Law v. United States of America, et al

Filing 16

MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows: The 10 Motion to Dismiss for lack of jurisdiction is GRANTED and the case is dismissed without prejudice for Law to pursue appropriate administrative remedies. Signed by Honorable Judge W. Harold Albritton, III on 4/28/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIAM P. LAW,
Plaintiff,
v.
UNITED STATES OF AMERICA,
DEPARTMENT OF DEFENSE, and
ARMY AND AIR FORCE EXCHANGE
SERVICE,
Defendants.

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Civil Case No. 2:16cv6-WHA
(wo)

MEMORANDUM OPINION AND ORDER
This cause is before the court on a Motion to Dismiss (Doc. #10), filed by the
Defendants, on March 25, 2016.
I.

FACTS AND PROCEDURAL HISTORY

The Plaintiff, William P. Law (“Law”), filed a Complaint and an Amended Complaint in
this court, bringing claims pursuant to the Uniformed Services Employment and Re-employment
Rights Act of 1994 (“USERRA”), 38 U.S.C. §§4301 to 4333.
Law is a United States Air Force Reserve member. In May 2012, Law began
employment with the Army and Air Force Exchange Service (“AAFES”) in Montgomery,
Alabama as an electrical and environmental specialist. He received orders to appear in Texas
for training in August 2012. In November 2012, he was notified that he no longer had a job
with AAFES.
Law submitted a claim to the Department of Labor. He then filed suit in this court.

II. MOTION TO DISMISS STANDARD

A Rule 12(b)(1) motion challenges the district court=s subject matter jurisdiction and
takes one of two forms: a Afacial attack@ or a Afactual attack.@ A Afacial attack@ on the complaint
requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter
jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). A Afactual attack,@ on
the other hand, challenges the existence of subject matter jurisdiction based on matters outside
the pleadings. Lawrence, 919 F.2d at 1529. Under a factual attack, the court may hear
conflicting evidence and decide the factual issues that determine jurisdiction. Colonial Pipeline
Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). The burden of proof on a Rule 12(b)(1)
motion is on the party averring jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
III. DISCUSSION
The Defendants, the United States of America, the Department of Defense, and the
AAFES, have moved to dismiss the Plaintiff’s Complaint on the ground that the Plaintiff failed
to exhaust his USSERA claim with the Merit System Protection Board (“MSPB”). The
Defendants argue that a plaintiff can proceed directly in federal district court against a private or
State employer under the USSERA, but there is a regulatory scheme which must be followed
when a plaintiff’s claim is against a federal agency. See 38 U.S.C. §4324.
The Plaintiff does not dispute that he has not exhausted his claim with the MSPB. The
Plaintiff states in his brief that before he filed his Complaint, he submitted his claim to the
Department of Labor and was instructed by a person within the Department to pursue the claim
in court. (Doc. #14 at p.4). The Plaintiff contends, therefore, that he sufficiently pursued
administrative remedies. Alternatively, he asks that the dismissal be done without prejudice so
that he can exhaust his claim.
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Under the United States Code, a person can submit a USERRA complaint against a
federal agency to the Secretary of Labor or can submit a complaint directly to the MSPB. 38
U.S.C. §4324. “Section 4324 does not authorize a private USERRA action against the Federal
Government, as an employer, in federal district court; rather, it confers jurisdiction upon the
Merit Systems Protection Board.” Dew v. United States, 192 F.3d 366, 372 (2nd Cir. 1999).
Decisions of the MSPB are subject to review in the Court of Appeals for the Federal Circuit. Id.
(citing 38 U.S.C. §4324(d)). Pursuant to a provision of the Code of Federal Regulations cited by
the Defendants, under the USERRA, when an appellant receives notice from the Secretary of
Labor that the Secretary’s efforts have not resolved the complaint, the appellant may file a
USERRA appeal with the Board. 5 C.F.R. §1208.11.
To the extent that Law has argued that he was advised incorrectly by someone within the
Department of Labor that he could file suit without making his claim before the MSPB, as the
Defendants point out, the Supreme Court has held that the United States can only be bound by
the mistaken representations of an agent if it is “clear that the representations were within the
scope of the agent's authority.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 420 (1990).
That showing has not been made here, so the court cannot conclude that Law’s identified
representation has satisfied his exhaustion requirement in this case.
The Defendants, however, also state that they do not object to a dismissal so that Law can
pursue his administrative remedies, as that is the course which Law should have taken. The
court will dismiss the Amended Complaint without prejudice so that Law can pursue his claim
before the MSPB.
IV. CONCLUSION
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For the reasons discussed, it is hereby ORDERED as follows:
The Motion to Dismiss (Doc #10) for lack of jurisdiction is GRANTED and the case is
dismissed without prejudice for Law to pursue appropriate administrative remedies.
Done this 28th day of April, 2016.
_/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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