Fernandez v. Donovan

• Decision Date: 12 January 2011
• Docket Number: Civil Case No. 10–185(RJL).
• Citation: 760 F.Supp.2d 31
• Parties: Judge Alexander FERNANDEZ, Plaintiff,v.Shaun DONOVAN, Secretary of the U.S. Department of Housing and Urban Development, David T. Anderson, Director, Office of Hearings and Appeals at the U.S. Department of Housing and Urban Development (in his professional capacity),andMarcela E. Belt, Chief Executive Officer at the U.S. Department of Housing and Urban Development (in her professional capacity), Defendants.
• Court: U.S. District Court — District of Columbia

760 F.Supp.2d 31

Judge Alexander FERNANDEZ, Plaintiff,

v.Shaun DONOVAN, Secretary of the U.S. Department of Housing and Urban Development, David T. Anderson, Director, Office of Hearings and Appeals at the U.S. Department of Housing and Urban Development (in his professional capacity),andMarcela E. Belt, Chief Executive Officer at the U.S. Department of Housing and Urban Development (in her professional capacity), Defendants.

Civil Case No. 10–185(RJL).

United States District Court, District of Columbia.

Jan. 12, 2011.

Francis A. Vasquez, Jr., White & Case LLP, Washington, DC, for Plaintiff.Addy Schmitt, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff Alexander Fernandez (“plaintiff”), an Administrative Law Judge (“ALJ”) for the U.S. Department of Housing and Urban Development (“HUD”), brings this action against Shaun Donovan in his capacity as Secretary of HUD (“defendant Donovan”) and two individual HUD employees David T. Anderson in his capacity as Director of the Office of Hearing and Appeals (“defendant Anderson”) and Marcela E. Belt in her capacity as Chief Executive Officer (“defendant Belt” and collectively “defendants”). Plaintiff alleges discrimination based on disability and national origin, retaliation, harassment and violations of the Federal Administrative Procedures Act (“APA”). Currently before the Court is defendant Donovan's motion to dismiss counts V and VI, the APA claims, and to dismiss all counts against individual federal employees, defendant Anderson and defendant Belt. Upon consideration of the parties' pleadings, relevant law, and the entire record herein, defendant Donovan's Motion to Dismiss is GRANTED.

BACKGROUND

In September 2008 plaintiff began work as an ALJ in HUD's Office of Hearing and Appeals (“OHA”). Compl. ¶ 23. Shortly thereafter tensions arose between plaintiff and defendant Anderson, plaintiff's supervisor and the director of OHA. See Compl. On December 16, 2008, plaintiff filed a formal complaint with the HUD Office of Departmental Equal Employment Opportunity (“EEO”). Compl. ¶ 14; Pl.'s Mot. for Leave to File Sur–Reply, Ex. Fernandez EEO Complaint with Attachments [# 14–3] (“EEO Compl.”). In the EEO complaint, plaintiff made six separate allegations of discrimination based on physical disability, reprisal and retaliation. EEO Compl. Relevant to this motion, plaintiff alleged, inter alia, that he had not received an equitable work-load and that defendant Anderson inappropriately issued notices on his docket and withheld information. Id. Plaintiff further provided email and other documentation evidencing plaintiff's conversations and altercations with defendant Anderson, as well as conversations with other HUD and EEO employees. Id.

On February 2, 2010, plaintiff filed this action. Along with various allegations of discrimination on the basis of disability and national origin, plaintiff alleges, in Counts V and VI, violations of the APA. Specifically, plaintiff claims that defendant Anderson assigned cases to HUD's ALJs based on political motivations and that defendant Anderson and others interfered with plaintiff's judicial independence. Compl. ¶¶ 155–59. In support of these claims, plaintiff alleges various instances in which defendant Anderson improperly assigned cases to the HUD ALJs, caused notices to be issued on plaintiff's docket, corresponded with parties appearing before the ALJs, thwarted communications between the ALJs and U.S. Department of Justice, interfered with the ALJ docket, and interfered with the scheduling of ALJ hearings. Compl. ¶¶ 54–92. Further, plaintiff alleges that despite raising these issues with HUD management, nothing was done to address his concerns. Compl. ¶¶ 93–95.

Defendant Donovan now argues that this Court does not have subject-matter jurisdiction over the APA claims because plaintiff did not exhaust those claims at the administrative level. Def.'s Mot. Dismiss at 5–6. In particular, defendant Donovan argues that because plaintiff's APA claims are, in fact, challenges to employment actions, the Civil Service Reform Act (“CSRA”) provides plaintiff's exclusive remedy. Id. In response, plaintiff argues that his complaint to the EEO qualifies as a “mixed case complaint” under CSRA, 5 U.S.C. § 7702. Pl. Opp'n to Def.'s Mot. Dismiss (“Pl. Opp'n”) at 8–11. As such, plaintiff maintains that his administrative remedies have been exhausted. Id. at 8. I disagree.

ANALYSIS

The question of whether a plaintiff failed to exhaust administrative remedies may be resolved in a Rule 12(b)(1) motion, as a jurisdictional issue, or in a Rule 12(b)(6) motion for failure to state a claim. See, e.g., Marcelus v. Corr. Corp. of America, 540 F.Supp.2d 231, 234–35 (D.D.C.2008). Indeed, our Circuit has explained that if a statute contains “sweeping and direct statutory language indicating that there is no federal jurisdiction prior to exhaustion,” the exhaustion requirement is jurisdictional and a 12(b)(1) motion is appropriate; however, if such statutory language does not exist, “the exhaustion requirement is treated as an element of the underlying claim” and a 12(b)(6) analysis is required. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247–48 (D.C.Cir.2004) (citations and internal quotations omitted). While courts have struggled with this distinction, particularly in the area of employment discrimination, see Marcelus, 540 F.Supp.2d at 234–35, our Circuit Court has determined that “[u]nder the CSRA, exhaustion of administrative remedies is a jurisdictional prerequisite to suit.” Weaver v. United States Info. Agency, 87 F.3d 1429, 1433 (D.C.Cir.1996). This Court, therefore, will review defendant's motion under the 12(b)(1) framework.¹

Under Federal Rule of Civil Procedure 12(b)(1), “the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.” Lindsey v. United States, 448 F.Supp.2d 37, 42 (D.D.C.2006) ( quoting Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006)). A court may dismiss a complaint for lack of subject matter jurisdiction only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Richardson v. United States, 193 F.3d 545, 549 (D.C.Cir.1999) ( quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998)). Irrespective, when reviewing a challenge pursuant to Rule 12(b)(1) the court must accept all material allegations in the complaint as true and must construe the complaint in favor of the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Under the CSRA, a “mixed case” is defined as “an adverse personnel action subject to appeal to the MSPB coupled with a claim that the action was motivated by discrimination.” Butler v. West, 164 F.3d 634, 638 (D.C.Cir.1999) ( citing 5 U.S.C. § 7702). Procedurally, the statute provides a party various paths in pursuing a mixed case. Id. One path, which plaintiff claims to have followed here, requires a party to file a “mixed case complaint” with the relevant agency's EEO office. Id. A “mixed case complaint” is defined in 29 C.F.R. § 1614.302(a) as:

a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address. Once a mixed case complaint is filed, “the relevant agency EEO office ... can and must address both the discrimination claim and the appealable personnel action.” Butler, 164 F.3d at 638. If, however, after 120 days, the agency's EEO office has failed to issue a final decision and if no appeal has been filed with the MSPB, the party may file a civil action in district court. 5 U.S.C. § 7702(e); see Butler, 164 F.3d at 638.

Here, parties disagree whether plaintiff properly filed a “mixed case complaint” at the administrative level. Indeed, if plaintiff failed to do so, this Court would clearly lack jurisdiction to decide Counts V and VI, as plaintiff would have failed to exhaust his administrative remedies under the CSRA and jurisdiction would lie solely with the Federal Circuit. 5 U.S.C. § 7703 (requiring that challenges to personnel actions, once exhausted, be brought in the Federal Circuit). Defendant Donovan argues, therefore, that because plaintiff did not raise his APA claims before the EEO, plaintiff did not properly bring a mixed case and the APA claims are foreclosed. Def.'s Reply at 2–6. Plaintiff, however, responds that: (1) the attachments to his EEO complaint make it clear that he was bringing both the APA claims and the discrimination claims; ² and (2) the regulations clearly permit a party to bring a mixed case while only raising an allegation of employment discrimination. Pl. Sur–Reply at 2–9. Despite these arguments, this Court need not determine whether plaintiff properly filed a mixed case complaint before the EEO.³ This Court finds that, under any scenario, plaintiff did not exhaust his administrative remedies. How so?

Stated simply, plaintiff did not raise his APA claims before the EEO. Indeed, all of plaintiff's claims before the EEO assert discrimination on the basis of disability, reprisal and retaliation. See EEO Compl. at 2. Plaintiff did not raise any claims relating to defendant Anderson's improper political motivations in assigning cases or to any threat to plaintiff's judicial independence as would violate the APA.⁴ See id. Further, plaintiff's allegations that defendant Anderson improperly (1) corresponded with parties appearing before the ALJs, (2) thwarted communications between the...