Anoruo v. McDonald, Case No.: 2:16-cv-441-GMN-NJK

• Decision Date: 05 December 2016
• Docket Number: Case No.: 2:16-cv-441-GMN-NJK
• Parties: JOSEPH CHIDI ANORUO, Plaintiff, v. ROBERT A. MCDONALD, Secretary, Department of Veterans Affairs; JOSEPH MOODY, AFGE Local President, Defendants.
• Court: U.S. District Court — District of Nevada

JOSEPH CHIDI ANORUO, Plaintiff,
v.
ROBERT A. MCDONALD, Secretary, Department of Veterans Affairs;
JOSEPH MOODY, AFGE Local President, Defendants.

Case No.: 2:16-cv-441-GMN-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

December 5, 2016

ORDER

Pending before the Court is a Motion to Dismiss (ECF No. 7) filed by Defendant Robert A. McDonald, Secretary of the Department of Veterans Affairs ("McDonald"). Defendant Joseph Moody ("Moody"), Local President of the American Federation of Government Employees Local 1224 ("AFGE") also filed a Motion to Dismiss. (ECF No. 27). Pro se Plaintiff Joseph Chidi Anoruo ("Plaintiff")¹ filed a Response (ECF No. 30),² and Defendants McDonald and Moody (collectively, "Defendants") each filed a Reply (ECF Nos. 32, 33).

Also pending before the Court are several motions filed by Plaintiff including an Ex Parte Motion to Suspend/Extend Time for the Implementation of the Closure of Pharmacies (ECF No. 5), Motion for Hearing (ECF No. 6), Motion for Leave to File a First Amended

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Complaint (ECF No. 11), Motion for Default Judgment (ECF No. 31), and Motion for Leave to File Surreply (ECF No. 37), and Motion for Rule 12(c) Judgment on the Pleadings (ECF No. 38).

I. BACKGROUND

This action arises from a decision by the Department of Veterans Affairs ("VA") to close VA neighborhood outpatient clinics in Las Vegas, NV, and consolidate these services at the Las Vegas VA Medical Center. (Compl., ECF No. 4). Plaintiff, a pharmacist employed by the VA at one of these clinics, filed the instant lawsuit seeking to halt this March 4, 2016 consolidation of pharmacies. (Id. 11:26-28). Plaintiff alleges both harms to local veterans and to himself as an pharmacy employee.³ (Id. 10:26-11:2, 15:22-26). Plaintiff's main grievance is the failure of the VA and his union, AFGE,⁴ to negotiate properly and adequately address his concerns regarding the pharmacy consolidations. (Id. 3:4-6, 13:19-14:21). Based on this failure, Plaintiff alleges a violation of the Federal Service Labor-Management Relations Statute ("FSLMRS"), 5 U.S.C. §§ 7106(b)(2)-(3). (Id. 3:4-6, 13:19-27). Plaintiff also asserts a violation of the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6127, because he "requested compressed and flexible tour of duty . . . [which was] ignored." (Id. 3:7-8, 14:15-20). As such, Plaintiff demands that the Court "[a]ddress and minimize the impact of consolidation to [him] . . . by offering him and including compressed set schedule of 12 and 10 hour shifts," "[k]eep the Pharmacies located in the Clinics Open," and "[s]uspend or rescind the decision [to consolidate]." (Id. 14:22-28).

Both Defendants filed the instant Motions to Dismiss asserting, inter alia, lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (ECF Nos. 7, 27).

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II. LEGAL STANDARD

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Therefore, before a federal court may consider the merits of a case, it must first determine whether it has proper subject matter jurisdiction. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653-54 (9th Cir. 2002).

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that "[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists"). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen, 511 U.S. at 377.

A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It may be described as 'facial,' meaning that it attacks the sufficiency of the allegations to support subject matter jurisdiction. Id. Alternatively, it may be described as 'factual,' meaning that it "attack[s] the existence of subject matter jurisdiction in fact." Id.

When, as here, a court considers a 'facial' attack made pursuant to Rule 12(b)(1), it must consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

"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) (per curiam). However, where there is no way to cure the jurisdictional defect, dismissal with prejudice is proper. See id.

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III. DISCUSSION

The FSLMRS, also known as Title VII of the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 7101 et seq., provides that a labor organization which holds the exclusive right of representing employees is responsible for representing the interests of all employees without discrimination. See 5 U.S.C. § 7114(a)(1). The CSRA also provides that failure to negotiate in good faith, by either the government agency or the labor union, is an "unfair labor practice." 5 U.S.C. §§ 7116(a)(5), 7116(b)(5). Further, a labor union's breach of the duty of fair representation constitutes an "unfair labor practice." Karahalios v. Nat'l Fed'n of Fed. Emps., Local 1263, 489 U.S. 527, 532 (1987) (citing 5 U.S.C. § 7116(b)(8)). Any charge against a labor organization of engaging in an "unfair labor practice" must be presented to, investigated, and adjudicated by the Federal Labor Relations Authority ("FLRA"). See 5 U.S.C. § 7118(a)(1).

The Congressional intent behind...