(PS) Robbins v. Merit Systems Protection Board ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEANNA ROBBINS, No. 2:21-CV-0621-KJM-DMC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. 14 MERIT SYSTEMS PROTECTION BOARD, 15 Defendant. 16 17 18 Plaintiff, who is proceeding pro se, brings this civil action seeking judicial review 19 of a final decision of the United States Equal Employment Opportunity Commission (EEOC). 20 Pending before the Court is Defendant’s renewed motion to dismiss this action pursuant to 21 Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, ECF No. 28. 22 Plaintiff did not file an opposition. 23 A motion under Rule 12(b)(1) challenges a federal court’s jurisdiction to decide 24 claims alleged in the complaint. See Fed. R. Civ. P. 12(b)(1). The motion may be a factual attack 25 that looks beyond the pleadings to challenge “the substance of a complaint’s jurisdictional 26 allegations despite their formal sufficiency.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); 27 St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). When considering a factual attack 28 on subject-matter jurisdiction, “[n]o presumptive truthfulness attaches to plaintiff’s allegations, 1 and the existence of disputed material facts will not preclude the trial court from evaluating for 2 itself the merits of jurisdictional claims.” Thornhill Pub. Co. Inc. v. Gen. Tel. & Elecs. Corp., 594 3 F.2d 730, 733 (9th Cir. 1979). “[T]he district court may review evidence beyond the complaint 4 without converting the motion to dismiss into a motion for summary judgment.” Safe Air for 5 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 6 7 I. BACKGROUND 8 This matter has been before the Court on prior motions to dismiss. Following 9 filing of the original complaint on April 5, 2021, Defendant filed a motion to dismiss on January 10 12, 2023, arguing lack of subject matter jurisdiction. See ECF No. 21. On July 25, 2023, the 11 undersigned issued findings and recommendations that Defendant’s motion be granted and that 12 this matter be transferred to the U.S. Court of Appeals for the Federal Circuit. See ECF No. 23. 13 Plaintiff filed objections on August 15, 2023. See ECF No. 24. In her objections, Plaintiff 14 suggested facts, which if alleged in the complaint, could render this action a “mixed case” 15 appropriately heard in this Court. See id. at 9-11. Based on Plaintiff’s objections, the Court 16 vacated the July 25, 2023, findings and recommendations and instead issued on August 30, 2023, 17 amended findings and recommendations that Defendant’s motion to dismiss be granted but that 18 Plaintiff be provided leave to amend to allege facts establishing this case as a “mixed case” which 19 can proceed in this Court. See ECF No. 25. 20 Before the District Judge addressed the amended findings and recommendations, 21 Plaintiff prematurely filed a first amended complaint on September 15, 2023. See ECF No. 26. 22 The amended findings and recommendations were adopted in full by the District Judge on 23 September 26, 2023. See ECF No. 27. In the District Judge’s order, Plaintiff was provided leave 24 to file a new amended complaint within 30 days of receipt of the order. See id. Plaintiff was 25 cautioned that, if no new amended complaint was filed within the time permitted therefor, the 26 action would proceed on the first amended complaint filed on September 15, 2023. See id. To 27 date, Plaintiff has not filed a new amended complaint. Defendant’s currently pending motion to 28 dismiss challenges the September 15, 2023, first amended complaint. 1 II. DISCUSSION 2 In its motion to dismiss, Defendant argues that the Court lacks subject matter 3 jurisdiction because the United States Court of Appeals for the Federal Circuit has exclusive 4 jurisdiction. See ECF No. 28-1. 5 As Defendants’ evidence shows, this matter concerns benefits under the Federal 6 Employees’ Retirement System (FERS). According to Defendant: 7 The Federal Employees’ Retirement System (“FERS”), 5 U.S.C. §§ 8401-8479, provides that the OPM shall administer disability 8 retirement and otherwise “shall adjudicate all claims” regarding retirement benefits under this chapter. See 5 U.S.C. § 8461(c); Anthony v. 9 OPM, 58 F.3d 620, 626 (Fed. Cir. 1995). After OPM renders a final decision, FERS provides for review of OPM’s decision by the MSPB. See 10 5 U.S.C. § 8461(e)(1). An employee dissatisfied with a decision from the MSPB may then petition for judicial review in the United States Court of 11 Appeals for the Federal Circuit. See 5 U.S.C. § 7703(b)(1); Rodriguez v. United States, 852 F.3d 67, 83 (1st Cir. 2017) (explaining that the 12 “exclusive remedial framework” provided by the Civil Service Reform Act provides that a plaintiff must pursue retirement claims through the 13 statutory structure – which requires a decision by OPM, followed by an appeal to the MSPB, and finally judicial review in the Federal Circuit). 14 ECF No. 21-1, pgs. 3-4 (prior motion to dismiss). 15 16 “OPM” refers to the Office of Personnel Management. “MSPB” refers to the Merit Systems 17 Protection Board, which is the defendant to this action. 18 The Federal Circuit’s authority to review decisions from the MSPB involving 19 benefits under FERS is exclusive. See Eisenbeiser v. Chertoff, 448 F. Supp. 2d 106, 109 (D.D.C. 20 2006); Sherman v. United States, 139 Fed. Cl. 640, 650 (2018); Hannon v. United States, 48 Fed. 21 Cl. 15, 23 (2000); Matsuo v. United States, 416 F. Supp. 2d 982, 998 (D. Haw. 2006); Escoe v. 22 Off. Of Pers. Mgt., 2019 WL 8112900, at *2 (C.D. Cal. 2019); Phelps v. United States, 2018 WL 23 684803, at *2-3 (E.D. Cal. 2018). 24 In some instances, the District Court and not the Federal Circuit would have 25 exclusive jurisdiction. See Ash v. Off. Of Pers. Mgt., 25 F.4th 1009 (Fed. Cir. 2022 (per curiam). 26 In Ash, the Federal Circuit held that an OPM decision that adversely affects retirement rights or 27 benefits may be a “personnel action” giving rise to a mixed case over which the district court has 28 exclusive jurisdiction. See id. A “mixed case” is one in which the employee has been affected by 1 a personnel action that is subject to review by the MSPB and in which the employee alleges that 2 the action was prompted in whole or in party by discrimination. See 5 U.S.C. § 7703(b)(1)(A); 3 see also Kloeckner v. Solis, 568 U.S. 41, 44 (2012). 4 The Court does not agree with Defendant that the first amended complaint is 5 devoid of facts which would establish that this case is a “mixed case.” In her objections/ 6 opposition brief, Plaintiff alleges: “Plaintiff does allege that OPM’s decision was prompted by 7 discrimination and/or retaliation.” See ECF No. 24, pg. 9. Plaintiff then outlines additional 8 background facts in support of this claim. See id. at 9-11. Plaintiff has included similar 9 allegations in the operative first amended complaint. See ECF No. 26, pgs. 11-13. 10 Defendant argues that the alleged discrimination and/or retaliation was, according 11 to Plaintiff, committed by her employer, the Sierra Army Deport when her position was 12 incorrectly listed, and not by OPM. See ECF No. 28-1, pgs. 6-7. According to Defendant: 13 In her appeal to the MSPB, Plaintiff in this case alleged that her supervisors at the Sierra Army Depot deliberately listed her position as 14 Packer, rather than Materials Handler, in her disability retirement benefits application in order to retaliate against her for filing an EEO complaint. 15 Olsen Declaration at Exhibit A. However, her allegations of retaliation were directed at the Army, not OPM (which issued the retirement benefits 16 decision that Plaintiff challenges), and accordingly cannot serve as the basis for a mixed case here. This is in contrast to the plaintiff in Ash, who 17 alleged that the OPM, not his employing agency, engaged in prohibited discrimination. Accordingly, this is not a mixed case and only the Federal 18 Circuit has authority to review the MSPB’s decision. (footnote omitted). Although Plaintiff alleges in her Amended Complaint that “OPM’s 19 decision was prompted by discrimination and/or retaliation for Plaintiff’s participation in the EEOC process,” Docket No. 26 at 12-13, such a 20 wholly conclusory statement does not suffice. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that mere conclusory allegations in a 21 complaint do not suffice and that a plaintiff must plead factual content in order to state a claim); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 22 (2007) (stating that mere “labels and conclusions” will not do); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (stating that “for a 23 complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibility 24 suggestive of a claim entitling the plaintiff to relief.”). Moreover, it is abundantly clear that Plaintiff is alleging that the Department of the Army 25 engaged in retaliation, not the OPM. See Docket No. 26 at 11 (“Plaintiff alleges that Sandie Hubbard [an HR Specialist with the Department of the 26 Army] intentionally put Packer instead of Material Handler to get Plaintiff’s application dismissed in retaliation for having engaged in the 27 EEO process”); Docket No. 26 at 13 (stating that the OPM’s decision was based on the “erroneous information” supplied by the Department of the 28 Army Human Resources Specialist and Plaintiff’s supervisor at the ] Department of the Army). 2 ECF No. 21, pgs. 6-7. 3 While it is true that Plaintiff alleges that the discriminatory and/or retaliatory 4 || conduct was committed by her employer, she does affirmatively allege that the ultimate decision 5 || issued by OPM was “prompted by” this discrimination/retaliation. It is reasonable to infer this to 6 || mean that Plaintiff claims the employer’s alleged misconduct provided the factual basis for 7 | OPEM’s ultimate decision. Construing Plaintiff's pro se pleading liberally and drawing all g || reasonable inferences, the Court finds that Plaintiff first amended complaint goes beyond a 9 || conclusory statement of “labels and conclusions.” If, upon conducting discovery, Defendant 10 || learns of undisputed facts showing that the alleged discrimination/retaliation played no role in 11 || OPM’s decision, or facts showing that the alleged discrimination or retaliation never occurred in 12 || the first place, Defendant would then be able to renew its argument, on summary judgment, that 13 || the facts establish that this is not a mixed case. 14 15 Il. CONCLUSION 16 Based on the foregoing, the undersigned recommends that Defendant’s renewed 17 || motion to dismiss, ECF No. 28, be DENIED. 18 These findings and recommendations are submitted to the United States District 19 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 20 || after being served with these findings and recommendations, any party may file written objections 21 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 22 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 23 || Yist, 951 F.2d 1153 (9th Cir. 1991). 24 5 || Dated: May 14, 2024 Co 26 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 28