United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
William Alsup, United States District Judge.
adverse employment action, defendants move to dismiss for
lack of subject-matter jurisdiction. For the reasons stated
herein, the motion to dismiss the complaint is
April 2017, pro se plaintiff Tatyana Evgenievna
Drevaleva began working at New Mexico Veterans Affairs
Medical Center (VAMC) as a probationary medical instrument
technician. In May 2017, she left for Russia and did not
return for about three months. Plaintiff
subsequently received a termination notice for allegedly
taking leave without permission (Dkt. No. 1 at 29, 30).
2018, she sued the United States Department of Veterans
Affairs and Robert Wilkie, Acting United States Secretary of
Veterans Affairs, in an action entitled Drevaleva v. U.S.
Dep’t of Veterans Aff. and Robert Wilkie, No. C
18-03748 WHA. Plaintiff claimed intentional infliction of
emotional distress as well as gender, disability, and age
discrimination. An order dismissed those claims without leave
to amend, holding that she had failed to state a claim for
relief (Case No. 18-03748, Dkt. Nos. 1; 154 at 3, 7, 8, 9).
month before plaintiff filed that complaint, in May 2018, she
had allegedly received an offer to work in the same position
at the Minneapolis VAMC (Dkt. No. 25 at 3). By June 2018,
however, the Minneapolis VAMC rescinded its offer after
learning details of plaintiff’s termination in New
Mexico. A Human Resources official cited Title 5 Section
731.202 of the Code of Federal Regulations deeming plaintiff
unsuitable for hire at Minneapolis VAMC (Dkt. No. 12-1 at 2,
end of 2018, plaintiff appealed her 2017 termination from New
Mexico VAMC to the Merit Systems Protection Board (MSPB).
Plaintiff could not be considered a federal employee,
however, because she had worked in probationary excepted
service for less than two years when terminated. The MSPB
consequently did not accept jurisdiction to review her 2017
termination appeal (Dkt. No. 27-1 at 7, 10).
the Administrative Procedure Act, plaintiff now petitions for
federal review of the Minneapolis VAMC’s 2018 decision
that determined her unsuitable for hire (id. at 8).
She sues the United States, the United States Department of
Veterans Affairs, the Office of Resolution Management of the
United States Department of Veterans Affairs (VA), Mr. Robert
Wilkie, Secretary of the VA, and two VA facilities, the New
Mexico VA Healthcare System and the Minneapolis VAMC (Dkt.
No. 1). Originally assigned to Magistrate Judge Kandis
Westmore, this new action was reassigned to the undersigned
due to its relation to the aforementioned action against the
United States Department of Veterans Affairs and Robert
Wilkie (Dkt. No. 20). All defendants in this action now argue
that the Civil Service Reform Act of 1978 (CSRA) precludes
review under the APA and move to dismiss this petition for
lack of subject-matter jurisdiction. This order follows full
briefing (Dkt. Nos. 25, 27, 31) and oral argument.
CSRA established the MSPB and gave it jurisdiction to
adjudicate suitability actions against a person. See
5 U.S.C. § 1302; 5 C.F.R. § 731.501. The
MSPB’s jurisdiction over such adverse personnel
determinations is limited to actions against an
“employee” or “applicant for
employment.” 5 U.S.C. § 7701(a). In turn, the CSRA
provided for judicial review of final decisions of the MSPB
in the United States Court of Appeals for the Federal Circuit
and, in limited instances, other circuit courts of competent
jurisdiction. Id. § 7703. The CSRA makes no
provision for review of suitability decisions by any district
court. Our court of appeals has held that the CSRA supplants
any jurisdiction of the MSPB by federal courts under the APA.
Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984).
instant case, plaintiff seeks judicial review of the
Minneapolis VAMC’s decision that her misconduct and
negligence in employment made her unsuitable for hire. The
CSRA mandates that one “[i]nstance in which a law or
regulation authorizes the [MSPB] to hear an appeal or claim
include[s] . . . suitability determinations, which relate to
an individual’s character or conduct that may have an
impact on the integrity or efficiency of the service.”
5 C.F.R. § 1201.3(a)(9). Accordingly, the CSRA places
the jurisdiction to hear this grievance in the MSPB and, in
turn, the various United States Courts of Appeals. Therefore,
having no subject-matter jurisdiction, the complaint must be
dismissed without further leave to amend. Admittedly, this
outcome seems inconsistent perhaps with the earlier ruling of
the MSPB that it had no jurisdiction over the termination at
New Mexico VAMC. That ruling, however, was based on the
ground that plaintiff was a probationary worker who had not
continuously served in that position for the minimum of two
years (Dkt. No. 27-1 at 7). Thus, she was not an employee
and, therefore, could not appeal any action to the MSPB. By
contrast, the action at issue here at Minneapolis VAMC was
allegedly a suitability determination of an applicant for
employment, which by statute and regulation must be
reviewed by the MSPB. There is no inconsistency. If the
plaintiff questions the correctness of this ruling, she may,
of course, take an appeal to the United States Court of
Appeals for the Ninth Circuit.
reasons stated above, defendants’ motion to dismiss is
Granted. Plaintiff should not further