                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                            )
DARIN JONES,                                )
                                            )
              Plaintiff,                    )
                                            )
       v.                                   )        Civil Action No. 1:13-8 (RMC)
                                            )
U.S. DEPARTMENT OF JUSTICE, et              )
al.,                                        )
                                            )
                                            )
              Defendants.                   )
                                            )

                                          OPINION

              Plaintiff Darin Jones, who presently proceeds pro se, brings this action against

Defendants U.S. Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI),

seeking damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq., for retaliation and gender and age discrimination. Before the Court is Defendants’ Motion

to Dismiss or in the Alternative for Summary Judgment, Mr. Jones’ Motion to Amend Complaint

to Add Race Discrimination, Mr. Jones’ Surreply, which the Court construes as a Motion for

Default Judgment, and Defendants’ Motion to Strike Mr. Jones’ Surreply. For the reasons

below, the motion to dismiss or for summary judgment will be granted and the motion to strike

will be denied. Mr. Jones’ motions will be denied.

                                          I. FACTS

              Starting in August 2011, Mr. Jones was employed by FBI as a Supervisory

Contract Specialist and was assigned to work at DOJ. Compl. [Dkt. 1] ¶ 11; Answer [Dkt. 3]

¶ 11. Mr. Jones believed that he was promised a financial incentive—a pay-match based on a

private sector job offer—to come work for FBI. See Mot. to Dismiss or For Summ. J. [Dkt. 21]

                                                1
(Defs. Mot.), Report of Counseling [Dkt. 21-1] at 3. After he had already begun working for

FBI, however, Mr. Jones was informed that he was not entitled to matching pay. Id. In July

2012, Mr. Jones complained of race, sex, and age discrimination based on the denial of matching

pay and retaliation for pursuing the matching pay issue. Id. at 2-3. Mr. Jones filed a formal

equal employment opportunity (EEO) complaint on August 15, 2012, alleging race, sex, and age

discrimination and reprisal due to FBI’s failure to match pay and FBI’s denial of his application

for student-loan repayment assistance. See Defs. Mot., Formal EEO Complaint [Dkt. 21-2] at 1-

2. By letter dated August 22, 2012, one week before the end of Mr. Jones’ probationary period,

DOJ notified Mr. Jones that his employment would be terminated effective August 24, 2012 for

failure to meet FBI suitability standards. Id., Termination Letter [Dkt. 21-3]. Apparently, the

letter dated August 22, 2015 was given to Mr. Jones on August 24, 2105, his termination date.

See Opp. to Def. Statement of Facts [Dkt. 27-1] at 2. 1

               Mr. Jones appealed his termination to the Merit Systems Protection Board

(MSPB) on September 20, 2012, alleging that he was terminated “because of either: (1) the filing

of an EEO Complaint in August 2012; or (2) disclosures that were protected under whistleblower

protection.” Defs. Mot., MSPB Form 185 [Dkt. 21-4] at 3 (MSPB Appeal). Before MSPB, Mr.

Jones argued that (1) he was entitled to appeal his termination to MSPB because his prior

military service qualified him as preference-eligible and (2) his prior federal service with another

agency meant that he was not a probationary employee and, therefore, had appeal rights as a

regular employee. See Compl., Ex. 1 (MSPB Initial Decision) at 2.




1
  Mr. Jones states that he “had no knowledge whatsoever of the existence of this [termination]
letter until it was given to him on August 24, 2012.” Opp. to Def. Statement of Facts at 2. The
date on which Mr. Jones received the termination letter is not material to this Opinion.

                                                 2
                MSPB dismissed Mr. Jones’ appeal for lack of jurisdiction on December 6, 2012.

Id. at 1, 2 (“Employees of the FBI who are not preference-eligible do not have the right to appeal

adverse actions to the Board.”). MSPB concluded that the dates of Mr. Jones’ service in the

Navy did not qualify him as preference-eligible to appeal his discharge to MSPB. Id. at 4.

MSPB’s Initial Decision specified that it was an “initial decision” that would “become final on

January 10, 2013, unless a petition for review is filed by that date.” Id. at 4 (emphasis in

original). Further, MSPB’s Initial Decision clearly directed that Mr. Jones could ask for Board

review of the Initial Decision by filing a petition for review or could seek judicial review of the

Board’s Final Decision by filing a petition with the United States Court of Appeals for the

Federal Circuit. Id. at 5, 8.

                In response to Mr. Jones’ August 2012 Formal EEO Complaint, FBI’s Office of

Equal Employment Opportunity Affairs (FBI OEEOA) notified Mr. Jones by letter dated

December 7, 2012 that it would investigate his race, sex, and age claims regarding the denial of

matching pay and his race, sex, age, and retaliation claims regarding the rejection of his student

loan repayment application. See Defs. Mot., OEEOA Letter [Dkt. 21-5] at 1-2. FBI OEEOA

rejected Mr. Jones’ retaliation claim based on the failure to match private-sector pay because he

had alleged he was retaliated against due to comments made in a January 2012 meeting with

supervisors and others, which does not constitute EEO-protected activity. Id. By letter to FBI

OEEOA dated December 21, 2012, Mr. Jones’ counsel tried to add a claim for discriminatory

discharge to his Formal EEO Complaint. See, id., Jones Ltr. [Dkt. 21-6] at 1.




                                                 3
               Mr. Jones filed this lawsuit on January 4, 2013, alleging retaliation and

discrimination on the basis of gender and age in violation of Title VII. Compl. ¶¶ 19-31. 2

Defendants filed an Answer to the Complaint on April 18, 2013 and asserted the affirmative

defenses that Mr. Jones failed to state a claim upon which relief may be granted and that he had

failed to exhaust his administrative remedies. See Answer at 1. The Court held an initial

scheduling conference on May 5, 2013 and set a fact-discovery deadline of December 5, 2013,

which was extended until December 31, 2014. 3 See Scheduling Order [Dkt. 6]; Minute Order

10/24/13; Minute Order 6/10/14; Minute Order 9/29/14.

               On October 28, 2013, MSPB affirmed its Initial Decision dismissing Mr. Jones’

appeal for lack of jurisdiction. See Opp’n at 3 n. 3. Mr. Jones appealed MSPB’s decision to the

U.S. Court of Appeals for the Federal Circuit, which affirmed MSPB on March 18, 2015. See

Jones v. MSPB, No. 2014-3050 (Fed. Cir. March 18, 2015), reh’g denied (April 8, 2015).

               By letter dated April 4, 2013, FBI OEEOA advised Mr. Jones that it could not

amend his Formal EEO Complaint to add a claim based on his discharge because he had already

filed suit here alleging the same claim. See Defs. Mot., OEEOA Ltr. [Dkt. 21-7] at 1.

               On April 15, 2014, Mr. Jones moved to amend his Complaint to add a claim for

“termination based on age.” See Mot. to Amend [Dkt. 13] at 2. Defendants did not oppose and

the Court granted the motion. See Minute Order 5/9/14.


2
  At that time and until March 31, 2014, Mr. Jones was represented by counsel. He is currently
proceeding pro se. See Mot. to Withdraw as Att’y [Dkt. 12]. Mr. Jones is licensed to practice
law in both Florida and the District of Columbia, but states that he has not practiced law since
being admitted to either Bar. See Mot. to Amend [Dkt. 13] at 1 n.1.
3
  On October 8, 2013, the case was temporarily stayed due to the unanticipated length of the
lapse of government appropriations. See Minute Order 10/2/13; Minute Order 10/8/13.
Discovery has been stayed since October 22, 2014 pending briefing and resolution of
Defendants’ motion to dismiss or for summary judgment. See Order [Dkt. 25].

                                                 4
               Defendants filed their motion to dismiss or for summary judgment on October 10,

2014. See Defs. Mot. In addition, currently pending before the Court are Mr. Jones’ motion to

amend his complaint to add a claim for race discrimination, Mr. Jones’ two motions to compel

production of documents, Mr. Jones’ Surreply, which the Court construes as a Motion for

Default Judgment, and Defendants’ Motion to Strike Mr. Jones’ Surreply. See Mot. to Amend

Complaint [Dkt. 16]; Mots. to Compel [Dkts. 17 and 19]; Response to Defendants’ Reply [Dkt.

29] (Default Mot.); Mot. to Strike [Dkt. 30].

                                    II. LEGAL STANDARD

               Defendants styled their motion as a Motion to Dismiss or for Summary Judgment.

Because Defendants had already filed an Answer to Mr. Jones’ Complaint, see Ans. [Dkt. 3], a

motion to dismiss under Fed. R. Civ. P. 12(b)(6) is untimely. See Fed. R. Civ. P. 12(b) (“A

motion asserting any of these defenses must be made before pleading if a responsive pleading is

allowed.”). “[C]ourts routinely treat motions to dismiss that are filed after a responsive pleading

has been made as a motion for judgment on the pleadings.” Langley v. Napolitano, 677 F. Supp.

2d 261, 263 (D.D.C. 2010).

               However, the Court finds that Defendants’ motion should be construed as a

motion for summary judgment. FBI attached various exhibits, including affidavits, to its motion,

some of which are not referenced in the Complaint and are therefore outside the scope of the

pleadings. The Court has considered these materials in ruling on Defendants’ motion.

               Under Federal Rule of Civil Procedure 56, summary judgment shall be granted “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986). On summary judgment, the burden on a moving party



                                                 5
who does not bear the ultimate burden of proof may be satisfied by making a showing that there

is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). In ruling on a motion for summary judgment, a district court must draw

all justifiable inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A

nonmoving party, however, must establish more than “the mere existence of a scintilla of

evidence” in support of its position. Id. at 252. In addition, the nonmoving party may not rely

solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.

1999).

                                        III. ANALYSIS

               The first problem in this case is that Mr. Jones admittedly filed his complaint

before he had a final MSPB decision. The second problem is that Mr. Jones never raised his

claims of discrimination due to race, age, or gender to MSPB before bringing them to this Court.

Therefore, Mr. Jones has not exhausted his administrative remedies with respect to any of his

claims and the Court will dismiss his Complaint without prejudice. Because Defendants timely

answered the Complaint, the Court will deny Mr. Jones’ motion for default judgment.

               A. Mr. Jones Failed to Exhaust His Administrative Remedies

               Before bringing suit under Title VII in federal court, a federal employee must

exhaust his administrative remedies. See Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999).

“Exhaustion is required in order to give federal agencies an opportunity to handle matters

internally whenever possible and to ensure that the federal courts are burdened only when

reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985).




                                                6
                Failure to exhaust is not a jurisdictional bar to bringing suit under Title VII. 4 See

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Brown v. Marsh, 777 F.2d 8, 14

(D.C. Cir. 1985) (“Exhaustion under Title VII, like other procedural devices, should never be

allowed to become so formidable a demand that it obscures the clear congressional purpose of

‘rooting out . . . every vestige of employment discrimination within the federal government.’”)

(internal citation omitted). Rather, “untimely exhaustion of administrative remedies is an

affirmative defense,” which “the defendant bears the burden of pleading and proving.” Bowden,

106 F.3d at 437; Proctor v. District of Columbia, 2014 WL 6676232, at *11 (D.D.C. Nov. 25,

2014). If a defendant meets that burden, “the plaintiff then bears the burden of pleading and

proving facts supporting equitable avoidance of the defense.” Bowden, 106 F.3d at 437; Proctor,

2014 WL 6676232, at *11. Courts may excuse failure to exhaust administrative remedies under

the equitable doctrines of waiver, estoppel or tolling. See Bowden, 106 F.3d at 437.

                A claimant must navigate complex requirements for processing employment

discrimination claims. Generally, an employee must seek relief from the Equal Employment

Opportunity department of his employing agency, as detailed in Section 717(c) of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e–16(c). In certain cases, a federal employee affected by

an adverse employment action, such as discharge, may instead bring any related Title VII claims




4
  Defendants cite Hooker-Robinson v. Rice, 2006 WL 2130652 (D.D.C. 2006) and Doe v. U.S.
Dep’t of Justice, 660 F. Supp. 2d 31 (D.D.C. 2009) for support of their argument. Both cases
treated failure to exhaust as a jurisdictional defect. The recent trend in this district is to treat
failure to exhaust under Title VII as a failure to state a claim rather than as a jurisdictional defect.
See, e.g., Williams-Jones v. Lahood, 656 F. Supp. 2d 63, 66 (D.D.C. 2009); Hicklin v.
McDonald, 2015 WL 3544449, at *2 (D.D.C. June 8, 2015); Proctor, 2014 WL 6676232, at *11.




                                                   7
in connection with an appeal of the adverse employment action to MSPB. See 5 U.S.C. § 7512; 5

5 U.S.C. § 7513(d); Chappell v. Chao, 388 F.3d 1373, 1375 (11th Cir. 2004) (“Although the

MSPB does not have jurisdiction over discrimination claims that are not related to adverse

actions, it can entertain appeals in ‘mixed cases.’”). MSPB is an independent, quasi-judicial

federal administrative agency that was established by the Civil Service Reform Act of 1978

(CSRA), 5 U.S.C. § 1101 et seq., to review civil service decisions. See 5 U.S.C. § 7701.

Supplemented by EEOC and MSPB regulations, the CSRA sets forth the statutory framework for

“addressing the procedural path of a mixed case—an adverse personnel action subject to appeal

to the MSPB coupled with a claim that the action was motivated by discrimination.” Butler, 164

F.3d at 637-38 (citing 5 U.S.C. § 7702). A plaintiff may file a mixed-case complaint with his

agency’s EEO office or with MSPB, but not both. See 29 C.F.R. § 1614.302(b). “Whichever is

filed first shall be considered an election to proceed in that forum,” id., and a plaintiff must then

exhaust his remedies in that forum. See Tolbert v. United States, 916 F.2d 245, 248 (5th Cir.

1990) (holding that a federal employee must exhaust chosen avenue of administrative relief prior

to bringing a Title VII action); Williams v. Munoz, 106 F. Supp. 2d 40, 43 (D.D.C. 2000) (“A

plaintiff is required to exhaust [his] claims in the forum []he has chosen before filing a civil

action.”).




5
  MSPB only has jurisdiction over certain adverse employment actions affecting federal
employees, such as discharges, suspensions, and demotions. See 5 U.S.C. § 7512. Probationary
employees are not afforded the full rights that tenured employees have to appeal adverse
employment actions to MSPB. See, e.g., id. § 4303(e); U.S. Dept. of Justice, I.N.S. v. Fed. Labor
Relations Auth., 709 F.2d 724, 728 (D.C. Cir. 1983) (“The substantial protections that Congress
made available only to tenured employees indicate that Congress recognized and approved of the
inextricable link between the effective operation of the probationary period and the agency’s
right to summary termination.”).

                                                  8
               Where, as here, a plaintiff first elects to file an appeal to MSPB, an

Administrative Judge is assigned to the case and “takes evidence and eventually makes findings

of fact and conclusions of law.” Butler, 164 F.3d at 638. Within 120 days of the filing of the

mixed-case appeal, the Board is to “decide both the issue of discrimination and the appealable

action.” 5 U.S.C. § 7702(a)(1). An initial decision of an Administrative Judge “becomes a final

decision if neither party, nor the MSPB on its own motion, seeks further review within thirty-five

days.” Butler, 164 F.3d at 638; 5 C.F.R. § 1201.113. “However, both the complainant and the

agency can petition the full Board to review an initial decision. Should the Board deny the

petition for review, the initial decision becomes final, see 5 C.F.R. § 1201.113(b); if the Board

grants the petition, its decision is final when issued. See 5 C.F.R. § 1201.113(c).” Butler, 164

F.3d at 639. A plaintiff may file a civil suit in district court within thirty days after a final MSPB

decision. See 5 U.S.C. § 7703(b). Alternately, “if the MSPB fails to render a judicially

reviewable decision within 120 days from the filing of a mixed case appeal, the aggrieved party

can pursue [his] claim in federal district court.” Butler, 164 F.3d at 639; 5 U.S.C.

§ 7702(e)(1)(B).

                   1. Retaliation Claim

               Mr. Jones has not exhausted his administrative remedies with regard to his

retaliation claim because there has been no final MSPB decision on this claim. Mr. Jones sues

here on the basis of MSPB’s Initial Decision. The D.C. Circuit has explained the difference

between an MSPB initial decision and an MSPB final decision:

               While an initial decision can convert to a final decision with either
               the passage of thirty-five days or the denial of all outstanding
               petitions for review, it can also be overturned or modified by the
               Board, in which case it will never be reviewable by the courts in its
               initial form. Furthermore, throughout the thirty-five-day period
               following the issuance of an initial decision, the parties can each

                                                  9
               petition for another round of review from the Board. Once a decision
               becomes final, however, a losing party’s only recourse lies in the
               courts.

Butler, 164 F.3d at 640 (emphasis added). Plainly, only a final MSPB decision is judicially

reviewable. See also 5 C.F.R. § 1201.113 (“Administrative remedies are exhausted when a

decision becomes final in accordance with this section.”). MSPB’s Initial Decision, rendered on

December 6, 2012, would only have become a final decision subject to judicial review on

January 10, 2013 if neither party, nor MSPB, sought further review by that date—6 days after

Mr. Jones filed his complaint here on January 4, 2013. See Butler, 164 F.3d at 638; 5 C.F.R.

§ 1201.113. Because MSPB’s Initial Decision had not converted to a final decision at the time

he filed suit here, Mr. Jones did not exhaust his administrative remedies with respect to his

retaliation claim.

               Although 5 U.S.C. § 7702(e)(1)(B) may provide an alternative avenue to district

court, Mr. Jones cannot avail himself of it. Under 5 U.S.C. § 7702(e)(1)(B), a claimant can seek

judicial review if, “after filing a mixed case appeal with the MSPB, 120 days elapse without final

MSPB action.” Butler, 164 F.3d at 643 (emphasis added). Mr. Jones filed his mixed-case appeal

with MSPB on September 20, 2012. See MSPB Appeal at 2. Therefore, absent a final MSPB

decision, Mr. Jones would have been entitled to file suit here on January 18, 2013, but he filed

his Complaint 14 days earlier. See id. Mr. Jones has not abided by the fundamental directive

governing exhaustion of administrative remedies: “The rule is simple: file in the time allotted,

and neither before nor after.” Tolbert, 916 F.2d at 249.

               Mr. Jones concedes that he has filed here without a final MSPB decision. See

Opp’n [Dkt. 27] at 4 n.4 (“Plaintiff’s Complaint was filed six (6) days early” and “Plaintiff

admits that his Complaint [Dkt. 1] was filed by his former attorney on January 4, 2013,



                                                10
seventeen days before January 21, 2013.”). 6 Because Mr. Jones failed to exhaust administrative

remedies, his retaliation claim will be dismissed.

                   2. Discrimination Claims

               Defendants argue that Mr. Jones also failed to exhaust administrative remedies

with respect to his claims of discriminatory discharge on the bases of gender, age, or race

because he never raised them in front of MSPB. For that reason, Defendants argue that Mr.

Jones’ Motion to Amend Complaint to add a claim for discharge based on race should be denied

as futile and his claims for gender and age discrimination should be dismissed. See Defs. Mot. at

16. The Court agrees.

               Mr. Jones appealed his discharge from FBI to MSPB on September 20, 2012,

arguing that he was fired “because of either: (1) the filing of an EEO Complaint in August 2012

[i.e., retaliation]; 7 or (2) disclosures that were protected under whistleblower protection.” MSPB

Appeal at 3. Mr. Jones chose MSPB over the EEO process for all discrimination claims behind

his discharge. See 29 C.F.R. § 1614.302(b) (“Whichever is filed first shall be considered an

election to proceed in that forum”); Tolbert, 916 F.2d at 248 (holding that a federal employee

must exhaust chosen avenue of administrative relief prior to bringing a Title VII action);

Williams, 106 F. Supp. 2d at 43. Mr. Jones then attempted to amend his Formal EEO Complaint

to add a claim for discriminatory discharge by letter dated December 21, 2012, three months

after he filed his MSPB appeal. See Jones Ltr. at 1. 8 However, because he elected to appeal his


6
 The Court calculates that January 18, 2013 and not January 21, 2013 is 120 days after Mr.
Jones filed his MSPB appeal on September 20, 2012.
7
 The “filing of an EEO Complaint” is protected EEO activity for which retaliation is unlawful.
See 42 U.S.C. § 2000e-3(a).
8
  Mr. Jones’ Formal EEO complaint, filed on August 15, 2012—prior to his discharge—alleged
race, sex, age and reprisal discrimination arising from the denial of matching pay and rejection of
                                                11
termination to MSPB first, Mr. Jones elected to pursue all of his claims for wrongful termination

in that forum.

                 Mr. Jones’ MSPB Appeal included only his allegation of retaliatory discharge for

protected EEO activity. See generally MSPB Appeal. His current argument that he “would have

added his wrongful termination claims of discrimination based on gender, race, and age” to his

MSPB appeal is unavailing. See Opp’n at 5 (emphasis added). The rules for exhaustion are not

expressed in the conditional. Mr. Jones cannot avoid the fact that he failed to raise any claims of

gender, race, and age discrimination in the MSPB Appeal. Accordingly, the Court will dismiss

his claims for gender and age discrimination and will deny his motion to amend his Complaint to

add a claim of race discrimination as futile. 9

                 B. Mr. Jones’ Failure to Exhaust Administrative Remedies is Not Excused

                 Despite admitting that he filed suit here too early, Mr. Jones argues that

Defendants have failed to demonstrate that his premature filing has “prejudiced their defense in

any manner or caused an undue burden.” Opp’n at 4. He maintains that “the conduct of the

parties for twenty-two months [between the filing of the Complaint on January 4, 2013 and the

filing of Defendants’ motion for summary judgment on October 10, 2014] demonstrates a

properly filed Complaint where the administrative remedies were exhausted.” Id. at 5. Prejudice

is not an element of proving failure to exhaust administrative remedies. The Court construes Mr.




his student loan repayment application. See Formal EEO Complaint at 1-2. None of these
claims is a subject of the instant suit.
9
 “[F]utility of amendment” is a reason to deny leave to file an amended complaint. Forman v.
Davis, 371 U.S. 178, 182 (1962). An amendment is futile if it “could not withstand a motion to
dismiss.” Pietsch v. McKissack & McKissack, 677 F. Supp. 2d 325, 328 (D.D.C. 2010). Since
Mr. Jones did not exhaust his race discrimination claim before MSPB, his proposed amendment
would not survive a motion to dismiss.

                                                  12
Jones’ argument as a request that the Court use its equitable discretion to excuse the requirement

of administrative exhaustion.

               The Court recognizes that the parties have expended resources litigating this suit,

as evidenced by the fact that they have engaged in discovery for over 15 months—from June 5,

2013 until October 22, 2014, excluding a temporary stay during the lapse of government

appropriations in October 2013. See Minute Order 10/2/13; Minute Order 10/8/13; Order [Dkt.

25] at 2. Nonetheless, Mr. Jones presents no reason why he filed suit here before he had

obtained a final agency decision from MSPB on his retaliation claim and why he never presented

MSPB with his other discrimination claims. Mr. Jones’ current pro se status provides no basis to

excuse his failure to exhaust administrative remedies because he was represented by counsel

when he filed suit. In addition, the Court notes that Defendants raised failure to exhaust

administrative remedies as an affirmative defense in their Answer filed on April 18, 2013, and

thus did not waive their right to assert the argument now. See Answer [Dkt. 3] at 1. Mr. Jones

has not met his “burden of pleading and proving facts supporting equitable avoidance of the

defense” of failure to exhaust administrative remedies. Bowden, 106 F.3d at 437; Proctor, 2014

WL 6676232, at *11.

               C. Mr. Jones’ Motion for Default Judgment Will be Denied

               Mr. Jones filed a surreply, in which he argues that he is entitled to a default

judgment because Defendants failed to timely respond to the January 4, 2013 Summons. See

Default Mot. at 1. The Court construes Mr. Jones’ surreply as a motion for default judgment.

Defendants move to strike the surreply. See Mot. to Strike at 3.

               Mr. Jones argues that he is entitled to default judgment because Defendants filed

an Answer on April 18, 2013, more than 60 days after the Summons was issued on January 4,



                                                 13
2013. See Default Mot. at 1. He is incorrect. Service was perfected on the United States

Attorney’s Office on February 21, 2013, see Mot. to Strike, Attachment 1, thus, Defendants’

Answer was timely. See Fed. R. Civ. P. 12(a)(2) (the federal government must file a responsive

pleading within 60 days after service of process on the United States attorney). Mr. Jones’

motion for default judgment and Defendants’ motion to strike will be denied.

                                      IV. CONCLUSION

               For the reasons above, the Court will grant Defendants’ Motion to Dismiss or for

Summary Judgment, Dkt. 21, and will deny Mr. Jones’ Motion to Amend Complaint to Add

Race Discrimination, Dkt. 16. The Court will deny Mr. Jones’ motion for default judgment, Dkt.

29, and deny Defendants’ Motion to Strike Plaintiff’s Surreply, Dkt. 30. The Court will dismiss

this case without prejudice because Mr. Jones failed to exhaust his administrative remedies with

respect to any of his claims. A memorializing Order accompanies this Opinion.



Date: July 1, 2015
                                                                   /s/
                                                    ROSEMARY M. COLLYER
                                                    United States District Judge




                                               14
