Jolly v. Department of the Army

Filing 17

ORDER granting 13 Motion to Dismiss. This case is closed. Signed by Judge J. Randal Hall on 10/27/16. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

LAURIE JOLLY,

*
*

Plaintiff,

*
*

v.

*

CV

116-065

*

DEPARTMENT OF THE ARMY,

*

*

Defendant.

ORDER

Currently
dismiss.

before

(Doc. 13.)

the

Court

is

Defendant's

motion

to

For the reasons explained below, the Court

GRANTS Defendant's motion.

I.

Background

This case arises out of Plaintiff Laurie Jolly's employment

with

Defendant.

Plaintiff

was

employed

as

a

Health

System

Administrator in the Hospital Education and Training Division of

the Dwight D. Eisenhower Army Medical Center ("DDEAMC") in Fort
Gordon, Georgia.

(Doc. 13-6 at 2-3.)

In June 2014, Defendant

notified Plaintiff that it intended to remove her from service

because of incendiary statements Plaintiff had made.

at

4.)

Specifically,

in

April

2014,

Plaintiff

(See id.

wrote

her

congressman

about

Plaintiff
stated:

referenced

she

the

faced at

DDEAMC.

well-known

Fort

^NO!

letter

[sic].'"

and

the

Fort

(Id.

at

Hood

(Id. at

Plaintiff

to

had

responded

3.)

Hood

6.)

Subsequently,

Plaintiff

during

plan

(Id.

appealed

Plaintiff argued that

appropriate

standard

for

MSPB

her

issued

(Id.)

request

its

and

I hope the

meeting

to

with
after

remove

her,

decision

to

(See id. at 2.)

Defendant failed to apply the

determining

initial

a

Defendant's

punishment

removal violated her First Amendment rights.

In

shooting

at 5.)

the Merit Systems Protection Board ("MSPB").1
On appeal,

letter,

In September 2014,

Defendant's

Plaintiff's removal became effective.

removal.

her

And Plaintiff referenced

shooting

another DDEAMC employee.

the

In

"'Is Blood Shed Required to Stop the ABUSE?"

answer is,

this

issues

decision

and

that

her

In November 2015,

affirming

Plaintiff's

Plaintiff then sought review of that decision.

for

review,

Plaintiff

asserted

an

additional

argument — that Defendant violated her due-process rights.

Upon

review, the MSPB rejected this additional argument and affirmed
the initial decision.

(Doc.

13-7.)

Plaintiff initiated this action in May 2016 and claims that

Defendant violated her First Amendment rights,
Due Process clause of the Fifth Amendment,

1

Plaintiff

also

apparently still pending.

filed

a

number

of

EEOC

her rights under

and her rights under

claims,

one

of

which

is

But, as Plaintiff has noted, these claims are not

relevant to the issues currently before this Court.

(See Doc. 12 at 2.)

the

Due

Process

clause of the

Fourteenth Amendment.

Defendant

moves to dismiss Plaintiff's complaint.

II.

Defendant

claims

argues,

Discussion

among

other

are precluded by the Civil

things,

that

Plaintiff's

Service Reform Act

("CSRA").

The Court agrees.

"The CSRA established a comprehensive

personnel

action

Dep't

Treasury,

of

omitted)

taken

against

132

S.

Ct.

federal

2126,

system for reviewing

employees."

Elgin

2130

(citation

(internal quotation marks omitted).

(2012)

Under the CSRA,

v.

an

agency - such as the Department of the Army — may take action
against certain employees "only for such cause as will promote
the efficiency

of the service."

5 U.S.C.

§ 7513.

Employees

entitled to protection under the CSRA include individuals

in

"competitive service" and individuals in "excepted service" who
meet certain requirements.

5 U.S.C. § 7511(a).

Adverse actions

subject to review under the CSRA include removal from service, a
suspension for more than fourteen days, a reduction in grade, a
reduction in pay,
U.S.C.

§

and a furlough of thirty days or less.

5

7512.

An employee facing one of these adverse actions has a right
to notice of the proposed action,

representation,

and

a

written

an opportunity to respond,

explanation

of

the

agency's

decision.

5

U.S.C.

§ 7513(b).

An

employee

appeal an agency's decision to the MSPB.

is

5 U.S.C.

entitled

to

§ 7513(d).

A

final decision by the MSPB is appealable to the Court of Appeals
for the Federal Circuit.
Federal
final

Circuit

has

exclusive

of

the

decision

(citations omitted)
In

this

employee
action

the

from

it

to

is

appeal

that

Elgin,

not

review

CSRA.

service.

Defendant's

jurisdiction over

MSPB."

132

And "[t]he

appeals

S.

Ct.

to

decision

that

or

that

her

removal

as

noted

above,

respond to

She

decision

disputed

Indeed,

given an opportunity to
her

§ 7703(b)(1)(A).

from a
at

2131

(internal quotation marks omitted).

case,

entitled

under

5 U.S.C.

also
the

to

the

Plaintiff

Defendant's

exercised
MSPB.

But

Federal

her

is

a

is

covered

Plaintiff

plan

right

Plaintiff

Circuit.

an

was

to

remove

to

appeal

failed

Instead,

to

she

brought this action in this Court.

Here, Plaintiff seeks to challenge her removal from service
as

a violation

Defendant

of

violated

her
her

constitutional
First

rights.

Amendment

rights

her based on her complaint to her congressman.

She
when

claims
it

that

removed

And she argues

that Defendant violated her due-process rights because it failed

to apply the appropriate standard for evaluating her punishment
and because it failed to provide her with an impartial decision
maker.
issues

That is, Plaintiff seeks to relitigate in this Court the
she raised before the MSPB.

In

fact,

Plaintiff appears

to take the position that this action is her timely appeal of
the MSPB's final decision.

Plaintiff's response to Defendant's

motion to dismiss states: "Within 30 days of receiving the MSPB
final decision supporting the Army's decision,
Plaintiff filed this Civil Action."

explained

above,

an

appeal

from

a

(Doc.

final

on May 13,

14 at

11.)

decision

2016

But,

by

the

as

MSPB

must be brought in the Court of Appeals for the Federal Circuit.
Because Plaintiff's claims clearly fall under the CSRA,
because

the

over appeals

over

Federal

claims.

this

exclusive
Court

Accordingly,

jurisdiction

lacks

jurisdiction

Defendant's

motion

to

is GRANTED.

Ill.

For

the

reasons

Conclusion

explained

Defendant's motion to dismiss
this

possesses

from MSPB decisions,

Plaintiff's

dismiss

Circuit

and

(doc.

above,
13).

the

Court

GRANTS

The Clerk shall CLOSE

case.

ORDER ENTERED
October,

at

Augusta,

Georgia

this Q>[_/_^ day

2016.

1ALL

IITED/STATES DISTRICT JUDGE
^RN

DISTRICT

OF GEORGIA

of