Mobin v. United States

22 Cl. Ct. 331, 1991 U.S. Claims LEXIS 17, 1991 WL 5969
CourtUnited States Court of Claims
DecidedJanuary 23, 1991
DocketNo. 90-138C
StatusPublished
Cited by8 cases

This text of 22 Cl. Ct. 331 (Mobin v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mobin v. United States, 22 Cl. Ct. 331, 1991 U.S. Claims LEXIS 17, 1991 WL 5969 (cc 1991).

Opinion

OPINION

ANDEWELT, Judge.

In this civilian pay action, plaintiff, Said Mobin, a dismissed federal employee, seeks restoration of his federal position plus attendant back pay. This action is presently before the court on defendant’s RUSCC 12(b)(1) motion to dismiss the complaint for lack of jurisdiction. For the reasons set forth below, defendant’s motion is granted.

I.

In November 1987, the United States Department of the Air Force (Air Force) dismissed plaintiff from his position as a civilian supervisory electrical engineer on the ground of unsatisfactory performance. Plaintiff appealed his dismissal to the Merit Systems Protection Board (MSPB) and alleged that his dismissal was improper and the product of (1) national origin discrimination, (2) religious discrimination, (3) reprisal for whistleblowing, and (4) harmful procedural error. The administrative law judge upheld plaintiff’s dismissal. Plaintiff then sought review of the MSPB administrative law judge’s initial decision. In an August 9, 1988, order, the MSPB denied plaintiff’s petition for review.

Thereafter, on September 7, 1988, plaintiff appealed the MSPB’s decision to the Equal Employment Opportunity Commission (EEOC). The EEOC concurred with the MSPB and held that plaintiff had failed to establish that the Air Force had based plaintiff’s dismissal on discrimination. In addition, the EEOC notified plaintiff that he had no further right to administrative appeal within the EEOC but could file a civil discrimination suit in district court. On January 13, 1989, plaintiff filed such a suit in the United States District Court for the District of Nevada. In a December 18, 1989, order, the district court dismissed plaintiff’s complaint due to a service defect. On January 19, 1990, plaintiff filed a motion to extend the time within which he could appeal the order of dismissal, but the court denied it as untimely filed.

On February 12, 1990, plaintiff filed the instant complaint seeking restoration of his federal position plus attendant back pay and a correction of related government records. Defendant responded with its motion to dismiss for lack of subject matter jurisdiction.

In response to defendant’s motion to dismiss, plaintiff alleges a number of distinct sources of Claims Court jurisdiction for this action, including: (1) the Tucker Act, 28 U.S.C. § 1491(a); (2) the Back Pay Act, 5 U.S.C. § 5596; (3) the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 [333]*333Stat. 16 (1989); (4) the “Fair Labor Relations Act,” (5) the Administrative Procedures Act, 5 U.S.C. § 706(2)(A); (6) Chapter 43 of the Civil Service Reform Act, 5 U.S.C. § 4304; and (7) the fifth amendment to the Constitution (due process and takings clauses). Upon review, however, none of these sources provides this court with jurisdiction over plaintiffs cause of action.

II.

Plaintiff’s effort to secure review in this court of his dismissal runs afoul of Congress's intent in adopting the Civil Service Reform Act of 1978 (CSRA), as interpreted by the Supreme Court in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). Prior to the adoption of the CSRA, a federal employee could challenge certain types of federal personnel decisions in the Court of Claims pursuant to the Tucker Act, 28 U.S.C. § 1491. Id. at 444-45, 108 S.Ct. at 671-72. In Fausto, the Supreme Court reviewed the effect of the CSRA on such Tucker Act jurisdiction. The Court concluded that in adopting the CSRA, Congress sought to replace the pre-existing patchwork system for administrative and judicial review of agency personnel decisions with an “integrated scheme ... designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.” Id. at 445, 108 S.Ct. at 672. The Court described Congress’s scheme as follows:

[This scheme is based on] the primacy of the MSPB for administrative resolution of disputes over adverse personnel action ... and the primacy of the United States Court of Appeals for the Federal Circuit for judicial review____ This enables the development, through the MSPB, of a unitary and consistent Executive Branch position on matters involving personnel action, avoids an “unnecessary layer of judicial review” in lower federal courts, and “[e]ncourages more consistent judicial decisions____” S.Rep. No. 95-969 at 52. See Lindahl v. OPM, 470 U.S. [768,] 797-98 [105 S.Ct. 1620, 1636-37, 84 L.Ed.2d 674] [1985].

Id. at 449, 108 S.Ct. at 674.

The sole pertinent exception to direct review of MSPB decisions in the Court of Appeals for the Federal Circuit (CAFC) relates to decisions on claims of discrimination. Pursuant to 5 U.S.C. § 7703(b)(2), judicial review of federal employee allegations of improper actions based on discrimination due to religion or national origin “shall be filed under Section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e)-16(c)).” But the district court, and not the Claims Court, is the proper forum for such judicial review. Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976) (the administrative and judicial (district court) scheme created in Title VII of the Civil Rights Act of 1964 provides the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination,” id. at 829, 96 S.Ct. at 1966). In any event, Section 7703(b)(2) provides that any suit seeking judicial review of a discrimination claim reviewable by the MSPB must be filed within 30 days after receipt of notice of the judicially reviewable action (here, 30 days after the EEOC action). Plaintiff filed the instant case nearly one and one half years after the EEOC’s ruling.

III.

None of the statutory and constitutional authorities relied upon by plaintiff provides this court subject matter jurisdiction to entertain the instant action.

1. The Tucker Act

The Tucker Act, 28 U.S.C. § 1491, itself, does not create any substantive right to recover money from the government in a suit in the Claims Court. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Rather, it merely permits the Claims Court to hear suits based on a substantive right created in another statute, a regulation, or a contract. Id.

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Bluebook (online)
22 Cl. Ct. 331, 1991 U.S. Claims LEXIS 17, 1991 WL 5969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobin-v-united-states-cc-1991.