NOTICE OF APPELLATE FILING FEE Plaintiff Coleen L. Powers, a resident of Memphis, Tennessee, filed this complaint along with an application to proceed in forma pauperis under 28 U.S.C. § 1915(a). (Docket Entries ("D.E.") 1 & 2.) The application to proceed in forma pauperis (D.E. 2) is GRANTED. The Clerk shall record the defendants as the United States Department of Labor ("DOL"), Elaine Chao in her personal and official capacity as Secretary of the DOL, the DOL Occupational Safety and Health Administration ("OSHA"), Region 4, Dennis Russell, Michael Moon, Cindy Coe-Laseter, United States DOL Administrative Review Board ("ARB"), Linda Chapman, Tennessee Civil Service Commission Secretary Deborah E. Story, Assistant Commissioner for the Tennessee Department of Personnel and GeneralCounsel S. Kae Carpenter, Tennessee Civil Service Commission Members, Tennessee Administrative Procedures Division Director Thomas G. Stovall, Charles C. Sullivan, II., Mattileyn B. Williams, E. Joseph Sanders, Tennessee Attorney General Paul Summers, Tennessee Secretary of State Riley Darnell, Lynn England, Randy Camp, Pollution Control Industries of Tenn. ("PCI"), LLC, PCI, Inc., Pinnacle Airlines, Inc., Pinnacle Airlines Corporation, and the United Steelworkers Union, formerly known as PACE.
The first issue to be considered is the identity of the plaintiff to this action. The complaint purports to be brought by Coleen L. Powers and "State of Tenn. Public Environmental TDEC Employees &/or Former Crewmembers." (D.E. 1 at 1.) The complaint is signed only by Coleen L. Powers. (D.E. 1 at 38.)
A party in federal court must proceed either through licensed counsel or on her own behalf. See 28 U.S.C. § 1654; see also Fed. R. Civ. P. 11(a) ("[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party"). No pro se plaintiff may sign pleadings on behalf of another plaintiff. Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ("While a non-attorney may appear pro se on his own behalf, '[h]e has no authority to appear as an attorney for others than himself.'"); Mikeska v. Collins, 928 F.2d 126 (5th Cir. 1991); Bonacci v. Kindt,868 F.2d 1442, 1443 (5th Cir. 1989). Accordingly, Powers is the only Plaintiff in this action.
The next matter to be considered is whether Plaintiff Powers may prosecute this case as a class action. Just as a pro se plaintiff cannot represent another named individual, a pro se plaintiff cannot prosecute a class action. A pro se litigant is not an adequate class representative. Palasty v. Hawk, 15 Fed. Appx. 197, 200 (6th Cir. June 20, 2001) ("In this case no representative party was available because pro se prisoners are not able to represent fairly the class."); Ballard v. Campbell, No. 98-6156, 1999 WL 777435, at *1 (6th Cir. Sept. 21, 1999); Giorgio v. Tennessee Dep't of Human Servs., No. 95-6327, 1996 WL 447656, at *1 (6th Cir. Aug. 7, 1996) ("Because a layman does not ordinarily possess the legal training and expertise necessary to protect the interests of a proposed class, courts are reluctant to certify a class represented by a pro se litigant."); see also Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam). Plaintiff is not a licensed attorney, cannot carry insurance, and is not subject to suit by the other class members for any mistakes she may make in handling this case. Other potential class members should not be exposed to the risk that those errors could prejudice their claims and leave them without any remedy. The request to prosecute the case as a class action, or otherwise on behalf of other similarly situated individuals, is DENIED.
Powers filed a previous complaint against most of these defendants. Powers v. NWA, et al., No. 05-24 68-STA/tmp (W.D. Tenn. Aug. 26, 2008). On February 26, 2006, United States District Judge J. Daniel Breen entered an order which stated:
The complaint in this action fails to comply with the Federal Rules of Civil Procedure. In particular, Fed. R. Civ. P. 8(a) requires "[a] pleading which sets forth a claim for relief" to contain "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends" and "(2) a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint in this action does not satisfy either provision.
Plaintiff's complaint does not adequately allege the grounds upon which this Court's jurisdiction depends, as required by Fed. R. Civ. P. 8(a)(1). The complaint purports to be brought pursuant to 29 C.F.R. § 1980.114(a). Part 1980 of 29 C.F.R.
implements procedures under section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or "Act"), enacted into law July 30, 2002. Sarbanes-Oxley provides for employee protection from discrimination by companies and representatives of companies because the employee has engaged in protected activity pertaining to a violation or alleged violation of 18 U.S.C. 1341, 1343, 1344, or 1348, or any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.
29 C.F.R. § 1980.100(a) (2004). The regulations were implemented pursuant to 18 U.S.C. § 1514A, which provides a cause of action for employees of publicly traded companies who have been retaliated against for acting as "whistleblowers" with respect to certain types of fraud.
Pursuant to 29 C.F.R. § 1980.103(a), an employee may file a complaint of discrimination against her employer or acompany representative. In this case, the plaintiff's complaint does not identify her employer and does not identify any company representative who is alleged to have retaliated against her for her whistleblowing activities.1 The Court is, therefore, unable to ascertain which of the forty-five (45) parties to this lawsuit have been sued pursuant to 18 U.S.C. § 1514A. The Court is also unable to evaluate the nature of the plaintiff's claim pursuant to 29 C.F.R. § 1980.114(a).
Moreover, it is readily apparent that plaintiff's claims are not limited to a violation of 18 U.S.C. § 1514A. Instead, the complaint purports to assert seventeen counts (Compl., ¶¶ 110-127), without specifying which of the numerous defendants is sued in each count. Moreover, apart from count one, which purports to arise under 29 C.F.R. Parts 24, 1979, and 1980, it is not clear whether any of the other counts arise under federal law and, therefore, whether they provide a basis for federal subject-matter jurisdiction.
It is also unclear how many of the plaintiff's factual allegations, with their scattered references to federal law, have any bearing on the claims asserted in this action. Thus, for example, the complaint alleges, vaguely, that the plaintiff filed administrative complaints for "appearances of illegal insider trading, violations of the Fair Labor Standards Act, violations of the FAA federal aviation regulations, {FARS} [sic], violations of US DOT TSA Security directives, and violations of the EPA environmental statutes." Compl., ¶ 5. Likewise, the complaint refers to
claimed concerns and illegal retaliation by named persons on Plaintiffs [sic] concerns and complaints made on the appearances of labor racketeering among the airline industry, PACE International Union, and Pollution Control Industries [PCI]. {Taft-Hartley Act / LMDRA} [sic]. [The plaintiff's administrative complaints] also contained allegations of collusion, conspiracy, and co-conspiracy tocommit acts that are illegal and in furtherance of financial harm, defamation, and intentional emotional duress to Plaintiff/Crewmember Powers for these protected activities.
Id.; see also, e.g., id., ¶¶ 25, 35, 44, 46, 57, 58, 60, 61, 63, 64, 65, 91, 101, 104. The procedural discussion in the complaint does not make clear which of these administrative proceedings are at issue in this action. See id., ¶ 4. Likewise, although the complaint expresses the plaintiff's desire to "remand" certain actions that are pending in the United States Court of Appeals for the Sixth Circuit, docket numbers 04-4441 and 05-3266, for a consolidated hearing, id., ¶¶ 16, 72, those cases did not originate in this district and the plaintiff has not cited any basis for the assumption of subject-matter jurisdiction over them.
Likewise, the complaint in this case does not comply with Fed. R. Civ. P. 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The factual narrative in this thirty-nine (39) page, one hundred thirty-three (133) paragraph complaint is incomprehensible. As a preliminary matter, the factual allegations, which encompass approximately a six-year period, are not arranged chronologically. Moreover, the complaint mingles allegations concerning the plaintiff's wide-ranging complaints about illegal actions allegedly performed during the plaintiff's employment as a crewmember with one or more of the airline defendants, with seemingly unrelated claims concerning the plaintiff's prior employment as a hazardous waste inspector/investigator with the Tennessee Department of Environment and Conservation ("TDEC"), which was terminated in 2001. The complaint attempts to find some linkage between the plaintiff's termination from the TDEC and her subsequent termination from whichever airline employed her. Compl., ¶¶ 66, 68. Likewise, it appears that the plaintiff is attempting, somehow, to connect the airline defendants
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