United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
se Plaintiff Shavon Conyers brings this action against
Defendants Department of Commerce. United States Census
Bureau. Wilbur Ross. John Thompson, and Vonda Bell. following
her termination from the Census Bureau. ECF No. 5. Presently
pending before the Court is Defendants' Motion to
Dismiss. ECF No. 8. to which Plaintiff has not responded. No
hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the
following reasons. Defendants" Motion to Dismiss is
Plaintiff alleges that Defendants terminated her on January
4. 201 7 for "unacceptable conduct due to an issue on
[her] resume" without providing her with advanced notice
of her termination and an opportunity to respond as required
by the Fifth Amendment to the United States
Constitution. ECF No. 5 at 7.On February 7. 2017.
Plaintiff filed an appeal of her termination with the Merit
Systems Protection Board ("MSPB"). alleging that
Defendants' failure to provide her with advanced notice
of her pending termination, and an opportunity to respond,
violated the procedural requirements set forth in 5 C.F.R.
§ 315.805. On April 10, 2017. Administrative Judge
Kassandra Robinson Styles dismissed Plaintiffs appeal
"as untimely [and] filed without good cause shown for
the filing delay" because Plaintiff failed to file the
appeal within thirty days of the date of her termination. ECF
No. 8-2 at 6. Thereafter, on May 15, 2017, Plaintiff filed a
Petition for Review with the Board, id at 20. and
filed her Complaint in this Court two days later. ECF No. 1.
The Board has yet to issue a decision on Plaintiffs Petition.
STANDARD OF REVIEW
motion to dismiss based on lack of subject-matter
jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1), raises the question of whether the court has the
competence or authority to hear and decide a particular case.
See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.
Md. 2005). The court may properly grant a motion to dismiss
for lack of subject-matter jurisdiction "where a claim
fails to allege facts upon which the court may base
jurisdiction." Id. (citing Crosten v.
Kamauf, 932 F.Supp. 676, 679 (D. Md. 1996)). Therefore,
the court "generally may not rule on the merits of a
case without first determining that it has the jurisdiction
over the category of claim in suit (subject-matter
jurisdiction).. .." Sinochem Int'l Co. Ltd. v.
Malaysia Int'l Shipping Corp., 549 U.S.
422. 430-31 (2007). The district court should grant a motion
to dismiss under Rule 12(b)(1) "only if the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law." See
Evans v. B.F. Perkins Co.. 166 F.3d 642. 647 (4th Cir.
1999) (internal citation omitted).
MSPB has appellate jurisdiction over the "[t]ermination
of probationary employment [for federal employees], ”
and. for probationary employees, such "[a]ppealable
issues are limited to a determination that the termination
was motivated by partisan political reasons or marital
status, and/or if the termination was based on a
pre-appointment reason, whether the agency failed to take
required procedures." See 5 C.F.R §
1201.3(a)(3). When a case is appealed to the MSPB. the
MSPB may either hear the case or. as was done here, refer the
case to an administrative law judge. See 5 U.S.C.
§ 7701(b)(1). After the administrative law judge renders
an initial decision, that decision generally becomes the
Board's final decision thirty-five days after issuance
unless a party files a petition of review to the Board
itself. See 5 C.F.R. § 1201.113: see also
id § 1201.113(e) ("Administrative remedies are
exhausted when a decision becomes final in accordance with
argue that because Plaintiff has filed a Petition of Review
with the Board. Judge Styles' decision is not a final
order: therefore. Plaintiff has not exhausted her
administrative remedies, and the Court does not have
subject-matter jurisdiction to review the merits of her
Complaint. See ECF No. 8-1 at 10. However, the Court
need not rule on Defendants" exhaustion argument
because, even assuming Plaintiff has exhausted her
administrative remedies, only the United States Court of
Appeals for the Federal Circuit has jurisdiction to review
employee adversely affected by a MSPB final order may obtain
judicial review by a district court if the final order
evaluates a claim brought under any of the
anti-discrimination statutes listed in 5 U.S.C. § 7702.
However, non-discrimination claims may only be reviewed by
the United States Court of Appeals for the Federal Circuit. 5
U.S.C. § 7703(b)(1)(A) ("Except as provided in
subparagraph (B) and paragraph (2) of this subsection, a
petition to review a final order or final decision of the
Board shall be filed in the United States Court of Appeals
for the Federal Circuit."): see also Browder v. U.S.
Postal Serv., 449 Fed.Appx. 799. 801 (11th Cir. 2011)
("Under 5 U.S.C. § 7702 and § 7703. the
district court has limited jurisdiction to review MSPB
rulings, but only if the employee's claim is based in
whole or in part on discrimination . . ."). Plaintiffs
Complaint is solely focused on the Census Bureau's
failure to afford her with the requisite procedural
protections of 5 C.F.R. § 315.805 prior to her
termination. Plaintiff makes no allegations of
discrimination. As such, even if Plaintiff exhausted her
administrative remedies, this Court cannot provide her with
the judicial review she now seeks. See Ashe v.
Price, No. P.IM-16-3423, 2017 WL 3172776. at *6 (D. Md.
July 26. 2017) (holding that district court does not have
subject-matter jurisdiction to provide judicial review of a
MSPB appeal related to a non-discrimination claim because
plaintiff should have filed the complaint with the U.S. Court
of Appeals for the Federal Circuit).
from subject-matter jurisdiction, the Court must also dismiss
Plaintiffs Complaint due to insufficient service of process.
Pursuant to Federal Rule of Civil Procedure 4(i), in order to
serve the United States and its Agencies. Corporations.
Officers, or Employees in their individual or official
capacities, a plaintiff must serve a copy of the summons and
complaint to the United States Attorney for the district
where the action is brought and the Attorney General of the
United States. See Fed. R. Civ. P. 4(i)(1)-(3).
Plaintiff has failed to provide service to the United States
Attorney and Attorney General; instead. Plaintiff has only
provided service to Defendants at the U.S. Department of
Commerce and Census Bureau's headquarters
buildings. See ECF No. 6. As such.
Plaintiffs failure to properly serve Defendants provides
additional grounds warranting dismissal of her Complaint.
foregoing reasons. Defendants' Motion to Dismiss. ECF ...