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

Decision Date31 August 2022
Docket Number19-2343
PartiesROBERT F. ZACHARIASIEWICZ, Plaintiff - Appellant, v. U.S. DEPARTMENT OF JUSTICE; MERRICK B. GARLAND, U.S. Attorney General, Defendants - Appellees, ANDREA R. BUTLER, Court-Assigned Amicus Counsel.
CourtU.S. Court of Appeals — Fourth Circuit

Argued: May 5, 2022

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Rossie David Alston Jr., District Judge. (1:19-cv-00055-RDA-JFA)


Andrea R. Butler, KIRKLAND & ELLIS, LLP, Washington, D.C., for Court-Assigned Amicus Counsel.

Laura Day (Rottenborn) Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees.


Matthew D. Rowen, KIRKLAND & ELLIS LLP Washington, D.C for Amicus Curiae.

Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before GREGORY, Chief Judge, and DIAZ, and THACKER, Circuit Judges.


Robert F. Zachariasiewicz, Jr. ("Appellant") challenges the district court's dismissal of his complaint -- which alleges whistleblower protection and discrimination claims relative to his employment at the federal Drug Enforcement Agency (the "DEA" or the "Agency") -- for lack of subject matter jurisdiction. We conclude that the district court correctly held that it lacked subject matter jurisdiction to consider the whistleblower protection claims, and we affirm the district court's dismissal of those claims. However, we remand this case to the district court so that it may consider in the first instance whether it possesses subject matter jurisdiction to adjudicate the merits of Appellant's discrimination claims.

A. Factual Background

Appellant began his career at the DEA as a Special Agent in January 1998. He enjoyed early success and was rapidly promoted during his first few years at the Agency. In July 2010, Appellant was selected for a supervisory position, at classification level GS-14,[1] and was assigned to work as a Staff Coordinator in the Latin America and Caribbean Section of the Special Operations Division (the "SOD") at DEA Headquarters. And in 2013, Appellant became the Group Supervisor of the Latin America Group of the SOD's Bilateral Investigations Unit ("BIU"), an elite unit within the DEA. The Group Supervisor position was perceived as a pathway to career advancement in senior management at the Agency.

With the encouragement of his supervisors, Appellant sought to be promoted to a position at the GS-15 classification level. Such a position -- Assistant Special-Agent-in-Charge ("ASAC") for the SOD -- became available in July 2015. Appellant believed that the DEA was required to competitively advertise the position and fill it according to an objective selection process. However, the ASAC for the SOD vacancy was never advertised, and Appellant later learned that the position was filled by a lateral transfer.

Shortly afterward, in August 2015, Appellant complained to his supervisors that the way the Agency had filled the vacancy violated federal law. In response to his complaints, Appellant was informed that he was not eligible for promotion within the SOD. This substantially decreased the likelihood that Appellant would receive a promotion because the DEA generally promotes its employees from within the same office, section, or unit.


Several months later, in January 2016, the DEA instituted a policy to involuntarily transfer Staff Coordinator employees from the SOD. Although Appellant was initially advised that the policy did not apply to him because he was not employed as a Staff Coordinator, he was later informed that he would be re-assigned to DEA Headquarters pursuant to the policy. Appellant was the only non-Staff Coordinator employee to be involuntarily transferred as a result of the policy.

According to Appellant, an involuntary transfer is perceived negatively within the DEA, and an involuntary transfer to DEA Headquarters -- after the employee has already completed a required three-year stint at DEA Headquarters -- is perceived as evidence of poor job performance and/or improper conduct. In other words, Appellant alleges, the involuntary transfer to DEA Headquarters was effectively a demotion that decreased his opportunity for further promotion.

Appellant protested his impending re-assignment to senior management, arguing that the involuntary transfer policy violated federal law. Nonetheless, Appellant was directed to complete paperwork related to the reassignment. His supervisor also told him that if he continued to object, he could be involuntarily transferred to an undesirable location. Appellant submitted the paperwork in February 2016 and noted that he should not be subject to the policy because he had already served his required time at DEA Headquarters and because he worked as a Group Supervisor, not a Staff Coordinator.

That same month, in response to Appellant's objections, the DEA's Chief of Operations -- the architect of the involuntary transfer policy -- held a meeting with the BIU Group Supervisors, including Appellant. During the meeting, Appellant and the other Group Supervisors expressed concern that the policy would negatively impact the BIU's operations. But the DEA did not reverse course. Appellant continued to protest the policy, and he even complained about it to the United States Attorney's Office for the Southern District of New York. As a result of pressure from the United States Attorney, the DEA discontinued the involuntary transfer policy in August 2016.

Nonetheless, despite this reversal of course, Appellant was re-assigned to another Group Supervisor position in a different office on August 16, 2016. According to Appellant, he was the only Group Supervisor who was not subject to disciplinary proceedings at the time of his involuntary transfer, but the re-assignment suggested that he was a problem employee.


Meanwhile, between November 2015 and January 2016, Appellant applied for four positions at the GS-15 classification level within the SOD but was not selected for any of them despite ranking among the best qualified candidates. Appellant suspected that he was being "blacklisted" at the Agency and precluded from further career advancement. J.A. 32.[2] In January 2016, Appellant complained to several individuals at the Agency that his being prohibited from consideration for a promotion violated federal law, but he was advised to "keep [his] bag shut" or face retaliation because he "would effectively have a 'bulls-eye on his back.'" Id. at 34-35. According to Appellant, the DEA directed supervisors not to list him among their recommended candidates to receive a promotion. In February 2016, Appellant's supervisor confirmed that Appellant was not eligible for a promotion and advised Appellant that he would not recommend Appellant due to his own fear of retaliation by more senior management.

Appellant nevertheless continued to apply for promotions, submitting 13 applications for GS-15 positions at DEA Headquarters between March and June 2016. Again, Appellant ranked among the best qualified candidates for each position but was not selected for any of them. Appellant applied for and was rejected from several more positions -- despite ranking among the best qualified candidates -- between August 2016 and July 2017. In February 2017, Appellant's supervisor informed him that his involvement in the reversal of the involuntary transfer policy had offended senior management at the DEA. According to Appellant, senior management prevented him from receiving a promotion by removing his name from the list of recommended candidates for nine of the positions for which he applied.

In June 2017, Appellant applied for another ASAC vacancy, and this time, he was identified as the most highly qualified candidate. Agency custom generally guaranteed that the highest-ranked candidate would be awarded the position. However, at the behest of the DEA's Chief of Operations, an African American female was selected due to "diversity." J.A. 40. Indeed, Appellant was later informed by the Acting Deputy Administrator of the DEA that he was rejected because of his race and sex.

B. Agency Proceedings

On September 15, 2017, three days after he was notified that he was not selected for the ASAC position, Appellant lodged a discrimination complaint with the DEA's Equal Employment Office ("EEO"). However, Appellant withdrew his EEO complaint shortly afterward based on his belief that he could instead elect to proceed before the Merit Systems Protection Board (the "MSPB").

Appellant filed his first MSPB appeal[3] on October 3, 2017. He initially alleged race and sex discrimination in relation to his rejection for the ASAC position. Appellant later asserted whistleblower protection claims stemming from his rejection for the other positions for which he applied between November 2015 and July 2017. On November 1, 2017, Appellant also filed a complaint raising the whistleblower protection claims with the Office of Special Counsel (the "OSC"). Less than two weeks later, before the OSC addressed the complaint, an administrative judge ("AJ") dismissed the MSPB appeal for lack of jurisdiction because Appellant had not pursued his whistleblower protection claims before the OSC and because the MSPB could not exercise independent jurisdiction over the discrimination claims.

On December 19, 2017, while the OSC complaint remained pending Appellant filed a second MSPB appeal. He asserted the same discrimination and whistleblower protection claims that he had raised in his first MSPB appeal. The AJ assigned to the second MSPB appeal again questioned the MSPB's jurisdiction because Appellant had not exhausted his...

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