Obot v. Department of Defense

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

) CASE NO. 1:22-cv-2312

GODWIN OBOT, )

) JUDGE CHARLES E. FLEMING

Petitioner, )

)

v. )

) MEMORANDUM OPINION AND

DEPARTMENT OF DEFENSE, ) ORDER

)

Respondent. )

Currently pending before the Court in the above-captioned case is Respondent

Department of Defense’s Motion to Dismiss (ECF No. 8). For the reasons that follow,

Respondent’s Motion is GRANTED.

I. Procedural History

A. Administrative Proceedings

On September 21, 2020, Petitioner Godwin Obot filed an appeal to the Merit Systems

Protection Board (“MSPB”) challenging his removal from the position of Accountant, GS-0510-

11, at the Department of Defense, Defense Finance Accounting Service. (ECF No. 1-2, PageID

#33). An Administrative Judge issued an initial decision affirming the agency’s action. (Id. at

PageID # 33–55). On July 7, 2022, the MPSB issued a final order denying Obot’s petition for

review and affirming the initial decision. (Id. at PageID #65–67).

B. Proceeding before the Federal Circuit

On September 7, 2022, Obot filed a petition for review in the United States Court of

Appeals for the Federal Circuit. (ECF No. 1, PageID #2; ECF No. 1-1, PageID #6; CM/ECF for

the Federal Circuit, No. 22-2195, ECF No. 1). In his submission before the Federal Circuit, Obot

indicated that he wished to continue to pursue his claims for discrimination against Respondent.

(ECF No. 1, PageID #2; ECF No. 1-4, PageID # 77-79). Obot also expressly acknowledged that

he received notice of the MSPB’s final order on July 7, 2022. (CM/ECF for the Federal Circuit,

ECF No. 1-2, PageID #2).

On October 28, 2022, Respondent filed a motion to dismiss the petition for lack of

subject matter jurisdiction. (ECF No. 1-7). Respondent moved for dismissal because the

petition was untimely and the Federal Circuit lacked jurisdiction to consider “mixed” cases that

involved unabandoned claims of discrimination. (Id. at PageID #91–97).

On December 22, 2022, the Federal Circuit issued an order denying Respondent’s motion

to dismiss and transferring the action to the Northern District of Ohio. (ECF No. 1). The

Federal Circuit found that it lacked jurisdiction over this case because Obot sought judicial

review of a discrimination claim. (Id. at PageID #2). It declined to address the issue of

timeliness, leaving the issue to the Northern District of Ohio. (Id.).

C. Proceedings before this Court

On July 28, 2023, Respondent filed a motion to dismiss for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (ECF No. 8). Respondent argues that the instant

petition for review was untimely filed because it was filed in the Federal Circuit on September 7,

2022, more than 60 days after Obot’s receipt of the MSPB’s final order. (Id. at PageID #212–15).

Plaintiff did not oppose the motion to dismiss or request an extension of time to do so. Local Rule

7.1(g) authorizes the Court to “rule on unopposed motions without hearing at any time after the

time for filing an opposition has expired.” Pursuant to Local Rule 7.1(d), “each party opposing a

motion must serve and file a memorandum in opposition within thirty (30) days after service of

any dispositive motion.” The time for filing opposition has long since passed.

Where Plaintiff has not raised arguments by virtue of his failure to oppose a motion to

dismiss, those arguments are waived. See Humphrey v. U.S. Attorney General’s Office, 279 F.

App’x 328, 331 (6th Cir. 2008). A district court’s power to grant dispositive motions because they

are unopposed is firmly settled. See Caroline’s Kids Pet Rescue v. Lake Human Society, 2022 WL

80320 (N.D. Ohio Jan. 7, 2022) (citing to Demsey v. R.J. Reynolds Tobacco Co., 2005 WL

1917934, *2 (N.D. Ohio 2005); Peacock v. Bayview Loan Serv., 2005 WL 1277667 (N.D. Ohio

2005) (both citing to Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir. 2000))). However,

the Court will briefly address the merits of the motion.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court lacks

subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to dismiss pursuant to Rule 12(b)(1)

may take the form of either a facial or factual attack. United States v. Ritchie, 15 F. 3d 592, 598

(6th Cir. 1994). Facial attacks challenge the sufficiency of the pleading itself. Id. When

adjudicating a motion to dismiss based upon a facial attack, the court must accept all material

allegations of the complaint as true and must construe the facts in favor of the non-moving party.

Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).

Factual attacks, by contrast, challenge the factual predicate for subject matter jurisdiction,

regardless of what is or might be alleged in the pleadings. Id. With such a challenge, no

presumption of truthfulness applies to the factual allegations, and the court is free to weight the

evidence and satisfy itself as to the existence of its power to hear the case. Id. (citing Ohio Nat’l

Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). Regardless of the type of attack,

the plaintiff bears the burden of establishing that subject-matter jurisdiction exists. See Giesse v.

Sec’y of Dept. of Health & Human Servs., 522 F.3d 697. 702 (6th Cir. 2008); Golden v. Gorno

Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). Lack of subject-matter jurisdiction is a non-

waivable, fatal defect. See Von Dunser v. Aronoff, 915 F.2d 1071, 1074-75 (6th Cir. 1990). Here,

Defendant makes a factual attack on this Court’s subject-matter jurisdiction, challenging the

timeliness of the instant petition. (ECF No. 8-1, PageID #212-15; see also Cartwright v. Garner,

751 F.3d 752, 759 (6th Cir. 2014) (explaining that “[a] factual attack challenges the factual

existence of subject matter jurisdiction”).

III. Analysis

“A final order or decision issued by the MSPB constitutes a ‘judicially reviewable

action.’” Hatcher v. Runyon, No. 98-1714, 1999 U.S. App. LEXIS 19732, at *3-5 (6th Cir. Aug.

13, 1999) (citing 5 U.S.C. § 7702(a)(3)). Normally, an MSPB final decision must be appealed to

the Federal Circuit within 60 days of its issuance. 5 U.S.C. § 7703(b)(1)(A); Manning v.

McDonald, No. 3:16-cv-00706, 2016 U.S. Dist. LEXIS 184051, at *9 (M.D. Tenn. Nov. 9, 2016)

(“With exceptions, judicial review of appeals from the MSPB generally occurs in the Federal

Circuit.”). However, in “mixed cases,” an employee may seek juridical review in an appropriate

federal district court once the MSPB issues an adverse final order or decision. See 5 U.S.C.

§ 7703(b); Hobson v. Shanahan, No. 3:17-1485, 2019 U.S. Dist. LEXIS 48160, at *11 (M.D.

Tenn. Feb. 11, 2019) (citing Ballard v. Tennessee Valley Auth., 768 F.2d 756, 757 (6th Cir.

1985)), report and recommendation adopted, 2019 U.S. Dist. LEXIS 48154 (M.D. Tenn. Mar.

22, 2019); Abell v. Dep’t of Veterans Affairs, No. 3:18-CV-532-CRS, 2018 U.S. Dist. LEXIS

158997, at *3 (W.D. Ky. Sep. 18, 2018). A mixed case involves circumstances “where an

employee complains of a personnel action serious enough to appeal to the MSPB and alleges the

action was based on discrimination.” Abell, 2018 U.S. Dist. LEXIS 158997, at *3 (quoting

Kloeckner v. Solis, 568 U.S. 41, 44, 133 S. Ct. 596, 184 L. Ed. 2d 433 (2012) (internal quotations

omitted) (emphasis in original); see also Ryan v. McDonald, 191 F. Supp. 3d 729, 739 (N.D. Oh.

2016) (“A mixed case complaint is a complaint of employment discrimination filed with a

federal agency based on race, color, religion, sex, national origin, age, disability, or genetic

information related to or stemming from an action that can be appealed to the [MSPB].”).

In mixed cases, the employee must file an appeal in the appropriate federal district court

within 30 days after the date the employee received notice of the MSPB’s final decision.

Hatcher, 1999 U.S. App. LEXIS 19732, at *4-5 (quoting 5 U.S.C. § 7703(b)(2)); Abell, 2018

U.S. Dist. LEXIS 158997, at *3; Hobson, 2019 U.S. Dist. LEXIS 48160, at *11 (“A petition for

judicial review in a mixed case must be filed within 30 days of receiving notice of the MSPB’s

final decision unless the employee asks the EEOC to review the discrimination issue.” (citing 5

U.S.C. § 7703(b)(2); id. § 7702(a)(3); and Ballard, 768 F.2d at 758, 764)).

Here, the instant petition presents a “mixed case” that falls under the purview of 5 U.S.C.

§ 7703(b)(2). The Federal Circuit already determined that Obot wished to pursue his

employment discrimination claims against Respondent and transferred the action to the Northern

District of Ohio. (ECF No. 1, PageID # 2). Moreover, a review of Obot’s submissions to the

Federal Circuit clearly indicate that he intended to continue pursuing his claims of

discrimination. (See ECF Nos. 1-5, 1-6).

Because this is a “mixed case,” Obot had 30 days to file a notice of appeal in the

appropriate federal district court. The Sixth Circuit has held that the 30-day time limit set forth

under § 7703(b)(2) for the filing of a lawsuit in federal district court is jurisdictional, mandatory,

and not subject to equitable tolling. Johnson v. U.S. Postal Serv., 64 F.3d 233, 238 (6th Cir.

1995); Hilliard v. U.S. Postal Serv., 814 F.2d 325, 327 (6th Cir. 1987) (“[T]he 30 day limitations

period for filing an appeal under 5 U.S.C. § 7703(b)(2) is a jurisdictional prerequisite to judicial

review of an MSPB decision and cannot be extended.”); Dean v. Veterans Admin. Reg’l Office,

943 F.2d 667, 669-70 (6th Cir.1991), vacated and remanded on other grounds, 503 U.S. 902,

112 S. Ct. 1255, 117 L. Ed. 2d 486 (1992); Felder v. Runyon, No. 00-1011, 2000 U.S. App.

LEXIS 24832, at *4 (6th Cir. Sep. 26, 2000).

Obot received notice of the MSPB’s final order on July 7, 2022, (CM/ECF for the Federal

Circuit, ECF No. 1-2, PageID #2), and he filed the instant petition for review to the Federal Circuit

62 days later, on September 7, 2022, (ECF No. 1, PageID #2; ECF No. 1-1, PageID #6). Thus, the

petition is untimely and this Court lacks jurisdiction.'

IV. Conclusion

For the foregoing reasons, the Court GRANTS Respondent Department of Defense’s

Motion to Dismiss (ECF No. 8) and DISMISSES this case WITH PREJUDICE for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

IT IS SO ORDERED. eb 4 .

Dated: March 28, 2024 alt <fmurg

HONORABLE CHARLES E. FLEMING

UNITED STATES DISTRICT JUDGE

' Even if the instant petition were not considered a “mixed” petition, this case would still require

dismissal because Obot filed his appeal to the Federal Circuit more than 60 days after he received notice

of the MSPB’s final order. See 5 U.S.C. § 7703(b)(1)(A).