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Coulter v. The Department of Air Force

United States District Court, E.D. California, Sacramento

June 22, 2017

CHRISTOPHER COULTER, Plaintiff,
v.
THE DEPARTMENT OF THE AIR FORCE, DEBORAH LEE JAMES, SECRETRARY OF THE DEPARTMENT OF THE AIR FORCE, UNITED STATES OF AMERICA, AND DOES 1-20, Defendants.

          ORDER GRANTING MOTION TO DISMISS, IN PART; ORDERING BRIEFING ON MOTION TO STAY

          Stanley A. Bastian, United States District Court Judge

         Before 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.

         Plaintiff 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.

         Defendants 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.

         In his 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).

         Background Facts

         The 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 no action.

         After 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 review.

         Plaintiff 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.

         Plaintiff was terminated from his position at Travis AFB in February, 2016.

         Legal Standards

         1. Rule 12(b)(1)

         Pursuant 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).

         2. Civil Service Reform Act (CSRA) - Merit Systems Protection Board (MSPB)

         The 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 ...


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