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Paul J. Bishop v. United States Department of Homeland Security

December 21, 2010


The opinion of the court was delivered by: William J. Martini, U.S.D.J.




Plaintiff Paul J. Bishop filed a pro se complaint (and, subsequently, an amended complaint) in the United States District Court for the District of New Jersey against the United States Department of Homeland Security ("DHS"), his former employer, and John Lava, his former supervisor. Plaintiff alleged various breach of contract claims against Defendants in connection with his termination. Subsequently, Defendants filed a motion to dismiss the amended complaint, arguing that this Court lacks subject matter jurisdiction.

Before the Court is Defendants' motion. The Court, for the reasons elaborated below, will GRANT Defendants' motion in part, and DENY it in part. Specifically, the Court will DISMISS this action for lack of subject matter jurisdiction, and pursuant to statutory authority, will TRANSFER this matter to the United States Court of Appeals for the Federal Circuit. In these circumstances, the remaining motions on the docket for this case are DENIED as MOOT.


According to the amended complaint, (Doc. No. 5), the facts are generally as follows. Plaintiff alleges that his former employer, DHS, and supervisor, John Lava, breached their employment contract with him when he was terminated on August 20, 2007. Plaintiff was hired by Defendant DHS as a probationary Customs and Border Protection Agriculture Specialist at the Port of Newark.*fn1 Plaintiff was responsible for inspecting agricultural cargo as it entered the United States for biological pests or threats. On May 11, 2007, Plaintiff sought mediation with the Equal Employment Opportunity Commission ("EEOC") after alleging that he was denied computer access and training opportunities at work. On July 2, 2007, Plaintiff filed his first complaint with the EEOC, this time alleging racial and gender discrimination for his lack of work training opportunities.

Plaintiff alleges that he made confidential disclosures to the DHS during mediation proceedings and that the DHS agreed to keep those disclosures confidential. On August 20, 2007, Plaintiff was terminated. Plaintiff alleges that Defendant John Lava used Plaintiff's confidential mediation disclosures as grounds for dismissal. Plaintiff argues that DHS breached two contracts: his employment contract, and the agreement to keep mediation disclosures confidential.

Subsequently, Plaintiff filed a complaint with the Office of Special Counsel ("OSC"), alleging that his termination was in retaliation for certain whistle blowing disclosures. When the OSC decided to terminate Plaintiff's case, he appealed the decision to the Merit Systems Protection Board ("MSPB"). Upon review, the MSPB rejected Plaintiff's claims, and issued a final order denying him relief. Plaintiff then filed a complaint in this Court (albeit, absent any discrimination claims), and Defendants subsequently brought the instant motion to dismiss.


The Defendant's motion to dismiss is brought pursuant to the provisions of Fed. R. Civ. P. 12(b)(1). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to establish that the Court has jurisdiction over the claims at issue. Unlike a Rule 12(b)(6) motion to dismiss, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group Int'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (internal quotation marks omitted). "Although the Court must read a pro se plaintiff's factual allegations liberally and must apply a less stringent pleading standard than if the plaintiff was represented by counsel," Schwartz v. U.S. Dep't of Justice, 2007 WL 291465, at *3 (D.N.J. Oct. 4, 2007) (citing Haines v. Kerner,404 U.S. 519, 520 (1972)), the plaintiff ultimately bears the burden of establishing subject matter jurisdiction in the context of a 12(b)(1) motion. See Schwartz, 2007 WL 291465, at *3.


The Defendants put forward three defenses. First, the Defendants argue that this Court lacks subject matter jurisdiction to hear what is, according to Defendants, in effect, an appeal of an MSPB decision. Second, Plaintiff's termination was not a breach of any employment contract. Third, the mediation agreement was not breached because the information Plaintiff disclosed to DHS was not confidential. The second and third defenses go to the merits of the action. Because, as explained below, the Court finds it lacks subject matter jurisdiction, it need not reach, and indeed it cannot reach the merits of this action and Defendants' remaining two defenses.

Plaintiff alleges that Defendants breached his employment contract and his EEOC agreement for confidential mediation. Although Plaintiff freely asserts the existence of written and implied contracts with the DHS, he fails to provide details or specificity in regard to those purported employment contracts.*fn2 He does not explain their terms, when they were formed, and who consented to the terms on behalf of the United States. His assertion in regard to breach is a legal conclusion, not ...

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