United States District Court, S.D. California
ORDER REGARDING SUBJECT MATTER JURISDICTION
James Lorenz United States District Judge
civil rights action, Defendants filed motions to dismiss for
lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and failure to state a claim under
Rule 12(b)(6). (Docs. no. 6 & 8.) The Court issued an
order to show cause ("OSC") why the action should
not be dismissed as preempted by the Civil Service Reform
Act, 5 U.S.C. §1101 et seq. ("CSRA"),
and denied the motions without prejudice pending briefing on
the OSC. (Doc. no. 18.) The Court finds the CSRA does not
preempt this action.
to the allegations in the complaint, Plaintiff was employed
by the United States Border Patrol ("Border
Patrol"). In the course of his employment, he befriended
San Diego County Sheriff's Deputy Jessica Leon.
Leon's relative David William Centrone became a suspect
in an investigation of the West Coast Crips, commenced by the
East County Gang Task Force ("Task Force"). The
Task Force believed that Leon provided sensitive law
enforcement information to Centrone. They tapped her mobile
of the wiretap, the Task Force members were able to read text
messages exchanged between Plaintiff and Leon. In 2014,
Defendants Kai Mandelleh, El Cajon Police Department SWAT
officer, and Zeath Sanchez, San Diego County Deputy Sheriff,
both detectives with the Task Force, investigated
Plaintiff's association with Leon. They believed that
Leon sought to extract law enforcement sensitive information
from Plaintiff. Plaintiff contends the suspicion was
unreasonable to begin with and contrary to evidence, because
he had no contact with Task Force members during the relevant
time. Instead, he claims, that the investigation, including
his interview, was in retaliation for Plaintiff's
disparaging text messages about the Task Force investigation,
the competency of the officers involved, and Defendant Jacob
Cutting, El Cajon Police Department SWAT officer and former
husband of Plaintiff's lover San Diego County
Sheriff's Deputy Sharlene Wilson. The interview did not
relate to leaking sensitive information to Leon, but to
Plaintiff's romantic relationship with Wilson.
Task Force ultimately concluded that Plaintiff did not pass
sensitive law enforcement information to Leon, but
nevertheless informed the Border Patrol, Plaintiff's
employer, that Plaintiff had been questioned for associating
with Leon and was uncooperative. Border Patrol opened an
internal investigation. Although Plaintiff's interview
was recorded, the Task Force refused to provide the Border
Patrol with the recording to corroborate Plaintiff's
contention that he cooperated.
contends that by pursuing unfounded allegations against him
and passing false information to the Border Patrol,
Defendants intentionally circumvented his constitutional
rights for purposes of retaliation by Cutting, who was
jealous, and Sanchez, for criticizing him for an error in
collecting evidence. Plaintiff claims Defendants' conduct
caused him physical, mental and emotional injury requiring
medical leave and mental health treatment.
also complains that Defendants' false reports to the
Border Patrol damaged his employment opportunities. Plaintiff
was removed from the United States Marshal's San Diego
Regional Fugitive Task Force. His superiors informed him of a
Border Patrol policy to remove an agent from a task force
upon request from a member of any of the other participating
agencies, that he was removed without an internal
investigation, and would not be allowed to apply for
assignment to other task forces, because San Diego
Sheriff's Department was a partner in most of them.
Before conclusion of an internal investigation, Plaintiff was
reassigned to the Border Patrol Imperial Beach station, his
duties were downgraded, and he was turned down for multiple
other assignments. Although Plaintiff ultimately secured a
position as a criminal investigator with Immigration and
Customs Enforcement, his acceptance was delayed pending the
conclusion of Border Patrol's internal investigation. He
is pursuing a grievance through the National Border Patrol
filed the pending action against Cutting, Mandelleh and
Sanchez alleging violation of his constitutional rights under
42 U.S.C. §1983, conspiracy to deny him due process
under 42 U.S.C. §1985, and conspiracy to interfere with
federal officer's duties under 42 U.S.C. §1985(1).
Defendants filed a motion to dismiss arguing, among other
things, that the Court lacks subject matter jurisdiction
because Plaintiff's claims are preempted by the CSRA. The
issue was not adequately briefed, and in light of the
Court's duty to satisfy itself of the subject matter
jurisdiction before proceeding to the merits, see Arbaugh
v. Y&H Corp., 546 U.S. 500, 514 (2006); Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 577, 583 (1999),
the Court issued the OSC. If the CSRA applies, it preempts
all of Plaintiff's claims.
CSRA established a comprehensive system for reviewing
personnel action taken against federal employees."
Elgin v. Dept. of the Treasury, 567 U.S. 1, __, 132
S.Ct. 2126, 2130 (2012) (internal citation and quotation
marks omitted). "Congress intended the CSRA to be the
sole mechanism through which employment disputes are
settled." Collins v. Bender, 195 F.3d 1076,
1080 (9th Cir. 1999). Where it applies, its administrative
procedures preempt federal court jurisdiction. Mangano v.
United States, 529 F.3d 1243, 1246 (9th Cir. 2008)
(internal quotation marks, citations, and brackets omitted);
Elgin, 132 S.Ct. at 2134. Preemption applies even if
it leaves the employee without a remedy. Orsay v. U.S.
Dep't of Justice, 289 F.3d 1125, 1128-29 (9th Cir.
2002), abrogated on other grounds by Millbrook v. U.S.,
__U.S.__; 113 S.Ct. 1441 (2013).
applies if the conduct underlying the complaint can be
challenged as a prohibited personnel practice.
Mangano, 529 F.3d at 1247. "The CSRA defines
'prohibited personnel practices' as any
'personnel action' taken by someone in authority that
violates one of ... enumerated practices. 'Personnel
action, ' in turn, is defined comprehensively ... ."
Id. (citing 5 U.S.C. § 2302(b) for
"personnel practices" and 5 U.S.C. §
2302(a)(2)(A) for "personnel action"); see also
Orsay, 289 F.3d at 1129 (CSRA provisions regarding
personnel actions contain "broad language, " and
Ninth Circuit case law gives it an "inclusive
construction"). Personnel practices are prohibited
reasons for taking personnel actions. Orsay, 289
F.3d at 1129 (citing 5 U.S.C. §2302(b)). Even if a
prohibited reason for the conduct at issue is not the primary
reason for the personnel action, it is sufficient if it is
"implicit" in the complaint. Id. When a
claim falls within its broad ambit, the CSRA preempts
constitutional, statutory, and tort claims. See, e.g.,
Mangano, 529 F.3d at 1247 (infliction of emotional
distress, intentional interference with right to practice
chosen profession, abuse of process); Orsay, 289
F.3d at 1129-32 (Privacy Act claim under 5 U.S.C.
§552a); Saul, 928 F.2d at 834 (Bivens
claim for unlawful search and seizure of personal mail).
fact that a plaintiff complains about the conduct of third
parties rather than his employer or supervisor, does not
necessarily change the analysis. This issue was addressed in
Orsay, where other defendants were named in addition
to the plaintiff's employer:
The CSRA reaches “prohibited personnel practices”
by “[a]ny employee who has authority to take,
recommend, or approve any personnel action” “with
respect to an employee in ... a covered position in an
agency.” 5 U.S.C. § 2302(a)(2)(A) & (b)
(emphasis added). The CSRA contains no specific requirement
that the employee that engaged in the prohibited personnel
practice be an ...