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Bishop v. Department of Homeland Security

United States District Court, D. New Jersey

May 6, 2015

PAUL J. BISHOP, Plaintiff,


FREDA L. WOLFSON, District Judge.

Presently before the Court is a motion filed by Defendants Department of Homeland Security ("DHS"), Merit Systems Protection Board ("MSPB"), and U.S. Office of Personnel Management's ("OPM") (collectively "Defendants" or "the Government") to dismiss the Complaint filed by pro se Plaintiff Paul Bishop ("Bishop" or "Plaintiff"). The Government additionally moves for a pre-filing injunction that would enjoin Plaintiff from filing future suits regarding his termination from DHS.

For the reasons stated below, the Government's motion to dismiss is GRANTED and its motion for a pre-filing injunction is also GRANTED.

I. Background[1]

The following allegations are accepted as true for the purposes of this motion to dismiss. In 2005, Bishop was appointed through the excepted service Federal Career Intern Program to the position of Agriculture Specialist GS-9, as part of the Customs and Border Protection for the Port of New York. (Bishop 2009 MSPB Decision, at 4). This appointment was for two years, and Bishop was informed that if he satisfactorily completed the internship, he would be "noncompetively granted a career or career-conditional position." (Bishop 2009 MSPB Decision, at 4). However, if "he did not satisfactorily complete the internship, his employment would be terminated." (Bishop 2009 MSPB Decision, at 4). In 2006, Bishop was promoted to a GS-11 position. (Bishop 2009 MSPB Decision, at 5). On August 20, 2007, Bishop was terminated from his position. (Bishop 2009 MSPB Decision, at 9).[2]

Bishop alleges that in an attempt to mediate an EEO dispute, he made certain disclosures to his supervisor at DHS, Assistant Port Director John Lava, that were used "to prevent the [him] from being hired permanently into a GS-0401-11 Agriculture Specialist in the Department of Homeland Security. (Compl. at 1). Bishop appealed his termination to the MSPB, alleging "because of his whistleblowing activity, he was denied certain on-the-job training and was discharged." (Bishop 2009 MSPB Decision, at 1). The MSPB denied Plaintiff's appeal in a decision dated October 14, 2009. (Bishop 2009 MSPB Decision, at 1-2). Plaintiff subsequently filed a petition for review of the MSPB's October 2009 decision. However, on February 24, 2010, the MSBP denied Bishop's petition for review in its "Final Order." (Bishop MSPB 2010 Final Order).

Plaintiff filed this Complaint on August 21, 2014. In his Complaint, Plaintiff asserts that DHS deprived him of his Fifth Amendment due process rights by failing to provide Bishop the appropriate termination procedure. (Compl. at 1). Specifically, Plaintiff alleges that the DHS did not provide him with "thirty days advance written notice of the proposed action which identifies specific instances of unacceptable performance by the Plaintiff on which its proposed adverse action were based." (Compl. at 1). Plaintiff additionally alleges that DHS failed to provide him neither an opportunity to obtain counsel nor to respond to the proposed adverse action, as is required by the Civil Service Reform Act ("CSRA"). (Compl. at 1). In support of this allegation, Plaintiff notes that he requested documentation that his due process rights were satisfied under the Freedom of Information Act and Privacy Act and "the [MSPB] stated that it did not have the due process rights documentation required." (Compl. at 2).

Plaintiff also alleges that "[his] status as an excepted service federal career intern excludes him from the jurisdiction of the Merit Systems Protection Board, " and thus MSPB's October 14, 2009 decision is void under rule 60(b) of the Federal Rules of Civil Procedure. (Compl. at 2). Lastly, Plaintiff asserts that because the MSPB did not have jurisdiction over him, "[a]ny attempt to force the Plaintiff to appeal the Boards [sic] decision in the Court of Appeals for the Federal Circuit is a violation of the Plaintiff's Constitutional civil rights." (Compl. at 2). Plaintiff "demands" the following: (1) "to be instated as a GS-0401-11 Agriculture Specialist in the Department of Homeland Security with back pay, front pay and student loan reimbursement"; (2) "compensation for the lost employment benefits of his health care plan and pension plan, " and (3) "the voiding of the Merit System Protection Board's ruling in NY-1211-09-0201-W-1." Compl. at 2.

The Government has moved to dismiss Plaintiff's Complaint on two separate grounds: (1) under Rule 12(b)(1) for lack of subject matter jurisdiction and (2) under Rule 12(b)(6) for failure to state a claim based on the statute of limitations.[3]

II. Standard of Review

A. Subject Matter Jurisdiction

A defendant may move to dismiss a claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(1). Fed.R.Civ.P. 12(b)(1). Because subject matter jurisdiction is required for a district court to reach the merits of a claim, "the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot.'" S.B. ex rel. A.B. v. Trenton School Dist., No. 13-949, 2013 WL 6162814, at *3 (D.N.J. Nov. 25, 2013) (quoting In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D. Pa. 1993)).

There is no presumption of truthfulness that attaches to the allegations of the complaint when determining a challenge to the court's subject matter jurisdiction. Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Once a 12(b)(1) challenge is raised, the plaintiff bears the burden of demonstrating the existence of subject matter jurisdiction. See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006). A Rule 12(b)(1) motion to dismiss is treated as either a "facial or factual challenge to the court's subject matter jurisdiction." Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Under a facial attack, the movant challenges the legal sufficiency of the claim, and the court considers only "the allegations of the complaint and documents referenced therein and attached thereto in the light most favorable to the plaintiff." Id . Under a factual attack, however, "the challenge is to the actual alleged jurisdictional facts." Liafom, LLC. v. Big Fresh Pictures, Civ. No. 10-0606, 2011 WL 3841323 (D.N.J. Aug. 24, 2011). The current ...

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