(1) GRANTING DEFENDANTS' MOTION TO DISMISS (2) DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (3) DENYING PLAINTIFF'S MOTION TO EXPEDITE APPOINTMENT OF COUNSEL [Dkt. Nos. 20, 33, 44.]
GONZALO P. CURIEL, District Judge.
On July 15, 2011, Plaintiff Dennis Moore ("Plaintiff") filed a Complaint against Defendant Susan Tsui and a motion to appoint counsel. [Dkt. Nos. 1 and 3.] On February 3, 2012, Magistrate Judge William McCurine, Jr., issued an order denying Plaintiff's motion to appoint counsel without prejudice. [Dkt. No. 13.] On March 15, 2012, Plaintiff filed a motion for reconsideration of order denying motion to appoint counsel. [Dkt. No. 15.] On April 13, 2012, Judge McCurine, Jr., denied the motion to reconsider without prejudice. [Dkt. No. 16.]
On July 10, 2012, Plaintiff filed a First Amended Complaint. [Dkt. No. 29.] On May 16, 2012 Plaintiff filed a motion for reconsideration of order denying motion for reconsideration of order denying motion to appoint counsel (sic). [Dkt. No. 20.] On August 28, 2012, Defendants Susan Tsui Grundmann, Anne M. Wagner, and the United States ("Defendants") filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Dkt. No. 33.] On October 12, 2012, Plaintiff filed an opposition to the motion. [Dkt. No. 36.] On May 8, 2013, Plaintiff filed an emergency motion to expedite appointment of counsel. [Dkt. No. 44.]
For the reasons set out below, the Court GRANTS Defendants' motion to dismiss and DENIES Plaintiff's motion for reconsideration of order denying motion for reconsideration. The Court DENIES AS MOOT Plaintiff's motion to expedite appointment of counsel.
In May 1983, Plaintiff appealed to the Merit Systems Protection Board ("MSPB" or "the Board") an action taken by Plaintiff's employer, Defense Logistics Agency, removing him from his position as an Accounting Technician based on attendance related misconduct. [Dkt. No. 33, Declaration of Bernard Parker, Ex. 3 at 13 and Ex. 6 at 29-30.] The MSPB dismissed the appeal without prejudice. [Dkt. No. 33, Declaration of Bernard Parker, Ex. 3 at 14.] In September 1983, Plaintiff petitioned the MSPB for review of the initial decision. [Dkt. No. 33, Declaration of Bernard Parker, Ex. 6 at 29.] In May 1984, the MSPB denied Plaintiff's petition for review. [Dkt. No. 33, Declaration of Bernard Parker, Ex. 6 at 30.] Plaintiff then appealed to the Court of Appeals for the Federal Circuit. [Dkt. No. 33, Declaration of Bernard Parker, Ex. 6 at 30.] Based on the MSPB's motion, the Court of Appeals remanded the matter back to the MSPB. [Dkt. No. 33, Declaration of Bernard Parker, Ex. 6 at 30.]
On remand, the MSPB held a full hearing on the merits and affirmed the removal action. [Dkt. No. 33, Declaration of Bernard Parker, at Ex. 6 at 30, 40.] In 1987, Plaintiff appealed the MSPB's final decision on the merits of his employment claims to the federal district court for the Northern District of Illinois which affirmed the MSPB's decision. See Moore v. Def. Logistics Agency, 670 F.Supp. 800 (N.D. Ill. 1987). Plaintiff subsequently appealed to the Court of Appeals for the Seventh Circuit, which affirmed the district court's decision. See Moore v. Carlucci, 893 F.2d 1337 (7th Cir. 1989).
Twenty-two years later, on April 15, 2011, Plaintiff made a request for "records of my initial filing" from the MSPB and sought to re-open his case. [Dkt. No. 33, Ex. 1 at 3.] On April 21, 2011, the MSPB provided a docket sheet listing four cases related to Plaintiff and a copy of the initial decision of his appeal. [Dkt. No. 29, Ex. 2 at 9.] The MSPB also informed him that his file had been destroyed in accordance with their case retention policy. [Dkt. No. 33, Ex. 3 at 11.] On April 27, 2011, Plaintiff submitted a "FOIA appeal." [Dkt. No. 33, Ex. 4 at 17.] On June 1, 2011, the MSPB granted in part and denied in part Plaintiff's appeal. [Dkt. No. 33, Ex. 5 at 22-23.] The MSPB granted the appeal by providing the Westlaw and bound MSPB reporter copies of the 1984 final decision resulting from his initial appeal. [Id.] The MSPB denied the appeal to the extent Plaintiff was requesting additional documents because MSPB disclosed that Plaintiff's remaining case files were destroyed pursuant to the MSPB's policy to destroy all case files older than six years. [Id.]
On July 15, 2011, Plaintiff appealed to this Court the MSPB's decision pursuant to the Freedom Act and FOIA, naming Defendant Susan Tsui Grundmann, Chairman of the MSPB, in her official capacity. [Dkt. No. 1.] On July 10, 2012, Plaintiff filed his First Amended Complaint, adding tort, Title VII, and damage claims as well as criminal charges. [Dkt. No. 29.] Plaintiff also named Defendant Grundmann and additional Defendant Anne M. Wagner, MSPB Vice-Chairman, in their official and personal capacities. [Dkt. No. 29.]
In a letter dated July 1, 2011, the Clerk of the MSPB responded to and denied Plaintiff's request that the Board reopen his case [Dkt. No. 33 at Spencer Declaration at Ex. 4.] On September 8, 2011, the MSPB received another request from Plaintiff to reopen or reconsider his appeal. [Dkt. No. 33 at Spencer Declaration at Ex 5.] The Clerk of the MSPB once again responded and denied Plaintiff's request by letter. [Dkt. No. 33, Ex. 6 at 28.]
A. MOTION TO DISMISS UNDER FRCP 12(b)(1) AND 12(b)(6)
1. Legal Standard
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the applicable standard turns on the nature of the jurisdictional challenge. A motion to dismiss under Rule 12(b)(1) may present either a facial or factual challenge. Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). "If a defendant brings a facial attack, arguing that the allegations in the complaint are insufficient to attain jurisdiction, the Court's inquiry is the same as when ruling on a motion to dismiss under Rule 12(b)(6)." Organization for Advancement of Minorities with Disabilities v. Brick Oven Restaurant, 406 F.Supp.2d 1120, 1124 (S.D. Cal. 2005). "Specifically, the reviewing court must accept as true the allegations of the complaint and must construe the complaint in favor of the complaining party." U.S. ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir. 2001) (citations omitted).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a plaintiff need not give "detailed factual allegations, " he must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Taylor v. Accredited Home Lenders, Inc. 580 F.Supp.2d 1062, 1064, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). "In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party." Id. (citations omitted). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). If a complaint fails to state a claim, the court should grant leave to amend unless it appears beyond a doubt the plaintiff would not be entitled to relief under any set of facts proved. Halet v. Wend Inv. Co., 672 F.2d 1305, 1309 (9th Cir. 1982).
Here, Defendants' motion to dismiss challenges Plaintiff's First Amended Complaint on its face. Therefore, this Court accepts all facts alleged in the complaint as true and all reasonable inferences in favor of Plaintiff.
2. Request to Reopen or Review Plaintiff's Appeal to the MSPB
The Civil Service Reform Act of 1978 ("CSRA") permits a federal employee subjected to an adverse personnel action such as discharge or demotion to appeal his employer's decision to the Merit System Protection Board. The MSPB may hear and decide complaints for corrective or disciplinary action when an agency is alleged to have committed a prohibited personnel practice. 5 U.S.C. §§ 1214, 1215. The complaint may allege the agency had insufficient cause for the discharge or demotion; but the appeal may alternatively or in addition charge the agency with discrimination prohibited by a ...