Clemente v. Holder
| Decision Date | 15 November 2011 |
| Docket Number | 1:11cv897 (JCC/TRJ) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | JESUS CLEMENTE, Plaintiff, v. ERIC HOLDER, Attorney General, Defendant. |
This matter is before the Court on Defendant's Motion to Dismiss [Dkt. 10], or, in the alternative, Motion for Summary Judgment [Dkt. 11]. For the following reasons, the Court will grant Defendant's Motion to Dismiss in part and grant Defendant's Motion for Summary Judgment in part.
Pro se Plaintiff Jesus Clemente ("Plaintiff") brings this action challenging a decision issued by the Equal Employment Opportunity Commission's Office of Federal Operations ("OFO") denying Plaintiff's petition for enforcement regarding a prior OFO order.1 Defendant is Eric Holder in his capacity as United States Attorney General.
In late 2001, Plaintiff applied to the Department of Justice, Executive Office of Immigration Review ("EOIR") for several vacant positions as an Immigration Judge. (Defendant's Memorandum in Support [Dkt. 15] ( ) at 3.) At the time, Plaintiff was employed as an attorney with the Department of Homeland Security ("DHS"). (Id.) When EOIR did not act favorably on Plaintiff's applications, Plaintiff filed an administrative complaint on July 16, 2002 against the EOIR alleging discrimination on the basis of race, national origin, and gender. An Administrative Judge ("AJ") of the Equal Employment Opportunity Commission ("EEOC") issued a decision without hearing in favor of Plaintiff on July 24, 2006. (D. Mem. at 3.)
EOIR appealed the decision to the OFO, which affirmed the AJ's decision on September 24, 2008 (the "September 2008 Order"). (D. Mem. at 3-4.) The OFO ordered EOIR to place Plaintiff in the position he would have occupied absent discrimination and awarded Plaintiff back pay. (D. Mem. at 4.) After unsuccessfully seeking reconsideration of the OFO's decision, EOIR began submitting reports to OFO regarding itscompliance with the OFO's order, including a final compliance report in April 2011.2 (Id.; D. Mem. Exs. B, D, K, M.)
In its first compliance report, submitted in April 2009, EOIR explained that it had offered Plaintiff an Immigration Judge position, that Plaintiff accepted the offer, and that the FBI was completing a background investigation. (D. Mem. at 4; D. Mem. Ex. B.) EOIR also reported that it was in the final stages of computing Plaintiff's back pay award, pending additional information from Plaintiff's current employer. (D. Mem. at 4-5; D. Mem. Ex. B.)
In response to a petition for enforcement that Plaintiff filed with the OFO in August 2009, EOIR submitted another compliance report in September 2009. (D. Mem. at 5; D. Mem. Ex D.) In this report, EOIR notified the OFO that the FBI had completed its background investigation, that it was awaiting the Department of Justice's adjudication of that investigation, and that it was still finalizing Plaintiff's back pay award. (D. Mem. at 5; D. Mem. Ex. D.) The OFO denied Plaintiff's petition for enforcement. See Clemente v. Holder, No. 0420090010, 2010 WL 619235 (E.E.O.C. Feb. 4, 2010) (D. Mem. Ex. E).
In early 2010, Plaintiff was appointed as an Immigration Judge. (D. Mem. at 5; Compl. at 4.)3 EOIR assigned Plaintiff to the immigration court in York, Pennsylvania. (D. Mem. at 5; Compl. at 4.) Shortly thereafter, Plaintiff requested that he be transferred to an immigration court in San Diego, California, East Mesa, California, or Honolulu, Hawaii. (D. Mem. at 5-6; D. Mem. Ex. H.)
Plaintiff then filed another petition for enforcement with the OFO in July 2010. (D. Mem. at 6; D. Mem. Ex. J.) During the course of these proceedings, Plaintiff alleged that EOIR had failed to comply with the September 2008 OFO order in three respects: (1) EOIR had not granted Plaintiff's transfer request, and had improperly applied the terms of a Collective Bargaining Agreement ("CBA") to which Plaintiff was not subject; (2) EOIR had incorrectly deducted life insurance premiums from Plaintiff's back pay award at the higher rate of an Immigration Judge as opposed to the lower rate of a DHS attorney; and (3) EOIR incorrectly designated its matching Thrift Savings Plan ("TSP") contributions as Plaintiff's personal TSP contributions, thereby creating tax complications for Plaintiff.4 (D. Mem. at 6; D. Mem. Ex. J.) On July 9, 2010, EOIR submitted another compliance report to the OFO, describing the manner in which ithad calculated Plaintiff's back pay award. (D. Mem. at 6; D. Mem. Ex. K.)
The OFO denied Plaintiff's petition for enforcement in a decision dated February 1, 2011, holding that EOIR had complied with the September 2008 Order with respect to the issues in dispute. See Clemente v. Holder, No. 0420100016, 2011 WL 484500, at *4 (E.E.O.C. Feb. 1, 2011) (D. Mem. Ex. L). With respect to the transfer issue, the OFO noted that its September 2008 Order "does not on its face or in any other manner entitle Petitioner to the location of his choosing." Id. The OFO also held that EOIR "adequately explained the reason for the [life insurance] deduction in his back pay" and "adequately explained the steps that it has taken to rectify" any tax complications stemming from TSP contributions. Id. EOIR subsequently filed its final compliance report to the OFO on April 25, 2011. (D. Mem. at 7; D. Mem. Ex. M.)
In November 2010, EOIR offered to transfer Plaintiff to the immigration court in San Diego, with the possibility that Plaintiff would later be moved to the immigration court in nearby East Mesa, California. (D. Mem. at 7; D. Mem. Ex. N.) Plaintiff accepted the offer, and was transferred to East Mesa in July 2011. (D. Mem. at 7; D. Mem. Exs. N, O.)
On May 3, 2011, Plaintiff, proceeding pro se, filed a complaint in the District of Columbia District Court challenging the OFO's decision denying his petition for enforcement. [Dkt. 1.] The case was subsequently transferred to this Court on August 22, 2011. [Dkt. 9.] On September 14, 2011, Defendant filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment. [Dkts. 10, 11.] Plaintiff filed an opposition to the motions [Dkt. 18] on October 5, 2011, as well as a Motion to Amend the Complaint [Dkts. 19, 20]. Defendant responded to Plaintiff's opposition, and submitted an opposition to Plaintiff's Motion to Amend, on October 13, 2011. [Dkts. 26, 27.]
On October 21, 2011, Magistrate Judge Jones denied Plaintiff's Motion to Amend because Plaintiff failed to submit a proposed amended complaint and because the suggested amendments would be futile. [Dkt. 29.] Plaintiff filed a document on October 27, 2011 [Dkt. 30], which Magistrate Judge Jones construed as another Motion to Amend, and which he denied for the reasons stated in his previous order [Dkt. 31].
Defendant's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment is before the Court.
Pursuant to Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Defendants may attack subject matter jurisdiction in one of two ways. First, defendants may contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); King v. Riverside Reg'l Med. Ctr., 211 F. Supp. 2d 779, 780 (E.D. Va. 2002). In such instances, all facts alleged in the complaint are presumed to be true. Adams, 697 F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540 (E.D. Va. 1995).
Alternatively, defendants may argue that the jurisdictional facts alleged in the complaint are untrue. Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780. In that situation, "the Court may 'look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Virginia v. United States, 926 F. Supp. at 540 (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)); see also Velasco v. Gov't of Indonesia, 370 F.3d 393, 398 (4th Cir. 2004) () (citations omitted).
In either circumstance, the burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697 F.2d at 1219; Johnson v. Portfolio Recovery Assocs., 682 F. Supp. 2d 560, 566 (E.D. Va. 2009) ().
Summary judgment is appropriate only if the record shows that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996) (citations omitted). The party seeking summary judgment has the initial burden of showing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.
Once a motion for summary judgment is properly made and supported, the opposing party must come forward and show that a genuine dispute exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The party opposing summary judgment may not rest upon mere allegations or denials. Rather, the non-moving party "must set forth specific facts showing that there...
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