                                                        NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                               ______

                                 No. 10-3360
                                   ______

                       CLINT SMITH; WENDY KING,
                                Appellants

                                       v.

   RICHARD PALLMAN, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL
 CAPACITY AS EXECUTIVE DIRECTOR, UNITED STATES DEPARTMENT OF
  AGRICULTURE, FARM SERVICE AGENCY; SECRETARY UNITED STATES
     DEPARTMENT OF AGRICULTURE, IN HIS OFFICIAL CAPACITY

                                    ______

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                        (D. C. Civil No. 3:09-cv-01743)
                 District Judge: Honorable John E. Jones, III
                                     ______

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               March 21, 2011

       Before: FUENTES, SMITH and VAN ANTWERPEN, Circuit Judges

                            (Filed March 30, 2011)
                                    ______

                          OPINION OF THE COURT
                                  ______

VAN ANTWERPEN, Circuit Judge.
          In 2007, the Farm Service Agency (“FSA”)1 reassigned Clint Smith and Wendy

King. Smith administratively appealed his reassignment, lost, and filed a Bivens2 claim

in District Court, alleging that he had been constructively discharged in violation of his

constitutional rights. King also administratively appealed her reassignment, lost, and was

terminated. She has now filed a complaint in District Court alleging that her termination

was retaliation for a previous accommodation request and claiming violations of the

Rehabilitation Act and Americans with Disabilities Act (“ADA”). The District Court

dismissed Smith’s claim for lack of subject matter jurisdiction and dismissed King’s

claims for failure to exhaust administrative remedies. For the following reasons, we will

affirm.

                                              I.

          Smith was a farm loan officer for the FSA, and King was a program technician.

Defendant-Appellee Richard Pallman is the FSA’s executive director. In late 2006 and

early 2007, the FSA notified employees, Smith and King included, that they would be

reassigned to different office locations.

          After Smith unsuccessfully appealed his reassignment, he then claimed in District

Court in a Bivens action that his appeal was protected activity and that he had been




1
 The FSA is an agency within the United States Department of Agriculture responsible
for administering agricultural programs at the state and county levels.
2
 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).

                                               2
constructively discharged in violation of the First, Fifth, and Fourteenth Amendments of

the United States Constitution.

      As to King, prior to her reassignment, she had claimed a preexisting neck injury

and requested various accommodations. The FSA denied her request. On December 15,

2006, King received notice of her reassignment and was informed that refusing

reassignment would result in termination. Nevertheless, on December 29, 2006, King

refused reassignment and administratively appealed the reassignment decision. On

February 15, 2007, the FSA denied her appeal by letter. The FSA notified King of her

impending termination on February 27, 2007 and terminated her on April 3, 2007.

      In response to her termination, King sent a letter to Gregory E. Ferby (“Ferby”),

who is the Equal Employment Opportunity (“EEO”) counselor for the Farm Service

Agency. Appx. at 189. The letter was dated May 27, 2007, postmarked May 30, 2007,

and received by Ferby on June 13, 2007. King informed Ferby that she had been

terminated, indicated that she could not accept reassignment due to her preexisting neck

condition, and requested to file a formal charge of disability and gender-based

discrimination. On June 19, 2007, Ferby replied by letter and informed King that she

should have commenced the EEO complaint process with him within 45 days of the

alleged discrimination, which would have been May 17, 2007. King received Ferby’s

letter on June 21, 2007 but did not respond. On June 27, 2007, Ferby sent King a second

letter, informing her of EEO requirements and her rights and responsibilities. King

received Ferby’s second letter on July 3, 2007. On August 1, 2007, Ferby wrote a report



                                            3
detailing his correspondence with King, indicated that King’s claim related to her April 3,

2007 termination, and noted that King had not contacted him on a timely basis.

       On February 24, 2009, Smith and King filed suit in the United States District

Court for the Eastern District of Pennsylvania.3 On May 22, 2009, the FSA moved to

dismiss or, alternatively, for summary judgment, and to transfer the case to the Middle

District of Pennsylvania. The case was transferred to the Middle District of Pennsylvania

on August 7, 2009 and assigned to Judge Vanaskie.

       On January 29, 2010, the FSA again moved to dismiss or for summary judgment.4

The FSA moved to dismiss Smith’s claims for lack of subject matter jurisdiction, arguing

that the Civil Service Reform Act (“CSRA”) provided Smith’s exclusive remedy. The

FSA moved to dismiss King’s claims because King failed to timely exhaust

administrative remedies by waiting more than 45 days after her termination to contact the

agency’s EEO counselor. In support of its motion, the FSA attached documents detailing

King’s failure to contact an EEO counselor. In response, King submitted an affidavit

claiming that she had timely contacted EEO Counselor Ferby.




3
 The original suit included a third plaintiff, Emily Wilson. Wilson was severed when the
action was transferred from the Eastern District of Pennsylvania to the Middle District of
Pennsylvania.
4
 The Magistrate Judge and the District Court treated the FSA’s motion as a Rule
12(b)(6) motion to dismiss because neither party submitted a statement of material facts
as required for a summary judgment motion. See FED. R. CIV. P. 56(e)(2).

                                            4
       On May 18, 2010, Judge Vanaskie referred the FSA’s motion to a Magistrate

Judge.5 On June 16, 2010, the Magistrate Judge issued a Report & Recommendation

suggesting that the District Court grant the FSA’s motion to dismiss because Smith’s

Bivens claim was preempted by the CSRA and because King failed to timely exhaust

administrative remedies regarding her Rehabilitation Act and ADA claims.

       On July 8, 2010, over objection, the District Court adopted the Magistrate Judge’s

Report & Recommendation in its entirety and granted the FSA’s motion to dismiss. On

August 4, 2010, both Smith and King timely appealed.

                                             II.

       We have jurisdiction over a district court’s final order under 28 U.S.C. § 1291.

We exercise plenary review over a district court’s grant of a Rule 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction.6 Taliaferro v. Darby Twp. Zoning Bd., 458

F.3d 181, 188 (3d Cir. 2006). We review de novo a district court’s order dismissing a

complaint for failure to state a claim under Rule 12(b)(6). Phillips v. Cnty. of Allegheny,

515 F.3d 224, 231 (3d Cir. 2008).

                                             III.

       We first consider Smith’s claim and then turn to King’s claims.


5
 Judge Vanaskie received his commission to the United States Court of Appeals for the
Third Circuit on April 26, 2010, so District Judge John E. Jones, III reviewed the
Magistrate Judge’s Report & Recommendation. Judge Vanaskie took no part in the
appellate review of this case.
6
 Our appellate review is limited, however, to “whether the allegations on the face of the
complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district
court.” Turicentro v. Am. Airlines, 303 F.3d 293, 300 (3d Cir. 2002).
                                              5
                                             A.

       The District Court dismissed Smith’s Bivens claim for lack of subject matter

jurisdiction because it determined that the CSRA provided Smith’s only means of

obtaining relief. This determination is correct.

       In Bivens, the Supreme Court permitted a plaintiff to pursue a non-statutory claim

for alleged violations of Fourth Amendment rights. Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). But a non-statutory

remedy is not available if a statutory scheme evidences congressional intent to limit

remedies. See Schweiker v. Chilicky, 487 U.S. 412, 421-24 (1988); Bush v. Lucas, 462

U.S. 367, 388 (1983). In Sarullo v. United States Postal Service, we held that the CSRA

is just such a statutory scheme because the CSRA “affords the exclusive remedy for

damage claims of federal employees seeking redress for alleged constitutional violations

arising out of the employment relationship.” 352 F.3d 789, 795 (3d Cir. 2003); see

Mitchum v. Hurt, 73 F.3d 30, 34-35 (3d Cir. 1995). There, the district court dismissed a

plaintiff’s Bivens claim for lack of subject matter jurisdiction because the claim arose in

the employment context and was preempted by the CSRA. Sarullo, 352 F.3d at 797.

Here, as in Sarullo, because Smith’s claim arises from the employment context, the

CSRA provides Smith’s sole remedy, and the District Court properly dismissed Smith’s

Bivens claim for lack of subject matter jurisdiction.7


7
  Smith also argues that pursuant to 5 U.S.C. § 7702 he is permitted to “appeal de novo” a
“mixed case claim.” Appellant’s Br. 9. A “mixed case claim” is one which challenges
an adverse employment action appealable to the Merit Systems Protection Board
(“MSPB”) and alleges that discrimination played a part. See Ikossi v. Dep’t. of Navy, 516
                                              6
                                             B.

       The District Court granted the FSA’s motion to dismiss King’s Rehabilitation Act

and ADA claims under Rule 12(b)(6). When reviewing a 12(b)(6) dismissal, we “accept

all factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the

plaintiff may be entitled to relief.” Phillips, 515 F.3d at 231. Factual allegations that

amount to “labels and conclusions” or “naked assertions,” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555, 557 (2007), are “not entitled to the assumption of truth,” Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1950 (2009). Only the “nub of the . . . complaint – the well-

pleaded, nonconclusory factual allegation[s],” are assumed to be true. Ashcroft, 129 S.Ct.

at 1950.




F.3d 1037, 1041 (D.C. Cir. 2008). In a mixed case, a plaintiff may seek judicial review
of the MSPB’s final decision. 5 U.S.C. § 7702. Or, if the MSPB does not issue a final
decision within 120 days, an employee may file a civil action. 5 U.S.C. § 7702(e). Here,
the MSPB never issued a final decision. Following a no-decision by the MSPB in a
mixed case, some circuits have interpreted 5 U.S.C. § 7702(e) to permit district courts to
consider both the employment and discrimination aspects of a mixed case claim. See,
e.g., Ikossi, 516 F.3d at 1041-44; Wells v. Shalala, 228 F.3d 1137, 1143 (10th Cir. 2000);
Doyal v. Marsh, 777 F.2d 1526, 1537 (11th Cir. 1985). We have not yet addressed the
scope of a district court’s review of a mixed case, but we need not answer this question
today because Smith does not allege a mixed case claim. Rather, his Bivens claim seeks
redress for alleged constitutional violations arising from the employment context, not
review of his employment dispute or discrimination. His Bivens claim thus falls squarely
within the purview of the CSRA. See Sarullo, 352 F.3d at 794-95. Therefore, because
the CSRA provides Smith’s sole remedy, the District Court properly dismissed for lack of
subject matter jurisdiction.

                                              7
       We first consider King’s Rehabilitation Act claims. The District Court dismissed

King’s Rehabilitation Act claims for failure to timely exhaust administrative remedies.8

Failure to timely exhaust administrative remedies is an appropriate basis for granting a

Rule 12(b)(6) motion to dismiss. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).

       The Rehabilitation Act incorporates Title VII remedies. See 29 U.S.C. § 794a(a).

Just as in Title VII cases, “a plaintiff must exhaust administrative remedies before

bringing a claim under the [Rehabilitation Act].” Wilson v. MVM, Inc., 475 F.3d 166,

174 (3d Cir. 2007); Spence v. Straw, 54 F.3d 196, 201 (3d Cir. 1995); 29 C.F.R. §

1614.105(a)(1). Moreover, there is no “distinction between failure to timely exhaust and

complete failure to exhaust in Title VII cases.” Wilson, 475 F.3d at 175. Pursuant to

regulations, an employee must “initiate contact with a Counselor within 45 days of the

date of the matter alleged to be discriminatory or, in the case of personnel action, within

45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). The 45 day

period begins to run “when the plaintiff knows or reasonably should know that the

discriminatory act has occurred.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d



8
  The District Court concluded that it lacked subject matter jurisdiction because King
failed to timely exhaust administrative remedies. Smith v. Pallman, No. 3:09-cv-1743,
2010 U.S. Dist. LEXIS 67713, at *8 (M.D. Pa. July 8, 2010). This conclusion is
incorrect because failure to exhaust administrative remedies is not a jurisdictional bar.
Wilson v. MVM, Inc., 475 F.3d 166, 174 (3d Cir. 2007); see Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982). Rather, “it is an affirmative defense which must
be pled and proven by the defendant.” Brown v. Croak, 312 F.3d 109, 111 (3d Cir.
2002). Nevertheless, failure to timely exhaust administrative remedies “may be raised as
the basis for a motion to dismiss.” Id. Here, the FSA raised timely failure to exhaust
administrative remedies as the basis for its motion to dismiss, so dismissal of King’s
claims was proper.
                                             8
1380, 1386 (3d Cir. 1994) (citations omitted); see Podobnik v. United States Postal Serv.,

409 F.3d 584, 590 (3d Cir. 2005) (claim accrues upon plaintiff’s discovery of injury).

       Here, King bases her Rehabilitation Act claim on her termination, which occurred

on April 3, 2007. Thus the 45 day deadline to initiate contact with an EEO counselor was

May 17, 2007. But, according to EEO documents attached to the FSA’s motion to

dismiss, King did not contact the EEO counselor until May 30, 2007, almost two weeks

after the deadline. Moreover, the District Court properly considered the attached EEO

documents when considering the motion to dismiss. See Mayer v. Belichik, 605 F.3d

223, 230 (3d Cir. 2010) (“[A] court must consider only the complaint, exhibits attached

to the complaint, matters of public record, as well as undisputedly authentic documents if

the complainant’s claims are based upon these documents.”); Buck v. Hampton Twp. Sch.

Dist., 452 F.3d 256, 260 (3d Cir. 2006) (Court “may consider . . . any matters

incorporated by reference or integral to the claim, items subject to judicial notice, matters

of public record, orders, [and] items appearing in the record of the case.”) (citations and

quotations omitted); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir. 1997) (“[A] document integral to or explicitly relied on in the complaint may be

considered without converting the motion to dismiss into one for summary judgment. . . .

[W]hat is critical is whether the claims in the complaint are based on an extrinsic

document and not merely whether the extrinsic document was explicitly cited. Plaintiffs

cannot prevent a court from looking at the texts of the documents on which its claim is

based by failing to attach or explicitly cite them.”) (citations and quotations omitted).

The EEO documents which are integral to this case show that King sent a letter which did

                                              9
not reach the EEO counselor until May 30, 2007, failed to return the EEO counselor’s

phone calls, and did not reply to the EEO counselor’s memo. Appx. at 186-89, 191, 197-

99. Therefore, King failed to timely exhaust administrative remedies, and the District

Court properly granted the FSA’s motion to dismiss.

       None of King’s arguments to the contrary change this outcome. First, King argues

that her Rehabilitation Act claim survives a motion to dismiss because she averred in an

affidavit attached to her brief in response to the FSA’s motion to dismiss that she did

contact the EEO counselor within the 45 day period. Appx. at 122; Appellant’s Br. 9

(Affidavit “verified that [King] contacted OFO officer Ferby within the 45 day period.”).

Even taking King’s affidavit as true, the affidavit is irrelevant to King’s claim because it

states that King contacted the EEO counselor after the FSA proposed to reassign her on

December 15, 2006. Appx. at 122 (“I do know that I notified Greg Ferby the Agency’s

E.E.O. within forty five days of my reassignment.”) (emphasis added). But King’s

Rehabilitation Act claim alleges that the FSA violated her rights by terminating her, not

reassigning her. Therefore, because King’s affidavit relates to her reassignment rather

than her termination, it is simply irrelevant to the instant claim.

       Nor is there any evidence that EEO Counselor Ferby mishandled King’s claim.

King repeatedly failed to return Ferby’s phone calls. King also ignored Ferby’s mailed

memorandum. Finally, Ferby investigated King’s claim himself by contacting and

interviewing King’s supervisor and administrative officer. After his investigation, Ferby

found no evidence of discrimination. Appx. 186-89.



                                              10
       Finally, King’s contention that the District Court should have permitted her to

engage in discovery fails. Discovery is not required prior to dismissal. See Iqbal, 129

S.Ct. at 1950 (Rule 8 marks “a notable and generous departure from the hyper-technical,

code-pleading regime of a prior era, but it does not unlock the doors of discovery for a

plaintiff armed with nothing more than conclusions.”).

       Turning to King’s ADA claim, dismissal was proper because the ADA does not

apply to federal agencies. See 42 U.S.C. § 12132; 42 U.S.C. § 12111(5)(B); Dyrek v.

Garvey, 334 F.3d 590, 597 n.3 (7th Cir. 2003) (“[T]he ADA does not apply to federal

agencies . . . .”). Here, King filed her ADA claim against the FSA, a federal agency

operating within the Department of Agriculture. The FSA is thus outside the purview of

the ADA.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order granting the

FSA’s motion to dismiss.




                                            11
