Miles v. Select Energy Services, LLC
Filing
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ORDER DENYING 17 Motion to Dismiss. Signed by Judge David A. Ezra. (aej)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES MILES,
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Plaintiff,
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vs.
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SELECT ENERGY SERVICES, LLC, §
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Defendant.
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NO. 5:15-CV-159-DAE
ORDER DENYING MOTION TO DISMISS
The matter before the Court is Defendant Select Energy Services,
LLC’s (“Select”) Motion to Dismiss. (Dkt. # 17.) On February 29, 2016, the
Court held a hearing on the motion. At the hearing, Keith Lovelace, Esq.,
represented Plaintiff James Miles (“Plaintiff” or “Miles”), and James M. Cleary,
Jr., Esq., represented Select.
After careful consideration of the memorandum in support of the
motion, and in light of the parties’ arguments at the hearing, the Court, for the
reasons that follow, DENIES Select’s Motion to Dismiss (Dkt. # 17.)
BACKGROUND
In May 2014, Plaintiff was hired by Select as a commercial motor
carrier driver for its Kenedy, Texas yard. (Dkt. # 1 at 2.) As a driver for Select,
Plaintiff transported salt water, potassium chlorate, and other fluids related to
fracking and drilling oil wells. (Id.)
According to Plaintiff, in January or February 2013, he began raising
safety concerns at Select’s weekly safety meetings. (Id.) Specifically, Plaintiff
contends that he voiced his concern about Select drivers working more hours than
allowable under law, and that drivers were smoking cigarettes in Select trucks
while transporting combustible materials. (Id.) Plaintiff asserts that he complained
that this was unacceptable conduct that violated Select’s own standards and
policies. (Id.) Plaintiff alleges that, subsequent to his complaints, he began to
experience retaliation from Select for complaining about the unsafe conditions.
(Id. at 3.)
On January 3, 2014, Plaintiff filed a complaint with the Occupational
Safety and Health Administration (“OSHA”), alleging violations of the Surface
Transportation Assistance Act, 49 U.S.C. § 31105 (the “STAA”). (Dkt. # 1-1.)
However, because more than 210 days had passed since the filing of his OSHA
complaint, Plaintiff filed suit in this Court on March 2, 2015. (Dkt. # 1.)
Plaintiff’s suit alleges claims under the STAA, seeking damages for loss of
income, lost wages and benefits, emotional pain, suffering, humiliation, mental
anguish, and loss of enjoyment of life. (Id.)
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On November 9, 2015, Select filed the instant motion to dismiss,
arguing that the Court is without jurisdiction to hear Plaintiff’s damage claims
under the STAA. (Dkt. # 17.) Plaintiff filed a late response on February 12,
2016. 1 (Dkt. # 21.) Select filed a reply on February 18, 2016. (Dkt. # 25.)
APPLICABLE LAW
Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack
of subject-matter jurisdiction as a defense to suit. Federal district courts are courts
of limited jurisdiction, and may only exercise such jurisdiction as is expressly
conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case,
or a cause of action, for lack of subject matter jurisdiction when it lacks the
statutory or constitutional power to adjudicate the case. Home Builders Assn. of
Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden
of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.
denied, 536 U.S. 960 (2002).
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Select’s reply encourages the Court to strike Plaintiff’s response because it was
filed almost four months after the deadline to respond, without any explanation.
(Dkt. # 25 at 1.) Although the Court notes the very late response, the Court’s
analysis and conclusion would be the same even if Plaintiff did not file a response;
therefore, the Court will decline to strike the response.
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ANALYSIS
Select contends that the Court lacks jurisdiction to hear Plaintiff’s
damage claims because the STAA limits the relief that may be granted by a federal
court. (Dkt. # 17 at 4.) Select asserts that the STAA’s language does not authorize
federal courts to award any compensatory damages or attorney’s fees, or any
damages for emotional pain and suffering, as Plaintiff requests. (Id. at 5.) Instead,
Select argues that only the Secretary of Labor (“Secretary”) may award such
damages. (Id. at 4.) Because there is no language conferring such authority on a
federal court, Select contends that Plaintiff’s damage claims under the STAA must
be dismissed.
The STAA mandates that an employee may not be discharged,
disciplined or discriminated against because, among other things, the employee
“has filed a complaint . . . related to a violation of a commercial motor vehicle
safety or security regulation.” 49 U.S.C. § 31105(a)(1)(A). An employee alleging
such discharge, discipline or discrimination “may file a complaint with the
Secretary of Labor not later than 180 days after the alleged violation occurred.” Id.
§ 31105(b)(1). The Secretary of Labor must investigate any such complaint and
issue a preliminary order. See id. § 31105(b)(2)(A). The parties then have the
opportunity to file objections to the Secretary’s preliminary order and to request a
hearing on the record. See id. § 31105(b)(2)(B). After a hearing—or, where no
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objections are filed—the Secretary of Labor shall issue a final order. See id.
§ 31105(b)(2)(C). If the Secretary of Labor fails to issue a final decision within
210 days of the filing of the complaint, the employee may bring a lawsuit in the
appropriate federal district court. See id. § 31105(c).
It is undisputed in this case that the Secretary failed to issue a final
decision within 210 days. (See Dkt. # 17 at 2.) As stated above, the STAA
provides, in relevant part:
De novo review. With respect to a complaint under [the STAA], if the
Secretary of Labor has not issued a final decision within 210 days
after the filing of the complaint and if the delay is not due to the bad
faith of the employee, the employee may bring an original action at
law or equity for de novo review in the appropriate district court of
the United States, which shall have jurisdiction over such an action
without regard to the amount in controversy, and which action shall,
at the request of either party to such action, be tried by the court with
a jury.
49 U.S.C. § 31105(c). Because the Secretary failed to issue a final decision within
210 days, Plaintiff filed his lawsuit in this Court. (Dkt. # 1.)
Select, in moving to dismiss, takes issue with the statute’s
language, arguing that because it does not specifically state that the Court may
award monetary damages upon review of Plaintiff’s STAA claims, then Plaintiff’s
damage claims are precluded from this Court’s review. (Dkt. # 17 at 5.) In
support of its contention, Select cites portions of other whistleblower protection
statutes which specifically authorize the type of relief that Plaintiff requests. (Id.)
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For instance, the Sarbanes-Oxley Act states that a complainant may file a lawsuit
in federal district court if the Secretary has not issued a final decision within 180
days, and that the district court shall have jurisdiction over the case, and the
complainant “shall be entitled to all relief necessary to make the employee whole,”
including “the amount of back pay, with interest,” and “compensation for any
special damages sustained as a result of the discrimination, including litigation
costs, expert witness fees, and reasonable attorney fees.” 18 U.S.C. § 1514A(b)(c). Select cites two more whistleblower statutes, the Safe Containers for
International Cargo Act, 46 U.S.C. § 80507(c), and the Railway Safety Act, 49
U.S.C. § 2109(d)(3), (e)(2), which contain similar language allowing a federal
district court to award relief, including back pay and compensatory damages, as
well as attorney’s fees and other costs. (Dkt. # 17 at 5–6.) In citing these Acts,
Select argues that because the STAA “is conspicuously silent, unlike similar
whistleblower statutes, this Court lacks jurisdiction to award the damages sought
by Plaintiff.” (Dkt. # 17 at 6.)
Select also cites a Fifth Circuit case wherein the Court considered
whether an amended provision in OSHA authorized the Secretary to seek
injunctive relief in federal court to compel an inspection. Marshall v. Gibsons
Prods., Inc. v. Plano, 584 F.2d 668, 670 (5th Cir. 1978). The Fifth Circuit held that
neither the plain language of the provision nor its legislative history authorized the
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injunctive relief because it would circumvent the purpose of the statute, which was
intended to allow for surprise inspections, among others. Id. at 673. In making
this finding, the Court stated “[o]bviously, any element of surprise is lost by the
time the Secretary obtains an injunction.” Id.
The Fifth Circuit’s decision in Marshall is distinguishable from the
instant case. Defendant has not presented any evidence that either the plain
language or the legislative intent in the STAA was to preserve any element of
surprise. Instead, the plain language of the statute indicates that the Court clearly
has the jurisdiction under the SFAA to “bring an original action at law or equity for
de novo review” and the Court has jurisdiction “without regard to the amount in
controversy.” 49 U.S.C. § 31105(c); see Chevron, U.S.A., Inc. v. Nat. Res.
Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (“If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”). Based on this, any
request for monetary damages in “an original action” brought under the STAA is
not specifically limited by the statute’s plain language.2
2
Select could easily argue the reverse—the converse argument is that the statute
does not specifically state that a plaintiff may not bring a claim for monetary
damages under the STAA, and that therefore monetary damages are within the
Court’s jurisdiction because the statute does not forbid it.
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Still, Select argues in its reply that the preceding section of the STAA
specifically includes language allowing the Secretary to order a person who
violates the STAA to “pay compensatory damages, including backpay with interest
and compensation for any special damages sustained as a result of the
discrimination, including litigation costs, expert witness fees, and reasonable
attorney fees.” 49 U.S.C. § 31105(b)(3)A). Select contends that this specific
language in the immediately preceding subsection indicates that Congress was
deliberately silent on the jurisdictional authority of federal courts to award
monetary damages. (Dkt. # 25 at 2.) The Court does not agree with this
contention. The statute’s language in the sub-section “De novo review,” allows an
employee to bring “an original action at law or equity”; this language plainly gives
federal courts the authority to grant Plaintiff’s requested remedies, including
monetary relief. See 49 U.S.C. § 31105(c).
Accordingly, the Court finds Select’s interpretation of the STAA too
narrow and will not dismiss Plaintiff’s claims for monetary damages.
CONCLUSION
Based on the foregoing, the Court DENIES Select’s Motion to
Dismiss (Dkt. # 17).
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IT IS SO ORDERED.
DATED: San Antonio, Texas, March 1, 2016.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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