Blankenship v. Holder
Filing
28
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge M. Hannah Lauck on 09/17/2015. (ccol, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
KELLY M. BLANKENSHIP,
Plaintiff,
V.
Civil Action No. 3:14cv620
LORETTA E. LYNCH,'
Attorney General ofthe United States,^
Defendant.
MEMORANDUM OPINION
Before the Court is Defendant's Motion to Dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(l),^ orin the altemative. Motion for Summary Judgment. (ECF
Nos. 5-6.) Plaintiff Kelly M. Blankenship, proceeding pro se, responded, and Defendant
replied."* (ECF Nos. 21-22.) The Court dispenses with oral argument because the materials
' Pursuant to Federal Rule of Civil Procedure 25(d), this Court directs the Clerk of Court
to terminate Eric H. Holder as a defendant and to substitute Loretta E. Lynch, who now serves as
Attorney General of the United States, as the defendant in this action.
^Blankenship names "Eric H. Holder[,] Jr., the Attorney General for the United States of
America, the Chief Executive Officer responsible for the actions of the United States Department
of Justice, the Federal Bureau of Prisons" as the defendant. (Compl. 1, ECF No. 1.) The Court
construes Blankenship's Complaint as one against the Attorney General, now Loretta Lynch, in
her official capacity. A suit against Lynch in her official capacity is a suit against the United
States. Kentucky V. Graham, 473 U.S. 159, 165-66(1985).
^"[A] party may assert the following defenses by motion: (1) lack of subject-matter
jurisdiction." Fed. R. Civ. P. 12(b)(1).
Defendant also moves to dismiss "for failure to state a claim upon which relief can be
granted" pursuant to Fed. R. Civ. P. 12(b)(6). Because the Court lacks subject matter jurisdiction
over the alleged claims, this altemative basis for dismissal becomes moot. Harrison v. U.S.
Social Sec. Admin., No. 3:13cv435, 2014 WL 29042, at *1 (E.D. Va. Jan. 2, 2014).
^Defendant provided Blankenship with appropriate notice pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). (ECF No. 8.) Blankenship acknowledged on the record
before the Court adequately present the facts and legal contentions, and argument would not aid
the decisional process.^ Accordingly, this matter is now ripe for disposition. For the reasons that
follow, the Court will grant Defendant's Motion to Dismiss (ECF No. 6) and dismiss the
Complaint for lack of subject matter jurisdiction.
I. Standards of Review
A.
Lack of Subject Matter Jurisdiction: Rule 12(bVl^
Ina motion to dismiss under Fed. R. Civ. P. 12(b)(1) challenging the Court's subject
matter jurisdiction, the burden rests with the plaintiff, as the party asserting jurisdiction, to prove
thatfederal jurisdiction is proper. See Int7Longshoremen's Ass 'n v. Va. Int'l Terminals, Inc.,
914 F. Supp. 1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors Acceptance Corp.^ 298
U.S. 178, 189 (\926)\ Adams v, Bain^ 697 F.2d 1213, 1219 (4th Cir. 1982)). A motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) can attack subject matter jurisdiction in two ways. First, a
Rule 12(b)(1) motion may attack the complaint on its face, asserting thatthe complaint fails to
state a claim upon which subject matter jurisdiction can lie. SeeInt7 Longshoremen's Ass %
that shereceived Defendant's filings when sheattempted to file a response labelled "Plaintiffs
Motion to Dismiss." (PL's Mot. Dismiss 2, ECF No. 13.)
^Indeed, the record contains ample, not simply adequate, briefing. On March 17,2015,
the Court provided Blankenship with a second Roseboro notice, giving her additional time to file
a response to Defendant's Motion to Dismiss and informingher that it would construe her own
"Motion to Dismiss" (ECF No. 13) as her response to Defendant's motion unless Blankenship
filed a corrected opposition. (ECF No. 20.) On March 19, 2015, Blankenship submitted a
Corrected Briefin Opposition to Motion to Dismiss ("Response"). (ECF No. 21.)
On March 30, 2015, after Defendant replied, Blankenship filed "Plaintiffs Response to
the New Assertions in the Defendant[']s Response to the Plaintiffs Filing in Opposition to
Motion to Dismiss andthe Plaintiff[']s Motion to Amend" ("Sur-Reply"). (ECF No. 23.)
Blankenship did not obtain leave of court before filing her Sur-Reply, in violation of this Court's
local rules. E.D. Va. Loc. Civ. R. 7(F)(1). However, in the interest ofjustice, and after giving
Defendant the opportunity to respond, (ECF Nos. 24-25), the Court will consider Blankenship's
Sur-Reply. The Court ordered Blankenship and Defendant to submit supplemental briefs, and
both complied. (ECF Nos. 25-26.) Finally, Defendant submitted a clarification of Defendant's
supplemental brief (ECF No. 27.)
914 F. Supp. at 1338; see also Adams^ 697 F,2d at 1219. In such a challenge, a court assumes
the truth of the facts alleged by plaintiff, thereby functionally affording the plaintiff the same
procedural protection he orshe would receive under Rule 12(b)(6)^ consideration. See Int'l
Longshoremen's Ass % 914 F. Supp. at 1338; jee also Adams, 697 F.2d at 1219.
A Rule 12(b)(1) motion may also, as here, challenge the existence of subject matter
jurisdiction in fact, apart from the pleadings. See Richmond, Fredehcksburg & Potomac R.R.
Co. V. UnitedStates, 945 F.2d 765, 768 (4th Cir. 1991); Int 7 Longshoremen's Ass914 F.
Supp, at 1338; see also Adams, 697 F.2d at 1219. In such a case, because a party challenges the
court's '"very power to hear the case,'" the trial court is free to weigh evidence to determine the
existence ofjurisdiction. Int'l Longshoremen's Ass \ 914 F, Supp. at 1338 {c^oimg Mortensen
V. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness
attaches to the plaintiffs allegations, and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits ofjurisdictional claims. See Int'l
Longshoremen's Ass % 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219.
If the facts necessary to determine jurisdiction intertwine with the facts central to the
merits of the dispute, a court shouldfind thatjurisdiction exists and resolve any factual dispute
on the merits because the jurisdictional attack wouldthen closely mirror a challengeof the
^"A motion to dismiss under Rule 12(b)(6) tests the sufficiency ofa complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofKC. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356
(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin,
980 F.2d at 952. This principle applies only to factual allegations, however, and "a court
considering a motion to dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
merits. United States v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999); Adams, 697 F.2cl
at 1219. A court need not examine jurisdiction in that manner when a plaintiff asserts the claim
solely for the purpose of obtaining jurisdiction, or when a plaintiff raises a wholly insubstantial
and frivolous claim. Bell v. Hood, yil U.S. 678, 682-83 (1946).
B.
Obligation to Construe Pro se Pleadings Liberally
District courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55
F. Supp. 2d 416,421 (E.D, Va, 1999). However, a pro se plaintiff such as Blankenship must
nevertheless allege "facts that state a cause of action." Id. (citation omitted). The Court cannot
act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims"
that the litigant failed to raise on the face of the complaint. Newkirk v. Circuit Court ofthe City
ofHampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14,2014).
In her Response, Blankenship asserts facts by declaring them "under penalty of
perjury ... true and correct to the best of her information and belief." (PL's Resp. 2, ECF
No. 21.) Such a statement fails to transform the allegations in the affidavit or Complaint into
admissible evidence. Hogge v. Stephens, No. 3:09cv582, 2011 WL 2161100, at *2-3 & n.5
(E.D. Va. June 1, 2011) (treating statements sworn to under penalty of perjury, but made upon
information and belief as "*mere pleading allegations'" (quoting Walker v. Tyler Cnty. Comm. 'n,
11 F. App'x 270,274 (4th Cir. 2011))).
Blankenship's Complaint is unsworn. However, Blankenship's Response restates large
portions of her Complaint verbatim "under penalty of peijury." (PL's Resp. 2, ECF No. 21.)
The Complaint itself contains 143 numbered paragraphs and spans 42 pages. As stated below,
the Court dismisses the Complaint for lack of subject matter jurisdiction.
While the Court could simply weigh evidence to determine jurisdiction, the Court, in the
interest of fairness, has treated the statements in Blankenship's Response as pleading allegations.
Thus, the Court assumes the well-pleaded factual allegations in the Complaint to be true and
views them in the light most favorable to Plaintiff, as would be required for Rule 12(b)(6)
review. See Mylan Labs., 1 F.3d at 1134.
C.
Effect of Extrinsic Documents
The parties have placed numerous extrinsic documents before the Court.^ The Court
may consider evidence outside the pleadings on a motion to dismiss for lack of subject matter
jurisdiction without converting the motion to one for summary judgment and will do so here to
resolve Defendant's jurisdictional challenge to the Complaint. Richmond, Fredericksburg &
Potomac R.R. Co., 945 F.2d at 768. None of the parties contests the authenticity of any of the
documents. See Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing Alt.
Energy, Inc. v. St. Paul Fire &Marine Ins. Co., 267 F,3d 30, 33 (1stCir. 2001)).
Blankenship attaches 69 exhibitsto her Complaint. Some of the exhibits reference laws
or statements about them, (Compl. Exs. 9,13), Bureau of Prisons ("BOP") policies and
documents, {id. Exs. 11-12,14-19,48-52, 64, 67-69), and other official government reports and
documents, {id. Exs. 8, 26,44^7, 53-61). One is an exhibit list and another proffers a definition
of"ostracism." {Id. Exs. 1, 20.) Ofthe 54 exhibits, 16 provide pertinent information specific to
Blankenship and her allegations. {Id. Exs. 2-7, 10,22-26, 62, 64-65.) For ease of reference, the
Court employs the page numbers utilized by the CM/ECF docketing system when citing to
exhibits attached to the Complaint.
Defendant attaches two declarations to its Memorandum in Support of Motion to
Dismiss: (1) Decl. Delaine Hill ("First Hill Decl."); and, (2) Decl. Beverly Singleton ("Singleton
Decl."). (Def's Mem. Supp. Mot. Dismiss ("Def.'s Mem. Supp."), ECF Nos. 7-1, 7-2.)
Defendant attached a corrected version of the First Hill Decl. to its Reply to
Blankenship's Corrected Brief: Exhibit A: Corr. Decl. Delaine Hill ("Corr. Hill Decl."). (Def's
Reply PL's Corr. Br. Opp'n Ex. A, ECF No. 22-1.) Defendant attached one exhibit to the Corr.
Hill Decl.: Exhibit A: Blankenship's Equal Employment Opportunity ("EEO") Complaint in
BOP Case No. 2014-0675. (ECF No. 22-1.) The Corr. Hill Decl. states thatthe EEO Complaint
was filed on June 12,2014, (Corr. Hill Decl. 2.)
Finally, Blankenship includesthree attachments to her Response to Defendant's Motion
to Dismiss: (1) Attach. 1: documents from the Federal Labor Relations Authority regarding
Blankenship's hearing before an administrative lawjudge in her charge againstthe union; (2)
Attach. 2: an "Affidavit" of Samuel D. Engle, Jr., offered pursuant to an investigation conducted
by the Federal Service Labor-Management Relations Act; and, (3) Attach. 3: an email from
Blankenship to Wanda Dorsey, the EEO Counselorfor Petersburg, Virginia Federal Correctional
Complex ("FCC Petersburg"). (PL's Resp. Attach 1-3, ECF Nos. 21-2 to 21-4.) For ease of
reference, the Court employs the page numbers utilized by the CM/ECF docketing system when
citing to the attachments to Blankenship's Response.
IL Procedural and Factual Background
A.
Summary of Allegations in the Complaint
The Complaint addresses alleged acts of discrimination and breaches of a collective
bargaining agreement in the context of Blankenship'semployment as a correctional counselor
with the BOP at FCC Petersburg. Construing Blankenship's Complaint liberally, the Court
interprets the Complaint to raise two claims:
Claim I:
Inutilizing the Affirmative Employment Program ("AEP"),^ the BOP
breached the Collective Bargaining Agreement's ("CBA")^° directive not
to restrain employees' exercise of their right to fair treatment and freedom
from discrimination, (Compl. 45, 140(1)); and.
Claim II:
Discriminationon the basis of race, gender, and sexual orientation, in
violationof Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
16(a)," (Compl.
135,140(2)).
' According to the Complaint, the "[AEP] is used to effect and/or regulate the hiring
processes and promotion processes within the [BOP]." (Compl. ^ 63.) The AEP "represents the
following groups of people, Women, Blacks, Hispanics, Asian/Pacific Islanders, Native
American Indians, disabled veterans, minority groups, (such as Lesbian, Gay, Bisexual, and
Transgender individuals) and people with disabilities." {Id. at H66 (some punctuation
corrected).) The AEP "target[s] certain minorities and genders for specific vacancies, thus
showing that everyone is not being treated equally and some groups are being discriminated
against." (Jd. at 70.) Blankenship contends "Heterosexual, Caucasian (White) Females are
only given [promotional] consideration after other female(s) who fit into the other minority
categories ... have been exhausted in the [AEP] within the [BOP]." {Id. at K64.)
The March 9, 1998 Master Agreement (Compl. Ex. 6) is the CBA applicable to the
time identified in the Complaint. {See Compl. ^ 23.) For ease of reference, the Court will refer
to this Master Agreement as the CBA.
'' Blankenship cites both 42 U.S.C. §2000e-2 and §2000e-16 in her Complaint. As an
employee of the BOP at FCC Petersburg, § 2000e-16(a) governs Blankenship's discrimination
claim against her federal agency employer.
Section 2000e-16(a) provides in pertinent part: "All personnel actions affecting
employees ... in executive agencies as defined in [5 U.S.C. § 105] ... shall be made free from
any discrimination based on race, color, religion, sex, or national origin," 42 U.S.C. § 2000e16(a). "'Executive agency' means an Executive department, a Government corporation, and an
independent establishment." 5 U.S.C. § 105. The BOP is an agency of the Department of
Justice within the Executive department. The head of DOJ is the proper defendant in this case.
OnMay 30, 2014, Blankenship submitted a document entitled "[A]ttempt at Informal
Resolution" dated May 29, 2014 ("May 2014 Informal Grievance"), addressing it to FCC
Petersburg Warden Eric D. Wilson ("Warden Wilson"). (Compl. H24; id. Ex. 2, ECF No. 1-2.)
The Informal Grievance states that Blankenship "[has] been denied [her] rights under the
[CBA]." {Id. Ex, 2 at 2.) Blankenship avers that she has "not been treated fairly as outline[d] by
the [CBA]; nor [has] [she] been free of discrimination as outline[d] bythe [CBA]." {Id.)
In the May 2014 Informal Grievance, Blankenship elaborates that, as a heterosexual,
Caucasian female, the BOP's use of the AEP discriminates against her regarding internal
advancement:
As a Heterosexual, Caucasian (White) Female I am being discriminated against
by the Agency known as The United States Department of Justice, The Federal
Bureau of Prisons thru its use of the [AEP] ... in the hiring processes within the
[BOP],
I am a Heterosexual, Caucasian (White) Female, I am being denied equal
treatment as it relates to promotional employment or job advancement process
within the [BOP],
Heterosexual, Caucasian (White) Females have been denied and are being denied
representations in and by the [AEP] ... because we are not an identified minority
group.
I have been denied and are [sic] being denied equal protection . . , due to due to
preferential treatment givento [persons] belonging to a minority groups ....
The advantage given to minorities by the [AEP] in the promotion and hiring
process'^'^^ creates a disparity in treatment towards Heterosexual, Caucasian
(White) Females who the program does not represent equally.
42 U.S.C. § 2000e-16(c) (in a federal employee's Title VII suit, "the head of the department,
agency, or unit, as appropriate, shall be the defendant".).
I^
It seems that Blankenship's Complaint concentrates on promotional opportunities
rather than initial hiring decisions. Blankenship's Informal Grievance notes that she
"understands[s] that a diverse work force is a good thing[,] but any further use of the [BOP's
The use of [the AEP] in the promotional employment process within the [BOP]
discriminates against Heterosexual, Caucasian (White) Males and Females.
{Id. at 3, 5.) Blankenship demands that the BOP "remove[ ]" the AEP because it "has created
discrimination and violates the law and the natural right of all men and women to be treated
equally." {Id. at 7.) The May 2014 Informal Grievance does not identify a specific instance
when the BOP's use of the AEP resulted in the discriminatory treatment of Blankenship.
On June 6, 2014, Blankenship received an email from FCC Petersburg's Human
Resources Department with Warden Wilson's response to her Informal Grievance ("June 6, 2014
Response to Informal Grievance") attached to the email. The Response to Informal Grievance,
dated June 5, 2014, directs Blankenship to "contact the EEO Counselor within 45 days of the
alleged discrimination" "[i]f [she] believe[s] [she] [has] been subjected to discrimination."
(Compl. Ex. 3 at 2; see also Compl. f 26.) The June 6, 2014 Response to Informal Grievance
identifies Wanda Dorsey asthe EEO Counselor for FCC Petersburg and contains Dorsey's email
address and telephone number. {Id. Ex. 3 at 2.)
On June 9, 2014, Blankenship submitteda Formal Grievance ("June 9, 2014 Formal
Grievance"). The June 9, 2014 Formal Grievance repeats verbatim the allegations that
Blankenship made in the Informal Grievance regarding the BOP's use of the AEP in violation of
the CBA and the AEP's discriminatory impact. In the June 9, 2014 Formal Grievance, in
AEP] outside of the initial hiringprocess is discriminatory." (Compl. Ex. 2 at 5.) Whether
Blankenship addresses hiring decisions, promotional decision-making, or both, does not alter this
Court's determination.
addition to the removal of the AEP, Blankenship requested remedies including attorneys' fees,
damages, and other injunctive relief:
[T]hat all attorney, legal fees and expenses incurred in the processing [of] this
grievance will be reimbursed by the agency. That a cease and desist order be
issued if applicable,... That suitable compensations are granted (specifically, but
not limited to, Remedies to Include Compensatory & Punitive Damages as
outline[d] by EEOC guidelines, a promotion of 3 GL-grade levels at their current
job,... [and] Back pay ....
(Ex. 4 at 3.) Like the May 2014 Informal Grievance, the June 9, 2014 Formal Grievance does
not identify a specific time when the BOP used the AEP in a way thatdiscriminated against
Blankenship.^^
On June 9, 2014, the same day Blankenship submitted her June 9, 2014 Formal
Grievance, the Local Union President Derrick Bradden removed Blankenship as Union
representative. On June 11, 2014, Blankenship received a response to her June 9, 2014 Formal
Grievance from Warden Wilson. TheJune 11, 2014 Response to Blankenship's June 9, 2014
Formal Grievance denied it. Noarbitration commenced following the denial of Blankenship's
1^
Although the Complaint does not mention any other grievances beyond the June 9,
2014 Formal Grievance, Blankenship attached documentation outlining two other grievances
filed. (Compl. Exs. 28-30, 35-38,42.) Blankenship does not appear to proceed in this Court
based uponthese two grievances. However, to the extent she attempts to do so, she has failed to
exhaust these claims for the same reasons that she failed to exhaust her June 9, 2014 Formal
Grievance. (See PartIII.B, infra.) Accordingly, the Court would have no subject matter
jurisdiction over these claims. A briefdescription of the additional grievances follows.
First, onApril 30,2014, the Union filed a Formal Grievance on behalf of Blankenship
regarding alleged "harassment, coercion and intimidation" of Blankenship by management staff
andherobjections surrounding her yearly performance evaluation. (Compl. Ex. 37.) On June 5,
2014, the Union filed a Notice of Intent to Invoke Arbitration on behalfof Blankenship in this
matter, (Compl. Ex. 42.) On June 6, 2014, Warden Wilson denied the April 2014 Formal
Grievance. (Compl, Ex, 38,) Blankenship places no information in the record about this
"harassment, coercion and intimidation" grievance beyond the June 6, 2014 denial.
Second, on June 11, 2014, Blankenship filed an "attempt to informal resolution"
regarding a "SickandAnnual" shiftposition. (Compl. Ex. 28;see PL's Resp. 25-27). On
June 13,2014, Blankenship filed a Formal Grievance in the matter. (Compl, Ex, 30.) Again,
Blankenship provides no information about any events as to the "Sick and Annual" grievance
dated beyond the June 13, 2014 Formal Grievance.
June 9,2014 Formal Grievance.''^ Blankenship never filed a Merit Systems Protection Board
("MSPB") appeal.
B.
Procedural History
On September 5,2014, Blankenship filed her Complaint against Defendant seeking
compensatory damages "in the form of a pay grade adjustment. .. with back pay," $300,000 in
punitive damages, "all attorney, legal fees and expenses," and other relief {See generally
Compl.
1,141-43.) On February 27, 2015, Defendant filed a Motion to Dismiss.
Blankenship responded, and Defendant replied. Blankenship and Defendant also submitted
additional briefing.
ni. Analysis
The Complaint lacks coherence and contains sprawling assertions lacking linear
connection, factually or legally. For the reasons discussed below, Blankenship fails to satisfy her
burden to demonstrate the existence of this Court's limited federal subject matter jurisdiction.
Int 7 Longshoremen's Ass914 F. Supp. at 1338 (citations omitted). Therefore, the Court will
grant the Motion to Dismiss and dismiss the Complaint for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1).
On June 12, 2014, Blankenship belatedly filed an EEO complaint regarding
"discrimination" she suffered as a "Heterosexual, Caucasian (White) Female" similar to the
discrimination she outlined in her June 9, 2014 Formal Grievance. (Corr. Hill Decl. Ex. A, ECF
No. 22-1.) As discussed in note 25, infra, this filing does not alter the Court's analysis in this
matter.
10
A.
No Subject Matter Jurisdiction Exists Over Blankenship's Claim for Breach
of the CBA Because No Waiver of SovereignImmunity Applies
The Court lacks subject matter jurisdiction over Blankenship's claim for breach of the
CBA, meaning the Courtmust dismiss Claim1. Absent an identified waiver, sovereign
immunitybars Blankenship's claim for breach of the CBA against Defendant in her official
capacity. Harrison, 2014 WL 29042, at *3.
1.
Sovereign Immunity Bars Claim I Unless a Statutory Waiver Applies
A suit against Defendant in his or her official capacity is a suit against the United States.
Kentucky, 473 U.S. at 165-66. "It is well settled that the United States,as sovereign, is immune
from suit except to the extent that it has consentedto be sued by statute." Harrison, 2014 WL
29042, at *2 (listing cases). Statutory waivers of sovereign immunity "caimotbe implied but
must be unequivocally expressed." Id. (citationomitted). "Moreover, they must be construed
strictly in favor of the sovereign and may not be enlarged beyond what the statutory language
requires." Id. (citation omitted). "The terms ofthe waiver define the Court's jurisdiction to
entertain the suit." Id. (citation omitted). "Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit. Sovereign inmiunity is jurisdictional in nature.
Indeed, the terms of [the United States'] consent to be sued in any court define that court's
jurisdiction to entertain the suit." Id. at *3 (alterationin original) (citation omitted).
Three statutes encompass the primary avenues for waiverof sovereign immunity in civil
actions againstthe United States. First, the Federal Tort Claims Act ("FTCA") waives the
United States's sovereign immunity for monetary claims brought by individuals injured by
11
certain tortious conduct offederal employees. 28 U.S.C. § 2674;'^ 28 U.S.C. § 1346(b)(l);'^
Harrison, 2014 WL 29042, at *4.
The Tucker Act~ consisting of the so-called "Little Tucker Act" andthe "Big Tucker
Act" - provides a second basis for waiving sovereign immunity. The Little TuckerAct permits
a district court to exercise jurisdiction over non-tort claims against the United States for money
judgments not exceeding $10,000. 28 U.S.C. § 1346(a)(2);Harrison, 2014 WL 29042, at *3.
"For these claims, district courts have concurrent jurisdiction with the Court of Federal Claims."
Harrison, 2014 WL 29042, at *3; see also 28 U.S.C. § 1346(a)(2). When a plaintiff claims more
than $10,000 in damages, however, the Big Tucker Act grants the Court of Federal Claims
"TheUnited States shall be liable, respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private individual under like
circumstances
" 28 U.S.C. § 2674.
Section 1346(b)(1) describes FTCA jurisdiction and provides in pertinent part:
[T]he district courts .,. shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages ... for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of her office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimantin accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1).
The Little Tucker Act states in pertinent part:
(a) The district court shall have original jurisdiction, concurrent with the United
States Court of Federal Claims, of:
(2) Any other civil action or claim against the United States, not exceeding
$10,000 in amount, founded eitheruponthe Constitution, or any Act of
Congress, or any regulation of an executive department, or upon any
express or implied contract with the United States.
28 U.S.C. § 1346(a)(2).
12
exclusive jurisdiction over those non-tort money claims against the United States. 28 U.S.C.
§ 1491;^^ Harrison, 2014 WL 29042, at *3 (distinguishing Little and Big Tucker Acts). "With
few exceptions not relevant here, Tucker Actjurisdiction covers only claims formonetary relief,
not injunctive relief, and special venue requirements apply to claims under the Little Tucker
Act." Harrison, 2014 WL 29042, at *3 (citing 28 U.S.C. 1402(a); Richardson v. Morris, 409
U.S. 464, 465 (1973) ("[T]he [Tucker] Act has long been construed as authorizing onlyactions
for money judgments and not suits for equitable relief againstthe United States.")).
Finally, the Administrative Procedure Act ("APA") constitutes the third statute that
"waives sovereign immunity for certain actions against the government: 'A person suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial review thereof.'" Harrison, 2014
WL 29042, at *3 (quoting 5 U.S.C, § 702). "The APA, however, applies only to claims 'seeking
relief otherthan moneydamages' and does not apply 'if any other statute that grants consentto
suit expressly or impliedly forbids the relief which is sought.'" Id. (quoting 5 U.S.C. § 702).
2.
No Statutory Waiver of Sovereign Immunity Annlies to riaim T
In this case, none of the above waivers of sovereign immunity applies to Blankenship's
claim for breachof the CBA. First, the FTCA does not apply to Blankenship's non-tortbreach
of the CBA claim. Second, Blankenship does not seek monetary damages with respect to
Claim I, making the limited waivers of sovereign immunity codified in the Little Tucker and Big
1 fi
_
The Big Tucker Act addresses jurisdiction as follows: "The United States Court of
Federal Claims shall have jurisdiction to renderjudgment upon any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States
U.S.C. § 1491(a)(1).
13
" 28
Tucker Acts inapplicable.'^ Finally, although Blankenship seeks a"find[ing]" that Lynch
breached the CBA, (Compl. f 140(1)), sucha request does not constitute the type of injunctive
relief for which the APA could provide a limited waiver of sovereign immunity.^^
Without more, Blankenship contends that"[t]his Court hasjurisdiction." (Compl. H5.)
Such an unsupported proposition cannot satisfy her burden "to prove that federal jurisdiction is
proper."^' Int'l Longshoremen's Ass %914 F. Supp, at 1338 (citations omitted). Accordingly,
in the absence of any statutory waiver, sovereign immunity bars Blankenship's claim for breach
of the CBA. Therefore, this Court lacks subject matterjurisdiction over Claim I and will dismiss
it.
Blankenship avers that she does not seekmonetary damages with respect to ClaimI,
but rather "hasonly requested thatthe [C]ourt find that the [BOP] did in fact breach the [CBA]."
(PL's Resp. 4.) Given Blankenship's status as a federal employee, any request for monetary
relief regarding her claim for breach of the CBA would likely fail as a matter of law:
[T]o the extent that the Little Tucker Act, 28 U.S.C. § 1346(a)(2),waives
sovereign immunity and authorizes federal district courts to hear contract claims
against the [United States] of $10,000 or less, the [Civil Service Reform Act of
1978 ("CSRA"), 5 U.S.C. § 1101,et seq.^ in effect trumps that consent to suit and
prevents federal district courts from exercising jurisdiction over claims for breach
of a collecting bargaining agreement between a union and an agency of the
[United States]."
Rivera v. Holder, No. 3:10cv544, 2010 WL 5187929, at *3 n.7 (E.D. Va. Dec. 14, 2010) (citing
cases).
As a federal employee, Blankenship cannot use the APA to challenge the BOP's
employment actions. Filebarkv. U.S. Dep't ofTransp., 555 F.3d 1009, 1010 (D.C. Cir. 2009);
Hall V. Clinton, 235 F.3d 202, 206 (4th Cir. 2000) ("Congress intended that the CSRA would
operate to the exclusion of all other statutory remedies for claims arising out of the federal
employment relationship.") The Court discusses the CSRA statutory process that would be
available to Blankenship in lieu of the CBA's negotiated grievance procedure in Part IILB.2,
infra.
Blankenship suggests in briefing that 42 U.S.C. § 1981a(b)(3)constitutes a waiver of
sovereignimmunity. However, the statute, which outlines limitations on damages in
employment discrimination cases, does not constitute a waiver of sovereign immunityfor
Blankenship's breach of the CBA contract claim.
14
B.
No Subject Matter Jurisdiction Exists Over Blankenship's Title VII Claim
Because Blankenship Failed to Exhaust Her Administrative
Remedies
This Court lacks subject matter jurisdiction over Blankenship's Title VII claim (Claim II)
because Blankenship did not exhaust her administrative remedies. See Jones v. Calvert Grp.,
Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
1.
Federal Employees Must Exhaust Their Administrative Remedies
Before Filing Title VII Employment Discrimination Claims in Federal
Court
Title VII "creates a right of action for both private-sector and certain federal employees
alleging employment discrimination on the basis of race, color, religion, sex, or national origin."
Laber v. Harvey^ 438 F.3d 404,415 (4th Cir. 2006) (footnotes omitted) (citing 42 U.S.C.
§§ 2000e-5(f)(l) (private-sector employees), 2000e-16(c) (federal employees)). "All employees,
private-sector or federal, alleging such discrimination must, however, exhaust their
administrative remedies before exercising this right." Id. at 415-16 (citing cases). "This
requirement exists to minimize judicial interference with the operation of the federal
government. It also affords an agency the opportunity to right any wrong it may have
committed." Austin v. Winter, 286 F. App'x 31, 35 (4th Cir. 2008) (citations omitted) (internal
quotation marks omitted). The failure to exhaust deprives this Court of subject matter
jurisdiction. Jones, 551 F.3d at 300.
2.
Specific Considerations When a Collective Bargaining Agreement
Exists
a.
Irrevocable Election of Procedure
When a federal employee such as Blankenship also is subject to a collective bargaining
agreement, the CSRA and Federal Service Labor-Management Relations Act, 5 U.S.C. §§7101-
15
7135, ("the FSLMRA")^^ permit a federal employee "aggrieved" by discrimination in the
workplace to "raise the matter under a statutory procedure [such as the EEO complaint process]
or the negotiated grievance procedure [provided for in the applicable collective bargaining
agreement], but not both." 5 U.S.C. § 7121(d);^^ j-ee also 29 C.F.R. § 1614.30l(a).^^
The FSLMRA, Title VII of the CSRA, "created a statutory scheme governing labor
relations between federal agencies and their employees." Nat'I Ass 'n Gov 't Emps. v. Fed. Labor
Relations Autk, 830 F. Supp. 889, 891 (E.D. Va. 1993).
23
Section 7121(d) of the FSLMRA provides in fiill:
An aggrieved employee affected by a prohibited personnel practice under [5
U.S.C. § 2302(b)(1)] which also falls under the coverage of the negotiated
grievance procedure may raise the matter under a statutory procedure or the
negotiated procedure, but not both. An employee shall be deemed to have
exercised her [or her] option under this subsection to raise the matter under either
a statutory procedure or the negotiated procedure at such time as the employee
timely initiates an action under the applicable statutory procedure or timely files a
grievance in writing, in accordance with the provisions of the parties' negotiated
procedure, whichever event occurs first. Selection of the negotiated procedure in
no manner prejudices the right of an aggrieved employee to request the [MSBP]
to review the final decision pursuant to [5 U.S.C. § 7702] in the case of any
personnel action that could have been appealed to the [MSBP], or, where
applicable, to request the [EEOC] to review a final decision in any other matter
involving a complaint of discrimination of the type prohibited by any law
administered by the [EEOC].
5 U.S.C. § 7121(d).
Section 2302(b)(1) prohibits discrimination against any employee "on the basis of race,
color, religion, sex, or national origin, as prohibited under [Title VII]." 5 U.S.C.
§ 2302(b)(1)(A), Section 7702 sets forth procedures for appeals to the MSPB. "The MSPB has
jurisdiction to hear appeals of certain adverse federal employment actions, such as removal,
suspensions lasting more than 14 days, and constructive discharge." Rivera, 2010 WL 5187929,
at *4 n.8 (citing 5 U.S.C. §§ 7512-13).
A "person ... employed by an agency subject to 5 U.S.C. § 7121(d) and ... covered
by a collective bargaining agreement that permits allegations of discrimination to be raised in a
negotiated grievance procedure" who "wish[es] to file a complaint or a grievance on a matter of
alleged employment discrimination must elect to raise the matter under either part 1614 or the
negotiated grievance procedure, but not both." 29 C.F.R. § 1614.301(a).
16
A federal employee makes his or her election to proceed under either the statutory
procedure or the negotiated grievance procedure "at such time as the employee timely initiates an
action underthe applicable statutory procedure or timely files a grievance in writing, in
accordance with the provisions of the parties' negotiated procedure, whichever event occurs
first.'''' 5 U.S.C. § 7121(d) (emphasis added). Because the federal employee cannot pursue both
statutory and negotiated grievance procedures, the election to proceed under eitheris binding.
Id.', see also Wilson v. Hagel, No. 5:13cv365,2014 WL3738530, at *3 (E.D.N.C. July 29, 2014)
("The employee cannotpursue both procedures and the election, once made, is irrevocable.");
Moreno v. McHugh, No. ELH-10-2511, 2011 WL 2791240, at *9 (D. Md. July 14, 2011)
("Notably, the employee mustchoose between the statutory or grievance process; the employee
may not pursueboth remedies. And, the electionbetween a statutory or a negotiated grievance
procedure is irrevocable. This means that an employee is bound by [his or] her initial election."
(citations omitted) (internal quotation marks omitted)).
A federal employee "is deemed to have irrevocably elected [his or] her option when [he
or] she either(1) timely initiates an action under the applicable statutory procedure or (2) timely
files a grievance in writing, whichever occurs first." Wilson, 2014 WL 3738530, at *3; see also
Moreno, 2011 WL 2791240, at *9 ("[A]n employee covered by a collective bargaining
agreement with an applicable grievance process may elect one of two options, but not both:
(1) [he or] she may file a grievance pursuant to [his or] her union's negotiated grievance; or
(2) [he or] she may make a statutory election, by filing a formal EEO complaint
").
"An election to proceed under [the statutory EEO complaint process] is indicated only by
the filing of a written complaint; use of the pre-complaint process ... does not constitute an
election for purposes of this section." 29 C.F.R. § 1614.301(a). "An aggrieved employee who
17
flies a complaint under [the statutory EEO complaint process] may not thereafter file a grievance
on the same matter." Id. Likewise "[a]n election to proceed under a negotiated grievance
procedure is indicated by the filing of a timely written grievance." Id.
Importantly, a federal employee pursuing a claim under either the statutory procedure or
the negotiated grievance procedure must exhaust his or her administrative remedies before
raising that claim in federal court. See Later, 438 F.3d at 415; Zuzul v. McDonald, — F.
Supp. 3d —, No. I:14cv251, 2015 WL 1474924, at *7 (M.D.N.C, Mar. 31, 2015) (citations
omitted) (describing exhaustion in the negotiated grievance procedure context); Moreno, 2011
WL 2791240, at *8-9 (same); Campbell v. Green, No. I:07cv675, 2009 WL 1255113, at *5
(E.D. Va. May 5, 2009) (describing exhaustion of administrative remedies by federal employee
in statutory EEO complaint process), aff'd, 353 F. App'x 879 (4th Cir. 2009).
b.
Steps to Exhaust Negotiated Grievance Procedure of Pure
Discrimination Claim
Blankenship elected to pursue her employment discrimination claimsthrough the
negotiated grievance procedure when she filed her Formal Grievance on June 9, 2014, before she
submitted any EEO complaint.^^ (Compl. Ex. 4, ECF No. 1-4; 5U.S.C. §7121(d).) Agrievant
The Court notesthat Blankenship appears to have filed an EEO complaint on June 12,
2014. (Corr. Hill Decl. 2; id. Ex. A.) Blankenship's allegations in her Complaint omit mention
of EEOC proceedings altogether. Blankenship's filing with the EEOC does not pertain to this
Court's analysis for three reasons. First, Blankenship expressly concedes that she does not rely
on any EEO complaint in the action beforethis Court. (PL's Corr. Resp. 8; PL's Sur-Reply 3;
PL's Supp'l Br. 5.) Second, Blankenship filed the EEO complaint after she elected to pursue the
grievance process. Accordingly, the Court must evaluate this claim as if Blankenship pursued
only the grievance process. Wilson, 2014 WL 3738530, at *3 ("The employee cannot pursue
both procedures and the election, once made, is irrevocable."). Third, Blankenship's EEO
complaint has not yet been resolved. (Corr. Hill. Decl. 2.) The Court cannot address a case
pending before the EEOC. Johnson v. Peterson, 996 F,2d 397, 401 (D.C. Cir. 1993) ("The
employee [with a pure discrimination claim, see note 26, infra] who chooses the negotiated
procedure may appeal the arbitrator's decision to the EEOC. Only after the EEOC has rendered
18
such as Blankenship pursuing a "pure discrimination" claim^^ exhausts the negotiated grievance
procedure when he or she: (1) appeals an arbitration decision to the EEOC; or, (2) in a case
where arbitration is notavailable, appeals the agency's final decision to the EEOC.^^ 42 U.S.C.
§2000e-16(c);^® cf. Fernandez v. Chertoff, 471 F.3d 45, 54 (2d Cir. 2006) ("[I]n apure
has rendered a decision or failedto do so ... may the employee use [42 U.S.C. §] 2000e-16(c)
and initiate suit in district court.").
OA
Blankenship's Formal Grievance "involves claims of discrimination only," making it a
"pure discrimination" claim. Moreno, 2011 WL 2791240, at *8 n.l6 (citation omitted); see also
PL's Sur-Reply 4 ("Plaintiffis not raising a personnel issue, but a discrimination issue
[I]t is
not a mixed claim,").
In contrast, a "mixed case" would be a "complaint of employment discrimination filed
with a federal agency based on race, color, [or] sex ... related to or stemming from an action
that can be appealed to the [MSPB]. The complaint may contain only an allegation of
employment discrimination or it may contain additional allegations that the MSPB has
jurisdiction to address." 29 C.F.R. § 1614.302(a); see also Moreno, 2011 WL 2791240, at *8
n.l6 (suggesting in dicta that retaliatorytermination for whistleblower activity could be a mixed
case because the employment action mightnot stem from discrimination prohibited by Title VII).
27
•
As is the case here, some collective bargaining agreements grant only the agency-
employer or the union the ability to pursue a claim to arbitration. See Moreno, 2011 WL
2791240, at *13; Compl. Ex. 6 ("CBA") Art. 31, § g(l)-(2), ECFNo. 1-6. When the agencyemployer anduniondecline to pursue a claimto arbitration, the grievant-empioyee must appeal
the agency-employer's final decision to the EEOC in order to exhaust her or her administrative
remedies. Koch v. Walter, 934 F. Supp. 2d 261, 269 (D.D.C. 2013).
Section 2000e-16(c) provides in pertinent part:
Within 90 days of receipt of notice of final action taken by a department, agency,
or unit referred to in [42 U.S.C. § 2000e-5(a)], or by the [EEOC] upon an appeal
from a decision or order of such department, agency, or unit on a complaint of
discrimination based on race, color, religion, sex or national origin, brought
pursuant to [42 U.S.C. § 2000e-5(a)],... or after one hundred and eighty days
from the filing of the initial charge with the department, agency, or unit or with
the [EEOC] on appeal from a decision or order of such department, agency, or
unit until such time as final action may be taken by a department, agency, or unit,
an employee ... if aggrieved by the final disposition of her complaint, or by the
failure to take final action on her complaint, may file a civil action as provided in
[42 U.S.C. § 2000e-5] ....
42 U.S.C. § 2000e-16(c).
19
discrimination case, an employee who chooses the negotiated grievance procedure must appeal
the arbitrator's award to the EEOC before bringing suit."); Koch, 934 F. Supp. 2d at 269 (finding
federal employee failed to exhaust administrative remedies of her Title VII claim when, after
electing to pursue the negotiated grievance procedure, the employee did not appeal the agency's
final decision to the EEOC in case where the union and agency declined to invoke arbitration);
Morenoy 2011 WL 2791240, at *8 ("Exhaustion of the negotiated grievance process generally
includes referral of the grievance to arbitration and the appeal of the arbitration decision, either
to the EEOC or the [MSPB]
"); Smith v. Jackson, 539 F, Supp. 2d 116, 130 (D.D.C. 2008)
("[JJudicial review is only available to an employee alleging a pure discrimination claimafterhe
[or she] has exhausted his [orher] administrative remedies in dealing with his [orher] grievance,
andappealed thefinal agency action on his [orher] grievance to the EEOC."); Johnson, 996 F,2d
at 401 ("The employee [with a pure discrimination claim] who chooses the negotiated procedure
may appeal the arbitrator's decision to the EEOC. Only after the EEOC has rendered a decision
or failed to do so ... may the employee use [42 U.S.C. §] 2000e-16(c) and initiate suit in district
court.").
3.
After Electing the Negotiated Grievance Procedure, Blankenship
Failed to Exhaust Her Administrative Remedies
Blankenship failed to exhaust heradministrative remedies because, after electing to
pursue her pure discrimination claims using the CBA's negotiated grievance procedure, shedid
not complete that process. 42 U.S.C. § 2000e-16(c); Fernandez, 471 F.3d at 58; Johnson, 996
F.2d at 401; Koch, 934 F. Supp. 2d at 269; Moreno, 2011 WL 2791240, at *8 (citation omitted).
Therefore, this Court mustdismiss Blankenship's Title VII claims for lack of subject matter
jurisdiction. Jones, 551 F.3d at 300-01.
20
a.
The CBA's Grievance and Arbitration Procedures
Blankenship's June 9, 2014 Formal Grievance constituted her election to pursue her
employment discrimination claims through the negotiated grievance procedure because she had
not yet submitted any EEO complaint. (Compl. Ex. 4, ECF No. 1-4; 5 U.S.C. § 7121(d).) Once
Blankenship elected this procedure, she remained obligated to exhaust the negotiated grievance
procedure before raising any Title VII claim in federal court. Laber, 438 F.3d at 415; Zuzul,
2015 WL 1474924, at *7; Moreno, 2011 WL 2791240, at *8.
Article 31 of the CBAprovides "[a]ny employee" with "the right to file a formal
grievance with or without the assistance of the Union." (CBA Art. 31, § c.) "Grievances must
befiled within forty (40) calendar days of the date ofthe alleged grievable occurrence." {Id.
Art. 31, § d.) "Formal grievances must be filed on Bureau of Prisons 'Formal Grievance' forms
and must be signed by the grievant or the Union." {Id. Art. 31, § f.) "After a formal grievance is
filed, the party receiving the grievance will have thirty (30) calendar days to respond to the
grievance." {Id. Art. 31, § g.) "[I]fthe final response is not satisfactory to the grieving party and
that party desires to proceed to arbitration, the grieving party may submit the grievance to
arbitration under Article 32 of [the CBA] within thirty (30) calendar days from receipt of the
final response; and" "a grievance may only bepursued to arbitration by the Employer or the
Union." {Id. Art. 31, § g(l)-(2).)
Article 32 of the CBA delineates the procedures for arbitration, including notifying the
other party in writing of the intent to invoke arbitration and requesting that the Federal Mediation
and Conciliation Service ("FMCS") submit a listof arbitrators. (CBA Art. 32, §§ a-b.) "The
arbitrator shall berequested to render a decision as quickly as possible, but in any event no later
21
than thirty (30) calendar days after the conclusion of the hearing, unless the parties mutually
agree to extend the time limit." {Id. Art. 32, § g.)
b.
Blankenship^s Actions Regarding Exhaustion
Blankenship compliedwith Article 31 's requirements to file her grievance on the official
BOP form and to direct her grievance to the appropriate individual. Warden Wilson. (Compl.
Ex. 4.) Warden Wilson responded within the required 30 calendar days. (Compl. Ex. 5.)
Upon receipt of the final, unsatisfactory response (here, Warden Wilson's June 11, 2014
Response to Formal Grievance), the CBA required that the "the grieving party" "submitthe
grievance to arbitration under Article 32 of [the CBA] within thirty (30) calendar days from
receipt of the final response." (CBA Art. 31, § g(l).)
The CBA permits only the employer (in this case the BOP) or the Union to submit a
grievance to arbitration. {Id. Art. 31, § g(2).) The deadline for the BOP or the Union to submit
Blankenship's Formal Grievance to arbitration expired on July 11, 2014. Neither the Union nor
the BOP invoked arbitration regarding Blankenship's Formal Grievance.(Compl. m 40^1.)
Blankenship does not allege that she completed any appeal process regarding the denial of her
grievance. {See note 25,supra\ Corr. Hill Decl. KH 9-10; Singleton Decl. H7 (discussing MSBP
appeal).)
c.
Blankenship Did Not Exhaust Because She Has Not Completed
An Appeal of an Arbitration Award or the BOP's Final
Decision to the EEOC
Blankenship did not exhaust the negotiated grievance procedure because she has not
completed an appeal of the BOP's denial of her formal grievance or an arbitration decision to the
Rather than eventually seeking arbitration on Blankenship's behalf, on June 9,2014,
the same day Blankenship submitted her Formal Grievance, union leaders notified others that
Blankenship would no longer serve as the Union's shop steward, "Effective Immediately."
(Compl. H141(1); id Ex. 21, ECF No. 1-21.).
22
EEOC, a necessary step to complete exhaustion. 42 U.S.C. § 2000e-16(c); Johnson, 996 F.2d
at AO\\Koch, 934 F. Supp. 2dat 269; Moreno, 2011 WL 2791240, at *8 (citation omitted);^^
Smith, 539 F. Supp. 2d at 131-32.^^ Because Blankenship did not exhaust her administrative
remedies, the Court lacks subject matter jurisdiction over Blankenship's Title VII claims. Jones,
551 F.3d at 300. In the absence of subject matter jurisdiction, this Court must dismiss Claim II.
C.
The Court Will Not Grant Leave to Amend
Under Rule 15 of the Federal Rules of Civil Procedure, a "court should freely give leave
[to amend] when justice so requires." Fed. R, Civ. P. 15(a)(2). Although motions to amend
should be granted liberally, this Court declines to give Blankenship leave to amend because
amendment in this case would be futile. Blankenship cannot correct existing jurisdictional
In Moreno, the plaintiff, a former federal employee at the Child Development Center I
("CDC") at Fort Meade, Maryland, alleged employment discrimination on the basis of race,
color, and national origin, in violation of Title VII, and on the basis of a hearing impairment, in
violation of the Rehabilitation Act of 1973,29 U.S.C. § 791 e?seq., following her termination
after an incident where a child was injured at the CDC. 2011 WL 2791240, at *1. The plaintiff
elected to raise her claims through the negotiated grievance procedure but did not pursue her
grievance to arbitration. Id. at *4, *13. The Moreno court found it lacked subject matter
jurisdiction over the plaintiffs claims because she failed to exhaust her administrative remedies.
Id, at *13 ("Because plaintiff elected to pursue her claim via the negotiated grievance procedure,
but did not pursue it to its conclusion, she failed to exhaust her remedies.").
Importantly, the collective bargaining agreement at issue in Moreno, like Blankenship's
CBA, provided that the "Union or the Employer may refer" a "grievance ... not satisfactorily
settled." Id', see CBA Art. 31, § g(2) ("[A] grievance may only be pursued to arbitration by the
Employer or the Union.").
In Smith, plaintiff, a former federal employee at the Department of Housing and Urban
Development, alleged retaliation, a hostile work environment and disparate treatment based on
her race and age, in violation of Title VII, 42 U.S.C. § 1981, and the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). 539 F. Supp. 2d at 119. Smith contended
that his former supervisor attacked his performance, shouted at him, threatened disciplinary
action, revoked a compressed work schedule, issued a proposal to suspend him, and physically
blocked his exit from the office. Id. Smith filed a grievance, but neither Smith nor his Union
pursued his grievance beyond the first step. Id. at 126, 132. The court concluded that Smith did
not "exhaust[ ] his administrative remedies" as to certain claims and dismissed them for lack of
subject matter jurisdiction. Id.
23
defects through amendment. See Equal Rights Or. v. Niles Bolton Assocs., 602 F.3d 597,603
(4th Cir. 2010) ("A district court may deny a motion to amend when the amendment would be
prejudicial to the opposing party, the moving party has acted in badfaith, or the amendment
would be futile."); United States ex rel Wilson v. Kellogg Brown &Root, Inc., 525 F.3d 370,
376 (4th Cir. 2008) (holding that a district court may deny leave to amend when the proposed
amended complaint fails to satisfy the requirements of the Federal Rules of Civil Procedure
because the amendment would not survive a motion to dismiss, rendering any attempt to amend
futile).
IV. Conclusion
For the foregoing reasons, the Court will GRANT Defendant's Motion to Dismiss and
DISMISS THE COMPLAINT for lack of subject matter jurisdiction. (ECF No. 5.)
An appropriate Order shall issue.
/S/I I Iw /
M. HannaMj^
fI/
United States Distri< Judge
Richmond, Virginia
Date:
24
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