McMillan v. Garland ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Peter A. McMillan, ) No. CV-21-01036-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Merrick Garland, et al., ) 12 ) 13 Defendants. ) ) 14 ) 15 Before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction 16 and Failure to State a Claim (Doc. 34) filed by Defendants Merrick Garland and the 17 United States Drug Enforcement Administration (the “Federal Defendants”). For the 18 reasons that follow, the Motion will be granted. 19 I. BACKGROUND 20 On April 7, 2020, Plaintiff Peter A. McMillan—then a Special Agent with the 21 Phoenix Division of the United States Drug Enforcement Administration (“DEA”) within 22 the Department of Justice—was summoned to a meeting with Cheri Oz, Special Agent in 23 charge of the DEA Phoenix Division. (Doc. 32 at 10). In attendance were Plaintiff, Ms. 24 Oz, and a City of Phoenix police officer, later identified as DEA Group Supervisor Task 25 Force Officer Stephen Reed, who was detailed to DEA by the Phoenix Police 26 Department. (Doc. 32 at 10, 39). Ms. Oz told Plaintiff that “the reason for the meeting 27 was to inform the Plaintiff that the Plaintiff had been referred to the DEA Office of 28 Professional Responsibility by ‘someone’ in the Plaintiff’s DEA enforcement group for 1 ‘malicious referral.’” (Doc. 32 at 10). 2 In his First Amended Complaint (“FAC”), Plaintiff alleges that “Ms. Oz knew or 3 should have known that her purposeful/knowing decision to use Mr. Reed as a witness in 4 an internal disciplinary matter constitutes a gross violation of the Plaintiff’s Right to 5 Privacy and placed Plaintiff in a false light.” (Doc. 32 at 12). Plaintiff further alleges that 6 “[t]he referral of Plaintiff to the DEA Office of Professional Responsibility should never 7 have been shared with Mr. Reed whose presence was illegal.” (Doc. 32 at 12). On that 8 basis, the FAC alleges the tort of false light and violation of 5 U.S.C. § 552a, the Privacy 9 Act, against Defendants Merrick Garland, the DEA, the City of Phoenix, and the Phoenix 10 Police Department. (Doc. 32 at 5). In the instant motion, the Federal Defendants move to 11 dismiss Plaintiff’s claims against them. 12 II. LEGAL STANDARD1 13 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) “allows litigants to seek the 14 dismissal of an action from federal court for lack of subject matter jurisdiction.” 15 Kinlichee v. United States, 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (internal quotation 16 maarks omitted). “A motion to dismiss for lack of subject matter jurisdiction under Rule 17 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon 18 the court subject matter jurisdiction, or the existence of subject matter jurisdiction in 19 fact.” Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006); see also 20 Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). “When the motion to dismiss 21 attacks the allegations of the complaint as insufficient to confer subject matter 22 jurisdiction, all allegations of material fact are taken as true and construed in the light 23 most favorable to the nonmoving party.” Renteria, 452 F. Supp. 2d at 919. “When the 24 motion to dismiss is a factual attack on subject matter jurisdiction, however, no 25 presumptive truthfulness attaches to the plaintiff’s allegations, and the existence of 26 disputed material facts will not preclude the trial court from evaluating for itself the 27 1 Because the Court finds that it lacks subject matter jurisdiction, it will not 28 address the merits of the FAC as raised under Rule 12(b)(6). 1 existence of subject matter jurisdiction in fact.” Id. “A plaintiff has the burden of proving 2 that jurisdiction does in fact exist.” Id. 3 III. DISCUSSION 4 The Federal Defendants make a facial challenge to subject matter jurisdiction, so 5 the facts alleged in the FAC are taken as true. The Federal Defendants argue that the 6 Court lacks subject matter jurisdiction over both the Privacy Act and false light claims 7 because they are preempted by the Civil Service Reform Act (“CSRA”). (Doc. 34 at 4, 8 10). 9 “The CSRA provides a remedial scheme through which federal employees can 10 challenge their supervisors’ ‘prohibited personnel practices.’” Orsay v. U.S. Dep’t of 11 Just., 289 F.3d 1125, 1128 (9th Cir. 2002) (quoting 5 U.S.C. § 2302), abrogated on other 12 grounds by Millbrook v. U.S., 569 U.S. 50 (2013). When challenged conduct “falls within 13 the scope of the CSRA’s ‘prohibited personnel practices,’ then the CSRA’s 14 administrative procedures are [the plaintiff’s] only remedy, and the federal courts cannot 15 resolve [the] claims under the Privacy Act.” Id. Likewise, “[i]nsofar as the CSRA offer[s] 16 [Plaintiff] remedies, his state [common law] tort claims must be preempted to prevent 17 them from conflicting with the remedial system that Congress prescribed for federal 18 employees.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (holding that 19 Plaintiff’s defamation and invasion of privacy claims, among others, were barred by the 20 CSRA). “The CSRA’s elaborate remedies show that judicial interference in federal 21 employment is disfavored . . . .” Id. 22 The key question, then, is whether Plaintiff’s claims challenge “prohibited 23 personnel practices” under the CSRA. In Henderson v. U.S. Air Force, DMAFB, the 24 plaintiff, a federal civil service employee, alleged that his employer “failed to keep 25 confidential and properly safeguard information” related to his employment. No. CV 06- 26 323-TUC-FRZ (BPV), 2008 WL 4542761, at *3 (D. Ariz. 2008). The district court held 27 that the failure to properly maintain the plaintiff’s employment records and otherwise 28 comply with the Privacy Act was a prohibited personnel practice under the CSRA, and 1 therefore dismissed the case for lack of subject matter jurisdiction. Id. at *2–3. The Ninth 2 Circuit affirmed. See Henderson v. U.S. Air Force, 370 Fed. Appx. 807 (9th Cir. 2010); 3 see also Orsay, 289 F.3d at 1129–30. 4 Similarly, here, Plaintiff alleges that the Federal Defendants failed to keep 5 confidential the fact that he was referred to the DEA Office of Professional 6 Responsibility because Ms. Oz shared that information in Mr. Reed’s presence. As in 7 Henderson, the allegations involve the Federal Defendants’ maintenance of Plaintiff’s 8 employment records and compliance with the Privacy Act. Thus, the same result as 9 Henderson follows: Plaintiff’s claims involve prohibited personnel practices under the 10 CSRA, so the CSRA’s administrative procedures provide his only remedy. This Court 11 lacks subject matter jurisdiction to hear his claims.2 12 “A district court should not dismiss a pro se complaint without leave to amend 13 unless it is absolutely clear that the deficiencies of the complaint could not be cured by 14 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotation 15 marks omitted). In this case, amendment of Plaintiff’s claims against the Federal 16 Defendants would be futile because the Court’s lack of subject matter jurisdiction is 17 incurable. See Saul, 928 F.2d at 843. Accordingly, 18 IT IS ORDERED that the Motion to Dismiss (Doc. 34) is granted. Plaintiff’s 19 claims against Defendants Merrick Garland and the Drug Enforcement Administration 20 are dismissed without prejudice. 21 /// 22 /// 23 /// 24 /// 25 /// 26 27 2 Because the Court lacks subject matter jurisdiction over Plaintiff’s claims due to preemption by the CSRA, the Court need not address the other arguments raised in the 28 Federal Defendants’ Motion. 1 IT IS FURTHER ORDERED that the Clerk of Court shall terminate 2.| Defendants Merrick Garland and the Drug Enforcement Administration as parties in this action. 4 Dated this 9th day of December, 2021. 5 7 United States District Jadge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28