                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


JUDGE ALEXANDER FERNANDEZ,                      )
                                                )
             Plaintiff,                         )
                                                )
      v.                                        )      Civil Case No. 10-185 (RJL)
                                                )
SHAUN DONOVAN, Secretary of the U.S.            )
Department of Housing and Urban                 )
Development,                                    )
                                                )
DAVID T. ANDERSON, Director, Office of          )
Hearings and Appeals at the U.S.                )
Department of Housing and Urban                 )
Development (in his professional capacity),     )
                                                )
and                                             )
                                                )
MARCELA E. BELT, Chief Executive                )
Officer at the U.S. Department of               )
Housing and Urban Development (in her           )
professional capacity),                         )
                                                )
             Defendants.                        )

                                            f-t-
                             MEMORANDUM OPINION
                               (January{2.,2011) [#10]

      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").

                                            1
Plaintiff alleges discrimination based on disability and national origin, retaliation,

harassment and violations of the Federal Administrative Procedures Act ("APA").

Currently before the Court is defendant Donovan's motion to dismiss counts V and VI,

the AP A claims, and to dismiss all counts against individual federal employees,

defendant Anderson and defendant Belt. Upon consideration of the parties' pleadings,

relevant law, and the entire record herein, defendant Donovan's Motion to Dismiss is

GRANTED.

                                      BACKGROUND

       In September 2008 plaintiff began work as an AL] in HUD's Office of Hearing

and Appeals ("OHA"). Compi.      ~   23. Shortly thereafter tensions arose between plaintiff

and defendant Anderson, plaintiffs supervisor and the director ofOHA. See Compi. On

December 16, 2008, plaintiff filed a formal complaint with the HUD Office of

Departmental Equal Employment Opportunity ("EEO"). Compi.            ~   14; PI.'s Mot. for

Leave to File Sur-Reply, Ex. Fernandez EEO Complaint with Attachments [#14-3]

("EEO Compi. "). In the EEO complaint, plaintiff made six separate allegations of

discrimination based on physical disability, reprisal and retaliation. EEO Compi.

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. ld. 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. ld.



                                               2
       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. CompI.       ~~   155-59.

In support of these claims, plaintiff alleges various instances in which defendant

Anderson improperly assigned cases to the HUD ALJ s, 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. CompI.      ~~   54-92.

Further, plaintiff alleges that despite raising these issues with HUD management, nothing

was done to address his concerns. CompI.    ~~    93-95.

       Defendant Donovan now argues that this Court does not have subject-matter

jurisdiction over the AP A 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. PI. Opp'n to Def. 's Mot. Dismiss ("PI.

Opp 'n") at 8-11. As such, plaintiff maintains that his administrative remedies have been

exhausted. Id. at 8. I disagree.



                                              3
                                        ANALYSIS

       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. Carr. Corp. ofAmerica, 540 F.

Supp. 2d 231, 234-35 (D.D.C. 2008). Indeed, our Circuit has explained that if a statute

contains "sweeping and direct statutory language indicating that there is no federal

jurisdiction prior to exhaustion," the exhaustion requirement is jurisdictional and a

12(b)( 1) motion is appropriate; however, if such statutory language does not exist, "the

exhaustion requirement is treated as an element of the underlying claim" and a 12(b)(6)

analysis is required. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C. Cir.

2004) (citations and internal quotations omitted). While courts have struggled with this

distinction, particularly in the area of employment discrimination, see Marcelus, 540 F.

Supp. 2d at 234-35, our Circuit Court has determined that "[u]nder the CSRA, exhaustion

of administrative remedies is a jurisdictional prerequisite to suit." Weaver v. United

States Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996). This Court, therefore, will

review defendant's motion under the 12(b)(l) framework. 1


1 Ultimately, whether defendant Donovan's motion is resolved under 12(b)(I) or 12(b)(6)
does not affect the outcome. 12(b)(l) and 12(b)(6) motions are reviewed using similar
standards. Indeed, while plaintiffs allegations "will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim," Dews-
Miller v. Clinton, 707 F. Supp. 2d 28, 40 (D.D.C. 2010) (citing Wilbur v. CIA, 273 F.
Supp. 2d 119, 122 (D.D.C. 2003), any level of scrutiny, in this case, will yield the same
result. Further, while the Court may consider matters outside the pleadings when
deciding a 12(b)(1) motion, see Herbert v. Nat'l Acad. ofSciences , 974 F.2d 192, 197
(D.C. Cir. 1992), regardless of whether one looks outside the pleadings, the result here
remains the same.
                                             4
       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 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».

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 (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:

       a complaint of employment discrimination filed with a federal agency based on
       race, color, religion, sex, national origin, age, disability, or genetic information
       related to or stemming from an action that can be appealed to the Merit Systems
       Protection Board (MSPB). The complaint may contain only an allegation of
       employment discrimination or it may contain additional allegations that the MSPB
       has jurisdiction to address.


                                              5
Once a mixed case complaint is filed, "the relevant agency EEO office ... can and must

address both the discrimination claim and the appealable personnel action." Butler, 164

F.3d at 638. If, however, after 120 days, the agency's EEO office has failed to issue a

final decision and if no appeal has been filed with the MSPB, the party may file a civil

action in district court. 5 U.S.C. § 7702(e); see Butler, 164 F.3d at 638.

       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 AP A 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;2 and (2) the regulations

clearly permit a party to bring a mixed case while only raising an allegation of

employment discrimination. PI. Sur-Reply at 2-9. Despite these arguments, this Court

need not determine whether plaintiff properly filed a mixed case complaint before the




2 This argument is to no avail. In fact, plaintiff points to a December 1, 2008 email in
which plaintiff writes to HUD's Chief of Staff specifically noting, inter alia, that he
believed defendant Anderson to be violating the APA. Plaintiffs claims, however, give
no further clarity or detail to the broad claims alleged in his formal EEO complaint, filed
two weeks later. EEO Compl. at 84.
                                              6
EEO.3 This Court finds that, under any scenario, plaintiff did not exhaust his

administrative remedies. How so?

       Stated simply, plaintiff did not raise his APA claims before the EEO. Indeed, all

ofplaintiffs 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
                                                               4
to plaintiff s judicial independence as would violate the APA. See id. Further,

plaintiffs allegations that defendant Anderson improperly (1) corresponded with parties

appearing before the ALJs, (2) thwarted communications between the ALJs and U.S.

Department of Justice, (3) interfered with the ALJ docket, and (4) interfered with the

scheduling of ALJ hearings were not raised at all before the EEO. Compare Compl.         ~~


70-92 with EEO Compl. at 2-3,52-75.

       While plaintiff did allege that defendant Anderson did not distribute the caseload

equitably among the ALJs and issued notices on plaintiffs docket, these allegations

3 Notably, contrary to defendant Donovan's contention, this Court is persuaded that,
under 29 C.F.R. § 1614.302(a), plaintiff need not have raised his APA claims in order to
fall within the § 7702 - mixed case - procedural framework. 29 C.F.R. § 1614.302(a)
clearly permits a mixed case complaint filed with a EEO to raise only allegations of
discrimination so long as those allegation are "related to or stemming from" an
employment action appealable to the MSPB. Nevertheless, this Court is not persuaded
by plaintiffs repeated statements that the defendant concedes that plaintiffs APA claims
are adverse employment actions appealable to the MSPB. Thus, because, as stated
above, this Court need not reach the question of whether plaintiffpropedy raised a mixed
case, it will not decide that question here.
4 Further, the attachments to plaintiffs EEO complaint do not address these deficiencies.
Plaintiff points to email exchanges from November 20, 2008 and from December 1-8,
2008. Nothing in these exchanges indicate that defendant Anderson's actions were
motivated by political considerations or directed at plaintiffs judicial independence. See
EEO Compl. at 52-56, 70-75.
                                             7
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 FJd 904,907 (D.C. Cir. 1995); see also Marshall v. Federal Express Corp.,

130 FJd 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 FJd 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




                                              8
docket were insufficient to sustain plaintiffs specific APA claims. Counts V and VI are,

therefore, dismissed. 5

       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." PI. 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 be the agency's secretary - defendant Donovan. See, e.g.,

42 U.S.C. 2000e-16(c). All counts against individual federal employees, defendant

Anderson and defendant Belt are, therefore, dismissed.




5 Defendant Donovan also argues that plaintiffs APA claims must be dismissed because
plaintiff lacks constitutional standing to bring those claims. Def.' s Mot. to Dismiss at 10-
 12. Specifically, defendant Donovan challenges whether plaintiff has suffered an "injury
in fact" because "the rules regarding random assignment of cases and judicial
independence are intended for the benefit of the parties whose cases are adjudicated by
the ALJs in OHA - not for the benefit of the ALJs themselves." Id. at 11-12 (citing
Goodman v. Svahn, 614 F. Supp. 726, 728 (D.D.C. 1985)). Plaintiff, however, points to
Second Circuit and other precedent holding that ALJ s have standing to safeguard their
judicial independence. PI. Opp'n at 14 (citing Nash v. Califano, 613 F.2d 10 (2d Cir.
 1980)). This Court, however, disagrees with plaintiffs assessment of his own case. This
case is not analogous to Nash, or to any other case cited by plaintiff. The Court agrees
with defendant Donovan that plaintiffs allegations do not implicate an issue broad
enough to affect plaintiffs actual decision making. See Nash, 613 F.2d at 16. The injury
here, therefore, does not lie with the ALJ, but - as this Court made clear in Goodman-
with the parties appearing before the ALJ. See Goodman, 614 F. Supp. at 728. Plaintiff,
therefore, does not have standing to bring these claims.
                                              9
                                   CONCLUSION

             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.




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