                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

BATOOL KHAKSARI                            )
                                           )
              Plaintiff,                   )
                                           )
              v.                           )
                                           )       Civil Case No. 06cv1990 (RJL)
                                 l
KENNETH Y. TOMLINSON                       )
                                           )
              Defendant.                   )
--------------------------)


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                               MEMORANDUM OPINION
                                 (August  2009)s: ,
       Plaintiff Batool Khaksari' s action against the Broadcasting Board of Governors

("BBG" or "Agency") alleges, inter alia, that BBG exceeded its statutory authority when

it rejected her applications for three job vacancies and hired non-citizens instead. Before

the Court are the parties' cross-motions addressing plaintiffs challenge to BBG's hiring

practices as unlawful under the Administrative Procedure Act ("AP A"). After

consideration of the parties' pleadings and motions, the relevant law, and the entire record

herein, the Court DENIES plaintiffs Motion for Partial Summary Judgment and

GRANTS the defendant's Cross-Motion to Dismiss Count Five of plaintiffs Complaint.

                                     BACKGROUND

       Batool Khaksari is a female, Persian-born Muslim who speaks Farsi fluently and is



      'Kenneth Y. Tomlinson is named here in his official capacity as the Chairman of the
Broadcasting Board of Governors.
a United States citizen. First Amended Complaint ("FAC")             ~~   3, 5. BBG is an

independent Government agency responsible for Government-sponsored broadcasting to

foreign countries. Id.    ~   4.

           Khaksari was employed as a contract translator and news writer at BBG from

November 2003 to April 2005. Id.       ~~    5,6. Beginning in October 2004, and through late

2005, Khaksari applied for several positions at BBG but was not selected for any of them.

Id.   ~~   7-10. Khaksari contends that in each case she was deemed qualified for the

position, and in at least one case, that she was the only qualified U.S. citizen. Id.       ~~   7-10.

Also, in each case BBG selected non-citizen applicants over Khaksari. Id. BBG

subsequently terminated Khaksari' s employment. Id.        ~   11.

           After her termination, Khaksari filed formal complaints with BBG and the Equal

Employment Opportunity Commission ("EEOC"). Id.             ~   13. The EEOC issued a right to

sue letter on September 26, 2006, id.    ~   15, and Khaksari commenced this lawsuit on

November 21,2006.

           On January 21, 2009, Khaksari filed a Motion for Partial Summary Judgment [Dkt.

# 28] ("PI. Mot.") on her APA claim, which appears in Count V of the FAC. 2 Defendant

opposed the motion by filing its own Cross-Motion to Dismiss [Dkt. # 31] ("Def. Mot.")



          Plaintiff's Motion for Partial Summary Judgment does not explicitly limit its scope to
           2

Count Five by name. It does, however, limit its scope to the "portion of Plaintiff's challenge to
the agency actions" regarding BBG's authority to "hire aliens as not in accordance with law." PI.
Mot. at 1. Because plaintiff's administrative challenge appears only in Count Five of the FAC,
the Court treats plaintiff's motion as a motion for summary judgment on that count alone.

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for lack of subject matter jurisdiction. Plaintiff then filed her Reply [Dkt. # 34], which

opposes defendant's Cross Motion to Dismiss and supports plaintiffs Motion for Partial

Summary Judgment. For the following reasons, the Court agrees with BBG and finds

jurisdiction lacking over Khaksari's APA claims.

                                 STANDARD OF REVIEW

          Under Federal Rule of Civil Procedure 12(b)(1), which bars a federal court from

hearing claims beyond its subject matter jurisdiction, "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 FJd 545,549 (D.C. Cir. 1999) (quoting Caribbean

Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)).

Where a court's subject matter jurisdiction is called into question, the court may consider

matters outside the pleadings to ensure it has power over the case. Teva Pharm., USA,

Inc. v.   u.s. Food & Drug Admin., 182 F.3d 1003, 1008 (D.C. Cir. 1999).
                                       DISCUSSION

          Khaksari's motion revolves around BBG's interpretation of the phrase "suitably

qualified" as it is used in 22 U.S.C. § I 474(1)-the provision ofBBG's organic statute



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which authorizes BBG to hire non-citizens for certain programs "when suitably qualified

United States citizens are not available.") PI. Mot. at 1. Specifically, Khaksari objects to

the interpretation adopted in Section 822 of BBG' s Manual of Operations and

Administration, which permits BBG to hire non-citizens if "no equally or better qualified

U.S. citizen is available.,,4 Id. at 4. In effect, Section 822 interprets the term "suitably

qualified" to mean "equally or better qualified." Khaksari argues that such an


       3   22 U.S.C. § 1474(1) provides in pertinent part:

                [T]he Secretary, or any Government agency authorized to administer such
                provisions may (1) employ, without regard to the civil service and
                classification laws, aliens within the United States and abroad for service
                in the United States relating to the translator or narration of colloquial
                speech in foreign languages or the preparation and production of foreign
                language programs when suitably qualified United States citizens are not
                available when job vacancies occur . ...

       (emphasis added).


       4BBG rules implementing § 147 4( 1) provide that

                [a] non-U.S. citizen may be appointed only after reasonable efforts to
                recruit equally or better qualified us. citizens have been made and have
                been unsuccessful. A non-U.S. citizen may be employed or promoted only
                ifno equally or better qualified us. citizen is available to perform the
                duties of the position . ... As a matter of Broadcasting policy, non-U.S.
                citizens will not be employed in or promoted to supervisory positions ....
                (1) Exceptions will be allowed only on an individual basis when the
                appropriate Office, or Service Head determines, with the concurrence of
                the Director of Personnel that the unavailability of an equally or better
                qualified us. citizen to perform such supervisory ... functions is not only
                significantly handicapping the ability of the Office, or Service to operate,
                but also is having an adverse impact on Broadcasting's mission.

       BBG Manual of Operations & Administration, Part V-A, §§ 822.I(a), (c) (AR at 13)
       (emphasis added).

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interpretation is unlawful under the Administrative Procedure Act ("APA") § 706(2) and

not entitled to any judicial deference. Id. at 11, 14. Indeed, Khaksari claims that she

would have been hired were it not for Section 822 because "suitably qualified" should be

interpreted to mean "minimally qualified," and Khaksari claims she was deemed at least

minimally qualified in each instance she applied for a vacant position. Id. at 9-11.

       SSG argues in response that the Civil Service Reform Act ("CSRA") divests this

Court of jurisdiction over Khaksari's APA claims. Def. Mot. at 2-3. According to SSG,

Khaksari's AP A claims amount to no more than allegations of a "prohibited personnel

practice" as defined by the CSRA under 5 U.S.C. § 2302(b)(6) or 5 U.S.C. § 2301(b)(2)

& (8)(A). Accordingly, SSG argues the CSRA's exclusive remedial scheme divests this

Court of jurisdiction over both Khaksari' s claim for specific relief for damages based on

her non-hiring and her claim for general relief enjoining the Agency from continuing to

interpret § 1474 as it now does in Section 822. Id at 1-3. I agree.

       In Grosdidier v. Glassman, No.1 :07-01551 (D.D.C. filed Aug. 31, 2007), three

SBG employees sued the Agency because it had hired non-citizens instead of promoting

the three citizen-plaintiffs. These plaintiffs, like Khaksari, claimed they were deemed

qualified for the respective positions for which they were passed over. And, like

Khaksari, they challenged BBG's authority under the APA to interpret § 1474(1)'s

"suitably qualified" as "equally or better qualified." Finally, the Grosdidier plaintiffs

sought the exact same relief as Khaksari now seeks on her AP A claims-specific relief to



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remedy their individual non-hiring and general relief declaring BBG's interpretation of §

1474(1) unlawful. See id. (Mem. Op. And Order) (D.D.C. Apr. 22, 2008).

       The Grosdidier plaintiffs' action was dismissed by another judge on this Court

because the CSRA was found to strip the Court of jurisdiction over plaintiffs' suit. See

id. This past April, BBG's jurisdictional argument was affirmed by our Court of Appeals,

in Grosdidier et ai. v. Chairman, Broad. Bd. O/Governors, 560 F.3d 495 (D.C. Cir.

2009). Importantly, the jurisdictional arguments affirmed by our Circuit in Grosdidier are

virtually identical to those raised here. In dismissing the plaintiffs' AP A claims for lack

of subject matter jurisdiction, the Court of Appeals held that the CSRA's remedial

scheme "is comprehensive and exclusive" and that "[Section 1474] does nothing to affect

the exclusivity of the CSRA for suits targeting personnel decisions." Id at 497-98.

       Accordingly, judicial review ofBBG's hiring decisions is precluded by the

remedial scheme provided by the CSRA, and Khaksari' s Partial Motion for Summary

Judgment on her APA claim is hereby DENIED. BBG's Cross-Motion to Dismiss Count

Five ofKhaksari's complaint is hereby GRANTED. An appropriate order will issue with

this Memorandum Opinion.




                                                        ~United States District Judge




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