NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

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GWENDOLYN WILLIAMS,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF

VETERANS AFFAIRS - NEW JERSEY

HEALTHCARE SYSTEM, et al, 

Defendants.

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Hon. Dennis M. Cavanaugh

OPINION

Civil Action No. 11-3719 (DMC)(MF)

DENNIS M. CAVANAUGH, U.S. District Judge

This matter comes before the Court on Defendant Sharon Williams’ Motion to Dismiss

pursuant to FED. R. CIV. P. 12(b)(1) (ECF. No. 6) and Defendant United States Department of

Veterans Affairs - New Jersey Health Care System’s Motion to Dismiss pursuant to FED. R. CIV.

P. 12(b)(1) (ECF. No. 7). These motions were decided without oral argument pursuant to Rule

78 of the Federal Rules of Civil Procedure. After careful review of the parties’ submissions and

based upon the following, Defendants’ motions are granted.

I. BACKGROUND AND PROCEDURAL HISTORY

This case concerns the termination of an employee by her employer, and the decision by

the employee’s union not to arbitrate that termination. Plaintiff, Gwendolyn Williams

(“Plaintiff”), was a health care aide employed by Defendant United States Department of

Veterans Affairs - New Jersey Health Care System (“Defendant VA”) in East Orange, Essex

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County, New Jersey. (Compl. ¶ 1 (ECF. No. 1-2)). Defendant Sharon Williams (“Defendant

Williams”) is the President of the American Federation of Government Employees Local 2425

(“AFGE”). (Compl ¶ 5). The AFGE is the collective bargaining agent for certain categories of

employees at Defendant VA, including the Plaintiff’s category. (Compl. ¶ 3). At all times

relevant to this complaint, a national collective bargaining agreement (“CBA”) was in place

which included Plaintiff, Defendant VA, and the AFGE, and which created certain rights and

duties between the parties. (Compl. ¶ 4).

On or about April 25, 2007, Defendant VA terminated Plaintiff’s employment for alleged

acts of misconduct in the course of her employment. (Compl. ¶ 3). Plaintiff alleges that the

CBA restricted the right to elect arbitration of her termination to the AFGE, but that the AFGE

and Defendant Williams declined to arbitrate, and instead consented to an appointment of private

counsel to arbitrate Plaintiff’s case. (Compl. ¶¶ 8-12). Plaintiff further alleges that “neither party

hastened to schedule a date for the arbitration,” and that application was made directly to the

arbitrator to establish a specific date for the hearing. (Compl. ¶¶ 13-14). Plaintiff goes on to

assert that Defendant Williams, acting both individually and in her official capacity as an agent

of AFGE, “maliciously, and in bad faith, and in breach of contract and in violation of the implied

covenant of good faith and fair dealings,” and in conspiracy with Defendant VA, interfered with

Plaintiff’s prospective economic advantages by cancelling AFGE’s consent to allow Plaintiff to

prosecute her own grievance in arbitration. (Compl. ¶ 15). Additionally, Plaintiff alleges that

Defendant VA and its agents conspired with each other and the other defendants in bad faith, and

in violation of the implied covenant of good faith and fair dealing, to “maliciously and

negligently” interfere with Plaintiff’s contract with AFGE. (Compl. Count Two, ¶ 2). 

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Plaintiff filed her complaint containing these allegations with the Superior Court of New

Jersey, Law Division, Essex County, on May 2, 2011. In that complaint, Plaintiff named as

Defendants the VA, Sharon Williams, the AFGE, and John and Jane Doe (fictiously named

employees of Defendant VA). (Compl. ¶¶ 1-3). On June 13, 2011, Plaintiff voluntarily

dismissed the AFGE from this action. (Def. Defendant Williams’ Br. 4 (ECF. No. 6-1)). 

Plaintiff and Defendant Williams then stipulated that Defendant Williams would have until July

18, 2011 to answer the Complaint. (Def. Defendant Williams’ Br. 4-5). 

On June 28, 2011, Defendant VA removed the case to this Court. (ECF. No. 1). That

same day, the case was referred to arbitration. On July 1, 2011, both Defendant VA and

Defendant Williams were granted extensions to answer, set for July 19, 2011 (ECF. No. 2-4). 

On July 18, 2011, Defendant Williams filed her present Motion to Dismiss for Lack of Subject

Matter Jurisdiction, asserting that this Court lacks jurisdiction to hear this case because the

claims against Defendant Williams must be resolved before the Federal Labor Relations

Authority. (Def. Defendant Williams’ Br. 1). 

On July 19, 2011, Defendant VA filed their present Motion to Dismiss the Complaint and

Vacate Referral to Arbitration, also asserting that claims against Defendant VA must be resolved

before the Federal Labor Relations Authority, and further asserting that Defendant VA is a

sovereign federal agency, and thus cannot be sued for intentional tort claims. (Def. VA’s Br. 3, 7

(ECF. No. 7-1)). As Defendant VA asserts that this Court lacks jurisdiction to hear this case,

Defendant VA also contends that the referral to arbitration should be vacated. (Def. VA’s Br.

10). On September 6, 2011, Defendant Williams’ attorney filed a letter with this Court, correctly

noting that Plaintiff’s response to their Motion to Dismiss was due on August 1, 2011, and that

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Plaintiff to date had not responded to the motion, nor had she sought an extension of time for

leave to respond. (ECF. No. 9).1

II. LEGAL STANDARD

A. FED. R. CIV. P. 12(b)(1)

Plaintiff bears the burden to prove that subject matter jurisdiction exists. Wyeth and

Cordis Corp. v. Abbott Labs., 2008 U.S. Dist. LEXIS 38313, * 2, 2008 WL 2036805 (D.N.J.

May 8, 2008) (JAP). In Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884 (3d Cir. 1977),

the Third Circuit explained that Rule 12(b)(1) motions fall into two categories: facial and factual. 

Int’l Devs. Corp. v. Richmond, 2009 U.S. Dist. LEXIS 106326, at * 2, 2009 WL 3818141

(D.N.J. Nov. 13, 2009) (GEB). “A facial attack on jurisdiction is directed to the sufficiency of

the pleading as a basis for subject matter jurisdiction.” Id. Accordingly, under a facial attack,

“the court must only consider the allegations of the complaint and documents referenced therein

and attached thereto in the light most favorable to the plaintiff.” Gould Elecs., Inc. v. United

States, 220 F.3d 169, 176 (3d Cir. 2000).

In contrast, when the court considers a factual attack on jurisdiction under 12(b)(1), “the

trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear

The Court notes that Plaintiff’s failure to respond may subject her to dismissal for want 1

of prosecution. See generally Green v. Essex County Superior Court Clerk, No. 02-1872,

2006 WL 932055 at *1 n.1 (D.N.J. Apr. 6 2006) (GEB) (Alternatively dismissing case for want

of prosecution). Plaintiff did file a letter requesting an extension of time dated Sept. 9, 2011, but

the Court denied Plaintiff’s request because good cause was not shown. In the interests of

completeness the Court will still address the merits of the parties’ motions. The Defendants’

motions, however, will be considered unopposed.

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the case.” Mortensen, 549 F.2d at 891. No presumption of truthfulness attaches to the

allegations of the complaint insofar as they concern subject matter jurisdiction. Id. Should

factual issues arise regarding subject matter jurisdiction, the court may consider exhibits outside

the pleadings. Gould Elecs., 220 F.3d at 178. 

B. Sovereign Immunity & The Federal Tort Claims Act

The United States has sovereign immunity from suit, except to the extent that it consents

to be sued. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Mitchell, 445 U.S.

535, 538 (1980). The Federal Tort Claims Act provides a limited waiver of the United States’

immunity from tort claims. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense,

467 U.S. 797, 808 (1984). Claims for which United States has not waived sovereign immunity

under the FTCA must be dismissed for lack of subject matter jurisdiction. See Bernitsky v.

United States, 620 F.2d 948, 950 (3d Cir. 1980). “A party suing the federal government bears the

burden of establishing that the United States has unequivocally waived its immunity from suit.” 

United States v. Schiaffino, 317 Fed. Appx. 105, 106 (3d Cir. Mar.25, 2009) (citing Baker v.

United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 487 U.S. 1204 (1988)).

In some instances, federal officials acting in their official capacity can be subject to suit

for constitutional torts under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Bivens, however, does not apply to the United States, its

agencies or federal officers sued in their official capacities, as “[t]his implied right of action only

applies against the individual [federal employees] in their individual capacities [because] The

United States and its officers in pursuit of their official duties remain protected by sovereign

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immunity.” Defendant Williamson v. U.S. Dept. of Agric., 815 F.2d 368, 380 (5th Cir.1987)

(collecting cases); see also F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), Jaffee v. United States,

592 F.2d 712, 717-18 (3d Cir. 1979), cert denied, 441 U.S. 961 (1979) (no waiver of the United

States’ sovereign immunity for suits alleging constitutional violations).

III. DISCUSSION

A. Defendant Gwendolyn Defendant Williams’ Motion to Dismiss

A motion to dismiss on the basis of FED. R. CIV. P. 12(b)(1) for lack of subject matter

jurisdiction made prior to the filing of the defendant’s answer is a facial challenge to the

complaint. Bennett v. Atlantic City, 288 F. Supp. 2d 675, 678 (D.N.J. 2003) (citing Mortensen v.

First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). The Defendants submitted their

motions to dismiss in lieu of an answer. Review of a facial challenge in this context requires the

Court to accept the allegations in the Complaint as true, and therefore, the Court will view the

Complaint in the light most favorable to the Plaintiff. Id.

Defendant Williams argues that Plaintiff’s claims are exclusively covered by the Federal

Labor Relations Authority (FLRA), and that claims of state law violations by the Plaintiff

amount to mere “artful pleading,” and do not remove this case from the exclusive authority of the

FLRA. (Def. Defendant Williams’ Br. 9). With respect to Defendant Defendant Williams, then,

the ultimate question becomes whether Plaintiff’s claims fall exclusively within the jurisdiction

of the FLRA, and thus outside the jurisdiction of this Court.

The FLRA derives its authority from Title VII of the Civil Service Reform Act of 1978

(CSRA), which comprehensively overhauled the federal civil service, and allowed collective

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bargaining in the public sector. Lindahl v. OPM, 470 U.S. 768, 773 (1985). The FLRA is the

federal agency responsible for governing labor-management relations among non-postal federal

agencies, their employees, and the employees’ unions. 5. U.S.C. § 7104, 7105. The FLRA’s

jurisdiction in these matters, as defined by the CSRA, is exclusive. Indeed, no private cause of

action in federal court exists for a breach by a union representing federal employees of its

statutory duty of fair representation, as Congress “vested exclusive enforcement authority over

this duty in the . . . (FLRA) and its General Counsel. . . .” Karahalios v. Nat’l Fed’n of Fed.

Employees, 489 U.S. 527, 529 (1989). Judicial review of FLRA decisions is limited to three

specific instances: a party may request review of a “final” FLRA order in the courts of appeals;

the FLRA may petition the courts of appeals to seek enforcement of its orders; and the FLRA

may seek an injunction in district court after issuance of a complaint. 5 U.S.C. § 7123.

The CSRA defines who and what falls within its authority. 5. U.S.C. § 7103. Under the

act, “Employee” includes an individual who is employed by an agency. 5. U.S.C. §

7103(a)(2)(A). In turn, “Agency” is broadly defined as an “Executive agency,” with a set of

enumerated exclusions. 5. U.S.C. § 7103(a)(3). The CSRA defines “Labor Organization” as “an

organization composed in whole or in part of employees, in which employees participate and pay

dues, and which has as a purpose the dealing with an agency concerning grievances and

conditions of employment . . . .” 5. U.S.C. § 7103(a)(4). “Exclusive Representative” includes

labor organizations which are “certified as the exclusive representative of employees in an

appropriate unit pursuant to section 7111 of this title. . . .” 5. U.S.C. § 7103(a)(16)(A). 

Defendant VA falls within this statutory definition of “Agency.” As Plaintiff was

employed by Defendant VA during the events that led to this suit, she too is clearly within the

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statutory framework as an “employee.” Further, as admitted in Plaintiff’s complaint, the AFGE

is both a “Labor Organization” and an “Exclusive Representative” within the meaning of the

CSRA. 

The CSRA provides the full, and exclusive, scheme of remedies for claims arising out of

the federal employment context. See, e.g., Sarullo v. United States Postal Serv., 352 F.3d 789,

795 (3d Cir. 2003) (holding that the court lacked subject matter jurisdiction over plaintiff federal

employee’s claims because the “case ar[ose] out of the employment context”). This District has

previously found claims concerning obligations under a CBA and claims for breach of the

obligation of good faith and fair dealing to arise out of the federal employment context, and are

thus preempted by the CSRA. See, e.g., Whiting v. U.S. Army, No. 08–435, 2008 WL 4104596

at *4 (D.N.J. Sept. 4, 2008) (JLL) (holding claims concerning “the Army’s alleged failure to

comply with its obligations under the CBA and . . . breach of the Army’s obligation of good faith

and fair dealing” preempted by the CSRA). As both Plaintiff and Defendant Williams fall within

the statutory definitions of the CSRA, Plaintiff’s claims against Defendant Williams in her

official capacity for breach of the implied covenant of good faith and fair dealing are preempted

by the CSRA, and this Court has no jurisdiction over those claims. 

Plaintiff cannot change this result by framing her allegations as traditional State tort law

remedies. While Plaintiff attempts to allege a claim of tortious interference with her prospective

economic advantage, the essence of her allegations still flow from the employment context, and

more specifically, from a breach of the CBA. (Compl. ¶ 15). The conduct complained of is the

AFGE’s withdrawal of an alleged agreement to allow Plaintiff to arbitrate a grievance under the

CBA. Id. When the substance of a plaintiff’s claims amount to a breach of fair representation or

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violations of the CBA, such claims are preempted by the CSRA, regardless of how they are

framed. See Whiting, 2008 WL 4104596 at *4 (“Notwithstanding Plaintiff's assertion that state

law applies to his claims, the gravamen of the Complaint states a claim for breach of the CBA

and breach of the covenant of good faith and fair dealing under the CBA. Thus, the claims here

are preempted by the CSRA. . . .”) This is a Court of limited jurisdiction, and clever pleading

cannot allow plaintiffs to create jurisdiction in this Court where Congress has clearly restricted it.

Nor can Plaintiff dodge the jurisdictional restrictions of the FLRA by suing Defendant

Williams in her individual capacity. In Atkinson v. Sinclair Refining Co., the Supreme Court

held that “union agents” are not personally liable to third parties for acts performed on the

union’s behalf in the collective bargaining process. 370 U.S. 238, 247-49 (1962). Atkinson,

therefore, stands for the rule that in a private sector labor dispute, state law claims against

individuals acting as union representatives within the collective bargaining process are

foreclosed. See, e.g., Peterson v. Kennedy, 771 F.2d 1244, 1256-57 (9 Cir. 1985), cert. denied, th

475 U.S. 1122 (1986). Although Atkinson is not directly on point in this case, as Atkinson dealt

with collective bargaining issues in the private sector, this Court finds the First Circuit’s

reasoning in Montplaisir v. Leighton, extending the Atkinson rule to public sector labor disputes,

to be persuasive in this matter. 875 F.2d 1 (1 Cir. 1989). st

Montplaisir v. Leighton concerned a suit by Federal Aviation Administration employees

against the general counsel of the Professional Air Traffic Controllers Organization, a union to

which the employees belonged. Id. at 1-2. The defendants moved to dismiss pursuant to Fed. R.

Civ. P. 12(b)(1), claiming, as in the case before this Court, that the CSRA pre-empted federal

court jurisdiction. Id. at 2. Noting that the plaintiffs would have been barred by the Supreme

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Court’s Karahalios decision from suing their union directly, the Montplaisir court determined

that permitting plaintiffs to instead sue the union’s general counsel personally would be “equally

disruptive” to the CSRA’s provisions. Id. at 4. The Montplaisir court went on to note that as

Congress “decided that a public-sector union cannot itself be sued for unfair labor practices, it

would defy logic to allow disgruntled union members to accomplish much the same result by

circumnavigation.” Id. at 5. Determining, therefore, that the difference between the CSRA and

private statutes was one “bereft of a meaningful distinction,” the Montplaisir court held that “[t]o

preserve the integrity of the CSRA’s statutory scheme, the Atkinson rule must fully apply in the

public sector.” Id. Finding the Montplaisir reasoning to be sound, this Court holds that just as

Plaintiff cannot sue Defendant Williams in her official capacity, nor can she maintain a suit

against Defendant Williams in her individual capacity. 

For these reasons, this Court lacks jurisdiction over Plaintiff’s claims against Defendant

Williams, and those claims are dismissed.

B. Defendant United States Department of Veterans Affairs Motion to Dismiss

The Court now turns to Plaintiff’s claims against Defendant VA. Plaintiff’s claims

against Defendant VA are virtually identical to her claims against Defendant Williams. Courts of

this district have applied the principles discussed above in suits against an employer just as they

have applied in suits against a union or union officials. See, e.g., Whiting v. U.S. Army, No.

08–435, 2008 WL 4104596 (D.N.J. Sept. 4, 2008) (JLL). The Court’s reasoning with respect to

Plaintiff’s claims against Defendant Williams, therefore, applies with equal force to Plaintiff’s

claims against Defendant VA. As such, further exploration of that reasoning is not required. 

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Alternatively, however, this Court finds grounds for dismissing Plaintiff’s complaint against

Defendant VA in the doctrine of sovereign immunity. 

The Federal Tort Claims Act (“FTCA”) is the exclusive remedy for claims of tort against

employees of the government. See U.S. v. Smith, 499 U.S. 160, 161-62 (1991) (citing 28 U.S.C.

§ 2679(b)(1)); Schrob v. Catterson, 967 F.2d 929, 934 (1992). The nature of FTCA provides two

additional reasons why Plaintiff’s complaint should be dismissed as to Defendant VA. First,

Defendant VA is not a proper defendant in this action because only the United States government

is a proper defendant on such claims. See Kieffer v. Vilk, 8 F.Supp.2d 387, 393 (D.N.J.1998)

(quoting Dilg v. U.S. Postal Serv., 635 F.Supp. 406, 407 (D.N.J.1986)). Further, the FTCA

requires that a plaintiff must file his or her claim with the federal agency in question, and the

agency must issue a final denial of the claim. 28 U.S.C. § 2675(a); McNeil v. United States, 508

U.S. 106, 110-11 (1993); Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.1971). “The

presentment requirement gives the agency an opportunity to pay the claim in full, to offer to

settle the claim, or to deny the claim within six months.” Abulkhair v. Bush, No. 08-5410, 2010

WL 2521760 at *7 (D.N.J., June 14, 2010) (DMC). Nothing in the record indicates that Plaintiff

has complied with this mandatory requirement. Accordingly, Plaintiff's tort claims against

Defendant VA are barred by the doctrine of sovereign immunity.

For these reasons, this Court lacks jurisdiction over Plaintiff’s claims against Defendant

VA, and those claims are dismissed.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions to dismiss are granted. An

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appropriate Order accompanies this Opinion. 

 S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: Sept. 16, 2011

Original: Clerk

cc: All Counsel of Record

Hon. Mark Falk, U.S.M.J.

File

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