Fedor v. Napolitano

Filing 10

Order granting Defendant's motion to dismiss (Doc. # 7 ). All claims against defendant are dismissed. Judge John R. Adams on 3/31/15. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES TODD FEDOR,

) CASE NO. 5:13-CV-2468
)
)
)
) JUDGE JOHN R. ADAMS
)
)
)
)
) ORDER
)

Plaintiff,
v.
JANET NAPOLITANO, Secretary, Dept. of
Homeland Security
Defendant.

This matter is before the court on Defendant Janet Napolitano’s1 Motion to Dismiss for
Lack of Subject-Matter Jurisdiction filed May 12, 2014. Doc. 7.

Plaintiff’s response to

Defendant Napolitano’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction was due on
or before June 11, 2014. Plaintiff has not responded to Defendant Napolitano’s motion.
For the following reasons the Court finds Defendant Napolitano’s brief in support of her
motion to be well-taken. Because this Court lacks subject-matter jurisdiction, Defendant’s
Complaint is hereby DISMISSED.
Plaintiff, James Fedor (“Plaintiff”), a former Supervisory Transportation Security Officer
with the Transportation Security Administration (TSA), stationed in Pittsburgh, Pennsylvania,
brought this action alleging hostile work environment and retaliation due to his decision to report
1

The Court acknowledges that the current Secretary of the Department of Homeland Security, Jeh Johnson, is the
proper party by operation of law.

illegal gambling by TSA employees. (Doc. 1.) Although the duration of Plaintiff’s employment
by the TSA and manner in which it ended are unclear from the Complaint, Plaintiff describes the
reason does not state in his complaint how or when his employment in Pittsburgh ended,
according to Defendant he resigned.

(Doc. 7.)

Although Plaintiff does not identify a

jurisdictional statute or identify the legal basis of his claims, he describes his cause of action as
“[h]ostile work environment and reprisal due to whistleblower actions.” (Doc. 1.) Plaintiff’s
choice of language suggests a violation of the Whistleblower Protection Act of 1989 (“WPA”), 5
U.S.C. § 2302(b)(8).2 Similarly absent from Plaintiff’s Complaint are the dates and details
necessary to support his allegation that he reported observing instances of illegal gambling by
Transportation Security Officers during work hours and was instructed to ignore the incidents or
resign before he was terminated rather than continue to draw attention to the gambling. (Doc.1.)
Plaintiff’s general statements allege he suffered a hostile work environment resulting from the
presence of illegal gambling, work reassignments, and a belief that he was “constantly under
surveillance.” (Doc. 1.) Plaintiff has not filed a response to Defendant’s timely Motion to
Dismiss for lack of subject-matter jurisdiction.

2
  (b) Any employee who has authority to take, direct others to take, recommend, or approve any

personnel action, shall not, with respect to such authority - . . .
(8) take or fail to take, a personnel action with respect to any employee or applicant for
employment because of –
(A) any disclosure of information by an employee or applicant which the employee reasonably
believes evidences(i) any violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety, if such disclosure is not specifically prohibited by law
and if such information is not specifically required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign affairs . . .  
2 

Federal courts are courts of limited jurisdiction. Norton v. Larney, 266 U.S. 511, 515
(1925). When jurisdiction is challenged, the plaintiff bears the burden to prove subject-matter
jurisdiction exists. Moir v. Greater Cleveland Reg’l Trasit Auth., 895 F.2d 266, 269 (6th Cir.
1990). Because the subject matter of Plaintiff’s Complaint arise out of his employment with the
Department of Homeland Security, the protections and procedures provided by 5 U.S.C. §
2302(b)(8) apply only to action taken after the November 27, 2012 effective date of section 1093
of the Whistleblower Protection Enhancement Act of 2012 (WPEA).

Prior to that time

whistleblower activity by an employee of the Transportation Security Administration was
exempt from the WPA and governed by Administration specific procedures in compliance with
the Civil Service Reform Act of 1978 (CSRA); Spruill v. Merit Systems Protection Bd., 978 F.2d
679 (F. Cir. 1992). TSA Management Directive 1100.75-5, Doc. 7, Exhibit 1, TSA HRM Letter
No.1800-01. Regardless of whether Plaintiff was entitled to the protections of the WPA, the
whistleblower provisions of the CSRA, or an alternate TSA standard, any challenge Plaintiff
wished to bring as a result of adverse personnel action would at some stage have been subject to
review by the Merit Systems Protection Board, under the CSRA. Pursuant to 5 USC 7703,
judicial review of the decisions of that board is limited to the United States Court of Appeal for
the Federal Circuit/or a Circuit Court of Competent Jurisdiction.
Plaintiff has not provided dates for the events he describes, identified what he believes to
be governing law, or opposed Defendant’s description of the applicable law and procedure. For
these reasons the Court concludes from the material in the record that regardless of whether
Plaintiff’s claims were properly subject to the pre-WPEA administrative framework or the post-

3

 Section 109 is titled “Prohibited Personnel Practices  Affecting the Transportation Security Administration.” 

3 

WPEA appeal procedure, this action is barred for lack of subject matter jurisdiction due to
Plaintiff’s failure to exhaust existing administrative remedies.
Defendant Napolitano’s motion to dismiss is GRANTED and all claims against
Defendant Thomas Davis are, hereby, DISMISSED.
IT IS SO ORDERED.
Dated: March 31, 2015

/s/ John R. Adams_______________
JOHN R. ADAMS
UNITED STATES DISTRICT COURT JUDGE
NORTHERN DISTRICT OF OHIO 

4