GAMMILL v. U.S. DEPARTMENT OF EDUCATION
Filing
41
MEMORANDUM OPINION. Signed by Judge John D. Bates on 11/18/2013. (lcjdb1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PAUL GAMMILL,
Plaintiff,
v.
Civil Action No. 11-409 (JDB)
U.S. DEPARTMENT OF EDUCATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Paul Gammill, proceeding pro se, brings this action against defendant the United
States Department of Education ("DOE") under the Whistleblower Protection Act ("WPA"),
5 U.S.C. § 2302(b)(8). Gammill alleges that he was fired in retaliation for "whistleblowing"
activities protected under federal law. Before the Court is [14] DOE's motion to dismiss for lack
of subject-matter jurisdiction under Federal Civil Rule 12(b)(1), [16] [23] [29] Gammill's three
"motions for order to rule in favor of the plaintiff," [31] DOE's motion to strike the third of such
motions, and [39] Gammill's motion to strike DOE's motion to dismiss. For the reasons set forth
below, DOE's motion to dismiss for lack of subject-matter jurisdiction will be granted, and the
parties' other pending motions will be denied as moot.
BACKGROUND
Paul Gammill is a former employee of the Department of Education. His most recent
appointment was in February 2009, to the position of Supervisory Management/Program
1
Analyst. Def.'s Mot. to Dismiss ("MTD") [ECF No. 14] at 2. 1 Shortly after accepting this
position, tensions developed between Gammill and his supervisor, Carmel Martin. See Am.
Compl. ("Compl.") [ECF No. 10-1] at 1-2. Gammill felt that Martin was leading the office down
an improper path by trying to evade the privacy protections of the Family Educational Rights and
Privacy Act ("FERPA"). See id. On December 1, 2009, during a train ride to Philadelphia on
his way to an education conference, Gammill revealed his concerns to FERPA experts outside
the agency, as well as attorneys at DOE's Office of General Counsel. Six weeks later, Gammill
was fired. Id. at 3. Alleging that DOE terminated him in retaliation for his whistleblowing,
Gammill started pursuing administrative remedies, bringing his claim before the Office of
Special Counsel and the Merit Systems Protection Board ("MSPB"). Id. at 6. He lost at both
stages of the administrative process, with the MSPB decision becoming final on April 27, 2011.
MTD at 3.
Gammill filed this lawsuit on February 18, 2011 (before the MSPB's decision had
become final). Original Compl. [ECF No. 1]. Gammill later sought leave to file an amended
complaint, which the Court granted. [ECF No. 10]. The amended complaint—the operative
complaint here—was deemed filed on January 9, 2013. Id. DOE filed a motion to dismiss under
Federal Civil Rule 12(b)(1) shortly thereafter, arguing that this Court lacks subject-matter
jurisdiction to adjudicate Gammill's claim.
After the motion to dismiss was fully briefed,
Gammill filed three short motions, each asking the Court to "rule in favor of the Plaintiff." See,
1
Because Gammill's pleadings contain a very light treatment of the factual and
procedural background, the Court cites, at times, to DOE's motion to dismiss. In ruling on a
motion to dismiss for lack of subject-matter jurisdiction under Federal Civil Rule 12(b)(1),
"where necessary, the court may consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court's
2
e.g., [ECF No. 16]; [ECF No. 23]; [ECF No. 29]. DOE filed a motion to strike the third such
motion, arguing that Gammill's serial filings effectively amounted to unauthorized surreplies to
the motion to dismiss. [ECF No. 31]. Gammill then filed a motion to strike DOE's motion to
dismiss. [ECF No. 39].
LEGAL STANDARD
"Federal courts are courts of limited jurisdiction.
They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial decree."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations
omitted). It is "presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction."
Id. (internal citation
omitted). Hence, "[o]n a motion to dismiss for lack of subject-matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the
court has subject-matter jurisdiction." Adams v. U.S. Capitol Police Bd., 564 F. Supp. 2d 37, 3940 (D.D.C. 2008). And "[b]ecause subject matter jurisdiction focuses on the court's power to
hear the claim," a court "must give the plaintiff's factual allegations closer scrutiny when
resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to
state a claim." Bailey v. WMATA, 696 F. Supp. 2d 68, 71 (D.D.C. 2010). Nevertheless, the
court must still "accept all of the factual allegations in the complaint as true." Jerome Stevens
Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If "a federal court concludes that it
lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety." Arbaugh
v. Y&H Corp., 546 U.S. 500, 514 (2006); accord Fed. R. Civ. P. 12(h)(3).
resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003).
3
ANALYSIS
The WPA provides a private right of action for employees who suffer retaliation as a
result of protected whistleblowing activities.
See 5 U.S.C. § 1221(a).
By statute, a
whistleblowing employee must exhaust two layers of administrative remedies: first before the
Office of Special Counsel, and then, if still aggrieved, before the Merit Systems Protection
Board. See id. § 1214(a).
A whistleblowing employee who receives an adverse ruling from the MSPB may obtain
judicial review of that ruling in the federal courts. But which federal court? That depends on
two factors: (1) whether the employee, in addition to a WPA claim, is also bringing an
employment discrimination claim, and (2) whether the employee is filing the petition for review
"[d]uring the 2-year period beginning on" December 27, 2012. See 5 U.S.C. § 7703(b)(1). WPA
cases that include at least one employment discrimination claim—so-called "mixed" cases—may
be brought in federal district court. See id. On the other hand, "pure" WPA cases may only be
reviewed by the courts of appeals. To be precise, pure cases filed "during the 2-year period
beginning on" December 27, 2012 may be filed in "any court of appeals of competent
jurisdiction," and all others "shall be filed in the United States Court of Appeals for the Federal
Circuit." Id.
Despite this "complicated, at times confusing, process," Kloeckner v. Solis, 133 S. Ct.
596, 603 (2012), federal courts have been strict in keeping whistleblowing plaintiffs on the
proper procedural pathway. See, e.g., Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) ("The
MSPB's decision is appealable to the Federal Circuit. Under no circumstances does the WPA
grant the District Court jurisdiction to entertain a whistleblower cause of action brought directly
before it in the first instance.") (internal citation omitted); Coffman v. Glickman, 328 F.3d 619,
4
621 (10th Cir. 2003) ("Review of a MSPB determination which does not involve claims of
unlawful discrimination is conducted by the United States Court of Appeals for the Federal
Circuit."); DeSantis v. Napolitano, 716 F. Supp. 2d 1100, 1113 (D.N.M. 2010) ("Appeals of
MSPB Final Orders that do not include claims of unlawful discrimination can be filed only in the
Federal Circuit."); Ghaly v. USDA, 228 F. Supp. 2d 283, 288-89 (S.D.N.Y. 2002) ("Challenges
to a final MSPB decision on a claim of violations of the Whistleblower Protection Act of 1989
must be raised before the Court of Appeals for the Federal Circuit, not here."); Ugarte v.
Johnson, 40 F. Supp. 2d 178, 181 (S.D.N.Y. 1999) ("[T]he act allows judicial review of
decisions of the [MSPB] solely by the Court of Appeals for the Federal Circuit. . . . A narrow
exception confers jurisdiction in a federal district court of certain claims of discrimination. . . .
Plaintiff here, however, has raised no such discrimination claims that would give this court
jurisdiction to review her case.") (internal citations omitted).
Hence, the DOE is correct: this Court lacks jurisdiction to decide Gammill's claim under
the Whistleblower Protection Act, and the complaint must be dismissed. Gammill brings only a
WPA claim, so this is not a "mixed" case that can be brought in federal district court. See
Compl. at 6 ("[T]he Department of Education illegally terminated [m]y employment in violation
of Whistleblower Retaliation Law.") (citing 5 U.S.C. § 2303(b)(8)). Arbitrary or not, the Court
is bound by statutory limits on its jurisdiction.
This Court does not have subject-matter
jurisdiction over this case, which should have been filed in the Court of Appeals for the Federal
Circuit. 2 In light of this decision, the Court need not address the parties' other pending motions,
2
Gammill first sought judicial review on February 18, 2011, which was before the
"effective date" of the Whistleblower Protection Enhancement Act of 2012. See Pub. L. No.
112-199, § 200 (2012) (defining the "effective date" of the law as "30 days after the date of
enactment of this Act," which was November 27, 2012). For that reason, the Court of Appeals
5
which will be denied as moot.
CONCLUSION
For the foregoing reasons, the Department of Education's motion to dismiss for lack of
subject-matter jurisdiction will be granted. The parties' other pending motions will be denied as
moot. A separate order accompanies this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: November 18, 2013
for the Federal Circuit would seem to be the only court of appeals that can adjudicate his case.
But the court need not, and does not, decide that question, because it is clear that this Court does
not have subject-matter jurisdiction.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?