Peevy v. Donahue

• Decision Date: 06 March 2012
• Docket Number: Civil Action No. 11–1209 (BAH).
• Citation: 846 F.Supp.2d 130
• Parties: Susan PEEVY, Plaintiff, v. Patrick R. DONAHUE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

846 F.Supp.2d 130

Susan PEEVY, Plaintiff,

v.Patrick R. DONAHUE, et al., Defendants.

Civil Action No. 11–1209 (BAH).

United States District Court, District of Columbia.

March 6, 2012.

Iris McCollum Green, Green & Foushee, Washington, DC, for Plaintiff.

Heather D. Graham–Oliver, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Plaintiff Susan Peevy initiated the instant lawsuit on June 29, 2012 against her former employer, the United States Postal Service, and Postmaster General Patrick R. Donahue alleging that the manner in which she was terminated violated her Constitutional rights. Specifically, the plaintiff contends that the defendants provided her with fifteen days to appeal her termination, but dismissed her appeal as untimely after erroneously concluding that it was filed one day late. The plaintiff alleges that the denial of her appeal, and the failure to provide her with a hearing, violates the Due Process Clause of the Fifth Amendment. The defendants have moved to dismiss this action, arguing that the Civil Service Reform Act (“CSRA”) and the Federal Tort Claims Act (“FTCA”) preclude judicial review of this dispute and the Court therefore lacks subject matter jurisdiction over the Complaint. The Court agrees and the plaintiff's Complaint is dismissed.

I. BACKGROUNDA. Factual Background

On May 27, 2011, plaintiff Susan Peevy, a twenty-three year employee of the United States Postal Service (hereinafter “USPS”), was terminated from her position as an EAS–21 Sales Support/Account Management Specialist. Compl. ¶¶ 9, 22. The plaintiff's termination followed an investigation by the USPS Office of the Inspector General (“IG”) into the plaintiff's alleged misuse of priority shipping labels. Id. ¶¶ 8–12.

Specifically, on August 13, 2010, the IG issued a Report of Investigation (“ROI”) in which it concluded that the plaintiff provided Permit No. G–10 priority mail labels to a non-USPS employee, who then used them for non-USPS business. Id. ¶ 8. This investigation was triggered when postal employees in Nashville, Tennessee observed an individual attempting to use the labels to ship five packages bearing the plaintiff's name and work address as the return address to Washington, D.C. Id. ¶¶ 6, 7. When postal employees questioned the individual using the labels, the individual “claimed that she was instructed to drop off the packages at the Post Office and no postage would be due.” Id. ¶ 7. The postal employees reported the suspicious use of the G–10 labels, and the IG began an investigation. Id.

As part of the IG's investigation, the plaintiff was interviewed on three separate occasions, and admitted that she was familiar with the individual attempting to use the labels, and had given that individual rides in her car on prior occasions. Id. ¶¶ 8–10. The IG also interviewed the individual who attempted to use the labels. Id. Following this investigation, the IG concluded that the plaintiff was responsible for the unauthorized use of labels, and the resulting loss of $194.30 in Postal Service revenue. Id. ¶ 12.

Following issuance of the IG's ROI, the plaintiff was placed on administrative leave on September 24, 2010. Id. ¶ 11. Approximately four months later, on December 14, 2010, a USPS supervisor issued a Notice of Proposed Removal charging the plaintiff with (1) unauthorized use of Priority Mail Labels with Permit No. G–10 and (2) lack of candor during the IG's investigation. Id. ¶ 12. The USPS and the plaintiff then attempted to mediate the issue, but those efforts were unsuccessful. Id. ¶ 13.

In a letter dated April 29, 2011 (the “decision letter”), the USPS formally notified the plaintiff that she would be terminated on May 6, 2011. Id. ¶ 13. This letter informed the plaintiff that she had fifteen days from receipt of the letter to submit a written appeal and request a hearing. Id. ¶¶ 14–15.

The plaintiff alleges that she and her counsel received the decision letter on Monday, May 2, 2011. Id. ¶ 16. On May 17, 2011, fifteen days following the plaintiff's alleged receipt of the decision letter, plaintiff's counsel faxed a request for additional time to file an appeal. Id. ¶ 19. The plaintiff states that her counsel did not receive a response to her extension of time request, and, consequently, proceeded to finalize the plaintiff's appeal and “faxed it ... before midnight on May 17, 2011.” Id. ¶ 21.

In a letter dated May 24, 2011, the USPS dismissed the plaintiff's appeal as untimely, stating that the decision letter had been received by the plaintiff and her counsel on Saturday, April 30, 2011 and her period to file an appeal expired on May 16, 2012.¹Id. ¶¶ 22–23. The letter denying the plaintiff's appeal stated:

The Letter of Decision was sent to your address of record at 115A Pasture Side Place, Rockville, MD 20850–6005 via Express Mail (E0051013992US) and was delivered on Saturday, April 30, 2011, at 11:13 am as evidenced by copy of the Express Mail Delivery Notice enclosed with this letter. A copy of the Letter of Decision was sent to your attorney of record at the time, Gretchen K. Athias White, Esquire, via Priority Mail with Delivery Confirmation. Your attorney received this letter on Saturday, April 30, 2011, at 9:57 am at her Bowie, Maryland office. A copy of the Priority Mail Delivery Notice is enclosed.

Defs.' Mot. Dismiss, ECF No. 15, Decl. Michele Mulleady, Attach. C, Denial of Appeal dated May 24, 2011. Despite the fact that the USPS “track and confirm statements” indicate that the decision letter was delivered on April 30, 2011, the plaintiff argues that “neither of the track and confirm statements specified either an address or an addressee to which the packages were delivered” and asserts that plaintiff and her counsel actually received the decision letter on May 2, 2011. Compl. ¶¶ 28–29. Following the denial of the plaintiff's appeal, the plaintiff was terminated from her position at the USPS on May 27, 2011. Id. ¶ 22.

B. Procedural History

On June 29, 2011, the plaintiff filed a Complaint against defendants USPS and Postmaster General Patrick R. Donahue, alleging that “[w]ith the dismissal as untimely of [plaintiff's] appeal and request for a hearing, and her termination of employment, [the plaintiff] has been effectively denied her constitutional right to due process of law.” Id. ¶ 30. The plaintiff asserts that the defendants violated the Due Process Clause of the Fifth Amendment of the Constitution (Counts I and II), and are additionally liable for defamation of character (Count III), and intentional infliction of emotional distress (Count IV). Id. ¶¶ 31–43. In compensation for these alleged unlawful acts, the plaintiff requests, inter alia, an order directing “the defendants to reinstate Plaintiff Peevy to her employment including with back pay, front pay, benefits, costs and attorney fees.” Compl., Prayer for Relief, ¶ 9.

Simultaneously with the filing of the Complaint, the plaintiff moved for a temporary restraining order (“TRO”) and preliminary injunction, seeking to “restrain[ ] and enjoin[ ] all Defendants ... from terminating Plaintiff's employment with the [USPS] and attendant benefits without due process of law ....” and to “preserve the status quo as of May 17, 2011.” Pl.'s Mot. TRO, ECF No. 2, at 1; Mem. Supp. Pl.'s Mot. TRO, ECF No. 2, at 1. On July 1, 2011, prior to the defendants' appearance in the case, the Court denied the plaintiff's motion for a TRO because she had, inter alia, failed to demonstrate irreparable harm. Mem. Op. & Order, ECF No. 9. The Court then ordered the parties to confer and submit a mutually-agreeable briefing schedule to address the plaintiff's pending motion for a preliminary injunction. Id.

Three weeks later, on July 22, 2011, the parties submitted a Joint Motion for a briefing schedule, which extended briefing on the plaintiff's motion for preliminary injunction to August 12, 2011. ECF Nos. 12–13; Minute Order dated July 25, 2012. In accordance with the briefing schedule, the defendants filed their opposition to the plaintiff's motion for a preliminary injunction on July 27, 2011, and also moved to dismiss the plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). ECF No. 15. In the plaintiff's opposition to the motion to dismiss and her reply in support of her preliminary injunction, the plaintiff failed to address a key requirement for her motion for a preliminary injunction: namely, how the plaintiff would be irreparably harmed without injunctive relief. In any event, in light of the jurisdictional issue raised by the defendants, the Court combined consideration of the plaintiff's motion for preliminary injunction with the defendants' motion to dismiss.

As explained below, upon consideration of the defendants' motion to dismiss, the Court concludes that it lacks subject matter jurisdiction over the plaintiff's claims. Consequently, the defendants' motion to dismiss is GRANTED and the plaintiff's motion for preliminary injunction is DENIED.

II. STANDARD OF REVIEW

On a motion to dismiss for lack of subject matter jurisdiction, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Mostofi v. Napolitano, No. 11–0727, 841 F.Supp.2d 208, 209–11, 2012 WL 251922, at *1–2, 2012 U.S. Dist. LEXIS 9563, at *4 (D.D.C. Jan. 27, 2012) ( citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); Ki Sun Kim v. United States, No. 08–01660, 840 F.Supp.2d 180, 183–84, 2012 WL 34383, at *3, 2012 U.S. Dist. LEXIS 2094, at *8 (D.D.C. Jan. 9, 2012). As the Supreme Court has explained “many times,” the “district courts of the United States ... are ‘courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.’ ” Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125...