REGGIE B. WALTON, District Judge.
Plaintiff Hamdy Alex Abou-Hussein, proceeding pro se, filed this action seeking relief for the alleged actions of his employer, the Department of the Navy, see Complaint ("Compl.") ¶¶ 156-61, and unknown agents of the Naval Criminal Investigative Services ("NCIS"), see id. at 1 (listing unknown NCIS agents in the caption). Currently before the Court is Defendant Raymond Edwin Mabus, Jr.'s ("the Secretary") motion to dismiss this case pursuant to various provisions of Federal Rule of Civil Procedure 12(b) or, in the alternative, for summary judgment.
The following factual allegations are taken from the plaintiff's complaint, and are accepted as true for the purpose of resolving the Secretary's motion as required by Federal Rule of Civil Procedure 12(b). The plaintiff began working for his current employer, the Space and Naval Warfare Systems Command ("Command") in Charleston, South Carolina, in September 2005. Compl. ¶¶ 1, 30. After settling an Equal Employment Opportunity Commission complaint against the Command in 2007, id. ¶ 37, the plaintiff was falsely accused of sexual harassment, id. ¶ 39, and was subjected to repeated "false espionage and terrorism allegations," id. ¶ 37, "based on his Arabic national origin," id. ¶ 57. During this time, the plaintiff "began to piece the puzzle together" of rampant contract
In May 2008, the plaintiff filed a complaint with the Office of Special Counsel, which resulted in him being subjected to "intimidating death threats, humiliation, discrimination, and a conspiracy that needs a much longer complaint to detail," including an unfounded criminal investigation by the NCIS. Id. ¶ 55. He subsequently filed actions in the United States District Court for the District of South Carolina against the Command under the False Claims Act and the Freedom of Information Act ("FOIA"). Id. ¶ 55. Beginning in 2009, the plaintiff also "repeatedly filed [m]ixed[c]ase appeals with the Merit Systems Protection Board [("MSPB")] ... alleging contract fraud, conspiracy death threats, and retaliatory discrimination on account of his Arab origin and in retaliation for his whistleblowing." Id. ¶ 8. The plaintiff received final decisions on two of his appeals from the MSPB in December 2010 and on April 4, 2012. Id. ¶¶ 12-13. A third appeal is currently pending before the MSPB. Pl.'s Opp'n at 15.
The plaintiff filed this action on June 5, 2012, alleging discrimination based on his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2006), Compl. ¶¶ 56-57, retaliation resulting from his whistleblowing activity in violation of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (2006), Compl. ¶ ¶ 58-59, and retaliation resulting from the previous suits he filed against his employer under the False Claims Act, 31 U.S.C. § 3730(h) (2006), Compl. ¶ 60-61, for which he seeks an array of remedies, id. at pp. 19-20. The plaintiff also requests the Court to issue an order to the United States Department of Justice's Office of Information Policy "to publish an update on [its] website" regarding the plaintiff's previous suit against the defendant under the FOIA. Id. at 20.
The Secretary seeks dismissal of this action pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3), (4), (5), and (6). Def.'s Mot. at 1. Alternatively, the Secretary requests summary judgment pursuant to Federal Rule of Civil Procedure 56. Id. The plaintiff opposes the Secretary's motion, and indicates that he is also bringing claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for declaratory relief, Pl.'s Opp'n at 1, 4-5, and the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1964 (2006), Pl.'s Opp'n at 8-13. For the reasons explained below, the Court concludes that the Secretary is entitled to either dismissal or transfer under Rules 12(b)(1), (3), and (6), and that his motion can be resolved without consideration of the additional exhibits attached to the Secretary's motion.
A motion to dismiss under Rule 12(b)(1) "presents a threshold challenge to the [C]ourt's jurisdiction." Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). When reviewing such a motion, the Court must "assume the truth of all material factual allegations in the complaint and `construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (citation omitted). However, because "[fjederal courts are courts of limited jurisdiction," it is "presumed that a cause lies outside [their] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and "the [p]laintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction," Hollingsworth v. Duff, 444 F.Supp.2d 61, 63 (D.D.C.2006). Accordingly, the "`[p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1987)). Finally, in determining whether it has jurisdiction, the Court "may consider materials outside of the pleadings." Jerome Stevens Pharm., Inc. v. FDA 402 F.3d 1249, 1253 (D.C.Cir.2005).
In considering a motion to dismiss for lack of proper venue under Rule 12(b)(3), "the Court accepts the plaintifff's] wellpled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff[`s] favor, and ... resolves any factual conflicts in the plaintiff[`s] favor." Quarks v. Gen. Inv. & Dev. Co., 260 F.Supp.2d 1, 8 (D.D.C.2003) (internal quotation marks and citation omitted); see also 2215 Fifth St. Assocs. v. U-Haul Int'l, Inc., 148 F.Supp.2d 50, 54 (D.D.C.2001) (stating that courts will grant a 12(b)(3) motion if "facts [are] presented that ... defeat [the] plaintiff's assertion of venue") (citation omitted). "Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper." Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003) (citations omitted).
A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint "state[s] a claim upon which relief
The pleadings of pro se litigants are to be "liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal citations and quotation marks omitted). However, even though a pro se complaint must be construed liberally, the complaint must still "present a claim on which the Court can grant relief." Chandler v. Roche, 215 F.Supp.2d 166, 168 (D.D.C.2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981)).
The Secretary contends that the plaintiff's discrimination claim must be dismissed because venue in this Court is improper. Def.'s Mem. at 7-9. Claims of discrimination under Title VII may be brought where "the unlawful employment practice is alleged to have been committed,... the employment records relevant to such practice are maintained and administered,... [or where] the aggrieved person would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3). If the defendant cannot be brought before the court in any of the three preceding districts, the action may be brought where "the respondent has his principal office." Id. The Court agrees with the Secretary's position that venue is improper in this district.
This district is neither the location of the alleged discrimination nor the district in which the plaintiff would have worked but for the alleged discrimination. The facts underlying the plaintiff's discrimination claim occurred in Charleston, South Carolina, Tampa, Florida, and San Diego, California, the three locations where the plaintiff was employed while the alleged discrimination occurred. See Compl. 111! 38-50, 55; see also Pl.'s Opp'n, Exhibit ("Ex.") C (Affidavit in Rebuttal of Defendants'
The plaintiff chiefly relies on the second provision of § 2000e-5(f)(3) as grounds for venue in this district, arguing that venue is proper here because the "[f]ederal government moved storage to computers' clouds, which does not leave a physical street address." Pl.'s Opp'n, Ex. C (Pl.'s Aff.) It 12. The electronic accessibility of documents in this district does not satisfy § 2000e-5(f)(3)'s second provision, which permits a case to be brought "in the judicial district in which the employment records relevant to such practice are maintained and administered," § 2000e-5(f)(3), because the statute contemplates venue in the single judicial district where the records are "maintained and administered," not "wherever records could be accessed," Khalil v. L-3 Commc'ns Titan Grp., 656 F.Supp.2d 134, 136 (D.D.C.2009) (venue is proper "where the complete master set of Plaintiff's relevant employment records are maintained and administered, not merely where any records happen to be located") (citation and quotation marks omitted)). The plaintiff has therefore failed to meet his burden to establish that venue is proper in this district.
This conclusion does not end the Court's inquiry, however. Under 28 U.S.C. § 1406, a district court which finds that a plaintiff has filed a case in the wrong venue "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a) (2006). The decision whether to transfer or dismiss a case is committed to the discretion of the district court where a suit was improperly filed. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir. 1983). Although a district court may dismiss a case if the plaintiff's claim suffers from obvious substantive defects, see Buchanan v. Manley, 145 F.3d 386, 389 n. 6 (D.C.Cir.1998); Naartex Consulting Corp., 722 F.2d at 789, the interest of justice generally favors transferring a case, particularly when a plaintiff is proceeding pro se, James v. Verizon Servs. Corp., 639 F.Supp.2d 9, 15 (D.D.C.2009). In determining whether transfer as opposed to dismissal is appropriate, a court must "decide as a preliminary matter that venue and jurisdiction would be proper as to all defendants" in the district where the case would be transferred. Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1230 (D.C.Cir.1981).
The Secretary argues that the plaintiff's Title VII claim must be dismissed because the plaintiff has failed to exhaust his administrative remedies prior to bringing suit in federal court, which, he
As the defendant correctly points out, however, the plaintiff's appeals before the MSPB are not properly characterized as "mixed case appeals." Def.'s Mem. at 10-12. Under 5 U.S.C. § 7702, a mixed case is one in which the employee "has been affected by an action which the employee... may appeal to the [MSPB], and alleges that a basis for the action was discrimination prohibited by" Title VII, among other statutes. § 7702(a)(1). An employee may appeal only five types of employment actions directly to the MSPB: (1) removal, (2) suspension for more than fourteen days, (3) reduction in grade, (4) reduction in pay, and (5) a furlough of thirty days or less. § 7512. Thus, in order to bring a mixed case appeal before the MSPB, and thus to exhaust his administrative remedies through a mixed case appeal, a plaintiff must allege that the defendant has taken one of the five designated actions against him and that "a basis for the action was discrimination" in violation of Title VII.
Contrary to the Secretary's assertion, however, the failure to exhaust administrative remedies does not pose a jurisdictional bar to the plaintiff's claim under Title VII, Artis v. Bernanke, 630 F.3d 1031, 1034 n. 4 (D.C.Cir.2011) ("Title VII's exhaustion requirements are not jurisdictional"), and thus the failure to exhaust is not appropriately resolved on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), Hamilton v. Geithner, 743 F.Supp.2d 1, 7-8 (D.D.C. 2010) (Walton, J.), affd, 666 F.3d 1344 (D.C.Cir.2012). Because the failure to exhaust here is not jurisdictional, determinations
The Court therefore concludes that it is in the interest of justice to transfer this case to the United States District Court for the District of South Carolina. As the Secretary suggests, venue would be proper in that district because the alleged discrimination occurred primarily, if not entirely, at the Charleston Command facility, see Def.'s Mem. at 8, and that court can exercise personal jurisdiction over the Secretary, who is sued in his official capacity, Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C.Cir.1993) (citing 28 U.S.C. § 1391(e)). Moreover, transfer, rather than dismissal, will allow this case to proceed expeditiously to resolution without the delay and expense that would be occasioned by requiring the pro se plaintiff to re-file his discrimination claim in another court.
The Secretary also contends that the plaintiff's Whistleblower Protection Act ("WPA") claim must be dismissed because he did not properly pursue a mixed case appeal before the MSPB, and thus cannot invoke this Court's jurisdiction under 5 U.S.C. § 7703 over this claim either. Def.'s Mem. at 16-17. A federal court lacks jurisdiction over a WPA claim if it was not first brought before the MSPB by either the Office of Special Counsel or by the employee himself if the Office of Special Counsel declines to act on his behalf. Stella v. Mineta, 284 F.3d 135, 142 (D.C.Cir.2002) (citing 5 U.S.C. §§ 1221, 1214). Judicial review of the MSPB's decision may then be sought in the United States Court of Appeals for the Federal Circuit. Id. (citing § 7703(b)(1)).
The plaintiff contends that this Court has jurisdiction over his WPA claim because he pursued mixed case appeals before the MSPB, in which he raised both discrimination and whistleblowing claims. See Compl. ¶ 8. Under § 7703, judicial review of a mixed case appeal properly filed under the provisions of § 7702 may be sought in any district court. See § 7703(b)(2); Stella, 284 F.3d at 143 ("where the MSPB decides a case combining discrimination and non-discrimination claims, the [district [c]ourt takes jurisdiction over appeals from both determinations" (citation omitted)). As explained
In his opposition to the defendant's motion, the plaintiff argues that the Court should consider his suit to be timely filed because his currently-pending MSPB case has been pending for more than five hundred days, and thus "is constructively denied." Pl.'s Opp'n at 16. Unlike actions under § 7702, however, there is no statutory time limit by which the MSPB must act with respect to WPA claims, compare 5 U.S.C. § 1221 (providing that "[a] final order or decision shall be rendered by the [MSPB] as soon as practicable"), with § 7702(a)(1) (requiring the MSPB take action within 120 days of filing appeal), and thus there is no basis for this Court to deem the plaintiff's pending appeal before the MSPB "constructively denied." Accordingly, the plaintiff's WPA claim must be dismissed because this Court, and indeed, any federal district court, lacks subject matter jurisdiction over it, and the plaintiff's untimely filing deprives the Federal Circuit of jurisdiction over it as well.
Although his complaint indicates that his second claim is brought pursuant to the WPA and 18 U.S.C. § 1513, see Compl. []59, the plaintiff represents in his opposition to the motion to dismiss that his second claim, and for that matter this entire suit, is brought under the RICO Act, Pl.'s Opp'n at 8, 11-13. "Sovereign immunity bars suits ... for money damages against the government itself, and against public officials sued in their official capacities." Konarski v. Brown, No. 03-5340, 2004 WL 1249346, at *1 (D.C.Cir. June 7, 2004) (per curiam) (citation omitted). Any waiver of sovereign immunity must be clear and unequivocal. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citation omitted). The complaint indicates that the plaintiff has brought suit against the Secretary in his official capacity, see Compl. H 15 ("Defendant, Ray Mabus, is Secretary of the Navy ... and in that capacity is the chief executive officer of the Department of the Navy" (emphasis added and original emphasis omitted)), and therefore, the claim requires a waiver of sovereign immunity by the defendant. No such waiver authorizing treble damages for claims brought under the RICO Act has been
The plaintiff's repeated characterization of himself as a "private attorney general," Pl.'s Opp'n at 11-13, who represents "the citizensf] class with public interest in fighting organized crime," id. at 13, does not alter this conclusion. The Court finds no support for the proposition that the United States has waived its sovereign immunity whenever a putative RICO plaintiff brings a claim in furtherance of the public interest. None of the cases cited by the plaintiff in support of his status as a "private attorney general" indicate that sovereign immunity is inapplicable when a plaintiff seeks relief that will purportedly benefit society at large. See Rotella v. Wood, 528 U.S. 549, 557-58, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (discussing the purpose of the RICO Act in determining when RICO cause of action accrues); Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 151, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (discussing the purpose of the RICO Act in determining applicable statute of limitations). Rather, "[a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Mitchell, 445 U.S. at 538, 100 S.Ct. 1349 (citation and quotation marks omitted). And as just discussed, Congress did not waive the United States' sovereign immunity for suits for treble damages under the RICO Act. Accordingly, to the extent that the plaintiff brings a claim against the Secretary under the RICO Act, regardless of whether he purports to represent only himself or the public at large, the claim must be dismissed for lack of jurisdiction.
The Secretary argues that the plaintiff's claim under § 3730(h) of the False Claims Act must also be dismissed because sovereign immunity has not been waived for claims under § 3730(h). Def.'s Mem. at 18-19. The Court agrees that a claim under § 3730(h) against the Secretary in his official capacity is barred by sovereign immunity. See Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 467-68 (D.C.Cir.1999).
In his opposition, the plaintiff contends that his claim was brought against the Secretary in an individual capacity, and that he has effected service on the Secretary accordingly. Pl.'s Opp'n at 7. Although the Secretary disputes that he was properly served in an individual capacity, Def.'s Mem. at 18 n. 6; Def.'s Reply at 6, the Court need not resolve this dispute because even if the Secretary was properly served as an individual, the plaintiff's claim is nonetheless deficient. The whistleblower protections contained in the Civil Service Reform Act constitute the exclusive set of statutory remedies for federal employees who allege retaliation resulting from whistleblowing activity. LeBlanc v. United States, 50 F.3d 1025, 1029-30 (Fed. Cir.1995) (concluding that Congress did not intend to create a remedy in addition to those included in the Civil Service Reform Act without statutory language to that effect and in light of the comprehensiveness of the Act); Gibbs v. United States, 865 F.Supp.2d 1127, 1139-40 (M.D.Fla.2012) (same); Harris v. Bodman, 538 F.Supp.2d 78, 82 (D.D.C.2008) (same) (citations omitted). And given the existence of a remedy for the alleged conduct
In addition to the three enumerated claims in the complaint,
In any event, the Court cannot grant the relief requested by the plaintiff for an even simpler reason: the plaintiff has not named the Department of Justice as a defendant in this suit or properly served that agency. See Compl. ¶¶ 14-15 (listing the plaintiff and defendants Raymond Edwin Mabus and unknown NCIS agents as the only parties to this suit). And as the Secretary rightly notes, Def.'s Mem. at 23-24, this Court cannot assert personal jurisdiction over an entity that has not been properly served. Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C.Cir.2002) ("Even if there are sufficient contacts for a court to assert personal jurisdiction over a defendant, it lacks the power to do so unless the procedural requirements of effective service of process are satisfied.") (citing Omyii Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)).
Although the plaintiff suggests that he could amend his complaint to include the Department of Justice as a defendant in order to cure this deficiency, see Pl.'s Opp'n at 5, the plaintiff has also failed to demonstrate that he has standing to bring a claim challenging what the Department of Justice chooses to publish on its website. "[T]o satisfy Article Ill's standing requirements, a plaintiff must show (1) [he] has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Even under the broadest reading of the plaintiff's filings, he has failed to demonstrate that he can satisfy any of these three prongs. For example, the Court fails to discern what injury-in-fact the plaintiff has suffered from the Department of Justice's failure to publish certain information on its website. Thus, while permitting the plaintiff to amend his complaint may address this Court's ability to exercise personal jurisdiction over the Department of Justice, such an amendment would nonetheless fail to show that he has standing to seek injunctive relief against this agency. Therefore, the Court is unable to award the plaintiff any relief against the Department of Justice.
In addition to the above claims against the Secretary, the plaintiff also purports to bring a claim or claims against unknown NCIS agents. See Compl. at 1 (listing "[u]nknown NCIS [a]gents" in the caption). The cause of action asserted against the NCIS agents and the factual allegations supporting the claim are entirely unclear because the plaintiff does not reference the agents in his enumerated claims. See id. IfH 56-61 (referring only to
In accordance with the general practice of this Circuit, the Court thus transfers the claim or claims against the unknown NCIS agents in addition to the plaintiff's discrimination claim. See Saran v. Harvey, No. 04-18479JDB0, 2005 WL 1106347, at *4 (D.D.C. May 9, 2005) ("When venue is improper for a Title VII claim, courts have consistently transferred the entire case, pursuant to 28 U.S.C. § 1406(a), to a judicial district where venue is appropriate for all claims, rather than split a case apart." (citation omitted)). Venue in the United States District Court for the District of South Carolina is proper under 28 U.S.C. § 1391 based on the allegations in the complaint because that court is "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." See Modaressi v. Vedadi, 441 F.Supp.2d 51, 54-55 (D.D.C.2006) (holding that venue for a civil RICO claim may be established pursuant to the general venue provision of 28 U.S.C. § 1391 and collecting cases). The Court therefore finds that transfer of all claims in the case that have not been dismissed by the Court is warranted.
Despite the liberal construction the Court has afforded to the plaintiff's filings, the Court nonetheless concludes for the foregoing reasons that all of the plaintiff's claims against the Secretary must be dismissed, except for his discrimination claim under Title VII.
