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Conyers v. Department of Commerce

United States District Court, D. Maryland, Southern Division

April 24, 2018

SHAVON CONYERS Plaintiff,
v.
DEPARTMENT OF COMMERCE, el al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge

         Pro 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 granted.

         I. BACKGROUND

          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.[1] ECF No. 5 at 7.[2]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.[3] 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.

         II. STANDARD OF REVIEW

         A 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).

         III. DISCUSSION

         The 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).[4] 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 this section.'').

         Defendants 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 the case.[5]

         An 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."):[6] 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).

         Separate 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.[7] See ECF No. 6. As such. Plaintiffs failure to properly serve Defendants provides additional grounds warranting dismissal of her Complaint.

          IV. CONCLUSION

         For the foregoing reasons. Defendants' Motion to Dismiss. ECF ...


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