VIRGINIA M. HERNANDEZ CONVINGTON, District Judge.
This cause is before the Court pursuant to Defendant Eric Shinseki's Motion to Dismiss (Doc. # 50) filed on April 23, 2014. Pro se Plaintiff Annette P. Robinson filed a response in opposition to the Motion on May 8, 2014. (Doc. # 52). For the reasons stated below, the Court grants the Motion to Dismiss.
Robinson initiated this action against Shinseki on May 13, 2013. (
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Shinseki filed a Motion to Dismiss on August 13, 2013, seeking to dismiss Robinson's Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (Doc. # 11). On October 21, 2013, this Court granted Shinseki's Motion to Dismiss. (Doc. # 21). Count I, Count II, Count IV, and Count V of Robinson's Complaint were dismissed for lack of subject matter jurisdiction. (
On November 5, 2013, Robinson filed "Plaintiff Motion to Amend Public Policy Violation Complaint," which this Court construed as Robinson's Amended Complaint. (Doc. # 26). Shinseki filed a Motion to Dismiss the Amended Complaint on November 19, 2013, seeking dismissal of Robinson's Amended Complaint for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. # 27).
On November 20, 2013, Robinson filed a Notice of Interlocutory Appeal as to this Court's October 21, 2013, Order. (Doc. # 30). The Eleventh Circuit, sua sponte, dismissed Robinson's appeal, as the "order dismissing some of [Robinson's] claims is not final and appealable because she timely filed an amended complaint in response to the order." (Doc. # 24). Thereafter, Robinson filed her response in opposition to Shinseki's Motion to Dismiss on March 17, 2014. (Doc. # 38). As this Court found that the Amended Complaint forced Shinseki and the Court to hypothesize as to what statutory, Constitutional, or procedural violations gave rise to Robinson's "public policy violation," the Court granted Shinseki's Motion to Dismiss on March 20, 2014. (Doc. # 39). However, the case was dismissed without prejudice so that Robinson may have one final opportunity to file a second amended complaint that complies with the pleading requirements of the Federal Rules of Civil Procedure.
Robinson filed a construed Second Amended Complaint on April 10, 2014. (Doc. # 42). Thereafter, on April 23, 2014, Shinseki filed the present Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Robinson filed a response in opposition to the Motion on May 8, 2014. (Doc. # 52). The Court has reviewed the Motion and the response thereto, and is otherwise fully advised in the premises.
Federal courts are courts of limited jurisdiction.
A facial attack on the complaint requires "the court merely to look and see if the plaintiff has sufficiently alleged a basis for subject matter jurisdiction, and the allegations in [the] complaint are taken as true for the purposes of the motion."
On a motion to dismiss, this Court accepts as true all of the factual allegations in the complaint and construes them in the light most favorable to the plaintiff.
In accordance with
In his Motion, Shinseki argues that dismissal is warranted because the Second Amended Complaint is an impermissible shotgun pleading and fails to state a claim upon which relief can be granted. Furthermore, Shinseki posits that the claims raised in the Second Amended Complaint are not properly before this Court as the claims could have been raised under the Civil Service Reform Act. Therefore, this Court lacks subject matter jurisdiction over these claims.
According to the Motion, the Second Amended Complaint constitutes an impermissible shotgun pleading. (Doc. # 50 at 3). Namely, the Second Amended Complaint lacks numbered paragraphs, in violation of Fed. R. Civ. P. 10(a). Furthermore, Shinseki contends that the Second Amended Complaint fails to articulate a claim with sufficient clarity to allow Shinseki to frame a responsive pleading as the Second Amended Complaint is a "disorderly mass of information." (
Upon review, the Court finds that even when construed liberally to account for Robinson's pro se status the Second Amended Complaint as written constitutes an impermissible shotgun pleading that fails to provide the coherent and concise statement of facts required to survive a motion to dismiss.
First, Robinson's Second Amended Complaint entirely lacks numbered paragraphs, in violation of Fed. R. Civ. P. 10(b). In its March 20, 2014, Order, this Court instructed Robinson that her Second Amended Complaint needed to comply with the pleading requirements of the Federal Rules of Civil Procedure. Robinson has not heeded this Court's instruction.
Furthermore, while the Second Amended Complaint contains an array of facts and allegations, this Court is left to hypothesize as to what claim constitutes Robinson's "public policy" allegation. Specifically, in the Second Amended Complaint, Robinson has provided this Court with three sections: 1) Misconduct — Assaults; 2) Civil Service Reform Act; and 3) Retaliation Act Title VII. Nonetheless, given Robinson's pro se status and in order for this Court to have a thoroughly analyzed record, the Court will address each in turn.
In this section, Robinson contends that she was assaulted by her supervisors and reported the incident to Senior Leadership in the Office of Healthcare Inspection in Washington, D.C. pursuant to VA OIG CM Directive 329. (Doc. # 42 at 1). According to Robinson, VA Police recommended that the case be forwarded to VA OIG Administration Investigation for review and possible investigation, but that no further VA police involvement was warranted. (
Although Robinson has provided this Court with a copy of the OIG policy regarding Reporting and Handling Allegations of Misconduct Against Office of Inspector General Employees (Doc. # 42-1), it continues to be unclear to this Court what relief Robinson seeks in this section. As a result, this Court is left to theorize as to the claim Robinson asserts against Shinseki, which it declines to do.
In this section, Robinson admits that she is "aware that the CSRA include[s] three agencies" and one would provide a remedy in this case — the Merit System Protection Board. (Doc. # 42 at 3). However, Robinson argues that she has filed her claims with the MSPB and has exhausted all her available remedies prior to bringing her claims to this Court.
Upon review, Robinson has failed to allege a statutory or constitutional violation demonstrating that she is entitled to relief. Instead, she uses this section as a vehicle to express her grievance over the MSPB's alleged failure to adhere to its policies. Therefore, the Court finds that Robinson fails to state a claim upon which relief can be granted under the Civil Service Reform Act section.
In the Second Amended Complaint, for the first time, Robinson alleges a claim under 42 U.S.C. § 2000e-3(a), which Robinson titles "Retaliation Act Title VII," which provides:
42 U.S.C. § 2000e-3(a).
Robinson contends that on April 26, 2011, she reported that an incident occurred between her and her supervisors stemming from her asking a question regarding asbestos in the building, and she provided a detailed account of the incident on April 29, 2011. (Doc. # 42 at 4). However, Robinson states that no investigation of the report occurred in violation of VA OIG Directive 329. (
When Robinson returned from a five week leave of absence, she contends that she was issued a three day suspension for the April 26, 2011, incident and was further harassed by her supervisors. (
For purposes of the present analysis, this Court will liberally construe the Second Amended Complaint due to Robinson's pro se status and find that Robinson has stated a claim under 42 U.S.C. § 2000e-3(a). However, the Court will determine whether it has subject matter jurisdiction over Robinson's 42 U.S.C. § 2000e-3(a) claim.
To the extent Robinson brings a claim for discrimination, this Court finds that Robinson could have previously raised this issue during her MSPB appeal. (
In general, "a petition to review a final order or final decision of the [MSPB] shall be filed in the United States Court of Appeals for the Federal Circuit."
5 U.S.C. § 7702(a)(1)(B)(i)-(v) provides the "cases of discrimination" referenced in 5 U.S.C. § 7703(2)(b)(2)'s exception:
5 U.S.C. § 7702(a)(1)(B)(i)-(v). Accordingly, a petition for review of a "case of discrimination" referenced under 5 U.S.C. § 7702 must be filed in the appropriate district court as defined by the applicable law.
Robinson specifically brought her retaliation claim under 42 U.S.C. § 2000e-3a, which does not fall under one of the "cases of discrimination" set forth in 5 U.S.C. § 7702(a)(1)(B)(i)-(v). Accordingly, Robinson is bound to adhere to the requirement that "a petition to review a final order or final decision of the [MSPB] shall be filed in the United States Court of Appeals for the Federal Circuit." Therefore, the Court lacks subject matter jurisdiction over Robinson's 42 U.S.C. § 2000e-3a claim.
Robinson has now had three opportunities to state a claim for which this Court has jurisdiction. Despite these opportunities, Robinson has failed to do so. While the Court understands that the litigation process can be a complex and difficult one for a pro se litigant, it cannot afford any litigant unlimited opportunities to amend without unduly burdening the opposing party. Therefore, the Court grants Shinseki's Motion to Dismiss, and as a result Robinson's Second Amended Complaint is dismissed for lack of jurisdiction.
Accordingly, it is hereby