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Peterik v. United States

United States District Court, E.D. North Carolina, Southern Division

March 24, 2017




         This matter comes before the court on defendants' motion to dismiss for lack of subject matter jurisdiction (DE 11). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Kimberly A. Swank issued a memorandum and recommendation ("M&R") (DE 20), wherein it is recommended that the court grant defendants' motion and dismiss the case for lack of subject matter jurisdiction. Plaintiffs timely filed objections to the M&R and defendants responded. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the magistrate judge.


         Plaintiffs filed complaint on March 10, 2016, asserting 1) age discrimination and whistleblower claims on behalf of plaintiff Mathew S. Peterik ("Peterik"), on the basis of alleged wrongful termination from his position as a police officer / accident investigator in the Marine Corps Police Department at Camp Lejeune, North Carolina, and imposition of additional adverse employment conditions; and 2) whistleblower claims on behalf of plaintiffs Mattew E. Powell ("Powell") and Joseph Buoni, III ("Buoni"), on the basis of imposition of adverse employment conditions against them. Plaintiffs contend that they were subjected to such wrongful termination and adverse employment conditions after they engaged in protected whistleblower activity by reporting matters of public concern, which they summarize as follows:

A. Official reports are grossly inflated by MCPD [Marine Corps Police Department] to obtain additional federal funding. For example, from 2014 to the present the MCPD required its officers to expend time and resources completing written incident reports for minor calls for service for the sole purpose of generating revenue, at great cost and expense for taxpayers;
B. MCPD has withheld employees' medical documentation, mishandled workers' compensation claims, refused to pay legitimately earned overtime, doctored time sheets to cheat employees, attempted to coerce Union officers, and used management powers to pursue personal vendettas against employees, including but not limited to mismanagement, manipulation and abuse of time sheets and related protocols through falsification or forgery, giving overtime pay to supervisors who are ineligible to receive it and awarding bonuses based upon friendship rather than merit;
C. MCPD officials use unwarranted investigations and suspensions or transfers of employees who speak out against ongoing corruption, abuse of power, negligence and poor management as punishment to deter those employees from speaking out; and
D. The investigations, aforesaid, are based upon fabricated or marginal facts and circumstances and are conducted by unqualified individuals with questionable and/or criminal backgrounds; further, the names of the employees being investigated are publicly displayed as further punishment against them.

(Compl. ¶ 28). As pertinent to the instant motion, plaintiffs sought administrative recourse for their discrimination and whistleblower claims through several avenues before filing suit in this court. The court adopts and incorporates herein as its own the summary of administrative action as set forth in the M&R (DE 20 at 2-4), supplemented by further discussion in the analysis below.

         Defendants filed the instant motion to dismiss on May 19, 2016, asserting that the court lacks subject matter jurisdiction over plaintiffs' claims because plaintiffs failed to exhaust their administrative remedies prior to commencing the instant lawsuit. In support of their motion, defendants attach documents outside of the pleadings, including forms and records from plaintiffs' administrative proceedings, including appeal before the Merit Systems Protection Board ("MSPB"). (See DE 12-1 to 12-19). In opposition to the motion, plaintiffs rely upon their own affidavits, as well as additional records from plaintiffs administrative proceedings, including those before the United States Marine Corps Equal Employment Opportunity Office ("EEOO") and the United States Office of Special Counsel ("OSC"). (See DE 2-1 to 2-2; DE 15-1 to 15-8; DE 21-1 to 21-3).


         A. Standard of Review

         The court may "designate a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and recommendations for the disposition [of a motion to dismiss]." 28 U.S.C. § 636(b)(1)(B). The parties may object to the magistrate judge's findings and recommendations, and the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis. 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

         A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction, and a plaintiff bears the burden of showing that subject matter jurisdiction is appropriate when challenged by a defendant. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 (1936); Adams v. Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams, 697 F.2d at 1219. When the defendant challenges the factual predicate of subject matter jurisdiction, as here, a court "is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, ...

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