RICHARD J. LEON, District Judge.
Plaintiff Alexander Fernandez ("plaintiff'), an Administrative Law Judge ("ALJ") for the U.S. Department of Housing and Urban Development ("HUD"), brings this action against Shaun Donovan in his capacity as Secretary of HUD ("defendant Donovan") and two individual HUD employees David T. Anderson in his capacity as Director of the Office of Hearing and Appeals ("defendant Anderson") and Marcela E. Belt in her capacity as Chief Executive Officer ("defendant Belt" and collectively "defendants"). Plaintiff alleges discrimination based on disability and national origin, retaliation, harassment and violations of the Federal Administrative
In September 2008 plaintiff began work as an ALJ in HUD's Office of Hearing and Appeals ("OHA"). Compl. ¶ 23. Shortly thereafter tensions arose between plaintiff and defendant Anderson, plaintiffs supervisor and the director of OHA. See Compl. On December 16, 2008, plaintiff filed a formal complaint with the HUD Office of Departmental Equal Employment Opportunity ("EEO"). Compl. ¶ 14; Pl.'s Mot. for Leave to File Sur-Reply, Ex. Fernandez EEO Complaint with Attachments [#14-3] ("EEO Compl."). In the EEO complaint, plaintiff made six separate allegations of discrimination based on physical disability, reprisal and retaliation. EEO Compl. Relevant to this motion, plaintiff alleged, inter alia, that he had not received an equitable work-load and that defendant Anderson inappropriately issued notices on his docket and withheld information. Id. Plaintiff further provided email and other documentation evidencing plaintiffs conversations and altercations with defendant Anderson, as well as conversations with other HUD and EEO employees. Id.
On February 2, 2010, plaintiff filed this action. Along with various allegations of discrimination on the basis of disability and national origin, plaintiff alleges, in Counts V and VI, violations of the APA. Specifically, plaintiff claims that defendant Anderson assigned cases to HUD's ALJs based on political motivations and that defendant Anderson and others interfered with plaintiffs judicial independence. Compl. ¶¶ 155-59. In support of these claims, plaintiff alleges various instances in which defendant Anderson improperly assigned cases to the HUD ALJs, caused notices to be issued on plaintiffs docket, corresponded with parties appearing before the ALJs, thwarted communications between the ALJs and U.S. Department of Justice, interfered with the ALJ docket, and interfered with the scheduling of ALJ hearings. Compl. ¶¶ 54-92. Further, plaintiff alleges that despite raising these issues with HUD management, nothing was done to address his concerns. Compl. ¶¶ 93-95.
Defendant Donovan now argues that this Court does not have subject-matter jurisdiction over the APA claims because plaintiff did not exhaust those claims at the administrative level. Def.'s Mot. Dismiss at 5-6. In particular, defendant Donovan argues that because plaintiffs APA claims are, in fact, challenges to employment actions, the Civil Service Reform Act ("CSRA") provides plaintiffs exclusive remedy. Id. In response, plaintiff argues that his complaint to the EEO qualifies as a "mixed case complaint" under CSRA, 5 U.S.C. § 7702. Pl. Opp'n to Def.'s Mot. Dismiss ("Pl. Opp'n") at 8-11. As such, plaintiff maintains that his administrative remedies have been exhausted. Id. at 8. I disagree.
The question of whether a plaintiff failed to exhaust administrative remedies may be resolved in a Rule 12(b)(1) motion, as a jurisdictional issue, or in a Rule 12(b)(6) motion for failure to state a claim. See, e.g., Marcelus v. Corr. Corp. of America, 540 F.Supp.2d 231, 234-35 (D.D.C.2008). Indeed, our Circuit has explained
Under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence." Lindsey v. United States, 448 F.Supp.2d 37, 42 (D.D.C.2006) (quoting Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006)). A court may dismiss a complaint for lack of subject matter jurisdiction only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Richardson v. United States, 193 F.3d 545, 549 (D.C.Cir.1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998)). Irrespective, when reviewing a challenge pursuant to Rule 12(b)(1) the court must accept all material allegations in the complaint as true and must construe the complaint in favor of the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
Under the CSRA, a "mixed case" is defined as "an adverse personnel action subject to appeal to the MSPB coupled with a claim that the action was motivated by discrimination." Butler v. West, 164 F.3d 634, 638 (D.C.Cir.1999) (citing 5 U.S.C. § 7702). Procedurally, the statute provides a party various paths in pursuing a mixed case. Id. One path, which plaintiff claims to have followed here, requires a party to file a "mixed case complaint" with the relevant agency's EEO office. Id. A "mixed case complaint" is defined in 29 C.F.R. § 1614.302(a) as:
Here, parties disagree whether plaintiff properly filed a "mixed case complaint" at the administrative level. Indeed, if plaintiff failed to do so, this Court would clearly lack jurisdiction to decide Counts V and VI, as plaintiff would have failed to exhaust his administrative remedies under the CSRA and jurisdiction would lie solely with the Federal Circuit. 5 U.S.C. § 7703 (requiring that challenges to personnel actions, once exhausted, be brought in the Federal Circuit). Defendant Donovan argues, therefore, that because plaintiff did not raise his APA claims before the EEO, plaintiff did not properly bring a mixed case and the APA claims are foreclosed. Def.'s Reply at 2-6. Plaintiff, however, responds that: (1) the attachments to his EEO complaint make it clear that he was bringing both the APA claims and the discrimination claims;
Stated simply, plaintiff did not raise his APA claims before the EEO. Indeed, all of plaintiff's claims before the EEO assert discrimination on the basis of disability, reprisal and retaliation. See EEO Compl. at 2. Plaintiff did not raise any claims relating to defendant Anderson's improper political motivations in assigning cases or to any threat to plaintiff's judicial independence as would violate the APA.
While plaintiff did allege that defendant Anderson did not distribute the caseload equitably among the ALJs and issued notices on plaintiffs docket, these allegations cannot bring plaintiff's APA claims within the scope of his EEO complaint. The Title VII context is informative. Under Title VII, a lawsuit is "limited in scope to claims that are like or reasonably related to the allegations of the [EEO complaint]." Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995); see also Marshall v. Federal Express Corp., 130 F.3d 1095, 1098 (D.C.Cir.1997); Jones v. Wash. Times, 668 F.Supp.2d 53, 58 (D.D.C.2009) (explaining that "a subsequent civil action is limited to the matters addressed at the administrative level"). Indeed, although this "requirement should not be construed to place a heavy technical burden on individuals untrained in negotiating procedural labyrinths. . . . the requirement of some specificity in [a EEO complaint] is not a mere technicality." Park, 71 F.3d at 907 (internal quotation omitted); see also Hodge v. United Airlines, 666 F.Supp.2d 14 (D.D.C.2009) (finding that plaintiff's indication in his EEO complaint he "`wrote a letter of harassment'" to headquarters was "not specific or elaborate enough to allow the EEOC to infer the existence of a hostile work environment" and therefore could not sustain the claim before the district court); Beckham v. Amtrak, 636 F.Supp.2d 111, 115 (D.D.C.2009) (finding that plaintiff's allegations at the administrative level were "too vague and circumscribed" to constitute a specific complaint of discrimination). While the procedures required under Title VII are different from those required for a CSRA "mixed case," the principles of exhaustion require a similar standard. Plaintiff's allegations that he "received an inequitable caseload allocation" and that defendant Anderson "caused Notices to be issued" on his docket were insufficient to sustain plaintiffs specific APA claims. Counts V and VI are, therefore, dismissed.
Finally, defendant Donovan moves this Court to dismiss all counts against individual federal employees, defendant Anderson and defendant Belt. In response, plaintiff states that he "does not object to. . . dismissing Defendant Anderson and Defendant Belt from this action." Pl. Opp'n at 17. Indeed, whether this court construed plaintiffs action as a mixed case under the CSRA or a straight discrimination case, the only proper defendant would
For all of the foregoing reasons, the Court GRANTS the defendant's Motion to Dismiss Counts V and VI and to Dismiss All Counts against Individual Federal Employees [#10]. An order consistent with this decision accompanies this Memorandum Opinion.
For the reasons set forth in the Memorandum Opinion entered this 12th day of January 2011, it is hereby
