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Bortz v. United States

United States District Court, W.D. Pennsylvania

August 13, 2014

ROBERT M. BORTZ Plaintiff,
v.
UNITED STATES OF AMERICA Defendant.

OPINION AND ORDER

MAURICE B. COHILL, Jr., Senior District Judge.

Plaintiff Robert M. Bortz, proceeding pro se, originally commenced this action against Anthony Battle, an employee of the United States Postal Service, by filing a Complaint in the Allegheny County Magisterial District Court on May 9, 2014. In his Complaint, Mr. Bortz alleges that Mr. Battle, his supervisor, took $223.09 from Mr. Bortz's paycheck, which is the amount of damages Mr. Bortz seeks from Defendant.

On June 2, 2014, viewing the Complaint as asserting an intentional tort, the United States removed the case to this Court pursuant to 28 U.S.C. §§ 1442 & 1346(b). On June 4, 2014, we granted the United States Motion for Substitution of Party, and substituted the United States as Defendant for Anthony Battle. Presently before the Court is the Defendant's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment, with Brief in Support. ECF Nos. 7 & 8. Mr. Bortz responded to the motion on July 8, 2014. ECF No. 10. For the reasons that follow we will grant Defendant's motion and dismiss this action.

I. Relevant Factual Background

The relevant facts are as follows. Plaintiff Robert M. Bortz is an employee of the United States Postal Service. Mr. Bortz reported off work and requested sick leave on December 7, 2013. His immediate supervisor approved the sick leave. However, Mr. Bortz asserts that Mr. battle thereafter directed Mr. Bortz's immediate supervisor to reverse the leave, resulting in $223.09 being taken from his pay.

Mr. Bortz filed a Grievance that appears to have been initially decided on December 31, 2013, followed by an appeal on January 10, 2014. Ex. D, attached to Def.'s Br. On May 14, 2014, the grievance was "resolved in the following manner: The 8 hours of LWOP on 12/7/13 will be changed to 8 HRS sick leave. The absence will remain unscheduled." Ex. B, attached to Def.'s Br.

Defendant seeks to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) based on failure to exhaust administrative remedies. Alternatively, Defendants seek dismissal because Mr. Bortz's claim is moot, in light of the fact that Mr. Battle's decision to adjust Mr. Bortz's pay has been reversed and he has been awarded sick leave for the day in question through the grievance process. To the extent Mr. Bortz is asserting other claims Defendant seeks dismissal on the basis that the United States has not waived its sovereign immunity

II. Standards of Review

With regard to Rule 12(b)(1), the United States Court of Appeals for the Third Circuit has explained that such a motion 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 are asserting a factual challenge. 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 plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Robinson , 107 F.3d at 1021 (quoting Mortensen , 549 F.2d at 891).

In ruling on a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted a Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008), quoting Pinker v. Roche Holdings Ltd. , 292 F.3d 361, 374 n. 7 (3d Cir. 2002), and citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 563, n.8 (2007). A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S.662, 678 (2009), citing Twombly , 550 U.S. at 555.

Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 n. 2 (3d Cir.1994); see also In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1426 (3d Cir.1997). When a Rule 12(b)(6) motion to dismiss contains and relies on matters outside the pleadings, and the court does not exclude these matters, instead it must be treated as a motion for summary judgment. In re Rockefeller Center Properties, Inc. Securities Litigation , 184 F.3d 280, 287 (3d Cir.1999); DeTore v. Local 245 , 615 F.2d 980 (3d Cir. 1980) (if a motion involves matters of fact outside the pleadings, then it must be treated as a motion for summary judgment). However, in adjudicating motions to dismiss, courts can consider materials integral to the complaint without converting the motion to one for summary judgment. In re Burlington Factory Securities Litigation , 114 F.3d 1410, 1426 (3d Cir.1997).

"When deciding a motion to dismiss, it is the usual practice for a court to consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." City of Pittsburgh v. West Penn Power Co. , 147 F.3d 256, 259 (3d Cir. 1998) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990)); see also Rogan v. Giant Eagle, Inc. , 113 F.Supp.2d 777, 782 (W.D. Pa. 2000). "Documents that the defendant attaches to the motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to the claim; as such, they may be considered by the court.'" Pryor v. NCAA , 288 F.3d 548, 560 (3d Cir. 2002) (quoting 62 Fed.Proc., L.Ed. § 62:508). In this regard, the documents attached to Defendant's motion to ...


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