Gilding v. Carr
| Decision Date | 07 April 2009 |
| Docket Number | No. CV-08-2137-PHX-GMS.,CV-08-2137-PHX-GMS. |
| Citation | 608 F.Supp.2d 1147 |
| Parties | John GILDING, a married man, Plaintiff, v. John S. CARR, et. al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pearson & Wooten PLC, Phoenix, AZ, for Plaintiff.
David N. Farren, Kraig J. Marton, Jaburg & Wilk PC, Michael James Keenan, Ward Keenan & Barrett PC, Alan N. Ariav, Renaud Cook Drury Mesaros PA, James Anthony Ahlers, Paul F. Eckstein, Perkins Coie Brown & Bain PA, Phoenix, AZ, Marguerite L. Graf, National Air Traffic Controllers Association, AFL-CIO, Marie Louise Hagen, William W. Osborne, Osborne Law Offices PC, Washington, DC, for Defendants.
Pending before the Court are: (1) Plaintiff's Motion to Remand to State Court (Dkt. #10) and (2) the First Motion to Dismiss Case of Defendant National Air Traffic Controller's Association, AFL-CIO ("NATCA") (Dkt. #15), as well as the various Joinders in those Motions and the Responses and Replies thereto. After oral argument, the parties also filed supplemental pleadings, responses, and replies. The two motions present the similar issue of whether Plaintiff's claims against Defendants are completely preempted by the Personnel Management System ("PMS") adopted by the Federal Aviation Administration ("FAA") or the provisions of the Civil Service Reform Act ("CSRA") that are applicable to the PMS. Under the facts as alleged here, and for the reasons explained below, Plaintiff's claims are not completely preempted by either the CSRA or the PMS. Therefore, Plaintiff's Motion to Remand to State Court is granted and Defendant NATCA's Motion to Dismiss is denied as moot.
On October 27, 2008, Plaintiff John Gilding filed his Third Amended Complaint in Maricopa County Superior Court. In that Complaint, among other things, he added NATCA as a party defendant to his pre-existing lawsuit against the individual Defendants. The Complaint asserted no federal claims.
In the Complaint, Gilding, a management employee with the FAA who had been assigned as the Support Manager for Training in Phoenix, alleges that Defendants publicly defamed him on Defendant Carr's website blog. Gilding alleges they did so by stating that Gilding caused an FAA employee under his supervision to commit suicide, threatened and intimidated an FAA trainee to the point that the trainee "decided to change career fields," created an unlawful and brutal culture and work environment, and performed his work in a dishonest, unprofessional, illegal, and unethical fashion. Defendants encouraged blog readers to contact the FAA and register their discontent with Plaintiff and his assignment to Phoenix.
The Complaint further alleges that Defendants Johnston and Palmer, air traffic controllers assigned to Phoenix and local officers of NATCA, wrongfully obtained Gilding's confidential personnel files and forwarded them to Defendant Marks, an air traffic controller assigned to San Diego. Marks, in turn, subsequently transferred the files to Defendant Carr, who Marks and Johnston had solicited to run a "hit piece" on Gilding on his website. Carr is a former FAA employee who operated the blog which he used to publicly criticize the FAA and others involved in the aviation industry. Gilding alleges that in composing and publishing the blog entries pertaining to him, Carr and Marks, with the cooperation and assistance of Johnston and Palmer, "intentionally took select information . . . out of context, using fallacy of composition and innuendo, in order to defame and harm plaintiff and place him in a false light." The Complaint further alleges that Johnston, Palmer, Marks and Carr, in their individual capacities, and Johnston and Palmer in their capacity as union officers, intended to "damage plaintiff's reputation, cause him emotional distress, and tortiously interfere with his current FAA employment as well as future employment and employment prospects."
The Complaint asserts that, as a result of the alleged defamation, Gilding's immediate supervisor placed Gilding on administrative leave and removed him from the position as Support Manager for Training. The complaint further alleges that Plaintiff suffered damage to his public reputation and accompanying physical and emotional damage, for which he obtained appropriate medical treatment.
Prior to filing his Complaint, Plaintiff inquired with the FAA as to whether he had any administrative remedies against Defendants through either the PMS system or the NATCA/FAA collective bargaining agreement. He was told that while he may have administrative recourse against the FAA for the agency's decision to remove him from his Phoenix position, there existed no procedure by which he could grieve the conduct of his co-employees and other Defendants.
Plaintiff subsequently filed his Complaint against Defendants in Maricopa County Superior Court. The Complaint did not name the FAA or any of its employees involved in the decision to remove Gilding from his managerial position. After Plaintiff named NATCA as a Defendant, NATCA filed its notice of removal. Gilding filed a motion to remand asserting both that the first-served defendant rule barred NATCA from attempting removal to federal court1 and that his state law claims were not completely preempted by federal law. NATCA subsequently filed a motion to dismiss, arguing that the claims in Gilding's lawsuit were completely preempted by federal administrative law, and thus that the Complaint was both appropriately removed and should be dismissed.
Under the complete preemption doctrine, a case filed in state court asserting state law claims may be removed to federal court only if the party seeking removal proves: (1) that the plaintiff's claims are preempted by federal law, and (2) that Congress intended for the federal statute in question to "provide the exclusive cause of action for the claim asserted." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 10-11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). It is, in this case, Defendants' burden to establish complete preemption. Lontz v. Tharp, 413 F.3d 435, 440-41 (4th Cir.2005). They have not done so.
The relationship between most federal civil service employees and their employer is regulated by the CSRA, 5 U.S.C. § 1101 et seq. Among other things, the CSRA protects federal employees from being subjected to specified "prohibited personnel practices" by their government employer or its agents. The CSRA also provides investigative and enforcement processes by which employees may seek relief from the government or its agents for such acts.
In light of the comprehensive administrative remedy provided by the CSRA through which an employee could obtain relief against the United States and/or its agents for engaging in a "prohibited personnel practice," the United States Supreme Court has declined to authorize additional common law claims brought by a federal employee against his or her federal employer or its agents. Bush v. Lucas, 462 U.S. 367, 368, 385, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Since Bush, courts have typically declined to recognize such additional claims for recovery.
In 1996, Congress authorized the FAA to create its own personnel management system separate from the CSRA. 49 U.S.C. § 40122(g) (2007). That legislation specified that certain of the CSRA's provisions would apply to the PMS. Among those, the statutes pertaining to "prohibited personnel practices" and the accompanying investigative and enforcement provisions pertaining to such practices would apply to the FAA. Id. § 40122(g)(2)(A) ().2
In addition to the CSRA provisions that are incorporated into the PMS by statute, the PMS itself further sets forth grievance procedures which, pursuant to the terms of the PMS, provide the exclusive remedy by which FAA employees may bring claims against the FAA, the Department of Transportation, and the United States Government. PMS Chapter 3 ¶ 4. Defendants assert that Plaintiff's claims are preempted by both the CSRA and these PMS grievance provisions. The claims here, however, do not give rise to preemption.
In determining whether the CSRA preempts a claim, the court looks to the conduct challenged in the lawsuit to determine whether it Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir.2008) (quoting Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1128 (9th Cir.2002)); see also Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005).
The CSRA further makes clear that the enumerated "personnel practices" are only those that are undertaken by "any employee who has authority to take, direct others to take, recommend or approve any personnel action" with respect to the plaintiff.3 5 U.S.C. § 2302(b). Thus, before the claim for an act is preempted by the CSRA, the act must constitute a "prohibited personnel practice" as enumerated in the statute, must be committed by an employee who has the authority to take, recommend, or approve a personnel action against the plaintiff, and it must constitute "personnel action" as defined in the statute.4 See, e.g., Brock v. United States, 64 F.3d 1421, 1424-25 (9th Cir.1995) (); Collins v. Bender, 195 F.3d 1076, 1079 (9th Cir.1999) (...
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