Miller v. US Department of The Navy, The

Filing 38

ORDER granting 34 Motion to Dismiss for Lack of Jurisdiction. by Judge R. Brooke Jackson on 7/23/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-00944-RBJ
ROBERT E. MILLER,
Plaintiff,
v.
THE US DEPARTMENT OF THE NAVY, Office of Human Resource,
Defendant.

ORDER

This matter arises before the Court on Defendant’s Motion to Dismiss [ECF No. 34].
The defendant alleges that this Court lacks subject matter jurisdiction over this case or, in the
alternative, that the plaintiff has failed to state a claim upon which relief can be granted. The
Court agrees that it lacks jurisdiction to hear this case and therefore dismisses the case without
prejudice. 1
BACKGROUND
This case arises from Mr. Miller’s failed attempt to gain employment with the United
States Department of the Navy. In August 2012 the Navy advertised a position for a Logistics
Management Specialist pursuant to its Expedited Hiring Authority. This job was open for
applications for two days. Though Mr. Miller applied for the job, he was not selected on the
grounds that he was found ineligible for failing to meet the Quality Ranking Factor provided for

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See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216–17 (10th Cir. 2006) (noting that dismissal on
jurisdictional grounds should be made without prejudice).
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in the application description. In his Complaint, Mr. Miller alleges that the Navy discriminated
against him by “denying me fair access to compete for a job.” [ECF No. 1 at 2, ¶ 4
(“Background and Facts of the Case”)] 2. He alleges that the Navy failed to follow a number of
procedures and guidelines, specifically that the Navy pre-determined and pre-selected the
persons who were awarded the position; it used false, misleading, and incorrect information to
restrict and confuse the job applicant pool; it restricted the application period to less than five
days without authorization; and it “illegally” used a Quality Ranking Factor to make applicants
ineligible for the position in violation of the Expedited Hiring Authority guidelines. Id. at 2, ¶¶
1–8 (“Claims for Relief and Supporting Factual Allegations”).
The Complaint asserts that this Court has jurisdiction under 5 U.S.C. § 2302(b)(1)–
(b)(12) and, alternatively, simply because the defendant is an agency of the United States
government. Id. at 1, ¶ 3. Mr. Miller has also attested that he exhausted all of his administrative
remedies before filing in this Court, specifically by filing a complaint with the United States
Merit Systems Protection Board (“MSPB”) and directly appealing that decision to the Assistant
Secretary of the Navy (Manpower and Reserve Affairs). Id. at 2, ¶ 4 (“Background and Facts of
the Case”). The government submits that as to the MSPB decision, Mr. Miller is bound to file an
appeal to the Federal Circuit Court of Appeals. Further, the government argues that the Court
has no jurisdiction to hear this case under 5 U.S.C. § 2302, a provision of the Civil Service
Reform Act (“CSRA”), and that any of Mr. Miller’s complaints arising under the CSRA must be
filed with the Office of Special Counsel (“OSC”). The Court agrees with the government on
both grounds and hereby dismisses this case for lack of subject matter jurisdiction.

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The plaintiff restarts his numbering on the second page of the Complaint. Where necessary, the Court
distinguishes the paragraphs based on identifying descriptions listed in the Complaint.
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ANALYSIS
Subject matter jurisdiction may be challenged by a party or raised sua sponte by the
Court at any point in the proceeding. Fed. R. Civ. P. 12(h)(3); Harris v. Illinois-California Exp.,
Inc., 687 F.2d 1361, 1366 (10th Cir. 1982). A motion to dismiss pursuant to Rule 12(b)(1) may
challenge the complaint on its face or based upon additional facts. “In reviewing a facial attack
on the complaint, a district court must accept the allegations in the complaint as true.” Holt v.
United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation omitted). When reviewing a factual
attack supported by affidavits or other documents, the Court makes its own factual findings and,
in doing so, does not convert the motion to one brought pursuant to Fed. R. Civ. P. 56. Id. at
1003.
Rule 12(b)(1) concerns whether the Court has jurisdiction to hear the case before it.
“Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to
exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). “Jurisdiction is a
threshold question that a federal court must address before reaching the merits of a statutory
question, even if the merits question is more easily resolved and the party prevailing on the
merits would be the same as the party that would prevail if jurisdiction were denied.” Id.
“[S]tatutes conferring jurisdiction on federal courts are to be strictly construed, and doubts
resolved against federal jurisdiction.” F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter jurisdiction is on the party asserting
jurisdiction.” Montoya, 296 F.3d at 955 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994)).

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A. Merit Systems Protection Board Final Order Review.
After being found ineligible for the Logistics Management Specialist position, Mr. Miller
filed a complaint with the MSPB claiming that the Navy violated one or more of his statutory or
regulatory veterans’ preference rights under the Veterans Employment Opportunities Act of
1998 (“VEOA”). See MSPB Initial Decision [ECF No. 34-4]. The MSPB issued a decision on
the merits in favor of the government on March 8, 2013, and Mr. Miller subsequently filed a
petition for review. The MSPB issued a Final Order on November 27, 2013 affirming the initial
decision. MSPB Final Order [ECF No. 34-5]. In all, the Board found that the Navy had not
violated a statutory or regulatory provision relating to veterans’ preference when it filled the
Logistics Management Specialist position. It issued no opinion as to whether the Navy’s actions
in filling the position were otherwise proper, as it noted that it had no jurisdiction to do so. See
id. at 3. However, it did find that there was “no merit” to Mr. Miller’s argument that the
agency’s use of Qualifying Ranking Factors violated its internal guidelines. Id. at 4. In fact, it
found that the guidance “explicitly provides for the use of Quality Ranking Factors.” Id. at 5.
The Court has reread Mr. Miller’s Complaint numerous times and finds that it is unclear
whether he is attempting to appeal the MSPB decision through this action. Notably, there is no
mention that he is a veteran or any allegation that the Navy violated the VEOA in failing to hire
him. If anything, the only ground on which Mr. Miller could be appealing the decision of the
MSPB is as to its finding that the Navy was permitted to use Qualifying Ranking Factors when
determining eligibility for the contested position. However, the Board’s Final Order makes it
clear that under 5 U.S.C. § 7703(b)(1)(A), Mr. Miller may only request review of this decision
by appealing to the United States Court of Appeals for the Federal Circuit. MSPB Final Order

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[ECF No. 34-5] at 8. Therefore, insofar as Mr. Miller may be attempting to appeal the MSPB
Final Order, this Court lacks jurisdiction to hear that appeal.
B. Civil Service Reform Act Complaints.
On the face of the Complaint, it appears that Mr. Miller is alleging violations of a specific
provision of the CSRA: 5 U.S.C. § 2302. This section is entitled Prohibited Personnel
Practices—which Mr. Miller refers to as “PPP” in his Complaint—and lists practices that a
governmental agency is prohibited from taking with respect to a number of individuals including
job applicants. Mr. Miller wants this Court to hear his case on the merits. He would like the
Court ultimately to determine whether the Navy committed any of these prohibited personnel
practices, specifically those barred by 5 U.S.C. § 2302(b)(1)–(b)(12). The government argues
that there is no private cause of action arising under 5 U.S.C. § 2302, and that any complaint Mr.
Miller may have regarding the use of prohibited personnel practices must be brought to the
attention of the OSC, not to this Court.
5 U.S.C. § 1800.1(a) provides that the OSC has investigative jurisdiction over allegations
of prohibited personnel practices. Further, 5 U.S.C. § 1800.1(c) discusses the procedures for
filing any such complaint. Once a complaint is filed, OSC must conduct an investigation. 5
U.S.C. § 1214(a)(1)(A). If the results of the investigation are not to the complainant’s liking, the
complainant’s “sole remedy is to follow the grievance procedures provided by the [CSRA].”
Nowick v. Strickland, Nos. 98-1206, 98-1207, 98-1212, 1999 WL 282389, at *1 (10th Cir. Apr.
30, 1999) (citing United States v. Fausto, 484 U.S. 439, 454–55 (1988)). However, should OSC
fail to carry out its statutory obligation to investigate, the complainant may file for a writ of
mandamus in federal court. See e.g., Carson v. U.S. Office of Special Counsel, 633 F.3d 487,

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492 (6th Cir. 2011); Nowick, 1999 WL 282389 at *3 (noting its authority to ensure that the OSC
complied with its statutory obligations).
A number of circuit courts have found that the comprehensive remedial scheme outlined
in the CSRA indicates that Congress intended for such scheme to be exclusive, in turn finding no
private cause of action under the statute. See e.g., Schrachta v. Curtis, 752 F.2d 1257, 1260 (7th
Cir. 1985); Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984); Carducci v. Regan, 714 F.2d 171,
175 (D.C. Cir. 1983); Braun v. United States, 707 F.2d 922, 925 (6th Cir. 1983). The Fourth
Circuit specifically held that “[t]he absence of a provision for direct judicial review of prohibited
personnel actions among the carefully structured remedial provisions of the CSRA is evidence of
Congress’ intent that no judicial review in district court be available for the actions involved in
this case.” Pinar v. Dole, 747 F.2d 899, 910 (4th Cir. 1984). According to the Tenth Circuit (in
an unpublished case), the authority of the federal courts “goes no further than ensuring that the
OSC complied with its statutory obligations”; it does not extend to review of the merits of the
personnel issue. Hyde v. Office of Special Counsel, No. 94-1406, 1995 WL 238340, at *1 (10th
Cir. Apr. 21, 1995).
As noted above, the burden of establishing subject-matter jurisdiction is on the party
asserting jurisdiction. Mr. Miller has put forth no argument that this Court has jurisdiction over
alleged violations of the CSRA, in particular over allegations of prohibited personnel practices.
The Court was likewise unable to find authority in support of such a position. As such, the Court
finds that it has no subject matter jurisdiction over these claims.
C. Right to Sue United States Agency.
Lastly, Mr. Miller contends that this Court has subject matter jurisdiction over his case
simply because the Navy is a United States agency. However, federal law has long held that

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“[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from
suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (emphasis added) (citations omitted). The
presumption, therefore, is that the Navy is immune from suit. As Mr. Miller has made no
showing that such immunity has been waived, the Court finds this jurisdictional assertion
unavailing.
CONCLUSION
I understand that Mr. Miller believes that the government is using unfair legal maneuvers
to prevent this Court from hearing the case on the merits. However, a court cannot hear a case if
it does not have jurisdiction over the matter. Therefore, even if I want to hear this case on the
merits, I cannot do so.
ORDER
For the foregoing reasons, Defendant’s Motion to Dismiss [ECF No. 34] is GRANTED
WITHOUT PREJUDICE. As the prevailing party the defendant is awarded its costs pursuant to
Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
DATED this 23rd day of July, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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