Poree v. Morgante, No. 2:2000cv01348 - Document 89 (E.D. La. 2016)
Court Description: ORDER AND REASONS - IT IS ORDERED that Defendants 65 motion to dismiss without prejudice is GRANTED. IT IS FURTHER ORDERED that Plaintiffs 87 motion for an extended continuance is DENIED. IT IS FURTHER ORDERED that this matter is DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan. (bwn)
Download PDF
<![CDATA[
Poree v. Morgante Doc. 89 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CARLOS R. POREE, Pla in tiff CIVIL ACTION VERSU S N O. 0 0 -13 4 8 RICH ARD J. MORGAN TE D e fe n d an t SECTION “E” ( 5) ORD ER AN D REAS ON S Before the Court are Defendant’s m otion to dism iss and Plaintiff’s m otion for an “extended continuance.”1 BACKGROU N D Plaintiff Carlos Poree (“Plaintiff”) began working as a revenue agent for the Internal Revenue Service (“IRS”) on J uly 3, 1967. 2 On Decem ber 17, 1976, the IRS term inated Plaintiff’s em ploym ent for failure to respond to directions from his supervisor, absence without authorization on 14 occasions in a 30 -day period, and failure to provide adequate security for official tax returns and related docum ents. 3 In 1978, Plaintiff was convicted of first-degree m urder and was sentenced on J anuary 3, 1979, to life im prisonm ent without parole, probation, or suspension of sentence. 4 In J uly 1999, a federal district court granted Plaintiff’s application for a writ of habeas corpus and vacated his conviction and senten ce. 5 The court ordered the state to accept Plaintiff’s plea of not guilty by reason of insanity and to conduct a hearing to 1 R. Doc. 65 (Motion to dism iss); R. Doc. 87 (Motion for an extended continuance). R. Doc. 57-1 at 1. 3 Id. at 2. 4 See Poree v . Cain, 1999 WL 518 843, at *1 (E.D. La. J uly 20 , 1999). 5 Id. at *8. 2 1 Dockets.Justia.com determ ine whether Plaintiff should be civilly com m itted pursuant to the insanity verdict. 6 Plaintiff was diagnosed with schizophrenia and com m itted to the custody of the Eastern Louisiana Mental Health System Foren sic Division in J ackson, Louisiana, where he rem ains. In J une 20 0 0 , Plaintiff, proceeding pro se, filed this suit under 42 U.S.C. § 198 3 against Richard J . Morgante, the form er director of the New Orleans District Office of the IRS, seeking reinstatem ent with the IRS, back-pay for the period between the date of his term ination in 1976 and the date he was found not guilty by reason of insanity in 1999, and placem ent on disability until he is declared sane. 7 Plaintiff alleges the district director of the IRS term inated Plaintiff’s em ploym ent in 1976 but that he was reinstated in 1977 prior to his arrest. 8 On J uly 11, 20 0 0 , Plaintiff am ended his pleadings to request that the Court review the record of his purported Civil Service Com m ission appeal from 1976. 9 Plaintiff also alleged in his am ended com plaint that he was suffering from paranoid schizophren ia during the course of events that led to his term ination. 10 Plaintiff alleged that “[t]his m edical evidence alone will cause the court to render a decision in favor of plaintiff.”11 In J anuary 20 0 3, this case was adm inistratively closed and stayed “until such tim e as [Plaintiff] is able to establish that he is com petent to proceed herein.”12 On April 9, 20 14, Plaintiff filed a m otion to reopen this case. After the Court found Plaintiff com petent to proceed, the Court granted Plaintiff’s m otion and reopened the case on March 31, 6 Id. R. Doc. 1 at 4. 8 Id. 9 R. Doc. 4. 10 Id. 11 Id. 12 R. Doc. 33. 7 2 20 15. 13 On April 23, 20 15, Plaintiff filed an am ended com plaint, substituting Secretary of the Treasury J ack Lew (“Defendant”) in place of Morgante. In his m otion to am end his original and am ended com plaints, which this Court granted on J uly 16, 20 15, 14 Plaintiff am ended his com plain t, requesting that he be allowed to “utilize accum ulated sick leave to cover, first, those days he was placed on leave without pay and those days he was placed on suspension,” rather than seek back-pay. 15 Plaintiff argues he was wrongfully term inated due to his m ental illness. In his am ended com plaint, Plaintiff contends he “should have been placed on sick leave and subsequently placed on disability” instead of being involuntarily term inated. 16 Plaintiff alleges, “Plaintiff’s position in this civil action is that he was m entally ill while an em ployee of the Internal Revenue Service. . . . Plaintiff now points to the status report from Felician a Forensic Facility in which three psychiatrists concluded that plaintiff started experiencing m ental problem s as early as 1975 which is m ore than one year prior to his being term in ated by the Internal Revenue Service.”17 On J uly 9, 20 15, Defendant filed a m otion to dism iss this m atter without prejudice. 18 Defendant argues this Court lacks subject-m atter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure because Plaintiff cannot establish that he exhausted the applicable adm inistrative rem edies before the Civil Service Com m ission. 19 13 R. Doc. 56. R. Doc. 67. 15 R. Doc. 64 at 1– 3. 16 R. Doc. 57 at 10 . 17 Id. 18 R. Doc. 65. 19 Id. Durin g a Novem ber 28 , 20 0 0 , prelim inary conference, Plaintiff inform ed the Court that he had not filed any type of adm in istrative claim with the IRS or any other governm ental agency concernin g his dem ands in this litigation. See R. Doc. 10 at 2. Nevertheless, Plaintiff argues he was reinstated to his form er position by the Civil Service Com m ission in 1977. See R. Doc. 1 at 4. Plaintiff concedes he has not exhausted 14 3 Plaintiff filed a response in opposition on J uly 24, 20 15. 20 Defendant filed a reply in support of the m otion to dism iss on August 3, 20 15, 21 and Plaintiff filed a surreply on August 10 , 20 15. 22 Plaintiff has now represented to the Court that he has com m unicated with the Office of Personnel Managem ent (“OPM”) in an attem pt to have OPM consider his claim s. 23 On J une 6, 20 16, Plaintiff filed a “Motion for an Exten ded Continuance.” Plaintiff requests the Court to effectively stay the case “until the Office of Personnel Managem ent has considered Plaintiff’s disability paym ent claim s.”24 STAN D ARD OF LAW “Federal courts are courts of lim ited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claim s.”25 A m otion to dism iss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court’s subject-m atter jurisdiction. 26 Under Rule 12(b)(1), “[a] case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”27 The party asserting jurisdiction bears the burden of establishing that the district court possesses subject-m atter jurisdiction. 28 The Court is perm itted to m ake factual findings when con sidering a Rule 12(b)(1) m otion to dism iss. 29 “It m ay hear his adm inistrative rem edies with respect to m ental illness claim . R. Doc. 57 at 14. Plaintiff also concedes he has “no proof of exhaustion of [the] adm in istrative rem ed[ies].” R. Doc. 68 at 2. 20 R. Doc. 68. 21 R. Doc. 71. 22 R. Doc. 73. 23 R. Doc. 87. 24 Id. 25 In re FEMA Trailer Form aldehy de Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th Cir. 20 12). 26 See F ED . R. CIV. P. 12(b)(1). 27 Hom e Builders Ass’n of Miss., Inc. v . City of Madison, Miss., 143 F.3d 10 0 6, 10 10 (5th Cir. 1998) (internal quotation m arks and citation om itted). 28 Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir. 20 0 1). 29 W illiam son v. Tucker, 645 F.2d 40 4, 413 (5th Cir. 1981). 4 conflicting written and oral evidence and decide for itself the factual issues which determ ine jurisdiction.”30 AN ALYSIS Plaintiff seeks relief under the Civil Service Reform Act of 1978 (“CSRA”). The CSRA established a com prehensive schem e of adm inistrative and judicial review to govern federal em ploym ent disputes. 31 The procedural rem edies the CSRA provides depen d on the type of personnel action involved and the em ployee’s career status. 32 The Act provides non-probationary em ployees with elaborate adm inistrative and judicial rights. 33 Plaintiff was a non-probationary m em ber of the com petitive service and thus entitled to certain protections under the CSRA. 34 Congress enacted the CSRA as a result of widespread criticism of the previous “patchwork” system of adm inistrative and judicial review, which caused the appeals process to be “so lengthy and com plicated that m anagers in the civil service often avoided taking disciplinary action against em ployees even when it was clearly warranted.”35 The CSRA now provides the exclusive rem edial fram ework for federal personnel disputes, and the Act im plem ented an integrated schem e of adm inistrative and judicial review “design ed to balance the legitim ate interests of the various categories of federal em ployees with the needs of sound and efficient adm inistration.”36 Before a plaintiff can bring a suit under the CSRA, he m ust exhaust the applicable adm inistrative rem edies as provided 30 Id. 31 See Lindahl v. Office of Personnel Managem ent, 470 U.S. 768, 773– 74 (1985). See id.; see, e.g., 29 C.F.R. § 1614.50 1. 33 See, e.g., 5 U.S.C. §§ 210 3, 210 5, 210 8 , 430 3, 770 1, 770 3. 34 See 5 U.S.C. §§ 210 2(a)(1), 230 2(a)(2)(B), 7511(a)(1)(A). 35 Id. 36 United States v. Fausto, 48 4 U.S. 439, 445 (198 8). 32 5 under the Act. 37 In Defendant’s m otion to dism iss, Defendant argues Plaintiff cannot establish he exhausted the applicable adm in istrative rem edies and that, at the tim e of his term ination, the applicable rem edies did not provide for review in federal district court. 38 In his opposition, Plaintiff argues he exhausted the adm in istrative rem edies because he appealed his involuntary term ination. 39 Plaintiff argues he appealed to the district director of the IRS but his appeal was denied and the decision was considered final. 40 He avers that he then appealed to the Dallas office of the U.S. Civil Service Com m ission (“CSC”), which denied his appeal, and subsequently to the U.S. CSC in Washington, D.C. 41 In his am ended com plaint, Plaintiff alleges that while he awaited a decision from the CSC in Washington, the district director visited Plaintiff in person to tell him his appeal had been granted and that he would be reinstated to his form er position at the IRS and could return to work once he received written determ ination. 42 Plaintiff alleges he was reinstated before the events underlying his arrest and conviction. 43 This account is contrary, however, to his concession to the Court on Novem ber 28 , 20 0 0 , that he had not filed an adm inistrative claim with any governm ental agency with respect to his dem ands in this litigation. 44 Plaintiff has the burden to establish exhaustion of adm inistrative rem edies. 45 37 See 29 C.F.R. § 1614.310 ; Sm ith v. Potter, 40 0 F. App’x 80 6, 812 (5th Cir. 20 10 ). R. Doc. 65. 39 R. Doc. 68. 40 R. Doc. 68; R. Doc. 57 at 8 . 41 Id. 42 R. Doc. 57 at 10 – 11. 43 R. Doc. 19 at 3. 44 R. Doc. 10 at 2. See W illiam son, 645 F.2d at 413. 45 Beale v. Blount, 461 F.2d 1133, 1140 (5th Cir. 1972) (“[T]he doctrin e of exhaustion of available adm inistrative rem edies requires a federal court plaintiff to establish that all claim s which could have been entertained by the adm inistrative agency involved were in fact presented to that agency for resolution .”). 38 6 Plaintiff m ust show he presented all of his claim s to the CSC, and he cannot raise argum ents related to the adverse action for the first tim e in federal court. 46 In 1976, the Code of Federal Regulations (“C.F.R.”) provided the adm inistrative rem edies for certain em ployees of the U.S. governm ent who suffered adverse actions. 47 Under 5 C.F.R. § 752.20 3, em ployees could appeal adverse actions, including rem oval, 48 to the CSC within 15 days of the effective date of the rem oval. 49 The decision of the office of the CSC that had appellate jurisdiction was final, according to the C.F.R., but either party to the appeal could petition the Appeals Review Board to reconsider the decision. 50 If the Appeals Review Board agreed to reconsider the CSC’s decision, it would issue a written decision, which was fin al. 51 If corrective action was recom m ended, the C.F.R. instructed the agency to report prom ptly to the board that the corrective action had been taken. 52 The CSC’s decision after review of an adverse action was final unless the Appeals Review Board agreed to reopen the CSC’s decision, in which case the board’s decision would be final. As a result, federal district courts m ay not have had the ability to review CSC or Appeals Review Board decisions “where (1) statutory procedure [had] been fully com plied with, and on the face of the record before the court, there is lacking proper eviden ce of arbitrary (illegal) action; (2) where there [was] no defect of jurisdiction in the adm in istrative agen cies; (3) the determ in ation rest[ed] solely in the discretion or judgm ent of the adm in istrative agen cies (in weighing the facts and arriving at a plausible 46 See id. See 5 C.F.R. § 752 (1976). 48 5 C.F.R. § 752.20 1(b)(1) (1976). 49 5 C.F.R. § 752.20 3 (1976). 50 5 C.F.R. § 752.20 3(b) (1976). 51 5 C.F.R. § 772.311(g) (1976). 52 Id. 47 7 conclusion).”53 A 1958 book on civil service law provides further explanation: [I]t is only where solely an issue of law is involved, som e patently illegal action, som e action beyond the lawful authority of the adm inistrative agency, that the determ ination of the adm inistrative agency will not be deem ed to be “final and conclusive” but subject to lim ited review by the courts. The courts have deliberately hesitated to assum e jurisdiction (wherever they could avoid it) where the adm in istrative determ ination by law is m ade final and conclusive. 54 The CSRA, effective J anuary 11, 1979, abolished the CSC and replaced it with OPM and the Merit System s Protection Board (“MSPB”). 55 Plaintiff adm itted the Court in Novem ber of 20 0 0 that he had not filed any type of adm in istrative claim with the IRS or any other governm ental agency concerning his dem an ds in this litigation. 56 Nevertheless, in his opposition to Defendant’s m otion to dism iss filed J uly 24, 20 15, Plaintiff argues he has exhausted the applicable adm in istrative rem edies, 57 though Plaintiff concedes he has not exhausted his adm in istrative rem edies with respect to his m ental illness claim . 58 Plaintiff also concedes he has no proof of any purported exhaustion of adm inistrative rem edies because all records from the U.S. CSC were destroyed seven years after it was abolished. 59 Plaintiff told the Court during status conferences that he does not have any copies of the records from his appeals with the U.S. CSC. In his m otion for an “exten ded continuance,” Plaintiff asserts that he has com m unicated with OPM and that OPM will consider his claim if his filing has been delayed because of m ental incom petence. 60 Plaintiff has no objection to pursuing his 53 H. Eliot Kaplan, The Law of Civil Service 241 (Matthew Bender & Com pany 1958 ). Id. 55 See 5 U.S.C. § 110 1. 56 R. Doc. 10 at 2. 57 R. Doc. 68. 58 R. Doc. 57 at 14. 59 R. Doc. 68 at 2. 60 R. Doc. 87 at 1– 2. 54 8 claim s through the applicable adm in istrative rem edies. 61 Accordingly, the Court will grant Defendant’s m otion to dism iss this case and will do so without prejudice. A court’s dism issal of a case for lack of subject-m atter jurisdiction is not on the m erits and does not prevent the plaintiff from pursuing his claim in another forum . 62 The Court cannot grant the m otion to stay and retain jurisdiction over this m atter. 63 Plaintiff m ay now seek review of his claim s by OPM, which he represents has indicated it will consider whether his filing was excusably delayed because of m ental incom peten ce. 64 When Plaintiff receives a decision from OPM, he m ay seek review by the MSPB. 65 After receiving a final order or decision from the MSPB, Plaintiff m ay file a petition to review the MSPB’s decision in the United States Court of Appeals for the Federal Circuit. 66 This Court will not have the power to review a decision from the MSPB. CON CLU SION For the foregoing reasons; IT IS ORD ERED that Defendant’s m otion to dism iss without prejudice is GRAN TED . 67 IT IS FU RTH ER ORD ERED that Plaintiff’s m otion for an extended continuance is D EN IED . 68 61 Id. 62 See Hitt v. City of Pasaden a, 561 F.2d 60 6, 60 8 (5th Cir. 1977). See Hom e Builders, 143 F.3d at 10 10 (Under Rule 12(b)(1), “[a] case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”). 64 See R. Doc. 87. 65 See 5 U.S.C. §§ 7513(d), 770 1. 66 5 U.S.C. § 770 3(b)(1)(A). 67 R. Doc. 65. Defendant’s m otion to continue is D EN IED AS MOOT. R. Doc. 8 8. 68 R. Doc. 87. 63 9 IT IS FU RTH ER ORD ERED that this m atter W ITH OU T PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 2 7th d ay o f Ju n e , 2 0 16 . __________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 10 is D ISMISSED
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
