Vaughn v. Federal Aviation Administration et al, No. 5:2010cv00055 - Document 17 (E.D.N.C. 2011)
Court Description: ORDER granting 11 Motion to Dismiss - Signed by Senior Judge Malcolm J. Howard on 01/10/2011. Copies served. (Baker, C.)
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Vaughn v. Federal Aviation Administration et al Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO.: 5:10-CV-55-H MICHAEL A. VAUGHN, Plaintiff, v. ORDER UNITED STATES OF AMERICA,' Defendant. This matter is before the court on the government's motion to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted. responded, and the government has replied. Plaintiff has This matter is ripe for adjudication. STATEMENT OF THE CASE Pro se plaintiff Michael A. Vaughn was formerly employed as an Airway Aviation Transportation Administration February 10, asserting 2010, claims Systems ("FAA"). Specialist He with filed the this Federal action and amended his complaint on March 24, of negligence, negligence per se, on 2010, negligent 'Plaintiff named the Federal Aviation Administration, J. Cunningham, Timothy L. Jackson, Donald W. Stell, and D. Smith as the defendants to this action. Pursuant U.S.C. § 2679, the United States was substituted as the defendant by notice filed April 23, 2010 [DE #13] . Kevin Steven to 28 party Dockets.Justia.com infliction of emotional harm negligence claims"), as felony (collectively referred to as defamation and defamation per se, deprivation of rights under color of "the as well law and constructive discharge. At the time the instant action was resigned his position with the FAA. filed, plaintiff had Following his resignation, plaintiff filed a charge of unfair labor practices with the Fair Labor Relations Authority ("FLRA") to Protection the Merit Systems and appealed his termination Board ( "MSPB" ) alleging He was denied relief by both agencies. constructive discharge. Plaintiff did not file an administrative claim pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671 et ~ ("FTCA" ) STATEMENT OF THE FACTS Plaintiff was an employee of the FAA from May 2006 until he tendered his resignation on February 23, 2007. Plaintiff was employed as an Airway Transportation Systems Specialist in the Raleigh System Support Center in the Raleigh-Durham area. office is responsible Navigational Aids, and for the Radar maintenance and of Automation This Communications, Systems in the Raleigh-Durham area. Plaintiff's position required travel to and from different locations to provide maintenance for the equipment. Travel takes place in a government vehicle and occurs during work hours. 2 Located at the plaintiff's assigned Cunningham, Donald Raleigh office Stell, Air was also Steven the Smith, whom plaintiff originally named as As a new hire, Traffic Control workplace and defendants Tower, of Timothy Kevin Jackson, to this action. plaintiff was paired with senior technicians in the office for on-the-job training. Through on-the-job training and correspondence classes, plaintiff was to become certified to maintain various pieces of equipment. In his amended complaint, excluded from pizza luncheons, plaintiff alleges that he was denied training on certain tasks in order to prevent his certification as a "navaid" technician, made "the butt of perverted jokes," subjected to the reckless driving of a coworker, retaliated against for reporting unlawful and inappropriate conduct of coworkers, and ultimately forced to resign his position. COURT'S DISCUSSION The government moves for dismissal on the grounds that plaintiff cannot establish subject matter jurisdiction and has failed to state Plaintiff has a claim responded, upon which relief can be reasserting the allegations granted. set forth in his amended complaint and objecting to the substitution of the United States as defendant. He states he has no quarrel or intention to sue the country of which he is a red, white and blue patriot and served proudly and honorably 3 from 1983 to 1994 as a member of the United States Air Force. The Plaintiff was not harmed by the United States of America. The Plaintiff was harmed by the individual dereliction of duty by specific federal employees of the Federal Aviation Administration acting well outside the scope of their lawful duties violating both federal law, state law, agency regulations and common decency. (Pl. 's Opp'n to Def.'s Mot. Dismiss at 12.)2 I. Motion 12 (b) (1) A motion to dismiss under Rule 12 (b) (1) of the Federal Rules of Civil Procedure challenges subject matter jurisdiction. The plaintiff bears the burden to subject matter Because of the fundamental nature of the lack-of jurisdiction. subject-matter-jurisdiction defense basic establish principles of judicial and federalism, its centrality this to may defense the be asserted at any time or raised sua sponte by the court. ~, Clark v. position of Paul Gray, the Inc., government 306 U.S. 583 that claims one (1939). through It is the four of 2 The court overrules plaintiff's objection to the substitution of the United States as the defendant in this action. When a federal employee is sued for wrongful or negligent conduct, the Attorney General is authorized "to certify that the employee 'was acting within the scope of his office or employment at the time of the incident out of which the claim arose.' upon the Attorney General's certification, the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee. The litigation is thereafter governed by the Federal Tort Claims Act." Osborn v. Haley, 549 U.S. 225, 230 (2007); 28 U.S.C. § 2679 (d) (1) . 4 plaintiff's complaint (the negligence and defamation claims) must be dismissed for lack of jurisdiction. As suit a sovereign entity, unless it has Mitchell, 445 U.S. the consented 535, 538 United States to be sued. is immune United (1980). Moreover, from States v. the United States may define the terms and conditions upon which it may be sued. Honda v. Clark, 386 U.S. 484, 501 (1967); Soriano v. United States, 352 U.S. 270 (1957) In order to proceed with his tort claims, plaintiff must have first submitted an administrative tort claim with the FAA. 28 U.S.C. § 2675(a). Because he failed to do so, plaintiff is unable to establish subject matter jurisdiction over claims one through four, and those claims must be dismissed for subject matter jurisdiction. 41 (4th Cir. 1990) Plyler v. (administrative United States, claim lack of 900 F.2d requirement is jurisdictional and may not be waived) . II. 12 (b) (6) Motion Relying on 18 U.S.C. five of plaintiff's "felony deprivation §§ 241, 242, 243, 1505 and 1519, claim complaint of purports rights under to assert color of a claim for law." The government moves to dismiss this claim pursuant to Rule 12(b) (6) for failure to state a claim upon which relief can be granted. Viewing the allegations of plaintiff's complaint light most favorable to plaintiff as the court must, 5 in the see Ibarra v. United States, fails. 120 F.3d 472, Title 18, conspiracy likewise 474 (4th Cir. United States Code, statute. criminal Sections statutes. criminal penalties, 245, these 1989 126783 WL (4th right of private 483 F.3d 1070, 1076 581 of § 18 U.S.C. Sales Corp., §§ 241 and 21 F.3d 502, Aldabe v. Therefore, 2 (1st Cir. Aldabe, for Reedy, 1989) No. 20, (rejecting 241, 1341 and 1343 because accord Andrews v. Heaton, (no private right of action 371, 1001 1341, Oguaju, 1503 and 26 76 Fed. App'x 579, (affirming dismissal of claims for violation 242); 511 for violations of 18 U.S.C. 876 F.2d 1, 241, United States v. 2003) §§ §§ (10th Cir. 2007) 7214(a)); (6th Cir. are provide statutes 1519 Oct. action exists); for violation of 18 U.S.C. U.S.C. and See Tribble v. Cir. claims for violation of 18 U.S.C. no 1505 they do not give rise to civil liability or authorize a private right of action. 89-6781, claim five Section 241 is a criminal 242, While 1997), 616 claim §§ 1989) of v. (2d Cir. 1994) Overseas Military (no civil liability 242 and 1385); Cok v. Cosentino, (same for 18 U.S.C. 241, F.2d 1089, five Robinson 1092 (9th Cir. plaintiff's §§ 1980) complaint 242); (same). must be dismissed. III. Constructive Discharge The government also moves to dismiss plaintiff's claim for constructive discharge based upon plaintiff's 6 sixth failure to appeal the adverse MSPB decision, collateral estoppel, and failure to state a claim upon which relief can be granted. The MSPB is the exclusive forum in which to seek redress against the federal government for adverse employment actions, including constructive discharge. See 5 U.S.C. § 1204 (a) (1). An appeal of a final decision by the MSPB in nondiscrimination cases must be filed with the United States Court of Appeals for the Federal Circui t. 28 U.S.C. § 1295 (a) (9) (vesting exclusive jurisdiction of appeals of MSPB decisions in Federal Circuit) . Plaintiff filed a claim with the MSPB alleging constructive discharge. that upon plaintiff review of had the voluntarily evidence, resigned the and MSPB determined dismissed appeal, finding as follows: Based on the above, I [Administrative Judge Barbara S. Mintz] find the [plaintiff's] claims, if proven, do not constitute coercion, duress or intolerable working conditions that gave the [plaintiff] no choice but to resign. To me, if proven, the [plaintiff's] claims amount to a listing of the everyday stress-producing occurrences an employee encounters when he is compelled to work with others whose habits he does not approve of and who decide to shun him after he reports their work habits to management and characterizes their behavior in an inflammatory way. [A]n employee is not guaranteed an environment free of stress. has his any he Accordingly, because the [plaintiff] identified no circumstances surrounding decision to retire that might reflect deprivation of free choice on his part, has failed to establish that the Board 7 his has jurisdiction over his appeal appeal must therefore be dismissed. (MSPB Initial Decision at MSPB's decision, August 6, MSBP's decision, 2008. which Had it was his was constructive Plaintiff denied plaintiff by sought final desired incumbent with the Federal Circuit. hear 7.) upon and review of decision further him this to issued on review of file the an the appeal This court is without jurisdiction to discharge claim and it is, therefore, dismissed. CONCLUSION For the foregoing reasons, [DE #11] defendant's motion to dismiss is GRANTED. The clerk is directed to close this case. p This / () -day of January 2011. At Greenville, NC 1131 8
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