UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23114-BLOOM/Louis

HARVEY C. BROOKS, III,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF 

VETERANS AFFAIRS,

Defendant.

________________________________/

ORDER

THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss, ECF No. [20] 

(“Motion”). Plaintiff filed a response in opposition, ECF No. [31] (“Response”), to which 

Defendant filed a reply, ECF No. [32] (“Reply”). The Court has considered the Motion, the 

Response, the Reply, the record in this case, the applicable law, and is otherwise fully advised. For 

the reasons set forth below, the Motion is granted.

I. BACKGROUND

According to the Complaint, ECF No. [1] (the “Complaint”), Plaintiff has been employed 

by the Department of Veterans Affairs as an IT Specialist, GS-11 since 2007. Id. at ¶ 11. He is 

African American, and has been diagnosed with anxiety, adjustment disorder, and PTSD. Id. at 

¶¶ 12-15. He alleges that his impairments interfere with his major life activities, and he has filed 

EEO complaints in 2009, 2010, 2013, 2014, 2016, 2018, and 2019. Id. at ¶¶ 17-22. Plaintiff’s first 

level supervisor, Mr. Sargent, became aware of Plaintiff’s prior EEO complaints in 2013, and 

Plaintiff’s second level supervisor, Mr. Brooks, was named as the responsible management official 

in Plaintiff’s 2016 EEO complaint. Id. at ¶¶ 6-7, 18-19. 

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Plaintiff asserts that based on his race, disabilities, and his prior EEO activities, he was 

discriminated and retaliated against on six occasions: (1) beginning on October 25, 2017, Mr. 

Sargent denied Plaintiff’s request for full-time telework; (2) on August 2, 2018, Mr. Brooks issued 

Plaintiff a Letter of Reprimand for disrupting the work environment and for improper use of 

government equipment; (3) on November 5, 2018, Mr. Sargent and Mr. Brooks denied Plaintiff’s 

request to attend a virtual Security Plus training; (4) on March 27, 2019, Mr. Brooks “verbally 

counseled;” (5) on April 23, 2019, Plaintiff was not selected for an IT Specialist GS-12 position; 

and (6) Plaintiff’s April 29, 2019 request for FMLA leave was delayed but later approved in the 

last week of May 2019. Id. at ¶¶ 23-28. Plaintiff contends that other similarly situated individuals 

were “treated more favorably.” Id. at ¶¶ 28-34. His lawsuit is brought pursuant to the Civil Rights 

Act of 1964, 42 U.S.C. § 2000d et seq.; the Family Medical Leave Act, 29 U.S.C. § 207 et seq.; 

and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Id. at 1; ¶ 1. He seeks relief including 

immediate reinstatement to the GS-12 IT Specialist position with full-time telework, lost wages, 

and compensation for mental harm and pain and suffering. Id. at ¶ 41. 

Defendant now moves to dismiss the Complaint, arguing that Plaintiff has combined 36 

potential claims into a single count and, separately, the Court lacks jurisdiction over his claims 

under the FMLA. ECF No. [20]. Regarding the latter, Defendant maintains that the United States 

has not waived sovereign immunity for lawsuits brought under Title II of the Family Medical 

Leave Act, thus divesting the Court of subject matter jurisdiction over those claims. Id. at 5-6. 

Plaintiff responds that his Complaint only alleges six claims and that he “defer[s]” to the Court 

whether it has jurisdiction over his FMLA claims. ECF No. [31]. 

The Motion, accordingly, is ripe for consideration.

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II. LEGAL STANDARD

A. Rule 12(b)(6)

Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and 

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Although a complaint “does not need detailed factual allegations,” it must provide “more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 

(2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) 

(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on 

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 

1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). “Factual 

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 

U.S. at 555, 127 S.Ct. 1955. These elements are required to survive a motion brought under Rule 

12(b)(6), which requests dismissal for “failure to state a claim upon which relief can be granted.”

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the 

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor 

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 

F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, 

and courts “are not bound to accept as true a legal conclusion couched as a factual 

allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see Iqbal, 556 U.S. at 678, 129 S.Ct. 

1937; Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). 

Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative 

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explanations,’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would 

ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) 

(quoting Iqbal, 556 U.S. at 682, 129 S.Ct. 1937).

A court considering a Rule 12(b)(6) motion is generally limited to the facts contained in 

the complaint and the attached exhibits, including documents referred to in the complaint that are 

central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 

2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] 

document outside the four corners of the complaint may still be considered if it is central to the 

plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 

1125, 1135 (11th Cir. 2002)). “[W]hen the exhibits contradict the general and conclusory 

allegations of the pleading, the exhibits govern.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 

(11th Cir. 2007).

B. Rule 12(b)(1)

A Rule 12(b)(1) motion challenges the district court’s subject matter jurisdiction and takes 

one of two forms: a “facial attack” or a “factual attack.” “A ‘facial attack’ on the complaint 

‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of 

subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes 

of the motion.’” McElmurray v. Consol. Gov’t of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 

(11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “A ‘factual 

attack,’ on the other hand, challenges the existence of subject matter jurisdiction based on matters 

outside the pleadings.” Kuhlman v. United States, 822 F.Supp.2d 1255, 1256–57 (M.D. Fla. 2011) 

(citing Lawrence, 919 F.2d at at 1529); see Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys.,

Inc., 524 F.3d 1229, 1233 (11th Cir. 2008) (“By contrast, a factual attack on a complaint challenges 

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the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as 

affidavits or testimony.”).

“In assessing the propriety of a motion for dismissal under Fed. R. Civ. P. 12(b)(1), a 

district court is not limited to an inquiry into undisputed facts; it may hear conflicting evidence 

and decide for itself the factual issues that determine jurisdiction.” Colonial Pipeline Co. v.

Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). As such, “[w]hen a defendant properly challenges 

subject matter jurisdiction under Rule 12(b)(1), the district court is free to independently weigh 

facts, and ‘may proceed as it never could under Rule 12(b)(6) or Fed. R. Civ. P. 56.’” Turcios v.

Delicias Hispanas Corp., 275 F. App’x. 879, 880 (11th Cir. 2008) (citing Morrison v. Amway

Corp., 323 F.3d 920, 925 (11th Cir. 2003)).

C. Pro se Litigants

“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys 

and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 

(11th Cir. 1998). This leniency, however, does not confer on pro se litigants “a right to receive 

special advantages not bestowed on other litigants. [The pro se litigant] must, for example, abide 

by local rules governing the proper form of pleadings.” Procup v. Strickland, 760 F.2d 1107, 1115 

(11th Cir. 1985). Further, courts cannot serve as de facto counsel for a party and cannot rewrite a 

deficient pleading for the sake of sustaining an action. Jarzynka v. St. Thomas Univ. of Law, 310 

F. Supp. 2d 1256, 1264 (S.D. Fla. 2004). The Court cannot simply “fill in the blanks” to infer a 

claim, Brinson v. Colon, 2012 WL 1028878, at *1 (S.D. Ga. Mar. 26, 2012), as “it is not the Court’s 

duty to search through a plaintiff’s filings to find or construct a pleading that satisfies Rule 

8,” Sanders v. United States, 2009 WL 1241636, at *3 (N.D. Ga. Jan. 22, 2009); see Bivens v.

Roberts, 2009 WL 411527, at *3 (S.D. Ga. Feb. 18, 2009) (“[J]udges must not raise issues and 

arguments on plaintiffs’ behalf, but may only construe pleadings liberally given the linguistic 

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imprecision that untrained legal minds sometimes employ.” (citing Miller v. Donald, 541 F.3d 

1091, 1100 (11th Cir. 2008))). In determining whether a pro se litigant has stated a claim, “the 

court ought not penalize the litigant for linguistic imprecision in the more plausible allegations,” 

while keeping in mind that “wildly implausible allegations in the complaint should not be taken to 

be true.” Miller, 541 F.3d at 1100.

III. DISCUSSION

A No jurisdiction over FMLA claims

According to Defendant, the Court lacks jurisdiction to hear any claims arising under the 

Family Medical Leave Act. ECF No. [20] at 5-6. Plaintiff does not clearly oppose Defendant’s 

arguments, but rather defers this determination to the Court. ECF No. [31]. Upon review, the Court 

agrees with Defendant that it lacks subject matter jurisdiction over claims under the FMLA.

The FMLA authorizes an eligible employee to take up to twelve weeks of unpaid leave 

annually for a “serious health condition that makes the employee unable to perform the functions 

of the position of such employee.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 

1293 (11th Cir.2006). An employer may not “interfere with, restrain, or deny the exercise of or the 

attempt to exercise” that right. Id.

Employees are covered under either Title I or Title II of the FMLA. Cavicchi v. Sec’y of

Treasury, No. 04–10451, 2004 WL 4917357, at *6 (11th Cir. Oct.15, 2004). “Title I of 

the FMLA affords various rights to employees and provides for private actions against employers 

for alleged violations of the FMLA. 29 U.S.C. § 2617. Federal employees are not covered by Title 

I of the FMLA but instead by Title II, which affords similar protections but different 

remedies. See 5 U.S.C. § 6381, et seq. Title I expressly provides for a private right of 

action; Title II does not contain such a provision.” Baldwin v. Shinseki, No. 1:12-CV-58-MP-GRJ, 

2012 WL 4466331, at *1 (N.D. Fla. May 9, 2012), report and recommendation adopted, No. 1:12-

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CV-00058-MP-GRJ, 2012 WL 4466327 (N.D. Fla. Sept. 27, 2012). The United States Court of 

Appeals for the Eleventh Circuit, agreeing with the Ninth and Fourth Circuits, has explained that

the absence of an express authorization [of a private right of action] precludes [a 

federal employee’s] FMLA claim for retaliation because the United States Supreme 

Court has held that the sovereign immunity of the United States may only be 

waived through an “unequivocal” expression of Congressional intent to do so.

Cavicchi, 2004 WL 4917357, at *6 (citing Russell v. United States Dep’t of the Army, 191 F.3d 

1016, 1019 (9th Cir.1999) (“[T]he absence of an express waiver of the 

government’s sovereign immunity in Title II of the FMLA bars private suits for violations of its 

provisions.”) ; see also Mann v. Haigh, 120 F.3d 34, 37 (4th Cir. 1997) (“No unequivocal waiver 

of immunity exists in Title II, and, consequently, the omission of a provision in Title II similar to 

that in Title I creating a private right of action is treated as an affirmative congressional decision 

that the employees covered by Title II of the FMLA should not have a right to judicial review of 

their FMLA claims through the FMLA.”)).

Here, it is undisputed that Plaintiff is a federal employee and his purported FMLA claims 

are governed by Title II. Because there is no unequivocal waiver of sovereign immunity, the Court 

agrees with Defendant that the Court lacks subject matter jurisdiction over these claims. See, e.g., 

Baldwin, 2012 WL 4466331, at *2 (“this Court lacks subject matter jurisdiction of 

Plaintiff’s FMLA claims because the United States has not . . . waived its sovereign immunity with 

respect to FMLA claims by federal employees.”); Robinson v. Shinseki, No. 8:13-CV-1268-T33EAJ, 2013 WL 5720336, at *8 (M.D. Fla. Oct. 21, 2013) (dismissing Title II FMLA claim for 

lack of jurisdiction); Burkhart v. Chertoff, No. 206CV690FTM99DNF, 2009 WL 32888, at *2 

(M.D. Fla. Jan. 6, 2009) (dismissing FMLA claim “because the United States has not 

unequivocally waived sovereign immunity for a Title II claim”). Accordingly, the Motion is 

granted on this point.

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B. Shotgun pleading

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a 

“short and plain statement of the claim” that shows that the pleader is entitled to relief. Fed. R. 

Civ. P. 8(a)(2). The failure to identify claims with sufficient clarity to enable the defendant to 

frame a responsive pleading constitutes a “shotgun pleading” that violates Rule 8(a)(2). Byrne v.

Nezhat, 261 F.3d 1075, 1129–30 (11th Cir. 2001). The Eleventh Circuit Court of Appeals has 

identified four categories of shotgun pleadings, stating

[t]hough the groupings cannot be too finely drawn, we have identified four rough 

types or categories of shotgun pleadings. The most common type—by a long 

shot—is a complaint containing multiple counts where each count adopts the 

allegations of all preceding counts, causing each successive count to carry all that 

came before and the last count to be a combination of the entire complaint. The 

next most common type, at least as far as our published opinions on the subject 

reflect, is a complaint that does not commit the mortal sin of re-alleging all 

preceding counts but is guilty of the venial sin of being replete with conclusory, 

vague, and immaterial facts not obviously connected to any particular cause of 

action. The third type of shotgun pleading is one that commits the sin of not 

separating into a different count each cause of action or claim for relief. Fourth, and 

finally, there is the relatively rare sin of asserting multiple claims against multiple 

defendants without specifying which of the defendants are responsible for which 

acts or omissions, or which of the defendants the claim is brought against. The 

unifying characteristic of all types of shotgun pleadings is that they fail to one 

degree or another, and in one way or another, to give the defendants adequate notice 

of the claims against them and the grounds upon which each claim rests.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015).

Shotgun pleadings fail to make the connection between “the substantive count and the 

factual predicates . . . [such that] courts cannot perform their gatekeeping function with regard to 

the averments of [the claim].” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279–80 

(11th Cir. 2006). Courts in this district and the Eleventh Circuit have warned litigants that shotgun 

pleadings tend to “impede the orderly, efficient and economic disposition of disputes as well as 

the court’s overall ability to administer justice.” Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 

693 F. Supp. 2d 1325, 1336 (S.D. Fla. 2010) (citing Byrne, 261 F.3d at 1128–31 (11th Cir. 

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2001)); see also Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 

1296 n.10 (11th Cir. 2002) (expounding the various ways in which shotgun pleadings harm the 

courts and other litigants). “Generally, when ‘a more carefully drafted complaint’ might state a 

claim, the plaintiff must be given a chance to amend before dismissal.” Hollis v. W. Acad. Charter,

Inc., 782 F. App’x 951, 955 (11th Cir. 2019) (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 

(11th Cir. 2001)). “However, the district court need not provide such an opportunity where the 

plaintiff has repeatedly failed to cure deficiencies in his complaint through previous amendments 

or where amendment would be futile.” Id. (quoting Bryant, 252 F.3d at 1163). 

Here, removing his proposed claims under the FMLA, Plaintiff attempts to assert causes 

of action under the Civil Rights Act of 1964 and the Rehabilitation Act of 1973 based on two types 

of harms (retaliation and discrimination) and with regard to six discrete acts. These alleged 

violations are all contained within one count. According to Plaintiff, he brings six counts, not 36 

as proposed by Defendant. ECF No. [31]. Upon review, the Court finds that the instant Complaint 

operates as a shotgun pleading. At its core, the Complaint commingles multiple statutory 

violations, implicating different theories of liability, into a single count. Defendant, therefore,

correctly points out that the individual grounds for liability for each specific incident remain 

unclear. For instance, the Complaint does not specify which alleged statute(s) applies to each 

discrete incident nor does it clearly plead the specific method of wrongdoing for each incident. As 

Defendant notes in the Reply, Plaintiff fails to clarify “whether he is alleging that his employer 

discriminated against him based on race or disability or both when it, for example, denied him 

telework opportunities, reprimanded him for improper use of a government computer, and failed 

to promote him.” ECF No. [32] at 2. Compounding this unclarity, while Plaintiff alleges that other 

similarly situated individuals were treated more favorably than him, he only uses race and prior 

EEO activity as his bases for comparison but not disability. See ECF No. [1] at ¶¶ 29-34. Further, 

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five of the six comparators involve only the GS-12 promotion, and the comparator mentioned for 

improper verbal counseling is the same race as Plaintiff. Thus, the Court agrees that it is uncertain 

as to what specific claims are at issue in this case and on the bases they rest. 

Consistent with this Order, Plaintiff must set forth discrete counts (each founded on a single 

statutory cause of action), alleging the manner of statutory violation (discrimination or retaliation) 

and the purported basis for the wrongdoing (for example, race, disability, and/or EEO activities)

for each alleged violation. 

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [20], is 

GRANTED. Plaintiff shall file an amended complaint by January 19, 2021.

DONE AND ORDERED in Chambers at Miami, Florida, on January 7, 2021.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Harvey C. Brooks, III

637 NW 99th Terrace

Coral Springs, FL 33071

321-243-6312

Email: hcbrooks@att.net

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