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Kerr v. United States Department of State

United States District Court, District of Columbia

March 30, 2018

ROBERT KERR, Plaintiff
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, United States District Judge

         Plaintiff Robert Kerr is a former Foreign Service Officer. Through this lawsuit, Plaintiff seeks judicial review of a decision issued by the Foreign Service Grievance Board (“FSGB”). Presently before the Court is Defendants' [22] Motion to Dismiss Plaintiff's Complaint as untimely. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' Motion and DISMISSES this case.

         I. BACKGROUND

         Plaintiff Robert Kerr alleges that he was subjected to workplace bullying while stationed as a Public Affairs Officer at the American Embassy in Copenhagen, Denmark. See Compl., ECF No. 1, at 5. He further alleges that “[a]s a result, examples of questionable/poor performance were used against [him] that would never be evaluated as such under an objective peer review, denying [him] an opportunity for fair review for promotion, thus resulting in [his] facing mandatory retirement.” Id. Moreover, Plaintiff alleges that the “appeal and grievance processes available to [him] by the Department of State made no effort to objectively evaluate the performance examples used against [him], but instead simply ratified the process, making it impossible for [him] to achieve either appeal or grievance relief.” Id.

         Plaintiff has filed this lawsuit seeking judicial review under 22 U.S.C. § 4140 of the FSGB's decision denying his grievance appeal. Id. at 3. Plaintiff filed his Complaint by mailing it to the Court from Denmark. Id. at 12. The Complaint was postmarked March 28, 2017. Id. It was received by the Clerk of the Court on April 10, 2017, and filed on April 25, 2017. Id. at 1.

         Defendants then moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for failure to comply with the 180 day filing deadline set forth in Section 4140(a). See generally Defs.' Mot. That motion has been fully briefed and is ripe for resolution.[2]

         II. LEGAL STANDARDS

         A. Subject Matter Jurisdiction under Rule 12(b)(1)

         A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] 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.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).

         B. Failure to State a Claim under Rule 12(b)(6)

         Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         III. DISCUSSION

         Plaintiff's Complaint was not filed before the statutory filing deadline set forth in 22 U.S.C. § 4140, and it will therefore be dismissed. Section 4140(a) states that:

Any aggrieved party may obtain judicial review of a final action of the Secretary or the Board on any grievance in the district courts of the United States in accordance with the standards set forth in chapter 7 of Title 5, if the request for judicial review is filed not later than 180 days after the final action of the Secretary or the Board (or in the case of an aggrieved party who is posted abroad at the time of the final action of the Secretary or the Board, if the request for judicial review is filed not later than 180 days after the aggrieved party's return to the United States). Section 706 of Title 5 ...

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