Kathryn Walker v. Secretary of the Army

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-14229

Non-Argument Calendar

____________________

KATHRYN WALKER,

Plaintiff-Appellant,

versus

SECRETARY OF THE ARMY,

in her official capacity,

DEPARTMENT OF THE ARMY,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

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2 Opinion of the Court 23-14229

D.C. Docket No. 1:23-cv-00066-JRH-BKE

____________________

Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.

PER CURIAM:

Kathryn Walker, pro se, appeals from the district court’s dis-

missal of her amended complaint for lack of subject matter juris-

diction and denial of her motion for leave to file a second amended

complaint. She argues that the district court had subject matter ju-

risdiction for her claims under the Administrative Procedure Act, 5

U.S.C. § 701, and that the denial of her motion was an abuse of dis-

cretion. Because we agree that the district court did not have juris-

diction to hear the case and that amending the complaint would be

futile, we affirm.

I.

Walker is a civilian transportation specialist employed by the

United States Army. In January 2023, Walker received a notice

from her supervisor proposing a ten-day suspension for Conduct

Unbecoming a Federal Employee. She responded to the notice and

argued that her supervisor “did not follow the procedures set forth

in Army Regulation 690-752” when he issued the notice. After con-

sidering Walker’s response and the factors relevant to her charged

misconduct, the deciding official sustained the suspension. This de-

cision explained that Walker could challenge her suspension by fil-

ing a complaint with the Equal Employment Opportunity Office if

she believed the decision was based on discrimination against a

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23-14229 Opinion of the Court 3

protected class, filing a complaint with the United States Office of

Special Council if she believed it was based on her prior whistle-

blowing activity, or filing a grievance under the collective bargain-

ing agreement. She pursued none of those options and instead filed

a complaint in the district court against the Department of the

Army and its Secretary, in her official capacity, for allegedly violat-

ing the APA.

According to Walker, the notice was arbitrary and capri-

cious and in violation of the Army’s own rules because it did not

document any aggravating or mitigating factors that influenced the

decision. The Army moved to dismiss the complaint for failure to

state a claim and lack of jurisdiction because the United States had

not waived sovereign immunity. According to the Army, the Civil

Service Reform Act precludes judicial review of minor personnel

actions like a ten-day suspension. Walker contested the motion,

and having already amended her complaint, moved for leave to file

a second amended complaint so she could “provide a more definite

statement[.]” Ultimately, the district court granted the Army’s mo-

tion to dismiss because it determined that the CSRA barred judicial

review and denied Walker’s motion for leave to file a second

amended complaint because Walker failed to attach a new com-

plaint or explain its substance and because any amendment would

be futile.

This appeal followed.

II.

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4 Opinion of the Court 23-14229

We review de novo a district court’s dismissal of a complaint

for lack of subject matter jurisdiction and its interpretation of stat-

utory provisions. Chaney v. Tennessee Valley Auth., 264 F.3d 1325,

1326 (11th Cir. 2001). Although we review the denial of a motion

to amend for abuse of discretion, we review the conclusion that an

amendment would be futile de novo. Cockrell v. Sparks, 510 F.3d

1307, 1310 (11th Cir. 2007).

III.

A.

Federal courts have subject matter jurisdiction over “all civil

actions arising under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. § 1331. But just because a court can hear

all cases involving federal questions does not mean it can adjudi-

cate all disputes. One limitation on a court’s ability to answer these

questions is sovereign immunity. “It is well settled that the United

States, as a sovereign entity, is immune from suit unless it consents

to be sued, and absent a specific waiver of sovereign immunity . . .

the court lacks subject matter jurisdiction over the suit.” Johnson v.

White, 989 F.3d 913, 914 (11th Cir. 2021) (internal quotations omit-

ted) (citing Zelaya v. United States, 781 F.3d 1315, 1321-22 (11th Cir.

2015). This defense applies not just to the federal government, but

also to governmental officials who are sued in their official capaci-

ties. See Davila v. Gladden, 777 F.3d 1198, 1209 (11th Cir. 2015) (“In

order to authorize official-capacity suits, Congress must clearly

waive the federal government’s sovereign immunity.”).

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23-14229 Opinion of the Court 5

Congress can waive sovereign immunity, but waiver must

be “unequivocally expressed in statutory text,” not implied, and it

must be “strictly construed, in terms of its scope, in favor of the

sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996). Congress’s ability

to waive the immunity also includes “the power to condition a

waiver of its immunity as broadly or narrowly as it wishes.” Zelaya,

781 F.3d at 1321-22. The broad grant of jurisdiction under Section

1331 does not explicitly waive sovereign immunity, so it “may not

be construed to constitute waivers of the federal government’s de-

fense of sovereign immunity.” Beale v. Blount, 461 F.2d 1133, 1138

(5th Cir. 1972). Therefore, if Walker’s suit is to survive, there must

be some other basis by which Congress waived the immunity.

Walker argues that the APA provides such an explicit

waiver. And she is right, at least partly. Under the APA, a person

who is harmed by a final agency action can file suit seeking relief

other than money damages against an officer in his official capacity

and that suit “shall not be dismissed nor relief therein be denied on

the ground that it is against the United States.” 5 U.S.C. § 702. The

Supreme Court has recognized this provision to be an explicit

waiver of sovereign immunity. See Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012). How-

ever, the statute limits that waiver to the extent that a federal stat-

ute precludes judicial review or the action is committed to agency

discretion by law. 5 U.S.C. § 701(a); see Perez v. U.S. Bureau of Citi-

zenship & Immigr. Servs., 774 F.3d 960, 965 (11th Cir. 2014) (recog-

nizing that the APA “expressly excepts review under its provisions

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6 Opinion of the Court 23-14229

where ‘statutes preclude judicial review,’” or “agency action is

committed to agency discretion by law”) (citing 5 U.S.C. § 701(a)).

The district court determined that the CSRA precluded judi-

cial review for the suit, which Walker now argues was error. By

enacting the CSRA, Congress “comprehensively overhauled the

civil service system, creating an elaborate new framework for eval-

uating adverse personnel actions against federal employees.”

United States v. Fausto, 484 U.S. 439, 443 (1988) (cleaned up). We

have previously recognized that this statutory scheme “indicates a

clear congressional intent to permit federal court review as pro-

vided in the CSRA, or not at all.” Stephens v. Dep’t Health Hum.

Servs., 901 F.2d 1571, 1576 (11th Cir. 1990) (citation omitted). And

even if a plaintiff challenges an agency’s failure to follow its own

rules instead of the adverse action itself, as Walker does here, a

plaintiff cannot run an end-around the statute’s requirements

simply by reframing the complaint. See Fausto, 484 U.S. at 451 n.5

(explaining that allowing a claim to proceed because the agency vi-

olated its own rules even though the CSRA does not provide for

judicial review would undermine the statutory framework); Gra-

ham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004) (“It is no answer

to invoke the principle that agencies must follow their own regula-

tions” in order to qualify for judicial review.)

The CSRA provides plaintiffs with different paths to seek re-

dress based on the circumstances of their complaints. As relevant

here, a federal employee in the competitive services who has been

suspended for 14 days or less is entitled to advance written notice

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23-14229 Opinion of the Court 7

of the suspension explaining the decision, a reasonable time to re-

spond and file documentary evidence, legal representation, and a

final written decision. 5 U.S.C. § § 7501-03(b). Conversely, covered

employees who are suspended for more than 14 days are entitled

to similar procedural protections as well as judicial review only af-

ter they have exhausted their administrative remedies. See 5 U.S.C.

§ § 7511-13(b), 7703; Ferry v. Hayden, 954 F.2d 658, 661 (11th Cir.

1992) (explaining that an employee’s “failure to exhaust his admin-

istrative remedies under the CSRA precludes judicial review of his

allegations of improper agency action”).

Congress clearly drew a line at 14 days and only provided for

judicial review when the suspension surpasses that mark. Because

Congress adopted this comprehensive statutory scheme and chose

not to extend judicial review to brief suspensions like Walker’s, we

must conclude that judicial review is precluded by the statute. See

Graham, 358 F.3d at 933 (“Although Section 7503 provides some

procedural protections in such cases, there is no right to judicial

review for covered employees under Subchapter I.”); Fausto, 484

U.S. at 447 (concluding that because the statute granted protec-

tions—including judicial review—only to covered employees un-

der sections 7511-13, then the statute “displays a clear congres-

sional intent to deny the excluded employees the protections”); see

also Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 765 (2019) (“In

this, as in any field of statutory interpretation, it is our duty to re-

spect not only what Congress wrote but, as importantly, what it

didn't write.”).

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8 Opinion of the Court 23-14229

B.

Walker also argues that the district court abused its discre-

tion by denying her motion for leave to amend her complaint a

second time under Federal Rule of Civil Procedure 15(a). A party is

generally entitled to amend a pleading once within 21 days of serv-

ing it, but otherwise a party can do so only with the opposing

party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a).

Despite this limitation, the court should “freely grant leave when

justice so requires.” Fed. R. Civ. P. 15(a)(2). An appropriate motion

must either attach a copy of the proposed amendment or explain

the substance of it so that the court may determine whether the

amendment would save the claim. U.S. ex rel. Atkins v. McInteer, 470

F.3d 1350, 1362 (11th Cir. 2006).

Just because a court should freely grant leave when justice

so requires does not mean that a party is entitled to amend the

complaint as a matter of course under Rule 15(a)(2). See Fraser v.

Sears, Roebuck & Co., 674 F.2d 856, 859-60 (11th Cir. 1982) (“Rule

15(a) requires a district court to freely grant leave to amend the

complaint whenever ‘justice so requires,’ however this is not an

automatic right.”) (citation omitted). “[A] district court may

properly deny leave to amend the complaint under Rule 15(a)

when such a statement would be futile.” Hall v. United Ins. Co. of

Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004). Leave to amend is fu-

tile when the newly amended complaint would still be properly

dismissed. Cockrell, 510 F.3d at 1310.

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23-14229 Opinion of the Court 9

Here, Walker has already amended her complaint once, so

she is not entitled to amend her complaint without leave from the

court. Furthermore, in her motion she did not explain the sub-

stance of her proposed amendment in any detail and indicated only

that the amendment would “provide a more definite statement.”

The district court concluded that the sparse description of the

amendment was insufficient to determine that leave to amend was

appropriate, and that even with a more substantive motion, any

amendment would be futile because the CSRA precludes judicial

review.

We need not consider whether the proposed amendment

was properly substantiated because we agree that any amendment

would have been futile. The CSRA established a comprehensive

framework for assessing adverse personnel actions against federal

employees and that framework does not provide for judicial review

in these circumstances. Therefore, no amended or more definite

complaint could qualify for judicial review, and it would still be

subject to dismissal for lack of subject matter jurisdiction.

IV.

Because we conclude that the clear language of the CSRA

precludes judicial review and that any amendment to the com-

plaint would be futile, we AFFIRM.