Crosby v. Defense Commissary Agency (DECA)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SIDNEY T. CROSBY,
Plaintiff,
v.
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Case No. 2:26-cv-00121
DEFENSE COMMISSARY AGENCY
(DECA),
Defendant.
MEMORANDUM AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This lawsuit challenges a three-day workplace suspension issued to a federal employee.
Under the facts of this case, the Court lacks subject matter jurisdiction, so dismissal is
appropriate.1
Plaintiff Sidney T. Crosby, proceeding pro se and in forma pauperis, filed this civil
lawsuit against the Defense Commissary Agency (“DeCA”), his employer. (Doc. Nos. 1, 11.)
He alleges that he was wrongfully issued a three-day suspension from his meatcutter position and
denied due process in contesting it. See Doc. No.1, pp. 3, 5. Because Plaintiff is proceeding in
forma pauperis, his complaint is subject to screening under 28 U.S.C. § 1915(e).
A. Background.
Plaintiff was suspended for three days from his permanent, competitive service
employment as a meatcutter at DeCA’s Commissary at Naval Air Station Corpus Christi, Texas.
(Doc. No. 1, p. 5.) Plaintiff alleges that he was put on administrative leave in February 2025. Id.
1 This case has been referred to the undersigned magistrate judge for case management and recommendations on
dispositive matters pursuant to 28 U.S.C. § 636.
United States District Court
Southern District of Texas
ENTERED
June 18, 2026
Nathan Ochsner, Clerk
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A subsequent notice of a 14-day proposed suspension alleged Plaintiff’s “aggressive”
interactions with coworkers in December 2023, October 2024, November 2024, and January
2025. (Doc. No. 1-2, p. 22.) Among those aggressive interactions were two separate instances
in which Plaintiff allegedly pointed a “10-inch boneless knife” at coworkers while “yelling”
“loud[ly].” Id. In addition to summarizing the incidents giving rise to the suspension proposal,
the notice also alleged that “[t]here have been multiple occasions that your coworkers have
addressed the leadership about your inappropriate behavior in the [workplace]. Your coworkers
have collectively stated that your demeanor is loud, hostile, disrespectful, and not in accordance
with DeCA policy.” Id. at 23.
Plaintiff asserts that he opposed the proposed suspension and provided supporting
documents to “strengthen [his] case” to Zone Manager Christopher Spurlock and Union Steward
Chris Green at a September 25, 2025, hearing. (Doc. No. 1, p. 5.) Following the hearing,
Plaintiff states, his suspension was mitigated to three days. Id. Despite the mitigation, Plaintiff
alleges, his suspension was effectuated “without providing adequate evidence or a fair
investigation” because “witnesses that [he] provided [were] not interviewed by any officials.”
Id.
Plaintiff alleges that he filed an administrative grievance, “detailing the[] errors of the
suspension with supporting documents.” (Doc. No. 1, p. 5.) He claims that his sought-after
“remedies” were “denied with no further review.” Id. Aside from his dissatisfaction with the
review process, Plaintiff alleges that the underlying events to his suspension could not have
happened because he was “off work” on the days of the alleged aggressive conduct.2 (Doc. No.
1, p. 5.)
2 Plaintiff alleges that he was on workers’ compensation from November 19, 2024, to December 18, 2024, and thus
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The Court ordered Plaintiff to answer a questionnaire, seeking information regarding
Plaintiff’s employment, the steps he took (if any) to appeal his suspension, and additional
background regarding his allegations. (Doc. No. 8.) Plaintiff answered the Court’s
questionnaire, stating that he is a career-permanent employee in the competitive service at DeCA
who is not eligible for veteran preference. (Doc. No. 11, p. 2.) Regarding the appeal process of
his suspension, Plaintiff stated that he did not appeal his suspension to the Merit Systems
Protection Board (“MSPB”) because that body “does not have legal jurisdiction to hear or review
suspensions of 14 days or less.” Id. at 3. Plaintiff also included additional information about his
claims, alleging that DeCA did not afford him “just cause” and “fair consideration” or issue its
suspension according to the “applicable laws and regulations.” Id. He confirmed that he brought
this lawsuit simply because he believes the deciding official for his suspension did not
“adequately consider” the evidence that he submitted. Id. at 3-4. Plaintiff also clarified that his
lawsuit does not allege he was suspended as a reprisal for whistleblowing activity, even though
he included retaliatory whistleblowing allegations in his December 2025 grievance. Id. at 4; see
Doc. No. 1-2, p. 2.
B. Legal claim and remedy sought.
Plaintiff’s legal claim is that “DeCA” and “higher officials/management” have “failed to
review the documents properly and follow proper procedures for a fair decision.” (Doc. No. 1, p.
5.) Plaintiff alleges that he lost pay and received a disciplinary action in his personnel file as a
result of the three-day suspension. (Doc. No. 1, p. 5.) This caused him “financial harm and
reputational damage.” Id. Plaintiff is seeking $3,850 in damages for his lost pay and attorney
could not have engaged in the aggressive behavior alleged. (Doc. No. 1, p. 5.) Plaintiff is referring to the two
instances of alleged knife-waving on November 22 and December 17, 2024. (Doc. No. 1-2, p. 22.)
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fees that he incurred contesting the suspension. Id. He also asks the Court to “rescind” his three-
day suspension and order that the records from the disciplinary actions be removed from his
personnel file. Id.
C. Legal standard.
The Prison Litigation Reform Act (“PLRA”) provides that any prisoner action brought
under federal law must be dismissed if the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief from a defendant immune from such
relief. 42 U.S.C. § 1997e(c); 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Section 1915(e)(2)(B) applies
equally to prisoner and non-prisoner cases alike. Patel v. United Airlines, 620 F. App’x 352 (5th
Cir. 2015) (citing Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002)) (applying § 1915(e) to
a non-prisoner). Accordingly, Plaintiff’s action is subject to screening. See Williams v. Becerra,
No. 4:25-CV-2243, 2026 WL 1045680, at *3 n.4 (S.D. Tex. Jan. 15, 2026) (Bennett, M.J.),
adopted, 2026 WL 618201 (S.D. Tex. Mar. 4, 2026).
A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490
U.S. 319, 328-29 (1989). A claim has no arguable basis in law if it is based on an indisputably
meritless legal theory, “such as if the complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (citations omitted).
A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to present
additional facts when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138 F.3d
211, 213 (5th Cir. 1998) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).
“In analyzing the complaint, [the district court] will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324
(5th Cir. 1999) (per curiam). “The issue is not whether the plaintiff will ultimately prevail, but
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whether he is entitled to offer evidence to support his claim. Thus, the court should not dismiss
the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible
theory that he could prove consistent with the allegations in the complaint.” Id. (cleaned up).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff must allege sufficient facts in support of his legal conclusions that give rise to a
reasonable inference that Defendant is liable. Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). The factual allegations must raise Plaintiff’s claim for
relief above the level of mere speculation. Twombly, 550 U.S. at 555. If the complaint, taken as
a whole, gives rise to a plausible inference of actionable conduct, Plaintiff’s claim should not be
dismissed. Id. Furthermore, as Plaintiff proceeds pro se, the Court construes his complaint
liberally in his favor. See Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)).
D. The Court lacks subject matter jurisdiction.
Plaintiff contends that the decision to suspend him for three days was made without fully
considering the evidence that he submitted. (Doc. No. 11, p. 3.) Plaintiff’s allegations generally
sound in a due process violation, see id., and while that would usually “end our inquiry into
subject matter jurisdiction . . . where federal employees contest personnel actions, we must also
ask whether the [Civil Service Reform Act (“CSRA”)] has abrogated the general grant of
jurisdiction to the federal courts.” Zummer v. Sallet, 37 F.4th 996, 1003 (5th Cir. 2022) (citing
Whitman v. Dep't of Transp., 547 U.S. 512, 514 (2006)).
The CSRA “comprehensively overhauled the civil service system.” Zummer, 37 F.4th at
1003 (quoting Lindahl v. Off. Pers. Mgmt., 470 U.S. 768, 773 (1985)). One of the CSRA’s
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features was the creation of the MSPB, “a quasi-judicial agency with the power to adjudicate
disputes arising from adverse personnel actions taken against covered federal employees.” Id.
(citing Lindahl, 470 U.S. at 773-74). “The MSPB's jurisdiction includes review of major adverse
personnel actions such as terminations, suspensions longer than fourteen days, furloughs, and
pay and grade reductions.” Id. (citing 5 U.S.C. §§ 7512, 7513(d)). Federal district courts
normally do not review appeals to the MSPB, as “[t]he U.S. Court of Appeals for the Federal
Circuit has near-exclusive jurisdiction to review MSPB orders and decisions.” Id. at 1004 &
n.12 (citing 5 U.S.C. § 7703(b)(1)(A)). The only instance in which a district court can review an
MSPB decision is for an “adverse action” “motivated by discrimination prohibited by
enumerated civil rights laws.” Id. at 1004 n.14 (listing civil rights statutes). Similarly, a plaintiff
litigating a whistleblower case can seek review in “any court of appeals of competent
jurisdiction.” Id. at 1004 n.15 (quoting 5 U.S.C. §§ 2302(b)(8)-(9), 7703(b)(1)(B)).
Plaintiff is a “covered employee” under the CSRA, 5 U.S.C. § 7511, because he was a
career-permanent employee in the competitive service and had held his position for longer than
one year at the time of the disciplinary action. (Doc. No. 11, p. 1; Doc. No. 1-3, p. 4) (“I have
worked with the Agency for nine years.”). Plaintiff is not eligible for veteran preference or
entitled to any preferential appeal rights. See Doc. No. 11, p. 1; see also Hatton v. Merit Sys.
Prot. Bd., 127 F. App'x 489, 492 (Fed. Cir. 2005)
Because Plaintiff is a covered employee under the CSRA, the proper forum to contest his
personnel decision would normally be the MSPB, not federal district court. But Plaintiff did not
file an appeal there, as he acknowledges in his questionnaire, because the “MSPB does not have
the legal jurisdiction to hear or review suspensions of 14 days or less.” (Doc. No. 11, p. 3.)
Indeed, federal courts have routinely held that the MSPB “lacks jurisdiction over appeals from
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suspensions that are less than fourteen days.” Harms v. I.R.S., 321 F.3d 1001, 1007 (10th Cir.
2003) (citing 5 C.F.R. § 1201.3); Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir.
1985) (plaintiff’s suspensions “totaled, at most, only fourteen days and could not be appealed” to
the MSPB) (citing 5 U.S.C. § 7512; 5 C.F.R. § 1201.3(a)(3)). Plaintiff’s three-day suspension in
this case was thus non-reviewable by the MSPB.
The MSPB’s closed door, however, does not open the door to judicial review in federal
court. The Fifth Circuit recently held that any “gaps in the CSRA's remedial scheme are
intentional; they do nothing to upset its global exclusivity.” Zummer, 37 F.4th at 1007. That is
because the Supreme Court “meant what it said” in Elgin v. Department of the Treasury, 567
U.S. 1 (2012), when it “declared that the CSRA’s remedial scheme [is] ‘exclusive.’” Id. (citing
Gonzalez v. Manjarrez, 558 F. App'x 350, 351-52 (5th Cir. 2014) (per curiam), in turn quoting
Elgin, 567 U.S. at 13-14). This scheme “provides the sole forum for ‘reviewing personnel action
taken against federal employees,’” so personnel claims like Plaintiff’s must be presented through
the MSPB, if they can be presented anywhere at all. Id. at 1008 (quoting Elgin, 567 U.S. at 5).
Accordingly, the Fifth Circuit’s holding that the “CSRA still preclude[s] federal court
jurisdiction despite not providing for review of that constitutional claim” controls here, and
Plaintiff’s three-day suspension is not reviewable by this Court. See id.
Finally, Plaintiff’s procedural due process claim does not fall into an exception that
permits review outside of the Federal Circuit. First, such exceptions apply only to review of
MSPB decisions; Plaintiff never appealed to the MSPB, so there is no decision to review here.
Zummer, 37 F.4th at 1004. Second, Plaintiff makes no allegation that he was discriminated
against in violation of any civil rights law, only that he was deprived due process because all of
his evidence was not (in his view) properly considered. (Doc. No. 1, p. 5; Doc. No. 11, p. 3.)
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Third, the district court is not a “court of appeals of competent jurisdiction,” Zummer, 37 F.4th at
1004, so Plaintiff could not litigate a whistleblower claim here (and he states that he is not
seeking to do so anyway).
The Court lacks subject matter jurisdiction over Plaintiff’s claim. Accordingly, the
district court should dismiss Plaintiff’s complaint without prejudice.
E. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to each
party or counsel. The Clerk will send this Memorandum and Recommendation to Plaintiff by
certified mail with return receipt requested. Within 14 days after being served with a copy of the
Memorandum and Recommendation, a party may file with the Clerk and serve on the United
States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28
U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern
District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within 14 days after being
served with a copy shall bar that party, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED on June 18, 2026.
_____________________________
MITCHEL NEUROCK
United States Magistrate Judge
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