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Doucette v. Johnson

United States District Court, E.D. Michigan, Southern Division

March 3, 2017

John Doucette, Plaintiff,
v.
Jeh Charles Johnson, Defendant.

          OPINION & ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          SEAN F. COX UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 jurisdiction.

         BACKGROUND

         Acting 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”).

         On 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).

         ANALYSIS

         I. Standard Of Decision

         Defendant's 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.

         A 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).

         “A 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.

         A. Plaintiff's Complaint

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff seeks monetary damages, backpay, and reinstatement.

         B. Evidence Outside The Pleadings

         Along 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 ...


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