American Federation of Gov. Employees v. Stone

• Decision Date: 02 November 2004
• Docket Number: No. Civ. 3:04-CV-1219H.,Civ. 3:04-CV-1219H.
• Citation: 342 F.Supp.2d 619
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1, and Justin McCrary, Plaintiffs, v. David M. STONE, in his official capacity as Administrator, Transportation Security Administration, United States Department of Homeland Security, Defendant.
• Court: U.S. District Court — Northern District of Texas

342 F.Supp.2d 619

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1, and Justin McCrary, Plaintiffs, v. David M. STONE, in his official capacity as Administrator, Transportation Security Administration, United States Department of Homeland Security, Defendant.

No. Civ. 3:04-CV-1219H.

United States District Court, N.D. Texas, Dallas Division.

November 2, 2004.

COPYRIGHT MATERIAL OMITTED

Rod Tanner Rod Tanner & Associates Fort Worth, TX, Gony Frieder Office of General Counsel AFGE, Washington, DC, Mark D Roth American Fed Of Gov't Employees Washington, DC, for plaintiffs.

Frank Dounell Able, U.S. Attorney's Office Dept. of Justice, Dallas, TX, for defendant.

MEMORANDUM OPINION AND ORDER

SANDERS, Senior District Judge.

Before the Court are Defendant's Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), filed September 8, 2004; Plaintiffs' Response, filed October 8, 2004; and Defendant's Reply, filed October 25, 2004. For the following reasons, the Court is of the opinion that Defendant's Motion should be GRANTED in its entirety.

I. Background

Plaintiff Justin McCrary ("McCrary") is a federal employee as a security screener in the Transportation Security Administration (TSA) at the Dallas Love Field Airport. (Pl.'s 1st Am. Compl. at 2.) McCrary began his employment there in September 2002. (Id.) A conditional appointment letter was provided to McCrary indicating that his yearly base salary would be $26,257 and that he would receive a locality pay adjustment of an additional 10.9%, raising his total salary to $29,120. (Id. at 4.) McCrary alleges that he has not been paid the amount offered in the conditional appointment letter. (Id.) Plaintiff American Federation of Government Employees Local 1 ("AFGE Local 1") is a union which represents federal employees as a lobbyist on their behalf and which represents federal employees in collective bargaining disputes. (See Pl.'s Resp. at 20). Plaintiffs sues under the Little Tucker Act, 28 U.S.C. § 1346(a)(2) for violation of Plaintiff's Fifth Amendment and contract rights and directly under the Fifth Amendment of the Constitution. (See Pl.'s Resp. at 7, 13). D

II. Standard

"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." Ramming v. U.S., 281 F.3d 158, 161 (5th Cir.2001), cert. denied, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002).

A. Rule 12(b)(1) Motion

Plaintiffs bear the burden of proving jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001); Boudreau v. United States, 53 F.3d 81, 82 (5th Cir.1995). A District Court properly grants a motion to dismiss for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. John Corp. v. City of Houston, 214 F.3d 573, 576 (5th Cir.2000) (citation omitted). Plaintiffs allege federal jurisdiction pursuant to 28 U.S.C. § 1346(a)(2) and 28 U.S.C. § 1331. (Pl.'s Compl. at 3; Pl.'s Resp. at 13).

At the threshold, the Court considers whether Defendant's challenge to jurisdiction is a "factual attack" or a "facial attack." Irwin v. Veterans Administration, 874 F.2d 1092, 1096 (5th Cir.1989), aff'd, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435; Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). "[I]f the defense merely files a Rule 12(b)(1) motion, the trial court is required merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true. If those jurisdictional allegations are sufficient the complaint stands." Paterson, 644 F.2d at 523; Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.2001). "An attack is `factual' rather than `facial' if the defendant `submits affidavits, testimony, or other evidentiary materials.'" Irwin, 874 F.2d at 1096. Once a "factual attack is asserted, the plaintiff has the burden of proving facts to invoke the court's jurisdiction by a preponderance of the evidence". See Paterson, 644 F.2d at 523 (explaining the distinction between a "facial attack and a factual attack upon a complaint" under Rule 12(b)(1)); see also Middle S. Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir.1986).

"Dismissal [for want of subject matter jurisdiction] is proper only when it appears certain that the Plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998); Robinson v. TCI/US West Communications, Inc., 117 F.3d 900, 904 (5th Cir.1997) (quoting Saraw Partnership v. United States, 67 F.3d 567 (5th Cir.1995)). In determining whether subject matter jurisdiction exists, the Court may evaluate (1) the complaint; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. See Robinson, 117 F.3d at 904; Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996).

B. Rule 12(b)(6) Motion

In considering a motion to dismiss a complaint for failure to state a claim, the Court must accept as true the non-movant's well-pleaded factual allegations and any reasonable inferences to be drawn from them. See Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). "Federal Rule of Civil Procedure 8(a)(2) ... provides that a complaint must include only `a short and plain statement of the claim showing that the pleader is entitled to relief....' `Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions [such as Rule 9(b)].'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Generally, the Court may not look beyond the pleadings, except in instances where public officials' qualified immunity is raised. Compare Mahone v. Addicks Util. Dist., 836 F.2d 921, 936 (5th Cir.1988) with Babb v. Dorman, 33 F.3d 472 (5th Cir.1994) [and] Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) [and] Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985).

Dismissal for failure to state a claim is not favored by the law. Mahone, 836 F.2d at 926. A Plaintiff's 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ("The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."); Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir.1997); Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir.1988) (court may dismiss a claim under 12(b)(6) only if "it appears to a certainty that no relief can be granted under any set of facts provable in support of its allegations or if the allegations, accepted as true, do not present a claim upon which relief can be legally obtained.") However, "there are times when a court should exercise its power to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Mahone, 836 F.2d at 927 (emphasis in original).

III. Analysis

Defendant brings the instant Motion under both Rules 12(b)(1) and 12(b)(6). (Def.'s Br. at 1).

A. AFGE Standing

Defendants challenge AFGE's standing to bring a claim as a representative of McCrary or in its own right. (Def.'s Br. at 14-18.) Plaintiffs have not asserted that AFGE has suffered an injury unique from that suffered by McCrary. (See Pl.'s Resp. at 18-21). Therefore, the Court will only consider whether AFGE has representational standing. (See id.)

"The federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of [the jurisdictional] doctrines.'" United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). To demonstrate standing, a plaintiff must allege facts demonstrating three elements: (1) that plaintiff suffered an injury in fact that is both concrete and particularized, and actual or imminent, not conjectural or hypothetical; (2) that there is a causal connection between the injury and the conduct complained of; and (3) that it is likely, rather than merely speculative, that the injury will be redressed by a favorable decision. Id. at 743, 115 S.Ct. 2431 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Representational standing of an individual by an organization is determined by a three-part test: (1) the organization must seek to protect interests that are germane to its purpose; (2) its members must have standing to sue in their own right; and (3) neither the claim asserted nor relief requested requires individual members' participation. See Friends of the Earth v. Laidlaw Envtl. Svcs., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). AFGE has not been elected to represent McCrary in employment disputes with its employer. See United States Dep't of Homeland Security and AFGE AFL-CIO, 59 F.L.R.A. No. 63, 2003 WL 22669101 (Nov. 4, 2003); AFGE v. Loy, 367 F.3d 932, 934-35 (D.C.Cir.2004). Accordingly, it is improper to consider McCrary a "member" of AFGE for purposes of determining AFGE's standing to sue on behalf of McCrary. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 287-88, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986); Arizonans for Official English v. Arizona, 520 U.S. 43, 65-66, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Allee v. Medrano, 416 U.S 802, 820 n. 13, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974...