The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARK GRISSOM, ]
]
Plaintiff, ]
]
v. ] 2:21-cv-1633-ACA
]
JOHN MERKLE, et al., ]
]
Defendants. ]
MEMORANDUM OPINION AND ORDER
Plaintiff Mark Grissom alleges that while he was employed at the Tuscaloosa
Veterans Affairs Medical Center, he repeatedly complained about mismanagement,
hiring issues, patient safety concerns, and the hostile and discriminatory work
environment, all of which led to his firing. Proceeding pro se, Mr. Grissom filed an
amended complaint against fourteen defendants who work at the Medical Center or
for the Department of Veterans Affairs, asserting numerous claims for relief under
the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962, and unspecified constitutional amendments. (Doc. 16).
Defendants move to dismiss the amended complaint. (Doc. 21). Because the
court agrees that the Civil Service Reform Act precludes Mr. Grissom’s claims, the
court GRANTS the motion and WILL DISMISS the amended complaint
WITHOUT PREJUDICE. The court therefore FINDS AS MOOT Mr. Grissom’s
motion to require disclosure of compliance with a regulation and certification of the
government’s investigation. (Doc. 25).
I. BACKGROUND
In deciding a motion to dismiss for failure to state a claim, the court must
accept as true the factual allegations in the complaint and construe them in the light
most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261,
1265 (11th Cir. 2012). Typically, if the court considers any evidence outside the
pleadings in connection with a motion to dismiss, the court must convert the motion
to one for summary judgment. See Fed. R. Civ. P. 12(d). But an exception exists
for documents that the complaint incorporates by reference if those documents are
of undisputed authenticity and central to the plaintiff’s claims. Horsley v. Feldt, 304
F.3d 1125, 1134 (11th Cir. 2002). After Defendants filed their motion to dismiss,
Mr. Grissom filed what he calls exhibits to the amended complaint. (Doc. 27). The
amended complaint specifically refers to most of these exhibits and Defendants have
not challenged the authenticity of the documents or the court’s consideration of
them. (See doc. 16 at 22–52). The court has reviewed the exhibits and describes
them where appropriate.
Mr. Grissom worked at the Tuscaloosa Veterans Affairs Medical Center for
years. (Doc. 16 at 19 ¶ 22). Beginning in January 2017, he began pointing out
violations of required hiring practices. (Id. at 22–41; see generally doc. 27-1 to 27-
5). Although some of his complaints were validated by an internal investigation
(doc. 27-1 at 27–29), he feared retaliation (doc. 16 at 23 ¶ 46; doc. 27-1 at 33). Over
the next three years, Mr. Grissom continued to report violations of hiring practices,
concerns about patient safety in the radiology department, problems with resolving
a staffing shortage, the loss of a large number of radiology files and records, and
issues with receiving Freedom of Information Act documents. (Doc. 16 at 26–41).
He also filed a civil action against a number of the same defendants he names in this
case. (Doc. 27-2 at 48); see also Grissom v. Wiggins, case no. 7:19-cv-1085-RDP
(N.D. Ala.).
During this time, Mr. Grissom’s previously excellent work reviews began to
suffer. He began receiving letters of reprimand and poor performance reviews.
(Doc. 27-1 at 39, 57). In addition, some of the defendants engineered a “terroristic
threat hoax” and blamed the resulting security lockdown on him. (Id. at 7, 15-16).
In August 2020, Mr. Grissom’s supervisor recommended terminating his
employment. (Doc. 16 at 41 ¶ 146). He later rescinded that recommendation (id. at
41 ¶ 147), and Mr. Grissom’s employment continued until he was fired in January
2021 (id. at 42 ¶ 151). Mr. Grissom has appealed his termination to the U.S. Merit
Systems Protection Board (“MSPB”). (See doc. 16 at 43–49; see also doc. 26 at 15).
II. DISCUSSION
Mr. Grissom filed this lawsuit against fourteen individuals who work at the
Medical Center or for the Department of Veterans Affairs, asserting that each of
them violated RICO and his constitutional rights. (Doc. 16). Defendants move to
dismiss this action on the grounds that the amended complaint is a shotgun pleading
and it fails to state a claim. (Doc. 21). One of their arguments is that the Civil
Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., in combination with
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,
precludes Mr. Grissom from bringing his RICO and constitutional claims in this
court. (Doc. 21 at 7–10). Because the CSRA deprives this court of jurisdiction to
address Mr. Grissom’s claims, the court does not reach Defendants’ other
arguments.
“The CSRA established a comprehensive system for reviewing personnel
action taken against federal employees.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 5
(2012) (quotation marks omitted). Covered employees, such as Mr. Grissom, may
challenge covered employment actions, such as termination, by appealing to the
MSPB. Id. at 5–6. The employee may appeal the MSPB’s final decision to the Court
of Appeals for the Federal Circuit. Id. at 7. The “painstaking detail with which the
CSRA sets out the method for covered employees to obtain review of adverse
employment actions” shows “that Congress intended to deny such employees an
additional avenue of review in district court.” Id. at 11–12. In Elgin, the Supreme
Court held that the district court lacked jurisdiction to hear several federal
employees’ constitutional challenge to a statute that required their discharge from
the federal agencies where they worked. Id. at 7, 23; see also Stephens v. Dep’t of
Health & Human Servs., 901 F.2d 1571, 1575–77 (11th Cir. 1990).
As in Elgin, it is clear that Mr. Grissom’s amended complaint challenges a
federal employment action that is within the exclusive jurisdiction of the MSPB and
the Federal Circuit. Although Mr. Grissom couches his claims as violations of RICO
and the Constitution, he seeks backpay, employment benefits, and retirement
benefits. (Doc. 16 at 112–13); see Elgin, 567 U.S. at 22 (explaining that the
plaintiffs’ constitutional challenges were still covered by the CSRA because “the
petitioners’ constitutional claims are the vehicle by which they seek to reverse the
removal decisions, to return to federal employment, and to receive the compensation
they would have earned but for the adverse employment action”).
The CSRA does have an exception for federal employees seeking to challenge
allegedly discriminatory adverse employment actions under specified federal
statutes, such as Title VII. 5 U.S.C. § 7702(a); see also Elgin, 567 U.S. at 13. But
Mr. Grissom expressly disclaims any attempt to bring a Title VII claim. (Doc. 16 at
16 ¶ 12). Accordingly, this case does not fit within an exception to the CSRA’s
exclusive jurisdiction. The court therefore GRANTS Defendants’ motion to dismiss
the action.
The court notes, however, that Defendants request a dismissal with prejudice.
Because the CSRA’s exclusivity deprives this court of jurisdiction over the case, the
court cannot grant that request. A dismissal for lack of jurisdiction must be without
prejudice. McIntosh vy. Royal Caribbean Cruises, Ltd., 5 F.4th 1309, 1313 (11th Cir.
2021) (“If subject-matter jurisdiction does not exist, dismissal must be without
prejudice.”).
Hr. CONCLUSION
The court GRANTS Defendants’ motion to dismiss and WILL DISMISS the
action WITHOUT PREJUDICE for lack of jurisdiction. The court FINDS AS
MOOT Mr. Grissom’s motion to require disclosure of compliance with a regulation
and certification of the government’s investigation. (Doc. 25).
DONE and ORDERED this May 25, 2022.
Lo
UNITED STATES DISTRICT JUDGE