In Martinez v. Snow, No. 1:04-cv-6285-SMS, 2006 U.S. Dist. LEXIS 93191 (E.D.Cal. Dec. 12, 2006) the court dismissed the FMLA civil suit of an IRS employee on the basis of sovereign immunity and failure to exhaust administrative remedies.
Regarding the former, the Court noted that sovereign immunity was an important limitation on the subject matter jurisdiction of federal courts. The United States, the court observed, is immune from suit unless it consents to be sued, and the terms of its consent to be sued in a court defines the court's jurisdiction to hear the suit. The United States, as sovereign, can only be sued to the extent that it has waived its sovereign immunity.
Here, the Court found that the right to enforce the FMLA for federal employees of under one year is governed by Title I of the FMLA. Title I expressly provides for a private right of action to enforce the entitlement to leave and to obtain compensation for FMLA violations. However, the provisions governing federal civil service employees with more than twelve months of service are governed by Title II of the FMLA. Title II, the court found, does "not grant a private right of action to an aggrieved employee." The failure, the court stated, "to include an express private right of action constitutes a bar to a claim such as Plaintiff's because there is no consent to suit or waiver of sovereign immunity."
The Court also found that, because of the comprehensive nature of the Civil Service Reform Act (CSRA), any avenue of relief for violation of Title II of the FMLA through the Administrative Procedure Act or via a Bivens suit was foreclosed.
The Court also based its decision to dismiss the Title II FMLA claim on Plaintiff's failure to exhaust her administrative remedies. The court found that, under the CSRA, the Plaintiff had two avenues to pursue her FMLA claim: through a statutory procedure or to seek relief through available union grievance procedures, but not both. 5 USC 7121(a)(1). Here, Plaintiff elected to file a grievance, but abandoned that process before the matter went to arbitration. The court found that by abandoning the grievance process Plaintiff failed to exhaust her administrative remedies. According to the court, the "failure to exhaust her grievance completely results in Plaintiff's failing to establish jurisdiction or to state claim."
Comment: The decision appears to have reached the correct result although the court's reasoning is questionable. The court is correct that federal civil service employees do not have the right to maintain a private suit for violations of Title II of the FMLA. It is also correct that federal civil service employees with 12 months of employment are covered by Title II. The court's statement that federal employees with less than 12 months of service are covered by Title I of the FMLA and, therefore, have the right to file a civil action for FMLA violations is incorrect. Title I covers all non-civil service federal employees. A federal civil service employee with less than 12 months of employment simply has no right to FMLA leave. Moreover, there are three eligibility requirements for Title I FMLA coverage one of which is that the employee have worked for the federal government for at least 12 months.
The court's finding that federal employee's were precluded from bringing an FMLA suit indirectly through the Administrative Procedure Act or a Bivens suit is correct. In addition to the CSRA, most courts have found against such indirect FMLA suits because of the comprehensive nature of the FMLA remedial scheme itself.
Finally, the court's determination that the employee's FMLA suit was precluded by the CSRA because she failed to exhaust her administrative remedies appears to be somewhat misleading. Ms. Martinez did not suffer an adverse action within the meaning of the CSRA (the employer merely denied her request for FMLA leave). As such, she did not have the right to file an MSPB appeal alleging solely based on a violation of the FMLA. Accordingly, her only avenue of relief for violation of Title II of the FMLA was to file a grievance. When she abandoned her grievance, she lost the ability to seek relief for any FMLA violation.