Opinion
No. 1:03-CV-1634-JDT-TAB.
August 11, 2004
ENTRY ON MOTION TO DISMISS
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This case is brought under Title II of the Family and Medical Leave Act ("FMLA") which grants federal employees an entitlement to periods of leave under certain circumstances. 5 U.S.C. §§ 6381- 6387. The case is before this court on a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or, in the alternative, for summary judgment pursuant to Rule 56.
I. Background
The Plaintiff, Mr. Bruce A. Kallen, filed his Complaint against the United States Department of Defense ("DOD"), Defense Finance and Accounting Services ("DFAS"), for damages and a trial by jury on November 5, 2003. DFAS is a federal government office which is part of the DOD and located in Marion County, Indiana. The Plaintiff was appointed, effective March 28, 1999, as an Accounting Technician at DFAS under the authority of 5 U.S.C. § 2105 and he is currently employed as such. There is no dispute that the Plaintiff is an "employee" of DFAS as defined by 5 U.S.C. § 6381 and is covered by Title II of the FMLA.
The Complaint alleges that DFAS violated the Plaintiff's substantive rights under the FMLA by requesting unnecessary documentation, charging him absent without leave, denying him leave without pay, filing an official reprimand for said absence, coercing and threatening him, and suspending him without pay as retaliation for attempting to exercise his rights under the FMLA. The Plaintiff requests relief in the form of money damages, promotion and transfer, attorney's fees, removal of the reprimand and suspension from his record, leave under the FMLA, and a permanent injunction prohibiting the future violation of FMLA rights.
II. Discussion
The Defendant challenges the Plaintiff's ability to bring this case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Specifically, the Defendant asserts that the federal government is immune from suit by the doctrine of sovereign immunity, absent an explicit waiver thereof, and that the government has not made such waiver. In the alternative, the Defendant asks for summary judgment pursuant to Federal Rule of Civil Procedure 56.
A. Standard of Review
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences therefrom in favor of the non-movant. Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003) (citation omitted). The burden of proof on a 12(b)(1) motion lies on the party asserting jurisdiction and the court is free to weigh the evidence to determine whether jurisdiction is established. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.), cert. denied, 124 S. Ct. 533 (2003).
B. Analysis Subject Matter Jurisdiction
The FMLA grants both private and federal employees an entitlement to periods of leave for certain enumerated circumstances. Title I of the FMLA governs leave for private employees and federal employees not covered by Title II. 29 U.S.C. § 2612(a)(1). Title II grants leave to certain federal employees. 5 U.S.C. § 6382(a)(1). There is no dispute that the Plaintiff is a federal employee under Title II of the FMLA. Titles I and II grant employees equivalent rights regarding leave. However, Title I contains a provision which states that employers will be liable to aggrieved employees for monetary damages and equitable relief for its violation. See 29 U.S.C. § 2617(a)(1). Furthermore, Title I authorizes the Secretary of Labor or the employee to bring a civil action against the employer in federal or state court. See 29 U.S.C. § 2617(a)(2). By contrast, Title II contains no similar provisions. See 5 U.S.C. §§ 6381- 6387. Therefore, Congress has not explicitly provided Title II employees with a cause of action against the federal government to remedy FMLA violations.
"To maintain a viable claim against the United States in federal court, a party must satisfy two requirements . . . the plaintiff not only must identify a statute that confers jurisdiction on the district court but also a federal law that waives the sovereign immunity of the United States to the cause of action." Macklin v. United States, 300 F.3d 814, 819 (7th Cir. 2002). Furthermore, "[i]t is axiomatic that the United States as sovereign cannot be sued without its consent." Id. at 820. Title II of the FMLA contains no such consent. Accordingly, every court to address the issue of whether Title II employees may bring suit against the government for alleged violations of the FMLA has held that the government is protected by its sovereign immunity. Russell v. United States Dep't of Army, 191 F.3d 1016, 1019 (9th Cir. 1999); Mann v. Haigh, 120 F.3d 34, 37 (4th Cir. 1997); Keen v. Brown, 958 F. Supp. 70, 72-73 (D. Conn. 1997).
The Plaintiff argues that in the absence of explicit consent to suit, Title II of the FMLA contains implied consent. In support of this argument the Plaintiff cites Cort v. Ash, 422 U.S. 66 (1975). In Cort the Supreme Court held that a private right of action may be implied. Id. at 78. The Court further held that four factors are relevant in determining whether a private remedy exists. Id. A court should consider whether: the plaintiff is of the class for whose benefit the statute was enacted; there is any indication of legislative intent; it is consistent with the statute's purpose to allow a private right; and the cause of action is traditionally relegated to state law. Id. As the Defendant points out, though not explicitly overruled, Cort has come under much criticism and the four factors are no longer given equal weight. Suter v. Artist M., 503 U.S. 347, 364 (1992) (holding that the primary focus is on legislative intent); Karahalios v. Nat'l Fed'n of Fed. Employees, 489 U.S. 527, 532 (1989) (holding that congressional intent is the "ultimate issue"). Furthermore, Cort did not address the doctrine of sovereign immunity. It involved an implied right of action against a corporation, whereas, here, the defendant is the federal government.
The Seventh Circuit has held that "[g]iven this evolution in thinking about implied rights of action, our inquiry is whether Congress intended an implied right of action . . . in light of the statute's language, structure, and legislative history." Mallett v. Wisconsin Div. of Vocational Rehab., 130 F.3d 1245, 1249 (7th Cir. 1997). In the present case, Title II of the FMLA gives no hint that Congress intended a private right of action for Title II employees.
Quite to the contrary, the language, structure, and legislative history indicate that Congress did not intend to imply a private right of action. Linguistically, Title II contains no explicit reference to a private right. Structurally, the inclusion of a private right of action in Title I and not in Title II implies the absence of an intent to include one in Title II. As the Defendant points out, where Congress includes language in one section of a statute but not in another, it is generally presumed that the omission is intentional. See Russello v. United States, 464 U.S. 16, 23 (1983); Mann, 120 F.3d at 37 (holding that the omission of a provision in Title II of the FMLA similar to that in Title I creating a private right of action is treated as an affirmative congressional decision that federal employees under Title II should not have said right). Historically, a House Report discussing the FMLA contains the following discussion:
Generally, the regulations should be consistent with the regulations issued by the Secretary of Labor pursuant to this Act to the extent that the language of title II conforms to the language of title I and title I does not otherwise conflict with Federal civil service law and its administration. . . . [T]he committee sees no inconsistency in OPM issuing regulations under Title II that differ from those issued by the Secretary of Labor where the effect of OPM's regulations is to better enable Federal employees to benefit from the leave provided by this legislation. The committee believes that the provisions of Title II affecting federal employees can be adequately enforced using existing grievance procedures established by a collective-bargaining agreement or by agency management.
H.R. Rep. No. 103-8(II), 1993 WL 30780, at *24 (1993). Though the Plaintiff attempts to characterize this report as insignificant, his argument is not availing. Even if the legislative history had been silent, the presumption is in favor of the sovereign. Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Because there is no evidence of congressional intent to include an implied waiver of sovereign immunity, the other Cort factors need not be addressed. See Mallet, 130 F.3d at 1249 ("If such inferences of intent are not present, we must conclude that `the essential predicate for implication of a private remedy' does not exist.").
Accordingly, though the Seventh Circuit has not specifically addressed whether a private right of action under Title II of the FMLA exists, the court agrees with the Fourth Circuit's reasoning that:
[n]o unequivocal waiver of immunity exists in Title II, and, consequently, the omission of a provision in Title II similar to that in Title I creating a private right of action is treated as an affirmative congressional decision that the employees covered by Title II of the FMLA should not have a right to judicial review of their FMLA claims through the FMLA. Accordingly, Title II of the FMLA creates neither an express or implied right of action whereby [covered] employees may obtain judicial review of adverse employment decisions.Mann, 120 F.3d at 37; accord Russell, 191 F.3d at 1019. The court similarly concludes that there is no express or implied right of action for employees under Title II of the FMLA. Therefore, the court lacks subject matter jurisdiction to hear this case.
The Administrative Procedures Act
The Plaintiff makes two other claims that must be addressed. He first argues that his claim is authorized by the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, which states:
[a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages . . . shall not be dismissed nor relief therein be denied on the ground that it is against the United States. . . .
The Defendant responds that because this claim was not raised in the initial complaint, it need not be considered. The court disagrees. A plaintiff is not required to plead legal theories in a complaint. See Williams v. Seniff, 342 F.3d 774, 792 (7th Cir. 2003). At a minimum, a plaintiff only needs to give notice that legal relief is sought and that some provable set of facts could justify such relief. See id. Thus, the Plaintiff here can defend against a 12(b)(1) motion on a legal theory that is not explicitly pleaded in the complaint. The court understands the Plaintiff to be arguing not that he is now bringing a new claim under § 702, but that § 702 establishes jurisdiction for his claim under the FMLA. However, this argument is not availing.
Section 702 clearly states that it authorizes an action in federal court seeking " other than money damages." 5 U.S.C. § 702 (emphasis added). Furthermore, the Supreme Court has held that this waiver of sovereign immunity is to be "strictly construed, in terms of its scope, in favor of the sovereign." Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Here it is clear that the Plaintiff is seeking money damages. Consequently, § 702 does not allow for judicial review.
Even if the Plaintiff's claim is viewed as a request for judicial review under the APA, it is preempted by the Civil Service Reform Act ("CSRA"). See Russell v. United States Dep't of Army, 191 F.3d 1016, 1019 (9th Cir. 1999); see also Mann v. Haigh, 120 F.3d 34, 38 (4th Cir. 1997). The CRSA provides a comprehensive system of review for adverse personnel actions against federal employees. Under the CSRA, a suspension of fourteen days or more is subject to review by the Merit Systems Protection Board and subsequent judicial review by the Court of Appeals for the Federal Circuit. 5 U.S.C. §§ 7701, 7703. A suspension of only five days, as in the Plaintiff's case, is not entitled to judicial review. 5 U.S.C. § 7503.
The Supreme Court considered a similar situation in United States v. Fausto, 484 U.S. 439, 455 (1987). In Fausto, though the CSRA did not provide him with administrative or judicial review, a government employee sought judicial review to recover back pay allegedly owed as the result of a suspension. The Court held that:
The CSRA established a comprehensive system for reviewing personnel action taken against federal employees. Its deliberate exclusion of employees in respondent's service category from the provisions establishing administrative and judicial review for personnel action of the sort at issue here prevents respondent from seeking review. . . .Id. Here, the Plaintiff is the same situation as Mr. Fausto. Thus, he, and those in his situation, have no entitlement to judicial review of adverse personnel actions under the CSRA.
Moreover, the Fourth Circuit, applying Fausto, held in Mann that "the CSRA serves to repeal implicitly the APA to the extent that it allowed judicial review of employment decisions. . . ." Mann, 120 F.3d at 38. The court agrees with the Fourth Circuit's reasoning. Thus, the Plaintiff may not bring his FMLA claim under the APA because it is preempted by the CRSA which does not allow for judicial review here.
The Plaintiff responds that he has been left with a right without a remedy. He points out that in Keen v. Brown, 958 F. Supp. 70, 72-73 (D. Conn. 1997) the court recognized that the plaintiff was not entirely without recourse. This is true. However, the Plaintiff had opportunity for administrative review and exhausted three of the four levels of review by filing formal grievances through the union. The forth level of review was available to him and he did not avail himself of it. Here, as in Fausto, the Plaintiff is left with no further recourse under the APA or CSRA, as envisioned by Congress. Furthermore, even if the Plaintiff has no remedy available, "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon v. Univ. of Chicago, 441 U.S. 677, 689 (1979).
The Fourteenth Amendment
The Plaintiff also argues that he is denied procedural due process under the Fourteenth Amendment by not being allowed to bring his case in federal court. Furthermore, he claims that because Title I employees are entitled to judicial review and Title II employees are not, the FMLA violates the Equal Protection Clause of the Fourteenth Amendment. Neither of these assertions establish jurisdiction in the present case. They are insufficient to defeat a 12(b)(1) motion. These Fourteenth Amendment arguments are constitutional challenges to the validity of the FMLA and have not been asserted even in the broadest reading of the Complaint. Accordingly, they require no discussion here. Moreover, the Fourteenth Amendment limits the actions of states and does not apply to the federal government. District of Columbia v. Carter, 409 U.S. 418, 423 (1973). These arguments by the Plaintiff appear to be a last gasp effort to keep this case alive. Such misguided and underdeveloped arguments are insufficient to defeat the government's motion.
III. Conclusion
The court lacks subject matter jurisdiction to hear this case; therefore, the Defendant's motion to dismiss pursuant to Rule 12(b)(1) will be GRANTED.