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Harrup v. Carter

United States District Court, E.D. Virginia, Richmond Division

June 16, 2017

JOAN C. HARRUP, Plaintiff,
ASHTON B. CARTER, Secretary, Department of Defense, Defendant.



         This matter comes before the Court on Defendant Ashton B. Carter's Motion to Dismiss.[1] (ECF No. 10.) Plaintiff Joan C Harrup, proceeding pro se, [2] has responded to the Motion to Dismiss, (ECF No. 19), and Carter has replied, (ECF No. 21). Accordingly, the matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion to Dismiss.

         I. Federal Rule of Civil Procedure 12(b)(1) Standard

         In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)[3] 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 Rule 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.2dat 1219. Insucha challenge, a court assumes the 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) consideration. See Int'l Longshoremen's Ass 'n, 914 F.Supp. at 1338; see also Adams, 697F.2datl219.

         A Rule 12(b)(1) motion may also 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 plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See id; see also Adams, 697 F.2d at 1219.

         II. Procedural and Factual Background

         After the United States Equal Employment Opportunity Commission (the "EEOC") denied consideration of her Petition to Review a final decision of the Merit Systems Protection Board (the "MSPB"), Joan C. Harrup filed a Complaint in this Court against Ashton B. Carter, the former Secretary of the Department of Defense. The facts underlying Harrup's claim arise from the implementation of the 2013 Federal Government Furlough, which she claims applied to her in violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq[4] (Compl. 1, ECF No. 4.)

         Harrup's 2013 Challenge to the Furlough

         Harrup alleges that, in February 2011, she began working a reasonable accommodation schedule to comply with her neurologist's orders following an injury sustained in a car accident. Under that schedule, Harrup contends she worked only thirty-four hours per week, with reduced hours on Tuesdays and Thursdays. The Defense Logistics Agency ("DLA"), a component of the Department of Defense, recorded the hours she did not work as Leave without Pay ("LWOP").

         Anticipating an upcoming furlough, the DLA negotiated a Memorandum of Agreement ("MOA") with the American Federation of Government Employees, Council 169 ("AFGE"), a union to which Harrup belonged, regarding application of the furlough to union members. The DLA and the AFGE signed this agreement on May 1, 2013. (See Mem. Agreement Between the DLA and the AFGE Administrative Furlough, ECF No. 4-3.) On May 29, 2013, the DLA issued a memorandum to its affected employees informing them of a proposed furlough ("Furlough Notice"), which would be implemented "not earlier than 30 days from receipt of [the] notice." (May 29, 2013 DLA Memo. 1, ECF No. 11-1.)

         In July and August 2013, due to budget constraints, the DLA furloughed many of its civilian employees, including Harrup, for six non-consecutive days. The DLA required that employees record furlough hours as LWOP and that they take the hours on Mondays or Fridays during the furlough period. Prior to the first week of the furlough, the DLA allowed employees to choose which day of the week they wanted to serve as their furlough day, but required employees to maintain that choice throughout the furlough period.

         Pursuant to the MOA, "[t]hose employees who currently have an alternative work schedule with a scheduled regular day off will have the option of retaining their current day off as their weekly furlough day." (Mem. Agreement Between the DLA and the AFGE Administrative Furlough ¶ 3.) It also provided that part-time employees should work with their "supervisors ... [to] compute a pro-rated number of furlough hours per pay period commensurate with that part-time schedule." (Id. ¶ 6.) Both the DLA and the AFGE "agree[d] to abide by applicable laws, rules, and regulations regarding furloughs" in implementing the upcoming furlough. (Id. ¶ 15.)

         After receiving the Furlough Notice and in accordance with the procedures within it, Harrup sent a letter to the DLA's Deciding Official asserting that the furlough would cause her financial hardship due to pay reduction and continued medical payments, stating that it "d[id] not promote the efficiency of the service, is unwarranted, and is unprecedented." (Joan Harrup Mem. for Deciding Official ¶ 3, ECF No. 11-2.) On June 27, 2013, the Deciding Official responded on behalf of the DLA by issuing a "Notice of Decision to Furlough Due to Lack of Funds." (ECF No. 11-3.) In that notice, the DLA rejected any claim that the furlough was "unwarranted" or lacked legal support. (June 27, 2013 DLA Mem. 1-2, ECF No. 11-3.) The DLA also deemed the furlough "valid." (Id. at 2.) Recognizing that the furlough might "create a financial hardship for employees, " the DLA stated that it had attempted to limit the impact "across-the-board for all employees, " and referred Harrup to resources within DLA to assist with financial or other issues. (Id.) Finally, the DLA instructed Harrup that she, and other employees, could pursue various avenues of appeal depending on the basis of their claim, or on their employee status.

         Harrup's August 2.2013 Appeal to the MSPB

         On August 2, 2013, Harrup appealed the furlough to the MSPB asserting again that the furlough did "not promote the efficiency of service, is unwarranted, and unprecedented." (MSPB Form 185-2, ECF No. 11 -4). Harrup charged that she "knew" the furlough would be deleterious to "the DLA mission." (Id.) She reiterated that the proposed furlough would cause her financial hardship due to pay reduction and continued medical needs.

         The November 3, 2014 Notice to Appellants

         On November 3, 2014, Administrative Law Judge Nicole DeCrescenzo (the "ALJ") issued a Notice to Appellants on behalf of the MSPB. (See ALJ's Notice to Appellants (the "ALJ Notice"), ECF No. 11-5.) The ALJ Notice informed Harrup and approximately thirty others that their appeals had been consolidated. The ALJ notified Harrup's appeal group that she would consider at least the following four issues under their appeals: "[f]urlough was arbitrary, unfair, or inconsistent with the efficiency of the service; [f]urlough was unnecessary because agency had sufficient funds and/or the agency could have utilized other cost saving methods without furloughing employees; [f]urlough caused me financial hardship; [and, w]orking Capital Fund employees should not have been furloughed." (Id. at 4.)

         The ALJ Notice also ordered all appellants "to file a written notice specifying the arguments or affirmative defenses [they] intend[ed] to raise" and cautioned them that "[a]ny allegations or affirmative defenses not listed above that are not specifically identified in response to this order may be deemed as waived and may not be considered further." (Id.) Harrup did not identify any affirmative defenses, nor did she submit anything indicating that she intended to pursue a disability discrimination claim or otherwise rely on the Rehabilitation Act. Indeed, for roughly nineteen months between August 2013 and January 2015, the gravamen of Harrup's claims rested on concerns about efficiency, arbitrary action, lack of procedure, or lack of need to save funds. Similarly consistent were Harrup's complaints of financial hardship stemming from reduced income as she continued to incur medical bills. This focus-including the absence of specific reference to any disability claim-persisted despite at least one formal opportunity to add claims or affirmative defenses to the record.

         Proceedings before the ALJ in 2015

         In the ALJ's January 12, 2015 Order and Summary of Conference Call, the ALJ noted that Harrup and several others had preserved their appeals by, among other things, participating in the agency-ordered January 8, 2015 conference call. The ALJ explained that, with one exception not applicable to Harrup, "[n]o appellant has preserved an affirmative defense." (O. & Summ. of Conference Call 1, ECF No. 11-6.) After articulating the applicable law and burdens of proof, the ALJ instructed appellants, including Harrup, that "[a] 11 evidence and argument must be filed by" February 16, 2015, and that anything filed after that date "will not be accepted." (Id. at 7.)

         Harrup submitted material in support of her claim. On January 23, 2015, she argued that the furlough was not applied to her in a "fair and even manner." (Harrup's Jan. 23, 2015 MSPB Submission 3, ECF No. 4-2.) Harrup stated that she was "denied due process in not being allowed to continue" her reduced hours on Tuesday and Thursday, which complied with a "Reasonable Accommodation Request from [her] neurologist." (Id.) Because the furlough allowed only a Monday or Friday off, Harrup stated that she had to take medical leave in order to maintain her medical treatment as directed. (Id.) Personal financial hardship ensued. (Id.) While Harrup mentioned a Rehabilitation Act term of art by ...

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