Anderson v. Am. Fed'n of Gov't Employees

• Decision Date: 07 April 2011
• Docket Number: No. 01–09–00994–CV.,01–09–00994–CV.
• Citation: 338 S.W.3d 709
• Parties: Cathy ANDERSON, Appellant,v.AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO; American Federation of Government Employees, AFL–CIO, District 10; American Federation of Government Employees, AFL–CIO, Council 215; American Federation of Government Employees, AFL–CIO, Local 3506, Appellees.
• Court: Texas Court of Appeals

338 S.W.3d 709

Cathy ANDERSON, Appellant,

v.AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO; American Federation of Government Employees, AFL–CIO, District 10; American Federation of Government Employees, AFL–CIO, Council 215; American Federation of Government Employees, AFL–CIO, Local 3506, Appellees.

No. 01–09–00994–CV.

Court of Appeals of Texas, Houston (1st Dist.).

April 7, 2011.

Cathy A. Anderson, Pikesville, MD, pro se.James Roddy Tanner, Tanner & Associates, P.C., Fort Worth, TX, for Appellees.Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.

OPINION

SHERRY RADACK, Chief Justice.

In this appeal, we decide whether a federal government employee's state law tort claims against a labor union are completely preempted by the Civil Service Reform Act of 1978. See 5 U.S.C. §§ 2301–2305 (West 1994 & Supp. 2010), 5 U.S.C. §§ 7101–7154 (West 1996 & Supp. 2010) (West 2010). Finding no complete preemption under the circumstances presented in this case, we reverse and remand.

BACKGROUND

Anderson was a group supervisor for the Social Security Administration Office of Disability Adjudication and Review [“ODAR”] in Houston, Texas. Scott Stier was a case intake assistant and reported to Anderson. On July 24, 2007, Anderson issued a proposed three-day suspension to Stier for failing to associate mail in a timely manner. On October 2, 2007, Stier sent a letter to the Agency's Office of Special Counsel, in which he asserted that Anderson had been confiscating and hoarding his mail, thereby violating his due process rights. Stier also sent a copy of this letter to Anderson, Melissa Huett, a hearing office manager for ODAR, and Mark Mephail, a hearing office administrative law judge for ODAR. On November 1, 2007, Huett placed Stier on a one-day suspension, rather than the three-day suspension recommended by Anderson.

Stier appealed his suspension to the Merit Systems Protection Board, alleging that ODAR's suspension of him was in retaliation for his complaint about Anderson. On July 15, 2008, an administrative law judge [“ALJ”] upheld Stier's suspension. In his order, the ALJ stated, “I find, however that because Huett's decision to suspend [Stier] was issued ... just four months after the disclosure of which she had knowledge, a reasonable person could conclude that the disclosure was a contributing factor in the agency's decision to suspend [Stier].” Nevertheless, the ALJ upheld Stier's suspension because he found that ODAR would have taken the personnel action against Stier even if there had been no whistleblowing involved.

According to allegations in her petition, Anderson discovered in February or early March of 2009 that Stier, who was also an Executive Vice–President of Local 3506 of the American Federation of Government Employees, AFL–CIO, had been sending emails to other union members in Anderson's office that contained a link to the Local 3506's website where they would find “disturbing” information about Anderson. Anderson accessed the website and found the following summary of Stier's personnel matter: “... the [ALJ] found that Stier's disclosure was based on a reasonable belief that Anderson was hoarding mail and that action constituted an abuse of her authority.”

After seeing the information about her on the union's website, Anderson filed suit in state court against the American Federation of Government Employees, including the Local 3506, Council 215, and District 10 [hereafter, collectively “the union.”], alleging libel, slander, and intentional infliction of emotional distress.¹

The union filed a motion to dismiss based on lack of subject-matter jurisdiction. Specifically, the union claimed that Anderson's state tort claims were preempted by the Civil Service Reform Act of 1978 [“CSRA”], which is codified in Title 5 of the United States Code. The trial court granted to union's motion and dismissed Anderson's case. This appeal followed.

PREEMPTION UNDER THE CSRA

Standard of Review and Applicable Law on Preemption

In filing a plea to the jurisdiction, a litigant challenges the trial court's subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). In order to prevail, the party asserting the plea must show that, even if all the allegations in the plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.).

Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court's ruling on the plea. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Upon review, we consider the pleadings and the evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). We do not consider the merits of the case; our jurisdiction is limited to reviewing the grant or denial of the plea to the jurisdiction that was filed. Id.; see also Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp. 2010); Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 61 (Tex.App.-Houston [14th Dist.] 2005, no pet.); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686–87 (Tex.App.-Dallas 2003, pet. denied). We do not have jurisdiction to consider grounds outside those raised in the plea to the jurisdiction. First Trade Union Sav. Bank, 133 S.W.3d at 687; Davies, 158 S.W.3d at 61.

In its motion to dismiss, the union acknowledged that Anderson's petition alleged state court causes of action, see Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (2005) (libel); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993) (intentional infliction of emotional distress), but argued that Anderson's state court causes of action were completely preempted by the CSRA. To establish complete preemption, a defendant must show that:

(1) the federal statute contains a civil enforcement provision that creates a cause of action and both replaces and protects the analogous area of state law;

(2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and

(3) there is a clear Congressional intent that the claims brought under the federal law be removable to federal court.

Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.2000). To determine whether the union has established the first element of the Johnson test, we must review the provisions of the CSRA upon which it relies.The Civil Service Reform Act

In its motion to dismiss, the union alleged two bases for its contention that the CSRA completely preempts Anderson's state court causes of action. First, the union argued that Anderson's suit involved a “prohibited personnel action” and thus was preempted by section 2303 of the CSRA. Second, the union argued that Anderson's suit alleged an “unfair labor practice” by the union and thus was preempted by section 7101 of the CSRA. We will address each respectively.

1. Title II of the CSRA, 5 U.S.C. § 2302 et seq., Prohibited Personnel Action

Federal employees are generally precluded from bringing state tort claims when the claims arise “out of an employment relationship that is governed by comprehensive procedural and substantive provisions” which provide meaningful remedies. Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 2406, 76 L.Ed.2d 648 (1983). The CSRA affords such remedies to federal employees. The Act provides “an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.” United States v. Fausto, 484 U.S. 439, 445, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988). The CSRA authorizes federal employees to challenge “prohibited personnel practices” by their supervisors. See 5 U.S.C. § 2302; Saul v. United States, 928 F.2d 829, 833, 834 (9th Cir.1991) (employee had redress under CSRA for claims of defamation by supervisor). It is founded upon certain merit-system principles that govern civil service employment and provides that employees are to be treated fairly and equitably and “with proper regard for their privacy and constitutional rights.” 5 U.S.C. § 2301(b)(2).

Under the Act, prohibited personnel practices include the taking of any “personnel action” that violates its merit-system principles. 5 U.S.C. § 2302. Specifically, a prohibited personnel practice means any action that is described in subsection (b) of Section 2302, which states that “any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority,” engage any of the prohibited acts listed in the subsection. 5 U.S.C. § 2302(b)(1)-(11). Therefore, an integral element of a “prohibited personnel practice” is the taking of “personnel action” which is defined to include actions such as, but not limited to, an appointment, a promotion, a disciplinary or corrective action, a detail, transfer or assignment, or a decision concerning pay, benefits, or education or training. 5 U.S.C. § 2302(a)(2)(A). Thus, essentially, when a plaintiff's claims arise out of his or her employment relationship with the federal government and all supervisory actions taken by the defendants are related to the plaintiff's status as a federal employee, the actions constitute personnel decisions under the CSRA, and are therefore exclusively remedied thereunder. Rollins v. Marsh, 937 F.2d 134, 138 (5th Cir.1991). Thus, the question this Court must decide is whether Anderson's claim alleges the taking of a “personnel action” within the meaning of the CSRA.

The union relies on Bush, Fausto, Saul, and Rollins, in support of its argument that Anderson's claims are preempted. 462 U.S. at 367, 103 S.Ct. 2404, 484 U.S. at 439, 108 S.Ct. 668, 928 F.2d at 843, 937 F.2d at 138. In Bush, the...