ALFORD v. USA

Filing 9

UNREPORTED ORDER: Granting 8 Motion to Dismiss - Rule 12(b)(1) The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. U.S. Certified Mail Receipt Tracking# 7018 0040 0001 1393 1259(vds) Service on parties made.

3Jn tbe Wniteh ~tates Qt:ourt of jfeheral Qt:Iaims
No. 18-1931C
(Filed: April 24, 2019)

************ *************
MIA C. ALFORD,

Plaintiff,

v.
THE UNITED STATES,

Defendant.

* ***** ** **************** *
ORDER
Plaintiff filed her complaint on December 11, 2018, asking the court
to grant her "back pay of Retirement Disability from 1996 until the present"
that she believes she is owed due to being wrongfully terminated from the
Drug Enforcement Agency. Comp!. 3. Although the complaint is brief,
the general allegation is that Ms. Alford was fired while on sick leave after
being injured at work. She alleges that her claim for disability benefits was
denied due to timeliness. She appealed that decision to the Merit Systems
Protection Board ("MSPB"), which denied her claim as untimely, and
eventually she appealed to the Federal Circuit.
The Federal Circuit
transferred her case to the Eastern District ofNorth Carolina because her case
involves claims for discrimination. The district court then reversed the
MSPB decision and remanded to the MSPB. MSPB again denied plaintiffs
claim, this time on the basis of !aches rather than timeliness, and plaintiff
appealed back to the Eastern District of North Carolina.
In the present case, defendant filed a motion to dismiss for lack of
jurisdiction on February 4, 20 I 9, arguing that 28 U.S.C. § 1500 bars
jurisdiction in this case because plaintiffs appeal at the district court was
pending at the time that this case was filed. Plaintiff has not responded.
We need not wait further for a response, however, because it is clear that
defendant's motion must be granted and the case dismissed. Section 1500
states that this court "shall not have jurisdiction of any claim for or in respect
to which the plaintiff or his assignee has pending in any other court any suit
7018 0040 0001 1393 1259

or process against the United States . ... " 28 U.S.C. § 1500 (2012).
Plaintiff filed her complaint appealing the second MSPB denial on February
6, 2017; she filed her complaint in this court on December 11, 2018. A
review of the district court docket reveals that her case in district court was
still pending at the time her complaint here was filed. The result, per
section 1500, is that this court is prohibited from hearing plaintiffs claim. 1
Accordingly, the following is ordered:
1.

2.

Defendant's motion to dismiss is granted.
The Clerk of Court is directed to dismiss the complaint for lack
of jurisdiction and enter judgment accordingly.

3. No costs.

~-~
Senior Judge

1

We note also that, in any event, we would be without jurisdiction because
claims brought by federal employees regarding adverse personnel decisions
are within the exclusive purview ofMSPB. 5 U.S.C. § 7701 (2012); United
States v. Fausto, 484 U.S. 439, 444-45 (1988).
2