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Macmillan v. Pennsylvania Air National Guard

United States District Court, W.D. Pennsylvania

June 7, 2018

DAVID J. MACMILLAN, Plaintiff,
v.
PENNSYLVANIA AIR NATIONAL GUARD, et al., Defendants.

          ORDER

          CATHY BISSOON UNITED STATES DISTRICT JUDGE

         Plaintiff's Motion to Remand (Doc. 4) currently is pending before the Court. For the foregoing reasons, the Court grants Plaintiff's Motion in part and denies it in part.

         Plaintiff initiated suit in the above-captioned action by filing a Complaint in the Allegheny County Court of Common Pleas. Compl., Doc. 1-2. Plaintiff's Complaint alleges, in relevant part, that Plaintiff served as a member of the Pennsylvania Air National Guard (“National Guard”) from 1983 until 2014. Id., at ¶ 4. The National Guard employed Plaintiff, in addition to his active service, as a civilian technician. Id., at ¶ 5. In January 2011, the U.S. Property and Fiscal Office-Pennsylvania Division (“USPFO-PA”) published an audit concluding that numerous National Guard members violated the Uniform Services Employment and Reemployment Rights Act (“USERRA”). Id., at ¶ 14. Following the audit, the USPFO-PA issued collection notices. Id., at ¶ 20. Plaintiff formally objected to both the audit and collection efforts on the grounds that the USPFO-PA incorrectly sought collection of compensation that USERRA permitted. Id., at ¶¶ 21-23, 27. After objecting, Plaintiff alleges that he was passed over for jobs/promotions for which he was qualified, stripped of his duties and eventually terminated. Id., at ¶¶ 24, 28, 31, 35, 36, 38, 39-40. Defendant Adjutant General of Pennsylvania (“Adjutant General”) noticed the removal of this action from the Allegheny County Court of Common Pleas on May 2, 2018. Doc. 1. On May 7, 2018, Plaintiff moved to remand. Doc. 4.

         Plaintiff contends that the Court does not have subject matter jurisdiction because, although USERRA provides a federal cause of action, USERRA also divests federal courts of their jurisdiction in actions brought against states, as employers. The Court agrees. “In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.” 38 U.S.C.S. § 4323(b)(2) (2018) (emphasis added). Section 4323(b)(2)'s seemingly permissive language (i.e., “may be brought”) has been interpreted to constrain jurisdiction to state courts in USERRA actions against states as employers. See e.g., Wood v. Florida Atlantic Univ. Bd. of Trustees, 432 F. App'x. 812, 815 (11th Cir. 2011); McIntosh v. Partridge, 540 F.3d 315, 321 (5th Cir. 2008).[1]

         Further, “in the case of a National Guard technician employed under section 709 of Title 32, the term ‘employer' means the adjutant general of the State in which the technician is employed.” 38 U.S.C. § 4303(4)(B). Under USERRA, ‘“[a]n action brought against a State Adjutant General, as an employer of a civilian National Guard technician, is considered an action against a State for purposes of determining which court has jurisdiction.'” Stoglin v. MSPB, 640 Fed.Appx. 864, 868 (Fed. Cir. 2016) (citing 20 C.F.R. § 1002.305(d)).

         Plaintiff, as a civilian Nation Guard technician, has brought this action against his employer, the Adjutant General, a state employer. Thus, Plaintiff's suit is considered an action against the state for the purposes of determining jurisdiction, and an action against the state as an employer must be brought in state court under USERRA. e.g., Wood, 432 F. App'x. at 815. Therefore, the Court does not have federal question jurisdiction over this matter and must remand to the Allegheny County Court of Common Pleas, forthwith.

         Plaintiff also requests that the Court order the Adjutant General of Pennsylvania to award costs and attorney's fees incurred in moving to remand because removal was “improper based upon the clear language of 38 U.S.C.S § 4323(b)(2).” Motion to Remand, at ¶ 9; see also, 38 U.S.C.S § 4323(b)(2) (“[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.”).

         The Supreme Court has announced that “[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). In interpreting “objectively reasonable, ” several circuit courts have adopted a modified qualified immunity standard to determine whether attorney's fees should be awarded-i.e., whether clearly established law foreclosed defendant's basis for removal at the time of removal. Joseph v. Gov't of the V.I., No. 2011-83, 2013 U.S. Dist. LEXIS 99709, at *4 (D.V.I. July 17, 2013) (collecting cases). The law is clearly established when either a “controlling authority in the[] jurisdiction, ” Wilson v. Layne, 526 U.S. 603, 617 (1999), or a “robust ‘consensus of cases of persuasive authority'”[2] exists. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (quoting Wilson, 526 U.S. at 617). The Court has not found-and Plaintiff has not cited-binding Third Circuit authority articulating that states have exclusive jurisdiction over USERRA actions pursuant to § 4323(b)(2). Rather, circuit courts in other jurisdictions have interpreted § 4323(b)(2) to abrogate federal jurisdiction in USERRA actions against states as employers.

         Despite the growing consensus of persuasive authority emerging, the Court will not award Plaintiff attorney's fees.[3] As a predicate matter, this Court is not bound by other circuit courts' adoption of the qualified immunity standard and, by extension, the Supreme Court's definition of “clearly established law.” Instead, the Court notes that the Court considered the arguably robust consensus of persuasive authority as a factor in its decision.

         In this instance, however, other considerations warrant the Court finding that the Adjutant General had an objectively reasonable basis to remove this action. The plain language of § 4323(b)(2) suggests that federal courts may share jurisdiction with state courts. Although courts have generally agreed that actions under USERRA against state court employers must be brought in state court, see Joseph, 2013 U.S. Dist. LEXIS 99709, at *7 (collecting cases), the plain language of § 4323(b)(2) could suggest otherwise, and, as previously noted, the Court of Appeals for the Third Circuit has not interpreted this provision. Given the statute's ambiguity, and the lack of binding authority interpreting it, the Adjutant General had a reasonable basis to conclude that removal was proper, even if a robust consensus of persuasive authority does not.[4]

         Further, the Third Circuit is not bound by persuasive authority from other circuits. Although this Court agrees with the other circuit courts' reasoning, the Court of Appeals for the Third Circuit may not. Until the Court of Appeals rules otherwise, Defendants should not be sanctioned for advancing an objectively reasonable position in the face of contradictory persuasive authority.

         Accordingly, Plaintiff's Motion to Remand (Doc. 4) is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED insofar as it seeks remand to the Allegheny County Court of Common Pleas. It is DENIED insofar as it seeks attorney's fees.

         IT IS ...


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