Leistiko v. Secretary of the Army, 5:92 CV 0173

• Decision Date: 20 March 1996
• Docket Number: 5:93 CV 0067.,No. 5:92 CV 0173,5:92 CV 0173
• Parties: Fred A. LEISTIKO, Plaintiff, v. SECRETARY OF the ARMY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

922 F. Supp. 66

Fred A. LEISTIKO, Plaintiff, v. SECRETARY OF the ARMY, et al., Defendants.

Nos. 5:92 CV 0173, 5:93 CV 0067.

United States District Court, N.D. Ohio, Eastern Division.

March 20, 1996.

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Michael Drain, Chagrin Falls, OH, and Constance Leistiko, Canton, OH, for plaintiff.

Michael Anne Johnson, Office Of The U.S. Attorney, Cleveland, OH, Nancy A. Higgins, Major, and W. Gary Jewell, Lieut. Colonel, United States Army, Litigation Division, Arlington, VA, for defendants.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss and/or for Summary Judgment. For the following reasons, Defendants' Motion will be granted.

I. BACKGROUND

Plaintiff Fred A. Leistiko was employed as a National Guard Supervisory Aircraft Pilot, GM-2181-14, a federal civilian technician position subject to the provisions of 32 U.S.C. § 709. The National Guard Technician position is a hybrid military-civilian position that required Leistiko also to maintain dual status as both a member of the Ohio National Guard and as a federal civilian technician. Leistiko was further required to maintain status as a "rated aviator."

On May 18, 1990, Leistiko experienced a neurological incident during an Ohio National Guard helicopter flight. Three months later, Leistiko was medically disqualified from further aviation service, both because of evidence that Leistiko had suffered a grand mal seizure in the helicopter, and because Leistiko has cardiac arrhythmia. Either medical impairment alone is permanently disqualifying.

Effective January 25, 1991, Leistiko was terminated by the Ohio National Guard from his federal civilian technician position due to his medical disqualification from further aviation service.

Leistiko responded to the termination notice by seeking outside review of his termination through a number of avenues, both administrative and judicial. Ultimately, he filed the amended complaint in this Court that is the subject of Defendants' motion for summary judgment. For his first cause of action, Plaintiff complains that Defendants denied him due process by terminating him without notice or a hearing. For his second cause of action, Plaintiff alleges that Defendants discriminated against him on the basis of disability, and failed reasonably to accommodate him. For his third cause of action, Plaintiff alleges violations of the Veterans Reemployment Rights Act.

Defendants have moved for summary judgment on all counts. They claim that the Court lacks subject matter jurisdiction over Plaintiff's claims. Defendants argue further that, even if the Court has jurisdiction to decide Plaintiff's claims, Plaintiff cannot prevail on the merits.

II. SUMMARY JUDGMENT STANDARD

As an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. 477 U.S. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply to show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the unverified pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. PLAINTIFF'S DUE PROCESS CLAIM

A. Jurisdictional Basis for Plaintiff's Claim

The Defendants have asserted that there is no basis on which this Court can exercise jurisdiction over Plaintiff's due process claim. In order to establish that this Court has jurisdiction over Plaintiff's claim against the federal government, Plaintiff must demonstrate two things: that a statutory grant of jurisdiction exists, and that the government has expressly and unequivocally waived its sovereign immunity with regard to the type of claim Plaintiff wishes to raise. Since Plaintiff alleges violations of federal law in his first cause of action, 28 U.S.C. § 1331 provides the Court a statutory grant of jurisdiction. However, Plaintiff must also look beyond the jurisdictional statute for a separate waiver of sovereign immunity that allows him to bring his claim. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1352, 63 L.Ed.2d 607 (1980). "The United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941). All waivers are construed strictly in favor of the sovereign. See McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951).

Plaintiff has cited the Court to a number of sources for his claimed waiver of the government's sovereign immunity. The Court addresses each of these statutes in turn.

1. Administrative Procedure Act

First, Plaintiff claims that the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., waives sovereign immunity for his claim. The APA does contain a limited waiver of sovereign immunity. It provides that "an action in a court of the United States seeking relief other than money damages ... shall not be dismissed nor relief therein be denied on the ground that it is against the United States." 5 U.S.C. § 702. This provision of the APA does not, however, waive sovereign immunity as to claims like those brought by Plaintiff.

First, the APA, by its own definition, does not apply where another statute precludes judicial review. 5 U.S.C. § 701(a)(1). Defendants have raised the Civil Service Reform Act ("CSRA"), Publ.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), as such a bar. Defendants claim that the CSRA provides the exclusive avenue of relief in personnel matters covered by the Act and the federal government otherwise has not waived its sovereign immunity.

The Supreme Court addressed the issue of whether the CSRA was intended to provide the exclusive remedy for federal employees faced with adverse personnel actions in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). Fausto was a Department of the Interior employee who, like Plaintiff Leistiko, was in the excepted service. Fausto was suspended from his job for misconduct. After exhausting the agency appeal process without success, Fausto brought suit in the Claims Court under the Back Pay Act for backpay for the period covered by the suspension. The Supreme Court held that a member of the excepted service may not obtain judicial review of an adverse personnel action for which the CSRA does not provide him a right of review. Justice Scalia began his analysis by explaining that:

the CSRA comprehensively overhauled the civil service system, creating an elaborate new framework for evaluating adverse personnel actions against federal employees. It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review. No provision of the CSRA gives nonpreference members of the excepted service the right to administrative or judicial review of suspension for misconduct. The question we face is whether that withholding of remedy was meant to preclude judicial review for those employees, or rather merely to leave them free to pursue the remedies that had been available before enactment of the CSRA.

Fausto, 484 U.S. at 443-44, 108 S.Ct. at 671-72. He found that a leading purpose of the CSRA was to replace the haphazard patchwork system of administrative and judicial review that had built up with an integrated scheme designed to balance the legitimate interests of federal employees with the needs of efficient administration. Id., 484 U.S. at 444-45, 108 S.Ct. at 672. With regard to actions based on employee misconduct, it was:

evident that the absence of provision for these employees to obtain judicial review is not an uninformative consequence of the limited scope of the statute, but rather manifestation of a considered congressional judgment that they should not have statutory entitlement to review for adverse action of the type governed by the Chapter governing adverse action taken against employees for the "efficiency of the service".

Id., 484 U.S. at 448-49, 108 S.Ct. at 674. A further indicator of nonreviewability was the structure of the statutory scheme: specifically, the preferred position of competitive service employees; and the preference for...