Shupe et al v. Office of Personnel Management

MOTION to Dismiss for Lack of Jurisdiction

D. Ariz.October 24, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN S. LEONARDO United States Attorney District of Arizona KATHERINE V. FOSS Assistant U.S. Attorney Arizona State Bar No. 029124 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701-5040 Telephone: (520) 620-7300 Fax: (520) 620-7138 e-mail: Katherine.foss@usdoj.gov Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Richard Shupe and Maria Shupe, Plaintiff, vs. U.S. Office of Personnel Management, Defendant. 4:16-CV-107-JAS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendant, by and through its undersigned attorneys, moves to dismiss this case pursuant to Fed. R. Civ. P. 12(b)(1).1 Plaintiffs’ exclusive remedy must be pursued through the Merit Systems Protection Board (“MSPB”) and on appeal, through the Federal Circuit, and therefore should be dismissed for lack of subject matter jurisdiction. This motion is supported by the attached Memorandum of Points and Authorities and all papers of record in the case. MEMORANDUM OF POINTS AND AUTHORITIES I. THIS COURT LACKS SUBJECT MATTER JURISDICTION WHERE PLAINTIFF’S CLAIM IS PREEMPTED BY STATUTORY REMEDIES A. STANDARD OF REVIEW The Court may dismiss an action under Rule 12(b)(1) if the Complaint does not 1 Defendant also notes that Plaintiffs have failed to serve the Attorney General and thus have not properly served the United States, despite having filed numerous other suits before this Court in which they were specifically instructed in how to comply with Fed. R. Civ. P. 4(i). See, e.g., Shupe v. GSA, 4:14-cv-2477-TUC-JGZ, Doc. 22. Case 4:16-cv-00107-JAS Document 16 Filed 10/24/16 Page 1 of 6 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allege facts sufficient to establish subject matter jurisdiction on its face or, even if the Complaint establishes jurisdiction on its face, the evidence does not support a finding of jurisdiction. See Thornhill Publishing Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In a facial attack on jurisdiction, the Court accepts the allegations of the Complaint as true and construes them in the light most favorable to the nonmoving party. See Jacobson v. Katzer, 609 F. Supp. 2d 925, 930 (N.D. Cal. 2009) (citing Fed’n of African Am. Contractors v. Oakland, 96 F.3d 1204, 1207 (9th Cir. 2009)). Because “[f]ederal courts . . . have only that power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto,” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (citation omitted), the Court presumes the matter lies outside its limited jurisdiction, and the burden is on the party asserting jurisdiction to establish that it exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted)). B. SOVEREIGN IMMUNITY AND SUBJECT MATTER JURISDICTION As a sovereign, the United States “is immune from suit unless it has expressly waived such immunity and consented to be sued.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007) (quoting Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985)). A waiver of sovereign immunity must be explicit and “[w]here a suit has not been consented to by the United States, dismissal of the action is required .... [because] the existence of such consent is a prerequisite for jurisdiction.” Id., 492 F.3d at 1088; see also Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (the terms of the government’s consent to be sued define the Court’s jurisdiction); United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). Additionally, “a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign.’” Dunn, 492 F.3d at 1088 (citing Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Thus, an action against the United States must Case 4:16-cv-00107-JAS Document 16 Filed 10/24/16 Page 2 of 6 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be dismissed unless the plaintiff establishes that the action falls within an unequivocal waiver of sovereign immunity. See id. (citing Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986)). An action against an officer of the United States in his or her official capacity or against an agency of the United States is considered an action against the United States. See Balser v. Dep’t of Justice, 327 F.3d 903, 907 (9th Cir. 2003). C. PLAINTIFF’S CLAIM IS PREEMPTED BY THE CSRA Plaintiffs’ claim challenges Maria Shupe’s benefits under the Federal Employees Retirement System (“FERS”). Doc. 10 at 3-5. However, this Court lacks subject matter jurisdiction over a suit for benefits under FERS. Congress has established a comprehensive statutory scheme under which judicial review of a claim arising under FERS, as with other Federal personnel actions, is vested exclusively in the Federal Circuit after administrative appellate review by the MSPB. 5 U.S.C. § 8461(a), (b), and (c) vest the authority to administer FERS and to adjudicate claims thereunder in OPM.2 5 U.S.C. § 8461(a) states, “The Office shall pay all benefits that are payable under subchapters II, IV, V, or VI [of chapter 84 of title 5, i.e., FERS] from the fund.” 5 U.S.C. § 8461(b) and (c) state: (b) The Office shall administer all provisions of this chapter not specifically required to be administered by the Board, the Executive Director, the Secretary of Labor, or any other officer or agency. (c ) The Office shall adjudicate all claims under the provisions of this chapter administered by the Office. Congress also has created a statutory administrative appeal from adverse OPM decisions in civil service retirement matters. 5 U.S.C. § 8461(e)(1) states: Subject to paragraph (2), an administrative action or order affecting the rights or interests of an individual or of the United States under the provisions of this chapter administered by the Office may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board. The statutory scheme enacted by Congress further provides that exclusive judicial review of decisions of the MSPB is exclusively vested in the Federal Circuit, with a limited exception for those cases preempted under Title VII. 5 U.S.C. § 7703(b)(1) states: 2 The CSRS corresponding provisions include 5 U.S.C. § 8347(a), (b), and (d)(1). Case 4:16-cv-00107-JAS Document 16 Filed 10/24/16 Page 3 of 6 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board [MSPB] shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the Petitioner received final notice of the final order or decision of the Board. (emphasis added) A complementary statute, 28 U.S.C. § 1295(a), states, in relevant part, “The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction . . . (9) of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5.” (emphasis added) The Supreme Court has ruled that the statutory scheme created by 5 U.S.C. §§ 8347(a), (b), and (d)(1), 7703(b)(1), and 28 U.S.C. § 1295(a)(9) vests exclusive judicial review of civil service retirement claims in the Federal Circuit following exhaustion of administrative remedies before OPM and the MSPB. See Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985); United States v. Fausto, 484 U.S. 439 (1988). The Civil Service Reform Act creates a “remedial scheme through which federal employees can challenge their supervisors' prohibited personnel practices.” Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir. 2008) (internal citations omitted). If the challenged conduct “falls within the scope of the CSRA's ‘prohibited personnel practices,’ then the CSRA's administrative procedures are [the employee's] only remedy.” Orsay v. U.S. Dept. of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (quoting 5 U.S.C. § 2302). The CSRA's remedial scheme is both exclusive and preemptive, providing “a single system of procedures and remedies, subject to judicial review.” Mangano, 529 F.3d at 1246 (citing Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991)); Fausto, 484 U.S. at 455 (“The CSRA established a comprehensive system for reviewing personnel action taken against federal employees.”). In Lindahl, which involved a claim for medical disability retirement under the precursor program to FERS, CSRS, see 5 U.S.C. § 8337, the Supreme Court stated, “Sections 1295(a)(9) [of title 28] and 7703 (b)(1) [of title 5] together appear to provide for exclusive jurisdiction over MSPB decisions in the Federal Circuit, and do not admit any Case 4:16-cv-00107-JAS Document 16 Filed 10/24/16 Page 4 of 6 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exceptions for disability retirement claims.” 470 U.S. at 792. After a discussion of the legislative history of the Civil Service Reform Act, the Supreme Court in Lindahl noted that where Congress intended an exception from the broad scope of jurisdiction in 5 U.S.C. § 7703(b)(1), it expressly had provided for such exceptions in the statute itself or in its legislative history. The Court concluded, “We believe the inference is strong, given that disability retirement decisions were not included in this enumeration of exceptions, that Congress did not intend for such decisions to fall outside the all-encompassing provisions of section 7703(b)(2)” 470 U.S. at 795. Similarly, at the conclusion of its analysis of the language and legislative history of 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9), the Supreme Court again stated, “Accordingly, we conclude that MSPB decisions concerning retirement disability claims are reviewable in the first instance by the Federal Circuit pursuant to the jurisdictional grants in 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).” 470 U.S. at 799; see also Grossman v. Commissioner of Internal Revenue, 687 F. Supp. 1401 (N.D. Cal. 1987), aff'd, 852 F.2d 1289 (9th Cir. 1988) (because of statutory preemption, “the district court does not have any jurisdiction to review civil service annuity claims.”); Ashgar v. United States, 23 Cl. Ct. 226 (1991) (“This statutory scheme of administrative review by the MSPB and judicial review by the Federal Circuit is the exclusive avenue for judicial review of claims for CSRS benefits denied by OPM.”) As the Ninth Circuit stated, “the comprehensive nature of the procedures and remedies provided by the CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA or not at all.” Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984). Plaintiffs have a potential avenue to address their grievances: it is simply through the MSPB and the Federal Circuit, rather than a federal district court. Accordingly, this case should be dismissed for lack of subject matter jurisdiction. Case 4:16-cv-00107-JAS Document 16 Filed 10/24/16 Page 5 of 6 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 24th day of October, 2016. JOHN S. LEONARDO United States Attorney District of Arizona s/ Katherine V. Foss KATHERINE V. FOSS Assistant U.S. Attorney Copy of the foregoing served electronically or by other means this 24th day of October, 2016, to: Richard and Maria Shupe 3657 S. Double Echo Rd. Tucson, AZ 85735 Plaintiffs Pro Se s/ P. Vavra /Motion to Dismiss Case 4:16-cv-00107-JAS Document 16 Filed 10/24/16 Page 6 of 6