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Juan A. Rivera, Jr v. Ray Mabus

March 22, 2011

JUAN A. RIVERA, JR., PLAINTIFF,
v.
RAY MABUS, SECRETARY, U.S DEPARTMENT OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I. INTRODUCTION

Before the Court is Defendant's Motion to Dismissfor Lack of Jurisdiction (Doc. No. 6), Plaintiff's Response in Opposition (Doc. No. 9), and Defendant's Reply in Further Support of Motion to Dismiss (Doc. No. 10). Plaintiff Juan A. Rivera commenced this action on June 6, 2010 against Defendant Ray Mabus, Secretary of the United States Department of the Navy (Doc. No. 1). In the Complaint, Plaintiff alleges arbitrary and unlawful employment termination. He further alleges that the decision to terminate him was pretextual and rather was based on national origin, race and disability in violation of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. For reasons that follow, Defendant's Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for Lack of Jurisdiction will be granted.

II. FACTUAL AND PROCEDURAL BACKGROUND

In November 2008, Plaintiff Juan A. Rivera, a United States Army Veteran, was hired as a Police officer with the Navy's Regional Security Directorate. (Doc. No. 1 ¶ 5.) Plaintiff successfully passed the required drug test and pre-employment physical. (Id. ¶ 6.) Pursuant to a Navy request, Plaintiff applied for a government travel credit card through CitiBank. (Id. ¶ 7.) Under the assumption that having a higher credit limit would be a positive factor, Plaintiff sought a credit card with the higher limit. (Id. ¶ 9.) On April 22, 2009 CitiBank informed Plaintiff that he did not meet the credit standards for the higher limit card and that his application was denied. (Id. ¶ 11.) When Plaintiff reported this rejection to the Navy, he was told that possession of a government travel credit card was a condition of employment and without one he could not remain at his position. (Id. ¶ 12.) Therefore, effective May 8, 2009, Plaintiff was terminated. The termination occurred during his probationary period. (Id. ¶ 13.)

On May 15, 2009 Plaintiff appealed his termination to the United States Merit Systems Protection Board ("MSPB" or "Board"). Plaintiff alleged there was no factual or legal basis for his termination based on the failure to secure a travel credit card. He asserted that there was nothing in writing officially stating that possession of a government travel credit card was a condition of employment. (Id. ¶¶ 14-15.) He also claimed that his termination was discriminatory based on his Puerto Rican origin, Hispanic race and diabetes disability. (Id. ¶ 17.) Plaintiff attempted to establish jurisdiction in the MSPB to hear his appeal by alleging that the termination was based upon pre-employment matters. (Id.)

On August 19, 2009, the MSPB dismissed Plaintiff's termination appeal for lack of jurisdiction. (Id. ¶ 19; Id. Ex. "A" at 1.) Plaintiff then sought review of the initial MSPB decision, and in an Opinion dated May 7, 2010, the MSPB affirmed the initial decision to dismiss the appeal of his termination for lack of jurisdiction.*fn1 (Id. ¶ 20.)

Subsequently, on June 10, 2010, Plaintiff filed the Complaint in this Court alleging arbitrary and unlawful employment termination and that the MSPB's dismissal decision was unlawful. He further asserts that the decision to terminate him was pretextual based on national origin, race and disability. (Id. ¶¶ 22-24.) On September 30, 2010, Defendant filed a Motion to Dismiss the Complaint for Lack of Jurisdiction arguing that the power to hear this case lies exclusively with the Court of Appeals for the Federal Circuit.

III. DISCUSSION

Title 5, United States Code, Section 7703 governs judicial review of decisions of the MSPB. It provides in relevant part that:

(b)(1) Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the [MSPB] shall be filed in the United States Court of Appeals for the Federal Circuit. . . .

(2) Cases of discrimination subject to the provisions of Section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 . . . .

5 U.S.C. § 7703(b)(1)-(2). Title 5, United States Code, Section 7702, referred to in Section 7703(b)(2), provides the prerequisite for when an action involving discrimination can be heard by a district court. Jurisdiction in a district court is proper when an employee--

(A) has been affected by an action which the employee or applicant may appeal to the [MSPB], and (B) alleges that a basis for the action was discrimination prohibited by (i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), (ii) section 6(d) of the Fair Labor Standards Act of 1938 . . . (iii) section ...


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