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Harold L. Wilborn v. Janet A. Napolitano

February 2, 2012


The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge

[Doc. No. 10]


Presently before the Court is Defendant Janet A. Napolitano ("Defendant")'s motion to dismiss Plaintiff Harold L. Wilborn ("Plaintiff")'s complaint. For the reasons below, the Court GRANTS Defendant's motion.


Plaintiff is a veteran of the U.S. Navy and is currently employed by the U.S. Custom and Border Patrol law enforcement agency ("the Agency"), where he has worked for the last 23 years. [Doc. No. 1, Compl. ¶¶ 22, 51, 131, 157.] Plaintiff alleges that the Agency has failed to promptly and properly promote him on at least five occasions to the position of Supervisory Sector Enforcement Specialist. [Id. ¶¶ 1, 49, 138, 145.] Plaintiff also alleges that the Agency improperly disciplined him by suspending him for five days and that the Agency created a hostile work environment for him. [Id. ¶¶ 63-70, 77-81, 91-148, 174-210, Ex. 9.]

Plaintiff alleges that these adverse employment actions taken by the Agency were motivated by discrimination based on Plaintiff's status as a veteran and discrimination based on Plaintiff's race. [Compl. ¶¶ 1, 19-20, 34, 36, 56-57, 134, 151-73.] Plaintiff also alleges that the procedures used by the Agency were unlawful, and that the Agency retaliated against him for engaging in protected whistleblowing activity. [Id. ¶¶ 42, 71-75, 80-81, 211-16, 230-42.]

Plaintiff appealed his non-promotion, five-day suspension, and alleged hostile work environment to the Merit Systems Protection Board ("MSPB") alleging that the Agency's actions violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). [Compl. Ex. 1 at 1.] Plaintiff also alleged that his non-promotion violated the Veterans Employment Opportunities Act of 1998 ("VEOA") because he did not receive a veterans preference. [Id.]

On October 1, 2010, a MSPB administrative law judge ("ALJ") issued an initial decision finding that Plaintiff's VEOA rights were violated and ordering the agency to "reconstruct the hiring for the position." [Compl. Ex. 1, at 1-2 n.2.] However, the decision denied Plaintiff's USERRA claims. [Id.] Plaintiff appealed the denial of his USERRA claims by filing a petition for review by the Full Board. [Id. Ex. 1 at 2.] On March 31, 2011, the Full Board denied the petition for review. [Doc. No. 10, Def.'s Mot. Ex. 1.]*fn1 In the order denying the petition, the MSPB informed Plaintiff of his right to seek further review with the Federal Circuit within 60 days. [Id. Ex. 1 at 3.]

Rather than file a petition for review with the Federal Circuit, Plaintiff filed a petition for review of the MSPB's decision with the Equal Employment Opportunity Commission ("EEOC"). [Compl. Ex. 1 at 1.] On August 25, 2011, the EEOC issued an order determining that it lacked jurisdiction over Plaintiff's petition and denied Plaintiff's petition for review. [See id. Ex. 1.] The EEOC order instructed Plaintiff that he had the right to file a civil action in the appropriate district court within 30 days challenging the decision of the MSPB. [Id. Ex. 1 at 3; Compl. ¶ 7.]

On September 28, 2011, Plaintiff, proceeding pro se, filed the present action against Defendant Janet A. Napolitano in her official capacity as the Secretary of the Department of Homeland Security alleging causes of action for (1) violations of the USERRA; (2) violations of the Civil Service Reform Act of 1978 ("CSRA"); (3) violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-1 et seq.; (4) violation of his Fifth Amendment rights to due process and equal protection; (5) violation of his First Amendment rights; and (6) slander. [Doc. No. 1, Compl.] By the present motion, Defendant seeks dismissal of all six of Plaintiff's causes of action. [Doc. No. 10, Def.'s Mot.]


I. Legal Standards for a Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6);Navarro v.

Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, 129 S. Ct. at 1949.

In addition, factual allegations asserted by pro se plaintiffs, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see alsoIleto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).

II. Plaintiff's USERRA Claims

A. Jurisdiction

Plaintiff brings several causes of action for violation of the USERRA. [Compl. ¶¶ 151-242, 263-290.] Defendant argues that this Court lacks jurisdiction over Plaintiff's USERRA claims because these claims can only be brought before the Federal Circuit. [Doc. No. 10-1, Def.'s Mot. at 3-5.] In response, Plaintiff argues that this Court has proper venue and jurisdiction over his USERRA claims. [Doc. No. 11, Pl.'s Opp'n at 4-8.]

"USERRA forbids employment discrimination on the basis of membership in the armed forces." Townsend v. Univ. of Alaska, 543 F.3d 478, 482 (9th Cir. 2008) (citing 38 U.S.C. §§ 4301(a)(3), 4311(a)). An employer violates USERRA if an employee's membership or obligation for service in the military is a motivating factor in an employer's adverse employment action taken against the employee, unless the employer can prove that the action would have been taken in the absence of such membership or obligation." Id. (citing 38 U.S.C. § 4311(c)(1)).

38 U.S.C. § 4324 of the USERRA governs actions against federal executive agencies. See Dew v. U.S. Dep't of Defense, 192 F.3d 366, 372 (2d Cir. 1999), cert. denied 529 U.S. 1053 (2000); Yates v. MSPB, 145 F.3d 1480, 1483 (Fed. Cir. 1998). Under section 4324(b), a person who claims that a federal executive agency has failed to comply with the USERRA may submit a complaint to the MSPB. Yates, 145 F.3d at 1483. "The Board is then required to adjudicate the complaint." Id. (citing 38 U.S.C. 4324(c)(1)). If a person is adversely affected or aggrieved by a final order of the MSPB, then that person may petition the Federal Circuit for review of the order in accordance with the procedures set forth in 5 U.S.C. § 7703. See 38 U.S.C. § 4324(d)(1); Yates, 145 F.3d at 1483.

Initially, Plaintiff properly brought his USERRA claims by proceeding before MSPB--first before an ALJ and then before the Full Board--in accordance with section 4324(b). [Compl. Ex. 1 at 1-2.] However, rather than appeal the MSPB's final decision to the Federal Circuit, Plaintiff appealed the decision to the EEOC, which determined it did not have jurisdiction over the appeal, and then Plaintiff filed the present complaint in this Court. Under section 4324, only the Federal Circuit has jurisdiction over Plaintiff's MSPB appeal, not this district court. See Jordan v. Choa, 2006 U.S. Dist. LEXIS 82561, at *15 (S.D. Cal. Nov. 13, ...

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