Opinion
Civil No. 02-2684 (HL).
August 24, 2004
MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION
Now before the Court is defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment ( Docket No. 14). Plaintiffs sought and received an extension of time up to June 30, 2004, to file their response ( Docket Nos. 16, 17). Despite the extension, plaintiffs did not file their response until August 5, 2004 ( Docket No. 18). The motion was referred to the undersigned Magistrate-Judge for Report and Recommendation Docket No. 15). Because this Court lacks subject matter jurisdiction and alternatively because the matter is barred by the applicable limitation period, it is RECOMMENDED that the Motion to Dismiss be GRANTED.
I. Procedural and Factual Background
Plaintiffs filed their complaint on November 14, 2002, alleging jurisdiction and venue pursuant to 20 U.S.C. § 241 and 10 U.S.C. § 2164 ( Docket No. 1). The plaintiffs are and/or were nonprofessional employees of the Antilles Consolidated School Systems of the Antilles Consolidated School Systems of the Department of Defense Education Activity in San Juan, Puerto Rico. Suit was brought against the Department of Defense.
Plaintiffs contend that they are entitled to certain benefits from 1992 until October 1, 1994, the date in which 20 U.S.C. § 241, was repealed. Those benefits include compensation, tenure and leave on the same basis as their counterpart employees in the District of Columbia public school system. The portion of the statute plaintiffs rely on provides that:
"Personnel provided under this subsection outside of the continental United States, Alaska, and Hawaii, shall receive compensation, tenure, leave, hours or work, and other incidents of employment on the same basis as provided for similar positions in the public schools of the District of Columbia.
10 U.S.C. § 241(a) (Court's emphasis).
The foregoing statute was replaced by 10 U.S.C. § 2164 which provides in relevant part that:
In fixing the compensation of employees in schools established in the territories, commonwealths, and possessions pursuant to the authority of this section, the Secretary shall determine the level of compensation required to attract qualified employees. For employees in such schools, the Secretary, without regard to the provisions of title 5, may provide for the tenure, leave, hours of work, and other incidents of employment to be similar to that provided for comparable positions in the public schools of the District of Columbia.10 U.S.C. § 2164(e)(3)(B) (Court's emphasis).
On April 16, 2003, plaintiffs moved to amend the complaint indicating they had failed to name as the proper defendant, the United States of America ( Docket No. 3). Plaintiffs referred to the Federal Torts Claim Act, specifically 28 U.S.C. § 2671, to support their motion to amend. Section 2671 provides that "the term `federal agency' includes `the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States." 28 U.S.C. §§ 2671.
Thereafter, on May 23, 2003, an amended complaint was filed naming the United States of America as a defendant ( Docket No. 7). Other than naming the United States as a defendant the allegations in the complaint remained the same.
Defendants now move to dismiss, or in the alternative, for summary judgment ( Docket No. 14).
II. Analysis
Defendants seek dismissal of this case on several grounds. The defendants contend that the complaint fails to plead a waiver of sovereign immunity and further that sovereign immunity bars claims against the United States. The defendants also argue that the complaint was not filed within the applicable limitation period and that it is also barred by the doctrine of laches. Next, the defendants contend that the complaint fails to state a claim upon which relief can be granted. Finally, defendants assert that, even if the Court finds it has jurisdiction over the allegations raised in the Amended Complaint, summary judgment is appropriate, inasmuch as during the period at issue in this lawsuit the plaintiffs' exclusively elected union representative failed to bargain collectively with the Secretary of Defense over the terms and conditions of employment, including pay.
Plaintiffs respond that this Court can exercise its jurisdiction based upon the provisions in the Back Pay Act, inasmuch as the compensation claimed arose from a federal law that conceded compensation to federal employees. Further, they argue said compensation was wrongfully withheld or unpaid in violation of law. Plaintiffs also respond that this matter is not barred by laches as the government had shown no prejudice as a result of the delay in the filing of the complaint. Plaintiffs further argue that they have stated a cognizable claim for relief so that dismissal is not proper under Rule 12(b)(6). Finally, plaintiffs contend that defendants are not entitled to summary judgment as a matter of law.
A. Rule 12(b)(1) Motion — Standard
Under Rule 12(b)(1), defendants may move to dismiss an action against them based on lack of federal subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Since federal courts have limited jurisdiction, the party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction. Sarbroso Publ'g, Inc. v. Caiman Records Am., Inc., 141 Fed.Supp.2d 224, 226 (D.P.R. 2001) (citations omitted). In assessing a motion to dismiss for lack of subject-matter jurisdiction, a district court "must construe the complaint liberally, treating all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs." Viqueira v. First Bank, 140 F.3d 12 (1st Cir. 1998) (citing Royal v. Leading Edge Prods., Inc., 833 F.2d 1 (1st Cir. 1987)). Additionally, during such process, a court may review any evidence, including submitted affidavits and depositions, to resolve factual disputes bearing upon the existence of jurisdiction. Sarboso Publ'g, 141 Fed.Supp.2d at 226 (citing Land v. Dollar, 330 U.S. 731, 734-35 (1947); Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996) (citation omitted); Baker v. Westin Rio Mar Beach Resort, Inc., 194 F.R.D. 393, 395 (D.P.R. 2000)). When deciding whether to dismiss a complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), courts "may consider whatever evidence has been submitted, such as the depositions and exhibits submitted . . ." Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).
B. Sovereign Immunity
In order for a Federal Court to exercise jurisdiction over a claim against the United States, there must be a clear statutory waiver of sovereign immunity. "Absent a waiver, a sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994) ( citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Federal Hous. Admin. v. Burr, 309 U.S. 242, 244 (1940)). A suit against an executive department of the United States, or against departmental employees in their official capacities, is a suit against the United States and is, therefore, subject to the defense of sovereign immunity. Hawaii v. Gordon, 373 U.S. 57, 58 (1963).
Only Congress can waive the sovereign immunity of the United States. United States v. Testan, 424 U.S. 392, 399 (1975). Waivers of sovereign immunity cannot be implied, but must be unequivocally expressed. Lane v. Pena, 518 U.S. 187, 192 (1996) (waiver of sovereign immunity "must be unequivocally expressed in the statutory text . . . and will not be implied"). Moreover, even when Congress expressly waives the Federal Government's immunity from suit, that waiver must be strictly construed and must not be enlarged beyond the literal language of the statute. Library of Congress v. Shaw, 478 U.S. 310, 315-318 (1986).
Sovereign immunity is jurisdictional in nature. Without a clear waiver, a court has no jurisdiction over a claim against the United States or its agencies or officials. United States v. Mitchell, 463 U.S. 206, 212 (1983) ("[i]t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction").
In the case at bar, the defendants' position is well-taken and the complaint must be dismissed for that reason alone. In the instant case, plaintiffs bring suit against the United States of America and the Antilles Consolidated School Systems of the Department of Defense. As a result, the plaintiffs are required to seek redress against the Federal Government under the provisions of a claim that expressly waives the United States' immunity from suit. This the plaintiffs have failed to do. While plaintiffs argue that this Court has jurisdiction pursuant to the Back Pay Act, nowhere in the complaint is such a jurisdictional statement. It is required that the plaintiffs "set forth in the complaint the specific statute containing a waiver of the government's immunity from suit." Millet v. United States Dep't of Army, 245 F. Supp.2d 344, 351 (D.P.R. 2002) (citations omitted). Accordingly, plaintiffs' claims fail, as a matter of law, because they did not identify an applicable and relevant waiver of sovereign immunity.
C. Jurisdiction and the Limitation Period
As discussed above, the plaintiffs contend that the United States has given its explicit consent to suit by reason of the Back Pay Act, 5 U.S.C. §§ 5596, et seq. Unfortunately for plaintiffs, the Back Pay Act does not vest jurisdiction within this Court.
Plaintiffs cannot invoke district court jurisdiction of their claims under the Back Pay Act, because said Act is not an independent basis for jurisdiction. See Bowen v. Massachusetts, 487 U.S. 879, 907 n. 42 (1988) (noting that Back Pay Act suits are brought pursuant to Tucker Act jurisdiction). Indeed, "[t]he Back Pay Act is not itself a jurisdictional statute. It is merely derivative in application, depending on a prior finding of appropriate jurisdiction in the Claims Court." Mitchell v. United States, 930 F.2d 893, 896 n. 3 (Fed. Cir. 1991); Jaynes v. Johnson, 65 Fed.Appx. 176, 178 (9th Cir. 2003). More so, it is the Tucker Act that serves as a jurisdictional basis for enforcement of substantive rights created by the Classification and Back Pay Acts. United States v. Testan, 424 U.S. 392, 398 (1976). Under the Tucker Act, 28 U.S.C. § 1491, the United States waived its sovereign immunity from nontort claims for money damages and specified which courts could hear such claims. See United States v. Testan, 424 U.S. at 398.
Claims against the United States exceeding $10,000 ("Big" Tucker Act claims), founded upon the Constitution, a federal statute, a regulation, or contract, are in the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491. The district courts and the Court of Federal Claims have concurrent jurisdiction over "Little" Tucker Act claims, i.e., for money damages up to $10,000. 28 U.S.C. § 1346(a)(2) (Little Tucker Act); Charles v. Rice, 28 F.3d 1312, 1322 (1st Cir. 1994); Sibley v. Ball, 924 F.2d 25, 28-29 (1st Cir. 1991).
As the defendants correctly note, it appears that in the instant case jurisdiction lies with the Court of Claims. Pursuant to 28 U.S.C. § 1491(a)(1):
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution or any regulation of an executive department, or upon any express of implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.28 U.S.C. § 1491.
Additionally, actions over which the Court of Claims has jurisdiction are barred unless filed within six years after the claim accrues. 28 U.S.C. § 2501. A cause of action accrues when all events affecting the alleged liability of the United States have occurred. Kirby v. United States, 201 Ct.Cl. 527, 532 (1973) (the cause of action accrued on the date that the plaintiff was discharged); Oceanic S.S. Co. v. United States, 165 Ct.Cl. 217, 225 (1964). Even if this Court did not lack jurisdiction of these claims under the Back Pay Act, the applicable statute of limitations bars this court from taking jurisdiction over plaintiffs' claims for any sum representing wages which were due more than 6 years prior to November 14, 2002, when plaintiffs filed their complaint. Kirby, 201 Ct.Cl. at 531; Todd v. United States, 292 F.2d 841, 844, 155 Ct.Cl. 87, 93 (1961). Here, the cause of action accrued on the day the plaintiffs were to receive payment for the pay period ending at or around October 1, 1994. This is the date when 20 U.S.C. § 241, the statute under which plaintiffs seek relief, was repealed. The plaintiffs filed this action on November 14, 2002, more than eight years after said repeal and two years after the statute of limitations had expired.
Regardless, plaintiffs claim that their complaint is saved by the doctrine of laches. Their position is that the government must show prejudice by the delay sufficient to bar the action. Plaintiffs have been confused by the burden of proof standard. In applying the doctrine of laches, the Court examines whether plaintiffs' delay in bringing the present suit was unreasonable and whether defendant was prejudiced by the delay. TAG/ICIB Servs., Inc. v. Pan Am. Grain Co., 215 F.3d 172, 175 (1st Cir. 2000). If plaintiffs filed their complaint within the analogous statute of limitations period, the defendants have the burden of proving unreasonable delay and prejudice. Id. If, however, plaintiffs filed the complaint after the statute of limitations expired, a presumption of laches is created, and plaintiffs have the burden of demonstrating that there was no unreasonable delay in bringing the lawsuit and that defendant were not prejudiced. Id. at 176.
The facts before the Court are that the complaint was filed two years after the limitation period expired. Plaintiffs have proffered no reason for this extreme delay nor that it was reasonable other than to state that they are entitled to monies pursuant to a repealed statute. It is evident that plaintiffs have not demonstrated that the delay in filing this suit was reasonable. Accordingly, this cause is barred by both the applicable limitation period and the doctrine of laches.
The defendants also seek dismissal pursuant to Rule 12(b)(6) for failure to state a claim as well as summary judgment. The undersigned sees no need to tarry further. This Court does not have subject matter jurisdiction. More so, even if it did, plaintiffs' claim is barred by the applicable limitation period as well as the doctrine of laches.
III. Conclusion
It is therefore RECOMMENDED that the Motion to Dismiss ( Docket No. 14) be GRANTED due to this Court's lack of subject matter jurisdiction and alternatively, by reason of the lapsing of the limitation period.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of notice. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).
SO RECOMMENDED.