United States District Court, D. New Hampshire
MCCAFFERTY, UNITED STATES DISTRICT JUDGE
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.
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).
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.
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).
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)).
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)).
does not dispute that he is a federal employee covered by the
CSRA. He argues that his claim is not subject to
the 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).
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 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
foregoing reasons, defendants' motion to dismiss (doc.