Strausbaugh v. USAF

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION STEPHEN STRAUSBAUGH PLAINTIFF v. CIVIL ACTION NO. 1:24-cv-00276-LG-RPM USAF DEFENDANT ORDER OF REMAND Defendant United States Air Force (“USAF”) seeks dismissal of this case for lack of subject matter jurisdiction and for failure to state a claim in its [7] Motion to Dismiss.

BACKGROUND Plaintiff Stephen Strausbaugh requested an AF Form 1613 Statement of Service1 from the USAF. The USAF refused because Strausbaugh did not provide a SF50 document. Pursuant to an USAF Form 1613, Statement of Service Total Force Personnel Services Delivery Guide (“PSD Guide Form 1613”), USAF alleges Strausbaugh must provide an SF50 to comply with Air Force procedure.

Strausbaugh filed this lawsuit pro se in the Circuit Court of Pearl River County, Mississippi, on August 2, 2024. He alleges that USAF violated his rights under 5 U.S.C. § 8332 because USAF refused to provide the AF Form 1613 Statement of Service.2 Strausbaugh argues that he cannot access the SF50. In the alternative,

USAF removed the claim on September 6, 2024, on the basis of 28 U.S.C. § 1442(a)(1) and 28 U.S.C. § 1343. USAF then filed a Rule 12(b)(1) [7] Motion to Dismiss, arguing that Strausbaugh failed demonstrate subject matter jurisdiction and that he failed to state a claim under Rule 12(b)(6). The parties have fully briefed the issues after the Court ordered supplemental briefing.3 DISCUSSION Strausbaugh claims USAF violated his rights under 5 U.S.C. § 8332. The statute is a part of the Civil Service Retirement Act (“Retirement Act”), and the Office of Personnel Management (“OPM”) administers the Retirement Act. Lindahl v. Off. of Pers. Mgmt., 470 U.S. 768, 773 (1985). Pursuant to the Retirement Act “[t]he [OPM] shall adjudicate all claims under this subchapter.” 5 U.S.C. § 8347(b).

Once the OPM reaches a final decision, a plaintiff may appeal to the Merit Systems Protection Board (“MSPB”). 5 U.S.C. § 8347(d)(1). If the plaintiff decides to appeal the MSPB decision, then “[t]he United States Court of Appeals for the Federal Circuit has exclusive jurisdiction of such an appeal.” Dunworth v. Guardia, 24 F.3d 239, 1994 WL 243299, at *1 (5th Cir. 1994).

Def.’s Resp. [10] at 3. As a public employee and veteran, Strausbaugh is entitled to “buy back” his creditable military service. See 5 U.S.C. § 8332(c).

Courts have consistently found that the OPM has exclusive jurisdiction over Retirement Act claims.4 “A series of opinions from the Supreme Court . . . make clear that these remedial provisions are exclusive, and may not be supplemented by the recognition of additional rights to judicial review having their sources outside the CSRA.” Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005). Thus, the CSRA is a “jurisdictional prerequisite to suit.” deLeon v. Wilkie, No. 19-1250 (JEB), 2020 WL 210089, at *3 (D.D.C. Jan. 14, 2020) (quoting Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996)). “Put otherwise, [Plaintiff] must first exhaust his administrative remedies.” Id. “It is well established that federal courts have a continuing duty to investigate whether [subject matter] jurisdiction is proper in a case, even if the parties themselves do not raise the issue.” Coleman v. Alcolac, Inc., 888 F. Supp. 1388, 1394 (S.D. Tex. 1995) (citations omitted). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the

Spivey v. Chitimacha Tribe of La., 79 F.4th 444, 447 (5th Cir. 2023); Lutostanski v. Brown, 88 F.4th 582, 587–588 (5th Cir. 2023). A court must sua sponte remand for a lack of subject matter jurisdiction. See Coleman, 888 F. Supp. at 1394.

Significantly, even when a state court is barred from adjudicating the lawsuit and remand is futile, “§ 1447(c) means what it says, admits no exceptions, and requires remand[.]” Spivey, 79 F.4th at 448.

CONCLUSION Federal courts are courts of limited jurisdiction and have the power to adjudicate claims only when the Constitution or statute confers jurisdiction.

Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994). The administrative process through the OPM is a jurisdictional prerequisite, and this Court lacks subject matter jurisdiction. Therefore, this lawsuit was improperly removed under 28 U.S.C. § 1442(a)(1) and § 1343 and must be remanded.5 IT IS THEREFORE ORDERED AND ADJUDGED that the case is hereby REMANDED TO THE CIRCUIT COURT OF PEARL RIVER COUNTY, MISSISSIPPI.

IT IS FURTHER ORDERED that a certified copy of this order of remand shall be immediately mailed by the Clerk of this Court to the clerk of the state court pursuant to 28 U.S.C. § 1447(c).

SO ORDERED AND ADJUDGED this the 15th day of January, 2025.

Louis Guirola, Jr. s/ LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE