Charles A. Pinson, Jr. v. Donald Rumsfeld

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16548 MAY 18, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00076-CV-JTC-3
CHARLES A. PINSON, JR.,
Plaintiff-Appellant,
versus
DONALD RUMSFELD, Secretary of the Department of Defense,
FRANCIS J. HARVEY, Secretary of the Department of the Army,
BILL R. WAGONER,
JERRY PORTER,
CHARLIE L. CORNETT, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 18, 2006)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Charles A. Pinson, Jr., (“Pinson”), proceeding pro se, appeals the district
court’s dismissal of his suit alleging discrimination and other constitutional
violations. The district court did not abuse its discretion in finding that Pinson’s
claims of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. (“Title VII”), were filed in the improper venue and that the
interests of justice did not warrant a transfer to another district. The district court
also did not err in finding that Pinson’s claims of civil rights violations under 42
U.S.C. § 1985 and constitutional claims regarding his federal employment were
precluded and that Pinson failed to establish that the court had personal jurisdiction
over the individual defendants named in his First Amendment claims. We
AFFIRM.
I. BACKGROUND
On 19 July 2004, Pinson filed a pro se complaint, naming four defendants:
(1) Donald Rumsfeld, Secretary of the Department of Defense (“DOD”); (2)
William Cohen, former Secretary of the DOD; (3) Louis Caldera, Secretary of the
Department of the Army (“DA”); and (4) Leslie Brownlee, acting Secretary of the
DA. The complaint was filed on a “Title VII Complaint” form but a handwritten
note at the top of the first page indicates that it was “not primarily a Title VII case”
but was primarily filed to address violations of 42 U.S.C. § 1985, and the First,
2
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. R1-3
at 1. Pinson stated that the defendants discriminated against him because of his
race, religion, gender, and his mixed-race marriage by failing to promote him and
terminating his employment. Id. at 2. He did not allege any facts regarding the
district court’s personal jurisdiction over the defendants or that they were Georgia
residents. Simultaneously with his complaint, Pinson filed an “amendment” and a
document entitled “Initial Disclosure” with appendix; in both the amendment and
the disclosure, he incorporated additional arguments. Id. at 3; R1-4. In the
amendment, he claimed that he was unlawfully dismissed from employment based
on the pretextual reason that he was unable to hold a security clearance. R1-3,
Amendment at 1. He asserted that various military personnel and other
government officials unlawfully denied him a security clearance and discriminated
against him in his performance reviews because of his race, gender, and marital
status; confiscated his copyrighted property; and refused to hire him for many
positions for which he was qualified. R1-3, Amendment at 1-4, 8-15. He alleged
that his supervisors discriminated against him by requesting that he marry a
Filipino woman. Id. at 5-6.
In the “Initial Disclosure,” he claimed that the defendants: (1) violated the
First Amendment by classifying portions of his EEO complaint; (2) violated the
3
Fifth Amendment by denying him access to the courts; (3) violated the Fourth
Amendment by seizing his computer and his copyrighted documents; (4) violated
42 U.S.C. § 1985 and the Fifth Amendment by conspiring to alter a document in
order to show that he had disobeyed the orders of his superior, which caused the
suspension of his security clearance; (5) violated § 1985 and the Fourteenth
Amendment by conspiring to pressure him to marry a Filipino woman; (6) violated
§ 1985, Title VII, and the First, Fourth, Fifth, and Fourteenth Amendments by
conspiring to revoke his security clearance, via coded messages; (7) violated §
1985 by conspiring to discriminate against him by refusing to hire him and by
giving him inaccurate performance evaluations; (8) conspired under § 1985 and
violated his Fifth and Fourteenth Amendment rights by sabotaging his military
intelligence project when he refused to marry one of the defendant’s Jewish
daughter; and (9) violated his First Amendment rights by refusing to conduct a pre-
publication review of his book, entitled Depraved Indifference. Id. at 2-8.
Pinson was granted leave to amend his complaint to add additional
defendants. R1-10 at 1-2. He subsequently amended his complaint, adding as
defendants Bill R. Wagoner, Jerry Porter, Charlie L. Cornett, George W. Reyes,
Paul J. Mason, Maria R. DiMarco, Dean P. Quain, Thomas D. Dale, Alita A. Farr,
4
and Robert Lasky. R1-14.1 Pinson alleged no facts regarding the district court’s
personal jurisdiction over these defendants and did not allege that defendants were
Georgia residents.
The original defendants2 moved to dismiss, arguing first that Pinson’s Title
VII claims should be dismissed for improper venue under Title VII and that the
interests of justice did not warrant a transfer of Pinson’s Title VII claims to another
judicial district, because Pinson had waived his right to pursue any discrimination
and retaliation claims in the Northern District of Georgia by appealing the Merit
System Protection Board’s (“MSPB’s”) adverse ruling in his case to the Federal
Circuit. They also alleged that, to the extent Pinson sought to sue the defendants in
their official capacities, his claims were barred by the doctrine of sovereign
immunity. To the extent Pinson sought to sue the defendants in their individual
capacities, the defendants claimed that Pinson had failed to plead an action
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
1
Pinson’s claims against the original defendants and the newly-named defendants were
identical. The same analysis thus applies to his claims against all of the named defendants.
2
The motion to dismiss was filed on behalf of Rumsfeld, Cohen, Caldera, and Dr. Francis
J. Harvey, the acting Secretary of the Department of the Army. R1-19, Memorandum at 1, n.1; 2
at n.2. At that time, the defendants named in the amended complaint had not been served with the
complaint. Id. After the magistrate judge recommended dismissal of Pinson’s suit in its entirety,
the remaining defendants moved to dismiss the complaint, incorporating by reference the other
defendants’ motion to dismiss and the magistrate judge’s report and recommendation. R16-73 at
1-2. The district court granted both sets of defendants’ motions to dismiss all of Pinson’s claims.
R16-76 at 2.
5
403 U.S. 388, 91 S. Ct. 1999 (1971), and that any potential Bivens claims that
Pinson could bring were precluded by the comprehensive statutory scheme set
forth in the Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101, et seq.
The defendants further noted that, because security clearance issues are not
reviewable by the judiciary, to the extent Pinson alleged that the defendants
violated § 1985 by denying him security clearance, his complaint failed to state a
claim. The defendants argued that Pinson’s other § 1985 claims were pre-empted
by Title VII and the CSRA and that Pinson had not established that the district
court had personal jurisdiction over certain defendants.
As an exhibit, the defendants attached the “Statement Concerning
Discrimination” that Pinson had submitted with his appeal of the MPSB’s decision
to the Federal Circuit and cited Pinson v. Department of the Army, No. 99-3407,
2000 WL 565517, at *1 (Fed. Cir. May 10, 2000) (per curiam) (stating that
“Pinson waived any claim of discrimination when he submitted his Statement
Concerning Discrimination pursuant to Federal Circuit Rule 15(c).”). R1-19 at 8;
Id., Exh. A. On the form, Pinson had checked the box indicating that “[n]o claim
of discrimination by reason of race, sex, age, national origin, or handicapped
condition” would be raised in his appeal. Id., Exh A at 1.
Pinson filed several responses to the defendants’ motion to dismiss, which
6
were stricken because of their excessive length and non-compliance with court
rules. Pinson submitted multiple volumes of his personal copies of his
employment records and, in his remaining response to the defendants’ motion to
dismiss, Pinson argued that the district court was the proper venue for his claims
because he had submitted his employment records to the Northern District of
Georgia. R3-34, Memorandum at 6; see also volumes R4-R9. Pinson further
argued that he did not waive his right to pursue his discrimination claims by
appealing the MSPB decision to the Federal Circuit, because “the MSPB decision
was based on Fraud” and various constitutional violations, and the Federal Circuit
decision only pertained to the narrow issue of the revocation of his security
clearance and not his allegations of discrimination and retaliation. R1-34,
Memorandum at 1, 3-4, 12. He argued that the MSPB did not have jurisdiction to
hear his constitutional and civil rights claims and that, because the MSPB and the
Federal Circuit had refused to adjudicate his constitutional and civil rights claims,
the defendants could not raise any Bivens “hurdles” at this point. Id. at 7.
As to sovereign immunity, Pinson alleged that sovereign immunity was
waived with respect to his claims because the “EEOC issued . . . three ‘Final
Decisions’ that granted [him] the ‘Right to File a Civil Action.’” Id. at 2; see also
id. at 19-20. Pinson argued that personal jurisdiction over the defendants was
7
proper under the Georgia Long-Arm Statute, O.C.G.A. § 9-10-91, because the
DOD and the DA both maintained military bases and transacted business within
Georgia. Pinson stated that the defendants “were acting outside of their official
capacity” in violating his rights, and, thus, he claimed, he could proceed with a
Bivens action.
The magistrate judge recommended dismissal of Pinson’s complaint. R13-
63 at 21. First, with respect to Pinson’s Title VII claims, the magistrate judge
noted that Pinson was not employed by the Army in Georgia and that Pinson had
not met his burden to show that his employment records regarding the alleged
adverse actions were maintained in Georgia or that, but for the alleged unlawful
employment practices, he would have worked for the Army in Georgia. The
magistrate judge further noted that Pinson’s personal copy of his employment
records, which he claimed he maintained in Georgia, did not satisfy Title VII’s
venue provision requiring that the employment records be officially maintained
and administered by the employer in the district. To the extent Pinson argued that
the appropriate venue should not be dictated by his Title VII claims, but by his
constitutional and civil rights claims, the magistrate judge concluded that the
statutory language of Title VII indicated that the districts detailed in the statute
were intended to be the exclusive venues for Title VII claims.
8
The magistrate judge further concluded that, under 28 U.S.C. § 1406(a), it
would not be in the interests of justice to transfer Pinson’s Title VII claims to a
proper forum, because Pinson waived his right to pursue his Title VII claims in any
district court by appealing the MSPB’s decision to the Federal Circuit and
affirmatively indicating on the “Statement Concerning Discrimination” that he did
not seek to pursue any discrimination claims. The magistrate judge rejected
Pinson’s argument that the district court should hear his claims because the Federal
Circuit did not address them, as the Federal Circuit did not have the jurisdiction to
entertain his discrimination claims, and Pinson waived any such claims by
appealing to that court. Moreover, the magistrate judge determined that the
interests of justice did not warrant a transfer of Pinson’s claims because the
adverse employment action he challenges--the revocation of his security clearance-
-is non-justiciable. Finally, the magistrate judge noted that Pinson had failed to
state a claim because Title VII does not protect against discrimination based solely
on marital status. Thus, the magistrate judge recommended the dismissal of
Pinson’s Title VII claims. Id. at 13.
With regard to Pinson’s § 1985 claims, the magistrate judge concluded that,
to the extent Pinson sought to sue the defendants in their official capacities, the
doctrine of sovereign immunity applied, and the United States was immune from
9
suit absent an express, unequivocal waiver of immunity. To the extent Pinson
sought to bring the § 1985 claims against the defendants in their individual
capacities, the magistrate judge concluded that, although Bivens permits suits
seeking money damages from federal officers acting in their individual capacities,
the CSRA offers an alternative mechanism for resolving Pinson’s claims and
preempts job-related Bivens actions by federal employees. Thus, the magistrate
judge recommended the dismissal of all of Pinson’s § 1985 claims. Id. at 16-17.
With regard to Pinson’s constitutional claims, the magistrate judge first
recommended the dismissal of Pinson’s Fourteenth Amendment claim, because the
Fourteenth Amendment protects against certain actions by the states and does not
apply to the federal government or its agencies. As to Pinson’s First, Fourth, and
Fifth Amendment claims, the magistrate judge noted that the defendants had not
expressly waived their sovereign immunity, and, thus, the claims against the
defendants in their official capacities should be dismissed. Moreover, to the extent
Pinson’s constitutional claims against the defendants in their individual capacities
arose out of his federal employment, the magistrate judge concluded the claims
were precluded by the CSRA. Finally, the magistrate judge noted that Pinson’s
First Amendment claim against the defendants in their individual capacities
pertained to events that occurred after his termination from the Army, and, thus,
10
was not preempted by the CSRA. Nevertheless, the magistrate judge determined,
the First Amendment claim should be dismissed because: (1) Pinson had not
alleged facts demonstrating that any of the defendants were personally involved in
the pre-publication review of his book; (2) Pinson had not established personal
jurisdiction over the individual defendants in their individual capacities; and (3)
Pinson had not properly served the defendants with his complaint. Id. at 21.
After considering Pinson’s objections to the magistrate’s report and
recommendation, the district court adopted the report and recommendation and
issued a judgment dismissing the action in its entirety. R16-76, 77. The district
court denied Pinson’s motion for reconsideration and Pinson timely appealed that
order.
II. DISCUSSION
A. Pinson’s Title VII Claims
1. Improper venue
On appeal, Pinson asserts that the district court erred and committed
manifest injustice by concluding that his employment records were not maintained
in the state of Georgia. He notes, for the first time on appeal, that one document
within his employment records was forwarded to a Georgia address, which shows
that his files were maintained in Georgia. Moreover, he alleges, even if the district
11
court was not the proper forum for his Title VII claim, his constitutional and civil
rights claims should not be preempted by Title VII venue concerns. He also
maintains that venue can be established in Georgia under 28 U.S.C. § 1391, the
general federal venue statute.
We review the dismissal of a lawsuit for improper venue for abuse of
discretion. Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir.
1990). Title VII’s venue provision states, in relevant part, that the appropriate
venue for Title VII claims is:
any judicial district in the State in which the unlawful employment
practice is alleged to have been committed, in the judicial district in
which the employment records relevant to such practice are
maintained and administered, or in the judicial district in which the
aggrieved person would have worked but for the alleged unlawful
employment practice, but if the respondent is not found within any
such district, such an action may be brought within the judicial district
in which the respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3). The venue provisions of § 2000e-5(f)(3) were intended
to be the exclusive venue provisions for Title VII employment discrimination
actions and that the more general provisions of § 1391 are not controlling in such
cases. Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100, 1102-03 (D.C.
Cir. 1969) (per curiam). The plaintiff has the burden of showing that venue in the
forum is proper. See Home Ins. Co., 896 F.2d at 1355.
In this case, the district court did not abuse its discretion by determining that
12
Pinson’s claims were filed in an improper venue. Pinson did not introduce any
evidence demonstrating, and, thus, did not meet his burden to establish, that the
Northern District of Georgia was the location where his personnel records were
maintained by an official custodian, where the alleged adverse employment actions
occurred, or where he would have worked, but for an unlawful employment
practice. Although Pinson argues that he maintained his personnel records in
Georgia, Pinson’s records are not officially administered here, for purposes of Title
VII’s venue provisions, § 2000e-5(f)(3). Moreover, because Title VII claims are
governed by § 2000e-5(f)(3), and these venue provisions set forth the exclusive
venues for Title VII claims, the proper venue for Pinson’s other claims is irrelevant
to this inquiry.
2. Interests of justice
Pinson argues on appeal that he did not waive his right to pursue his Title
VII claims in the district court by appealing the MSPB’s decision to the Federal
Circuit. He alleges that he did not check the section of the “Statement Concerning
Discrimination” indicating that he waived his discrimination claims. He contends
that the MSPB expressly waived its jurisdiction to hear his discrimination claims,
and, thus, he could not have waived the claims by appealing the MSPB’s decision.
Pinson maintains that not all Title VII claims related to security clearance
13
revocation are non-justiciable. He also argues that, because the Federal Circuit did
not have subject-matter jurisdiction to hear his discrimination claims, he should be
permitted to bring his suit before the district court and that he did not intend to
waive his discrimination claims by indicating on his “Statement Concerning
Discrimination” that he had no such claims.
“[T]he decision whether to transfer a case is left to the sound discretion of
the district court and is reviewable only for an abuse of that discretion.” Roofing
& Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 985 (11th
Cir. 1982). Under § 1406(a), “[t]he district court of a district in which is filed a
case laying venue in the wrong . . . district shall dismiss, or if it be in the interest of
justice, transfer such case to any district . . . in which it could have been brought.”
28 U.S.C. § 1406(a). We have found such transfers required only in the limited
situation when a party was directed by a government official to file in the incorrect
court and the case was time-barred by the time it was dismissed. ITT Base Servs.
v. Hickson, 155 F.3d 1272, 1276 (11th Cir. 1998); Slatick v. Director, OWCP, U.S.
Dept. of Labor, 698 F.2d 433, 434 (11th Cir. 1983) (per curiam).
Generally, a federal employee seeking review of certain specified adverse
employment actions, or those employment actions in conjunction with his
discrimination claims, must proceed under the rules and regulations enacted
14
pursuant to the CSRA. See Doyal v. Marsh, 777 F.2d 1526, 1535-36 (11th Cir.
1985); McAdams v. Reno, 64 F.3d 1137, 1141-42 (8th Cir. 1995); 5 U.S.C. §§
7701(a), 7702(a)(1). The CSRA provides for the creation of the MSPB, an
“independent, quasi-judicial federal administrative agency established to review
civil service decisions.” McAdams, 64 F.3d at 1141; see 5 U.S.C. § 1204.
The MSPB has jurisdiction to entertain specific adverse employment actions
affecting federal employees, including demotions, suspensions, and terminations.
See Chappell v. Chao, 388 F.3d 1373, 1375 (11th Cir. 2004) (citing 5 U.S.C. §
7512). A federal employee who is terminated and also alleges discrimination in
violation of Title VII presents a “mixed case” that may be appealed directly to the
MSPB. Id.; see 5 U.S.C. § 7702(a)(1)(A) and (B)(i). “Although the MSPB does
not have jurisdiction over discrimination claims that are not related to adverse
actions, it can entertain appeals in ‘mixed cases,’ where an employee alleges a Title
VII violation in relation to one of the specified adverse employment actions.”
Chappell, 388 F.3d at 1375.
Once the MSPB enters its final order with respect to a mixed case, the
federal employee is advised that he can (1) waive the discrimination claims and file
a petition for review of the adverse employment action in the Federal Circuit; (2)
obtain additional administrative review of his discrimination claims in the EEOC;
15
or (3) file a complaint in an appropriate district court raising both his
discrimination and adverse employment claims. 5 U.S.C. §§ 7702(a)(3), 7703(a)
and (b). If the employee elects to file a petition for review in the Federal Circuit,
he must complete a “Statement Concerning Discrimination,” pursuant to Fed. Cir.
Loc. R. 15(c). Local Rule 15(c) sets forth the contents of the form that the
petitioner must complete, including an acknowledgment that he either abandons
any claims of discrimination or that such claims are not among those for which he
is seeking review. Fed. Cir. Loc. R. 15(c)(1)(A)(i), (ii); see R1-19 at 8, Exh. A. In
Chappel, we explained that
a federal employee who wants to preserve both discrimination and
non-discrimination claims after a final order from the MSPB must do
so by bringing all his related claims in federal district court. . . . [A]n
employee who chooses to appeal an adverse action to the Federal
Circuit waives his right to pursue not only any discrimination claims
he waived before the MSPB, but also any other discrimination claims
arising out of the same facts.
388 F.3d at 1378.
In this case, the district court did not abuse its discretion in concluding,
under 28 U.S.C. § 1406(a), that the interests of justice did not warrant the transfer
of Pinson’s claims to another judicial district. It is undisputed that Pinson appealed
the MSPB’s adverse decision to the Federal Circuit. By electing to appeal the
decision to the Federal Circuit, Pinson waived his ability to pursue the
16
discrimination claims he raised before the MSPB and any other discrimination
claims arising from the same facts to any federal district court. See Chappell, 388
F.3d at 1378. Because there is no federal district court in which Pinson could bring
his Title VII claims, the district court did not err in determining that the interests of
justice did not warrant a transfer of the suit to another judicial district.
B. Pinson’s 42 U.S.C. § 1985 Claims
Pinson states that his § 1985 claims are premised on the defendants’
violations, acting in their individual capacities, of his First, Fourth, Fifth, and
Fourteenth Amendment rights. He maintains that Title VII does not preempt his §
1985 claim, and alleges that they cannot claim sovereign immunity because the
majority of the defendants were acting outside of their official capacities at one
time or another. He also argues that he satisfied any sovereign immunity concerns
when he received right-to-sue letters from the EEOC.
We review the district court’s grant of a motion to dismiss de novo,
accepting all allegations in the complaint as true. Kyle K. v. Chapman, 208 F.3d
940, 942 (11th Cir. 2000). A district court may dismiss a complaint for failure to
state a claim only when it appears beyond a doubt that a pro se litigant can prove
no set of facts that would entitle him to relief. See Leal v. Georgia Dep’t of Corr.,
254 F.3d 1276, 1280 (11th Cir. 2001) (per curiam) (citation omitted).
17
The elements of a § 1985 action are:
(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and (3) an
act in furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or privilege
of a citizen of the United States.
Park v. City of Atlanta, 120 F.3d 1157, 1161 (11th Cir. 1997) (per curiam). A
cause of action under § 1985 “may not be invoked to redress violations of Title
VII.” See Great Am. Fed. Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 378,
99 S. Ct. 2345, 2352 (1979). The exclusive judicial remedy for a discrimination
claim in federal employment falls under Title VII. Brown v. Gen. Servs. Admin.,
425 U.S. 820, 823, 835, 96 S. Ct. 1961, 1963, 1969 (1976).
In some instances, a plaintiff may seek money damages from a federal
officer acting in his or her individual capacity by bringing a Bivens action. Bivens,
403 U.S. at 397, 91 S. Ct . at 2005. “A Bivens action is only permitted where 1)
the petitioner has no alternative means of obtaining redress, and 2) there are no
‘special factors counseling hesitation.’” Stephens v. Department of Health &
Human Servs., 901 F.2d 1571, 1577 (11th Cir. 1990) (quoting Bivens, 403 U.S. at
396-97, 91 S. Ct. at 2005). We have also “recognized that the comprehensive
statutory scheme established by Congress relating to federal employment (CSRA)
precludes the maintenance of job-related Bivens actions by federal employees.”
18
Id.As an initial matter, Pinson states on appeal that he only seeks to sue the
defendants for their violations of § 1985 in their individual capacities. Because
Pinson did not challenge the district court’s determination that the doctrine of
sovereign immunity precluded his § 1985 claims against the defendants in their
official capacities, he has abandoned his claim as to that issue. See Access Now,
Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law
is by now well settled . . . that a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.”).
Moreover, the district court properly dismissed Pinson’s § 1985 claims
against the defendants in their individual capacities. By attempting to sue federal
officials in their individual capacities, Pinson seeks to bring a Bivens action. All
of the § 1985 claims Pinson details in his complaint relate to his federal
employment. See R1-3; R1-4 at 2-8. The CSRA provides a comprehensive
statutory scheme for addressing Pinson’s employment-related § 1985 claims, and
the CSRA precludes employment-related Bivens actions by federal employees.
Thus, the district court did not err in dismissing Pinson’s § 1985 complaint for
failure to state a claim.
C. Pinson’s Constitutional Claims Against the Defendants in their Individual
Capacities
19
Pinson argues that he did not need to satisfy Georgia’s long-arm statute to
establish the district court’s personal jurisdiction over the defendants, because he
was constitutionally only required to show that the defendants have requisite
minimum contacts with the United States rather than the forum state. He explains,
in great detail, why he did not properly serve the defendants with the complaint
within the 120 days required by Federal Rule of Civil Procedure 4(m) but then also
states that he did timely serve them. He contends that his constitutional rights
cannot be preempted by Title VII and that sovereign immunity should not preclude
his suit because the defendants acted outside of their official capacity in violating
his rights.
The Supreme Court has held that a federal employee cannot maintain a cause
of action against his supervisor for violations of his First Amendment rights,
because such a claim is governed by CSRA procedural and substantive
administrative provisions which establish effective remedies for constitutional
violations by the government. Bush v. Lucas, 462 U.S. 367, 368, 385-86, 388-90,
103 S. Ct. 2404, 2406, 2415, 2417 (1983); see also Wells v. Federal Aviation
Admin., 755 F.2d 804, 809-10 (11th Cir.1985) (applying same analysis in the
context of a Fifth Amendment due process challenge); see also Gleason v.
Malcom, 718 F.2d 1044, 1048 (11th Cir.1983) (per curiam) (applying same
20
analysis in the context of First, Fourth, and Fifth Amendment claims).
We review the district court’s determination that it lacked personal
jurisdiction over a party de novo. Cable/Home Commc’n Corp. v. Network Prods.,
Inc., 902 F.2d 829, 855 (11th Cir. 1990). “When the district court does not
conduct a discretionary evidentiary hearing on a motion to dismiss for lack of
personal jurisdiction, the plaintiff must establish a prima facie case of personal
jurisdiction over the nonresident defendant.” Id. Determining personal
jurisdiction is a two-step inquiry. Id. First, the court must determine whether the
long-arm statute of the forum state permits the exercise of jurisdiction. Id. If the
answer is yes, the court must then determine whether the exercise of jurisdiction
satisfies the Due Process Clause of the Fourteenth Amendment. Id.The Georgia Long Arm Statue allows Georgia courts to exercise personal
jurisdiction over a nonresident if the defendant:
(1) Transacts any business within th[e] state;
(2) Commits a tortious act or omission within th[e] state, except as to
a cause of action for defamation of character arising from the act;
(3) Commits a tortious injury in th[e] state caused by an act or
omission outside th[e] state if the tort-feasor regularly does or solicits
business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services
rendered in th[e] state; or
(4) Owns, uses, or possesses any real property situated within th[e]
21
state.
O.C.G.A. § 9-10-91.
Pinson has abandoned his constitutional claims against the defendants in
their official capacities, because he admits on appeal that the defendants were
acting outside of their official capacities when they allegedly violated his
constitutional rights, and he offers no argument with regard to the defendants’
culpability in their official capacities. See also Access Now, Inc., 385 F.3d at
1330. Because Pinson alleges that the defendants acting in their individual
capacities violated his constitutional rights, he is attempting to raise a Bivens
claim. Pinson, however, is precluded from maintaining a Bivens action against the
defendants for the alleged violations of his First, Fourth, and Fifth Amendment
rights that stemmed from his employment with the federal government because of
the comprehensive statutory scheme related to federal employment, the CSRA.
See Stephens, 901 F.2d at 1577. Further, the district court correctly determined
that Pinson’s Fourteenth Amendment claims should be dismissed, because the
Fourteenth Amendment applies only to states and state actors, not the federal
government. See U.S. Const. amend. XIV, § 1 (providing that “No State shall . . .
deny to any person within its jurisdiction the equal protection of the laws.”).
Pinson’s remaining First Amendment claim against the defendants in their
22
individual capacities concerns the defendants’ refusal to conduct a pre-publication
review of his book and it arose after Pinson’s federal employment was terminated.
With regard to that claim, the district court properly determined that it lacked
personal jurisdiction over the defendants. Pinson failed to meet his burden to
establish that the district court had jurisdiction over the individual defendants. See
Cable/Home Commc. Corp., 902 F.2d at 855. Pinson misstates the test for
personal jurisdiction when he alleges that he need only show that the defendants
had minimum contacts with the United States. Although Pinson argued below that
the DOD and DA both maintain a presence in Georgia, he did not allege, and the
record does not reveal, that the district court could obtain jurisdiction over the
individual defendants via the Georgia long-arm statute. The district court did not
err in dismissing this claim for lack of personal jurisdiction.
III. CONCLUSION
Pinson appeals the dismissal of his complaint alleging violations, under Title
VII, 42 U.S.C. § 1985, and various constitutional amendments, primarily related to
his federal employment. The district court did not abuse its discretion in
determining that Pinson had filed his Title VII in the improper venue or that the
interests of justice did not warrant a transfer to another judicial district. The
district court did not err in dismissing his § 1985 claims or his constitutional claims
23
arising from his employment because the CSRA precluded these claims. The
district court also did not err in dismissing Pinson’s First Amendment claim, which
did not involve his federal employment, because he did not establish that the
district court had personal jurisdiction over the individually named defendants.
The district court properly dismissed all of Pinson’s claims, and we AFFIRM.
AFFIRMED.
24