Opinion
Civil Action No. 1:01-CV-204-C
April 9, 2002
ORDER
On this date the Court considered the Motion to Dismiss Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction with Brief filed by Ann Veneman, Secretary, United States Department of Agriculture ("Defendant") on February 11, 2002. Wendell Fennell ("Plaintiff") filed Plaintiff's Response to Defendant's Motion to Dismiss with Authority on February 28, 2002. Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction was filed March 14, 2002. After considering all the relevant arguments and evidence, this Court GRANTS Defendant's Motion to Dismiss Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction with Brief.
I. FACTUAL BACKGROUND
Plaintiff is a hearing officer with the United States Department of Agriculture, National Appeals Division ("NAD"), and has been employed in that capacity by Defendant as a federal civilian competitive service employee since September 9, 1989. Plaintiff complains that Defendant has interfered with the performance of Plaintiff's statutory duties as a hearing officer for the NAD and that Defendant has violated Plaintiff's First Amendment rights. Plaintiff contends that Defendant has, through the improper use of employee performance appraisals, engaged in retaliation and coercion against Plaintiff because Plaintiff is, as self-characterized, a "whistleblower." On January 31, 2001, and July 27, 2001, Plaintiff filed appeals with the Merit Systems Protection Board ("MSPB") in connection with certain disputed employment actions between Plaintiff and Defendant. These appeals to the MSPB are still pending.
Plaintiff predicates subject matter jurisdiction on the basis of federal question jurisdiction, 28 U.S.C. § 1331; the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201, et seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq.
Plaintiff asks this Court for (1) judicial review of Defendant's employment actions; (2) declaratory judgment that caselaw and the APA apply to Plaintiff's efforts as a hearing officer with the NAD; (3) permanent injunctive relief to prevent possible future harm to Plaintiff's career and (4) attorneys' fees and costs.
II. PROCEDURAL BACKGROUND
Plaintiff's Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction was filed October 26, 2001. On October 30, 2001, this Court entered its Order denying Plaintiff's request for a temporary restraining order. Defendant's Motion to Dismiss Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction with Brief was filed February 11, 2002, and Plaintiff's Response to Defendant's Motion to Dismiss with Authority was filed February 28, 2002. Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction was filed March 14, 2002.
III. STANDARD
Rule 12(b)(1) Subject Matter Jurisdiction
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. FED. R. CIV. P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court's dismissal of a plaintiff's case because the court lacks subject matter jurisdiction is not a determination on the merits and does not prevent the plaintiff from pursuing a claim in a. court that does have proper jurisdiction. Id.
In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
Rule 12(b)(6) Failure to State a Claim
Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. FED. R. CIV. P. 12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme Court as follows: "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996). This is consistent with the well established policy that the plaintiff be given every opportunity to state a claim. Hitt, 561 F.2d at 608. In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiffs rights to relief based upon those facts." Tel-Phonic Servs, Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
IV. DISCUSSION
Plaintiff complains that Defendant has interfered with the performance of Plaintiff's statutory duties as a hearing officer for the NAD and that Defendant has violated Plaintiff's First Amendment rights. Plaintiff contends that Defendant has, through the improper use of employee performance appraisals, engaged in retaliation and coercion against Plaintiff because Plaintiff is, as self-characterized, a "whistleblower."
Defendant affirmatively asserts that Plaintiff's claims are preempted by the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. No. 95-454, 92 Stat. 1111 (codified, as amended, in various sections of 5 U.S:C. (1996)). Accordingly, Defendant contends that, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, this Court lacks subject matter jurisdiction over Plaintiff's claims.
Defendant also asserts, as independent bases for dismissal of Plaintiff's Petition, that:
(1) Plaintiff has failed to state any facts which would support a claim for declaratory action and, because the DJA does not provide an independent basis of jurisdiction, Plaintiff's claims for declaratory judgment should be denied pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure;
(2) Plaintiff can show no irreparable harm or inadequacy of legal remedies to support his claims for permanent injunctive relief and, therefore, Plaintiff's request for permanent injunctive relief should be denied pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and
(3) Plaintiff has failed to state a claim against Defendant, in her official capacity as an officer of the United States, for violations of Plaintiff's First Amendment rights. As a result, Plaintiff's claims for constitutional violations should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.CSRA
The CSRA prescribes in great detail the protections and remedies applicable to adverse personnel actions against federal employees, including the availability of administrative and judicial review. United States v. Fausto, 484 U.S. 439, 443 (1988). "An employee . . . may submit an appeal to the [MSPB] from any action which is appealable to the Board under any law, rule, or regulation" 5 U.S.C. § 7701(a). "Any employee . . . adversely affected or aggrieved by a final order or decision of the [MSPB] may obtain judicial review of the order or decision." Id. § 7703(a)(1). "[A] petition to review a final order or final decision of the [MSPB] shall be filed in the United States Court of Appeals for the Federal Circuit." Id. § 7703(b)(1).
Additionally, the United States Supreme Court has held that the CSRA is "the exclusive remedy for a federal civil-service employee who alleged that [an adverse personnel action] was retaliatory." Morales v. Dep't of the Army, 947 F.2d 766, 768 (5th Cir. 1991) (citing Bush v. Lucas, 462 U.S. 367, 389 (1983). The Supreme Court has also held that if claims of constitutional violations arise out of an employment relationship governed by the CSRA, courts should decline to augment the comprehensive procedural, substantive, and remedial provisions of the CSRA with newly created judicial remedies for the constitutional violations. Schweiker v. Chilicky, 487 U.S. 412, 422-23 (1988); Bush v. Lucas, 462 U.S. 367, 390 (1983).
This Court is persuaded that the structural primacy of the MSPB for administrative resolution of disputes regarding final adverse personnel actions and the exclusivity of the Court of Appeals for the Federal Circuit for judicial review enable the development of "a unitary and consistent Executive Branch position on matters involving personnel action, avoid an `unnecessary layer of judicial review' in lower federal courts, and `[e]ncourage more consistent judicial decisions." Fausto, 484 U.S. at 449 (citations omitted).
In the instant action, the parties do not dispute that Plaintiff is employed as a federal competitive service employee by Defendant. Nor do the parties dispute that Plaintiff has filed still-pending appeals with the MSPB for alleged adverse personnel actions taken by Defendant in connection with Plaintiff's performance of his duties as a hearing officer. As a necessary consequence of the still-pending nature of Plaintiff's appeals, Plaintiff has not pursued his employment claims through the comprehensive procedures set forth in the CSRA, viz., judicial review to the United States Court of Appeals for the Federal Circuit.
Consequently, because Plaintiff is a federal employee and Defendant's alleged adverse personnel decisions arise from the federal employment relationship, this Court finds that the CSRA offers the exclusive remedies available to Plaintiff. This Court also finds that under the statutory framework of the CSRA, Plaintiff may only appeal adverse personnel decisions to the MSPB and obtain judicial review from the United States Court of Appeals for the Federal Circuit. Therefore, this Court finds that the CSRA's exclusive remedial scheme precludes this Court from considering Plaintiff's Petition requesting judicial review of Defendant's alleged adverse personnel actions.
Whistleblower Protection Act of 1989 ("WPA")
The WPA, 5 U.S.C. § 1201, et seq., is an amendment to the CSRA which protects government employees from retaliation for disclosing information about government operations that the employee reasonably believes evidence a violation of any law or pose a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8) (1996). The WPA "refine[s] and enhance[s] the CSRA" but does not fundamentally alter the structure of the CSRA. Grisham v. United States, No. 96-20305, 1997 U.S. App. LEXIS 12788, at *10 (5th Cir. 1997). The WPA "cannot be used to supplement or replace CSRA remedies." Id. (citations omitted) (correcting Grisham v. United States, 103 F.3d 24 (5th Cir. 1997)).
Plaintiff has failed to produce any authority which would support his contention that a retaliation claim arising out of alleged whistleblowing is different from any other employment dispute that involves a federal employee. Further, Plaintiff cannot circumvent the remedial provisions of the CSRA by attempting to convert his WPA claims into ones based on violation of the First Amendment. Accordingly, based on applicable law, this Court finds that the CSRA provides Plaintiff's exclusive remedy for claims in connection with the WPA and alleged violation of the First Amendment.
APA
The CSRA "provides the exclusive remedial scheme for claims arising from federal personnel actions, thus preventing APA review." McAuliffe v. Rice, 966 F.2d 979 (5th Cir. 1992). Dismissal was appropriate where jurisdiction seeking review of federal employee's adverse personnel action was predicated on the APA. Id. "[T]he exclusivity of the procedures set out in the CSRA, . . . precludes . . . resort to APA relief." Id.
DJA
Finally, the DJA does not provide this Court with an independent basis for exercising subject matter jurisdiction. In re B-727 Aircraft Serial No. 21010, 272 F.3d 264, 270 (5th Cir. 2001); Comstock v. Ala and Coushatta Indian Tribes, 261 F.3d 567, 573 (5th Cir. 2001). The DJA does not, in and of itself; provide subject matter jurisdiction but simply provides a remedy for disputes already within the realm of federal jurisdiction. Certain Underwriters at Lloyd's London v. C.A. Turner Construction Co., Inc., 941 F. Supp. 623, 625 (S.D. Tex. 1996). A justiciable controversy in a declaratory judgment action "must be such that it can presently be litigated and decided and not hypothetical, conjectural, conditional or based upon the possibility of a factual situation that may never develop." Brown Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967).
CONCLUSION
This Court finds that Plaintiff has failed to establish jurisdiction within this Court given that (1) the CSRA provides the exclusive remedies available to Plaintiff; (2) the WPA cannot be used to supplement or replace the CSRA; (3) the CSRA precludes resort to the APA for relief and (4) the DJA does not provide jurisdiction when there is no dispute already within the realm of this Court
Therefore, after reviewing all the relevant arguments and evidence, this Court finds that Plaintiff's claims are dearly barred by the CSRA and GRANTS Defendant's Motion to Dismiss Petition for Judicial Review of Defendant's Action, Declatory [sic] Judgment and Injunction with Brief.