Opinion
03 C 3645
November 26, 2003
MEMORANDUM OPINION AND ORDER
Terri Rogers has sued the U.S. government because Geraldine Johnson in her capacity as her supervisor at the U.S. Postal Service allegedly withdrew Rogers' work hours from the time computer system. The U.S. government has moved to dismiss pursuant to Fed.R.Civ.P. ("Rule") 12(b)(1) and 12(b)(6). For the reasons provided in this Memorandum Opinion and Order, the Court grants the motion.
FACTS
Rogers in her one-paragraph complaint alleges that her supervisor at the U.S. Postal Service "withdrew [her] work ours [sic] from the time computer system on April 19, 2003." (Compl.) As a result, Rogers "was forced to wait to try and retrieve [her] time card." ( Id.) Rogers also alleges her supervisor verbally abused her and prevented her from finishing her tour at the Postal Service and that this conduct occurred on two previous occasions. ( Id.) Rogers filed suit in state court on April 28, 2003 for "pain, damages and [her] salary." ( Id.)
The government removed the case to federal court on May 28, 2003. At the time the government filed its notice of removal, it also filed an affidavit that Rogers' supervisor was of federal employee status and was acting within the scope of her employment, and accordingly, the United States was substituted as the defendant pursuant to 28 U.S.C. § 2679(d)(1).
DISCUSSION
Applying an overabundance of caution, this Court concludes that the government's motion to dismiss should be granted for the following reasons. First, the exhaustion of administrative remedies is ajurisdictional requirement under the Civil Service Reform Act ("CSRA") and plaintiff has not alleged or argued that she has exhausted such remedies. See 5 U.S.C. § 2301 et seq. Second, the Court lacks jurisdiction because plaintiffs claim for damages falls under the Federal Employees Compensation Act ("FECA"), and FECA precludes this Court's jurisdiction. See 5 U.S.C. § 8102. Third, to the extent that plaintiff is attempting to allege a claim for breach of the collective bargaining agreement, the Court finds that plaintiff fails to state a claim. Because the Court dismisses the complaint based on these grounds, it need not address the other arguments raised in support of the motion to dismiss.
I. Motion to Dismiss Pursuant to Rule 12(b)(1)
A Rule 12(b)(1) motion to dismiss requires a court to dismiss any action for which it lacks subject matter jurisdiction. FED. R. Civ. P. 12(b)(1). Rule 12(b)(1) motions are based on either facial or factual attacks on jurisdiction. Villasenor v. Indus. Wire Cable, Inc., 929 F. Supp. 310, 311 (N.D. 111. 1996). If the defendant factually attacks the plaintiffs assertion of subject matter jurisdiction, the court may look beyond the jurisdictional allegations in the complaint and "view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993); see also Barnhart v. United States, 884 F.2d 295, 296 (7th Cir. 1989). To withstand defendants' Rule 12(b)(1) motion, the plaintiff must competently prove by a preponderance of the evidence that subject matter jurisdiction exists. NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995); see also McNutt v. Gen. Motors Acceptance Corp. of lnd., 298 U.S. 178, 189 (1936); Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1993).
First, this action is barred by the exhaustion of administrative remedies requirement of the CSRA. The CSRA provides a "comprehensive framework for handling the complaints of civil service employees faced with adverse personnel decisions." Ayrault v. Pena, 60 F.3d 346, 347 (7th Cir. 1995); Steele v. United States, 19 F.3d 531, 533 (10th Cir. 1994) (noting that CSRA preempts federal and state court actions of activities prohibited by CSRA, including state common law actions for intentional infliction of emotional distress). Part of this comprehensive scheme involves the legislature's intent for "one agency . . . and one court" to possess the "primary responsibility for interpreting the CSRA's provisions." Ayrault, 60 F.3d at 348. The Merit Systems Protection Board ("MSPB") and the Federal Circuit are solely responsible for interpreting the CSRA. Id. Thus an employee who "wishes to complain of an adverse personnel decision must first appeal to the MSPB." Id. Pursuant to 39 U.S.C. § 1005, the CSRA applies to postal employees. "Under the CSRA, exhaustion of administrative remedies is a jurisdictional prerequisite to suit." Weaver v. U.S. Info. Agency, 87 F.3d 1423, 1433 (D.C. Cir. 1996) (citing Steadman v. Governor, U.S. Soldiers' Airmen's Home, 918 F.2d 963, 967 (D.C. Cir. 1990); United States v. Fausto, 484 U.S. 439, 454 (1988) (holding that CSRA precluded judicial review of claim under Tucker Act based on Back Pay Act)).
Additionally, the CSRA requires a grievance procedure be included in "any collective bargaining agreement covering federal employees." Saul v. United States, 928 F.2d 829, 833 (9th Cir. 1991). If the CSRA provides a fully effective remedy, then the plaintiff is required to exhaust administrative claims. Martin v. U.S. Envtl. Prot. Agency, 271 F. Supp.2d 38, 44 (D.D.C. 2002) (noting potential exception in "unusual" case where a constitutional claim raises issues "totally unrelated to the CSRA procedures").
Here, plaintiff has failed to allege or even argue in response to the motion to dismiss that she has made any attempt to exhaust any administrative remedies or to begin the administrative appeals process. Plaintiff has not alleged that the grievance procedure in the postal workers' collective bargaining agreement is inadequate. Similarly, the plaintiff has not alleged that her claim involves a constitutional issue which is "totally unrelated to the CSRA procedures." See Martin, 271 F. Supp.2d at 44. Therefore, this Court lacks jurisdiction due to the administrative remedy exhaustion requirement of the CSRA.
Second, FECA deprives this Court of jurisdiction to hear plaintiffs claims to the extent that she is seeking compensation for injuries resulting from her employment. A government employee's "exclusive avenue of redress against the Government" for "work-related injuries" is the FECA. Ezekiel v. Michel, 66 F.3d 894, 898 (7th Cir. 1995). FECA liability "supplants all other liability" to an injured federal employee. Id. With the possible exception of some constitutional challenges, the district courts lack jurisdiction when such a claim is covered under FECA. Id. at 898-99. The Secretary of Labor must decide whether FECA applies. Tippetts v. United States, 308 F.3d 1091, 1094 (10th Cir. 2002). While some questions remain regarding the extent of FECA's scope regarding emotional injuries, the Secretary of Labor has previously stated that FECA's scope includes emotional injuries. McDaniel v. United States, 970 F.2d 194, 197 (6th Cir. 1992) (affirming district court's dismissal of postal worker's emotional distress claim against her supervisor because of FECA's coverage of claim); Trammel v. Brown, No. 94 C 149, 1995 WL 708666, at *3-4 (N.D. 111. Nov. 30, 1995).
Thus, to the extent plaintiff raises claims against the U.S. Postal Service and FECA applies, the Secretary of Labor possesses the power to "administer . . .and decide all questions arising under" FECA. Ezekiel at 898. Here, plaintiff seeks damages for "pain" for actions taken against her by her supervisor during work hours. ( See Compl.) Additionally, plaintiff fails to raise any constitutional challenges, a potential exception to FECA, and no constitutional challenges can be reasonably inferred from the allegations in the complaint. Therefore, to the extent that plaintiff seeks damages against the U.S. Postal Service for work-related injuries under FECA, the Court lacks jurisdiction to adjudicate such a claim.
II. Motion to Dismiss Pursuant to Rule 12(b)(6)
To the extent that plaintiff is attempting to state a claim for breach of the collective bargaining agreement, which is far from clear from the allegations of her complaint, defendant moves to dismiss plaintiffs complaint under Rule 12(b)(6) for failure to state a claim. A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). When ruling on a motion to dismiss, "a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff." long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999).
To withstand a Rule 12(b)(6) motion to dismiss with regard to allegations of a breach of a collective bargaining agreement under 39 U.S.C. § 1208(b), which applies to postal labor claims, a plaintiff must have at least attempted to exhaust contractual remedies established by the collective bargaining agreement prior to seeking judicial enforcement of her rights under the contract. See Roman v. U.S. Postal Serv., 821 F.2d 382, 384 (7th Cir. 1987); D'Amato v. Wis. Gas Co., 760 F.2d 1474, 1488-89 (7th Cir. 1985) (affirming dismissal pursuant to Rule 12(b)(6) claim for breach of collective bargaining agreement for failure to exhaust contractual remedies).
As stated above, plaintiff has not alleged or argued that she has attempted to exhaust her contractual remedies under the collective bargaining agreement. Accordingly, to the extent that she is trying to raise a claim for breach of the collective bargaining agreement, the Court grants the government's motion to dismiss for failure to state a claim.
CONCLUSION
For the reasons provided herein, the Court grants the government's motion to dismiss for want of jurisdiction, and in the alternative, for failure to state a claim [doc. no. 3-1]. This case is hereby terminated.SO ORDERED