The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Before the Court is a motion to dismiss or in the alternative for summary judgment submitted by Defendants United States of America, United States Attorney General, United States Department of Justice, United States Office of Personnel Management (OPM), and DOES 1-10 ("Defendants") against Plaintiff Maurice Grayton ("Plaintiff"). Defendants filed a Motion to Dismiss or in the Alternative for Summary Judgment, Doc. No. 26, seeking dismissal or summary judgment on the Plaintiff's claims on the grounds that they are barred by collateral estoppel and sovereign immunity, and that the Court lacks jurisdiction over this matter. Additionally, Defendants argue Plaintiff has alleged claims based on irrelevant statutes and cannot meet his burden of proof for a class action case. The hearing date set for December 21, 2011 is hereby VACATED as the Court finds this motion appropriate for submission on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth herein, the Court construes this motion as one for summary judgment and GRANTS Defendants' motion.
The following recitation of facts was taken from Plaintiff's Merit System Protection Board (MSPB)
Plaintiff applied for the position of Industry Operations Assistant with the Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. As part of the application process, Plaintiff was required to complete a Questionnaire for National Security Position (SF-86). Plaintiff completed this application online and certified the accuracy of the application on May 8, 2008. Plaintiff also signed a Declaration for Federal Employment on May 8, 2008, again certifying that the information was true, correct, and complete and was informed that, ". . . a false or fraudulent answer to any question or item on any part of this declaration or its attachments may be grounds for not hiring me, or for firing me after I begin work." Plaintiff also completed and signed on April 18, 2008, Interim Instructions for SF-86 and SF-85P that advised him that certain questions must be answered with a 10 year timeframe for the investigation to meet required standards including Police Record and Court Actions.
In a letter dated October 13, 2009, Plaintiff was informed that a background investigation conducted by the ATF revealed issues of concern and the results were referred to OPM for further consideration and investigation. Enclosed with the letter were the specific charges and a summary of the investigative information and the appellant was given an opportunity to answer and make comments or explanation he wished to provide for each charge.
Plaintiff provided his response and evidence to refute the allegation raised by the agency. Plaintiff first argued that the format of question 23f was complex and did not allow him to answer each condition on the merits. Plaintiff next argued that the format violated California Code of Civil Procedure Section 2030.060 and California Labor Code Section 432.7(a). Plaintiff also provided his timeline as to the events that began May 18, 2007, when the police responded to an alleged domestic violence incident through October 13, 2009, when the agency issued its suitability determination which led to the filing of the instant appeal. Finally, Plaintiff questioned the fairness of the investigation summary report referenced by the agency.
On January 29, 2010, the agency issued its determination that rated Plaintiff ineligible for the position sought, canceled all other eligibilities and debarred him from competition until October 15, 2012. The letter summarized Plaintiff's answers to the charges and provided further comments or analysis based on his responses. In summary, the agency found that the criminal charges of battery and vandalism raised questions concerning Plaintiff's judgment notwithstanding the fact that the charges were ultimately dismissed and that he failed to disclose the charges when he completed his SF-86.
Grayton v. Office of Personal Managaement, No. SF0731100446-I-1 (M.S.P.B. Jun. 23, 2010), attached as Exhibit 10 to Plaintiff's Complaint, also submitted in Defendants' motion to dismiss as Exhibit A) [hereinafter Exhibit A].
Plaintiff appealed the agency's decision to the MSPB, which affirmed the agency's decision on June 23, 2010. (Id. at 18). Plaintiff then pursued the appeal further to the United States Court of Appeals, Federal Circuit, which affirmed the MSPB in a decision issued on February 16, 2011.
Grayton v. Office of Personnel Management, 411 Fed.Appx. 328 (Fed. Cir. 2011), attached as Exhibit B in Defendants' motion to dismiss) [hereinafter Exhibit B].
Rule 12(d) of the Federal Rules of Civil Procedure states that when "matters outside the pleadings are presented to and not excluded by the court, the [12(b)(6)] motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. Pro. 56. Federal Rule of Civil Procedure 12(b)(6) specifically gives courts the discretion to accept and consider extrinsic materials offered in connection with a motion to dismiss, and to convert the motion to one for summary judgment when a party has notice that the district ...