Lath v. Defense Contract Management Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 18-cv-611-LM
Opinion No. 2018 DNH 176
Defense Contract Management
Agency, et al.
O R D E R
Sanjeev Lath, a former employee of the Defense Contract
Management Agency (“DCMA”), brought a small claim complaint in
New Hampshire Circuit Court against the DCMA, James Mattis, the
Secretary of the United States Department of Defense, Delisa
Hernandez, the director of the DCMA, and David Shoenig, a DCMA
employee. Lath, who is proceeding pro se, alleges that the DCMA
was supposed to station him in Tewksbury, Massachusetts, but
instead stationed him in Andover, Massachusetts. Lath seeks
payment for travel expenses he allegedly incurred in traveling
to Andover, as well as payment for taking unscheduled leave on
February 9, 2017, when a state of emergency was declared in New
Hampshire and Massachusetts. Defendants removed the case to
this court pursuant to 28 U.S.C. § 1442(a)(1) and now move to
dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing
that that Civil Service Reform Act (“CSRA”) applies to Lath’s
claim and divests the court of subject matter jurisdiction.
Lath objects.
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STANDARD OF REVIEW
The court must determine whether subject matter
jurisdiction exists before considering the merits of the
complaint. Acosta-Ramirez v. Banco Popular de P.R., 712 F.3d
14, 18 (1st Cir. 2013). When jurisdiction is challenged under
Federal Rule of Civil Procedure 12(b)(1), the court takes the
factual allegations in the complaint as true, with reasonable
inferences in the plaintiff’s favor, and may also consider other
evidence that is submitted. Merlonghi v. United States, 620
F.3d 50, 54 (1st Cir. 2010).
DISCUSSION
Defendants argue that in his employment with the DCMA, Lath
was covered by the CSRA. They contend that because the CSRA
provides the exclusive mechanism through which Lath may
challenge an adverse personnel action, such as the DCMA’s
alleged failure to pay for his travel expenses and unscheduled
leave, this court lacks jurisdiction over his claim.
“The CSRA established a comprehensive system for reviewing
personnel action taken against federal employees.” United
States v. Fausto, 484 U.S. 439, 455 (1988). “This framework
provides the exclusive mechanism for challenging adverse
personnel actions in federal employment.” Rodriguez v. United
States, 852 F.3d 67, 82 (1st Cir. 2017).
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Under the CSRA, an aggrieved federal employee may appeal an
adverse personnel action to the Merit Systems Protection Board
(“MSPB”). See 5 U.S.C. § 7701(a). “Subject to limited
statutory exceptions, the appellant may then petition for review
of the MSPB’s decision to the Federal Circuit.” Rodriguez, 852
F.3d at 82 (citing 5 U.S.C. § 7703(b)(1)(A)).
The CSRA, however, does not provide “the only means of
judicial review of any actions affecting federal employees
. . . .” Bosco v. United States, 931 F.2d 879, 883 (Fed. Cir.
1991). Instead, it is “the only means of review as to the types
of adverse personnel action[s] specifically covered by the CSRA
. . . .” Id. As relevant to Lath’s claim, the CSRA encompasses
personnel actions “including ‘(1) a removal; (2) a suspension
for more than 14 days; (3) a reduction in grade; (4) a reduction
in pay; and (5) a furlough of 30 days or less.’” Abramson v.
United States, 42 Fed. Cl. 326, 332 (Fed. Cl. 1998) (quoting 5
U.S.C. § 7512(1)-(5) (emphasis added)).
Lath does not dispute that he is a federal employee covered
by the CSRA.1 He argues that his claim is not subject to the
1 Although the CSRA does not apply to all federal employees,
the Act applies to “competitive service employees,” such as
Lath, “for whom nomination by the President and confirmation by
the Senate is not required, and who are not specifically
excepted from the competitive service by statute or by
statutorily authorized regulation.” Fausto, 484 U.S. at 441
n.1; see also doc. no. 3-2 at ¶ 3 (noting that the position of
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CSRA, however, because it “arises out of New Hampshire Wage Law
codified in NH RSA 275” and therefore “falls outside the CSRA.”
Doc. no. 6 at 13, 14. Lath states several times in his
objection that his claim in this case is one for unpaid wages
under New Hampshire state law. See doc. no. 6 at 13, 14, 15,
16, 17, 18 & 19).
In light of Lath’s clarification in his objection, Lath’s
claim in this case is that defendants violated RSA Chapter 275.
It is unclear whether Lath’s state law wage claim is based on
allegations of a “reduction in pay” such that it falls within
the purview of the CSRA. See Thayer-Ballinger v. U.S. Postal
Serv., No. 1:11-CV-745-WTL-TAB, 2013 WL 2368791, at *2-3 (S.D.
Ind. May 29, 2013) (holding that the defendant had not shown
that plaintiff’s claim under Indiana’s wage statute was based on
allegations of a “reduction in pay” and thus had not shown that
the claim was preempted by the CSRA); Hannon v. United States,
48 Fed. Cl. 15, 25 (Fed. Cl. 2000) (holding that the plaintiff’s
claim challenging government’s denial of overtime compensation
and benefits was not subject to the CSRA); Bradley v. United
States, 42 Fed. Cl. 333, 336 (Fed. Cl. 1998). Therefore,
because Lath has clarified his claim in his objection and in
light of his pro se status, and because the government has not
quality assurance engineer at the DCMA was identified as a
competitive service position).
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specifically addressed the application of the CSRA to Lath’s
state wage law claim, the government’s motion to dismiss for
lack of subject matter jurisdiction is denied without prejudice.2
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 3) is denied without prejudice.
SO ORDERED
__________________________
Landya McCafferty
United States District Judge
September 4, 2018
cc: Sanjeev Lath, pro se
Terry L. Ollila, Esq.
2 The court takes no position as to whether Lath’s state
wage law claim is preempted by any other statutory or regulatory
scheme applicable to the DCMA.
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