Opinion
3:23-cv-01611-YY
11-18-2024
DALE BORING, Plaintiff, v. KILOLO KIJAKAZI, acting Commissioner of the United States Social Security Administration, in her official capacity; UNITED STATES SOCIAL SECURITY ADMINISTRATION; GAIL ENNIS, Inspector General of the United States Social Security Administration, in her official and personal capacity; DONALD JEFFERSON, Assistant Inspector General for Investigations, Social Security Administration Office of the Inspector General, in his official and personal capacity; MICHELLE MURRAY, Chief Counsel of the Social Security Administration Office of the Inspector General, in her official and personal capacity; AURELIA MOORE, Lead Counsel of the Social Security Administration Office of the Inspector General, in her official and personal capacity, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
In this action, pro se plaintiff Dale Boring brings a single claim for intentional infliction of emotional distress (“IIED”) stemming from his employment as a special agent with the Social Security Administration Office of the Inspector General (“SSA-OIG”). Compl. 16, ECF 1. Defendants are the United States Social Security Administration, its former Acting Commissioner, and four of its employees. Id. ¶ 2. Defendants have filed a motion to dismiss plaintiff's claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), citing numerous grounds including preemption by the Civil Service Reform Act of 1978 (“CSRA”). Mot. Dismiss 3-4, ECF 27. Because plaintiff's claim is preempted by the CSRA, this court lacks subject matter jurisdiction over this case and it should be dismissed with prejudice.
I. Rule 12(b)(1) and Subject Matter Jurisdiction
Rule 12(b)(1) allows for motions to dismiss for lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 257 (1994) (citation and internal quotation marks omitted). “Accordingly, ‘the district courts may not exercise jurisdiction absent a statutory basis.' ” Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435, 437 (2019) (quoting Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552 (2005)). “The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States' and is ‘inflexible and without exception.' ” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L.M. R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
In challenging subject matter jurisdiction, the defendant may make a facial or factual attack. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Facial attacks challenge the sufficiency of the complaint on its face, whereas factual attacks dispute the truth of allegations that “by themselves, would otherwise invoke federal jurisdiction.” Id. For facial challenges, the court resolves the issue “as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The court “confin[es] the inquiry to allegations in the complaint.” Savage v. Glendale Union HighSch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). “Because Plaintiff is proceeding pro se, the court construes his pleadings liberally and affords him the benefit of any doubt.” Brito v. Jacquez, No. 3:22-CV-00138-IM, 2023 WL 3304312, at *1 (D. Or. May 8, 2023).
II. CSRA Preemption
Defendants raise a facial challenge to the court's subject matter jurisdiction, and contend that because the alleged conduct giving rise to plaintiff's claim falls within the scope of the CSRA, the administrative procedures set forth in the CSRA are his only available remedy. Mot. Dismiss 7, ECF 27.
A. Relevant Law Regarding CSRA
The CSRA “established a comprehensive system for reviewing personnel action taken against federal employees.” Crowe v. Wormuth, 74 F.4th 1011, 1022 (9th Cir. 2023) (quoting Elgin v. Dep't of Treasury, 567 U.S. 1, 5 (2012)). “The CSRA 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) (simplified); see 5 U.S.C. § 2302 (describing prohibited personnel practices). “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.” Id. (simplified).
Congress's purpose in creating the CSRA “was to channel grievances and disputes arising out of government employment into a single system of administrative procedures and remedies, subject to judicial review.” Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991). The Ninth Circuit has explained that the CSRA remedial scheme is exclusive and preemptive because otherwise it would defeat Congress's purpose of creating a “single system of administrative procedures and remedies.” Rivera, 924 F.2d at 951; see Saul v. U.S., 928 F.2d 829, 843 (9th Cir. 1991) (describing Congress's failure to mention state tort remedies in the CSRA as “glaringly significant” and concluding that “Congress ignored these remedies because it left no room for them to operate”). In fact, “[e]ven where the CSRA provide[s] [the plaintiff] no remedy, preemption of his work-related tort claims is necessary to fulfill congressional intent.” Saul, 928 F.2d at 843.
The CSRA's “statutory framework provides graduated procedural protections depending on an action's severity.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012). “If (but only if) the action is particularly serious-involving, for example, a removal from employment or a reduction in grade or pay-the affected employee has a right to appeal the agency's decision to the [Merit Systems Protection Board (“MSPB” or “Board”)], an independent adjudicator of federal employment disputes.” Id.; see 5 U.S.C. §§ 1204, 7512, 7513, 7701. “The Board may hear any case appealed to it or may refer the case to an administrative law judge[.]” 5 U.S.C. § 7701(b)(1). The employee must exhaust all issues in front of an administrative judge before the MSPB will consider them. Crowe, 74 F.4th at 1034 (citing 5 C.F.R. § 1201.59). “[T]he MSPB's decision can be appealed, but only to the Federal Circuit.” Id. at 1023; see 5 U.S.C. § 7703(b)(1).
On the other hand, “[a] federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in § 7702(a)(1) should seek judicial review in district court not in the Federal Circuit ” Kloeckner 568 U S 56 Plaintiff asserts no such claim.
Section 2302(a) of the CSRA defines a “prohibited personnel practice” as any “action described in” section 2302(b). 5 U.S.C. § 2302(a). Section 2302(b) describes numerous personnel actions, including violations of laws, rules, and regulations relating to merit system principles for federal personnel management. 5 U.S.C. § 2302(b)(12); see also 5 U.S.C. § 2301 (describing merit system principles). Section 2302(a)(2)(A) also defines “personnel action” “comprehensively” to include “any appointment, promotion, disciplinary or corrective action, detail, transfer, reassignment, reinstatement, restoration, reemployment, performance evaluation, pay or benefits decision, mandatory psychiatric examination, or any other significant change in duties, responsibilities, or working conditions.” Mangano, 529 F.3d at 1247 (citing the list of personnel actions set forth in section 2302(a)(2)(A)). “The definition of ‘personnel action' is, necessarily, broad.” Id. While there are limits as to what qualifies as a personnel action, they “are well outside anything that could reasonably be described as a ‘personnel action.' ” Id. (citing sexual assault and aiming a loaded weapon as conduct that was found to be outside the definition of a personnel action under the CSRA).
These standards include that “[a]ll employees should maintain high standard of integrity, conduct, and concern for the public interest” and “employees should be separated who cannot or will not improve their performance to meet required standards.” 5 U.S.C. § 2301(4), (6).
B. Alleged Conduct Constitutes Personnel Action
The allegations underlying plaintiff's claim for IIED revolve around his employment as a special agent with the SSA-OIG. In 2018, the agency determined that plaintiff had conducted hundreds of unauthorized inquiries into social security records and, as a result, removed him from the position of special agent effective July 23, 2021. Req. Judicial Not., Ex. A, ECF 29. Plaintiff appealed his removal, and an administrative judge mitigated his removal to a 14-day suspension. Id. The agency filed a petition for review, and the MSPB reversed the administrative judge's decision and sustained the agency's removal action. Id. at 11. Plaintiff appealed the MSPB's decision to the Federal Circuit court of Appeals, and his appeal was dismissed for failure to prosecute on November 14, 2024. Boring v. Social Security Administration, Fed. Cir. Case No. 24-1983.
Pursuant to defendants' request, this court takes judicial notice of the final decision by the MSPB. The court may take judicial notice of MSPB decisions. Watters v. Mueller, 2012 WL 3257525, *1 n.1 (N.D. Cal. 2012) (taking judicial notice of MSPB order in denying plaintiff's claim for lack of jurisdiction); FED. R. EVID. 201. The final order is referenced in plaintiff's complaint and its authenticity is not in dispute. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (holding that, on a motion to dismiss, the court may consider materials incorporated into the complaint, recognizing that the doctrine of incorporation by reference has been extended to consider documents “where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document's authenticity is not in question and there are no disputed issues as to the document's relevance”) (citations omitted).
The MSPB found that plaintiff “not only has blatant disregard for OIG policies but will also continue to violate policies that he believes are ‘unworkable,' ” and that his “refusal to operate within the confines of OIG's policies is antithetical to his position as a law enforcement officer as he is tasked with upholding and enforcing the rule of law regardless of his opinion of the law.” Req. Judicial Notice, Ex. A at 8, ECF 29.
Plaintiff's allegations implicate several of the personnel actions set forth in section 2302(a)(2)(A), including “reassignment,” “change in duties, responsibilities, or working conditions,” and “disciplinary or corrective action.” Plaintiff also enumerates five categories of conduct by defendants that he claims caused him “emotional pain and distress”:
a. Attempting to cover up the incompetence and bias in their own investigations and determinations related to Plaintiff between January 7, 2019 and November 2, 2023;
b. Engaging in a nearly five-year campaign to orchestrate a disciplinary action against Plaintiff that they knew, or had every reason to know, was based on biased and flawed investigative reports;
c. Unreasonably delaying the disciplinary action against Plaintiff for no legitimate purpose other than to protect those involved in the persecution of the Plaintiff and to inconvenience him further;
d. Seeking to discipline and terminate Plaintiff for violation of policies they knew, or had every reason to know were flawed; and
e. Failing to behave with a level of care that someone of ordinary prudence would have exercised under the same circumstances in their investigation of Plaintiff's actions.Compl. 16, ECF 1.
Plaintiff's own words plainly put defendants' conduct within the scope of the CSRA. Plaintiff identifies the source of his emotional distress as the “disciplinary action” defendants took against him, and a “disciplinary or corrective action” falls within the definition of personnel action under the CSRA. 5 U.S.C. § 2302(a)(2)(A)(iii). Moreover, because the definition of personnel action is broad, courts have found that the CSRA covers work-related employer investigations that give rise to a personnel action. See Gartner v. United States, No. 6:16-CV-01680-JR, 2017 WL 658855, at *4 (D. Or. Feb. 15, 2017), report and recommendation adopted, No. 6:16-CV-01680-JR, 2017 WL 1731693 (D. Or. May 1, 2017) (finding that an investigation “qualifies as a ‘personnel action' ” where it negatively impacts working conditions); Agbaosi v. United States, No. CV 06-1246 SVW (SSX), 2006 WL 8449119, at *3 (C.D. Cal. Aug. 16, 2006) (rejecting the argument that an investigation is not a “personnel action” because the plaintiff alleged that the investigation “directly caused” the denial of promotion, which is a “personnel action” listed under section 2302(a)(2)(A)); Guzman v. United States, No. CV1405596BRORZX, 2015 WL 13650016, at *5 (C.D. Cal. Mar. 18, 2015) (finding that allegedly abusive and retaliatory investigations that resulted in the plaintiff's removal from a leadership position and being placed on administrative leave “qualify as a ‘disciplinary or corrective action' under the broad definition adopted by the Ninth Circuit”). Because defendants' actions underlying plaintiff's IIED claim are defined as prohibited personnel practices under the CSRA, his claim is preempted.
This reasoning is firmly rooted in, and controlled by, Ninth Circuit case law. In Mangano, the plaintiff claimed he suffered IIED “as the result of various actions allegedly taken in retaliation for his whistleblowing activities.” 529 F.3d at 1247. The Ninth Circuit found the plaintiff's “claim that he was unfairly terminated falls squarely within the definition of a personnel action as a ‘significant change in duties, responsibilities or working conditions' under the CSRA,” and was preempted. Id. at 1248; see also Saul, 928 F.2d at 842-43 (finding the plaintiff's state tort claims, including IIED, “must be preempted to prevent them from conflicting with the remedial system that Congress prescribed for federal employees”).
Cases in this district have followed suit. The decision in Tocci v. Napolitano applied similar reasoning to conclude that the plaintiff's IIED claim against the Secretary of the Department of Homeland Security was preempted. 791 F.Supp.2d 994 (D. Or. 2011). The plaintiff alleged that he was treated differently because of his age, which was “manifested by a pattern of unspecified discriminatory conduct, statements, and incidents” that ultimately “culminat[ed] in his discharge based on a pretext of wrongful conduct.” Id. at 997. The court determined that the claim was preempted by the CSRA because the conduct that formed the basis of the claim fell within the definition of a personnel action. Id. at 998. The court observed that the definition of personnel actions in section 2302(a)(2)(A) included a “significant change in duties, responsibilities or working conditions,” and an unfair termination “falls squarely within” that definition. Id. at 997-98 (citing Mangano, 529 F.3d at 1247).
Also, in Gartner v. United States, the court held that the plaintiff's claims for negligence and IIED under the Federal Tort Claims Act were subject to CSRA preemption. Defendants' investigation, reprimand, and reassignment of duties constituted personnel actions under section 2302(a)(2)(A), which includes “disciplinary or corrective action,” a “reassignment,” “a decision concerning pay, benefits, or awards,” or “any significant change in duties, responsibilities, or working conditions.” 2017 WL 658855 at *4; see also Dallaserra v. United States Prob., No. CV 22-139-BLG-JVS, 2023 WL 4623860, at *3 (D. Mont. July 19, 2023) (dismissing the plaintiff's claims for negligent and intentional infliction of emotional distress against her former employer, the United States Probation and Pretrial Services for the United States District Court for the District of Montana, and another employee because of CSRA preemption).
Because the challenged conduct underlying plaintiff's IIED claim falls within the scope of the CSRA's prohibited personnel practices, plaintiff's claim is preempted. The court lacks subject matter jurisdiction and it is unnecessary to address the other arguments raised by defendants.
“Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert his claims in a competent court.” Frigard v.United States, 862 F.2d 201, 204 (9th Cir. 1988). However, because the CSRA provides plaintiff's exclusive remedy and plaintiff will not be able to cure deficiencies through amendment or refiling, dismissal with prejudice is appropriate. See Smith v. United States, No. 2:13-CV-1936 JCM PAL, 2014 WL 4294966, at *1 (D. Nev. Aug. 29, 2014) (noting, additionally, that dismissal with prejudice does not “preclude plaintiff from pursuing his claims under the CSRA”).
Plaintiff asserts that he has “filed for Judicial Review of the MSPB Final Decision with the U.S. Court of Appeals for the Federal Circuit” and requests that the case be dismissed without prejudice because the two cases cannot go forward concurrently. Resp. 2, ECF 33. Plaintiff, however, admits that the two actions are not the same. In his words, “[t]his case is not a request for review of the MSPB Final Decision, which was issued after this case was filed. It is a civil lawsuit regarding the tortious actions of the named Defendants.” Id. Moreover, as noted, plaintiff's appeal in the Federal Circuit has been dismissed.
RECOMMENDATIONS
This case should be dismissed with prejudice for lack of subject matter jurisdiction.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, December 06, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.