Zachariasiewicz v. U.S. Dep't of Justice

• Decision Date: 07 August 2019
• Docket Number: Civil Action No. 1:19-cv-00055 (RDA/JFA)
• Citation: 395 F.Supp.3d 734
• Parties: Robert F. ZACHARIASIEWICZ, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

395 F.Supp.3d 734

Robert F. ZACHARIASIEWICZ, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 1:19-cv-00055 (RDA/JFA)

United States District Court, E.D. Virginia, Alexandria Division.

Signed August 7, 2019

Kevin Edward Byrnes, Samuel Mark Adelmann, Fluet Huber & Hoang PLLC, Tysons Corner, VA, for Plaintiff.

Laura Day Rottenborn, Justin Michael Lugar, US Attorney's Office, Alexandria, VA, for Defendant.

ORDER

Rossie D. Alston, Jr. United States District Judge

This matter came before the Court on Defendant's Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim [Dkt. 16]. For the reasons stated below, the motion is granted.

Standard of Review

"[A] court's subject-matter jurisdiction defines its power to hear cases." Lightfoot v. Cendant Mortg. Corp. , ––– U.S. ––––, 137 S. Ct. 553, 560, 196 L.Ed.2d 493 (2017). Motions to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) may be presented in "two critically different ways." Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982). "First, it may be contended that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based. In that event, all the facts alleged in the complaint are assumed to be true." Id. Second, it may be asserted that the allegations in the complaint are false, in which case a trial court may conduct evidentiary proceedings and render factual findings. Id. Here, the Court is confronted with an analytical framework under the first methodology. "When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff." Richmond, Fredericksburg & Potomac R. Co. v. U.S. , 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams , 697 F.2d at 1219 ). "[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety." Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

Factual Background

As asserted in the verified complaint, Plaintiff is a decorated DEA agent who worked in the elite Special Operations Division ("SOD") for several years. In January 2016, the new DEA Chief of Staff, Anthony Williams, initiated a policy of transferring veteran agents out of SOD to bring "fresh" agents in. Plaintiff thought this strategy unwise, so he "protested the action to senior management" repeatedly for several months during 2016. Eventually, after ongoing discontent within SOD as well as intervention by Preet Bharara, the then-U.S. Attorney for the Southern District of New York, the transfer policy was apparently abandoned. However, DEA went ahead with Plaintiff's transfer anyway and moved him to the Washington Division Office.

Following his transfer, Plaintiff began applying to a slew of GS-15 level positions throughout DEA.¹ Plaintiff alleges that he applied to more than 30 vacancies during a two-year period between late-2015 and September 2017 but was not selected to fill any of the vacancies despite being either the most qualified or among the most qualified in each instance. One such vacancy that Plaintiff applied to, and was rated the most qualified candidate for, was Assistant Special Agent in Charge ("ASAC") for the Caribbean and Latin American Section of SOD ("ASAC-SOD"). However, the Career Board eventually selected the second-most qualified candidate, an African-American female named Renita Foster, to fill the position. Plaintiff alleges that Chief of Staff Williams openly advocated against him in the Career Board discussions, and instead lobbied for Foster because she had "a lot more diversity."

By September 2017, Plaintiff believed that DEA was systemically depriving him of promotion opportunities in violation of law, so he entered the maze of administrative procedures within the agency that address complaints regarding adverse employment actions. He first went to the Equal Employment Opportunity office ("EEO") at DEA and filled out an Intake Form, alleging racial and gender discrimination in his non-selection for the ASAC-SOD position. Plaintiff did not pursue the EEO claim for long – he withdrew it six days later, stating in an email to the EEO office that he would "pursue all of [his] claims through the [Merit Systems Protection Board ("MSPB") ]."

Plaintiff filed his first MSPB case in October 2017 ("MSPB I "), alleging that he was subject to retaliation and reprisal under the Whistleblower Protection Act ("WPA") for his previous complaints about Williams' transfer policy. Plaintiff also included his discrimination claims, as well as other unlawful employment practice claims for conduct that violated certain Office of Personnel Management ("OPM") regulations. The MSPB dismissed Plaintiff's MSPB I , concluding that he did not administratively exhaust the WPA claims through the Office of Special Counsel ("OSC"), he did not articulate a legitimate unlawful employment practice claim, nor had he properly brought the discrimination claims before the MSPB.

Perhaps sensing the impending outcome of MSPB I , Plaintiff filed an action with the OSC less than two weeks before the MSPB issued its decision in MSPB I , setting forth the WPA claims. Then, to make matters more complicated, he filed his second case with the MSPB in December 2017 ("MSPB II "), before the OSC had resolved Plaintiff's claims. Having not achieved administrative exhaustion, Plaintiff requested to withdraw MSPB II until the OSC completed its investigation. The MSPB dismissed MSPB II without prejudice and granted Plaintiff up to 180 days to re-file to allow the OSC case to mature. On March 7, 2018, the OSC informed Plaintiff that it would not pursue his case and notified him of his right to an Individual Right of Action ("IRA") appeal before the MSPB.

Plaintiff then filed his third and final case before the MSPB ("MSPB III ") 78 days later, on May 24, 2018, and again asserted the WPA claims, discrimination claims, OPM claims, and claims related to other prohibited personnel practices. DEA filed a motion to dismiss MSPB III , which the MSPB granted nearly entirely, with the exclusion of certain WPA claims. Plaintiff then filed this action in federal court, asserting that this Court has jurisdiction over his "mixed case appeal."

Analysis

The parties disagree on whether Plaintiff has brought a proper "mixed case appeal" before the Court. This dispute constitutes the crux of this case, because an employee is entitled to seek review in a federal district court once the MSPB issues a dispositive ruling on a "mixed case," whether it be on the merits or for a procedural or jurisdictional defect. See Perry v. Merit Systems Protection Bd. , ––– U.S. ––––, 137 S. Ct. 1975, 1986-88, 198 L.Ed.2d 527 (2017) ; Kloeckner v. Solis , 568 U.S. 41, 50, 56, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012).

"A mixed case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color...[or] sex." 29 C.F.R. § 1614.302(a)(2). Normally, an employee alleging unlawful employment actions by an agency must split his claims into separate actions before different administrative entities depending on the allegations. For example, discrimination claims are heard by the agency's EEO office, see 29 C.F.R. § 1614.105, whistleblower claims go before the OSC, see 5 U.S.C. § 1214(a)(3), and certain "particularly serious" adverse actions are the domain of the MSPB, see Kloeckner , 568 U.S. at 44, 133 S.Ct. 596 (citing 5 U.S.C. §§ 1204, 7512, 7701 ). A "mixed case appeal" is, in essence, a hybrid action allowing an employee to streamline his case by bundling his claims into one proceeding before the MSPB. However, the MSPB's jurisdiction over a "mixed case" is still limited and not every set of bundled claims qualifies as a "mixed case."

The MSPB's jurisdictional threshold is set forth within 5 U.S.C. § 7702 and mirrors the definition within the CFR cited above. Specifically, 5 U.S.C. § 7702(a)(1) provides for MSPB jurisdiction:

in the case of any employee ... who—

(A) has been affected by an action which the employee... may appeal to the [MSPB], and

(B) alleges that a basis for the action was discrimination prohibited by [various antidiscrimination statutes].

The critical issue is whether Plaintiff's case meets the requirements of subsection (A). Defendants contend that subsection (A) only covers the five "particularly serious" adverse actions enumerated within 5 U.S.C. § 7512 – "(1) a removal; (2) a suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay; and (5) a furlough of 30 days or less." Those actions are within the original jurisdiction of the MSPB and can thus be brought directly before it without exhaustion through the pertinent administrative office. It is undisputed that Plaintiff did not suffer any of those adverse employment determinations.

Plaintiff instead argues that he filed a proper "mixed case appeal" because his WPA claims, which he contends became "appealable" upon exhaustion, constitute "an action which the employee...may appeal to the [MSPB]." He thus reasons that the WPA claims, in conjunction with his discrimination claims, satisfy the jurisdictional requirements of 5 U.S.C. § 7702(a)(1) and 29 C.F.R. § 1614.302(a)(2). Plaintiff, however, has conflated the types of actions included within those guidelines with the IRA appeal granted to him by the OSC. There is no question that Plaintiff had the ability to pursue his WPA claims with the MSPB and obtain relief via the IRA appeal, but for those claims only , and not as part of a "mixed case." See 5 U.S.C. § 1221 ; 5 C.F.R. § 1209. The complicating wrinkle over the scope of the MSPB's authority thus lies between what the MSPB may hear as part of its original jurisdiction, set forth in 5 U.S.C. § 7702(a)(1), and its appellate jurisdiction, see 5 U.S.C. § 1221.

The issue is...