420 F. App'x 798
10th Cir.2011Background
- Pretlow sued federal officials for defamation, discrimination, and retaliation related to his employment at Tinker Air Force Base.
- The district court sua sponte removed the case to federal court under 28 U.S.C. § 1442(a)(1) and substituted the United States as defendant.
- The district court dismissed the action on jurisdictional grounds; the Tenth Circuit affirmed dismissal and remanded to dismiss without prejudice.
- Pretlow was a federal employee, terminated in June 2010, alleging conduct by officials acting under color of their federal offices.
- Key issues center on removal under § 1442, preemption by federal remedies (Title VII, CSRA, WPA), and FTCA sovereign-immunity considerations.
- The panel granted in forma pauperis status for appeal and remanded for dismissal to be without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was removal under § 1442 proper? | Pretlow argues removal was improper or defective. | Defendants contend actions were taken under color of federal office, justifying removal. | Yes; removal proper because defendants acted under color of federal offices and presented colorable federal defenses. |
| Do Title VII claims preempt state-law and constitutional claims? | Discrimination claims fall under Title VII remedies; state and constitutional claims are cognizable. | Title VII exclusive remedy preempts these claims. | Held: Title VII preempts the discrimination/retaliation claims. |
| Do CSRA/WPA preempt whistleblower claims and require exhaustion? | Whistleblower retaliation claims should proceed under CSRA/WPA and exhaustion not required. | CSRA/WPA preempts whistleblower claims; exhaustion required. | Held: CSRA/WPA preempt these claims; exhaustion required to proceed. |
| Does FTCA preclude or displace defamation and other tort claims? | Defamation could proceed under FTCA or other tort theories. | FTCA provides exclusive remedy for tort claims, excluding defamation from its waiver. | Held: FTCA precludes or CSRA preempts defamation, depending on theories; either way claims barred or exhausted preemption applies. |
| Must dismissal be without prejudice for lack of exhaustion/jurisdictional defects? | Dismissal should be merits-based. | Dismissal should be non-merits and without prejudice due to jurisdictional flaw. | Held: Dismissal should be without prejudice for lack of exhaustion/jurisdictional grounds. |
Key Cases Cited
- Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) (explicates breadth of § 1442 removal for federal officers)
- Mesa v. California, 489 U.S. 121 (1989) (removal predicated on colorable federal defense)
- Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976) (Title VII exclusive remedy)
- Ford v. West, 222 F.3d 767 (10th Cir. 2000) (Title VII preemption principals recognized)
- Steele v. United States, 19 F.3d 531 (10th Cir. 1994) (CSRA preemption governs federal personnel actions)
- Petrini v. Howard, 918 F.2d 1482 (10th Cir. 1990) (CSRA scope vs FTCA distinction in employment claims)
- United States v. Smith, 499 U.S. 160 (1991) (FTCA remedy limits and sovereign immunity considerations)
- Aviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989) (FTCA displaces other tort remedies; defamation context discussed)
- Khader v. Aspin, 1 F.3d 968 (10th Cir. 1993) (exhaustion as jurisdictional prerequisite in Title VII context)
- Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058 (10th Cir. 2002) (exhaustion required to show jurisdiction for Title VII claims)
- Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005) (exhaustion as jurisdictional prerequisite in employment discrimination cases)