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Green v. DoD Dependent Schools-Europe

April 11, 2007


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


On May 30, 2006, the plaintiff, proceeding pro se, filed a Complaint which challenges "the Department of Defense Dependent Schools (DoDDS) ongoing execution of the Priority Placement Program . . . ." Complaint ("Compl.") at 1.*fn1 The plaintiff also appears to challenge the denial of Renewal Agreement Travel ("RAT") orders*fn2 for the plaintiff's family members who did not reside with him. Compl. at 3, 5. Specifically, the plaintiff claims that he applied for RAT orders on July 5, 2005, through the Travel Order Processing System ("TOPS") but no action on the request was ever taken. Compl at 2.*fn3 On March 24, 2006, the plaintiff reapplied for RAT orders when his previous request could not be located in the TOPS system. Id.

The plaintiff alleges that on May 10, 2006, he was notified that Dr. Gloria Gladden, Chief of Personnel for the DoDDS-E, had denied his request for RAT orders for his family members. Compl. at 3. The plaintiff claims that Dr. Gladden's delay in responding to his request and her eventual decision denied him procedural due process and resulted in the constructive repudiation of the plaintiff's employment contract because he "had a reasonable expectation of family inclusion in RAT orders from July 5, 2005, through May 9, 2006." Id. at 4-5. The plaintiff's complaint demands the production of his "mobility agreement," "4,636.69 Euros plus interest," $700 in legal fees, and an order requiring the "CARE Program Coordinator" to "[i]nvestigate Plaintiff's complaint." Id. at 5-6.

Currently before this Court is the defendant's*fn4 motion to dismiss filed on October 16, 2006, pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction), 12(b)(3) (improper venue), and 12(b)(6) (failure to state a claim upon which relief may be granted). Defendant's Motion To Dismiss ("Def.'s Mot.").

I. Standards of Review

A. Dismissal for Lack of Jurisdiction

On a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain his claims. Grand Lodge of Fraternal Order of Police v. Aschcroft , 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (holding that the court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. U.S. Postal Serv. , 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Since a motion for dismissal under "Rule 12(b)(1) presents a threshold challenge to the court's jurisdiction. . . ." Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987) (citations omitted), Rule 12(b)(1) permits dismissal of a complaint if the Court "lack[s] jurisdiction over the subject matter . . . ." Fed. R. Civ. P. 12(b)(1). While the Court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 164 (1993), because the plaintiff has the burden of proof to establish jurisdiction, the "plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police , 185 F. Supp. 2d at 13-14 (citation and internal quotation marks omitted). This scrutiny permits the Court to consider material outside of the pleadings in its effort to determine whether the Court has jurisdiction. See EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624-25 n. 3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis ., 974 F.2d 192, 197 (D.C. Cir. 1992); Haase , 835 F.2d at 906; Grand Lodge of Fraternal Order , 185 F. Supp. 2d at 14.

B. Dismissal for Lack of Venue

In considering a motion to dismiss for lack of proper venue under Rule 12(b)(3), "the Court accepts the plaintiff['s] well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff['s] favor, and resolves any factual conflicts in the plaintiff['s] favor." Quarles v. Gen. Inv. & Dev. Co. , 260 F. Supp. 2d 1, 8 (D.D.C. 2003) (internal quotation marks and citation omitted); see also 2215 Fifth St. Assocs. v. U-Haul Int'l., Inc. , 148 F. Supp. 2d 50, 54 (D.D.C. 2001) (stating that courts will grant a 12(b)(3) motion if "facts [are] presented that . . . defeat [the] plaintiff's assertion of venue") (citation omitted). "Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper." Freeman v. Fallin , 254 F. Supp. 2d 52, 56 (D.D.C. 2003) (citations omitted).

II. Legal Analysis

A. Lack of Jurisdiction

The defendant requests that the Court dismiss the plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) because (1) "he fails to set forth the statutory basis for his cause or causes of action or for this Court's jurisdiction," Def.'s Mot. at 5, and (2) "he fails to identify a waiver of sovereign immunity permitting the Court to exercise its jurisdiction over the United States." Id. In the plaintiff's opposition, he does not address any assertions and arguments set forth in the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff Opposition ("Pl.'s Opp'n."). Courts in this Circuit have interpreted the Supreme Court's instruction in Haines v. Kerner , 404 U.S. 519, 520 (1972) that the complaint of a pro se plaintiff must be held to "less stringent standards than formal pleadings drafted by lawyers," as encompassing all filings submitted by pro se litigants, and not just their pleadings. See, e.g. Richardson v. United States 193 F.3d 545, 548 (D.C. Cir. 1999) (holding that "[c]courts must construe pro se filings liberally") (citing Haines , 404 U.S. at 520); Voinche v. FBI , 412 F. Supp. 2d 60, 70 (D.D.C. 2006) (observing that "[t]his Court gives pro se parties the benefit of the doubt and may ignore some technical shortcomings of their filings" and applying the Haines rule to a plaintiff's summary judgment motion) (citing Haines , 404 U.S. at 520); Calloway v. Brownlee , 366 F. Supp. 2d 43, 55 (D.D.C. 2005) (Walton, J.) (holding that the Court "must take pains to protect the rights of pro se parties against the consequences of technical errors") (citing Haines , 404 U.S. at 520). Despite this leniency, a pro se plaintiff's complaint "must at least meet a minimal standard" of what pleadings must entail. Price v. Phoenix Home Life Ins. Co. , 44 F. Supp. 2d 28, 31 (D.D.C.1999) (citing Wilson v. Civil Town of Clayton , 839 F.2d 375, 378-79 (7th Cir.1988)).

Here, the plaintiff has failed to set forth in his Complaint the statutory basis for his claim or for this Court's jurisdiction. Initially, the plaintiff indicates in his Complaint that he is challenging the "ongoing execution of the Priority Placement Program . . . ." Compl. at 1. Thereafter, the plaintiff appears to challenge the DoDEA's refusal to issue RAT orders for his dependents who were not residing with him. Id. at 3. As indicated, the plaintiff alleges that this decision denied him procedural due process and constructively repudiated his employment contract because he had a "reasonable expectation of family inclusions in RAT orders from July 5, 2005 through May 9, 2006." Id. at 4-5. However, the plaintiff does not set forth in his Compliant the procedure he was denied, how the DoDEA's decision constructively repudiated his employment contract, and why he is entitled to relief. The plaintiff has therefore failed to comply with Federal Rule of Civil Procedure 8(a). Fed. R. Civ. P. 8(a) (requiring a party to set forth in a party's pleading a claim for relief containing a short and plain statement (1) of the grounds upon which the court's jurisdiction depends, (2) showing that the pleader is entitled to relief, and (3) containing a demand for judgment for the relief the pleader seeks).

As noted above, the plaintiff has also failed to allege a proper basis for this Court to exercise jurisdiction in this matter. One limitation on a court's authority to hear a case is the doctrine of sovereign immunity, which shields the United States from being sued. See United States v. Mitchell , 445 U.S. 535, 538 (1980). Sovereign immunity bars a suit for money damages against the federal government, its agencies, and its employees sued in their official capacity, unless the government has waived such immunity. FDIC v. Meyer , 510 U.S. 471, 475 (1994); Clark v. Library of Cong. , 750 F.2d 89, 102-03 (D.C. Cir. 1984); Cronauer v. United States. , 394 F. Supp. 2d 93, 96 (D.D.C. 2005). The plaintiff has not identified in his Complaint a statute envincing a waiver of the federal government's sovereign immunity, thereby permitting the Court to exercise its jurisdiction over his claims against the United States.*fn5 However, although the plaintiff has not invoked it, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80 (2006), also provides a "limited waiver of the United States' sovereign immunity and renders the Federal Government liable to the same extent as a private party for certain torts of its employees . . . ." Cronauer , 394 F. Supp. 2d at 96 (quoting GAF Corp. v. United States , 818 F.2d 901, 904 (D.C. Cir. 1987)) (internal quotation marks omitted). But, the FTCA does not waive the federal government's immunity from suit for constitutional torts.*fn6 28 U.S.C. §§ 2679(b)(1) and (b)(2); Meyer, 510 U.S. at 477 ("the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims."). In any event, even assuming that a tort claim is being alleged (which is a stretch to say the least), the FTCA requires that a claim "first [be] presented . . . to the appropriate Federal agency." 28 U.S.C. § 2675(a).*fn7 The ...

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