            Case: 12-13252    Date Filed: 04/17/2013   Page: 1 of 12


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-13252
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 3:11-cv-00075-MMH-TEM



M. EUGENE GIBBS,

                                                              Plaintiff-Appellant,

                                    versus

UNITED STATES OF AMERICA,
Justice Department, Labor Department,
DOES 1 - 100,

                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (April 17, 2013)

Before CARNES, HULL, and JORDAN, Circuit Judges.

PER CURIAM:
                Case: 12-13252       Date Filed: 04/17/2013       Page: 2 of 12


       M. Eugene Gibbs, proceeding pro se, appeals the district court’s dismissal of

his second amended complaint as well as the district court’s denial of his motion to

amend his complaint and the grant of the defendants’ motion to stay the

requirement that the parties file a case management report. 1 Gibbs is a former

attorney who was disbarred in 2002. His briefs and other submissions to this Court

are generally incoherent and consist mainly of rambling tirades against certain

government officials and other prominent individuals. 2 We endeavor in this

opinion to parse out the legal contentions Gibbs has raised in order to resolve the

issues presented.

                                                    I.

       Gibbs filed suit against the United States, various government agencies, and

“Does, 1-100,” alleging that: (1) the Department of Labor improperly suspended

or denied his disability benefits, administered under the Federal Employment

Compensation Act (FECA), and improperly held the pre-recoupment hearing over

the telephone; (2) the Department of Defense, Gibbs’ former employer, retaliated


       1
          In the Notice of Appeal, Gibbs purports to appeal eighteen other orders issued by the
district court, but he has made no arguments concerning those orders to this Court, so any
challenges to those orders are abandoned. Marek v. Singletary, 62 F.3d 1295, 1298 (11th Cir.
1995) (“Issues not clearly raised in the briefs are considered abandoned.”).
       2
         For example, Gibbs asserts: “The actions by Appellees, dilutes and/or destroys the right
to vote Blacks have fought and died for. Appellees, using the knowledge that Congressman John
Lewis’ (D-Ga) wealth is based on art stolen from Clark Atlanta University: and Fisk, Hampton,
Morgan State, Tuskegee, and Howard Universities, control the Congressional Black Caucus, and
Black public figures such as, William “Bill” Cosby, Oprah Winfrey and Julian Bond . . .”
                                                2
              Case: 12-13252     Date Filed: 04/17/2013   Page: 3 of 12


against him after he complained about its misuse of funds; (3) the Department of

Labor negligently failed to protect him after he complained about the DOD’s

misuse of funds; (4) various government employees conspired to deny him FECA

benefits and otherwise harm him; and (5) the defendants violated the Racketeer

Influenced and Corrupt Organizations (RICO) Act. Gibbs appears to believe that

all of the actions allegedly taken against him stem from his representation of

William H. Johnson’s estate in a lawsuit where he alleged that Johnson’s family

was illegally deprived of Johnson’s art upon his death. That case has been

decided, Johnson v. Smithsonian Institution, 4 F. App’x 69 (2d Cir. 2001)

(unpublished), and the issues involved in it are not before us, but Gibbs’ briefs to

this Court are filled with extreme accusations related to that case, which Gibbs

describes as “the largest art conspiracy in history.” Gibbs contends that

government officials have “sought and secured [his] destruction” because of his

participation in the case.

      On its own motion, the court struck Gibbs’ first complaint, finding that it

constituted “impermissible shotgun pleading,” and it instructed him to file an

amended complaint consistent with its order or face dismissal of his lawsuit.

Gibbs filed a first and then a second amended complaint and later filed a motion

for leave to further amend his complaint, which was denied. The defendants filed




                                          3
               Case: 12-13252       Date Filed: 04/17/2013      Page: 4 of 12


a motion to dismiss Gibbs’ second amended complaint.3 Before ruling on that

motion, the district court ordered the parties to show cause why the case should not

be dismissed for their failure to file a case management report. Both Gibbs and the

defendants timely responded to the court’s show cause order. The defendants

moved to stay the filing of the report until the court resolved their motion to

dismiss. The court granted the defendants’ motion to stay, recognizing that Gibbs

opposed the motion and the opposition period had not yet run, but concluding that

the defendants’ motion to stay was due to be granted. The court then dismissed

Gibbs’ second amended complaint with prejudice, concluding that it did not have

subject matter jurisdiction over Gibbs’ FECA benefits, retaliation, and negligence

claims, and that his conspiracy and RICO allegations failed to state a claim. This

is Gibbs’ appeal.

                                              II.

       The court dismissed three of Gibbs’ claims on the grounds that it lacked

subject matter jurisdiction over them. We review de novo the district court’s

dismissal of claims for lack of subject matter jurisdiction. See Dalrymple v.

United States, 460 F.3d 1318, 1324 (11th Cir. 2006). Gibbs contends that the court

should not have sua sponte dismissed any claims for lack of subject matter

jurisdiction. That contention is incorrect. See Cadet v. Bulger, 377 F.3d 1173,

       3
         The defendants’ motion was filed on behalf of the United States, the Department of
Labor, the Department of Justice, and the Department of Defense.
                                               4
             Case: 12-13252     Date Filed: 04/17/2013   Page: 5 of 12


1179 (11th Cir. 2004) (“Federal courts are obligated to inquire into subject-matter

jurisdiction sua sponte whenever it may be lacking.”) (quotation marks omitted).

      Gibbs’ first allegation involved the disability benefits he received under

FECA. The Office of Workers’ Compensation Programs (OWCP) determined that

Gibbs had been overpaid, finding that he misrepresented and concealed business

activity while he was receiving benefits. Gibbs was given the opportunity for a

pre-recoupment hearing, and he requested an oral hearing. On the request form, he

was given the option of a telephonic (instead of an in-person) hearing: “If OWCP

deems your case suitable for teleconference and you are open to this option, please

check here.” Although Gibbs did not check that option, he was given a telephonic,

instead of an in-person, hearing. He did not participate in the telephonic hearing or

provide an explanation for his failure to do so. The OWCP ruled against him. He

appealed that decision to the Department of Labor’s Employee Compensation

Appeals Board, which affirmed. Gibbs challenged that decision in the district

court, which dismissed his claim based on lack of subject matter jurisdiction.

      “The Secretary [of Labor] is authorized to administer and decide all

questions arising under FECA. Under the authority granted in [5 U.S.C.] §

8145(2), the Secretary has delegated responsibility for administering FECA to the

Director of the OWCP.” Noble v. U.S., 216 F.3d 1229, 1234 (11th Cir. 2000)

(citations omitted). A decision of the OWCP generally is not subject to judicial


                                          5
              Case: 12-13252     Date Filed: 04/17/2013   Page: 6 of 12


review. See 5 U.S.C. § 8128(b); Woodruff v. U.S. Dept. of Labor, Office of

Workers Compensation Program, 954 F.2d 634, 637 (11th Cir. 1992). A court

may exercise jurisdiction to review the OWCP’s decision under FECA only if it

violates a “clear statutory mandate or prohibition” or the Constitution. Woodruff,

954 F.2d at 639.

      Telephonic hearings are specifically permitted by the OWCP regulations and

do not require the claimant’s consent. See 20 C.F.R. § 10.615 (2012) (“Initially,

the claimant can choose between two formats: An oral hearing or a review of the

written record. At the discretion of the hearing representative, an oral hearing may

be conducted by telephone, teleconference, videoconference or other electronic

means.”). The decision to give Gibbs a phone hearing did not violate a statutory

mandate. Although Gibbs contends that the phone hearing violated his

constitutional due process rights, it did not. He was given notice and opportunity

for a hearing before recoupment. See Mathews v. Eldridge, 424 U.S. 319, 333, 96

S.Ct. 893, 902 (1976) (“The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.”)

(quotation marks omitted). The district court correctly concluded that it lacked

subject matter jurisdiction over that claim.

      Gibbs also argues that the DOD, his former employer, retaliated against him

by demoting him after he filed a complaint alleging that it was misusing employee


                                          6
                Case: 12-13252         Date Filed: 04/17/2013        Page: 7 of 12


travel funds. The Civil Service Reform Act “specifically lists reprisal for

whistleblowing as a prohibited personnel practice.” Ferry v. Hayden, 954 F.2d

658, 661 (11th Cir. 1992) (citing 5 U.S.C. § 2302(b)(8)(A)). The remedies

provided for in that Act are a government employee’s exclusive remedies when

challenging a federal personnel action taken against him, and the Act precludes

judicial review. Stephens v. Dep’t of Health and Human Servs., 901 F.2d 1571,

1575–76 (11th Cir. 1990). Therefore, the district court lacked jurisdiction over

Gibbs’ claim and correctly dismissed it. 4

       Gibbs also contends that the DOL had a duty to protect him after he reported

that the DOD had misused funds. He claims the DOL was negligent because it

failed to protect him from numerous harms done to him by various government

employees, including an Assistant United States Attorney who allegedly caused

Gibbs’ medical records to be stolen from his psychiatrist. The FTCA is “a

specific, congressional exception” to the United States’ sovereign immunity.

Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). Before suing the

United States under the FTCA, a claimant must exhaust the required administrative

remedies. 28 U.S.C. § 2675(a). If a party files a lawsuit in a district court before

filing an administrative claim and exhausting the statutory administrative remedies,


       4
         The district court was also correct in noting alternatively that it lacked jurisdiction over
Gibbs’ retaliation claim because he failed to establish or even allege that he had properly
exhausted his administrative remedies. See Ferry, 954 F.2d at 661.
                                                  7
              Case: 12-13252      Date Filed: 04/17/2013     Page: 8 of 12


the suit is premature and the district court lacks subject matter jurisdiction over the

action. Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir.

2008). Gibbs has not filed anything showing or even alleging that he exhausted his

administrative remedies. The district court was therefore correct to conclude that it

lacked subject matter jurisdiction over Gibbs’s negligence claim.

                                           III.

      The district court dismissed Gibbs’ remaining claims under 12(b)(6) because

he failed to state a claim upon which relief could be granted. “We review de novo

the district court’s grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim, accepting the factual allegations in the complaint as true

and construing them in the light most favorable to the plaintiff.” D.P. ex rel. E.P.

v. Sch. Bd. of Broward Cnty., 483 F.3d 725, 728 (11th Cir. 2007). “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. A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citation and

quotation marks omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.




                                            8
              Case: 12-13252     Date Filed: 04/17/2013    Page: 9 of 12


      Gibbs alleges that certain prominent people, including Representative John

Lewis and Bill Cosby, conspired to steal art from the family of William H.

Johnson, Gibbs’ former client. Patiently parsing Gibbs’ confusing allegations, the

district court concluded that Gibbs was attempting to proceed under 42 U.S.C. §

1985(3) by alleging a civil rights conspiracy. To state a claim under § 1985(3), a

plaintiff must allege: (1) a conspiracy; (2) for the purpose of depriving a person or

class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws; and (3) an act in furtherance of the conspiracy

(4) resulting in an injury to person or property, or a deprivation of any right or

privilege of a citizen of the United States. Childree v. UAP/GA AG CHEM, Inc.,

92 F.3d 1140, 1146-47 (11th Cir. 1996). The district court correctly found that

Gibbs’ allegations do not include any facts that would support an inference that the

defendants agreed to act in order to deprive Gibbs of any rights.

      Gibbs also alleges under the Racketeer Influenced and Corrupt

Organizations Act (RICO) that the defendants furthered their conspiracy to steal art

from Gibbs’ former client by harming Gibbs in various ways, including having him

disbarred and destroying his health. To state a civil RICO claim, a plaintiff must

allege (1) a civil violation of 18 U.S.C. § 1962; (2) injury to business or property;

and (3) that the violation caused the injury. Avirgan v. Hull, 932 F.2d 1572, 1577

(11th Cir. 1991) (citing 18 U.S.C. § 1964(c)). The district court correctly found


                                           9
               Case: 12-13252        Date Filed: 04/17/2013       Page: 10 of 12


that Gibbs’ digressive accusations about the psychological and mental damage

caused by the defendants is insufficient to allege that defendants violated § 1962.



                                               IV.

       The district court denied Gibbs’ motion to amend his complaint because he

failed to attach a proposed amended complaint and because it was unclear what

cause of action he sought to assert. We review a district court’s decision to deny a

motion to amend only for an abuse of discretion. Hall v. United Ins. Co. of

America, 367 F.3d 1255, 1263 (11th Cir. 2004). A district court “may properly

deny leave to amend the complaint under Rule 15(a) when such amendment would

be futile.” Id. Gibbs’ failure to articulate a viable claim in his second amended

complaint and his failure to attach a proposed amended complaint to his motion to

dismiss show the futility of granting him leave to amend his complaint again. 5

The district court did not err in denying his motion.

       Nor did the court err in granting the defendants’ motion to stay the filing of a

case management report until a ruling was entered on their motion to dismiss

Gibbs’ second amended complaint. The court entered the order granting the stay

without allowing Gibbs time to respond to the motion. After the court entered the

       5
          Gibbs argues to this Court that his “uncontroverted affidavit” is evidence that he should
have been permitted to amend his complaint. That affidavit does not include any relevant
information that the district court did not already have before it. It contains nothing more than a
reiteration of Gibbs’ general accusations.
                                                10
              Case: 12-13252     Date Filed: 04/17/2013     Page: 11 of 12


order, Gibbs filed a motion entitled “Plaintiff’s Emergency Amended Opposition

to the Defendants’ Motion to Stay the Case Management Report.” That motion,

like all of Gibbs’ submissions to the court, consisted mainly of extreme allegations

against the government and various individuals (including that he was falsely

arrested and tortured and that a “John Doe” had hacked into his computer); it

utterly failed to advance any arguments as to why the court should have denied the

defendants’ motion to stay. “[W]e accord district courts broad discretion over the

management of pre-trial activities, including discovery and scheduling.” Johnson

v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001). We

review the court’s ruling only for an abuse of that discretion. Id. at 1243. Gibbs

has failed to articulate either to the district court or to this court even one reason

why the court should have denied the stay.

                                           V.

      The district court was commendably patient and thorough in sifting through

the wild accusations and incredible stories contained in every document that Gibbs

submitted to the district court. We have tried to approach this case with the same

thoroughness and have endeavored to understand and address all the arguments

Gibbs raised before us. Any other arguments he may have intended to make in this

appeal are waived because they have not been clearly raised or adequately argued.

See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).


                                           11
    Case: 12-13252   Date Filed: 04/17/2013   Page: 12 of 12


AFFIRMED.




                              12
