-FBS O'Neal v. Donahoe, etc., et al, No. 2:2010cv00504 - Document 19 (E.D. Va. 2011)

Court Description: OPINION AND ORDER noting that Patrick R. Donahoe is substituted automatically for his predecessor, John E. Potter, as defendant, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure; granting defendants' motion to dismiss and dismissing this matter with prejudice; denying plaintiff's motion for leave to file an additional brief. Signed by District Judge Mark S. Davis on 8/5/11; filed 8/8/11. (mwin, )

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division PAT H. O'NEAL, Plaintiff, Civil Action No. v. PATRICK R. 2:10cv504 DONAHOE, Postmaster General, and UNITED STATES POSTAL SERVICE, Defendants.1 OPINION AND This matter defendants, States Postal Service to plaintiff Pat H. jurisdiction relief Plaintiff The the be the O'Neal pursuant granted to dismiss failing for has to leave been a motion Amended to for to fully or state by- the a an briefed, "Postal filed by subject-matter Federal claim 12 (b) (6). file the Complaint lack of of Rule filed Donahoe and the United "Defendants" 12(b)(l) pursuant filed a motion motion First Rule for on Patrick R. {"Plaintiff") to and Court (collectively dismiss Procedure, can before Postmaster General Service"), Civil is ORDER Rules upon In which response, additional and of is brief. ripe for 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Patrick R. Donahoe is automatically substituted for his predecessor, John E. Potter, as defendant in this action. decision. motion record, as the the Although to For dismiss, the Court facts decision argument. the Plaintiff after has and legal R. reasons Civ. for can and be granted, not P. stated motion to dismiss that arguments would requested examination determined process Fed. has are be 78 (b); herein, failure to of a a hearing the hearing is adequately aided E.D. the presented, Loc. Court the unnecessary, significantly Va. the and briefs on by Civ. GRANTS R. and oral 7 (J) . Defendants' state a claim upon which relief Plaintiff's First Amended Complaint is DISMISSED, with prejudice.2 I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY3 Plaintiff Postal 2591"), completed Service, on utilizing July "answered all an 6, application Postal 2007. questions First for Service Am. fully and to employment Form Compl. the best 2591 31 with ("PS the Form 1. Plaintiff of his knowledge." 2 The Court has reviewed Plaintiff's additional proposed brief. Even if the Court were to grant Plaintiff leave to file such brief, it would not alter this Court's determination because it presents no analysis Plaintiff's opposition. to file such brief is that was not previously presented in Therefore, Plaintiff's motion for leave denied. 3 The facts recited here are drawn from Plaintiff's First Amended Complaint and are assumed true for the purpose of deciding the motion to dismiss currently before the Court. They are not to be considered factual findings for any purpose other than consideration of the pending motion. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (n[l]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint."). Id. The form convicted of convictions but required a crime, and all allowed him vacated, to omit on convicted of a crime. to approval a position as 11, 2007, Compl. the 1 FBI back and 2. began California, record. a the and 2591 been misdemeanor federal courts," been set aside, Id.; that had PL's he Ex. 1. had not been course in on of misdemeanor Plaintiff was appointed the July 21, of Service 2007. Plaintiff's arrest solicitation Postal and on July First background conviction, prostitution in Am. check, dating Monterey, and a dismissed contempt of court charge in Virginia on id. that arrest and that has application, Id. March f 4. S[ 3. 19, The 2008, Plaintiff about his misdemeanor arrest. asserts state he 1. duties the for Virginia. Plaintiff Ex. if felony sealed." Form his his During 1986, in Letter Carrier discovered to Beach, a disclose "all or PS PL's of to "any conviction expunged, indicated Upon including convictions annulled, Plaintiff Plaintiff such arrest and purged Postal Service inquiring f 4. about a letter his criminal had forgotten Plaintiff that he should have been dismissed a year from the court to Nevertheless, responded Id. sent records in 1991. Id. after SI! 4- 5. As 2008, described Plaintiff "favorable in the received action was First a taken Amended report in regard Complaint, from on Postmaster to Mr. O'Neal's March Shaw 25, that background check after Plaintiff carrier a was on complete promoted July Plaintiff 19, to a a Letter of Plaintiff's effective 91 Id. of 8. the regular Less of Form from for 12, 2008. terminated from employment 12, IcL_ 3 than Id. 9. According to the First misdemeanor solicitation remained the in records they should have been request, the dismissed 'Improper Shaw, for received terminating application materials, Plaintiff Id.; PL's was, relieve the conviction 2. Court However, response of to any state California or local 9[Sl Order 5, in fact, Pl.'s on of or Ex. for 2. and County conviction even of Dismissal office, though Plaintiff's October to December Plaintiff's Upon question for public on error, 16. obligation direct agency, State Lottery." clerical Plaintiff the any arrest California, the questionnaire or application a Id. of against defendant in of Service Complaint, prostitution because charge Ex. of Postal Amended expunged. Superior the the later, 10. 2008. with f letter Plaintiff Postmaster 6. a Application 2008, his 1 weeks two as citing 2591, falsifying Id. status Removal On October 29, employment record." 7. PS Decision December f "Letter Conduct/Falsification Id. of full-time 2008. received Employment.'" review Monterey, 26, 2010. did disclose contained for in "not this any licensure by contracting with the The answers crux on of the Plaintiff's application the best of his ability, Am. 14. Compl. SI Defendants various Id. 9[ Labor 2591, 13. Relations as oral contracts breached 13-15. estopped his Manual disclose his indicating Plaintiff that record because [Plaintiff's] employment" 2008. action Plaintiff his First Amended Defendants the filed this motion filed to lawsuit Complaint a motion dismiss motion for leave to Plaintiff's Employee PS Form Id. Defendants for failing Shaw's taken on to was promotion were to report regarding 17-19. Id^ 51 and implied." employment. that been when that Postmaster had First parties employment of to breached and the Plaintiff's asserts and that application, between Plaintiff's "favorable argues Defendants' employment terminating faith obligation. express cites agreements terminating criminal the good "Defendant[s] both Plaintiff after he provided in Plaintiff employment, and Additionally, from that employment, contracts, and by is he had fulfilled his Specifically, Defendants 55 and for Therefore, terminated written argument on October February dismiss fully on 21, 12, briefed, 2010, 2011. March on 1, In July and 19, filed response, 2011. Plaintiff file an additional brief on March 23, After filed 2011. a II. STANDARD OF REVIEW A. Subject-Matter jurisdiction Defendant claim seeks pursuant to Procedure, which claim to due A.W. ex 219, 221 seeking rel. to burden invoke States, v. 945 lack 2008) . the F.2d 765, the of that to Federal move Cnty, Sch. filed Bd., jurisdiction, the contract of Civil dismissal of a jurisdiction. 548 suit, F. has Supp. and Plaintiff Court (4th Cir. of Rules for this Fredericksburg & 768 breach subject-matter Having Court's Richmond, of defendant Fairfax proving jurisdiction. a Court's Va. Plaintiff's 12(b)(l) permits Wilson of dismiss Rule the (E.D. to 2d thereby bears the subject-matter Potomac R.R. v. United 1991). B. Failure to State a Claim In addition complaint must showing P. that 8 (a) (2). complaint upon which "To survive to 129 relief S. Twombly, the is subject to a can be 1937, U.S. to fails meet to for granted. Fed. dismiss, a matter, accepted as 1949 544, 570 on (2009) its relief." R. true, face.'" "The of Fed. to to P. a Civ. the claim 12 (b) (6). must contain "state Ashcroft Bell R. state Civ. a the claim requirement, complaint (quoting (2007)). this failing to plausible jurisdiction, and plain statement dismissal motion is subject-matter entitled plaintiff that 550 short a factual Ct. "a pleader relief sufficient establishing contain If is to a v. Atl. plausibility claim Iqbal, Corp. v. standard is not akin to than a Id. the a sheer possibility A claim court is true, [the] the the of plaintiff is 765 of plead a cause required v. claim, of Gastonia, E. his 1949-50. to I. DuPont If of complaint the case However, justice." Fed. 635 F.3d 634, be R. 642 III. for more nallow[] the defendant is facts [the] that P. & Co., does a not a for F.3d 761, cross the recitals construe a to prove claim 324 Iqbal, 8(e); (4th Cir. "While complaint, support threadbare should Id. sufficient in taken "[t]hreadbare action." dismissed. Civ. must be than plaintiff court that alleges de Nemours from must the facts the facts more matter, allege 2003). in to do evidentiary asks acted unlawfully." that the plaintiff must elements Cir. as that it Id. an Bass threshold facts has inference as relief." "so reasonable but contains charged with pleading is at it not plaintiff plausible when plaintiff the case, (4th a defendant the misconduct alleged." Although recitals that plausible to draw the liable for as *probability requirement,' 129 the to S. a Ct. pleadings see Crosby v. City 2011). DISCUSSION A. Subject-Matter jurisdiction The has Court, as subject-matter usually a jurisdiction. established "arising under the threshold matter, when the determine whether Subject-matter case Constitution, must presents laws, or a jurisdiction federal treaties of it is question the United States," 28 diversity U.S.C. that § U.S.C. of 1332. shall the have contends unfounded. In a Appeals breach 263, for premised statute. but case, or "the not for his United claim was the for (3d an under Postal when the improvement Cir. 1994). 39 U.S.C. § independent its decision Id. and at text cause in 261-62. of 39 Mot. Service Licata the After U.S.C. district v. evaluating § over 409, is the all legally 1. and of court's held in a that suit alleging to a compensate USPS, district plain courts States Court failed the § Defendant 409 (a) grant action, on U.S.C. employee the asserts district Licata did not of a 28 contract 39 Dismiss § an Although 409(a) under jurisdiction by ideas. of Service." U.S.C. Postal breach jurisdiction Service suit. jurisdiction reversed 39 complete Plaintiff the United subject-matter proper contract 264 of the States Postal of Circuit to arises the exists however, exclusive against Third lack concluded that workers that there parties Service Plaintiff's the employee history by against of the decision squarely on point, jurisdiction brought when Def.'s Rebuttal PL's Resp. for dismissal Postal original that among present provides brought or jurisdiction the which actions 259, In against 409(a), 1331, citizenship subject-matter claim the § 33 court F.3d had aggrieved postal Third language the Circuit of the legislative Third Circuit concluded, "we cannot imagine how Id. 261. jurisdiction more plainly." The also 39 United appears U.S.C. that 1379, to § this States have 1385 n.6 albeit (4th courts in 1989 WL curiam 'all 39 U.S.C. 100668, table 8, 2005) § claim for 7:04cv00276, 409(a) *1, *2 decide agree that jurisdiction by or the the see Dist. whether 39 Postal also LEXIS the to the Postal [t]he district Postal F.2d 1388, (unpublished Freeman § had over breached his Potter, No. (W.D. grant Service per court 409(a) v. *2 jurisdictional . the district at F.2d . 884 Service 3488, context the U.S.C. of 501 . to Frank, that Circuit reading against Graham v. pursuant Fourth Bloomberg, (affirming (proceeding under to v. grant factual 1989) that U.S. precise Cir. employment); 2005 the (4th jurisdiction employee's contract at 409(a)."); decision) subject-matter an § the brought could plain-language {"We gave actions for White 1974) Act a in See Cir. Reorganization Appeals such not presents. Postal Service,' of employed 409(a), matter Court at Congress Va. of had 39 Sept. U.S.C. breached a settlement agreement with an employee).4 4 Defendants cite Circuit's 1989), which as decision of in the subject-matter appeal Service. of his authority in Yokum Fourth v. their USPS, Circuit jurisdiction termination for F.2d affirmed when from position 877 the with Fourth (4th dismissal plaintiff employment the 276 Cir. for lack sought the an Postal However, Yokum is inapposite because jurisdiction in that case was not premised on 39 U.S.C. § 409 (a) , but instead arose under the statutory framework established for This for the that Court district 409(a) court against the States, 58 statutory to F.3d Service). breach 409(a) Therefore, of Licata this subject-matter was Court the to the by the that in dismiss Postal between Fourth concludes jurisdiction motion that the consistency and United preempted with the brought v. (holding view on claims Kroll relations the Appeals jurisdiction 1995) claim of of the Third Circuit's contract Cir. labor in Court employees. (6th light decision Defendant's the Circuit's 39 U.S.C. this § matter.5 pursuant to Rule must be denied. administrative actions. This in States confers contract discussed above, confers 12(b)(1) 1092 of with 39 by governing Circuit's United breach Service However, decisions Title hear" 1087, scheme the "disagree[d] of Postal plaintiff's 5 that Sixth Circuit section Third notes Id. and judicial review of adverse employment at 278. conclusion is also consistent with recent United States Supreme Court decisions that clarify the difference between dismissal under Rules 12(b)(l) and 12(b)(6). These decisions articulate wa marked desire to curtail . . . drive-by jurisdictional rulings which too easily can miss the critical differences between true nonjurisdictional limitations Elsevier, (internal Y & line H Inc. Corp., rule v. citations for jurisdictional 546 Muchnick, and U.S. jurisdictional on causes of 130 quotations 500, determining S. 515-16 whether in nature). 10 Ct. omitted); (2006) a conditions action." 1237, see 1244 also (2010) Arbaugh v. (outlining statutory and Reed a bright provision is B. Failure to State a Claim Although this jurisdiction Complaint over must 12 (b) (6) Court this Plaintiff the alleges contract was therefore, be Plaintiff that facts no Plaintiff he dismissed not that a Amended pursuant justify a plausibly state First his Defendants to subject-matter met alleges between fails lack Plaintiff's has facts created not matter, nevertheless because establishing does to burden legal suggest and claim Rule of remedy. that any Plaintiff, upon which and relief may be granted. It appears Complaint Plaintiff extricate to that his Civil Service Reform seq., and the Postal et seq., labor which relations Plaintiff the set to Collective Association of employer, so grievances set Williams, 482 of 1978 the the his Letter to forth in U.S. 386, independent and being (1987) agreement of U.S.C. 39 bound that is by ("[A] the 7501 U.S.C. § appears the et 101 that Postal the National Service procedure See Caterpillar plaintiff permitted agreement, 11 § to independently from between the Amended established for also claims that Agreement. 396 5 It Agreement First connection ("PRA"), Service. Carriers avoid his any ("CSRA"), contract Bargaining as from in statutory procedure Postal assert collective-bargaining rights claims sought Reorganization Act forth with seeks Act has to as for Inc. covered by assert including v. a legal state-law contract rights, so long collective-bargaining pleading his reliance First on is left a faith on and the to employment bare from Postal Plaintiff the the the Employee Id. he his omitted in f or for his Postal Service the he because PS Form Id. 9[9l he set 14-16. By to avoid by the he any Postal was good 13-16. in by its allows the terms dealings that even of with though to do so conviction, or in applicants aside, Manual Therefore, permitted his of formed, Relations bound Thus, "in accepted an offer contract was provided employment fg[ about 2591 a statute, and once Labor was he forgot as and also maintains history, dismissed, a Handbook Plaintiff sealed. and Compl. faith, were that Employee Am. not employment. he First criminal that knowledge," the is Plaintiff for Service of and 13. good that expunged, terms way Agreement alleges his upon original). a to application Postal the alternative, charges of Manual Plaintiff. the 2591 Handbook.6 claims, because, Form in such assertion Plaintiff the best incorporating and PS in afforded Service entered into a contract answers relied (emphasis Bargaining with Specifically, contract Complaint protections Collective Plaintiff the agreement.") Amended the applicable as vacated, Plaintiff to omit annulled, argues that 6 Plaintiff neither references nor attaches any document that he claims to Instead, 2591 be his the contract claim appears itself or an oral between to be him and the predicated on Postal either contract between the parties. 12 Service. PS Form he was when his in flaw not legal Id. in (w[T]he of SI 1001 (c), position. Postal Postal Compl. f 2. letter wrongfully is an to that employment to shall the for does of the contract terminated with the of nature Postal of to 39 was such § such a he received Plaintiff's Service and U.S.C. held carrier. an First Am. employment not § establish he that letter U.S.C. governing positions, that are officers Service allege but 39 all statute admits position the The employees contract, appoint Postal not Service positions. executive Plaintiff Therefore, Postal their Service."). only his carrier and permits Indeed, to contract Service Plaintiff "appointment" terms appointed contracts and the argument pursuant the to 14. this relationships employment as contractual, instead statutory. Because appointed statute and Postal necessarily several contract of the statutorily employees the breached employed 1001(a) but according employment. instead a standing Defendant The are good not specifies employed Service without prior that merit. form contract action against Postmaster Gen., 265 F. his This holding the basis the Supp. Postal contract, breached decisions can by that employment that a Postal 2d 13 Plaintiff's conclusion for employees 1309, is claim contract consistent there is Postal employee's Service. 1311 no are that is with employment breach See Fraginals v. (S.D. Fla. Apr. 24, 2003) ("Postal Service employment contracts. Campbell v. USPS, at (E.D. employees *7-8 claim that Service F.2d are (D. claim and pursuant sue for Boyd (W.D. to USPS, result that Service aff'd Miles to sue U.S.C. 1983) § statute), to an on v. be USPS, 1208(b) for breach of of a to 561 752 F.2d statutory contract). 14 in F. breach to a of right at receive the 1349 is appointed, nonunion claim without Cir. but as Postal (9th Cir. (9th *11 their and not plaintiff's 410 to 1208(b)); employment' for right 15022, in 627, appointed § position F.2d are are positions, 1991) contract the employees to of find LEXIS op., Supp. U.S.C. 39 Dist. 1348, employees (5th Cir. 664 employment, contract grounds, Postal *1 employees postal reinstated other that U.S. appointments limplied at anomalous contract contracts plaintiff's aff'd without USPS, Postal 1983 the 3381, Postal the plaintiff's (n[A]s through personal (acknowledging 39 1, breached see in 82-126R, failure merit."), But No. LEXIS Postal v. would be Dist. the Baade it to positions."); created when 2449, employment rights of his of Aug. to because pursuant reinstatement because regarding was LEXIS that to {dismissing App. statute, Wash. 1990) {dismissing holding employment a 1987) employed U.S. decision); table U.S. 1990 employment letter 1991 breach v. a not appointed 86-3609, 28, for are appointed pursuant 1459, Me. No. Mar. contract (unpublished 631 Civ. La. sent him employees 925 a They are 1985). 1977) finding employees Instead Postal any of Service deriving employees applicable these pieces of Service. Postal 39 U.S.C. method § for employment 443-45 and in 101 the In aggrieved Postal Service grievances. (1988). United Pursuant to the By to PRA, and enacting streamline States the Postal Rep. No. 3649, doing 3650 (codified so, Congress employees States statute, contract, H.R. U.S.C.C.A.N. seq.). CSRA, United Act, et the intended reorganize 1970 employment Agreement. Congress Reorganization reprinted an Bargaining legislation, process from are protected by Collective employment (1970), rights v. to there redress 484 exist as provided seek Fausto, 91-1104 U.S. the a of 439, following procedures: Sub-chapter covers major office. to II Id. the § of adverse the United Circuit. appellate States otherwise not in id^ Court regulation of II for an Systems ultimately the Federal 7703(b)(l). the dismissal, The but the discharge order was abuse of discretion, or required been and from entitled appeal Merit Appeals 7511-14, removal may 7513(d), accordance with having by § § employee the 7703(a)(1) & then set aside procedures unsupported including to only upon a showing that "arbitrary, capricious, an without U.S.C] subchapter order (MSPB), Id^ §§ court may [5 A discharged of dismissal Protection Board 75, actions, 7512(1). protection agency's to Chapter law by . . . law, ; followed substantial obtained rule, ; evidence." or [or] Id. § 7703(c) Yokum notes v. USPS, that procedures 877 F.2d Plaintiff by 276, did, appealing 278 in (4th fact, Defendants' 15 Cir. take 1989) . advantage discharge This Court of these decision to the Merit Systems suit in Protection this Court administrative statute to to recasting claim. the decisions such already contract as Wills App. per curiam of summary attempted recent referenced O'Neal v. 2009). discharge his EEOC the No. Plaintiff's acknowledgement Merit to that Systems no of as a at the review (4th Cir. the employment this has from re- breach 16 F.3d of 414, (unpublished district court's when by Congress Plaintiff 1994) previously now contract by of Mgmt., defendant claim of precluded filing Pers. (affirming the breach is is proceedings and because by *5 and established Plaintiff of avail, those seeking Office relitigate Shaw, by for v. for 7 In his previous case, his provided claims decision) judgment "to review framework 1417, LEXIS table judicial grievance employment suit. the outcome review, filed utilized that presented here, such his U.S. the method subsequently already termination, statutory proper sought litigating 1994 the and Plaintiff and employment Because provides his circumvent his ("MSPB"), 2009.7 procedures appeal attempting in Board the grant plaintiff brought under the Plaintiff's Complaint requested review of from employment charge, and 2:09cv311, Amended the attached Docket Complaint case with was Protection an the a No. in mediation 3 (E.D. that appeal Board. Postal agreement. Va. case from Service, July included decision v. O'Neal a Shaw, 10, an of No. 2:09cv311, Docket No. 18 (E.D. Va. Mar. 25, 2010). It is well established that a court may take judicial notice, pursuant to Rule 201 of the Federal Rules of Evidence, of public court records and parties' admissions. Colonial Penn Ins. Co. v. Coil, may the 887 take same Mortg. F.2d 1236, 1239 judicial notice person, Corp., 598 (4th Cir. of prior property, F. Supp. and 2d 741, 16 1989) (noting that judicial proceedings issues); Roach 747 n.8 (E.D. v. Va. the court involving Option 2009). One CSRA" through (affirming when other the they district were assertion means); that "no the Yokum, court's more supported by substantial dismissal than Postal 877 an employee of the employment not by contract but by the protection Collective adverse and and any Plaintiff judicial prior an CSRA, already and in grievances theory under which he is a as the plausible true, motion to is legal would prejudice. brief foregoing dismiss is was not Any availed this as a to therefore Bargaining himself case any right is of of Court with a of enjoyed applicable dispute derive an from Agreement. administrative merely breach secured recasting contract his claim, legally cognizable entitled to a remedy. reasons, him GRANTED Plaintiff's his Instead Plaintiff and Collective Plaintiff justification entitle order appointment. PRA, Agreement. applicable review, claims reiterate Service, contract, the Plaintiff has not presented this For Postal action against him must has employment employment the Bargaining employment statutes Since of to n.5 CONCLUSION an from 281 evidence"). as rights at plaintiff's dismissal Plaintiff, deriving of attempt Service's IV. his F.2d to why relief. and motion the this for DENIED. 17 has failed facts pled, Therefore, matter leave to is to provide even Defendants' DISMISSED, file an taken with additional The Clerk is DIRECTED Order to all counsel IT IS to send a copy of this Opinion and of record. SO ORDERED. /s/ Mark S. Davis United States District Judge Norfolk, August 5, Virginia 2011 18

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