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McDermott v. Potter

United States District Court, W.D. Washington, Seattle

September 11, 2014

LANCE P. McDERMOTT, Plaintiff,
JOHN P. POTTER, Defendant.


MARSHA J. PECHMAN, Chief District Judge.

This matter comes before the Court on Defendant's motion to dismiss (Dkt. No. 34) and Plaintiff's motion to amend his complaint (Dkt. No. 38). Having reviewed the motions, the responses, the replies, and all related papers, the Court GRANTS Defendant's motion (Dkt. No. 34) and DENIES Plaintiff's motion (Dkt. No. 38).


Plaintiff Lance McDermott is employed by the United States Postal Service.[1] (Dkt. No. 28 at 2.) In this lawsuit, he seeks damages, a declaratory judgment, and injunctive relief relating to broad allegations of employment discrimination. He sues John Potter, Postmaster General of USPS as well as several agency officials. (Id. at 2.) Many of his allegations relate to complaints made to the Equal Employment Opportunity Commission ("EEOC"), the handling of those complaints, as well as other grievances made to USPS. (Id. at 3-83.) He alleges sixteen causes of action:

Cause of Action 1 - 5 U.S.C. § Section 702. - Right of review... I ask the Court to find that the FAD [Final Agency Decision] conclusions are arbitrary, abuse of discretion, and not in accordance with constitutional due process, statutory rights or in observation of Administrative Procedures required by law... Cause of Action 2 - 5 U.S.C. § Section 702. - Right of review. FAD, EEO-1E-985-0006-13... Cause of Action 3 - 9 U.S.C. §1614.204 Class Complaints. 10 November 2012 (exhibit 18), I filed a PS Form 2579-B, Notice of Right to File Class with the HRSSC NEE OISO... The Agency has not processed, investigated, or rendered an Final Agency Decision for my Class Action claims within the 180-days of filing... Cause of Action 4 - 5 U.S.C. § Section 702. - Right of review. 6 April 2013 (exhibit 32) I wrote a complaint to the USPS Judicial Officer.... I ask the Court to find that the FAD is in excess of statutory jurisdiction, authority and without observance of procedure required by law.... Cause of Action 5 - 5 U.S.C. § Section 702. - Right of review. Hostile Work Environment (HWE) - Civil Rights Act of 1966, 42 U.S.C. §1981.... I ask the Court to set aside the FAD and find there was a HWE. Cause of Action 6 - American with Disabilities Act (ADA) 42 U.S. Code § 12102(1)(c)... I ask the Court to find the Agency discriminated against me for a perceived disability of partial color blindness that did not limit a life or work activity.... Cause of Action 7 - 5 U.S.C. § Section 702. - Right of review... FAD Enforced Leave (exhibit 34). I also seek action under the Constitution against of other [sic] Agency Officials in their Personal Capacity for violation of my Constitutional rights, 42 § U.S.C. 1983. Cause of Action 8 - 5 U.S.C. § Section 702. - Right of review... FAD. Family Medical Leave Act... I ask the Court to find that the Agency FADs denied me FMLA protection for my color blindness, denied me FMLA right return to work... Cause of Action 9 - 5 U.S.C. § Section 702. - Right of review... FAD removing my Veterans Preference Points... I ask that my Veterans Preference points and military service record in my eOPF be corrected. Cause of Action 10 - Administrative Disputes Resolution Act... I ask the Court to issue a favorable Declaratory Judgment defining the legal rights of both parties on the U.S. Postal Service administrative proceedings for a favorable change... Cause of Action 11 -Reasonable/Probable Cause for Federal Law Enforcement Action... I ask the Court for a Declaratory Judgment that Postal Inspectors must get a minimum (in an emergency) a phone warrant form a Federal judge (show probable cause) before using their Federal Law Enforcement Authority against employees. Cause of Action 12 - Under the authority of the Inspector General Act of 1978, the Agency's OIG has failed to conduct non-discretionary investigations required by law... therefore I ask the Court for Declaratory Judgment that Office of Inspector General mist conduct all Agency administrative (EEO, OSHA, MSPB, HWE, Misconduct) investigation within the jurisdiction of the administrative process that it serves and cancel all administrative Investigation Contracts (save the public's money). Cause of Action 13- 39 CFR §266.6 Procedures for requesting inspection, copying, or amendment of records... I ask the Court for a writ of mandamus to require the Seattle HR Manager to correct my eOPF. Cause of Action 14 - 43 U.S. Code §869(a). The Agency has not provided an opportunity for participation by affected citizens in disposal of Public property that they paid for... I ask the Court for Declaratory Judgment that that [sic] the Agency may not sell any more public property until it accounts for the 22, 000 public facilities... given to it to hold in Public Trust in 1970. Cause of Action 15 - Retaliation, 29 U.S.C. § 29 U.S.C. § 633a.... I did engage in protected activity PRC, OSHA, NLRB USPS Judicial Officer proceedings and a Hostile Work Environment Investigation. My Employer did subject me to adverse action and unlawful employment practices after participation... Cause of Action 16-I filed my MSPB SF-0752-13-0633-I-1... it has been over 180 days and I have not had a decision... I believe that the Court's review of my MSPB claims and EEO claims is necessary and judicially efficient.

(Dkt. No. 30 at 66-74.)

Plaintiff originally filed this case in November 2013. (Dkt. No. 1.) Plaintiff moved to amend his complaint, which the Court granted. (Dkt. No. 7.) The Court, however, denied his request for a preliminary injunction. (Dkt. No. 27.) Defendants moved for a more definite statement. (Dkt. No. 14.) Plaintiff filed two more amended complaints. (Dkt. No. 28, 30.) Defendants now move to dismiss Plaintiff's complaint on the grounds Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Dkt. No. 34.) Plaintiff also moves to amend his complaint for a fourth time. (Dkt. No. 38.)


A. Legal Standard

Rule 12(b)(1) permits a party to challenge the Court's subject matter jurisdiction and raise questions as to standing. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). All allegations in the complaint are taken as true and construed in favor of the nonmoving party. Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003). To establish Article III standing, plaintiffs must show that they (1) suffered an injury in fact that is (2) fairly traceable to the alleged conduct of the defendant, and that is (3) likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992).

A motion to dismiss filed pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Conley v. Gibson , 355 U.S. 41, 45-46 (1957). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 554, 570 (2007)). The plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555.

B. Claims 1, 2, 3, 4, 5, 7, 8, and 9

Plaintiff's claims 1, 2, 3, 4, 5, 7, 8, and 9 request the Court review USPS actions and provide relief under the Administrative Procedures Act ("APA"). Defendants correctly note that these claims are not viable because the Postal Reorganization Act exempts judicial review under the APA of postal service activities. Currier v. Henderson , 190 F.Supp.2d 1221, 1225 (W.D. Wash., Jan. 30, 2002) (aff'd Currier v. Potter , 379 F.3d 716 (9th Cir. 2004)) Specifically, the PRA states that "no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5 [i.e. the APA administrative procedures and judicial review provisions], shall apply to ...

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