THAYER-BALLINGER v. UNITED STATES POSTAL SERVICE

Filing 26

ENTRY ON MOTION TO DISMISS: Accordingly, the USPS's motion to dismiss 12 is DENIED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 1/26/2012. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAMELA THAYER-BALLINGER,
Plaintiff,
vs.
UNITED STATES POSTAL SERVICE,
Defendant.

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) CAUSE NO. 1:11-cv-745-WTL-TAB
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ENTRY ON MOTION TO DISMISS
This cause is before the Court on a motion to dismiss filed by Defendant the United
States Postal Service (“USPS”). The motion is fully briefed and the Court, being duly advised,
DENIES the motion for the reasons set forth below.
Plaintiff Pamela Thayer-Ballinger alleges that her employer, the USPS, failed to pay her
for 297 hours of “straight time” and 196 hours of “premium time” that she worked in 2010 and
that this failure violated the Indiana Wage Payment Statute, Ind. Code 22-2-5-1, et seq. In the
instant motion, the USPS advances several reasons why it believes Thayer-Ballinger’s complaint
must be dismissed. For the reasons set forth below, the Court finds that the USPS misses the
mark with each of its arguments.1
First, the USPS purports to raise “the defense of sovereign immunity,” and spends a not

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The USPS also misses the mark when it includes in its recitation of the standard for
resolving motions to dismiss for failure to state a claim the statement that “[a] complaint should
not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.” USPS Brief at 13
(citing Szumny v. Am. Gen. Finance, 246 F.3d 1065, 1067 (7th Cir. 2001) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). This language from Conley was, of course, “retired” by the
Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007), and is no longer
good law.

insubstantial portion of its initial brief setting forth the general principles of sovereign immunity.
However, it does eventually recognize, as it must, that Congress has, in fact, effected a broad
waiver of sovereign immunity with regard to suits against the USPS by providing in 39 U.S.C. §
401(1) that the USPS may “sue and be sued.” Further, while the USPS asserts that “[a]ny waiver
of sovereign immunity must ‘be strictly construed, in terms of its scope, in favor of the
sovereign,’” USPS Brief at 4, the Supreme Court has long “recognized that . . . such sue-and-besued waivers are to be ‘liberally construed’ . . . notwithstanding the general rule that waivers of
sovereign immunity are to be read narrowly in favor of the sovereign.” FDIC v. Meyer, 510 U.S.
471, 480 (1994) (citations omitted). Accordingly,
sue-and-be-sued clauses cannot be limited by implication unless there has been a
clear showing that certain types of suits are not consistent with the statutory or
constitutional scheme, that an implied restriction of the general authority is
necessary to avoid grave interference with the performance of a governmental
function, or that for other reasons it was plainly the purpose of Congress to use
the sue and be sued clause in a narrow sense. Absent such a showing, agencies
authorized to sue and be sued are presumed to have fully waived immunity.
Id. at 480-81 (citations and internal quotation marks omitted). Indeed,“‘not only must we
liberally construe the sue-and-be-sued clause, but also we must presume that the Postal Service’s
liability is the same as that of any other business.” Franchise Tax Bd. of Cal. v. Postal Service,
467 U.S. 512, 520 (1984) (cited in FDIC, 510 U.S. at 481).
Like the FDIC, the USPS “does not attempt to make the ‘clear’ showing of congressional
purpose necessary to overcome the presumption that immunity has been waived” with regard to
the specific claims at issue in this case. FDIC, 510 U.S. at 481. Rather, despite its lengthy
discussion of the doctrine of sovereign immunity, the USPS does not really argue that it is
immune from Thayer-Ballinger’s suit. Instead, it argues that, despite the waiver of sovereign

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immunity, this Court lacks subject matter jurisdiction over this case because Thayer-Ballinger
has failed to “identify a federal law that permits a federal employee to bring suit against her
federal employer under a state statute that regulates the timing and method of wages.” USPS
Reply at 2-3.
Thayer-Ballinger has, in fact, identified a statute that gives this Court jurisdiction over
suits brought against the USPS: 39 U.S.C. § 409(a), which provides that “[e]xcept as otherwise
provided in this title, the United States district courts shall have original but not exclusive
jurisdiction over all actions brought by or against the Postal Service.” Of course, this
jurisdictional grant does not carry with it any substantive rights; the right to assert a particular
cause of action must be found elsewhere. The USPS argues that in order for this Court to have
jurisdiction over a claim brought against it, the substantive basis for the claim must be a federal
statute. The USPS cites no authority for this proposition, however, and neither the sue-or-besued clause nor § 409(a)’s jurisdictional grant are so limited. Accordingly, it appears that this
Court does have subject matter jurisdiction over this case.2

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In so ruling, the Court is not also ruling that the provisions of the Indiana statute
necessarily will be the applicable law in this case. Thayer-Ballinger’s claim is that the USPS has
failed to pay her wages she is owed. Her complaint is, indeed, brought pursuant to a particular
Indiana statute that establishes the duty of employers to pay their employees’ wages in a prompt
manner. This case therefore is analogous to Powers v. United States Postal Service, 671 F.2d
1041 (1982), in which a landlord filed suit against his tenant, the USPS, seeking ejectment
pursuant to an Indiana statute. The Seventh Circuit defined the issue in Powers as whether “state
law or federal common law is to be used to decide a dispute between the United States Postal
Service, as tenant, and a private landlord, concerning the landlord’s right to terminate the lease
for nonpayment of rent.” After a lengthy analysis, the court concluded that it was appropriate to
apply the Indiana statute in that case. As the opinion in Powers makes clear, the issue of
whether state or federal law should be applied in this case is a complex question that the USPS
has not addressed in the instant motion. However, Powers also makes it clear that this Court’s
jurisdiction over Thayer-Ballinger’s claims is not dependent on whether she can point to a
federal statute that provides a substantive basis for her claim, as there clearly was no such
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The USPS next argues that Thayer-Ballinger’s claim has been preempted by the Civil
Service Reform Act (“CSRA”), 5 U.S.C. §§ 7501 et seq. “Federal preemption is an affirmative
defense upon which the defendants bear the burden of proof.” Fifth Third Bank ex re. Trust
Officer v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2005). The USPS has not satisfied that burden
with its briefs in support of the instant motion.
The USPS’s preemption argument is based on the fact that 39 U.S.C. § 1005(a)(1)
expressly provides that Chapter 75 of the CSRA, which sets forth a comprehensive system for
reviewing adverse personnel actions taken against federal employees, see U.S. v. Fausto, 484
U.S. 439 (1988), applies to USPS employees. The problem with this argument is that it is not
readily apparent from the allegations in her complaint that the failure to pay wages alleged by
Thayer-Ballinger constitutes an adverse action that is covered by Chapter 75. The USPS points
to the broad definition of “personnel action” contained in 5 U.S.C. § 2302(a)(2)(A)(ix), which
includes “a decision concerning pay, benefits, or awards.” However, that definition is premised
by the phrase “[f]or purposes of this section” and thus, by its express terms, applies only to 5
U.S.C. § 2302; in any event the term “personnel action” does not appear in Chapter 75. Chapter
75 does apply to “reductions in pay,” but inasmuch as “pay” is defined as “the rate of basic pay
fixed by law or administrative action for the position held by an employee,” it is not at all clear
that Thayer-Ballinger is alleging that her “pay” was “reduced,” as opposed to, for example,

federal statute in Powers and yet the Court noted (without further comment) that Powers had
“based federal jurisdiction on 39 U.S.C. § 409(a), which gives the federal courts, concurrently
with the state courts jurisdiction over suits by or against the Postal Service.” Powers, 671 F.2d
at 1042.
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improperly calculated or withheld as a result of a clerical error.3 The USPS has not shown that
the CSRA preempts all claims by a Postal Service employee against the Postal Service arising
out of her employment relationship, and the Court simply does not have sufficient information
regarding the specific nature of Thayer-Ballinger’s allegations at this time to determine whether
her claim is preempted.
Finally, the USPS argues that the Indiana Wage Payment Statute is not intended to apply
to federal employers because the federal government is not referenced in what the USPS terms
the definition of “employer”4 contained in Ind. Code 22-2-6-1. The USPS fails to recognize that
the “definition” in question is prefaced by the phrase “[f]or purposes of this chapter” and that the
Indiana Wage Payment Statute appears in the preceding chapter; therefore, even if 22-2-6-1
could be read to exclude the USPS from the definition of employer, that definition would not be
relevant to the Indiana Wage Payment Statute. This is especially true in light of the fact that the
Indiana Wage Payment Statute does not use the term “employer” to define who is subject to it;
rather, it expressly applies to ““[e]very person, firm, corporation, limited liability company, or
association, their trustees, lessees, or receivers appointed by any court, doing business in
Indiana.” Ind. Code 22-2-5-3. Ind. Code 1-1-4-5(17), in turn, defines “person” to include
“bodies politic.”
For the reasons set forth above, the Court finds that it has subject matter jurisdiction over

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It is entirely possible that such claims are themselves preempted by some statutory or
regulatory scheme that applies to the USPS, but the USPS does not so argue in the instant
motion.
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The statutory provision in question does not actually define the term employer, but
rather provides that the term “shall also include the state and any political subdivision of the
state.” Ind. Code 22-2-6-1.
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this case and that the USPS has not demonstrated that Thayer-Ballinger’s claims are preempted
by federal law because at this stage in the litigation it is not clear precisely what those claims are.
Accordingly, the USPS’s motion to dismiss is DENIED.
SO ORDERED: 01/26/2012

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by United States Mail to:
Pamela Thayer-Ballinger
2769 SE County Road 18
Lake City, FL 32025
Copies to all counsel of record via electronic notification

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