THOMAS McGRADY v. United States Postal Service

The Hon. Patrick J. Duggan, United States District Judge for the Eastern District of*
Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0499n.06
Filed: August 14, 2008
07-3947
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THOMAS McGRADY,
Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN, District Judge.*
PER CURIAM. Former Postal Service employee Thomas McGrady appeals the
district court’s dismissal of his declaratory judgment action, in which he sought a ruling that
the Postal Service (USPS) had failed to credit him properly with service points reflective
of his status as a disabled veteran, in violation of the Veteran’s Employment Opportunities
Act of 1998 (VEOA or Act), 5 U.S.C. § 3330a. McGrady claims that the district court erred
in dismissing his claim for lack of subject matter jurisdiction, contending (1) that because
the relief he sought was equitable rather than legal, sovereign immunity was waived and
(2) that the crediting error constituted a continuing violation remediable under the VEOA.
We conclude that sovereign immunity was improperly invoked in this case but that the

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district court correctly determined that subject matter jurisdiction could not be established
because the miscalculation of service points in McGrady’s case predated the effective date
of the Act and the continuing violation doctrine was inapplicable.
The record establishes that McGrady served in the United States Navy and was
honorably discharged after he was injured in the course of his military service. In 1981, he
took a competitive examination for employment with the USPS, at which time he was rated
as 10 percent disabled by the Veterans’ Administration. He brought his disability status to
the attention of the USPS during the application process but, apparently through a clerical
error, it was not properly recorded. McGrady was not hired by the USPS until 1984, when
he was appointed to a career position as a postal distribution clerk.
In 1996, the USPS notified McGrady that “an administrative error may have been
made” in his personnel file because he was credited with only five preference points as a
veteran, instead of the ten points to which he was entitled as a disabled veteran. In 2005,
after voluntary separation from the USPS, McGrady filed a complaint against the postal
service in district court seeking declaratory relief under 28 U.S.C. §§ 2201-02, claiming that
the actions of the USPS violated his rights as a disabled veteran under 5 U.S.C. § 2108,
which is the legislative source of the preferential-points system; under 5 C.F.R. § 332.401,
which requires that federal personnel who are veterans be accorded proper credit; and
under 5 U.S.C. § 2302(b), which prohibits a USPS employee from taking a personnel
action that would violate a veterans’ preference requirement. Specifically, McGrady sought

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a “declaration of his rights in his employment relationship with the USPS” and injunctive
relief in the form of “retrospective re-calculation of [his] pension, vacation, and other
economic benefits arising from his former employment with the U.S. Postal Service.”
The USPS moved to dismiss for lack of subject matter jurisdiction and asserted
sovereign immunity. In response, plaintiff claimed to be protected under both the VEOA
and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59. The district court
dismissed the complaint on alternative grounds, holding, first, that it was barred by
sovereign immunity because “what the plaintiff wants is money, not a simple declaration
that he has been wronged.” The district court further held that the VEOA did not become
effective until October 31, 1998, and is not retroactive, thus affording the plaintiff no relief
for an error made in 1981, of which he had official notice in 1996. The court ruled that
while the effects of the miscalculation might have continued past the effective date of the
VEOA, the “continuing violation doctrine” was inapplicable in this matter, relying on Bell v.
Ohio State University, 351 F.3d 240, 247 (6th Cir. 2003), because the underlying activity
itself had not continued but was completed in 1981. Finally, citing 39 U.S.C. § 410(a) and
Ryon v. O’Neill, 894 F.2d 199, 204 (6th Cir. 1990), the district court noted that the APA is
inapplicable to the USPS and that review of personnel actions is not available under the
APA or other general jurisdiction statutes.
On appeal, the plaintiff contends that the district court’s jurisdiction can be upheld
on the basis of the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the federal

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question statute, 28 U.S.C. § 1331. Unfortunately for the plaintiff, neither of those statutes
creates an independent right of action that would entitle the plaintiff to relief. Moreover, he
now appears to concede that the VEOA is not retroactive, relying instead on the argument
made in the district court that the violation in this case was a continuing one that brought
the statutory violation within the reach of the VEOA.
“We review de novo a district court’s grant of a motion to dismiss on the basis of
subject matter jurisdiction. When a defendant moves to dismiss for lack of subject matter
jurisdiction, the plaintiff has the burden of proving jurisdiction in order to survive the
motion.” Wisecarver v. Moore, 489 F.3d 747, 749 (6th Cir. 2007) (internal citations and
quotation marks omitted). We concur in the district court’s determination that the plaintiff
did not discharge his burden in this regard, although it appears that district court was
incorrect with regard to its ruling on the right of the USPS to claim sovereign immunity,
which was statutorily waived by Congress in 39 U.S.C. § 401(1). See Franchise Tax Bd.
v. United States Postal Serv., 467 U.S. 512, 518-20 (1984).
Nevertheless, the district court was correct in holding that the plaintiff cannot rely
on the VEOA to establish jurisdiction in this case. As the court noted, the Act became
effective on October 31, 1998; it set up a statutory scheme for dealing with alleged
violations of the veterans’ preference system that replaced a less formal arrangement in
use under earlier preference schemes. By its own terms, the Act is not retroactive. See
generally 5 U.S.C. §§ 2108, 3309, 3330a. Indeed, the current administrative requirements

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that must be exhausted prior to commencement of an action in district court mandate the
filing of a complaint with the Secretary of Labor within 60 days of an alleged violation and
the filing of an appeal to the Merit Systems Protection Board within a specified period if no
resolution results from that complaint. See 5 U.S.C. §§ 3330a(a)(2)(A), (d)(1). Obviously,
because the new procedure did not go into operation until 1998, there would be no
possible way to meet the statutory limits if the violation in question occurred in 1981, even
if we were to hold that the 60-day period ran from the date of notification in 1996. See
Lapuh v. Merit Sys. Prot. Bd., 284 F.3d 1277, 1280-81 (Fed. Cir. 2002).
The district court was also correct in rejecting the plaintiff’s continuing violation
theory. As the defendant notes, that theory constitutes an exception “to the usual rule that
statutes of limitations are triggered at the time the alleged [violation] occurred.” Alexander
v. Local 496, Laborers’ Int’l Union, 177 F.3d 394, 408 (6th Cir. 1999). “[W]here there is an
ongoing, continuous series of discriminatory acts, they may be challenged in their entirety
as long as one of those discriminatory acts falls within the limitations period.” Haithcock
v. Frank, 958 F.2d 671, 677 (6th Cir. 1992). The theory does not extend to the mere
effects of a discrete act, where the act itself does not fall within the limitation period. See
Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2169 (2007).
For the reasons set out above, we uphold the district court’s determination that it
lacked subject matter jurisdiction in this matter and AFFIRM the judgment entered by the
district court dismissing the complaint on that basis.

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