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Brookens v. Acosta

United States District Court, District of Columbia

March 2, 2018

BENOIT BROOKENS, Plaintiff,
v.
R. ALEXANDER ACOSTA, Secretary, Department of Labor, Defendant.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY, United States District Judge

         Plaintiff Benoit Brookens worked as an economist for the Department of Labor (“DOL, ” sued in this case through Defendant, the Secretary of Labor, in his official capacity). Brookens claims that DOL unlawfully terminated him, alleging that his firing amounted to age- and race-based discrimination and retaliation for his union activity. He litigated those claims before the Merit Systems Protection Board (“MSPB”), which rejected them. He then sought to appeal the MSPB's decision to the U.S. Court of Appeals for the Federal Circuit. Because Brookens' discrimination claims deprived the Federal Circuit of jurisdiction, it transferred the case here.

         DOL has moved to dismiss, arguing that Brookens' failure to file this lawsuit within 30 days of when he received the MSPB's order deprives this Court of subject matter jurisdiction. The Court agrees and will dismiss the case.

         I. Factual and Procedural Background

         Brookens is a former DOL economist with degrees in law and economics. See ECF No. 18-1 (“Fed. Cir. Tr.”) at 9:21-10:4. DOL fired him in 2008. ECF No. 7 at 1; Brookens v. Dep't of Labor, 120 M.S.P.R. 678, 680 (2014). He then filed grievances for arbitration, claiming, among other things, that his firing was both the result of unlawful age and race discrimination and in retaliation for his participation in protected union activity (such as a grievance he had filed in 1999). Brookens, 120 M.S.P.R. at 680-81. In 2012, an arbitrator disagreed and rejected the claims. See Id. Brookens appealed the arbitrator's decision to the MSPB, which referred the case to an administrative law judge (“ALJ”). Id. at 686.

         The ALJ recommended ruling against Brookens on the ground that he had not substantiated his claims. Brookens v. Dep't of Labor, No. CB-7121-13-0012-V-1, 2014 WL 7146454 ¶¶ 3-4 (M.S.P.B. Dec. 16, 2014). After Brookens failed to file timely objections to the ALJ's recommendations, the MSPB adopted those recommendations in an order dated December 16, 2014. See Id. ¶¶ 5-7. The MSPB explained that the order was its “final decision.” Id. ¶ 8.

         The order informed Brookens that he could seek further review of his discrimination claims before the Equal Employment Opportunity Commission. Id. Alternatively, Brookens could seek review of all of his claims in federal district court if he did so in a timely manner, as the MSPB's order explained:

You must file your civil action with the district court no later than 30 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the district court no later than 30 calendar days after receipt by your representative. If you choose to file, be very careful to file on time.

Id. (emphasis added). Brookens does not dispute that he received a copy of the order within five days of when it was issued (that is, by December 21, 2014). See ECF No. 23 (“Pl.'s Supp.”) at 1-2.

         Brookens did not file suit in district court within 30 days. Instead, on February 12, 2015, he sought to appeal the MSPB's decision to the U.S. Court of Appeals for the Federal Circuit. See ECF No. 1-2 (“Fed. Cir. Dkt.”) at 3. The Federal Circuit required Brookens to file a form explaining the status of any discrimination claims by checking one of five boxes. His options included: that his case had never included discrimination claims, that he had abandoned any discrimination claims previously before the MSPB, and that the MSPB's ruling was jurisdictional. Brookens, who had been represented by counsel before the MSPB but was proceeding pro se at the time, erroneously selected the first of those three options. See Form 10 Statement Concerning Discrimination, Brookens v. Labor Dep't, No. 15-3084 (Fed. Cir. Mar. 13, 2015), ECF No. 3. The Federal Circuit subsequently asked the parties to clarify whether Brookens had in fact permanently abandoned his earlier discrimination claims. See Fed. Cir. Dkt. at 5 (docket entry 57). The Federal Circuit also asked the parties to address whether the court had jurisdiction in light of Kloeckner v. Solis, 568 U.S. 41 (2012), which held that appeals from MSPB decisions in “mixed cases” (that is, cases before the MSPB that include discrimination claims) must be brought in district court, not the Federal Circuit. See id.; Fed. Cir. Dkt. at 5 (docket entry 57). Having once again retained counsel by that point, Brookens explained that he did intend to preserve his discrimination claims, but asserted that the MSPB's decision was jurisdictional and thus appealable to the Federal Circuit. See ECF No. 16-5; ECF No. 16-6.

         At oral argument, the Federal Circuit panel appeared convinced that it lacked jurisdiction, and suggested that a transfer to this Court might be more appropriate than outright dismissal. See Fed. Cir. Tr. at 4:7-12, 6:1-9. DOL argued against a transfer on the ground that Brookens had not met the 30-day deadline for bringing suit in district court. See Id. at 11:5-13. The judges on the panel expressed skepticism, opining that the “30-day deadline is not jurisdictional” and therefore could be “waive[d]” by the transferee district court. Id. at 11:14-17. When pressed at oral argument, DOL agreed that the 30-day deadline was not jurisdictional and could be waived, id. at 11:18-19, but asserted that Brookens could not justify equitable tolling of the 30-day deadline because he had been aware of the deadline, had been represented by counsel before the MSPB, and himself had a legal education, see Id. at 12:20-13:7. The panel, however, suggested that equitable tolling was “a decision that the District Court should make, not us, ” and DOL agreed. Id. at 12:15-19. The panel further suggested that Brookens might have an argument in favor of equitable tolling, given that the MSPB's order did not explain that Brookens had a right to an appeal to the Federal Circuit if he gave up his discrimination claims, see Id. at 13:8-17, and that Brookens may have been “confused” about where to file, see Id. at 12:9-12.

         On May 9, 2016, the Federal Circuit issued a per curiam order concluding that Brookens' appeal was timely, but that the court lacked subject matter jurisdiction. See ECF No. 1-1 (“Fed. Cir. Order”). The Federal Circuit transferred the case to this Court pursuant to 28 U.S.C. § 1631. See Fed. Cir. Order.

         After this Court received the case, DOL moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See ECF No. 16 (“DOL Br.”). DOL now argues that the 30-day deadline for filing suit is, in fact, jurisdictional under the D.C. Circuit's holding in King v. Dole, 782 F.2d 274 (D.C. Cir. 1986) (per curiam). Therefore, DOL argues, the case must be dismissed for lack of subject matter jurisdiction because Brookens filed the Federal Circuit appeal more than 30 days after he received the MSPB's order. See DOL Br. at 3. DOL argues in the alternative that, even if King is no longer controlling precedent, the case should be dismissed as time-barred under Rule 12(b)(6). See Id. at 3 n.1.

         Brookens opposes on the ground that the Federal Circuit's order has already resolved DOL's motion by holding that his claims were timely and that this Court has jurisdiction. See ECF No. 18 (“Pl.'s Opp'n”) at 3-8. Brookens further argues that the case should not be dismissed merely because Brookens erred by filing in the wrong court, especially since he did so within the 60-day deadline for taking appeals from the MSPB to the Federal Circuit. See Id. at 9.

         II. Legal Standard

         Courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Thus, district courts must dismiss any claim over which they lack subject matter jurisdiction, regardless of when the challenge to subject matter jurisdiction arises. See Fed. R. Civ. P. 12(h)(3). When a party moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), “the person seeking to invoke the jurisdiction of a federal court . . . bears the burden of establishing that the court has jurisdiction.” Hamidullah v. Obama, 899 F.Supp.2d 3, 6 (D.D.C. 2012). “Although a court must accept as true all of the [plaintiff's] factual allegations when reviewing a motion to dismiss pursuant to Rule 12(b)(1), factual allegations 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.” Id. (alterations, citations and internal quotation marks omitted).

         A motion to dismiss under Rule 12(b)(6) “tests whether a plaintiff has properly stated a claim.” BEG Invs., LLC v. Alberti, 85 F.Supp.3d 13, 24 (D.D.C. 2015). “A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor.” Id. Nonetheless, the complaint must set forth enough facts to “state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “If ‘no reasonable person could disagree on the date' on which the cause of action accrued, the court may dismiss a claim on statute of limitations grounds.” Potts v. Howard Univ. Hosp., 623 F.Supp.2d 68, 72 (D.D.C. 2009) (quoting Smith v. Brown & Williamson Tobacco Corp., 3 F.Supp.2d 1473, 1475 (D.D.C. 1998)). “A complaint will be dismissed under Rule 12(b)(6) as ‘conclusively time-barred' if ‘a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'” Momenian v. Davidson, 878 F.3d 381, 387 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)); see also Tran v. Citibank, N.A., 208 ...


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