Tabaddor v. Holder

Decision Date23 April 2015
Docket NumberCV 14–6309–GW(CWx)
Citation156 F.Supp.3d 1076
CourtU.S. District Court — Central District of California
Parties Afsaneh Ashley Tabaddor v. Eric H. Holder Jr., et al.

Allison M. Rego, Ali M.M. Mojdehi, Janet Dean Gerts, for Plaintiffs.

Benjamin L. Barwick, U.S. DOJ, for Defendants.

PROCEEDINGS: DEFENDANTS' MOTION TO DISMISS [33]

GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court's Final Ruling. Defendants' motion is GRANTED IN PART and DENIED IN PART.

A Scheduling Conference is set for May 14, 2015 at 8:30 a.m. Parties may appear telephonically provided that notice is given to the clerk two business days prior to the hearing.

Tabaddor v. Holder, Jr., et al., Case No. 2:14–cv–6309–GW–CW
Tentative Ruling on Motion to Dismiss
I. Background

In an Amended Complaint (“AC”) filed October 3, 2014, in this action, Afsaneh Ashley Tabaddor (Plaintiff) sues Eric Holder, Jr. (“Holder”); Jeffrey A. Rosenblum (“Rosenblum”); Thomas Y.K. Fong (“ACIJ Fong”); Marlene M. Wahowiak; the United States Department of Justice (“DOJ”); the Executive Office for Immigration Review, United States Department of Justice (“EOIR”); the Office of the General Counsel, Executive Office for Immigration Review; and the Office of the Chief Immigration Judge, Executive Office for Immigration Review (collectively Defendants). Plaintiff asserts four claims for relief: 1) Violation of the First Amendment; 2) Unconstitutional Overbreadth of Agency's Policy of Enforcing Regulation; 3) Unlawful Discrimination in Violation of Title VII; and 4) Unlawful Retaliation in Violation of Title VII.

Plaintiff is a sitting Immigration Judge with the DOJ, EOIR, and an Iranian–American. See AC ¶¶ 1, 19. She alleges that in 2012, “EOIR ordered that she be recused from any and all cases before her involving Iranian nationals and that she should not be assigned any such cases in the future—an order that remains in effect today.” Id. This order—which originated in the form of a “recommendation” but transformed into an order following her protest of it—resulted from her decision to attend, upon invitation (and after seeking—and receiving—approval for annual leave to do so), an event held by the White House Office of Public Engagement entitled a “Roundtable with Iranian–American Community Leaders” (“the Roundtable”). See id. ¶¶ 3, 31–42, 70. As a result of her objection to the initial recommendation and continuing order, Plaintiff also alleges that she has suffered further actions at the hands of Defendants—an inability to use her title, with an appropriate disclaimer, in connection with outside speaking activities in her personal capacity, and a refusal to allow her to receive compensation for teaching courses at UCLA law school. See id. ¶¶ 71, 73, 97–98.

II. Analysis

Defendants move to dismiss each of Plaintiff's claims. In roughly-drawn terms, they argue that this Court cannot consider Plaintiff's constitutional claims because those claims are precluded by the Civil Service Reform Act (“CSRA”). As to Plaintiff's Title VII discrimination claim, Defendants assert that Plaintiff failed to administratively exhaust it in a timely manner and that Plaintiff has failed to plead an adverse employment action. Finally, with respect to retaliation, Defendants argue that Plaintiff failed to administratively exhaust one of the bases for the claim and has not alleged facts demonstrating a prima facie case.

A. Applicable Procedural Standards

Under Rule 12(b)(6), concerning whether a complaint has properly stated a claim, a court is to (1) construe the complaint in the light most favorable to the plaintiff, and (2) accept all well-pleaded factual allegations as true, as well as all reasonable inferences to be drawn from them. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001), amended on denial of reh'g, 275 F.3d 1187 (9th Cir.2001) ; Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998) ; see also Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009). The court need not accept as true “legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). A complaint does not “suffice if it tenders ‘naked assertion[s] devoid of ‘further factual enhancement.’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990) ; Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir.2008) ; see also Twombly, 550 U.S. at 562–63, 127 S.Ct. 1955 (dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove “no set of facts” in support of its claim that would entitle it to relief). However, a plaintiff must also “plead ‘enough facts to state a claim to relief that is plausible on its face.’ Johnson, 534 F.3d at 1122 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). “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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

In its consideration of a Rule 12(b)(6) motion, the court is limited to the allegations on the face of the complaint (including any documents attached thereto), matters which are properly judicially noticeable and “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” See Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir.2001) ; Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir.1994), overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002) ; see also Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (indicating that a court may consider a document “on which the complaint ‘necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion).

Unlike a typical Rule 12(b)(6) motion, under Rule 12(b)(1), which permits motions to dismiss for lack of subject matter jurisdiction, a court may look beyond the complaint and consider extrinsic evidence. See Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir.2014).

Failure to administratively exhaust should be raised by summary judgment motion except where that failure is clear on the face of the complaint. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.2015) ; Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.2014) (en banc ), cert. denied sub nom. , Scott v. Albino, ––– U.S. ––––, 135 S.Ct. 403, 190 L.Ed.2d 307 (2014). This is a change from the Ninth Circuit's prior approach to this issue, which was to address it by way of an “unenumerated Rule 12(b) motion.” Albino, 747 F.3d at 1168–69 ; see also Wyatt v. Terhune, 315 F.3d 1108 (9th Cir.2003).

B. Constitutional Claims—Claims One and Two

In 2012, in Elgin v. Department of Treasury, ––– U.S. ––––, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012), the Supreme Court decided “whether the CSRA precludes district court jurisdiction over petitioners' claims even though they are constitutional claims for equitable relief,” concluding that, in fact, it does. Id. at 2132 ; see also Richards v. Kiernan, 461 F.3d 880, 885 (7th Cir.2006) (“There is no question but that the CSRA provides the exclusive remedy for an alleged constitutional violation (including an alleged First Amendment violation) arising out of federal employment.”). This was due, in large part, to the comprehensive and “painstaking” detail the CSRA goes into when setting out the method for covered employees to obtain review of adverse employment actions. See Elgin, 132 S.Ct. at 2133–34. The Court concluded that there was no room even for an exception for “facial or as-applied constitutional challenges to federal statutes.” Id. at 2134 ; see also id. at 2135–36 (rejecting a distinction between facial and as-applied challenges in favor of “a jurisdictional rule based on the type of employee and adverse agency action at issue[, which] does not involve such amorphous distinctions”). In reaching the decision, the Court noted—citing the carve-out for discriminatory actions in 5 U.S.C. § 7702(a)(1)(B)“that Congress knew how to provide alternative forums for judicial review based on the nature of an employee's claim,” and did not do so for constitutional claims. See id. at 2134–35 ; Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C.Cir.2009) (“When Congress wants to preserve remedies outside the CSRA, it does so expressly; for example, the CSRA maintains federal employees' rights to bring suit under Title VII and other anti-discrimination laws.”).

Elgin also rejected an argument that the CSRA did not preclude review over the petitioners' claims in that case because the claims were “wholly collateral” to the CSRA scheme and, according to the petitioners, had “nothing to do with the types of day-to-day personnel actions adjudicated by the MSPB.” See Elgin, 132 S.Ct. at 2139. The Court summarily disagreed with the petitioners, concluding that the case before it was “a challenge to [a] CSRA-covered employment action brought by CSRA-covered employees requesting relief that the CSRA routinely affords.” Id. at 2140.

Here, unlike in Elgin, Defendants argue that the recusal recommendation/order would, under Plaintiff's allegations, constitute a “prohibited personnel practice,” which they assert must be challenged—at least insofar as Plaintiff's constitutional claims are...

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