                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          January 2, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MICHAEL PLIUSKAITIS,

      Plaintiff - Appellant,

v.                                                          No. 17-4051
                                                  (D.C. No. 2:15-CV-00198-PMW)
USA SWIMMING,                                                 (D. Utah)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
                 _________________________________

      Michael Pliuskaitis was a coach member of USA Swimming. After allegations

arose that he engaged in inappropriate sexual relations with a minor athlete, USA

Swimming permanently banned him from membership in USA Swimming. An

arbitrator overturned that decision as arbitrary and capricious, and Mr. Pliuskaitis

was reinstated as a coach member of USA Swimming. But the arbitrator denied

Mr. Pliuskaitis’s request for damages. Mr. Pliuskaitis did not seek judicial review of


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the arbitrator’s decision, but he subsequently filed a complaint in federal court

bringing claims for damages related to the process by which USA swimming initially

determined that he was ineligible to continue coaching. The district court dismissed

his complaint, and Mr. Pliuskaitis now appeals from that decision. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                           I.

      Mr. Pliuskaitis coached youth swimming in Virginia and was a coach member

of USA Swimming. The United States Olympic Committee (USOC) has designated

USA Swimming as the National Governing Body (NGB) for the sport of swimming

in the United States. The Ted Stevens Olympic and Amateur Sports Act (Sports Act)

thus requires USA Swimming to provide “fair notice and opportunity for a hearing”

to any amateur athlete or coach before declaring an individual ineligible to

participate in amateur competition. 36 U.S.C. § 220522(a)(8). Through its

administrative process for investigating complaints against its members, which

includes an evidentiary hearing and an appeal, USA Swimming determined that

Mr. Pliuskaitis violated certain provisions of its Code of Conduct by engaging in an

inappropriate sexual relationship with a minor athlete. As a result, it banned him for

life from membership in USA Swimming.

      The Sports Act gave Mr. Pliuskaitis the right to demand binding arbitration

with respect to USA Swimming’s decision. See 36 U.S.C. § 220522(a)(4)(B). He

exercised this right, and the arbitrator concluded that USA Swimming’s decision was

arbitrary and capricious. The arbitrator thus ordered USA Swimming to remove

                                           2
Mr. Pliuskaitis from the banned-for-life list and to reinstate him to membership in the

organization. The arbitrator further ordered USA Swimming to pay the fees and

expenses of the arbitration, but she expressly denied Mr. Pliuskaitis’s claim for

damages. Neither Mr. Pliuskaitis nor USA Swimming sought judicial review or

modification of the arbitrator’s decision.

       Almost a year after the arbitration decision, Mr. Pliuskaitis filed a complaint

and an amended complaint in federal district court. He brought claims against USA

Swimming for defamation, breach of duty, violation of the Sports Act, breach of

good faith and fair dealing, and tortious interference.

       Mr. Pliuskaitis generally alleged that the process by which USA Swimming

determined that he was ineligible to continue coaching violated USA Swimming’s

own rules and regulations, its Code of Conduct, its Best Practices Guide, the USOC

bylaws, and the Sports Act “in its treatment of [him] concerning the allegations

levied against him.” Aplt. App. at 12 ¶¶ 39-42. He repeated these or similar

allegations in his claims for breach of duty, see id. at 14 ¶ 56, violation of the Sports

Act, id. at 15 ¶¶ 64-66, breach of contract, id. at 16 ¶ 72, and breach of good faith

and fair dealing, id. at 16-17 ¶ 78. In his tortious interference claim, he alleged that

as a result of the allegations against him, USA Swimming improperly interfered with

his ability to coach. And in his defamation claim, he alleged that USA Swimming

falsely published on its website, as part of its banned-for-life list, that Mr. Pliuskaitis

had violated a section of the Code of Conduct that had not been part of the complaint

or investigation.

                                             3
      USA Swimming filed a motion to dismiss, arguing that the amended complaint

should be dismissed for three reasons: the court lacked subject matter jurisdiction

because the claims were preempted by the Sports Act, the complaint failed to state a

claim, and the claims were barred by res judicata because they were already

adjudicated in binding arbitration. It also asserted that the defamation claim should

be dismissed as untimely. Mr. Pliuskaitis conceded in his response to the motion to

dismiss that the Sports Act expressly preempts any private actions that challenge the

method for determining a coach’s eligibility, but he argued that his claims were

outside the scope of the Sports Act and were not preempted.

      The district court concluded that Mr. Pliuskaitis’s claims for breach of duty,

breach of contract, breach of good faith and fair dealing, and tortious interference

were preempted by the Sports Act; it therefore dismissed those claims under Rule

12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter

jurisdiction. In the alternative, the court determined these claims were barred by res

judicata. Finally, the court concluded the defamation claim was untimely.

                                           II.

      We review de novo the district court’s dismissal of the amended complaint

under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

See Satterfield v. Malloy, 700 F.3d 1231, 1234 (10th Cir. 2012).

      Mr. Pliuskaitis argues that the district court erred in granting the motion to

dismiss because: (1) the Sports Act does not preempt his state-law claims; (2) the



                                           4
defamation claim was timely under the continuing tort doctrine; and (3) res judicata

does not bar his claims.1

      For the reasons discussed below, we agree with the district court that the

Sports Act preempts Mr. Pliuskaitis’s claims for breach of duty, breach of contract,

breach of good faith and fair dealing, and tortious interference. We likewise agree

with the district court that the defamation claim is untimely, and we affirm the

district court’s decision dismissing that claim for substantially the same reasons

stated in its Memorandum Decision and Order filed March 10, 2017.2 Because we


      1
         We admonish Mr. Pliuskaitis’s counsel for filing an inadequate appendix to
review the issues on appeal. As the appellant, Mr. Pliuskaitis is required to file an
appendix that is “sufficient for considering and deciding the issues on appeal.” 10th
Cir. R. 30.1(B)(1). “When the appeal is from an order disposing of a motion . . . , the
motion . . . and any responses and replies filed in connection with that motion . . .
must be included in the record.” 10th Cir. R. 10.3(D)(2); see also 10th Cir. R.
30.1(B)(1) (“The requirements of Rule 10.3 for the contents of a record on appeal
apply to appellant’s appendix.”). Although he argues that the district court erred in
granting USA Swimming’s motion to dismiss, Mr. Pliuskaitis’s appendix does not
include the motion to dismiss, his response to the motion, or USA Swimming’s reply
to the motion.

       “If the appendix and its supplements are not sufficient to decide an issue, we
have no obligation to go further and examine documents that should have been
included, and we regularly refuse to hear claims predicated on record evidence not in
the appendix.” Milligan-Hitt v. Bd. of Trs., 523 F.3d 1219, 1231 (10th Cir. 2008).
But “we retain the authority to go beyond the appendix if we wish, because all of the
transcripts . . . and documents and exhibits filed in district court remain in the record
regardless of what the parties put in the appendix.” Milligan-Hitt, 523 F.3d at 1231
(footnote omitted). Exercising our discretion, we elect in this instance to review the
relevant documents in the district court record.
      2
        In addition to his state-law claims, Mr. Pliuskaitis brought a stand-alone
claim under the Sports Act. Neither the parties nor the district court appear to have
addressed this claim separately, but Mr. Pliuskaitis concedes in his brief that “the
                                                                             (continued)
                                            5
can affirm the district court’s dismissal of the amended complaint based on our

resolution of these two issues, we need not discuss the district court’s alternative

ruling that the claims are barred by res judicata.

       Preemption may deprive a forum of jurisdiction or it may just create an

affirmative defense. See generally Int’l. Longshoremen’s Ass’n. v. Davis, 476 U.S.

380 (1986). The Sports Act grants the USOC and its NGBs exclusive jurisdiction

“over . . . all matters pertaining to United States participation in the Olympic

Games.” 36 U.S.C. § 220503(3)(A). It certainly appears that Congress gave USA

Swimming exclusive jurisdiction over some matters, but the extent of that exclusive

jurisdiction is not clear. Nor do we have to opine on that subject in this case. In

district court Mr. Pliuskaitis conceded that “[i]t is undisputed that the Sports Act

expressly preempts any private actions that challenge the method by which a coach of

amateur athletes’ eligibility is determined, provided that the organization actually

follows that method.” Pliuskaitis v. USA Swimming, No. 2:15-CV-00198-PMW,

Doc. 29 (Response to Motion to Dismiss) at 18-19 (D. Utah July 13, 2015).3 He

agreed with USA Swimming that “[t]he Sports Act grants exclusive authority to the

USOC and NGBs, such as USA Swimming, for all eligibility matters involving


Sports Act expressly does not create a private cause of action.” Aplt. Br. at 16
(citing 36 U.S.C. § 220505(9)). The district court therefore properly dismissed his
stand-alone Sports Act claim.
       3
        Because Mr. Pliuskaitis failed to include his response to the motion to
dismiss in the appendix, we take judicial notice of it as part of the district court
record in this case and we cite to its location on the district court docket.

                                            6
athletes and coaches in amateur sports . . . .” Id. at 18 (internal quotation marks and

emphasis omitted). His only qualification to that statement has been that a court can

examine whether the organization properly followed its own rules for determining

eligibility. We need not examine whether he is correct in that regard. Although a

party cannot concede subject-matter jurisdiction, it can concede lack of subject-

matter jurisdiction. A court has a duty to examine its jurisdiction to determine

whether it can review a matter; but it has no duty to insist on exercising jurisdiction

against the wishes of the parties. Therefore, the only matters we need to decide in

this appeal are (1) whether Mr. Pliuskaitis has adequately pleaded a claim

challenging whether USA Swimming properly followed its own rules, and (2)

whether his other claims require review of the determination of eligibility.

       Mr. Pliuskaitis insists the federal courts have jurisdiction to hear his claims

because his state-law claims “do not pertain to his eligibility.” Aplt. Br. at 20. To the

contrary, he argues that his claims are, in fact, based on USA Swimming’s (1) arbitrary

and capricious behavior during the eligibility determination and (2) the fact that USA

Swimming violated its own rules and regulations during those proceedings—not USA

Swimming’s eligibility determination itself. We conclude, however, that

Mr. Pliuskaitis’s amended complaint does not, in fact, do anything other than seek

damages based on USA Swimming’s eligibility determination, thus ending his case.

       Fairly and liberally reading Mr. Pliuskaitis’s complaint demonstrates that his

claim is solely based on USA Swimming’s eligibility determination, not violations of

its own internal rules. For one thing, the amended complaint’s statement of facts just

                                              7
describes the eligibility proceeding and the facts that undergirded it. For another,

although Mr. Pliuskaitis claims USA Swimming violated a myriad or provisions—its

rules and regulations, its Code of Conduct, its Best Practices Guide, and the USOC’s

bylaws—neither his complaint nor his brief cite any specific provisions

USA Swimming violated. Indeed, the district court properly observed that

Mr. Pliuskaitis “provide[d] only vague and conclusory allegations regarding

USA Swimming’s alleged breach, which are not sufficient to establish this court’s

jurisdiction” and did not “set forth the specific rules that USA Swimming allegedly

breached; rather, [he] simply disagrees with USA Swimming’s determination

regarding his eligibility.” Aplt. App. at 34-35. The only fair reading of the

complaint, then, is that it challenges USA Swimming’s initial eligibility

determination itself and the consequences that flowed from it—not USA Swimming’s

violation of its internal rules or its alleged arbitrary and capricious behavior during

the eligibility proceeding.

      Mr. Pliuskaitis also cites Lee v. U.S. Taekwondo Union, 331 F. Supp. 2d 1252

(D. Haw. 2004), and Shepherd v. U.S. Olympic Committee, 464 F. Supp. 2d 1072 (D.

Colo. 2006), to argue the Sports Act does not preempt his state-law claims. But in

both cases, the courts held that the discrimination claims brought under federal

statutes were not preempted and allowed those claims to continue. See Lee, 331 F.

Supp. 2d at 1260-61; Shepherd, 464 F. Supp. at 1088-89. Mr. Pliuskaitis does not

bring a claim under federal law, so neither case is on point.



                                            8
       We also note that the administrative procedures set out in the Sports Act for

resolving disputes concerning an NGB’s eligibility determination did provide a

remedy for Mr. Pliuskaitis in this case. After Mr. Pliuskaitis exercised his right

under the Sports Act to arbitrate the eligibility determination, the arbitrator

concluded that USA Swimming’s decision to ban Mr. Pliuskaitis for life was

arbitrary and capricious. The arbitrator’s decision resulted in USA Swimming

removing Mr. Pliuskaitis from the banned-for-life list and reinstating him as a

member of USA Swimming. The arbitrator also considered and denied

Mr. Pliuskaitis’s request for damages. Mr. Pliuskaitis “did not move to modify the

Arbitrator’s ruling” and now “essentially seeks further appeal of the determinations

made in the administrative process.” Aplt. App. at 32.

       In sum, the Sports Act preempts Mr. Pliuskaitis’s claims, so the district court

properly dismissed those claims under Rule 12(b)(1) for lack of subject matter

jurisdiction.

                                           III.

       For the foregoing reasons, we affirm the district court’s judgment.


                                                       Entered for the Court
                                                       Per Curiam




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