Pollack v. Duff

• Decision Date: 24 August 2011
• Docket Number: Civil Action No. 10–cv–0866 (ABJ).
• Citation: 806 F.Supp.2d 99
• Parties: Malla POLLACK, Plaintiff, v. James DUFF, et al., Defendants.
• Court: U.S. District Court — District of Columbia

806 F.Supp.2d 99

Malla POLLACK, Plaintiff,

v.James DUFF, et al., Defendants.

Civil Action No. 10–cv–0866 (ABJ).

United States District Court, District of Columbia.

Aug. 24, 2011.

Malla Pollack, Paducah, KY, pro se.

John G. Interrante, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Malla Pollack brought this action against a group of defendants,¹ including James Duff, the director of the Administrative Office of the United States Courts (“AO”), claiming that geographical restrictions on applicants for certain AO positions were unconstitutional and that she was denied consideration for the positions in violation of her constitutional right to travel. Defendants moved to dismiss for lack of subject matter jurisdiction based on sovereign immunity and failure to state a claim. Upon consideration of the motion, the opposition, and the entire record of the case, the Court will grant defendants' motion.

BACKGROUND

Plaintiff is a resident of Paducah, Kentucky. Compl. ¶ 4. On April 24, 2009, she applied for job announcement “10–OFS–300783, Attorney–Advisor,” which included an “area of consideration” that limited the applicant pool to individuals living in the Washington Metropolitan Area. Id. ¶¶ 12–13. Plaintiff received an automated message on January 25, 2010, that stated her “application does not reflect that you live or work within the announced area or [sic] consideration.” Id. ¶ 13. Plaintiff contacted the phone number listed in the job announcement and explained to Ernest Spinoza, a Human Resources Specialist for the AO, that she believed the geographical limitation accompanying the job announcement violated her constitutional right to travel. Id. ¶ 15. Mr. Spinoza told plaintiff that geographical limitations were “standard practice” in hiring for AO jobs and that the only way for an applicant to challenge this practice was to contact Cheri Reid, the AO Human Resources Officer. Id. ¶ 16.

Plaintiff then sent defendant Reid a letter outlining her objections to the regional restrictions. Id. ¶ 17–18; Ex. 1. Plaintiff received a letter in response from Reid and a memorandum written by attorney Susan Kattan that outlined the AO's legal support for regional restrictions. Id. ¶¶ 19–21; Ex. 2 and 3. Plaintiff next submitted a written complaint to defendant Laura C. Minor, AO's equal employment opportunity officer, alleging that the AO engaged in unconstitutional employment discrimination. Id. ¶ 22–23; Ex. 4. Defendant Minor responded, stating that plaintiff's claim was not covered by AO's anti-discrimination policy because the policy prohibits discrimination based on race, color, religion, age, sex, national origin, political affiliation, marital status, or handicapping condition, but not one's place of residence. Id. ¶ 24; Defs.' Mem. at 7. See Compl. ¶ 25; Ex. 5. Plaintiff and defendants agree that the crux of this suit is defendants' refusal to consider candidates outside of the “area of consideration.” Compl. ¶ 15.

ANALYSIS

I. Standard of Review

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must “treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).

A. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court with limited jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement, ... no action of the parties can confer subject-matter jurisdiction upon a federal court.’ ” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court “may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction in the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).

B. Failure to State a Claim

“To survive a [Rule 12(b)(6) ] motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’ ‘that the pleader is entitled to relief.’ ” Id. at 1950, quoting Fed. R. Civ. Pro. 8(a)(2). A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id. at 1949, quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955, and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. In ruling upon a motion to dismiss, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave–Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citations omitted).

II. The Court Lacks Jurisdiction under the Doctrine of Sovereign Immunity.

Under the doctrine of sovereign immunity, the United States is immune from suit unless Congress has expressly waived the defense of sovereign immunity by statute. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). Such consent may not be implied; it must be “unequivocally expressed.” United States v. Nordic Vill., Inc., 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). A waiver of immunity is strictly construed in favor of the sovereign. Orff v. United States, 545 U.S. 596, 601–02, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005). Plaintiff bears the burden of establishing that sovereign immunity has been abrogated. “A plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss.” Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C.2006), citing Tri–State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C.Cir.2003).

In this case, plaintiff has failed to identify any waiver of sovereign immunity that would permit the Court to assume jurisdiction over the dispute. ² According to the complaint, plaintiff purports to bring her claims under 28 U.S.C. §§ 1331, 1332, 1343, and 2201. Compl. ¶ 2. But none of these statutes constitutes a waiver of sovereign immunity. See Walton v. Fed. Bureau of Prisons, 533 F.Supp.2d 107, 114 (D.D.C.2008) (determining that neither the federal jurisdiction statute, 28 U.S.C. § 1331, nor the Declaratory Judgment Act, 28 U.S.C. § 2201, waives the federal government's sovereign immunity); Reading v. United States, 506 F.Supp.2d 13, 21 (D.D.C.2007) (raising a question of diversity jurisdiction under section 1332 does not effect a waiver of sovereign immunity); Zhu v. United States, No. Civ. A. 04–1216, 2005 WL 1378914, at *3 (D.D.C. June 9, 2005) (finding that section 1334 grants jurisdiction to district courts for cases alleging civil rights claims but does not waive the federal government's sovereign immunity); Byrd v. Smith, 693 F.Supp. 1199, 1201 (D.D.C.1986) (rejecting plaintiff's assertion that sections 1331 and 1334 constitute waivers of sovereign immunity).

Plaintiff insists that the fact that she is seeking to vindicate a constitutional right is enough to invoke the Court's jurisdiction, and she contends that “sovereign immunity does not bar suit when the named federal government agent has acted in violation of the Constitution.” Pl.'s Opp. at 4. She predicates that argument on a line of cases that holds:

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