Wallace v. Holder

• Decision Date: 01 March 2012
• Docket Number: Case No. 2:11–CV–2723–VEH.
• Citation: 846 F.Supp.2d 1245
• Parties: Jessica Lee WALLACE, Plaintiff, v. Eric H. HOLDER, Jr., in his Official Capacity as Attorney General of the United States Department of Justice, (Federal Bureau of Investigation), Agency, Defendant.
• Court: U.S. District Court — Northern District of Alabama

846 F.Supp.2d 1245

Jessica Lee WALLACE, Plaintiff,

v.Eric H. HOLDER, Jr., in his Official Capacity as Attorney General of the United States Department of Justice, (Federal Bureau of Investigation), Agency, Defendant.

Case No. 2:11–CV–2723–VEH.

United States District Court,

N.D. Alabama,

Southern Division.

March 1, 2012.

Scott T. Morro, Morro Law Center, Gardendale, AL, for Plaintiff.

James G. Gann, III, U.S. Attorney's Office, Birmingham, AL, Marisa C. Ridi, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

I. Introduction

Plaintiff Jessica Lee Wallace (“Ms. Wallace”) initiated this job discrimination case arising under Title VII of the Civil Rights Act of 1964 against Defendant Eric H. Holder, Jr., in his official capacity as the Attorney General of the United States Department of Justice, (the “Attorney General”) on July 29, 2011. (Doc. 1). Pending before the court are the Attorney General's Rule 12(b)(1) and Rule 56 Motion To Dismiss Counts Two and Three of Plaintiff's Complaint Based on Lack of Jurisdiction (Doc. 15) (the “Jurisdictional Motion”) filed on January 26, 2012, and his related Second Motion for Reconsideration (Doc. 18) (the “Reconsideration Motion”) filed on January 27, 2012. These motions stem from the court's prior rulings in favor of Ms. Wallace regarding the preservation of certain evidence relating to a non-party witness named Lorenza A. Moore (“Mr. Moore”). (Docs. 12, 17).

On January 27, 2012, the court entered a scheduling order on the Jurisdictional Motion and the Reconsideration Motion. (Doc. 19). The Attorney General already had filed his brief in support of the Jurisdictional Motion on January 26, 2012. (Doc. 16). Ms. Wallace filed her opposition (Doc. 21) on February 3, 2012, and the Attorney General followed with his reply (Doc. 22) on February 10, 2012. On February 21, 2012, the Attorney General filed a supplement (Doc. 23) to his reply. Accordingly, both motions are now under submission, and, for the reasons explained below, the Jurisdictional Motion is GRANTED IN PART on sovereign immunity grounds and is otherwise DENIED. The Reconsideration Motion is DENIED.

II. StandardsA. Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to assert the defense of lack of subject matter jurisdiction. A motion to dismiss based on lack of subject matter jurisdiction should be granted “only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). Lack of subject matter jurisdiction may be found through an examination of: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts and the court's resolution of disputed facts. Id. Because the burden of proof on a motion to dismiss for lack of subject matter jurisdiction is on the party asserting jurisdiction, the plaintiff “constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d at 161 (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)).¹

Attacks on subject matter jurisdiction take two forms: (1) facial attacks, and (2) factual attacks. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir.1999) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)). Facial attacks on a complaint “require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's] complaint are taken as true for the purposes of the motion.” Lawrence, 919 F.2d at 1529 (quoting Menchaca, 613 F.2d at 511). Factual attacks challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. (same).

B. Rule 56

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.’ ” Int'l Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir.2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 1355–56, 89 L.Ed.2d 538 (1986)).

C. Reconsideration

In the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly. See United States v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D.Fla.2003); Pennsylvania Ins. Guar. Ass'n v. Trabosh, 812 F.Supp. 522, 524 (E.D.Pa.1992); Spellman v. Haley, No. 97–T–640–N, 2004 WL 866837, at *2 (M.D.Ala. Feb. 22, 2002) (“[L]itigants should not use motions to reconsider as a knee-jerk reaction to an adverse ruling.”) (citation omitted). Indeed, as a general rule, “[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.” Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.Ala.2003).

It is well established in this circuit that “[a]dditional facts and arguments that should have been raised in the first instance are not appropriate grounds for a motion for reconsideration.” Rossi v. Troy State Univ., 330 F.Supp.2d 1240, 1249 (M.D.Ala.2002) (denying motion to reconsider when plaintiff failed to submit evidence in question prior to entry of order and failed to show good cause why he could not have done so).² Furthermore, the Eleventh Circuit has declared that “a motion to reconsider should not be used by the parties to set forth new theories of law.” Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir.1997); see also Russell Petroleum Corp. v. Environ Prods., Inc., 333 F.Supp.2d 1228, 1234 (M.D.Ala.2004) (relying on Mays to deny motion to reconsider when movant advanced several new arguments); Coppage v. U.S. Postal Serv., 129 F.Supp.2d 1378, 1379–81 (M.D.Ga.2001) (similar); ³Richards v. United States, 67 F.Supp.2d 1321, 1322 (M.D.Ala.1999) (same).

Notwithstanding these limitations, reconsideration is appropriate to correct manifest errors of law or fact. SeeFed.R.Civ.P. 60(b); Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir.1996) (“Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.”); Summit, 284 F.Supp.2d at 1355 (“A motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.”). The grant or denial of a motion to reconsider is left to the discretion of the district court. See Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th Cir.2000).

III. AnalysisA. Jurisdictional Motion

Ms. Wallace's complaint contains three counts: count one is entitled “Sex Discrimination Violation of Title VII” and alleges that the Attorney General violated Title VII by “allowing an unqualified male Special Agent to administer the Physical Fitness Test to the Plaintiff, who had a track record of not passing female applicants” (Doc. 1 ¶ 47); count two is entitled “Civil Conspiracy” and asserts that the Attorney General “participated in an ongoing civil conspiracy ... through FBI Birmingham EEO Coordinator Lorenza A. Moore and the then FBI Birmingham SAC Carmen S. Adams to deprive the Plaintiff, and others ... of their Title VII rights[;]” (Doc. 1 ¶ 50); and count three is entitled “Ongoing Improper Practice” and maintains that the Attorney General “engaged in an ongoing improper practice in the Birmingham Division of the FBI by threatening employees and retaliating against employees, including the Plaintiff, who would raise concerns about the EEO program or who would consider filing an EEO complaint, thus casting a chilling effect on the entire program.” (Doc. 1 ¶ 56).

As the Attorney General summarizes the grounds in support of his Jurisdictional Motion:

[T]the Court should dismiss these claims because (1) the United States has not waived sovereign immunity for claims under the two statutes (other than Title VII) that Plaintiff relies on, (2) Plaintiff failed to administratively exhaust the Title VII retaliation claims she now asserts, and (3) the United States has not waived sovereign immunity for claims asserting alleged improprieties in the EEO process.

(Doc. 16 at 1–2). The court addresses each argument below.

1. The waiver of sovereign immunity is limited.

The Attorney General has raised sovereign immunity as a basis for dismissing at least part of Ms. Wallace's complaint. (Doc. 16 at 7 (“Thus, given no waiver of sovereign immunity, the Court must dismiss Counts Two and Three of Plaintiff's complaint except to the extent that they allege a claim of retaliation for prior protected EEO activity.”)). The United States of America, as a sovereign, is immune from suit unless it has consentedto be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). “Sovereign immunity is jurisdictional in nature. Indeed, the terms of the United States'...