Baldwin v. Cutting et al

Filing 18

ORDER denying without Prejudice Defendants' Motions to Dismiss 6 , 8 . No later than April 21, 2017, Plaintiff shall file a brief to Show Cause why this action should not be dismissed for lack of subject matter jurisdiction. Failure to timely comply with this order may result in dismissal without prejudice. Defendants shall file a response, if any, no later than May 5, 2017. Signed by Judge M. James Lorenz on 3/27/2017. (sjt)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRIS BALDWIN, Case No.: 3:16-cv-903-L-KSC Plaintiff, 12 13 v. 14 ORDER DENYING MOTIONS TO DISMISS AND ORDER TO SHOW CAUSE JACOB CUTTINTG et al., Defendants. 15 16 17 Pending before the Court in this civil rights action are Defendants’ motions to 18 dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 19 12(b)(1) and failure to state a claim under Rule 12(b)(6). (Docs. no. 6 & 8.) The motions 20 are fully briefed. They are submitted on the briefs and without oral argument pursuant to 21 Civil Local Rule 7.1.d.1. For the reasons which follow, both motions are denied without 22 prejudice. 23 I. BACKGROUND 24 According to the allegations in the complaint, Plaintiff is employed by the United 25 States Border Patrol ("Border Patrol"). In the course of his employment, he befriended 26 San Diego County Sheriff's Deputy Jessica Leon. Subsequently, Leon's relative David 27 William Centrone became a suspect in an investigation of the West Coast Crips, 28 commenced by the East County Gang Task Force ("Task Force"). The Task Force 1 3:16-cv-903-L-KSC 1 believed that Leon provided sensitive law enforcement information to Centrone. They 2 tapped her mobile phone. 3 Because of the wiretap, the Task Force members were able to read text messages 4 exchanged between Plaintiff and Leon, including about Plaintiff's romantic relationship 5 with San Diego County Sheriff's Deputy Sharlene Wilson. The messages made 6 disparaging remarks about the Task Force investigation, the competency of the officers 7 involved, Plaintiff's plans to apply for a job with the San Diego County Sheriff's 8 Department, and about Defendant Jacob Cutting, El Cajon Police Department SWAT 9 officer and Wilson's former husband. 10 In 2014, Defendants Kai Mandelleh, El Cajon Police Department SWAT officer, 11 and Zeath Sanchez, San Diego County Deputy Sheriff, both detectives with the Task 12 Force, investigated Plaintiff's association with Leon. They believed that Leon sought to 13 extract law enforcement sensitive information from Plaintiff. They called Plaintiff for an 14 interview. He claims that although the Task Force considered him a suspect, they treated 15 him as a witness, because it afforded fewer procedural protections. The interview was 16 recorded. The questions did not relate to leaking sensitive information to Leon, but to 17 Plaintiff's relationship with Wilson. The Task Force concluded that Plaintiff did not pass 18 sensitive law enforcement information to Leon. Plaintiff claims the suspicion was 19 unreasonable to begin with and contrary to evidence, because he had no contact with 20 Task Force members during the relevant time. 21 After the interview, the Task Force informed the Border Patrol, Plaintiff's 22 employer, that he had been questioned for associating with Leon, but was uncooperative 23 and not forthcoming with information. Border Patrol opened an internal investigation. 24 Although Plaintiff's interview with Mandelleh and Sanchez was recorded, the Task Force 25 refused to provide the recording to the Border Patrol for its investigation. Plaintiff denies 26 that he was uncooperative or less than forthcoming with information. 27 28 Plaintiff alleges that Defendants conspired to pursue unfounded allegations against him and passed them to the Border Patrol because Cutting believed it would precipitate 2 3:16-cv-903-L-KSC 1 the termination of Plaintiff's relationship with Wilson. In pursuit of this goal, Plaintiff 2 alleges that Defendants intentionally circumvented his constitutional due process rights 3 and rights under federal labor laws. 4 Plaintiff claims that Defendants' false allegations about him caused damage to his 5 professional reputation and career prospects. He believes the allegations were made in 6 retaliation by Cutting, who was jealous, and by Sanchez for pointing out to him he had 7 made an error in collecting evidence. 8 As a result of this conduct, Plaintiff claims he was removed from the United States 9 Marshal's San Diego Regional Fugitive Task Force, and would not be assigned to another 10 task force. Plaintiff was informed by his superior that the San Diego Sheriff's 11 Department considered him untrustworthy. Because the Sheriff's Department was a 12 partner in most local task forces, Plaintiff would no longer be assigned. Furthermore, 13 Plaintiff's duties with the Border Patrol were downgraded, and he was passed over for 14 promotion. Plaintiff alleges that because a perjury allegation had been made against him, 15 he is also no longer able to pursue a state law enforcement career or testify as an agent in 16 federal court. Although Plaintiff was able to secure a position as a Criminal Investigator 17 with Immigration and Customs Enforcement, his acceptance was delayed pending the 18 conclusion of Border Patrol's internal investigation. He is pursuing a grievance through 19 the National Border Patrol Council. 20 Plaintiff filed a complaint against Cutting, Mandelleh and Sanchez alleging 21 violation of his constitutional due process rights under 42 U.S.C. §1983, conspiracy to 22 deny him due process under 42 U.S.C. §1985, and conspiracy to interfere with federal 23 officer's duties under 42 U.S.C. §1985(1). Defendants filed motions to dismiss under 24 Rule 12(b)(1) for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state 25 a claim. 26 27 The Court first turns to Defendants' Rule 12(b)(1) motions for lack of subject matter jurisdiction. Unlike State courts, 28 3 3:16-cv-903-L-KSC 1 Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction. 2 3 4 5 6 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). 7 Federal courts are constitutionally required to raise issues related to federal subject matter 8 jurisdiction and may do so sua sponte. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 9 (2006). They must satisfy themselves of jurisdiction over the subject matter before 10 proceeding to the merits of the case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 11 577, 583 (1999). 12 Defendants argue the Court lacks subject matter jurisdiction because Plaintiff's 13 claims are preempted by the Civil Service Reform Act, 5 U.S.C. §1101 et seq. 14 ("CSRA").1 "The CSRA established a comprehensive system for reviewing personnel 15 actions taken against federal employees." United States v. Fausto, 484 U.S. 439, 455 16 (1988). "If the challenged conduct falls within the scope of the CSRA's prohibited 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendants argue that the second and third causes of action, alleged under 42 U.S.C. §§1985 and 1985(1), are preempted. They do not mention the first cause of action under 42 U.S.C. §1983, and provide no reason why it should not be subject to preemption to the same extent. Section 1983 claims are analogous to Bivens claims. Like §1983 claims, Bivens claims provide a remedy for violation of federal constitutional rights, albeit for violations by federal governmental actors as opposed to state actors. The bodies of law pertaining to Bivens and §1983 actions have been largely assimilated. See Pollard v. the GEO Group, Inc., 629 F.3d 843, 855 (9th Cir. 2010) (collecting cases), rev'd on other grounds, Minneci v. Pollard, 565 U.S. 118 (2012). Bivens claims are subject to CSRA preemption. See, e.g., Saul v. United States, 928 F.2d 829, 834 (9th Cir. 1991) (Bivens claim for unlawful search and seizure of personal mail at place of employment). As the parties present no reason to treat the §1983 claim differently than the §1985 claims, and in light of the Court's duty to raise sua sponte issues of subject matter jurisdiction, Arbaugh, 546 U.S. at 514, the Court includes Plaintiff's §1983 claim in the preemption analysis. 4 3:16-cv-903-L-KSC 1 personnel practices, then the CSRA's administrative procedures are the employee's only 2 remedy." Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir. 2008) (internal 3 quotation marks, citations, and brackets omitted); see also Collins v. Bender, 195 F.3d 4 1076, 1080 (9th Cir. 1999). The CSRA precludes federal court jurisdiction except as 5 expressly provided in 5 U.S.C. §7702(a)(1)(B) for actions alleging adverse employment 6 action based on discrimination, which does not apply here. See Elgin v. Dept. of the 7 Treasury, 567 U.S. 1, __, 132 S. Ct. 2126, 2134 (2012). Preemption applies even when 8 the CSRA provides the employee with no remedy. Orsay v. U.S. Dep't of Justice, 289 9 F.3d 1125, 1128-29 (9th Cir. 2002), abrogated on other grounds by Millbrook v. U.S., __ 10 11 U.S. __; 113 S. Ct. 1441 (2013). The CSRA preempts claims "if the conduct underlying [the] complaint can be 12 challenged as 'prohibited personnel practices' within the meaning of the CSRA." 13 Mangano, 529 F.3d at 1247. "The CSRA defines 'prohibited personnel practices' as any 14 'personnel action' taken by someone in authority that violates one of ... enumerated 15 practices. 'Personnel action,' in turn, is defined comprehensively ... ." Id. (citing 5 U.S.C. 16 § 2302(b) for "personnel practices" and 5 U.S.C. § 2302(a)(2)(A) for "personnel action"). 17 The CSRA also includes a list of prohibited reasons for taking a personnel action. Orsay, 18 289 F.3d at 1129 (citing 5 U.S.C. §2302(b)). Even if the prohibited reason for the 19 conduct at issue is not the primary reason for the personnel action, it is sufficient if it is 20 "implicit" in the complaint. Orsay, 289 F.3d at 1129. 21 The CSRA provisions regarding personnel actions contain "broad language," and 22 Ninth Circuit case law gives it an "inclusive construction." Orsay, 289 F.3d at 1129. 23 When the claim falls within its broad ambit, the CSRA preempts constitutional, federal 24 statutory, and tort claims. See, e.g., Mangano, 529 F.3d at 1247 (infliction of emotional 25 distress, intentional interference with right to practice chosen profession, abuse of 26 process); Orsay, 289 F.3d at 1129-32 (Privacy Act claim under 5 U.S.C. §552a); Saul, 27 928 F.2d at 834 (Bivens claim for unlawful search and seizure of personal mail). 28 5 3:16-cv-903-L-KSC 1 The CSRA does not preempt federal claims involving conduct that does not fall 2 within one of its categories of personnel action. Brock v. United States, 64 F.3d 1421, 3 1424-25 (9th Cir. 1995). Although there are limits, "the instances are well outside 4 anything that could reasonably be described as a 'personnel action.'" Mangano, 529 F.3d 5 at 1247. For example, wiretapping, warrantless searches, or uncompensated takings, 6 Bush v. Lucas, 462 U.S. 367, 386 n.28 (1983), aiming a loaded weapon, Orsay, 289 F.3d 7 at 1129, rape and sexual assault, Brock, 64 F.3d at 1424-25, or warrantless search of the 8 employee's home, Collins, 195 F.3d at 1079-80, fall outside the scope of CSRA's 9 definition of "personnel action." 10 The fact that, like here, the plaintiff complains about the conduct of third parties, 11 none of whom are his employer or supervisor, does not change the analysis. "The CSRA 12 contains no specific requirement that the employee engaged in the prohibited personnel 13 practice be an employee of the organization that employs the employee subject to the 14 adverse personnel determination." Orsay, 289 F.3d at 1131. 15 In sum, the CSRA preempts Plaintiff's claims "if the conduct underlying his 16 complaint can be challenged as 'prohibited personnel practices' within the meaning of the 17 CSRA." Mangano, 529 F.3d at 1247. Neither party addresses this issue by considering 18 the CSRA definitions of "personnel practice" and "personnel action" as required by Ninth 19 Circuit precedent. Accordingly, Defendants' respective Rule 12(b)(1) motions are denied 20 without prejudice. 21 Alternatively, Defendants contend that Plaintiff fails to state a claim for any of his 22 causes of action. A federal court may not assume "hypothetical jurisdiction" that would 23 enable it to "resolve contested questions of law when its jurisdiction is in doubt. 24 Hypothetical jurisdiction produces nothing more than a hypothetical judgment -- which 25 comes to the same thing as an advisory opinion . . . ." Steel Co. v. Citizens for a Better 26 Env't, 523 U.S. 83, 101 (1998). Because subject matter jurisdiction is doubtful, 27 Defendants' respective Rule 12(b)(6) motions are denied. Denial is without prejudice to 28 6 3:16-cv-903-L-KSC 1 presenting the same arguments again in a Rule 12(c) or Rule 56 motion, after the parties 2 have appropriately addressed subject matter jurisdiction. 3 For the foregoing reasons, IT IS ORDERED as follows: 4 1. Defendants' motions to dismiss are denied without prejudice. 5 2. No later than April 21, 2017, Plaintiff shall file a brief to SHOW CAUSE 6 why this action should not be dismissed for lack of subject matter jurisdiction. Failure to 7 timely comply with this order may result in dismissal without prejudice. 8 3. 9 IT IS SO ORDERED. Defendants shall file a response, if any, no later than May 5, 2017. 10 11 Dated: March 27, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:16-cv-903-L-KSC

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