United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
F. COX UNITED STATES DISTRICT JUDGE.
filed this action, alleging that his employer, the Department
of Homeland Security, violated the Family Medical Leave Act.
The matter is currently before the Court on Defendant's
Motion to Dismiss. Defendant's motion asks the Court to
dismiss this action because Plaintiff is covered under Title
II of the Family Medical Leave Act, which does not authorize
private lawsuits for its violations, and this Court therefore
lacks subject matter jurisdiction over this action. The Court
finds that the issues have been adequately presented in the
parties' briefs and that oral argument would not aid the
decisional process. See Local Rule 7.1(f)(2), U.S.
District Court, Eastern District of Michigan. The Court
therefore orders that the motion will be decided upon the
briefs. As set forth below, the Court shall GRANT the motion
and DISMISS this action for lack of subject matter
through Counsel, on May 20, 2016, Plaintiff John Douchette
(“Plaintiff”) filed this action against Defendant
Jeh Charles Johnson, Secretary, Department of Homeland
Security (“Defendant”). Plaintiff's Complaint
asserts a claim under the Family and Medical Leave Act of
1993 (“the FMLA”).
October 28, 2016, Defendant filed a “Motion To Dismiss
Pursuant To Fed.R.Civ.P. 12(b)(1), ” wherein Defendant
asserts that this action must be dismissed for lack of
subject matter jurisdiction because 29 U.S.C. § 2611
does not provide a private cause of action to a federal
employee as defined by 5 U.S.C. § 2105 (ie., a federal
civil service employee).
Standard Of Decision
motion is brought under Fed.R.Civ.P. 12(b)(1), which provides
for the dismissal of an action for lack of subject matter
jurisdiction. As explained by the Sixth Circuit,
subject-matter-jurisdiction challenges under Fed.R.Civ.P.
12(b)(1) come in two varieties: a facial attack and a factual
attack. Wayside Church v. Van Burden Cty., __ F.3d
__, 2017 WL 541008 at *2 (6th Cir. Feb. 10, 2017) (citations
omitted). Here, Defendant makes both types of attacks.
facial attack “questions merely the sufficiency of the
pleading.” Id. “A facial attack goes to
the question of whether the plaintiff has alleged a basis for
subject matter jurisdiction, and the court takes the
allegations of the complaint as true for purposes of Rule
12(b)(1) analysis.” Cartwright v. Garner, 751
F.3d 752, 759 (6th Cir. 2014).
factual attack, on the other hand, raises a factual
controversy requiring the district court to “weigh the
conflicting evidence to arrive at the factual predicate that
subject-matter jurisdiction does or does not exist.”
Wayside Church, supra. “In the case of a
factual attack, a court has broad discretion with respect to
what evidence to consider in deciding whether subject matter
jurisdiction exists, including evidence outside of the
pleadings, and has the power to weigh the evidence and
determine the effect of that evidence on the court's
authority to hear the case.” Cartwright, 751
F.3d at 759-60. Plaintiff bears the burden of establishing
that subject matter jurisdiction exists. Id.
alleges that his employer, the Department of Homeland
Security, violated the FMLA. Plaintiff's Complaint seeks
relief under Title I of the FMLA. (See Compl. at
¶ 1, “[t]his suit is brought pursuant to . . . the
Family and Medical Leave Act of 1993 (FMLA), 29 USC 2601
et seq.”) (emphasis added).
alleges that he began employment with Defendant on or about
October 13, 2002. (Compl. at ¶ 5). He alleges that his
“job title at all times was Transportation Security
Officer (TSO), SV-1 802 (Band-E).” (Id. at
¶ 7). Plaintiff alleges that he was discharged from his
employment with Defendant on or about May 12, 2014.
(Id. at ¶ 6).
seeks monetary damages, backpay, and reinstatement.
Evidence Outside The Pleadings
with its motion, Defendant filed the Offer and Appointment
Affidavit pertaining to Plaintiff's hiring. (D.E. No.
8-1). It reflects that Plaintiff was offered an appointment
as a Transportation Security Screener in the Department of
Transportation, Transportation Security Administration, and
accepted that appointment on October 13, 2002. The
appointment was for a “period not to exceed five
years.” In opposing Defendant's Motion, Plaintiff
attached a February 24, 2014 letter ...