                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
HAJJAR AHMED, et al.,                )
                                     )
                  Plaintiffs,       )
                                     )
      v.                            )   Civil Action No. 11-00518 (ABJ)
                                     )
JANET NAPOLITANO,                   )
                                     )
                                     )
                  Defendant.         )
___________________________________ )


                                  MEMORANDUM OPINION

           Plaintiffs Hajjar Ahmed and Hossam Ahmed bring this action against Janet Napolitano,

acting in her official capacity as Secretary of the Department of Homeland Security, for violating

the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., (2006) (“the RHA”), and the Americans

with Disability Act of 1990, 42 U.S.C. § 12101, et seq., (2006) (“the ADA”). Plaintiff Hajjar

Ahmed alleges her employer, the U.S. Customs and Border Protection, discriminated against her

on the basis of her disability and subjected her to reprisal after she filed a complaint with the

Equal Employment Opportunity Office.         Plaintiff Hossam Ahmed, Hajjar Ahmed’s father,

alleges that he was injured by the discrimination and reprisal against his daughter.

           Defendant has moved to dismiss [Dkt. # 9] Ms. Ahmed’s ADA claims and all of Mr.

Ahmed’s claims for lack of subject matter jurisdiction. For the reasons stated below, the Court

will grant defendant’s partial motion to dismiss. Since Ms. Ahmed is a federal employee, her

exclusive avenue for relief is the RHA, and neither statute provides grounds for relief to third

parties.
                                       BACKGROUND

       Plaintiff Hajjar Ahmed is a former employee of U.S. Customs and Border Protection, a

component of the Department of Homeland Security (“DHS”). Compl. ¶¶ 1, 4. Ms. Ahmed was

assigned to the Consolidated Personnel Reporting Online team led by Christine Chang on April

24, 2009. Id. ¶ 9. Plaintiff alleges that from late June to early July 2009, three confrontational

meetings took place during which Ms. Chang allegedly deflected Ms. Ahmed’s task-related

questions, argued with Ms. Ahmed about an assignment to scan 695 documents, and accused Ms.

Ahmed of sleeping and taking improper notes during a meeting. Id. ¶¶ 10–14. It was during one

of these meetings that Ms. Ahmed told Ms. Chang and Ms. Doss, another supervisor, about her

disability. Id. ¶¶ 1, 38. From July 16 to July 24, 2009, Ms. Ahmed took sick leave from work

because her work environment was allegedly exacerbating her disability. Id. ¶ 16. On July 31,

2009, Ms. Chang and Ms. Doss gave Ms. Ahmed a proposed adverse action memorandum that

recommended suspending Ms. Ahmed for one day without pay because she disrespected

supervisory authority and slept on duty. Id. ¶ 17. This recommendation was approved and Ms.

Ahmed was suspended on October 12, 2009. Id. ¶ 23.

       In response to the proposed adverse action memorandum, on September 3, 2009, Ms.

Ahmed filed a complaint with the Equal Employment Opportunity (“EEO”) office alleging she

had been discriminated against based on her disability and that her supervisors subjected her to a

hostile work environment. Id. ¶ 19. A few days later, Ms. Ahmed filed a request for reasonable

accommodation, which in part asked for a new cubicle away from areas with high employee

traffic. Id. ¶ 20. After Ms. Ahmed was offered two cubicles that allegedly did not meet her

needs, she identified four other cubicles that would be acceptable, but no further action was

taken. Id. ¶ 27. Months later, on December 29, 2009, Ms. Ahmed received a letter that claimed



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management had offered her a reasonable accommodation regarding an acceptable cubicle. Id. ¶

28.

        On January 25, 2010, Ms. Ahmed filed a formal EEO complaint regarding management’s

failure to provide her with a reasonable accommodation. Id. ¶ 29. Shortly after, allegedly in

retaliation, Ms. Doss directed Ms. Ahmed to move to an unacceptable cubicle. Id. On March

18, 2010, Ms. Ahmed filed her second formal EEO complaint that alleged discrimination on the

basis of her disability and reprisal. Id. ¶ 30. On February 12, 2011, DHS issued a Final Agency

Action that concluded there has been no discrimination or reprisal as alleged in Ms. Ahmed’s

March 18, 2010 EEO complaints. Id. ¶ 32.

        Throughout these events, Hossam Ahmed was Ms. Ahmed’s primary caregiver. Id. ¶ 2.

He alleges that he was “profoundly impacted emotionally” by the discrimination and reprisal

against his daughter. Id. He also claims to have lost salary and benefits when he stayed home to

care for Ms. Ahmed during her sick leave from July 16 to July 24, 2009. Id. ¶ 53. On March 10,

2011, Ms. Ahmed and Mr. Ahmed filed this civil action alleging discrimination and reprisal

under the RHA and the ADA. Id. ¶ 53. They seek both compensatory damages and equitable

relief. Id.

                                   STANDARD OF REVIEW

        In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “treat the

complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences

that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)

(citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if




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those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

        Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);

Shekoyan v. Sibly Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of

limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors

Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court with limited jurisdiction, we

begin, and end, with examination of our jurisdiction.”). Because “subject-matter jurisdiction is

an ‘Art[icle] III as well as a statutory requirement, . . . no action of the parties can confer subject-

matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971

(D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982).

                                             ANALYSIS

        Defendant contends that the Court lacks subject matter jurisdiction over Ms. Ahmed’s

ADA claims since a federal employee can only bring an action under the RHA. Defendant

further argues that the Court lacks subject matter jurisdiction over all of Mr. Ahmed’s claims.

The Court agrees with defendant and will grant its partial motion to dismiss.

            I. Ms. Ahmed’s Claims Under the ADA

        Ms. Ahmed purports to bring her claims of discrimination and reprisal under both the

ADA and the RHA. However, the “ADA does not apply to employees of the federal government

because the federal government is not considered an ‘employer’ under the ADA.” Klute v.

Shinseki, No. 10-1126, 2011 WL 2750932, at *4 (D.D.C. July 12, 2011); see also 42 U.S.C. §



                                                   4
12111(5)(B)(i) (specifically excluding “the United States” from the definition of “employer”).

Instead, Congress incorporated the ADA through the RHA, which in part bars “non-affirmative

action employment discrimination” that harms “a qualified individual with a disability.”

Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007); see also 29 U.S.C. § 791(g); 42 U.S.C. §

12112(a).   The RHA also incorporates the ADA’s anti-retaliation provision, 42 U.S.C. §

12203(a), which “prohibits employers from retaliating against an employee because he or she has

opposed an unlawful employment practice or made a charge or participated in an EEO

investigation or proceeding.” Marshall v. Potter, 634 F. Supp. 2d 66, 73 (D.D.C. 2009), citing

29 U.S.C. § 794(d).

       Because the RHA incorporates the ADA, it is “the exclusive remedy for employment

discrimination based on a disability for federal employees.” Raines v. DOJ, 424 F. Supp. 2d 60,

64 (D.D.C. 2006), quoting Ward v. Kennard, 133 F. Supp. 2d. 54, 57 (D.D.C. 2000) (internal

quotation marks omitted); see also Rand v. Geithner, 609 F. Supp. 2d 97, 100 (D.D.C. 2009)

(“The exclusive remedy for federal employees alleging that federal agencies engaged in

disability discrimination is . . . the Rehabilitation Act.”); Edwards v. EPA, 456 F. Supp. 2d 72,

100 (D.D.C. 2006) (“Because plaintiff is a federal employee, the exclusive statutory basis for suit

lies in . . . the Rehabilitation Act.”). Because Ms. Ahmed was a federal employee, she may only

pursue her discrimination and reprisal claims under the RHA. Therefore, all of plaintiff’s claims

under the ADA must be dismissed.

       The Court also notes that although Ms. Ahmed brings claims for both discrimination and

reprisal under the ADA, defendant only addresses the ADA discrimination claim in its motion to

dismiss. Even so, the Court will dismiss both ADA claims pursuant to Rule 12(b)(1). See Boritz

v. United States, 685 F. Supp. 2d 113, 126 (D.D.C. 2010) (observing that it is established in this



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Circuit that claims may be dismissed sua sponte when the plaintiff cannot possibly win relief)

(internal quotations omitted).

           II. Mr. Ahmed’s Claims Under the ADA and RHA

       Defendant seeks to dismiss all of Mr. Ahmed’s claims because he is not a current or

former employee with a disability, and therefore, is not a proper plaintiff under the RHA or

ADA. Def.’s Mem. at 5. Although the Court could treat these claims as conceded because

plaintiff failed to respond to defendant’s arguments, 1 there are grounds to grant defendant’s

motion on the merits. Because Mr. Ahmed lacks standing in this case, the Court will dismiss all

of Mr. Ahmed’s claims.

       Mr. Ahmed seeks relief solely based on the alleged violation of his daughter’s rights

under the ADA and RHA. Compl. ¶ 2. While there is much truth to the adage that a parent is

only as happy as his or her least happy child, Mr. Ahmed’s commendable empathy does not give

rise to an independent cause of action on his own behalf. “As a general rule, a third party does

not having standing to bring a claim asserting a violation of someone else’s rights.” Martin v.

California Dep’t of Veterans Affairs, 560 F.3d 1042 (9th Cir. 2009), citing Powers v. Ohio, 499

U.S. 400, 411 (1991) (“In the ordinary course, a litigant must assert his or her own legal rights

and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”).

To establish standing in spite of this general rule, three prudential considerations are weighed:

(1) “the litigant must have suffered an injury in fact (2) the litigant must have a close relation to

1    “It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.” Cheeks v. Fort Myer Const. Co., 722
F. Supp. 2d 93, 110 (D.D.C. 2010), quoting Hopkins v. Women’s Div., 284 F. Supp. 2d 15, 25
(D.D.C. 2003), aff’d, 98 Fed. App’x 8 (D.C. Cir. 2004); see also Day v. D.C. Dep’t of Consumer
& Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an
argument that the opposing party makes in a motion, the court may treat that argument as
conceded.”).

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the third party, and (3) there must exist some hindrance to the third party’s ability to protect his

or her own interests.” Lepelletier v. FDIC, 164 F.3d 37, 43 (D.C. Cir. 1999), citing Powers, 499

U.S. at 411 (internal quotations omitted). The party invoking federal jurisdiction bears the

burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

       More specifically, courts have held that parents who attempt to recover independently for

a violation of their children’s rights do not have standing under the ADA or the RHA. Hooker v.

Dallas Indep. Sch. Dist., No. 3:09-CV-1289-D, 2010 WL 4025877, at *4 (N.D. Tex. Oct. 13,

2010); see also L.F. v. Houston Indep. Sch. Dist., No. H-08-2415, 2009 WL 3073926, at *21

(S.D. Tex. Sept. 21, 2009) (holding that a parent lacked standing to pursue RHA claim on behalf

of her child); Glass v. Hillsboro Sch. Dist., 142 F. Supp. 2d 1286, 1288 (D. Or. 2001) (holding

that parents lacked standing when attempting to enforce solely their children’s rights and not

some independent and separate right). Only when the child is a minor have some courts held that

the “specially close” relationship exists. Blanchard v. Morton Sch. Dist., 260 Fed. App’x 992,

994 (9th Cir. 2007) (finding that a parent could seek relief under the RHA when she sought to

enforce the rights of her minor son and incurred expenses for his benefit). Because Ms. Ahmed

is not a minor child of legal guardianship of her father, Mr. Ahmed has not established the

particular “specially close” relationship that could give rise to a cause of action in this case.

       Furthermore, Ms. Ahmed is fully able to assert her rights on her own. She is pursuing her

RHA claims against the defendant to redress the alleged violation of her rights. Because Mr.

Ahmed has not carried his burden to establish that he has a “specially close” relationship with

Ms. Ahmed or that she lacks alternative means for relief, Mr. Ahmed lacks standing in this case.

Therefore, his claims will be dismissed.




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                                       CONCLUSION

       For the reasons stated above, the Court grants defendant’s partial motion to dismiss [Dkt.

# 9]. The only remaining claims in this case are Ms. Ahmed’s claims under the RHA.




                                            AMY BERMAN JACKSON
                                            United States District Judge


DATE: November 10, 2011




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