The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court is Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (doc no. 7). Defendant, John E. Potter, Postmaster General, seeks to dismiss Ronald Lee Moss' pro se claim that defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5 et seq. ("Title VII") by engaging in alleged actions that led to the Department of Labor terminating his worker's compensation benefits in retaliation for his previous Title VII complaints. Defendant asserts that plaintiff's claim should be dismissed, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction under the Federal Employees Compensation Act, 5 U.S.C. § 8101-8193 ("FECA") as the Court is without jurisdiction to hear a claim by a federal employee challenging a benefits determination under FECA. Defendant also argues that plaintiff has failed to pursue and exhaust all of the available administrative remedies through the Equal Employment Opportunity Commission ("EEOC"), and further contends that even if plaintiff did exhaust all of his administrative remedies, he has failed to state a claim for retaliation under Title VII, pursuant to Fed. R. Civ. P. 12(b)(6) or, alternatively, that he is entitled to summary judgment, pursuant to Fed. R. Civ. P. 56(c), for the same reasons. After careful consideration of the motion to dismiss or for summary judgment, plaintiff's response, and the memoranda of law in support and in opposition, the Court will grant summary judgment in favor of defendant.
Federal procedural guidelines dictate that this Court may consider jurisdiction at any time. Fed.R.Civ.P. 12(b)(1), 12(h)(3); In Re: Orthopedic, Bone Screw, Products Liability Litigation 132 F.3d 152, 155 (3d Cir. 1997) (citing Underwood v. Maloney, 256 F.2d 334 (3d Cir.), cert. denied, 358 U.S. 864 (1958)). A Rule 12(b)(1) motion allots for two methods of attack, namely a facial or factual attack.
If defendants have attacked the complaint on its face, then they are arguing that "considering the allegations of the complaint as true, and drawing all reasonable inferences in favor of plaintiffs, the allegations of the complaint are insufficient to establish a federal cause of action." Mullen v. Thompson, 155 F. Supp. 2d 448, 451 (W.D. Pa. 2001). See also Mortenson v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977).
Alternatively, if defendants engage in a factual attack on subject matter jurisdiction, then it is the case that "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortenson, 594 F.2d at 891. See also Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000) and Turicentro, S. A. v. American Airlines, Inc., 303 F.3d 293 (3d Cir. 2002).
If this Court determines that a case before it lacks subject matter jurisdiction, it has no authority under the United States Constitution to decide the case on its merits. In Re: Orthopedic, Bone Screw, 132 F.3d at 155. Plaintiff bears the ultimate burden of persuading the Court that it has subject matter jurisdiction over his case. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222 (1991). See also Coles v. City of Philadelphia, 145 F. Supp. 2d 646, 649 (E.D. Pa. 2001), citing Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974).
In deciding a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6), the Court accepts the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences therefrom in favor of the plaintiff. Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154, 155 (3d Cir. 1999). An issue should not be dismissed for failure to state a claim unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593, 595 (3d Cir. 1990). In making this determination, the court must construe the pleading in the light most favorable to the non-moving party. Budinsky v. Pennsylvania Dept. of Env. Res., 819 F.2d 418, 421 (3d Cir. 1987). However, the Court is "not required to accept legal conclusions either alleged or inferred from the pleaded facts." Kost v. Kozakiewski, 1 F.3d 176, 183 (3d Cir. 1993).
Summary judgment, under Fed. R. Civ. P. 56(c) is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Woodside v. School Dist. Of Philadelphia Bd. Of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). Deciding on a summary judgment motion requires that the court "view the evidence...through the prism of the substantive evidentiary burden" in order to ascertain "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
Defendant's 12(b)(1) Motion to Dismiss
Defendant argues that this Court lacks subject matter jurisdiction over plaintiff's retaliation claim because, "[j]udicial review of administrative decisions denying claims for work-related compensation is expressly precluded under the Federal Employees Compensation Act ("FECA")." Nicastro v. Runyan, 60 F. Supp. 2d 181, 186 (S.D.N.Y. 1999). This Court does not disagree with Defendant on the point that judicial review of claims concerning worker's compensation benefits is barred. Nonetheless, care must be taken in ascribing elements of subject-matter jurisdiction to claim-processing provisions. Seegenerally Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (which serves to delineate and clarify the often disorienting distinction between provisions that actually confer subject-matter jurisdiction, as opposed to those that provide procedural prescriptions).
The Court will scrutinize the breadth of pro se plaintiff's claim and that will help to further elucidate the jurisdictional issue.*fn1 Plaintiff has ...