Virginia Lawyers Weekly VA Lawyers Weekly
Where an employee of the United States Immigration and Customs Enforcement, or ICE, alleged that ICE’s COVID-19 testing policy favors “those over 50 that can just up and retire,” his claim under the Age Discrimination in Employment Act, or ADEA, was dismissed. The Supreme Court has concluded that the ADEA does not prohibit favoring older employees over younger employees.
Background
Judd McManus is employed by ICE. McManus alleges that ICE instituted a policy requiring unvaccinated employees undergo COVID-19 testing or otherwise face progressive disciplinary action.
McManus alleges that he requested an exemption from the testing requirement. Notwithstanding that request, on March 19, 2022, McManus received from ICE a package containing COVID-19 testing kits and “was immediately taken [a]back and beyond disgusted.”
On March 28, 2022, McManus filed the complaint in this action. McManus alleges that ICE violated the Federal Tort Claims Act, or FTCA, and appears to bring a claim under the ADEA. ICE has filed a motion to dismiss for lack of jurisdiction and motion for judgment on the pleadings.
FTCA
The FTCA requires anyone pursuing an FTCA claim to exhaust administrative remedies before seeking relief on that claim in federal court. A claimant exhausts his administrative remedies by providing (1) a written statement “sufficiently describing the injury to enable the agency to begin its own investigation” and (2) “a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death.”
Exhaustion of remedies is a jurisdictional requirement that cannot be waived. Here, McManus first filed a tort claim after he initiated this lawsuit. Because McManus must have filed an SF-95 or equivalent prior to initiating this lawsuit, the court lacks subject matter jurisdiction over the FTCA claim.
The court also finds subject matter lacking because the Civil Service Reform Act, or CSRA, precludes McManus’s FTCA claim. The CSRA is a comprehensive remedial scheme that provides the exclusive remedy for employment-related tort claims brought by a federal employee. “Under this preemption rule, FTCA claims that challenge federal employment decisions are barred.” Here, McManus’s FTCA claim turns on conduct alleged to have occurred in connection with his federal employment, and this court finds that the claim is therefore precluded by the CSRA.
ADEA
McManus alleges that he “is too young to retire” in order to avoid his employer’s testing policy, and that the employer’s policy thus favors “those over 50 that can just up and retire.” ICE moves for judgment on the pleadings on grounds that the ADEA claim is foreclosed by General Dynamics Systems, Inc. v. Cline, 540 U.S. 581 (2004).
In General Dynamics, the Supreme Court squarely concluded that the ADEA does not prohibit favoring older employees over younger employees. McManus’s ADEA claim cannot move forward in light of this decision. Accordingly, the court grants the motion for judgment on the pleadings and dismisses the ADEA claim with prejudice.
Defendant’s motion to dismiss for lack of jurisdiction granted. Defendant’s motion for judgment on the pleadings granted.
McManus v. U.S. Immigration and Customs Enforcement, Case No. 1:22-cv-00345, April 27, 2023. EDVA at Richmond (Nachmanoff). VLW 023-3-233. 7 pp.
