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Jordan v. Department of Army

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

October 28, 2019

DEBRA L. JORDAN, Petitioner,
v.
DEPARTMENT OF THE ARMY, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Before 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 GRANTED.

         I. BACKGROUND

         A. Factual Background

         Petitioner 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.

         Specifically, 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.[1] Id. at 5-6. The second occurred on the same day when Griess permanently reassigned petitioner to the position of Strategic Planner.[2] Id. The third occurred on July 15, 2018 when Griess issued petitioner a substandard performance appraisal.[3] Id. at 6.

         B. Procedural History

         With 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 final.[4] Id.

         On 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).

         Throughout 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.

         II. DISCUSSION

         A. Standard of Review

         Under 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.

         B. Analysis

         In its 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.

         Respondent's 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 ...


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