                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                             )
ADJELEY OSEKRE,                              )
                                             )
                       Plaintiff,            )
                                             )
               v.                            )       Civil Action No. 09-1194 (RBW)
                                             )
JOHN GAGE,                                   )
                                             )
                       Defendant.            )
                                             )

                                    MEMORANDUM OPINION

       This matter is before the Court on the defendant’s motion to dismiss. For the reasons

discussed below, the motion will be granted and this action will be dismissed for lack of subject

matter jurisdiction.

                                      I. BACKGROUND

       The plaintiff alleges that she was an employee of the District of Columbia government

and a dues-paying member of the American Federation of Government Employees (“AFGE”)

from May 5, 1986, until her removal on November 13, 2001. See Complaint (“Compl.”) at 1;1

see also Addendum to Opposition to Motion to Dismiss (“Pl.’s Opp’n”) at 1. Defendant John

Gage represents that the AFGE “is a labor organization whose affiliates represent both federal

and District [of Columbia] employees,” and that he “is currently the National President of

AFGE.” Memorandum of Points and Authorities in Support of Motion to Dismiss by Defendant

John Gage (“Def.’s Mem.”) at 6.


       1
              The pages of the complaint were not numbered, so the Court has numbered the
pages based on the order in which they were submitted by the plaintiff.

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       It appears that the plaintiff sought union representation in connection with events leading

to and occurring after the termination of her employment, see Compl. at 1, and she received no

response from the AFGE to her requests. See id. She purports to bring this action under the

Labor Management Relations Act (“LMRA”), see 29 U.S.C. §§ 151, 152, 185 (2006), alleging

that the AFGE breached its duty of fair representation. Compl. at 2. Among other relief, the

plaintiff demands reinstatement, back pay, and reimbursement of the union dues she paid since

1998. Id. at 3.

                                         II. DISCUSSION2

                       A. Dismissal for Lack of Subject Matter Jurisdiction

       The defendant moves to dismiss this action under Rule 12(b)(1) of the Federal Rules of

Civil Procedure on the ground that this Court lacks subject matter jurisdiction. See Def.’s Mem.

at 8-16. Federal courts are courts of limited jurisdiction and the plaintiff bears the burden of

establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

377 (1994). While a complaint filed by a pro se litigant is held to a less stringent standard than

the standard applied to a formal pleading drafted by a lawyer, see Haines v. Kerner, 404 U.S.

519, 520 (1972), the plaintiff “must still allege a cause of action that falls within the subject

matter jurisdiction of this Court.” Ha v. U.S. Dep’t of Educ., __ F. Supp. 2d __, __, 2010 WL

129673, at *1 (D.D.C. Jan. 13, 2010).




       2
                For purposes of this Memorandum Opinion, the Court presumes that John Gage is
the proper defendant to this action, notwithstanding the absence of factual allegations sufficient
to state a claim against him personally for the alleged breach of the union’s duty of fair
representation.

                                                  2
             B. The Comprehensive Merit Personnel Act Bars The Plaintiff’s Claims

       The defendant argues that the plaintiff’s reliance on the LMRA as the basis for this Court

having subject matter jurisdiction is misplaced. See Def.’s Mem. at 8. Although certain LMRA

provisions allow “private sector employees to enforce a union’s duty of fair representation,” he

argues that a District government employee has no such right. Id. Specifically, the defendant

asserts that an employer for purposes of the LMRA excludes “any State or political subdivision

thereof,” 29 U.S.C. § 152(2) (2006), such as the District of Columbia. Def.’s Mem. at 8. Rather,

because the plaintiff was a District government employee, the defendant asserts that the

Comprehensive Merit Personnel Act (“CMPA”), see D.C. Code §§ 1-601.01, 1-602.01, 1-

605.02, 1-617.04, 1-617.13(c) (2001), applies, and that its provisions deprive this Court of

subject matter jurisdiction. See Def.’s Mem. at 14-16.

        “With few exceptions, the CMPA is the exclusive remedy for a District of Columbia

public employee who has a work-related complaint of any kind.” Robinson v. District of

Columbia, 748 A.2d 409, 411 (D.C. 2000) (citing Stockard v. Moss, 706 A.2d 561, 564 (D.C.

1997)). The CMPA “create[s] a mechanism for addressing virtually every conceivable personnel

issue among the District, its employees, and their unions – with a reviewing role for the courts as

a last resort, not a supplementary role for the courts as an alternative forum.” District of

Columbia v. Thompson, 593 A.2d 621, 634 (D.C. 1991), modifying, 570 A.2d 277 (D.C. 1990),

cert. denied, 502 U.S. 942 (1991). Among other purposes, the CMPA “[p]rovide[s] for a

positive policy of labor-management relations including collective bargaining between the

District of Columbia government and its employees.” D.C. Code § 1-601.02(a)(6).

       The CMPA created the Public Employee Relations Board (“PERB”) “with a mandate to


                                                  3
‘issue rules and regulations establishing a labor-management relations program to implement the

policy set forth in [the CMPA],’” Hawkins v. Hall, 537 A.2d 571, 574 (D.C. 1988) (citing D.C.

Code § 1-618.2 (1987), now codified at D.C. Code § 1-617.02(a)), including provisions for the

“resolution of unfair labor practice allegations.” D.C. Code § 1-617.02(b)(2); see D.C. Code §§

1-605.02(3), 1-605.02(9) (respectively authorizing the PERB to “[d]ecide whether unfair labor

practices have been committed and issue an appropriate remedial order” and to “[m]ake decisions

and take appropriate action on charges of failure to adopt, subscribe, or comply with the internal

or national labor organization standards of conduct for labor organizations”). An employee

“cannot defeat the exclusive jurisdiction in PERB by casting [her] complaint against the union

for breach of duty of fair representation in the form of a common law breach of contract,”

Cooper v. AFSCME, Local 1033, 656 A.2d 1141, 1144 (D.C. 1995), nor may she bring claims

arising out of employment disputes within the scope of the CMPA by couching them as common

law tort claims. See Thompson, 593 A.2d at 635 (holding that the CMPA “preclude[s] litigation

of [the plaintiff’s] emotional distress and defamation claims, in the first instance, in Superior

Court”); Stockard, 706 A.2d at 565-66 (concluding that an employee’s slander claim was subject

to CMPA exhaustion requirements).

       The Court finds that it is reasonable to construe the plaintiff’s complaint as alleging that

the union breached its duty of fair representation, which, in turn, is equivalent to alleging that the

union committed an unfair labor practice. McManus v. District of Columbia, 530 F. Supp. 2d 46,

78 (D.D.C. 2007) (“The CMPA makes a union’s breach of its duty of fair representation an

unfair labor practice, and grants the PERB exclusive jurisdiction over allegations of unfair labor

practices.”); see D.C. Code §§ 1-605.02(3) and 1-617.04(b)(1) (prohibiting “[t]he District, its


                                                  4
agents, and representatives from . . . [i]nterfering with, restraining, or coercing any employee in

the exercise of the rights guaranteed by [the CMPA]”). “[U]nder the CMPA, the PERB has

exclusive jurisdiction over disputes involving grievances under a collective bargaining

agreement, regardless of whether claims against a union allege a breach of the duty of fair

representation or breach of contract.” Jackson v. District of Columbia Dep’t of Health, No.

06-1347, 2007 WL 1307891, at *2 (D.D.C. May 3, 2007) (citing Cooper, 656 A.2d at 1141-43).

The plaintiff’s recourse, then, is to pursue her challenge before the PERB. See Thompson, 593

A.2d at 626 (finding that an employee “dissatisfied with [her] union’s representation may appeal

to PERB”); Hawkins, 537 A.2d at 574-75 (holding in a case brought by Board of Education

employees who claimed the Board and union unlawfully withheld union dues from their wages

that “primary jurisdiction to determine unfair labor practice claims lies with the PERB, subject

only to review by the courts under well-established principles of administrative law”). Because

the PERB has exclusive jurisdiction over the plaintiff’s claim for unfair labor practices, the Court

must dismiss the complaint for lack of subject matter jurisdiction. See McManus, 530 F. Supp.

2d at 79; Holman v. Williams, 436 F. Supp. 2d 68, 74 (D.D.C. 2006) (“Preemption by the CMPA

divests the trial court – whether it be the Superior Court or this Court – of subject matter

jurisdiction.”).




                                                  5
                                       III. CONCLUSION

       Because the plaintiff’s claim falls within the broad scope of the CMPA, this Court lacks

subject matter jurisdiction over it. Accordingly, the Court declines to entertain the defendant’s

alternative arguments for dismissal, and will grant his motion to dismiss. An Order accompanies

this Memorandum Opinion.



                                                                   /s/
                                                     REGGIE B. WALTON
                                                     United States District Judge

DATE: March 29, 2010




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