United States District Court, E.D. Virginia, Alexandria Division
DEBRA L. JORDAN, Petitioner,
DEPARTMENT OF THE ARMY, Respondent.
M. Brinkema United States District Judge
the Court is respondent Department of the Army's
("respondent" or "Army") Motion to
Dismiss petitioner Debra Jordan's ("petitioner"
or "Jordan") petition for review of a decision of
the Merit Systems Protection Board ("MSPB") on the
ground that it was filed outside of the required time period.
For the reasons that follow, respondent's motion will be
is an African-American female currently employed by
respondent as a GS-0303-14 Strategic Planner in Sembach,
Germany. Federal Circuit Record ("Record") [Dkt. 1]
at 4. Before serving as a Strategic Planner, Jordan was
employed by respondent as a GS-0301-14 Deputy Garrison
Manager in the Baumholder Military Community, U.S. Army
Garrison, Rheinland Pfalz. Id. at 4-5. Jordan
alleges that, while serving as a Deputy Garrison Manager,
respondent took three adverse employment actions against her
on account of her race, sex, and engagement in protected
activity. Id. at 5-6.
Jordan alleges that, beginning in September 2016, she was
"continuously subjected to harassment and
hostility" by Deputy Garrison Manager Bruce Likens,
Deputy Garrison Commander Deborah Reynolds, and other
"mostly white," mostly male leadership.
Id. at 5. As examples of harassment and hostility,
she alleges that she suffered from a "lack of staff,
lack of rating authority, lack of access to key
meetings," and other "mistreatment" by the
leadership. Id. Between July 2017 and February 2018,
Jordan reported the alleged harassment and hostility to
Garrison Commander Keith Igyarto and Deputy Garrison
Commander Kevin Griess. Id. In February 2018,
respondent initiated an investigation into her complaints;
however, "[n]o explanation was given nor were any
results of the [investigation] provided [to her]."
Id. The first of the three alleged adverse
employment actions referred to in this litigation occurred on
July 9, 2018 when Igyarto issued petitioner a Letter of
Reprimand based on the results of the
investigation. Id. at 5-6. The second occurred
on the same day when Griess permanently reassigned petitioner
to the position of Strategic Planner. Id. The third
occurred on July 15, 2018 when Griess issued petitioner a
substandard performance appraisal. Id. at 6.
the assistance of counsel, Jordan appealed these three
alleged adverse employment actions to the MSPB, arguing that
they constituted "prohibited personnel practices"
under the Civil Service Reform Act of 1978, 5 U.S.C. §
7512, and that they were taken against her on account of her
race, sex, and engagement in protected activity, in violation
of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e-2, 2000e-3. Id. On September 17, 2018, an
Administrative Judge ("AJ") held that the MSPB did
not have jurisdiction over petitioner's appeal because
the three employment actions did not constitute prohibited
personnel practices under § 7512, which explicitly lists
only removal, suspension longer than 14 days, reduction in
grade, reduction in pay, and furlough of 30 days or less.
Id. Petitioner did not appeal the AJ's decision
to the full MSPB, which resulted in the AJ's decision
becoming final on November 1, 2018. Id. The AJ's
decision contained a clear recitation of petitioner's
appeal rights, including the time limits for filing a
petition for review of the decision once it became
January 3, 2019, 63 days after the AJ's decision became
final, petitioner, through counsel, filed a petition for
review in the United States Court of Appeals for the Federal
Circuit. Id. On March 27, 2019, the Federal Circuit
held that it did not have jurisdiction over the petition
because it concerned a "mixed-case" appeal-one in
which an employee complains of a serious adverse action and
attributes the action, in whole or in part, to bias based on
race, gender, age, or disability-which must be brought in a
federal district court pursuant to Perry v. Merit Svs.
Protection Bd., 137 S.Ct. 1975 (2017). Id. at
61. On the same day, the Federal Circuit transferred the
petition to this court. Id. Respondent subsequently
moved to dismiss the petition under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
the time relevant to this motion, Jordan was represented by
Robert Chris Pittard, a Texas attorney. Petitioner's
Memorandum [Dkt. 18] at 1-2. Jordan alleges that she hired
Pittard in July 2018, and that for approximately three to
four months he "exhibited energy and dispatch in
handling several initial matters." Id. at 11.
During this time, "[t]hey never had a
misunderstanding;" however, sometime after the AJ issued
its decision in September 2018, Pittard stopped responding to
Jordan's requests for status updates and copies of court
filings. Id. at 11-12. Jordan alleges that
"some inexplicable communication failure occurred."
Id. at 12. As a result of the communication failure,
Pittard filed Jordan's petition for review in the wrong
court and 33 days after the 30-day filing deadline for filing
in the correct court had expired, which caused the Federal
Circuit to transfer the case to this court. Id. On
February 3, 2019, Jordan fired Pittard. Id.
Standard of Review
Federal Rule of Civil Procedure 12(b)(1), "a civil
action must be dismissed whenever the court lacks subject
matter jurisdiction." Al Shimari v. CACI Premier
Tech., Inc., 320 F.Supp.3d 781, 782 (E.D. Va. 2018).
Under Federal Rule of Civil Procedure 12(b)(6), a civil
action "must be dismissed when a [petitioner's]
allegations fail to state a claim upon which relief can be
granted." Adams v. NaphCare, Inc., 244
F.Supp.3d 546, 548 (E.D. Va. 2017). In evaluating a motion to
dismiss under Rule 12(b)(6), a court "accepts facts
alleged in the complaint as true and views those facts in the
light most favorable to the [petitioner]." Id.
motion to dismiss, respondent argues (1) that the Court lacks
subject-matter jurisdiction over this action because
petitioner did not comply with the filing time limit imposed
by 5 U.S.C. § 7703(b)(2), and (2) that even if the Court
did have jurisdiction, petitioner has not alleged
circumstances warranting equitable tolling of the time limit.
Each argument will be addressed in turn. Respondent's
second argument prevails.
motion raises the important question of whether the 30-day
filing time limit imposed by 5 U.S.C. § 7703(b)(2) is a
jurisdictional prescription. "Jurisdiction ... is a word
of many meanings." Fort Bend County v. Davis,
139 S.Ct. 1843, 1848 (2019) (quotation omitted).
"'Courts, including th[e] [Supreme] Court, have more
than occasionally [mis]used the term 'jurisdictional'
to refer to nonjurisdictional prescriptions."
Id. at 1848 n.4 (quotation omitted) (second
alteration in original). Accordingly, "[i]n recent