Price v. Lynch, Civil Action No. 3:14CV619

• Decision Date: 17 September 2015
• Docket Number: Civil Action No. 3:14CV619
• Court: U.S. District Court — Eastern District of Virginia
• Parties: NEAL R. PRICE, Plaintiff, v. LORETTA E. LYNCH, Attorney General of the United States, Defendant.

NEAL R. PRICE, Plaintiff, v. LORETTA E. LYNCH,¹ Attorney General of the United States,² Defendant.

Civil Action No. 3:14CV619

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

September 17, 2015

MEMORANDUM OPINION

Before the Court is Defendant's Motion to Dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).³ (ECF No. 6.) Plaintiff Neal R. Price, proceeding pro se, responded, and Defendant replied.⁴ (ECF Nos. 21-22.) The Court dispenses with oral argumentbecause the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process.⁵ Accordingly, this matter is now ripe for disposition. For the reasons that follow, the Court will grant Defendant's Motion to Dismiss (ECF No. 6) and dismiss the Complaint for lack of subject matter jurisdiction.

I. Standards of Review

A. Lack of Subject Matter Jurisdiction: Rule 12(b)(1)

In a motion to dismiss under Fed. R. Civ. P. 12(b)(1) challenging the Court's subject matter jurisdiction, the burden rests with the plaintiff, as the party asserting jurisdiction, to prove that federal jurisdiction is proper. See Int'l Longshoremen's Ass'n v. Va. Int'l Terminals, Inc., 914 F. Supp. 1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) can attack subject matter jurisdiction in two ways. First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting that the complaint fails to state a claim upon which subject matter jurisdiction can lie. See Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a challenge, a court assumesthe truth of the facts alleged by plaintiff, thereby functionally affording the plaintiff the same procedural protection he or she would receive under Rule 12(b)(6)⁶ consideration. See Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219.

A Rule 12(b)(1) motion may also, as here, challenge the existence of subject matter jurisdiction in fact, apart from the pleadings. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a case, because a party challenges the court's "'very power to hear the case,'" the trial court is free to weigh evidence to determine the existence of jurisdiction. Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219.

If the facts necessary to determine jurisdiction intertwine with the facts central to the merits of the dispute, a court should find that jurisdiction exists and resolve any factual dispute on the merits because the jurisdictional attack would then closely mirror a challenge of the merits. United States v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999); Adams, 697 F.2dat 1219. A court need not examine jurisdiction in that manner when a plaintiff asserts the claim solely for the purpose of obtaining jurisdiction, or when a plaintiff raises a wholly insubstantial and frivolous claim. Bell v. Hood, 327 U.S. 678, 682-83 (1946).

B. Obligation to Construe Pro se Pleadings Liberally

District courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F. Supp. 2d 416, 421 (E.D. Va. 1999). However, a pro se plaintiff such as Price must nevertheless allege "facts that state a cause of action." Id. (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims" that the litigant failed to raise on the face of the complaint. Newkirk v. Circuit Court of the City of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).

In his Response, Price asserts facts by declaring them "under penalty of perjury . . . true and correct to the best of my information and belief."⁷ (Pl.'s Resp. 2, ECF No. 21.) Such a statement fails to transform the allegations in the affidavit or Complaint into admissible evidence. Hogge v. Stephens, No. 3:09cv582, 2011 WL 2161100, at *2-3 & n.5 (E.D. Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made upon information and belief as "mere pleading allegations" (quoting Walker v. Tyler Cnty. Comm'n, 11 F. App'x 270, 274 (4th Cir. 2011))).

C. Effect of Extrinsic Documents

The parties have placed numerous extrinsic documents before the Court.⁸ The Court may consider evidence outside the pleadings on a motion to dismiss for lack of subject matter jurisdiction without converting the motion to one for summary judgment and will do so here to resolve Defendant's jurisdictional challenge to the Complaint. Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768. None of the parties contests the authenticity of any of thedocuments. See Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).

II. Procedural and Factual Background

A. Summary of Allegations in the Complaint

The Complaint addresses alleged acts of discrimination and breaches of a collective bargaining agreement in the context of Price's employment as a correctional counselor with the BOP at FCC Petersburg. Construing Price's Complaint liberally, the Court interprets the Complaint to raise three claims:

Claim I: In utilizing the Affirmative Employment Program ("AEP"),⁹ the BOP breached the Collective Bargaining Agreement's ("CBA")¹⁰ directive not to restrain employees' exercise of their right to fair treatment and freedom from discrimination, (Compl. ¶¶ 45, 154(1));

Claim II: Discrimination on the basis of race, gender, and sexual orientation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a),¹¹ (Compl. ¶¶ 149, 154(2)); and,Claim III: Retaliation for prior EEOC complaint, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a),¹² (Compl. ¶¶ 130, 156).

On May 30, 2014, Price submitted a document entitled "[A]ttempt at Informal Resolution" dated May 29, 2014 ("Informal Grievance"), addressing it to FCC Petersburg Warden Eric D. Wilson ("Warden Wilson"). (Compl. ¶ 24; id. Ex. 2, ECF No. 1-2.) The Informal Grievance states that Price "[has] been denied [his] rights under the [CBA]." (Id. Ex. 2 at 2.) Price avers that he has "not been treated fairly as outline[d] by the [CBA]; nor [has] [he] been free of discrimination as outline[d] by the [CBA]." (Id.)

In the Informal Grievance, Price elaborates that, as a heterosexual, Caucasian male, the BOP's use of the AEP discriminates against him regarding internal advancement:

As a Heterosexual, Caucasian (White) Male I am being discriminated against by the Agency known as The United States Department of Justice, The Federal Bureau of Prisons thru its use of the [AEP] . . . in the hiring processes within the [BOP].

I am a Heterosexual, Caucasian (White) Male. I am being denied equal treatment as it relates to promotional employment or job advancement process within the [BOP].

Heterosexual, Caucasian (White) Males have been denied and are being denied representations in and by the [AEP] . . . because we are not an identified minority group.

I have been denied and are [sic] being denied equal protection . . . due to exclusion of Heterosexual, Caucasian (White) Males as a group by the [AEP] . . . within the [BOP].

. . . .

The advantage given to minorities by the [AEP] in the promotion and hiring process¹³ creates a disparity in treatment towards Heterosexual, Caucasian (White) Males who the program does not represent.

. . .

The use of [the AEP] in the promotional employment process within the [BOP] discriminates against Heterosexual, Caucasian (White) Males.

(Id. at 3, 5.) Price demands that the BOP "remove[ ]" the AEP because it "has created discrimination and violates the law and the natural right of all men and women to be treated equally." (Id. at 7.) The Informal Grievance does not identify a specific instance when the BOP's use of the AEP resulted in the discriminatory treatment of Price.

On June 6, 2014, Price received an email from FCC Petersburg's Human Resources Department with Warden Wilson's response to his Informal Grievance ("Response to Informal Grievance") attached to the email. The Response to Informal Grievance, dated June 5, 2014, directs Price to "contact the EEO Counselor within 45 days of the alleged discrimination" "[i]f [he] believe[s] [he] [has] been subjected to discrimination." (Compl. Ex. 3 at 3.) The Response to Informal Grievance identifies Wanda Dorsey as the EEO Counselor for FCC Petersburg and contains Dorsey's email address and telephone number.

On June 9, 2014, Price submitted a Formal Grievance. The Formal Grievance repeats verbatim the allegations that Price made in the Informal Grievance regarding the BOP's use ofthe AEP in violation of the CBA and the AEP's discriminatory impact. In the Formal Grievance, in addition to the removal of the AEP, Price requested remedies including attorneys' fees, damages, and other injunctive relief:

[T]hat all attorney, legal fees and expenses incurred in the processing of this grievance will be reimbursed by the agency. That a cease and desist order be issued if applicable. . . . That suitable compensation [is] granted (specifically, but not limited to, Remedies to Include Compensatory & Punitive Damages as outline[d] by EEOC guidelines, a promotion of 3 GL-grade levels at their current job, . . . [a

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