Hawthorne v. McCarthy, Case No. 5:16-cv-01525-HNJ

• Decision Date: 20 February 2020
• Docket Number: Case No. 5:16-cv-01525-HNJ
• Parties: DAVID HAWTHORNE, Plaintiff v. RYAN D. McCARTHY, ACTING SECRETARY OF THE ARMY Defendant.
• Court: U.S. District Court — Northern District of Alabama

DAVID HAWTHORNE, Plaintiff v. RYAN D. McCARTHY, ACTING SECRETARY OF THE ARMY Defendant.

Case No. 5:16-cv-01525-HNJ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

February 20, 2020

MEMORANDUM OPINION AND ORDER

This action proceeds before the court on Defendant Ryan D. McCarthy's Motion to Dismiss.¹ (Doc. 34). McCarthy seeks an order dismissing Plaintiff David Hawthorne's breach of settlement agreement claim against him due to the court's lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, due to a failure to state a claim upon which relief can be grantedpursuant to Federal Rule of Civil Procedure 12(b)(6).

The court concludes it lacks subject matter jurisdiction over Hawthorne's breach of settlement agreement claim pursuant to the statutes he identifies. In turn, the court lacks jurisdiction to adjudicate McCarthy's Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Therefore, based upon the analysis herein, the court grants McCarthy's motion to dismiss for lack of subject matter jurisdiction and dismisses without prejudice Hawthorne's claim.

STANDARD OF REVIEW

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. United States, 281 F.3d 158, 161 (5^th Cir. 2001) (per curiam) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5^th Cir. 1977));² Harris v. Bd. of Trs. Univ. of Ala., 846 F. Supp. 2d 1223, 1229-30 (N.D. Ala. 2012) (court considered Rule 12(b)(1) jurisdictional challenge before addressing Rule 12(b)(6) arguments).

The Rule 12(b)(1) Standard

"Federal courts are courts of limited jurisdiction" and, as such, possess the power to hear cases only as authorized by the Constitution or United States' laws. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "[B]ecause a federal court ispowerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11^th Cir. 2001). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

Federal Rule of Civil Procedure 12(b)(1) permits a district court to dismiss a case for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of persuasion on establishing the court's subject matter jurisdiction. OSI, Inc. v. United States, 285 F.3d 947, 951 (11^th Cir. 2002) (citing Thomson v. Gaskill, 315 U.S. 442, 446 (1942)).

The Eleventh Circuit establishes particular modes of review for Rule 12(b)(1) challenges to subject matter jurisdiction:

[A] motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint. If the challenge is facial, the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised . . . Accordingly, the court must consider the allegations in the plaintiff's complaint as true . . . A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion . . .

Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered. Furthermore, . . . the district court has the power to dismiss for lack of subject matter jurisdiction on any of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputedfacts plus the court's resolution of disputed facts.

McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11^th Cir. 2007) (citing, inter alia, Williamson v. Tucker, 645 F.2d 404, 412 (5^th Cir. 1981); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11^th Cir. 1990)) (internal quotation marks and alterations omitted).

Therefore, a factual challenge to subject matter jurisdiction typically permits a "trial court . . . to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Williamson, 645 F.2d at 412-13. No presumptive truthfulness would attach to a plaintiff's claims, and "the existence of disputed material facts [would] not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id.; see also Lawrence, 919 F.2d at 1528-29.

THE COMPLAINT

The case proceeds on Plaintiff David Hawthorne's amended complaint against Defendant Ryan D. McCarthy, Acting Secretary of the Army ("the Army"). (Docs. 12 & 13).³ Hawthorne, proceeding pro se, avers the Army breached a negotiated settlement agreement ("NSA") the parties executed to resolve a workplace discrimination complaint Hawthorne lodged against the Army. (Doc. 13).

Hawthorne serves as a civilian employee of the Army. (Id.) Hawthorne enteredinto the NSA with the Army on February 24, 2014, after he filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). (Doc. 1-3).⁴ The NSA obligates the Army to take various actions regarding Hawthorne's employment. In relevant part, the NSA provides:

[The Army] will reinstate the performance rating for the period April 2012-April 2013 and will cancel the 120 day rating period previously directed by the step three grievance decision, dated September 30, 2013. The April 2013 rating stands and serves as the annual rating of record for 2013. Mr. Hawthorne will be placed under standards upon reporting to [Army Oil Analysis Program] and will receive an annual rating based on those standards immediately preceding his promotion to GS13.⁵ This will serve as his 2014 annual rating of record. When he reaches his target grade, his rating cycle will be aligned with all other GS13s.

(Doc. 1-3 at 2). Hawthorne avers the Army committed two acts in breach of this provision.

First, Hawthorne contends the Army failed to furnish his 2014 rating until July 2015, despite his multiple requests for the rating. (Doc. 13 at 4-7). Second, Hawthorne alleges the Army improperly categorized the 2014 rating as a "special rating" rather thanan "annual rating." (Id. at 4). According to Hawthorne, these alleged breaches impeded his ability to apply for jobs and pursue professional development opportunities. (Id. at 5).

On August 28, 2015, Hawthorne filed a claim of noncompliance with the Equal Employment Opportunity Compliance and Complaints Review Agency ("EEOCCR") regarding the Army's failure to timely furnish the annual rating pursuant to the NSA. (Doc. 1-1 at 2).⁶ In an October 6, 2015, decision letter, the Army asserted it inadvertently failed to issue a rating in accordance with the NSA and expressed an intent to furnish the appropriate rating. (Doc. 1-2 at 2).⁷ Hawthorne appealed the Army's October 6, 2015, decision to the EEOC. (Doc. 1-1 at 1).

On February 17, 2016, the EEOC issued a decision finding the Army timely cured its breach by furnishing a compliant rating after receiving notice of Hawthorne's complaint. (Doc. 1-1 at 1-3). Hawthorne timely requested the EEOC to reconsider its February 17, 2016, decision, and the EEOC denied his request on June 23, 2016. (Id. at 7-9). The EEOC informed Hawthorne of his right to appeal its June 23, 2016, decision by filing "a civil action in an appropriate United States District Court within [90] calendar days" of the decision, or, in the alternative, "after [180] calendar days ofthe date [he] filed [his] complaint with the [EEOCCR], or [his] appeal with the [EEOC], until such time as the [EEOC] issues its final decision on [the] complaint." (Id. at 8-10).

Hawthorne filed an original pleading in this action on September 14, 2016, which was docketed as a miscellaneous action. Notwithstanding his filing of this federal court pleading, Hawthorne filed a Motion for an Order to Allow EEOC AJ to hear Argument of Agency Breaching of Negotiated Settlement Agreement on January 26, 2017. (Doc. 5). On July 27, 2017, and July 31, 2017, Hawthorne filed additional notices. (Docs. 7 & 8). These notices informed the court the EEOC granted Hawthorne a hearing regarding his allegation the Army breached the NSA. (Id.) However, the EEOC had dismissed Hawthorne's August 28, 2015, complaint on February 2, 2017, pursuant to 29 C.F.R. § 1614.107(a)(3)⁸ upon receiving notice Hawthorne had filed the instant action, thereby terminating the hearing process. (Id.) After the case sat in limbo as a miscellaneous action, the undersigned discerned the pendency of the action and requested a status update from Hawthorne, who then informed the court of the EEOC's February 2, 2017, dismissal of his 2015 complaint. (Docs. 9 & 10). Therefore, the court converted this action to a civil action, and ordered Hawthorne to file anamended complaint for service upon the Defendant.

Hawthorne filed the amended complaint in this action on March 12, 2019. (Docs. 12 & 13). Hawthorne identifies the following statutes as the jurisdictional bases for his breach of settlement agreement claim: (1) 28 U.S.C. § 1331; (2) criminal statutes 18 U.S.C. §§ 241, 1001, 1505; and (3) Title VII's anti-retaliation provision 42 U.S.C. § 2000e-3.⁹ (Doc. 12). He requests $300,000 in damages.¹⁰ (Doc. 13 at 19).

The Army contends sovereign immunity shields it from Hawthorne's breach ofsettlement agreement claim, rendering the court without jurisdiction thereof. (Doc. 34). The Army maintains that although § 2000e-16 waives its sovereign immunity from employment discrimination claims, Hawthorne's breach of...