Plaintiff Jason Daniel Brady of the Pennsylvania National Guard sues Defendant LTC Wendell L. May, a Military Personnel Officer with the Pennsylvania National Guard for his alleged breach of failure to pay Plaintiff an enlistment incentive bonus of $5,000.00. Presently before the Court is Defendant's Motion to Dismiss, to which Plaintiff has filed a response.
Defendant argues that Plaintiff's Complaint should be dismissed because this Court lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1); or for failure to exhaust administrative remedies pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6). As discussed below we will grant Defendant's motion and dismiss the Complaint because the Plaintiff has failed to exhaust his administrative remedies.
Although this action was filed on July 9, 2003, Defendant's motion to dismiss the Complaint was not filed until August 5, 2005, for the following reasons. Mr. Brady, who is proceeding pro se, had not effected Service within 120 days of the filing of his lawsuit, so on November 1, 2004, the Court ordered the Plaintiff to serve the Complaint on Defendant no later than November 30, 2004. The Plaintiff filed a pleading indicating a return of service filed November 24, 2004, showing that service was executed on the Defendant on November 18, 2004. However, because Plaintiff had not properly effected service, the Court ordered Plaintiff to make proper service of the summons and amended complaint no later than April 8, 2005. Plaintiff then filed a motion for extension of time to effect service, which was granted. Proof of proper service was filed on May 31, 2005.
The facts at issue are straightforward. According to the Complaint, Mr. Brady alleges that he enlisted in the Pennsylvania National Guard on January 6, 2000, and was offered an enlistment incentive or bonus of $5,000. On January 24, 2000, the recruiting team leader informed Mr. Brady that the terms of the enlistment had to be changed in order for Mr. Brady to receive the bonus.
Mr. Brady agreed to the changes, and the terms of the enlistment were altered. Although Mr. Brady has sought payment of the bonus from Defendant, the Defendant has refused to pay the bonus.
Thus, Mr. Brady filed the instant action.
The United States Court of Appeals for the Third Circuit has explained that a motion to dismiss pursuant to Federal Rule 12(b)(1) raises the issue of "'the trial court's jurisdiction--its very power to hear the case.'" Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).
A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. In reviewing a factual attack the court may consider evidence outside the pleadings.
Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891 (other internal citations omitted)).
Defendants move for dismissal under Federal Rule of Civil Procedure 12(b)(1) asserting that this Court lacks the power to hear the case, either because Plaintiff has failed to establish subject matter jurisdiction, or because Plaintiff has failed to exhaust his administrative remedies. Mortensen, 549 F.2d at 891. As such, the merits of Plaintiff's case are not at issue. Id. These arguments constitute a facial challenge to the court's subject matter jurisdiction, rather than a factual challenge. Gould Electronics, 220 F.3d at 178. On a facial challenge to the court's jurisdiction we presume that the factual allegations in the complaint are true and review the complaint "to ensure that each element necessary for jurisdiction is present." Bell Atlantic-Pennsylvania, Inc. v. Pennsylvania Public Utility Commission, 107 F.Supp.2d 653, 659 (E.D.Pa. 2000)(quoting Halstead v. Motorcycle Safety Found., Inc., 71 F.Supp.2d 464, 468 (E.D.Pa.1999)).
Alternatively, Defendant has submitted documents for our review in support of dismissing the Complaint for failure to exhaust administrative remedies. As such, Defendants argument is either a factual challenge pursuant to Rule 12(b)(1) or a motion to dismiss pursuant to Rule 12(b)(6).
In the case of a factual challenge to the Court's subject matter jurisdiction the United States Court of Appeals for the Third Circuit has "explained that in such a circumstance, a trial court 'is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Robinson, 107 F.3d at 1021 (quoting Intern. Ass'n of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir.1982)). "'[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude ...