was created by Congress 10 under the CSRA as a quasi-judicial government agency with the specific task of 11 adjudicating appeals of agency personnel actions for federal employees. 5 U.S.C. 12 § 1201 et seq.; 5 C.F.R. § 1200.1. Generally, the MSPB is limited to review of 13 “adverse employment actions” that fall into one of five categories: (1) removal; (2) 14 suspension for more than 14 days; (3) reduction in grade; (4) reduction in pay; or 15 (5) a furlough of 30 days or less. 5 U.S.C. § 7512(1)-(5); Sloan v. West, 140 F.3d 16 1255, 1259 (9th Cir. 1998). 17 3. Whistleblower Protection Act 18 The Whistleblower Protection Act (“WPA”) prohibits retaliation against an 19 employee for disclosing “any violation of any law, rule, or regulation, or . . . gross 20 mismanagement, a gross waste of funds, an abuse of authority, or a substantial and 21 specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). Federal 22 employees can obtain administrative and judicial review of their WPA claims. 23 Kerr, 836 F.3d at 1053. As a general matter, WPA claims must be presented 24 initially to either the Office of Special Counsel (OSC) or the MSPB. 5 U.S.C. 25 §§ 1214, 1221(a); 5 C.F.R. § 1209.2 26 The Whistleblower Protection Act is part of the CSRA and thus, WPA 27 claims are within the exclusive original jurisdiction in the MSPB. Kerr, 836 F.3d 28 at 1056 (quoting the D.C. Circuit, which observed that “[u]nder no circumstances ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 5 1 does the WPA grant the District Court jurisdiction to entertain a whistleblower 2 cause of action brought directly before it in the first instance”). 3 4. Federal Tort Claim Act 4 The Federal Tort Claims Act grants federal courts jurisdiction over damages 5 claims against the United States “for injury or loss of property, or personal injury 6 or death caused by the negligent or wrongful act or emission of any employee of 7 the Government while acting within the scope of his office or employment.” 8 28 U.S.C. § 1346(b). Under the FTCA, the government may be held liable for 9 negligence “in the same manner and to the same extent as a private individual 10 under like circumstances.” 28 U.S.C. § 2674. ANALYSIS 11 12 1. Whistleblower Protection Act claim 13 In his first cause of action, Plaintiff asserts he is a federal employee who 14 reported valuable trend information regarding safety violations that occurred at 15 Travis AFB and as a result, he was retaliated against, constantly harassed, placed 16 in a hostile work environment, wrongfully terminated and had his security 17 clearance placed under review, which prevented him from seeking other similar 18 employment, in violation of the WPA. Defendant argues because there is no private right of action under the WPA 19 20 (an employee must bring a claim under the rubric of the CSRA) and because 21 Plaintiff’s complaint does not allege exhaustion of his CSRA remedies or that he 22 sought review from the MSPB, his WPA claim is barred. In his response, Plaintiff concedes he did not pursue all administrative 23 24 remedies under the CSRA. He asks that, because he is in the process of appealing 25 to the MSPB, the Court to stay his Whistleblower Act claim until the 26 administrative process is resolved. Defendants object to Plaintiff’s request for a 27 stay. 28 The Ninth Circuit instructs that a district court has discretion to stay or ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 6 1 dismiss without prejudice a case within an administrative agency’s primary 2 jurisdiction. Davel Commc’ns, Inc. v. Qwest Corp., 460 F.3d 1075, 1091 (9th Cir. 3 2006). A court may stay the case and retain jurisdiction or, “if the parties would 4 not be unfairly disadvantaged, . . . dismiss the case without prejudice.” Id. The 5 factor most often considered in determining whether a party will be disadvantaged 6 by dismissal without prejudice is whether there is a risk that the statute of 7 limitations may run on the claims pending agency resolution of threshold issues. 8 Id. Also, where the court stays proceedings to give preliminary deference to an 9 administrative agency anticipating further judicial proceedings, jurisdiction should 10 ordinarily be retained by staying the action, rather than dismissing the 11 proceedings. N. Cal. Dist. Council of Hod Carriers, Bldg. & Constr. Laborers, 12 AFL–CIO v. Opinski, 673 F.2d 1074, 1076 (9th Cir. 1982). In an unpublished 13 opinion the Ninth Circuit examined the prejudice factor to determine whether 14 claims should be dismissed or stayed for failing to exhaust administrative 15 remedies before the MSPB. Toyama v. Sebelius, 2009 WL 2241606, *1 (9th Cir. 16 2009). It concluded that because there was no risk that the statute of limitations 17 might run on the claim, it was appropriate to dismiss the claims without prejudice. 18 Id. 19 Because neither party has addressed the prejudice issue or the statute of 20 limitations question, the Court orders additional briefing on this issue before 21 making a determination on whether it should stay Plaintiff’s WPA claim. 22 2. Constitutional Claims – Due Process, Liberty Interest 23 In his second cause of action, Plaintiff alleges a violation of his due process 24 rights, and specifically his liberty interest. He asserts he has a liberty interest in his 25 reputation as an employee and argues his reputation has been damaged by 26 Defendants. He asserts that Defendants have continued to disseminate a false and 27 defamatory impression about Plaintiff in regards to his termination, which has 28 deprived him of similar employment with other Air Force bases around the world. ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 7 1 Also, Defendants have held his security clearance under review, which has denied 2 him the opportunity to seek other similar employment. 3 Defendants argue the United States has not waived sovereign immunity for 4 direct constitutional claims. In his response, Plaintiff did not address Defendants’ 5 argument regarding sovereign immunity and the requested dismissal of his 6 constitutional claims. 7 Under the doctrine of sovereign immunity, the United States “is immune 8 from suit save as it consents to be sued, and the terms of its consent to be sued in 9 any court define that court’s jurisdiction to entertain the suit.” United States v. 10 Mitchell, 445 U.S. 656, 538 (1980). Thus, sovereign immunity is jurisdictional in 11 nature. FDIC. v. Meyer, 510 U.S. 471, 475 (1994). In Meyer, the U.S. Supreme 12 Court held the United States did not waive its sovereign immunity for 13 constitutional tort claims. Id. at 478; see also Roundtree v. United States, 40 F.3d 14 1036, 1038 (9th Cir. 1994) (“[I]t is pellucid that the United States cannot be sued 15 on the theory that there has been a violation of [the plaintiff’s] constitutional 16 rights.”). Additionally, the United States may not be held liable in damages for the 17 constitutional torts of its officers. Clemente v. United States, 766 F.2d 1358, 1363 18 (9th Cir. 1985). 19 Here, Plaintiff has not alleged any facts to suggest that Ms. James 20 personally participated in any alleged constitutional violation. See Taylor v. List, 21 880 F.2d 1040, 1045 (9th Cir. 1989) (holding supervisors are only personally 22 liable for damages under 42 U.S.C. § 1983 when the evidence shows that they 23 participate in, directed, or knew of the alleged constitutional violations, and failed 24 to intervene to prevent them); Clemente, 766 F.2d at 1363-64 (holding a Bivens 25 remedy is unavailable against federal officials being sued, not in their individual 26 capacity for their individual actions, but simply because of the offices they hold). 27 Given that Plaintiff has not challenged the United States’ claim of sovereign 28 immunity, the Court grants Defendants’ Motion to Dismiss with respect to ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 8 1 Plaintiff’s constitutional due process claims. 2 3. California Employment Law Claims 3 In his third and fourth causes of action, Plaintiff alleges his termination 4 from employment violated California law prohibiting the discharge by an 5 employee who has made any oral or written complaint to his employer. Cal. Lab. 6 Code § 6310. His termination also allegedly violated public policy under 7 California law. Cal. Labor Code § 1102(b). 8 Defendants argue that under the Supremacy Clause of the U.S. Constitution, 9 the United States is not subject to state law. Also, the United States has not waived 10 its sovereign immunity for state employment laws. Moreover, because federal 11 employees are governed by CSRA, state employment laws do not apply to disputes 12 between the United States and its employees. 13 Here, the allegations regarding the state labor law violations involve 14 “personnel actions” as defined by the CSRA. As such, Plaintiff’s California Labor 15 Code claims are pre-empted and subject to dismissal. 16 4. Intentional Infliction of Emotional Distress – Tort Claim (FTCA) 17 In his fifth cause of action, Plaintiff alleges Defendants, through its agents 18 and employees, treated him in a deplorable manner. The retaliation, harassment, 19 wrongful termination, and withholding of Plaintiff’s security clearance allegedly 20 constitute extreme and outrageous conduct by Defendants that caused him severe 21 emotional and physical distress. 22 Defendants argue that Plaintiff failed to plead compliance with the FTCA’s 23 administrative exhaustion requirements, which are a condition of the waiver of 24 sovereign immunity. Because he failed to comply with the prerequisites for a tort 25 claim against the United States, his tort claim is barred by sovereign immunity. 26 In his response, Plaintiff indicated he recently filed a claim under the 27 Federal Tort Claims Act. He asks the Court to allow him to amend his complaint 28 to include the fact that he has complied with the FTCA by filing an administrative ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 9 1 tort claim and to stay the action. 2 Although not addressed by the parties, it is questionable whether this claim 3 survives under the reasoning of Mangano v. United States, 529 F.3d 1243 (9th Cir. 4 2008). In that case, a part-time physician employed by the Veterans Health 5 Administration brought an action in district court, seeking damages against the 6 United States under the FTCA for intentional infliction of emotional distress and 7 intentional interference with the right to practice a lawful profession in retaliation 8 for his whistleblowing activities. Id. The Ninth Circuit held the physician’s claim 9 that he was unfairly terminated falls squarely within the definition of a personnel 10 action as a “significant change in duties, responsibilities or working conditions” 11 under the CSRA. Id. at 1247. Ultimately, the Circuit concluded the physician’s 12 FTCA claims involved personnel actions that could be challenged as prohibited 13 personnel practices and as such the CSRA preempted those claims. Id. The 14 physician’s remedy, if any, lay within the CSRA procedures. Id. 15 This case is directly on point with respect to whether the CSRA preempts 16 Plaintiff’s FTCA claim. In addition to addressing whether this claim should be 17 stayed, the parties are directed to address whether Plaintiff’s FTCA claim should 18 be dismissed under Mangano. 19 CONCLUSION 20 As set forth above, it is appropriate to dismiss with prejudice Plaintiff’s 21 constitutional claims and his California Labor Code claims. The Court declines to 22 rule on whether dismissal is proper for the Whistleblower Act claims and the 23 FTCA claim without further briefing from the parties. 24 Accordingly, IT IS HEREBY ORDERED: 25 1. Defendants’ Motion to Dismiss, ECF No. 18, is GRANTED, in part. 26 2. On or before July 5, 2017, Plaintiff shall file additional briefing 27 addressing the request for a stay and the Mangano decision. 28 3. On or before July 15, 2017, Defendants shall file its responsive ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 10 1 briefing. 2 4. 3 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order On or before July 26, 2017, Plaintiff shall file any reply. 4 and forward copies to counsel. 5 DATED this 22nd day of June, 2017. 6 7 8 9 10 ___________________________ Stanley A. Bastian United States District Court Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY ~ 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?