The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 22-81615-CIV-CANNON
EDGAR ROBERT MARTIN II,
Plaintiff,
v.
LOUIS DEJOY, POSTMASTER GENERAL
UNITED STATES POSTAL SERVICE
AGENCY
Defendant.
________________________________/
ORDER ACCEPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATIONS WITH ALTERNATIVE RULING
THIS CAUSE comes before the Court upon the Report and Recommendation, issued by
Magistrate Judge Bruce E. Reinhart, recommending that the Court grant the Motion to Dismiss
filed by Defendant Louis Dejoy, Postmaster General of United States Postal Service’s
(“Defendant”) [ECF No. 48]. The Report determines that Plaintiff’s Amended Complaint, which
alleges violations of the Rehabilitation Act of 1973 (as construed) [ECF No. 7], warrants dismissal
for lack of subject matter jurisdiction under Rule 12(b)(1), because Plaintiff abandoned his claims
during the EEOC process and thus failed to exhaust his administrative remedies [ECF No. 48 pp. 2,
6].1 The Report also recommends denying Plaintiff’s request to further amend his complaint and
file a new claim of negligence under the Federal Tort Claims Act (FTCA), noting that Plaintiff did
1 Plaintiff acknowledges that, although he referenced the Americans with Disabilities Act in the
Amended Complaint, the Court should construe his claim as brought under the Rehabilitation Act
[ECF No. 44 p. 2; ECF No. 48 p. 2].
not present his claim to the subject federal agency within two years as required to benefit from the
FTCA’s waiver of sovereign immunity [ECF No. 48 pp. 8–9 (citing 28 U.S.C. § 2401(b))].
The Court has reviewed Defendant’s Motion to Dismiss [ECF No. 38], Plaintiff’s
Opposition [ECF No. 44], Defendant’s Reply [ECF No. 47], the Report [ECF No. 48],
Defendant’s Objection to the Report [ECF No. 49], and the full record. Plaintiff did not file
objections. Upon de novo review of the challenged portion, the Report is ACCEPTED with an
alternative ruling as indicated below.
LEGAL STANDARDS
To challenge the findings and recommendations of a magistrate judge, a party must file
specific written objections identifying the portions of the proposed findings and recommendation
to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court
reviews de novo those portions of the report to which objection is made and may accept, reject,
or modify in whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1).
DISCUSSION
Defendant agrees with the Report’s overall recommendation to dismiss the Amended
Complaint in its entirety, without leave to amend, because Plaintiff failure to exhaust his
administrative remedies [ECF No. 49]. The Court also agrees with that unobjected-to conclusion,
as accepted herein.
The sole remaining point of contention is whether to dismiss Plaintiff’s Complaint on
subject-matter jurisdiction grounds alone pursuant to Rule 12(b)(1), as proposed in the Report, or
whether to dismiss Plaintiff’s claims under Rule 12(b)(6) as well. This distinction is appropriate,
2
Defendant explains, because Plaintiff’s failure to exhaust his formal EEO complaint in this
scenario amounted to a failure to comply with the regulatory requirement in 29 C.F.R.
§ 1614.107(a)(1) following Plaintiff’s previous identical (yet withdrawn) EEO complaint
[ECF No. 49 p. 5 (explaining that Plaintiff filed a formal EEO Complaint and received a notice of
right to file after withdrawing an earlier (identical), informal EEO complaint, thus waiving his
rights to pursue the EEO process further on the claims asserted in that informal complaint and then
repeated in the formal complaint)].
Upon review of Defendant’s Objection and the jurisdictional v. non-jurisdictional
demarcation presented on this record—and in the absence of any Eleventh Circuit case law
counseling a more nuanced approach to exhaustion as a jurisdictional prerequisite in this context—
the Court accepts the Report’s Rule 12(b)(1) dismissal but includes an alternative disposition in
this Order dismissing Plaintiff’s Amended Complaint under Rule 12(b)(6).
First, as to subject matter jurisdiction, the Report is correct that Eleventh Circuit precedent
characterizes as “jurisdictional” a federal employee’s requirement to exhaust administrative
remedies prior to filing an action under the Rehabilitation Act [ECF No. 48 pp. 3–4].2
Accordingly, in the absence of clear guidance to the contrary, the Court agrees with the Report
that dismissal for lack of jurisdiction is appropriate. See Fed. R. Civ. P. 12(b)(1).
Second, and alternatively, to the extent Plaintiff’s conduct in this case—specifically, filing
an informal EEO complaint, withdrawing it, filing a formal EEO complaint asserting the same
2 Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999); Brown v. Snow, 440 F.3d 1259, 1262
(11th Cir. 2006), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006); Tillery v. United States Dept. of Homeland Sec., 402 F. App’x 421, 425 (11th
Cir. 2010); Gaillard v. Shinseki, 349 F. App’x 391, 392 (11th Cir. 2009).
3
claim, and then obtaining a final dismissal order from the EEOC (without allegations of default in
responding to the agency’s request for information) [ECF Nos. 38-2, 38-3, 38-5, 38-6, 38-7, 38-
8]—is more properly construed under recent Supreme Court precedent3 as a non-jurisdictional
lack of compliance with specific administrative procedures set forth in the Code of Federal
Regulations, see 29 C.F.R. § 1614.107(a)(1), the Court agrees with Defendant that (1) the Court
possesses jurisdiction to dismiss Plaintiff’s Amended Complaint, and (2) dismissal for failure to
state a claim under Rule 12(b)(6) is appropriate given Plaintiff’s undisputed failure to exhaust. See
Hickey v. Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020); Doak v. Johnson, 798 F.3d 1096, 1104
(D.C. Cir. 2015). The record is clear that Defendant raised the defense of exhaustion in this case;
that Plaintiff withdrew his informal complaint, thus waiving his rights to further administrative
processing of his complaint [ECF Nos. 38-2, 38-3; ECF No. 48 pp. 6–7]; that the EEOC never
resolved the substance of Plaintiff’s claim now raised in the Amended Complaint; and that, as a
result, Plaintiff failed to fully exhaust his administrative remedies, for all of the reasons stated in
the Report and in the Motion to Dismiss [ECF No. 38 pp. 13–14; ECF No. 48 pp. 6–7]. Finally,
to the extent the equitable doctrine of estoppel warrants consideration, the Court agrees with the
Report that Plaintiff has not met requirements of that narrow doctrine—a recommendation
unobjected-to by Plaintiff [ECF No. 48 pp. 7–8].
3 See United States v. Wong, 575 U.S. 402, 409–410 (2015); Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145, 153 (2013); Arbaugh v. Y & H Corp., 546 U.S. 500, 515–516 (2006).
4
CASE NO. 22-81615-CIV-CANNON/Reinhart
CONCLUSION
Accordingly, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation [ECF No. 48] is ACCEPTED with the additional
alternative ruling contained in this Order.
2. Defendant’s Motion to Dismiss [ECF No. 38] is GRANTED.
3. This case is DISMISSED WITHOUT PREJUDICE, without leave to amend.
4. The Clerk of Court shall CLOSE this case. All deadlines are TERMINATED,
and any pending motions are DENIED AS MOOT.
5. The Clerk SHALL MAIL a copy of this Order to Plaintiff at the address below.
DONE AND ORDERED in Chambers at Fort Pierce, Florida this 29th day of January
2024.
UNITED STATES DISTRICT JUDGE
ce: counsel of record
Edgar Robert Martin II
414N.W. Ist Street
Boynton Beach, Florida 33435
PRO SE