Porter v. Leavitt
| Decision Date | 29 March 2023 |
| Docket Number | Civil Action 22-76-BAJ-SDJ |
| Parties | CLAUDE PORTER v. TRISTAN L. LEAVITT, et al. |
| Court | U.S. District Court — Middle District of Louisiana |
Please take note that the attached Magistrate Judge's Report and Recommendation has been filed with the Clerk of the U.S District Court for the Middle District of Louisiana.
Under 28 U.S.C. § 636(b)(1), you have 14 days from receipt of this Notice to file written objections to the proposed findings of fact and conclusions of law in the Magistrate Judge's Report and Recommendation. A failure to object will constitute a waiver of your right to attack the factual findings on appeal.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Before the Court is a Motion to Dismiss (R. Doc. 14) filed by the United States of America on behalf of the Federal Defendants Tristan Leavitt, Robert E. Kirschman, Jr., and Louis DeJoy.[1]The United States seeks dismissal of Plaintiff's cause of action against these Defendants under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff filed an Opposition (R. Doc. 18) to which the United States submitted a Reply Memorandum (R. Doc. 22).
According to the United States, this Court lacks subject matter jurisdiction over Plaintiff's request for annuity and due process claims, which should be dismissed pursuant to Rule 12(b)(1). Plaintiff also waived his discrimination claim by seeking review in the Federal Circuit. Moreover, both his discrimination and annuity claims are time barred, and his request for annuity is barred by res judicata, as well. Although the Court does not address each of these arguments, it agrees that Plaintiff's cause of action against the Federal Defendants must be dismissed.
“Over 22 years ago” Plaintiff worked for the United States Postal Service as a Rural Letter Carrier. (R. Doc. 1 at 5); (MSPB Initial Decision, R. Doc. 14-7 at 1). Plaintiff alleges that USPS removed him from his job in 1998 for refusing to “work on official relief days which [were] observe[d] as a religious sabbath by [Plaintiff].” (R. Doc. 1 at 5).
Despite being removed from his position with USPS in 1998 (R. Doc. 1 at 7), and although “he clearly stopped receiving pay[checks] ¶ 1998” (R. Doc. 14-7 at 4), Plaintiff applied for deferred annuity benefits with the Office of Personnel Management in June of 2019 (R. Doc. 1 at 3). The Office of Personnel Management denied his request for retirement benefits on July 9, 2019, as Mr. Porter had not been employed by the USPS for more than 2 decades and therefore “did not meet all of the necessary eligibility criteria for a deferred annuity.” Porter v. Merit Sys. Prot. Bd., 2021 WL 3871953, at *1 (Fed. Cir. Aug. 31, 2021); (R. Doc. 1 at 3).
In August of 2019, Plaintiff appealed OPM's decision to the Merit Systems Protection Board. (R. Doc. 1 at 4). But that appeal additionally challenged his 1998 termination as discriminatory. Because Plaintiff's appeal challenged both OPM's denial of his request for annuity, and his removal from USPS as discriminatory, the MSPB bifurcated it into two—one appeal involving his request for annuity and another involving his removal from USPS. See Porter, 2021 WL 3871953, at *1 n.1.
The MSPB then dismissed Plaintiff's appeal of his termination from USPS as “untimely filed.” (R. Doc. 14-7 at 1). “Generally, an appeal must be filed . . . no later than 30 [days] . . .after the effective date” of the challenged action or 30 days “after . . . the agency's decision is received, whichever is later.” (R. Doc. 14-7 at 2); see also 5 C.F.R. § 1201.22(b). Here, despite being terminated in 1998, Plaintiff waited until August 8, 2019 to “challenge[] his removal from his position with the United States Postal Service.” (R. Doc. 14-7 at 1). And although it gave Plaintiff a chance to show good cause for his 20-year delay, the MSPB explained:
[I]t does not seem feasible that the appellant did not realize he was no longer employed by the [USPS] until 2019, when he clearly stopped receiving payment in 1998 ....
(R. Doc. 14-7 at 4). The MSPB decision on Plaintiff's 1998 termination became final on October 21, 2019. (R. Doc. 14-7 at 5). Plaintiff then filed a petition for review with the Federal Circuit on December 19, 2019 (R. Doc. 14-2 at 4), which he then voluntarily withdrew on October 7, 2020 (R. Doc. 14-4). The Federal Circuit granted Plaintiff's request for withdrawal on December 22, 2020, withdrawing his petition for review of the MSPB's final decision to dismiss his discriminatory termination appeal as untimely. (R. Doc. 14-5).
On August 5, 2020, the MSPB dismissed Plaintiff's appeal of OPM's denial of his deferred annuity request for failure to prosecute. (R. Doc. 14-6). In a decision that became final on September 9, 2020, the MSPB explained:
[A]ppellant failed to participate in his appeal. Specifically, he failed to comply with the Acknowledgement Order, and failed to submit prehearing submissions, failed to participate in the status and prehearing conferences and failed to appear at the hearing. He also failed to respond to my orders in any way. Even after being provided with notice that his appeal could be dismissed for failure to prosecute if he did not participate, the appellant failed to do so.
(R. Doc. 14-6 at 8). Plaintiff filed a petition for review with the Federal Circuit on November 4, 2020, claiming that complications from COVID-19 and insufficient response times, among other things, resulted in his inability to prosecute his claim before the MSPB. See Porter, 2021 WL 3871953, at *2. On August 31, 2021, the Federal Circuit rejected these excuses, finding:
Mr. Porter, however, did not make any record of these events before the Board to substantiate his claims and cannot raise them for the first time on appeal. Contrary to his arguments, the extent of Mr. Porter's participation in his appeal before the Board, based on the record, is that he filed a motion to compel the production of a document from OPM shortly after the Board docketed his appeal. Under these circumstances, the dismissal for failure to prosecute was not an abuse of discretion and was supported by substantial evidence.
Porter, 2021 WL 3871953, at *2. After appealing both his termination and OPM's denial of his deferred annuity to the MSPB and eventually the Federal Circuit, Plaintiff filed this lawsuit on February 2, 2022, citing 5 U.S.C. § 7703(b)(2) as the basis for jurisdiction. (R. Doc. 1 at 13) (“Under 7703(b)(2) Petitioner had a right to a trial in the district court when MSPB dismisse[d] a mixed case on procedural grounds.”).
In the Complaint, Plaintiff claims that because his 1998 termination was discriminatory “he was still legally employed by the Postal Service and entitled to deferred annuity retirement.” (R. Doc. 1 at 3). He alleges employment discrimination under Title VII of the Civil Rights Act of 1964, and a denial of due process in the MSPB's handling of his claims. (R. Doc. 1 at 3). As relief, he asks the Court to reverse OPM's “denial of his eligibility for retirement” and compute his eligibility for retirement benefits to the “present day.” (R. Doc. 1 at 16). He also seeks an unspecified amount of “compensation for an overburdened rural route.” (R. Doc. 1 at 16).
In his Opposition, Plaintiff further explains that he is seeking review of the MSPB's denial of his deferred annuity appeal for failure to prosecute. (R. Doc. 18 at 2). He claims that OPM “was negligent for failing to take the necessary actions to ensure that [Plaintiff's] Official Personnel Record contained accurate information.” (R. Doc. 18 at 4). He also reasons that “until [this] [Court] decide[s] whether Petitioner is a former employee or a current employee will determine whether or not Petitioner is eligible for a Retirement Annuity and once decided the charges against the MSPB would become moot.” (R. Doc. 18 at 8).
The party asserting subject-matter jurisdiction “bears the burden of proof for a motion to dismiss” under Rule 12(b)(1). Davis v. United States, 597 F.3d 646, 649 (5th Cir. 2009). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Smith v. Reg'l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014). The district court is “free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case.” Smith, 756 F.3d at 347. “The standard of Rule 12(b)(1), while similar to the standard of Rule 12(b)(6), permits the court to consider a broader range of materials in resolving the motion.” Martin v. Halliburton, 618 F.3d 476, 481 n.5 (5th Cir. 2010); see also Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) ().
To overcome a Rule 12(b)(6) motion, a party must plead “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, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A legally sufficient complaint must establish more than a “sheer possibility” that the party's claim is true. Iqbal, 556 U.S. at 678. It must go beyond “labels and...
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