Beveridge v. The Department of the Navy et al

Filing 19

ORDER granting defendants' 15 Motion to Dismiss. The Court dismisses all of Beveridge's causes of action without leave to amend. Signed by Judge Larry Alan Burns on 12/22/16. (kas) (sjt). Modified on 12/29/2016 document replaced to correct tilted image (kas). (Main Document 19 replaced on 12/29/2016) (kas).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. BEVERIDGE, 12 CASE NO. 15cv2209-LAB (JMA) Plaintiff, ORDER GRANTING MOTION TO DISMISS vs. 13 UNITED STATES OF AMERICA, et al., 14 Defendants. 15 16 17 Michael Beveridge sued four Naval Sea Systems Command colleagues for spreading 18 lies about him. Here’s a sample: Beveridge said his supervisor told co-workers that 19 Beveridge “attended [a] training but arrived late,” moved “his personal computer from his 20 workplace,” and accused him of “pushing furniture around.” (Dkt. 10 at 5–7.) Beveridge calls 21 these actions “trivial in nature.” (Id. at 14–15.) The Court agrees. Beveridge’s complaint is 22 borderline frivolous: he claims his colleagues made false accusations to “destroy” his career 23 and “to accomplish the mission of the Defendant United States of America.” (Id. at 10.) The 24 Court need not reach the merits here because the Civil Service Reform Act provides the 25 exclusive route for remedy (if any). The Court lacks subject matter jurisdiction. Beveridge’s 26 claims are dismissed without leave to amend. 27 /// 28 /// -1- 15cv2209 1 I. Background 2 Michael Beveridge was a mechanical engineer for the Department of the Navy for 3 over 30 years. His “employment environment drastically changed” after Rebecca Kubera 4 became his supervisor in late 2011. He blames Kubera for spreading lies about him on about 5 five occasions over the course of two years. For example, Kubera told a human resources 6 employee that Beveridge “yelled at her,” attended two training sessions late, and failed to 7 provide an “update” on a project. (Dkt. 10 at 5.) Kubera told others that Beveridge moved a 8 “computer from the room in violation of her directive,” called a colleague “a ‘deaf dumb’ 9 person,” accused Beveridge of “unauthorized obligation of funds associated with a RAM 10 gearbox repair,” and told others he engaged in disrespectful behavior like “pushing furniture 11 around” (Id. at 6–7.) Beveridge says federal employees James Crouch, Darren Speer, and 12 Ralph Price each sent Kubera an email this February complaining that Beveridge yelled at 13 one of them for taking his work, called another an “idiot,” and cursed at the third while 14 passing him in the hall. (Id. 7–9.) 15 Beveridge believes these actions “were [taken] in retaliation for his efforts to report 16 actions of waste fraud and abuse occurring in the workplace concerning certain Co- 17 Employees, including the individual Defendants, by filing specific grievances with his union.” 18 (Id. at 5.) These lies resulted in two disciplinary letters, “destroyed [his] career,” and forced 19 him “to retire from federal service.” (Id. at 10.) He also blames Defendants for his 20 depression, anxiety, and wants more than $100,000 in damages. 21 The Navy’s Tort Claim Unit denied Beveridge’s claim last September. A month later, 22 Beveridge filed his original complaint. The Court granted Defendants’ first motion to dismiss 23 in May. Beveridge filed an amended complaint. He asserts causes of action under the FTCA, 24 42 U.S.C. § 1983, and Bivens; state law claims for libel, slander, fraudulent 25 misrepresentation, retaliation, and intentional infliction of emotional distress; and asks for 26 declaratory relief that the Defendants weren’t acting within the scope of employment. 27 Defendants moved to dismiss for lack of subject matter jurisdiction, or in the alternative, for 28 failure to state a claim. -2- 15cv2209 1 II. Legal Standard 2 The Court must dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. 3 P. 12(b)(1). When the defendant “asserts that the allegations contained in a complaint are 4 insufficient on their face to invoke federal jurisdiction” the Court accepts the plaintiff’s 5 allegations as true. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). But 6 the allegations must be plausible, not conceivable or conclusory. Bell Atl. Corp. v. Twombly, 7 550 U.S. 544 (2007). 8 9 III. Analysis A. The employees acted within the scope of their employment. 10 The Court previously found the four employees acted within the scope of their 11 employment. The Court ordered the “individual defendants [ ] dismissed and the United 12 States [ ] substituted in as a defendant,” and ordered Beveridge to “file an amended 13 complaint that is consistent with this order.” (Dkt. 9 at 4.) Instead, Beveridge’s new complaint 14 still includes claims against the four employees as defendants and makes the same 15 allegation the Court previously identified as an admission: “at all times relevant” the four 16 employees “were acting as employees and agents” for the United States. (Id. at 3; Dkt. 10 17 at 3.) Beveridge, however, now alleges that the employees acted for “personal reasons” 18 when they spread lies about him under the state law claims, but acted pursuant to their 19 employment when they spread lies about him under the federal law claims. 20 The Court affirms its previous order. “The party seeking review bears the burden of 21 presenting evidence and disproving the Attorney General's certification by a preponderance 22 of the evidence.” Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). Here, the 23 Attorney General certified that the employees were acting within the scope of employment. 24 (Dkt. 15-1.) Beveridge not only failed to present any evidence rebutting this claim, but his 25 allegations support the certification: Kubera reported Beveridge’s work behavior to human 26 resources; Crouch emailed Kubera (Beveridge’s supervisor) to complain that Beveridge had 27 made “the work environment . . . hostile”; Speer emailed Kubera that he was “uncomfortable 28 going out to a ship” with Beveridge; and Price emailed Kubera that he used “a different -3- 15cv2209 1 men’s room” at work because of Beveridge. (Dkt. 10 at 7–8.) Beveridge’s colleagues 2 identified workplace problems that interfered with their jobs—this is garden variety conduct 3 that falls within the scope of employment. Billings, 57 F.3d at 800 (“The key issue under 4 California law is whether the act was committed in the course of carrying out the employer's 5 business.”). The Court affirms its order dismissing the four employees and substituting the 6 United States as defendant. 7 B. The Court lacks subject matter jurisdiction. 8 The Civil Service Reform Act (CSRA) provides the exclusive remedy for federal 9 employees to resolve workplace disputes that fall under the statute’s broad provision against 10 “prohibited personnel practices.” Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1128 (9th 11 Cir. 2002) abrogated on other grounds by Millbrook v. United States, 133 S. Ct. 1441 (2013). 12 In plain prose, the law bans bosses from treating employees unfairly. Here, the Court only 13 needs to zero in on one portion of the CSRA: the Act provides protection when an employee, 14 typically a supervisor, takes any action that significantly changes the “working conditions” for 15 another employee who reports waste, abuse, or files grievances. (5 U.S.C. § 2302 16 (b)(8)(9)).1 17 Beveridge said his “employment environment drastically changed” under the 18 supervision of his boss, Rebecca Kubera, who made false accusations against him in 19 “retaliation for his efforts to report actions of waste fraud and abuse” and “by filing specific 20 grievances.” (Dkt. 10 at 4–5.) He alleges Kubera, and three employees who emailed her, 21 “embarked on a conspiracy” to destroy his reputation.2 These accusations forced Beveridge 22 “to retire from federal service.” (Id. at 10, 16.) The underlying conduct Beveridge complains 23 1 24 25 26 27 28 The Act prohibits any employee capable of making or recommending a personnel action from a long list of improper conduct. Personnel actions are things like promotions or reassignments, and generally any “significant change in duties, responsibilities or working conditions.” 5 U.S.C. § 2302. 2 Beveridge said the other three employees acted “under cover of the authority of their positions” and didn’t suggest the CSRA didn’t apply to them. Even if he had, other courts have found the Act applies to co-workers: Sculimbrene v. Reno, 158 F. Supp. 2d 1, 6 (D.D.C. 2001) (“The Supreme Court has already rejected this type of exclusion-based argument as ‘implausible’”); Garvis v. Carter, 2006 WL 2228825, at *7 (E.D. Wash. Aug. 3, 2006) (CSRA preempted even though “couched in terms of an alleged ‘conspiracy’ among co-worker Defendants”); see also Mahtesian v. Lee, 406 F.3d 1131, 1135 (9th Cir. 2005). 15cv2209 -4- 1 about—false accusations in retaliation for filing complaints that forced him to retire—“falls 2 within the scope of the CSRA's ‘prohibited personnel practices,’” therefore, “the CSRA's 3 administrative procedures are [the] only remedy.” Orsay, 289 F.3d 1128; Mangano v. United 4 States, 529 F.3d 1243, 1246 (9th Cir. 2008). 5 Several courts have considered similar facts and reached the same conclusion.3 For 6 example, in Orsay v. U.S. Dept. of Justice, the court found that the CSRA barred federal 7 employees’ claims that colleagues “retaliated against them for their formal complaints by 8 opening a disciplinary file on them” that “included incomplete, inaccurate, irrelevant, and 9 untimely records.” 289 F.3d at 1127. The employees said these false allegations resulted in 10 their “constructive suspension and/or discharge.” Id. Beveridge’s claims turn on the same 11 conduct: employees retaliated against him by spreading lies that resulted in disciplinary 12 letters, and, constructive discharge through forced retirement. “Accordingly, where Congress 13 has provided a process for processing prohibited personnel practices, other potential 14 employee remedies are preempted.” Mangano, 529 F.3d at 1246. The Court dismisses all 15 of Beveridge’s claims, since they turn on the same underlying workplace conduct that 16 Congress crafted the CSRA to address. 17 C. The Court dismisses the action without leave to amend. 18 Since the CSRA provides the exclusive remedy for Beveridge’s federal employment 19 dispute, and Beveridge already had an opportunity to amend, the Court dismisses the action 20 without leave to amend. Orsay, 289 F.3d at 1136 (“Having properly dismissed . . . for want 21 of subject matter jurisdiction,” the “denial of Appellants’ motion 22 a second time was not an abuse of discretion.”) Any further amendment would be futile, if to amend their complaint 23 24 25 26 27 28 3 Other courts have dismissed claims for lack of jurisdiction in similar situations: see Saul v. United States, 928 F.2d 829, 834 (9th Cir. 1991) (CSRA preempted federal employee's defamation claims because if the allegations “were false or defamatory, they would violate merit principles and would be prohibited personnel practices.”); Mangano v. United States, 529 F.3d 1243, 1245 (9th Cir. 2008) (CSRA barred federal employee’s FTCA claims that “arose out of a variety of employment-related incidents” after another doctor retaliated against Mangano by making false accusations after Mangano filed complaints); Lehman v. Morrissey, 779 F.2d 526 (9th Cir. 1985) (“common law claims are preempted” by the CSRA). -5- 15cv2209 1 not frivolous, “because the alleged facts, even if true, provided no basis for subject matter 2 jurisdiction.” Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998). 3 The Court need not reach the merits of the claims, although it observes that the 4 United States pointed out several other problems with Beveridge’s claims that would require 5 dismissal. The Court dismisses all of Beveridge’s causes of action without leave to amend. 6 7 IT IS SO ORDERED. DATED: December 22, 2016 8 9 HONORABLE LARRY ALAN BURNS United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 15cv2209

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