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Mciver v. Wilkie

United States District Court, District of Columbia

November 15, 2018

JIMMIE MCIVER, Plaintiff,
v.
ROBERT WILKIE, [1] Defendant.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS, United States District Judge.

         I. INTRODUCTION

         Plaintiff, appearing pro se, claims that the Department of Veterans Affairs (“VA”) discriminated against him during a job interview in May 2013. Defendant has moved to dismiss the original complaint, ECF No. 1, under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds of failure to state a claim and failure to exhaust administrative remedies. See generally Def.'s Mot. to Dismiss the Compl. and Mem. of Law, ECF No. 15. The operative pleading, however, is plaintiff's “Claim for Relief, ” ECF No. 8, which was filed as an amended complaint (“Am. Compl.”) in response to an order permitting plaintiff to adequately plead his claims. See Nov. 20, 2017 Order, ECF No. 6. Regardless, the asserted defenses apply to both pleadings and support dismissal. Therefore, the Court will grant defendant's motion for the reasons explained more fully below.

         II. BACKGROUND

         Plaintiff alleges the following facts. In May 2013, he interviewed with “Mr. Mills” for a “WG-6 Driver Position” with the VA. Am. Compl. at 1. During the interview, plaintiff was asked if he had “a CDL and CPR Certification, ” although, according to plaintiff, “the position did not require the applicant to have a CDL or CPR certification.”[2] Id. (Emphasis added.) Mr. Mills “told” plaintiff that he “did not qualify for the position” since he “did not have a CDL or CPR certification” and “ended the interview due to what [plaintiff] believed was discrimination by the VA.” Id.

         Plaintiff also alleges that his VA records “clearly” show that he is a “veteran with 10 Point preference, ” Opp'n at 2, ECF No. 17; therefore, he “was and should have been considered as being a Schedule A Hiring Authority for people with disabilities, service connected from combat war service.” Am. Compl. at 1 (citing 5 C.F.R. § 213-3102(u), titled “Appointment of persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities”); Opp'n at 2. “For being discriminated against, ” plaintiff seeks “5.5 million dollars to settle this action.” Am. Compl. at 1, 2.

         III. LEGAL STANDARDS

         A. Subject Matter Jurisdiction

         Defendant asserts that jurisdiction is lacking over the claim predicated on plaintiff's status as a veteran because he has not exhausted his administrative remedies under the Veterans Employment Opportunity Act of 1998 (“VEOA”), 5 U.S.C. § 3330a, “and/or” the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311. Def.'s Mem. at 5. Although defendant has not moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction [.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Therefore, the Court must examine the jurisdictional challenge first. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008) (“Because Article III courts are courts of limited jurisdiction, we must examine our authority to hear a case before we can determine the merits.”) (citations and internal quotation marks omitted)); Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”); Fed.R.Civ.P. 12 (h)(3) (requiring dismissal “at any time” the court determines that it lacks subject matter jurisdiction).

         Subject matter jurisdiction is both an Article III requirement and a statutory requirement. See Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). “Jurisdiction of the lower federal courts is . . . limited to those subjects encompassed within a statutory grant of jurisdiction.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). As the party claiming jurisdiction, plaintiff bears the burden of establishing that the court indeed has subject matter jurisdiction. Khadr, 529 F.3d at 1115. Because the focus is on the Court's power to hear a claim, plaintiff's factual allegations are scrutinized closer than when considering the adequacy of a claim under Rule 12(b)(6). See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). Moreover, the Court “may consider such materials outside the pleadings as it deems appropriate to resolve” the jurisdictional question. Id. at 14 (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (other citation and internal quotation marks omitted)).

         B. Failure to State a Claim

         The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” to give the defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The motion does not test a plaintiff's ultimate likelihood of success on the merits, but only forces the court to determine whether a plaintiff has properly stated a claim. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). “[W]hen ruling on a defendant's motion to dismiss [under Rule 12(b)(6)], a judge must accept as true all of the factual allegations contained in the complaint[, ]” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (citations omitted), and construe them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000).

         It is not necessary for the plaintiff to plead all elements of a prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v. Pepco, 730 F.Supp.2d 25, 28-29 (D.D.C. 2010). Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. A pro se complaint, such as here “must be held to less stringent standards than formal pleadings drafted by lawyers . . . . But even a pro se complainant must plead ‘factual matter' that permits the court to infer ‘more than the mere possibility of misconduct.'” Atherton, 567 F.3d at 681-82 (citations omitted).

         IV. ...


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