Smith v. Pallman, 033011 FED3, 10-3360
| Opinion Judge | VAN ANTWERPEN, Circuit Judge. |
| Party Name | CLINT SMITH; WENDY KING, Appellants v. RICHARD PALLMAN, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, UNITED STATES DEPARTMENT OF AGRICULTURE, FARM SERVICE AGENCY; SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE, IN HIS OFFICIAL CAPACITY |
| Judge Panel | Before: FUENTES, SMITH and VAN ANTWERPEN, Circuit Judges |
| Case Date | March 30, 2011 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 21, 2011
On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. Civil No. 3:09-cv-01743) District Judge: Honorable John E. Jones, III
OPINION
In 2007, the Farm Service Agency ("FSA")1 reassigned Clint Smith and Wendy King. Smith administratively appealed his reassignment, lost, and filed a Bivens2 claim in District Court, alleging that he had been constructively discharged in violation of his constitutional rights. King also administratively appealed her reassignment, lost, and was terminated. She has now filed a complaint in District Court alleging that her termination was retaliation for a previous accommodation request and claiming violations of the Rehabilitation Act and Americans with Disabilities Act ("ADA"). The District Court dismissed Smith's claim for lack of subject matter jurisdiction and dismissed King's claims for failure to exhaust administrative remedies. For the following reasons, we will affirm.
I.
Smith was a farm loan officer for the FSA, and King was a program technician. Defendant-Appellee Richard Pallman is the FSA's executive director. In late 2006 and early 2007, the FSA notified employees, Smith and King included, that they would be reassigned to different office locations.
After Smith unsuccessfully appealed his reassignment, he then claimed in District Court in a Bivens action that his appeal was protected activity and that he had been constructively discharged in violation of the First, Fifth, and Fourteenth Amendments of the United States Constitution.
As to King, prior to her reassignment, she had claimed a preexisting neck injury and requested various accommodations. The FSA denied her request. On December 15, 2006, King received notice of her reassignment and was informed that refusing reassignment would result in termination. Nevertheless, on December 29, 2006, King refused reassignment and administratively appealed the reassignment decision. On February 15, 2007, the FSA denied her appeal by letter. The FSA notified King of her impending termination on February 27, 2007 and terminated her on April 3, 2007.
In response to her termination, King sent a letter to Gregory E. Ferby ("Ferby"), who is the Equal Employment Opportunity ("EEO") counselor for the Farm Service Agency. Appx. at 189. The letter was dated May 27, 2007, postmarked May 30, 2007, and received by Ferby on June 13, 2007. King informed Ferby that she had been terminated, indicated that she could not accept reassignment due to her preexisting neck condition, and requested to file a formal charge of disability and gender-based discrimination. On June 19, 2007, Ferby replied by letter and informed King that she should have commenced the EEO complaint process with him within 45 days of the alleged discrimination, which would have been May 17, 2007. King received Ferby's letter on June 21, 2007 but did not respond. On June 27, 2007, Ferby sent King a second letter, informing her of EEO requirements and her rights and responsibilities. King received Ferby's second letter on July 3, 2007. On August 1, 2007, Ferby wrote a report detailing his correspondence with King, indicated that King's claim related to her April 3, 2007 termination, and noted that King had not contacted him on a timely basis.
On February 24, 2009, Smith and King filed suit in the United States District Court for the Eastern District of Pennsylvania.3 On May 22, 2009, the FSA moved to dismiss or, alternatively, for summary judgment, and to transfer the case to the Middle District of Pennsylvania. The case was transferred to the Middle District of Pennsylvania on August 7, 2009 and assigned to Judge Vanaskie.
On January 29, 2010, the FSA again moved to dismiss or for summary judgment.4The FSA moved to dismiss Smith's claims for lack of subject matter jurisdiction, arguing that the Civil Service Reform Act ("CSRA") provided Smith's exclusive remedy. The FSA moved to dismiss King's claims because King failed to timely exhaust administrative remedies by waiting more than 45 days after her termination to contact the agency's EEO counselor. In support of its motion, the FSA attached documents detailing King's failure to contact an EEO counselor. In response, King submitted an affidavit claiming that she had timely contacted EEO Counselor Ferby.
On May 18, 2010, Judge Vanaskie referred the FSA's motion to a Magistrate Judge.5 On June 16, 2010, the Magistrate Judge issued a Report & Recommendation suggesting that the District Court grant the FSA's motion to dismiss because Smith's Bivens claim was preempted by the CSRA and because King failed to timely exhaust administrative remedies regarding her Rehabilitation Act and ADA claims.
On July 8, 2010, over objection, the District Court adopted the Magistrate Judge's Report & Recommendation in its entirety and granted the FSA's motion to dismiss. On August 4, 2010, both Smith and King timely appealed.
II.
We have jurisdiction over a district court's final order under 28 U.S.C. § 1291. We exercise plenary review over a district court's grant of a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.6 Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). We review de novo a district court's order dismissing a complaint for failure to state a claim under Rule 12(b)(6). Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
III.
We first consider Smith's claim and then turn to King's claims.
A.
The District Court dismissed Smith's Bivens claim for lack of subject matter jurisdiction because it determined that the CSRA provided Smith's only means of obtaining relief. This determination is correct.
In Bivens, the Supreme Court permitted a plaintiff to pursue a non-statutory claim for alleged violations of Fourth Amendment rights. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). But a non-statutory remedy is not available if a statutory scheme evidences congressional intent to limit remedies. See Schweiker v. Chilicky, 487 U.S. 412, 421-24 (1988); Bush v. Lucas, 462 U.S. 367, 388 (1983). In Sarullo v. United States Postal Service, we held that the CSRA is just such a statutory scheme because the CSRA "affords the exclusive remedy for damage claims of federal employees seeking redress for alleged constitutional violations arising out of the employment relationship." 352 F.3d 789, 795 (3d Cir. 2003); see Mitchum v. Hurt, 73 F.3d 30, 34-35 (3d Cir. 1995). There, the district court dismissed a plaintiff's Bivens claim for lack of subject matter jurisdiction because the claim arose in the employment context and was preempted by the CSRA. Sarullo, 352 F.3d at 797. Here, as in Sarullo, because Smith's claim arises from the employment context, the CSRA provides Smith's sole remedy, and the District Court properly dismissed Smith's Bivens claim for lack of subject matter jurisdiction.7
B.
The District Court granted the FSA's motion to dismiss King's Rehabilitation Act and ADA claims under Rule 12(b)(6). When reviewing a 12(b)(6) dismissal, we "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 231. Factual allegations that amount to "labels and conclusions" or "naked assertions, " Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007), are "not entitled to the assumption of...
To continue reading
Request your trial