                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



PAUL GAMMILL,

             Plaintiff,
               v.                                         Civil Action No. 11-409 (JDB)
U.S. DEPARTMENT OF EDUCATION,

            Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Paul Gammill, proceeding pro se, brings this action against defendant the United

States Department of Education ("DOE") under the Whistleblower Protection Act ("WPA"),

5 U.S.C. § 2302(b)(8). Gammill alleges that he was fired in retaliation for "whistleblowing"

activities protected under federal law. Before the Court is [14] DOE's motion to dismiss for lack

of subject-matter jurisdiction under Federal Civil Rule 12(b)(1), [16] [23] [29] Gammill's three

"motions for order to rule in favor of the plaintiff," [31] DOE's motion to strike the third of such

motions, and [39] Gammill's motion to strike DOE's motion to dismiss. For the reasons set forth

below, DOE's motion to dismiss for lack of subject-matter jurisdiction will be granted, and the

parties' other pending motions will be denied as moot.

                                        BACKGROUND

       Paul Gammill is a former employee of the Department of Education. His most recent

appointment was in February 2009, to the position of Supervisory Management/Program




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Analyst. Def.'s Mot. to Dismiss ("MTD") [ECF No. 14] at 2. 1 Shortly after accepting this

position, tensions developed between Gammill and his supervisor, Carmel Martin. See Am.

Compl. ("Compl.") [ECF No. 10-1] at 1-2. Gammill felt that Martin was leading the office down

an improper path by trying to evade the privacy protections of the Family Educational Rights and

Privacy Act ("FERPA"). See id. On December 1, 2009, during a train ride to Philadelphia on

his way to an education conference, Gammill revealed his concerns to FERPA experts outside

the agency, as well as attorneys at DOE's Office of General Counsel. Six weeks later, Gammill

was fired. Id. at 3. Alleging that DOE terminated him in retaliation for his whistleblowing,

Gammill started pursuing administrative remedies, bringing his claim before the Office of

Special Counsel and the Merit Systems Protection Board ("MSPB"). Id. at 6. He lost at both

stages of the administrative process, with the MSPB decision becoming final on April 27, 2011.

MTD at 3.

       Gammill filed this lawsuit on February 18, 2011 (before the MSPB's decision had

become final). Original Compl. [ECF No. 1]. Gammill later sought leave to file an amended

complaint, which the Court granted. [ECF No. 10]. The amended complaint—the operative

complaint here—was deemed filed on January 9, 2013. Id. DOE filed a motion to dismiss under

Federal Civil Rule 12(b)(1) shortly thereafter, arguing that this Court lacks subject-matter

jurisdiction to adjudicate Gammill's claim.    After the motion to dismiss was fully briefed,

Gammill filed three short motions, each asking the Court to "rule in favor of the Plaintiff." See,



       1
         Because Gammill's pleadings contain a very light treatment of the factual and
procedural background, the Court cites, at times, to DOE's motion to dismiss. In ruling on a
motion to dismiss for lack of subject-matter jurisdiction under Federal Civil Rule 12(b)(1),
"where necessary, the court may consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court's


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e.g., [ECF No. 16]; [ECF No. 23]; [ECF No. 29]. DOE filed a motion to strike the third such

motion, arguing that Gammill's serial filings effectively amounted to unauthorized surreplies to

the motion to dismiss. [ECF No. 31]. Gammill then filed a motion to strike DOE's motion to

dismiss. [ECF No. 39].

                                    LEGAL STANDARD

       "Federal courts are courts of limited jurisdiction.      They possess only that power

authorized by Constitution and statute, which is not to be expanded by judicial decree."

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations

omitted). It is "presumed that a cause lies outside this limited jurisdiction, and the burden of

establishing the contrary rests upon the party asserting jurisdiction."    Id. (internal citation

omitted). Hence, "[o]n a motion to dismiss for lack of subject-matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the

court has subject-matter jurisdiction." Adams v. U.S. Capitol Police Bd., 564 F. Supp. 2d 37, 39-

40 (D.D.C. 2008). And "[b]ecause subject matter jurisdiction focuses on the court's power to

hear the claim," a court "must give the plaintiff's factual allegations closer scrutiny when

resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to

state a claim." Bailey v. WMATA, 696 F. Supp. 2d 68, 71 (D.D.C. 2010). Nevertheless, the

court must still "accept all of the factual allegations in the complaint as true." Jerome Stevens

Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If "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 (2006); accord Fed. R. Civ. P. 12(h)(3).


resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003).


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                                           ANALYSIS

       The WPA provides a private right of action for employees who suffer retaliation as a

result of protected whistleblowing activities.      See 5 U.S.C. § 1221(a).         By statute, a

whistleblowing employee must exhaust two layers of administrative remedies: first before the

Office of Special Counsel, and then, if still aggrieved, before the Merit Systems Protection

Board. See id. § 1214(a).

       A whistleblowing employee who receives an adverse ruling from the MSPB may obtain

judicial review of that ruling in the federal courts. But which federal court? That depends on

two factors: (1) whether the employee, in addition to a WPA claim, is also bringing an

employment discrimination claim, and (2) whether the employee is filing the petition for review

"[d]uring the 2-year period beginning on" December 27, 2012. See 5 U.S.C. § 7703(b)(1). WPA

cases that include at least one employment discrimination claim—so-called "mixed" cases—may

be brought in federal district court. See id. On the other hand, "pure" WPA cases may only be

reviewed by the courts of appeals. To be precise, pure cases filed "during the 2-year period

beginning on" December 27, 2012 may be filed in "any court of appeals of competent

jurisdiction," and all others "shall be filed in the United States Court of Appeals for the Federal

Circuit." Id.

       Despite this "complicated, at times confusing, process," Kloeckner v. Solis, 133 S. Ct.

596, 603 (2012), federal courts have been strict in keeping whistleblowing plaintiffs on the

proper procedural pathway. See, e.g., Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) ("The

MSPB's decision is appealable to the Federal Circuit. Under no circumstances does the WPA

grant the District Court jurisdiction to entertain a whistleblower cause of action brought directly

before it in the first instance.") (internal citation omitted); Coffman v. Glickman, 328 F.3d 619,


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621 (10th Cir. 2003) ("Review of a MSPB determination which does not involve claims of

unlawful discrimination is conducted by the United States Court of Appeals for the Federal

Circuit."); DeSantis v. Napolitano, 716 F. Supp. 2d 1100, 1113 (D.N.M. 2010) ("Appeals of

MSPB Final Orders that do not include claims of unlawful discrimination can be filed only in the

Federal Circuit."); Ghaly v. USDA, 228 F. Supp. 2d 283, 288-89 (S.D.N.Y. 2002) ("Challenges

to a final MSPB decision on a claim of violations of the Whistleblower Protection Act of 1989

must be raised before the Court of Appeals for the Federal Circuit, not here."); Ugarte v.

Johnson, 40 F. Supp. 2d 178, 181 (S.D.N.Y. 1999) ("[T]he act allows judicial review of

decisions of the [MSPB] solely by the Court of Appeals for the Federal Circuit. . . . A narrow

exception confers jurisdiction in a federal district court of certain claims of discrimination. . . .

Plaintiff here, however, has raised no such discrimination claims that would give this court

jurisdiction to review her case.") (internal citations omitted).

       Hence, the DOE is correct: this Court lacks jurisdiction to decide Gammill's claim under

the Whistleblower Protection Act, and the complaint must be dismissed. Gammill brings only a

WPA claim, so this is not a "mixed" case that can be brought in federal district court. See

Compl. at 6 ("[T]he Department of Education illegally terminated [m]y employment in violation

of Whistleblower Retaliation Law.") (citing 5 U.S.C. § 2303(b)(8)). Arbitrary or not, the Court

is bound by statutory limits on its jurisdiction.       This Court does not have subject-matter

jurisdiction over this case, which should have been filed in the Court of Appeals for the Federal

Circuit. 2 In light of this decision, the Court need not address the parties' other pending motions,


       2
          Gammill first sought judicial review on February 18, 2011, which was before the
"effective date" of the Whistleblower Protection Enhancement Act of 2012. See Pub. L. No.
112-199, § 200 (2012) (defining the "effective date" of the law as "30 days after the date of
enactment of this Act," which was November 27, 2012). For that reason, the Court of Appeals


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which will be denied as moot.

                                         CONCLUSION

       For the foregoing reasons, the Department of Education's motion to dismiss for lack of

subject-matter jurisdiction will be granted. The parties' other pending motions will be denied as

moot. A separate order accompanies this memorandum opinion.



                                                                  /s/
                                                           JOHN D. BATES
                                                       United States District Judge

Dated: November 18, 2013




for the Federal Circuit would seem to be the only court of appeals that can adjudicate his case.
But the court need not, and does not, decide that question, because it is clear that this Court does
not have subject-matter jurisdiction.


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