Ramos v. U.S. Dep't of Agric.

Docket Number22-cv-20190-BLOOM/Otazo-Reyes
Decision Date18 August 2022
CourtU.S. District Court — Southern District of Florida



THIS CAUSE is before the Court upon Defendant the United States Department of Agriculture's (Defendant or “USDA”) Motion to Dismiss First Amended Complaint, ECF No. [37]. Plaintiff Joey D. Gonzalez Ramos (Plaintiff or “Gonzalez”) filed a Response, ECF No. [40], to which USDA filed a Reply, ECF No. [41]. The Court has carefully considered the Motion, the Response, Reply, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted.


This case arises from the USDA's alleged failure to pay Gonzalez his full salary while on administrative leave after USDA determined that Gonzalez was absent without leave (“AWOL”). See ECF No. [36] (“First Amended Complaint” or “FAC”). In the FAC Gonzalez alleges that he was an Information Technology Specialist employed at the Agricultural Research Service, an agency of USDA. Id. ¶ 6. After fourteen (14) years, Gonzalez was removed from employment by USDA on August 10, 2018. Id. ¶ 7. Gonzalez appealed his removal to the Merit Systems Protection Board (“MSPB”). Id. at ¶ 8. On September 23, 2019, the MSPB issued an initial decision canceling Gonzalez's removal, and “ordering reinstatement to his previous position with pay and benefits” (“Initial Decision”). Id. ¶ 9.[1] The Initial Decision stated in pertinent part:

If a petition for review is filed by either party, I ORDER the agency to provide interim relief to the appellant in accordance with 5 U.S.C. § 7701(b)(2)(A). The relief shall be effective as of the date of this decision and will remain in effect until the decision of the Board becomes final.

Id. ¶ 10. On October 28, 2019, USDA filed a petition for review challenging the Initial Decision. Id. ¶ 11. USDA thereafter filed a certification of interim relief with the MSPB, certifying that Gonzalez would not return to the workplace, but would receive pay, compensation, and all other benefits pending the outcome of the petition for review. Id. ¶ 12. On November 20, 2019, Lisa Baldus (“Baldus”), Gonzalez's supervisor, notified Gonzalez by letter (“Baldus Letter”) that USDA had placed him on indefinite paid administrative leave, but did not specify the authority under which USDA did so. Id. ¶¶ 14-15. The Baldus Letter stated that

[i]t has been determined that it is in the Agency's best interest to continue you in a non-duty status during the pendency of your Appeal because your presence would be unduly disruptive to the work environment. While you are on administrative leave, you remain an employee of the Agricultural Research Service and you will continue to receive pay and benefits.

ECF No. [37-1] at 1.

Gonzalez thereafter received an email from USDA on December 6, 2021, informing him that his position had been realigned, his residence was designated as his duty station, and his work schedule was to be determined. Id. ¶ 19. Gonzalez never requested a position transfer or consented to the USDA designating his residence as a duty station. Id. ¶ ¶ 20, 21. On December 8, 2021, Gonzalez received another email from USDA directing him to complete a background investigation for the position to which he was transferred. Id. ¶ 22. Gonzalez requested confirmation that he was still on administrative leave and Baldus confirmed that he was. Id. ¶¶ 23, 24. On December 20, 2021, Lisa Keeter (“Keeter”), USDA's Director of the Business Services Division, informed Gonzalez that he had five (5) calendar days to complete the background investigation process and threatened him that the failure to do so might result in charges of AWOL. Id. ¶ 25. AWOL status means “a non-pay status that covers an absence from duty which has not been approved.” Id. ¶ 27. On January 11, 2022, Keeter informed Gonzalez via letter that he was charged as of December 28, 2021, as AWOL and would continue to be charged as AWOL until he: (a) completed the questionnaire and (b) submitted all required documents for his background investigation. Id. ¶ 28. On January 12, 2022, Keeter sent Gonzalez a description of the job to which he had been transferred. Id. ¶ 29. On March 18, 2022, Gonzalez received another letter from Keeter proposing to remove him from his employment. Id. ¶ 30. On May 4, 2022, USDA removed Gonzalez from employment. Id. ¶ 31. Gonzalez was never notified by USDA that he was not on paid administrative leave between December 28, 2021 and March 18, 2022. Id. ¶ 32.

As a result, Gonzalez asserts one claim against USDA for violation of the Back Pay Act, 5 U.S.C. § 5596, alleging that USDA knew or should have known that Plaintiff cannot be AWOL while on administrative leave and, while on administrative leave, Plaintiff was entitled to his full salary. Gonzalez alleges that the Court has jurisdiction over his claim pursuant to the Little Tucker Act, 28 U.S.C. § 1346, the Back Pay Act, and USDA's decision to place him on administrative leave. ECF No. [36] ¶ 2. In the Motion, USDA requests that the Court dismiss this case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.


A. Dismissal for lack of subject matter jurisdiction

A Rule 12(b)(1) motion challenges the district court's subject matter jurisdiction and takes

Case No. 22-cv-20190-BLOOM/Otazo-Reyes one of two forms: a “facial attack” or a “factual attack.” “A ‘facial attack' on the complaint ‘require[s] 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.' McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “A ‘factual attack,' on the other hand, challenges the existence of subject matter jurisdiction based on matters outside the pleadings.” Kuhlman v. United States, 822 F.Supp.2d 1255, 1256-57 (M.D. Fla. 2011) (citing Lawrence, 919 F.2d at 1529); see Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (“By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.”).

“In assessing the propriety of a motion for dismissal under Fed.R.Civ.P. 12(b)(1), a district court is not limited to an inquiry into undisputed facts; it may hear conflicting evidence and decide for itself the factual issues that determine jurisdiction.” Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). As such, [w]hen a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1), the district court is free to independently weigh facts, and ‘may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56.' Turcios v. Delicias Hispanas Corp., 275 Fed.Appx. 879, 880 (11th Cir. 2008) (citing Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)).

However, a court may independently weigh facts and find that it lacks subject matter jurisdiction only “if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action. Morrison, 323 F.3d at 925 (citation omitted) (emphasis in original). When a jurisdictional challenge implicates the merits of plaintiff's claim, the court must “find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.” Id. (citations omitted). According to the Eleventh Circuit, this ensures “a greater level of protection for the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place great restrictions on the district court's discretion.” Id. (citations omitted) (alterations in original); see also SEC v. LeCroy, No. 2:09-CV-2238-AKK, 2010 WL 11565305, at *2 (N.D. Ala. Aug. 4, 2010).

B. The Little Tucker Act (28 U.S.C. § 1346(a)(2))

Under the Little Tucker Act,” district courts possess concurrent jurisdiction with the Court of Federal Claims to entertain any monetary claim against the United States for an amount not exceeding $10,000 “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages not sounding in tort.” 28 U.S.C. § 1346(a)(2).[2]“The Little Tucker Act . . . doesn't create a cause of action against the federal government-but only waives sovereign immunity for certain ‘claim[s] against the United States, not exceeding $10,000.” Savage Servs. Corp. v. United States, 25 F.4th 925, 939 (11th Cir. 2022) (citing 28 U.S.C. § 1346(a)(2)). However, the waiver of sovereign immunity is only for money-mandating Constitutional provisions, statutes, regulations, and executive orders. See Crowley v. United States, 398 F.3d 1329, 1334 (Fed. Cir. 2005); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) ([I]n order to come within the jurisdictional reach and waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.”) (citing U.S. v. Mitchell, 463 U.S. 206, 216 (1983)).

“When a complaint is filed alleging a Tucker Act claim based on a Constitutional provision, statute, or regulation . . . the trial court at the outset shall determine . . . whether the Constitutional...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT