PETER J. MESSITTE, District Judge.
Pro se Plaintiff Keith Alexander Ashe has sued Defendant Tom Price, Secretary of Health and Human Services.
For the following reasons, the Court will
Ashe began his employment at the National Institutes of Health ("NIH") on approximately October 27, 2007 and worked there until February 28, 2017.
Ashe states that on April 18, 2013, he disclosed to Dr. Alfred Johnson, Director of ORS, that his supervisor, Wilson had "asked him to fabricate a[n] engineering regulatory report." Compl. at 3. He also says that in February 2015, he disclosed to Johnson, Wilson, NIH Deputy Director Herbert Jacobi, and "his contracting officers," that a government contractor was "committing contract fraud." Compl. at 4.
Ashe avers that as a consequence of the foregoing disclosures, he was retaliated against in several ways:
Prior to filing his Complaint, Ashe filed a report with the Office of Special Counsel ("OSC") on January 27, 2016.
Ashe filed the present Complaint on October 12, 2016, asserting WPA and Title VII violations. Ashe alleges that as a consequence of his "whistleblower disclosures," he "was retaliated against and subjected to an extremely hostile work environment." Compl. at 1. He contends that there is a "clear chain of causality link[ing] [his] whistleblower disclosures and NIH's retaliatory actions" and that "the myriad of action taken against [him] . . . form a convincing `mosaic' demonstrating that he was retaliated against for making whistleblower disclosures." Compl. at 2.
On March 6, 2017, the Government filed a Motion to Dismiss (ECF No. 15), arguing that Ashe's Complaint should be dismissed because Ashe's attempt to seek judicial review of administrative action is premature and was filed in the wrong court.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted if the allegations in a complaint do not "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead facts sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). But this standard requires "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court will accept factual allegations as true, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Indeed, the court need not accept legal conclusions couched as factual allegations or "unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Markets, Inc. v. J.D. Associates Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). In the end, the complaint must contain factual allegations sufficient to apprise a defendant of "what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (internal quotations and citations omitted).
A party may move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) where the court lacks subject matter jurisdiction over the claims alleged in the complaint. Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited subject matter jurisdiction: they "possess only the jurisdiction authorized them by the United States Constitution and by federal statute." See United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2365, 168 L.Ed.2d 96 (2007)). As the party asserting jurisdiction, the plaintiff bears the burden of proving that the district court has subject matter jurisdiction. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). When a district court determines that it lacks subject matter jurisdiction over an action, it must dismiss the action. Vuyyuru, 555 F.3d at 347 (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). In considering whether to dismiss for lack of jurisdiction, the court may consider "evidence outside of the pleadings without converting the proceeding into one for summary judgment." White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quoting Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768); see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) ("[T]he court may consider the evidence beyond the scope of the pleadings to resolve factual disputes concerning [subject matter] jurisdiction.").
As an initial matter, Ashe has failed to state a claim under Title VII upon which relief might be granted. "The elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class." Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 132 S.Ct. 1327, 182 L. Ed. 2d 296 (2012). "Title VII forbids employment discrimination based on `race, color, religion, sex, or national origin.'" DeMasters v. Carilion Clinic, 796 F.3d 409, 416 (4th Cir. 2015) (quoting 42 U.S.C. § 2000e-2(a)). Ashe's Complaint does not allege that he was discriminated against based on his race, color, religion, sex, or national origin. Rather, he alleges that he was discriminated against because of his whistleblower disclosures.
Although Title VII has an anti-retaliation provision, it only serves to "prevent[ ] an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees." Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (citing 42 U.S.C. § 2000e-3(a)). In other words, Title VII's anti-retaliation provision prohibits an employer from taking an adverse action against an employee because of that employee's attempt to pursue a claim of discrimination based on his race, color, religion, sex, or national origin. See id. ("In order to establish a prima facie Title VII retaliation claim, a plaintiff must demonstrate three elements: `(1) that [he] engaged in a protected activity, as well as (2) that [his] employer took an adverse employment action against [him], and (3) that there was a causal link between the two events.'"). Accordingly, retaliation for whistleblower disclosures related to requests to fabricate reports and contract fraud, as is alleged here, does not amount to a claim under Title VII. Accordingly, Ashe's Title VII claim will be dismissed under Rule 12(b)(6).
With respect to Ashe's claims under the WPA, Ashe has failed to exhaust his administrative remedies.
"The WPA provides most federal agency employees with protection against agency reprisals for whistleblowing activity, such as disclosing illegal conduct, gross mismanagement, gross wasting of funds, or actions presenting substantial dangers to health and safety." Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) (citing 5 U.S.C. § 2302(b)(8)). The WPA's protections for whistleblowers are within the framework of the Civil Service Reform Act ("CSRA"). See Heard v. U.S. Dep't of State, 2010 WL 3700184, at *6, n. 7 (D.D.C. Sept. 17, 2010). See also Hall v. Clinton, 235 F.3d 202, 204 (4th Cir.2000) ("The CSRA comprehensively overhauled the civil service system, creating a framework for evaluating adverse personnel actions against federal employees."). "Under the procedures set forth in Title 5 of the U.S. Code, an employee who believes [he] is the victim of an unlawful reprisal must first bring [his] claim to the OSC, which investigates the complaint." Stella, 284 F.3d at 142 (citing 5 U.S.C. § 1214; Weber v. United States, 209 F.3d 756, 757-58 (D.C.Cir.2000)). "If the OSC finds an absence of wrongdoing, the employee can appeal that decision to the [MSPB]." Id. See also 5 U.S.C. §§ 1221; 1214(a)(3); Weber, 209 F.3d at 758; 5 U.S.C. § 7701 ("An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation.").
"[F]or claims brought pursuant to the WPA, `exhaustion of administrative remedies is a. . . prerequisite to suit.'" Heard v. U.S. Dep't of State, 2010 WL 3700184, at *6 (D.D.C. Sept. 17, 2010) (quoting Weaver v. United States Information Agency, 87 F.3d 1429, 1433 (D.C.Cir.1996)). Moreover, the CSRA precludes judicial review of personnel actions other than as provided for by statute. See United States v. Fausto, 484 U.S. 439, 445-49 (1988). Accordingly, where a plaintiff fails to exhaust his administrative remedies, "[c]laims under the WPA must be dismissed." Floyd v. U.S. Dep't of Homeland Sec., 2009 WL 3614830, at *3 (D. Md. Oct. 27, 2009).
Here, Ashe brought his claims to the OSC and then appealed to the MSPB. 5 U.S.C. § 7701, et seq. provides two avenues for judicial review of WPA claims brought to the MSPB. Section 7703 governs judicial review of decisions of the MSPB related to actions which do not involve any claim of discrimination, see 5 U.S.C. § 7703, while § 7702 governs judicial review of actions brought to the MSPB which include a claim of discrimination under a set of enumerated statutes. See 5 U.S.C. § 7702.
Here, as discussed above, neither Ashe's MSPB claim nor his present Complaint assert a claim of discrimination under Title VII or any of the other anti-discrimination statutes listed in § 7702. Therefore, his MSPB appeal is not a mixed appeal, and 5 U.S.C. § 7702 is not applicable. Accordingly, 5 U.S.C. § 7703 governs his Complaint.
Section 7703 does not permit judicial review until after the MSPB issues its decision.
Moreover, because § 7703, not § 7702, applies, the Court lacks subject matter jurisdiction over Ashe's WPA claims because he has filed his Complaint in the wrong court. "[A] petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit" 5 U.S.C.A. § 7703.
With regard to Ashe's failure to exhaust, Ashe could amend his Complaint once the MSPB issues a decision. However, because Ashe has filed his Complaint in the wrong court, even if he amends his Complaint, the Court would still lack subject matter jurisdiction. In other words, the latter deficiency cannot be resolved through the filing of an amended complaint. Accordingly, his Complaint is dismissed with prejudice.
For the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 15) is