United States District Court, E.D. California, Sacramento
ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING
BRIEFING ON MOTION TO STAY
Stanley A. Bastian, United States District Court Judge
the Court is Defendant's Motion to Dismiss, ECF No. 18.
The motion was heard without oral argument. Plaintiff is
represented by Waukeen Q. McCoy; Defendants are represented
by Gregory T. Broderick.
Christopher Coulter brought suit against his former employer,
the Department of the Air Force, alleging he was the target
of retaliation and harassment, and wrongful termination as a
result of him reporting various safety concerns. He is
bringing five claims: (1) violation of the Whistleblower
Protection Act, 5 U.S.C. § 2301 et seq; (2)
Violation of Due Process / Liberty Interest; (3) Retaliation
in violation of Cal. Lab. Code § 6310 (against the
Department of the Air Force); (4) Retaliation in violation of
Cal. Lab. Code § 6310, 1102 (against the Department of
the Air Force); and (5) Intentional Infliction of Emotional
Distress under the Federal Tort Claims Act.
now move to dismiss these claims, asserting the Court does
not have jurisdiction to hear these claims because (1) the
Whistle Blower Act does not provide a private cause of action
and Plaintiff failed to exhaust his administrative remedies;
(2) the United States may not be sued for constitutional
claims; (3) the United States did not waive its sovereign
immunity with respect to California employment statutes; and
(4) Plaintiff has not complied with the administrative claim
requirements of the Federal Tort Claims Act.
response, Plaintiff indicates that he recently filed a claim
with the Merit Systems Protection Board and also filed an
administrative tort claim. He asks the Court to stay his
first claim (Whistleblower), as well as his fifth claim
(Intentional Infliction of Emotional Distress).
following facts are taken from Plaintiff's Complaint:
Plaintiff worked at Travis Air Force Base as a civilian Air
Traffic Controller. He was eventually promoted to Senior
Airfield Operations Automation Manager. In early 2013, there
was a mishap at the Travis AFB where two Air Force planes
nearly collided in air. Plaintiff believed the mishap was
caused by the “Local Wind Resource Ares Windmills,
” which had de-sensitized controllers from effectively
applying Primary Merging Target procedures. As a result, he
began compiling Automation Continuity of Operation
information for self-inspection/mitigation purposes. He
reported the data he had collected, but his supervisors took
he reported his safety concerns, he began experiencing
allegedly retaliatory behavior from his supervisors. He was
the only civilian Air Traffic Controller not to receive a
year-end bonus or time-off reward for a three-year period.
Also, he was denied overtime pay, had false accusations made
against him, and his security clearance was placed under
filed multiple union grievances complaining about the
retaliation and harassment he was experiencing. The
retaliation, harassment and hostile work environment
continued. Eventually he was placed on administrative leave
and an investigation regarding Plaintiff's job
performance was initiated. As a result, Plaintiff began to
experience symptoms of stress and dizziness and was diagnosed
with Neurocardiogenic Syncope.
was terminated from his position at Travis AFB in February,
to Fed.R.Civ.P. 12(b)(1), a district court must dismiss an
action if it lacks jurisdiction over the subject matter of
the suit. A party seeking to invoke federal jurisdiction
bears the burden of establishing that jurisdiction exists
“for each claim he seeks to press'' and for
“each form of relief sought.” Oregon v. Legal
Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting
DaimlerChrysler Corp. v. Duno, 547 U.S. 332, 352
(2006)). In deciding a 12(b)(1) motion, courts assume the
plaintiff's factual allegations to be true and draw all
reasonable inferences in his favor. Doe v. Holy See,
557 F.3d 1066, 1073 (9th Cir. 2009).
Civil Service Reform Act (CSRA) - Merit Systems Protection
Civil Service Reform Act (“CSRA”) limits federal
employees challenging their supervisors'
“prohibited personnel practices” to an
administrative remedial system. If the conduct an employee
challenges falls within the scope of the CSRA's
“prohibited personnel practices, ” the CSRA's
administrative procedures are the employee's only remedy.
Orsay v. United States Dep't of Justice, 289
F.3d 1125, 1128 (9th Cir. 2002) (abrogated on other grounds
by Millbrook v. United States, __ U.S. __, 133 S.Ct.
1441 (2013)); see alsoCollins v. Bender,195 F.3d 1076, 1079 (9th Cir. 1999) (“[E]ven if no
remedy were available to [the employee] under the CSRA, he
still could not bring [his] action if the acts ...