1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

William H Mallery, IV, 

Plaintiff, 

v. 

Sally Jewell, 

Defendant. 

No. CV-15-08305-PCT-DGC

ORDER 

On December 21, 2015, Plaintiff William H. Mallery, IV, a Park Ranger with the 

National Park Service (“NPS”), initiated this action by filing a complaint alleging that the 

NPS violated his rights under the Family Medical Leave Act (“FMLA”). Doc. 1. 

Defendant Sally Jewell, the Secretary of the Interior, moves to dismiss the action for want 

of subject matter jurisdiction, or, in the alternative, for failure to perfect service of 

process. Doc. 7. The motion has been fully briefed (Docs. 9, 11), and no party requests 

oral argument. The Court will grant the motion and dismiss without leave to amend. 

Mallery is a federal civil service employee with more than twelve months of 

service. See Doc. 1, ¶ 6 (alleging that Mallery began his employment with the NPS in 

June 2011). As such, his rights with respect to family and medical leave are governed by 

Title II of the FMLA. See Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018 (9th 

Cir. 1999); 5 U.S.C. § 6381(1)(a) (defining “employee” for purposes of Title II); § 6382 

(leave requirements for Title II employees). 

Case 3:15-cv-08305-DGC Document 13 Filed 06/10/16 Page 1 of 4
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

The Ninth Circuit has previously considered “whether federal employees covered 

by Title II of the [FMLA] may bring suit for violations of its provisions.” Russell, 191 

F.3d at 1018. The court noted that Title II of the FMLA – unlike Title I of the statute – 

did not provide a statutory right of action and did not otherwise waive the federal 

government’s sovereign immunity. Id. at 1019. The court determined that review was 

not available under the Administrative Procedure Act (“APA”), finding that the Civil 

Service Reform Act preempted the APA’s judicial review provision in this context. Id. 

The Court therefore concluded that the federal employee’s “claims under Title II of the 

[FMLA were] barred by sovereign immunity and preempted by the Civil Service Reform 

Act.” Id. at 1020. 

The Ninth Circuit reaffirmed this conclusion in Johnson v. Departments of Army 

& Air Force, upholding the dismissal of an FMLA claim brought by a federal employee 

with more than twelve months of service. 465 F. App’x 644, 645 (9th Cir. 2012) (“The 

district court properly dismissed Johnson’s claims under [the FMLA] because Johnson 

did not have a private right of action.”) (citing Russell, 191 F.3d at 1018-19). Other 

courts in this circuit have applied Russell to dismiss FMLA claims brought by federal 

civil service employees. See, e.g., Berg v. McHugh, No. 15-cv-02227-JSC, 2015 U.S. 

Dist. LEXIS 168418, at *25 (N.D. Cal. Dec. 16, 2015); Ibrahim v. Def. Language Inst. 

Foreign Language Ctr., No. 15-cv-00336-PSG, 2015 U.S. Dist. LEXIS 157320, at *6 

(N.D. Cal. Nov. 18, 2015). Thus, although federal employees like Mallery have rights 

under the FMLA, they cannot enforce these rights in federal court.1

Mallery contends that the government has abdicated its duty under 5 U.S.C. 

§ 6387 to establish regulations implementing Title II. Doc. 9 at 1. He argues that this 

abdication leaves him without a remedy, and that the Court should supply one. Id. at 1-2. 

In fact, the government has established regulations implementing Title II. See 5 C.F.R. 

§§ 630.1201-630.1213. But even if it were otherwise, the Court would remain without 

 

1

 Mallery argues that Russell was meant to be limited in temporal scope (Doc. 9 at 1), but nothing in the case supports that reading, and other courts have not found it to be 

so limited. 

Case 3:15-cv-08305-DGC Document 13 Filed 06/10/16 Page 2 of 4
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

jurisdiction to hear individual cases under Title II of the FMLA because Congress has not 

conferred such jurisdiction. 

Mallery asks the Court to grant leave to amend. Doc. 9 at 2. He believes that he 

may be able to substitute his managers for Secretary Jewell under Graziadio v. Culinary 

Institute of America, 817 F.3d 415 (2d Cir. 2016). But it is well established that “[t]he 

bar of sovereign immunity cannot be avoided by naming officers and employees of the 

United States as defendants.” Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) 

(citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949)). 

Graziadio does not contradict this rule, as the defendant there was a private company, not 

a federal officer or employee. Because it is clear on the face of the complaint that 

Mallery is a federal civil service employee with more than twelve months of service, and 

it is clear as a matter of law that such an employee cannot sue to enforce his rights under 

Title II of the FMLA, the Court will dismiss the matter without leave to amend. See, e.g., 

Ibrahim, 2015 U.S. Dist. LEXIS 157320, at *6 (“Ibrahim has no private right of action 

under the FMLA, and his FMLA claims are dismissed with prejudice.”); Taylor v. 

Donley, No. CIV S-08-0869 JAM DAD PS, 2010 U.S. Dist. LEXIS 21780, at *15 (E.D. 

Cal. Mar. 10, 2010) (“In the absence of a waiver of sovereign immunity for Title II 

employees, plaintiff’s FMLA claims are barred by sovereign immunity and should be 

dismissed [with prejudice].”). 

Mallery obviously believes that his rights have been violated and that it would be 

unfair for the Court to withhold a remedy. But as the Supreme Court has repeatedly 

explained, “Federal courts are courts of limited jurisdiction. They possess only that 

power authorized by Constitution and statute, which is not to be expanded by judicial 

decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal 

citations omitted). No provision of the Constitution and no statute authorizes the Court to 

enforce federal civil service employees’ right to family and medical leave. The Court 

must therefore dismiss this matter with prejudice. 

IT IS ORDERED that the motion to dismiss (Doc. 7) is granted without leave to 

Case 3:15-cv-08305-DGC Document 13 Filed 06/10/16 Page 3 of 4
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

amend. The Clerk of the Court shall enter judgment accordingly and terminate this case. 

Dated this 10th day of June, 2016. 

Case 3:15-cv-08305-DGC Document 13 Filed 06/10/16 Page 4 of 4