Opinion
CIVIL ACTION NO: 00-1288
July 16, 2002
ORDER AND REASONS
Before the Court is defendant's motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or in the alternative, to transfer plaintiff's claims under 5 U.S.C. § 7703 to the Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1631. For the reasons stated below, the Court denies defendant's motion.
I. Background
Plaintiff held a dual-status position with the United States Air Force at the Naval Station/Joint Reserve Base in New Orleans, Louisiana. He was an Air Reserve Technician (ART) and a reservist in the Air Force with a rank of Technical Sergeant. Plaintiff challenges his discharge from his civilian position with the Air Force and from his military position in the Air Force Reserves.
On January 12, 1997, plaintiff underwent a urinalysis test that tested positive for cocaine. The test was administered while he was in military status. As a result, plaintiff was notified that the Air Force had initiated separation proceedings to remove him from his military position in the Air Force Reserves. In addition, because of his drug use, the Air Force began proceedings to remove plaintiff from his civilian position. In December of 1997, the Air Force removed plaintiff from his civilian position. In January 1998, an administrative discharge board found that plaintiff committed misconduct as a result of his cocaine use and that he should be discharged from his military position in the Air Force Reserve. In March of 1998, the board ordered plaintiff's discharge from the Air Force Reserves.
Following the loss of his civilian and military positions, plaintiff set out on two tracks to rectify the adverse actions taken against him. To remedy the loss of his civilian position, plaintiff filed an appeal of his removal with the Merit Systems Protection Board (MSPB). On appeal, plaintiff asserted that the Air Force failed to prove by a preponderance of the evidence that he used cocaine and that the Air Force's decision to terminate him was in retaliation for his filing an earlier Equal Employment Opportunity (EEO) complaint. The Air Force filed a motion in limine to preclude the MSPB from relitigating the issue of whether plaintiff used cocaine because the issue had been fully litigated before the administrative discharge board on the military side. The MSPB Administrative Law Judge (ALJ) granted the agency's motion. The MSPB ALJ then issued an initial decision to sustain the Air Force's decision and to uphold plaintiff's removal. The MSPB ALJ found that the agency sufficiently demonstrated that plaintiff used cocaine and that plaintiff's discrimination claim was without merit because the agency had a legitimate reason to remove plaintiff that outweighed any motive to retaliate against plaintiff for his earlier filing of an EEO complaint. The MSPB denied plaintiff's petition for review and issued a final order affirming its earlier decision to uphold plaintiff's removal. Plaintiff then filed an appeal of the MSPB's discrimination decision to the Equal Employment Opportunity Commission (EEOC). The EEOC concurred with the decision of the MSPB.
On a second front, in an attempt to rectify his military discharge, plaintiff filed an application to correct his record with the Air Force Board for Correction of Military Records (AFBCMR) on April 16, 2000. Plaintiff sought to set aside the results of the administrative discharge board based on alleged procedural and constitutional violations.
On April 28, 2000, plaintiff filed a lawsuit in this Court in which he challenged his civilian discharge as discriminatory under Title VII, 42 U.S.C. § 2000e-5, and he alleged that his military discharge violated the Administrative Procedures Act (APA), 5 U.S.C. § 702. Defendant moved to dismiss plaintiff's Title VII claim and to stay the proceedings as to plaintiff's APA claim pending the outcome of plaintiff's appeal before the AFBCMR. On October 12, 2000, this Court granted defendant's motion to dismiss plaintiff's Title VII claim. In addition, the Court stayed the case pending the decision of the AFBCMR.
On January 31, 2001, the AFBCMR denied plaintiff's application for review. In response, plaintiff filed an amended complaint in this Court. Plaintiff sought review of the MSPB decision on his civilian discharge pursuant 5 U.S.C. § 7703 and dropped the now-dismissed Title VII claim. Plaintiff also challenged the AFBCMR decision on his military discharge. He asserts that that decision was arbitrary and capricious, violated his constitutional rights, violated regulations promulgated by the Secretary of Defense, and lacked evidentiary support. Defendant now seeks to dismiss plaintiff's challenge of the MSPB decision for lack of subject matter jurisdiction, or in the alternative, to transfer the Section 7703 claims to the Court of Appeals for the Federal Circuit.
II. Discussion
A. Legal Standard
Rule 12(b)(1) governs challenges to a court's subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Furthermore, the plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
B. The MSPB and Federal Courts
Defendant contends that the Court lacks subject matter jurisdiction over plaintiff's Section 7703 claims because the Court already dismissed plaintiff's Title VII discrimination claim, and in the absence of a discrimination claim, a MSPB appeal lies within the exclusive jurisdiction of the Court of Appeals for the Federal Circuit. Defendant argues that if plaintiff cannot assert a Title VII claim against the Air Force, he cannot avoid this prohibition by bringing his discrimination claim under the guise of a MSPB appeal under Section 7703.
The Civil Service Review Act sets forth procedural safeguards for certain federal employees who are affected by adverse personnel actions as a result of misconduct. Witzoske v. United States Postal Serv., 848 F.2d 70, 71 (5th Cir. 1988). The Act created the MSPB as a quasi-judicial government agency to adjudicate Federal employee appeals of agency personnel actions. See Sloan v. West, 140 F.3d 1255, 1258-59 (9th Cir. 1998) (citing 5 U.S.C. § 1201, et seq.; 5 C.F.R. § 1200.1 (1997)). The MSPB is authorized to review "adverse employment actions" that fall into one of five categories: a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less. 5 U.S.C. § 7512(1)-(5); 5 C.F.R. § 1201.3; see also Sloan, 140 F.3d at 1259. The MSPB also has pendant jurisdiction over discrimination claims brought in connection with an "adverse action" otherwise appealable to it. 29 C.F.R. § 1614.302; see also Sloan, 140 F.3d at 1259. This type of case is deemed a "mixed case complaint," that is a complaint of employment discrimination filed with a federal agency related to or stemming from an action that can appealed to the MSPB. Id.
An employee seeking to file a "mixed case complaint" can appeal the agency's decision directly to the MSPB, without first filing a complaint with the agency EEO. 5 C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b). If the MSPB decides that it has jurisdiction over the claims, the case becomes a "mixed case appeal." Sloan, 140 F.3d at 1260. After a MSPB decision, the employee may file a petition f or review to the three-member Board of the MSPB. 5 C.F.R. § 1201.113-114. If the petition for review is denied, the employee can either appeal the discrimination claim to the EEOC, ( 29 C.F.R. § 1614.303(a)), or alternatively, appeal the entire case to the appropriate United States district court. 29 C.F.R. § 1614.310(b); Sloan, 140 F.3d at 1260. If the discrimination complaint is appealed to the EEOC, and the EEOC agrees with or fails to respond to the MSPB's decision, the employee may then appeal all claims to the district court. 5 U.S.C. § 7703(b)(2); 29 C.F.R. § 1614.310(c)-(d); 5 C.F.R. § 1201.161(f); see also Sloan, 140 F.3d at 1260; Butler v. West, 164 F.3d 634, 639 (D.C. Cir. 1999) (jurisdiction for a "mixed case appeal" lies exclusively within the district court); Williams v. Department of Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983) (same).
"A mixed case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was affected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, handicap or age." 29 C.F.R. § 1614.302(a)(2) (1998).
If the employee seeks to pursue only a nondiscrimination claim, the appeal properly lies in the exclusive jurisdiction of the Federal Circuit with no right to review in the district court. See 5 U.S.C.A. § 7703(b)(1); 5 C.F.R. § 1201.120; see also Powell v. Department of Defense, 158 F.3d 597, 598-99 (D.C. Cir. 1998). Further, when an employee brings a mixed case appeal in which the discrimination claim is not merely a sham, but the discrimination claim is nevertheless disposed of quickly, the district court has the discretion either to retain jurisdiction over the nondiscrimination claims or transfer the case to the Federal Circuit under 28 U.S.C. § 1631. Afifi v. United States Department of Interior, 924 F.2d 61, 64 (4th Cir. 1991) (when a "plaintiff's discrimination claim is not brought as a jurisdictional charade but nonetheless evaporates quickly . . . a plaintiff who brings his case in good faith in the district court [should not] be deprived a forum for his nondiscrimination claim.").
Here, in seeking to rectify his civilian discharge, plaintiff followed the procedural path for a "mixed case complaint" and a "mixed case appeal." From the start, plaintiff alleged that the decision to remove him should be reversed because, among other things, the agency put forth insufficient evidence to establish that he used cocaine and because the agency removed him in retaliation for his earlier filing of an EEO complaint. After the final decision of the MSPB, plaintiff appealed the discrimination claim to the EEOC. When the EEOC decided to concur with the MSPB, it informed plaintiff that he had a "right to file a civil action in the appropriate United States District Court." See Plaintiff's Designation of Administrative Record, EEOC Decision at 3. As per the EEOC's instructions, and in compliance with the requirements of Section 7703(b)(2) in effect at the time, plaintiff filed his complaint with this Court. The original complaint provided that the government's sovereign immunity was waived, to the extent that it applied, under the APA, 5 U.S.C. § 702, and Title VII, 42 U.S.C. § 2000e-5. Pl.'s Orig. Cmplt. at ¶ II.
In October 2000, this Court granted the government's motion to dismiss plaintiff's Title VII claim. See Williams v. Peters, 2000 WL 1515176, *3 (E.D. La. 2000). Citing the Fifth Circuit's decision in Brown v. United States, 227 F.3d 295 (5th Cir. 2000), the Court held that plaintiff's Title VII claim against the Air Force was non-justiciable because the claim arose out of plaintiff's position as a member of the uniformed services. Id. at *2. When the Court dismissed his Title VII claim, plaintiff amended his complaint to assert a claim under 5 U.S.C. § 7703, which provides federal employees who are aggrieved by a final order of the MSPB with an opportunity to obtain judicial review of the order. See Pl.'s First Amended Cmplt. at ¶ II. He also added claims against the AFBCMR under the APA. Id. at ¶¶ XLIV, and XLV.
Section 7703 provides in pertinent part:
Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.
5 U.S.C. § 7703(a)(1).
(i) Waiver of Lack of Subject Matter Jurisdiction Defense
Plaintiff opposes the government's motion to dismiss his Section 7703 claims for lack of subject matter jurisdiction on the grounds that the Government waived this defense under Federal Rule of Civil Procedure 12(g) because it did not assert this defense in its original motion to dismiss. Plaintiff's waiver argument is incorrect.
Federal Rule of Civil Procedure 12(g) provides that a defendant who omits any defenses or objections from a motion made under Rule 12 cannot thereafter make a motion based on the defense or objection omitted, except for certain exceptions listed in Rule 12(h)(2). FED. R. CIV. P. 12(g). Although Rule 12(h)(2) does not list lack of subject matter jurisdiction as a defense exempted from Rule 12(g), the commentary to the Federal Rules provides that the specific defenses listed in Rule 12(h)(1)(A) (lack of jurisdiction over the person; improper venue; insufficiency of process; or insufficiency of service of process) are the only defenses that can be waived under Rule 12(g). See FED. R. CIV. P. 12 advisory committee's note. The defense of lack of subject matter jurisdiction, on the other hand, cannot be waived, and the court can consider the issue sua sponte. FED. R. CIV. P. 12(g) and advisory committee's note; see also Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (party cannot waive defense of lack of subject matter jurisdiction) (citations omitted); Howery v. Allstate Ins., Co., 243 F.3d 912, 919 (5th Cir. 2001) ("It is true that subject-matter jurisdiction cannot be created by waiver or consent. It is equally true that federal courts must address jurisdictional questions whenever they are raised and must consider jurisdiction sua sponte if not raised by the parties."). Therefore, the Court finds that defendant did not waive its defense of lack of subject matter jurisdiction with respect to plaintiff's Section 7703 claims when it failed to assert the defense in its first motion to dismiss.
The Advisory Committee Notes to the 1966 Amendment of Rule 12 provides in pertinent part:
It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim (see rule 12(b)(6), (7), (f)), as well as the defense of lack of subject matter (see Rule 12(b)(1)), are expressly preserved against waiver by amended subdivision (h)(2) and (3).
FED. R. CIV. P. 12 advisory committee's note.
(ii) Plaintiff's Challenge to the MSPB Decision
This case presents a mixed appeal in which the discrimination claim, which formed the basis of this Court's jurisdiction over plaintiff's challenge of the MSPB decision, has been dismissed. When, as here, plaintiff's discrimination claim was not brought as a jurisdictional charade but was nonetheless dismissed quickly, this Court either may retain jurisdiction over the remaining challenge to the MSPB decision or it may transfer these nondiscrimination claims to Federal Circuit under 28 U.S.C. § 1631. Afifi, 924 F.2d at 64. In order to determine whether to retain the nondiscrimination claims or to transfer them, the Afifi court instructs district courts to look to the factors traditionally considered when deciding whether to retain jurisdiction over pendant state claims when federal claims have been dismissed — judicial economy, convenience, concerns for federalism, and fairness to litigants. Id. (citing Maseda v. Honda Motor Co., 861 F.2d 1248 (11th Cir. 1988); United States v. Zima, 766 F.2d 1153 (7th Cir. 1985)).
28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including petition for review of administrative action, is noticed for or filed with such court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed. . . .
28 U.S.C.A. § 1631 (West 1994).
In deciding this issue, the Court notes that regardless of the MSPB appeal, the Court still has jurisdiction over plaintiff's APA claims against the AFBCMR for its denial of his application for correction of his military record. The APA provides that a person who claims to have suffered a legal wrong because of an agency action is entitled to judicial review of that action. 5 U.S.C. § 702. Denial of an application for correction by a Board for Correction of Military Records is a final agency action reviewable under the APA in federal court. See Miller v. Lehman, 801 F.2d 492, 496 (D.C. Cir. 1986); see also Hodges v. Calloway, 499 F.2d 417, 422-23 (5th Cir. 1974) (noting action of Board for Correction of Military Records is subject to judicial reversal as arbitrary, capricious, unsupported by substantial evidence, or erroneous in law) (citations omitted); Randall v. United States, 95 F.3d 339, 348 (4th Cir. 1996); Jamison v. Stetson, 471 F. Supp. 48, 53 (N.D.N.Y. 1978); Hensala v. Dep't of the Air Force, 148 F. Supp.2d 988, 997 (N.D. Cal. 2001).
Plaintiff's APA claims stem from the AFBCMR's denial of his petition to correct his military record and relate to the proceedings before the administrative discharge board. These APA claims are not unrelated to plaintiff's challenge of the MSPB decision in that the underlying factual basis for the claims is the administrative discharge board's finding that plaintiff used cocaine. Accordingly, the Court finds that the hardship on plaintiff and the possible waste of judicial resources attendant upon requiring plaintiff to pursue two tracks of litigation favor this Court's retention of jurisdiction over all of plaintiff's claims. See Afifi, 924 F.2d at 64 (hardship to litigants is a factor to consider when deciding whether to transfer or retain jurisdiction over case); see also Gomez v. Department of the Army, 869 F.2d 852, 860 (5th Cir. 1989) (in similar context, district court should consider impact of dual suits on judicial resources and burden on claimant of unnecessary litigation costs). Accordingly, the Court denies defendant's motion to dismiss, or in the alternative, to transfer plaintiff's MSPB challenge to the Federal Circuit.
III. Conclusion
For the foregoing reasons, the Court DENIES defendant's motion to dismiss, or in the alternative, to transfer plaintiff's Section 7703 claims to the Federal Circuit under 28 U.S.C. § 1631.