Menoken v. Lerner ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASSANDRA M. MENOKEN,
Plaintiff,
v. Civil Action No. 16-2071 (JDB)
ADAM MILES, in his official capacity as
Acting Special Counsel, U.S. Office of
Special Counsel,
Defendant. 1
MEMORANDUM OPINION
For more than two decades, plaintiff Cassandra M. Menoken has been litigating claims that
the Office of Personnel Management (OPM) unlawfully discriminated against African Americans,
including herself, in its administration of the Administrative Law Judge (ALJ) examination and
selection process. In November 2000, the U.S. Equal Employment Opportunity Commission
(EEOC) found that the 1993 ALJ examination included a scoring factor—awarding points for
partnership in a large law firm—that had an unlawful disparate impact based on race. EEOC
ordered OPM to cease use of that scoring factor. In August 2012, Menoken filed a disclosure
pursuant to 5 U.S.C. § 1213 with the Office of Special Counsel (OSC), an independent federal
agency authorized to receive disclosures of wrongdoing, alleging that OPM continued to use the
unlawful scoring factor and that EEOC refused to enforce its order. Dissatisfied with OSC’s
handling of her disclosure, Menoken filed this lawsuit under the Administrative Procedures Act
(APA), seeking mandamus, declaratory, and injunctive relief requiring OSC to reopen her
1
Per Federal Rule of Civil Procedure 25(d), Acting Special Counsel Adam Miles has been substituted for
former Special Counsel Carolyn Lerner.
1
disclosure and process it in accordance with the requirements of 5 U.S.C. § 1213. OSC moved to
dismiss this lawsuit on the grounds that Menoken lacks standing, her APA claims are precluded
by the Civil Service Reform Act, and she has not shown that she is entitled to mandamus relief.
See Def.’s Mot. to Dismiss [ECF No. 11–1]. 2 Because the Court finds that Menoken lacks
standing, OSC’s motion to dismiss will be granted.
I. BACKGROUND
Menoken is an African-American attorney who “[a]t all times material to this action” has
been employed by the EEOC, an executive branch agency charged with, among other things,
adjudicating employment discrimination claims filed by federal employees and applicants. Am.
Pet. ¶ 4. OPM is the federal agency that administers the selection of ALJs and maintains a register
of candidates eligible for placement. Id. ¶ 5; see Menoken v. Whipple, 605 F. Supp. 2d 148, 150
n.1 (D.D.C. 2009) (Menoken I), aff’d sub nom. Menoken v. Berry, 408 Fed. App’x 370 (D.C. Cir.
2010) (per curiam). Menoken participated in the 1993 ALJ examination, but she was not selected
for a position. Menoken I, 605 F. Supp. 2d at 150; Am. Pet. ¶ 8. Since then, she has engaged in
persistent litigation against OPM.
A. Menoken’s Claims Against OPM
In 1994, Menoken filed an EEOC complaint alleging that: the 1993 ALJ selection process
violated Title VII of the Civil Rights Act because it had a disparate impact on African American
and female applicants, OPM discriminated against her based on her race and sex, and OPM
retaliated against her for challenging the ALJ selection process. Menoken I, 605 F. Supp. 2d at
150. In November 2000, EEOC ruled for OPM on all but one of Menoken’s claims. Id. Menoken
2
OSC’s motion to dismiss the original petition, see Def.’s Mot. to Dismiss [ECF No. 8], was filed prior to
the filing of the amended petition, see Am. Pet. [ECF No. 10]. It will therefore be denied as moot. See Barnes v.
District of Columbia, 42 F. Supp. 3d 111, 117 (D.D.C. 2014) (filing of amended complaint supersedes original
complaint and any pending motion to dismiss becomes moot).
2
prevailed on her claim that OPM had used an improper scoring factor in the 1993 ALJ examination,
specifically a benchmark that awarded applicants additional points for partnership in large law
firms (the “partner benchmark”). Id. EEOC determined that the partner benchmark created an
unlawful disparate impact on the basis of race, and ordered OPM to cease use of the benchmark.
Id.; see Am. Pet. ¶¶ 9–12. OPM was further ordered to post and provide notice to those agencies
which request ALJ certificates of the finding that the 1993 ALJ examination relied on a
discriminatory benchmark. See Ex. 2 to Def.’s Mot. to Dismiss [ECF No. 11-3] (Menoken v.
Cohen, No. 100-95-7644X (EEOC June 29, 2001)) at 27. In a June 2001 remedial order, EEOC
barred OPM, or any other agency, from relying on the partner benchmark “for any ALJ
employment purpose.” Am. Pet. ¶ 13. The remedial order also required OPM to correct any
lingering effects of its race discrimination prior to allowing future ALJ appointments to occur on
the basis of the “scores assigned under the tainted examination.” Id. ¶ 14. EEOC later clarified
that OPM was required to raise the scores of African Americans on the ALJ register who were
presumptively harmed by the partner benchmark. Id. ¶ 15. EEOC determined that Menoken was
not entitled to any individual relief because, even accounting for the effect of the partner
benchmark, she would not have been selected for an ALJ position. See Ex. 2 to Def.’s Mot. to
Dismiss at 27–28.
Shortly thereafter, Menoken filed appeals challenging EEOC’s findings and conclusions
and OPM’s compliance with the remedial order. See Ex. 3 to Def.’s Mot. to Dismiss [ECF No.
11-4] (Menoken v. James, Nos. 01A15194, 01A14969 (EEOC May 16, 2003)) at 1, 7. In May
2003, EEOC issued a decision upholding its findings and conclusions, and rejecting Menoken’s
noncompliance claim because it was “reasonably satisfied that [OPM] took appropriate steps in a
timely manner to promptly adhere to and implement the directives of the [EEOC administrative
3
judge].” Id. at 8; see Am. Pet. ¶ 21. Menoken filed a request for reconsideration of this decision.
See Menoken v. James, No. 05A30918, 2005 WL 38762, at *2 (EEOC Jan. 3, 2005).
In August 2003, while her reconsideration request was pending, Menoken filed a Title VII
lawsuit against OPM in this court, raising substantially similar claims as her prior EEOC
complaints, including that: (1) OPM failed to comply with the remedial order, which required that
OPM cease and correct unlawful discrimination against African American applicants caused by
the partner benchmark; (2) the ALJ examination unlawfully discriminated against African
Americans in general and her in particular; and (3) the ALJ selection process unlawfully
discriminated against female applicants in general and her in particular. 3 Menoken I, 605 F. Supp.
2d at 151. In March 2009, the court granted OPM’s motion for summary judgment on all claims,
finding OPM “provided abundant admissible evidence substantiating its full compliance with
[EEOC’s] order to cease and correct the discrimination caused by the partner benchmark.” Id. at
152. The D.C. Circuit affirmed this decision and concluded that “the record reveals no evidence
to suggest that OPM continued to use the partner benchmark after the [AJ’s] 2000 ruling.”
Menoken, 408 F. App’x at 373.
In December 2011, Menoken filed a renewed request for EEOC to reconsider her 2001
merits and noncompliance appeals. EEOC declined because her “allegations regarding OPM’s
alleged non-compliance and deception were fully litigated in federal district court.” Menoken v.
Berry, No. 0520120172, 2012 WL 3060035, at *5 (EEOC July 11, 2012).
3
While her Title VII action was pending in this court, Menoken continued to pursue the matter with EEOC
by filing additional noncompliance appeals raising similar claims. EEOC dismissed these noncompliance appeals,
along with Menoken’s 2003 request for reconsideration, pursuant to 29 C.F.R. § 1614.409, which states that the filing
of a civil action terminates EEOC’s processing of an appeal. See Menoken v. James, 2005 WL 38762, at *2–4
(dismissing requests for reconsideration and compliance appeal); Menoken v. Springer, No. 0120053271, 2007 WL
2228816, at *4–5 (EEOC July 26, 2007) (dismissing two compliance appeals, but vacating a grant of summary
judgment in favor of the agency on a third appeal alleging retaliation).
4
Menoken filed a pair of civil actions in this court against OPM, the Social Security
Administration (SSA), and the Department of Health and Human Services (HHS) in January 2016.
In the first, Menoken brought Title VII retaliation claims against OPM and SSA, alleging that they
manipulated the ALJ selection process in March 2001 to deny her an ALJ position. In the second,
Menoken brought Title VII discrimination and retaliation claims against OPM and HHS, alleging
that in 2005 they deviated from the normal ALJ selection process by utilizing four small lists of
ALJ candidates, rather than one larger list of candidates, as was typical. 4 On August 11, 2017,
Judge Amy Berman Jackson of this court issued a consolidated decision and dismissed the first
action against OPM and SSA under the doctrines of res judicata and issue preclusion. 5 Menoken
v. McGettigan, No. 16-cv-0084 (ABJ), 2017 WL 3479048, at *4–7 (D.D.C. Aug. 11, 2017)
(Menoken II). In the second action, the court denied defendants’ motion to dismiss the
discrimination claims against OPM and HHS and the retaliation claim against OPM, but granted
the motion with respect to the retaliation claim against HHS. Id. at *7–10.
B. Menoken’s Disclosure to OSC
OSC is an independent federal investigative and prosecutorial agency headed by the
Special Counsel. 5 U.S.C. §§ 1211(a), 1212. OSC handles claims of wrongdoing (i.e.,
“disclosures”) within the executive branch from current federal employees, former employees, and
applicants evidencing (1) “a violation of any law, rule or regulation,” (2) “gross mismanagement,”
(3) “a gross waste of funds,” (4) “an abuse of authority,” or (5) “a substantial and specific danger
to public health or safety” at federal agencies. Id. § 1213(a)(1).
4
This alleged conduct its not part of the wrongdoing alleged in this case. See Am. Pet. ¶¶ 7–22.
5
Menoken has moved for reconsideration of this dismissal. Menoken v. McGettigan, No. 16-cv-0084 (ABJ),
Dkt. No. 19.
5
Federal law dictates a specific process that OSC follows for § 1213 disclosures. When the
Special Counsel receives a disclosure, she shall review it within 15 days and determine whether
there is a “substantial likelihood” that the information discloses one of the five categories of
wrongdoing. Id. § 1213(b). If the Special Counsel makes a “positive determination” of a
substantial likelihood of wrongdoing, she “shall promptly transmit the information . . . to the
appropriate agency head” and require the agency head to conduct an investigation and submit a
written report of findings. Id. § 1213(c)(1) (emphasis added), (e)(1). OSC is not authorized to
conduct its own investigation of a § 1213 disclosure. See 5 C.F.R. § 1800.2(a). Upon submission
by the agency head, the Special Counsel reviews the report for reasonableness and statutory
compliance, and provides a copy of the report to the complainant, who may also submit comments.
5 U.S.C. § 1213(e)(1)–(2). The Special Counsel is required to transmit an agency report, any
comments provided by the complainant, and any comments or recommendations by the Special
Counsel to the President and the congressional committees with jurisdiction over the relevant
agency. Id. § 1213(e)(3).
If the Special Counsel does not make a “positive determination,” she nonetheless “may
transmit the information to the head of the agency” with the consent of the complainant, but is not
required to do so. Id. § 1213(g)(2) (emphasis added). If the Special Counsel does not transmit the
disclosure, she “shall inform” the complainant of “the reasons why the disclosure may not be
further acted on” and “other offices available for receiving disclosures, should the individual wish
to pursue the matter further.” Id. § 1213(g)(3).
In August 2012, Menoken filed a § 1213 disclosure with OSC, describing an “extraordinary
pattern of wrongdoing, committed by OPM and EEOC.” Am. Pet. ¶ 23. Menoken claimed
specifically that OPM never complied with EEOC’s remedial order and “repeatedly violated it
6
(and thus Title VII) by continuing to use, and rely on, the unlawful scoring factor for years after
being ordered to ‘cease.’” Id. ¶ 18 (emphases omitted); see id. ¶ 38. She also claimed that EEOC
“abused its authority by blatantly refusing to enforce” the order, id. ¶ 19—for example, by
dismissing her noncompliance appeal in 2003, id. ¶ 21.
On August 15, 2012, Menoken received a call from an OSC attorney who advised her that
her disclosure would not be processed “due to OSC’s policy of not getting involved in matters
relating to EEOC’s adjudicatory activities.” Id. ¶ 24. Menoken revised her disclosure to clarify
that she was “not seeking OSC’s help in proving an EEO[C] claim” and that “the wrongdoing in
question . . . harmed, not only [Menoken], but the public at large.” Id. ¶ 25 (emphasis in original).
On September 10, 2012, the same OSC attorney advised Menoken that OSC would not use its
§1213 authority to address EEOC’s alleged wrongdoing. Id. ¶ 27. By letter dated September 26,
2012, OSC notified Menoken that it had “close[d] the file” on her disclosure and advised her that
it would be “more appropriate” to address the alleged wrongdoing with EEOC. Id. ¶ 28.
Menoken sent a letter objecting to OSC’s decision, in which she noted the “conspicuous
absence of any mention” of a “substantial likelihood” assessment, as required by 5 U.S.C.
§ 1213(b). Id. ¶ 29. Menoken alleges that OSC’s failure to mention the “likelihood question” in
its letter evinces OSC’s attempt to circumvent the requirements of § 1213. Id. ¶¶ 30–32. Menoken
also contends that OSC failed to comply with the law by exempting disclosures of EEOC’s
wrongdoing from the ministerial mandates of § 1213. Id. ¶ 32.
In 2015, Menoken, with the assistance of counsel, asked OSC to reopen her disclosure “for
a proper ‘1213’ review.” Id. ¶ 35. Thereafter, Menoken submitted a declaration, with exhibits
further supporting the alleged wrongdoing. Id. ¶ 38. OSC “informally” reconsidered the
sufficiency of its prior review and advised Menoken that it stood by its original decision. Id. ¶¶ 36,
7
40. In October 2016, Menoken filed this lawsuit against the Special Counsel under the APA,
seeking mandamus, declaratory, and injunctive relief requiring OSC to “perform required
ministerial acts in response to” her § 1213 disclosure. Id. ¶ 1.
II. LEGAL STANDARD
Article III of the Constitution restricts the power of federal courts to hear only “cases” and
“controversies.” U.S. Const. art. III, § 2, cl. 1; see also Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 37 (1976) (“No principle is more fundamental to the judiciary’s proper role in our system
of government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies.”). “Federal courts are courts of limited jurisdiction,” and “possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377
(1994). Absent subject matter jurisdiction over a case, the Court must dismiss it. Fed. R. Civ. P.
12(h)(3); Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006).
“The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing]
those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (“Standing . . . is a doctrine rooted in the traditional understanding of a case or
controversy.”). The standing doctrine “limits the category of litigants empowered to maintain a
lawsuit in federal court to seek redress for a legal wrong.” Spokeo, 136 S. Ct. at 1547.
A plaintiff “bears the burden of showing that he has standing for each type of relief sought,”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009), and a lack of standing constitutes “a
defect in [the Court’s] subject matter jurisdiction,” Haase v. Sessions, 835 F.2d 902, 906 (D.C.
Cir. 1987). Because “subject matter jurisdiction focuses on the court’s power to hear the claim, a
8
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.” Bradley v.
DeWine, 55 F. Supp. 3d 31, 37 (D.D.C. 2010) (internal quotation marks omitted) (quoting 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) (alteration in original). The Court need not accept as true,
however, legal conclusions couched as factual allegations, nor inferences unsupported by the facts
set forth in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Trudeau v. FTC, 456
F.3d 178, 193 (D.C. Cir. 2006). In deciding a Rule 12(b)(1) motion, the Court “may consider
materials outside the pleadings,” including public records from other proceedings that are the
subject of judicial notice. Jerome Stevens Pharms., Inc., 402 F.3d at 1253; see also Peart v. Latham
& Watkins LLP, 985 F. Supp. 2d 72, 81 (D.D.C. 2013).
III. ANALYSIS
OSC argues that Menoken lacks standing and thus her claim must be dismissed because
the Court lacks subject matter jurisdiction. See Def.’s Mot. to Dismiss at 13−21. The Supreme
Court has established that the “irreducible constitutional minimum” of standing consists of three
elements. Lujan, 504 U.S. at 560. First, the plaintiff must have suffered an “injury in fact” that is
“concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id.
(citation and internal quotation marks omitted). Second, there must be “a causal connection
between the injury and the conduct complained of.” Id. That is, the injury must be “fairly . . .
trace[able] to the challenged action of the defendant.” Id. (alterations in original). Finally, it must
be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision” by the Court. Id. (citation and internal quotation marks omitted). At the pleading stage,
9
a plaintiff must “clearly . . . allege facts demonstrating” each element. Spokeo, 136 S. Ct. at 1547;
accord. Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). “[A] deficiency on any
one of the three prongs suffices to defeat standing.” US Ecology, Inc. v. U.S. Dep’t of Interior,
231 F.3d 20, 24 (D.C. Cir. 2000).
A. Injury In Fact
OSC first contends that Menoken has failed to establish a cognizable injury in fact. See
Def.’s Mot. to Dismiss at 14–17. To do so, Menoken must clearly allege facts showing she
suffered “an invasion of a legally protected interest” that is “concrete and particularized.” Lujan,
504 U.S. at 560. Here, OSC argues that Menoken merely alleges that OSC failed to comply with
statutory requirements for processing her disclosure, but Menoken fails to allege that OSC’s
statutory noncompliance caused her to suffer any concrete injury.
In Spokeo, the Supreme Court explained that “particularization” and “concreteness” are
distinct requirements. See 136 S. Ct. at 1548. “For an injury to be particularized, it must affect
the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted). The
plaintiff must show that she “personally has suffered some actual or threatened injury.” Id.
(quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982)). Concreteness requires an injury that is “‘de facto’; that is, it must actually
exist.” Id. (emphasis in original). The Supreme Court further explained that “Article III standing
requires a concrete injury even in the context of a statutory violation.” Id. at 1549. For that reason,
a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy
the injury in fact requirement of Article III.” Id.; see also Summers, 555 U.S. at 496
(“[D]eprivation of a procedural right without some concrete interest that is affected by the
deprivation . . . is insufficient to create Article III standing.”); Hancock v. Urban Outfitters, Inc.,
10
830 F.3d 511, 514 (D.C. Cir. 2016) (“[T]he Supreme Court cautioned in Spokeo that some
statutory violations could result in no harm . . . .” (internal quotation marks omitted)). Hence, to
satisfy the injury in fact element, Menoken must allege something more than an interest in having
OSC process her disclosure “in a manner that fully accords with the letter and spirit of every
applicable provision in § 1213.” Am. Pet. at 10; see also Allen v. Wright, 468 U.S. 737, 754
(1984) (“[A]n asserted right to have the government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court.”), abrogated on other grounds by Lexmark
Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).
Two recent decisions applying Spokeo by courts in this Circuit are instructive. First, in
Hancock v. Urban Outfitters, Inc., plaintiffs alleged that requests by retail stores for plaintiffs’ zip
codes when processing credit card transactions violated D.C. consumer protection laws and created
an injury sufficient to support standing. 830 F.3d at 512–13. The D.C. Circuit disagreed because
plaintiffs failed to allege that they “suffered any cognizable injury as a result of the zip code
disclosures”—for example, “any invasion of privacy, increased risk of fraud or identify theft, or
pecuniary or emotional injury.” Id. at 514. Because plaintiffs had merely alleged “statutory
violations [that] result[ed] in no harm,” they lacked standing. Id. (citation and internal quotation
marks omitted). Next, in Owner-Operator Independent Drivers Association v. United States
Department of Transportation, 211 F. Supp. 3d 252 (D.D.C. 2016), a truck drivers’ association and
five commercial drivers challenged the Department of Transportation’s (DOT) maintenance of a
federal database containing driver safety data because DOT allegedly breached its statutory duty
to ensure the accuracy of the database, id. at 259–60. The court concluded that plaintiffs lacked
standing because “even if this amount[ed] to a violation of DOT’s statutory responsibilities,”
plaintiffs did not allege “concrete harm resulting from DOT’s actions,” such as showing their
11
employment status was adversely affected. Id. at 260. At best, plaintiffs alleged “a bare procedural
violation, divorced from any concrete harm.” Id. (citation omitted).
In her opposition, Menoken does not engage substantively with OSC’s standing argument.
Instead, she asserts in a conclusory manner that the Court should reject “as irrelevant and
misleading” OSC’s standing arguments, expressly disclaims that she is asking the Court to
“remedy employment discrimination,” and states that “the Amended Petition could not be more
emphatic in stating that the action was brought ‘as a result of Defendant’s arbitrary refusal to
comply with 5 U.S.C. § 1213.’” Pl.’s Opp’n [ECF No. 12] at 2 (emphasis in original) (quoting
Am. Pet. ¶ 1). The Amended Petition is replete with similar allegations of the Special Counsel’s
statutory noncompliance, including that she: “refused to process [Menoken’s disclosure], as
required, under § 1213(b)” and “exceeded her authority when she ‘closed the file’ on Plaintiff’s
Disclosure,” Am. Pet. ¶ 2; failed to complete a “substantial likelihood” assessment as required by
§ 1213(b), id. ¶ 29; “circumvent[ed] the ministerial mandates of § 1213(c),” id. ¶ 30; and
“avoid[ed] the ministerial acts required by subsection (c) of § 1213 by ignoring the ministerial acts
required by subsection (b),” id. ¶ 31. But under Spokeo and Hancock, it is clear that these “bare
procedural violations” are insufficient by themselves to establish standing.
Instead, Menoken must plausibly allege that the Special Counsel’s asserted noncompliance
with § 1213 caused her to suffer a concrete injury. Despite Menoken’s failure to address this point
in her opposition, the Amended Petition can be read to present three alternative bases for finding
an Article III injury. Unfortunately for Menoken, none provide her with standing. Menoken first
broadly alleges that she was “tangibly injured by corruption and abuse in the executive branch.”
Am. Pet. ¶ 44. Although this allegation does not specify any tangible injury, the Amended Petition
alleges that Menoken suffered ongoing harm—namely, her nonselection for an ALJ position—
12
from OPM’s administration of the 1993 ALJ examination, OPM’s continued noncompliance with
the EEOC remedial order, and EEOC’s refusal to enforce that order. 6 See id. ¶¶ 15, 18–22, 38–
39. Normally, at the pleading stage, a plaintiff need only allege facts that, if true, would constitute
an injury in fact. Lujan, 504 U.S. at 561. And nonselection as an ALJ could normally suffice for
such an injury. But here, Menoken has already litigated this asserted injury, and has lost on the
merits. 7 See Menoken I, 605 F. Supp. 2d at 149 (granting summary judgment in favor of OPM on
all claims), aff’d sub nom. Menoken v. Berry, 408 F. App’x 370 (D.C. Cir. 2010). The doctrine
of issue preclusion bars Menoken from relitigating the fact of OPM’s alleged noncompliance and
any resulting injuries that she allegedly suffered. 8 See Menoken II, 2017 WL 3479048, at *6
(dismissing Menoken’s retaliation claim against SSA based on issue preclusion because allegation
that SSA colluded with OPM to hide noncompliance with the EEOC remedial order had already
been litigated and decided in earlier lawsuit).
6
The Court considers whether these allegations create standing despite Menoken’s statement in her
opposition that she is not “asking the Court to remedy employment discrimination.” See Pl.’s Opp’n at 12.
7
Compare Am. Pet. ¶ 15 (“OPM was further required to appropriately raise the scores of African Americans
on the ALJ ‘Register’ who (like Plaintiff) were presumptively harmed by the racial barriers embedded in the ALJ
examination.”), and id. ¶ 18 (“OPM never complied with the Menoken Order, and, indeed, repeatedly violated it . . .
by continuing to use, and rely on, the unlawful scoring factor for years after being ordered to ‘cease.’”), and id. ¶ 38
(“OPM violated § 717(a) and (b) of Title VII by virtue of its . . . failure to comply with the Menoken Order . . . .”),
with Amended Complaint at 11, Menoken I, 605 F. Supp. 2d 148 (No. 03-cv-1775), ECF No. 8 (“[OPM] has violated
Title VII by repeatedly and deliberately failing to comply with EEOC Orders requiring that she ‘cease’ and correct
discrimination against African American ALJ applicants.”), and id. (“[OPM] has violated, and continues to violate,
Title VII by . . . unlawfully discriminating against African American applicants in general, and plaintiff in particular,
by virtue of the design, implementation and/or administration of the ALJ examination.”).
8
The Amended Petition could also be read to allege “corruption and abuse” in the form of whistleblower
retaliation, see Am. Pet. ¶¶ 20, 22, but this allegation is inapposite to Menoken’s challenge to the processing of her
§ 1213 disclosure. Whistleblower retaliation claims are brought under § 1214, and Menoken does not allege that she
has presented a § 1214 claim to OSC. See id. ¶ 23 (“Plaintiff filed a Disclosure pursuant to § 1213 . . . .”); Pl.’s Opp’n
at 4 (noting Menoken filed a § 1213, not a § 1214, complaint). Nor does Menoken allege that her § 1213 claim
concerned retaliation. See Am. Pet. ¶¶ 23–40. Moreover, Menoken’s allegations that EEOC “advance[d] OPM’s
retaliatory interest” and created a “hostile work environment” are “[t]hreadbare recitals of the elements of [standing],
supported by mere conclusory statements,” which are insufficient to allege Article III injury. Arpaio v. Obama, 797
F.3d 11, 19 (D.C. Cir. 2015) (alterations in original); see also Iqbal, 556 U.S. at 678 (pleading must contain more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” (citation omitted)).
13
“Issue preclusion, or collateral estoppel, bars ‘successive litigation of an issue of fact or
law [1] actually litigated and [2] resolved in a valid court determination [3] essential to the prior
judgment.’” Swanson Grp. Mfg. LLC v. Jewell, 195 F. Supp. 3d 66, 72 (D.D.C. 2016) (quoting
New Hampshire v. Maine, 532 U.S. 742, 748–49 (2001)). Issue preclusion bars successive
litigation even if the issue recurs in the context of a different claim, see Taylor v. Sturgell, 553
U.S. 880, 892 (2008), and it does not require mutuality of parties, see Gov’t of Rwanda v. Johnson,
409 F.3d 368, 374 (D.C. Cir. 2005). Moreover, preclusion “must not work a basic unfairness to
the party bound by the first determination.” Martin v. U.S. Dep’t of Justice, 488 F.3d 446, 454
(D.C. Cir. 2007) (citation omitted).
In her prior civil action in this court, Menoken litigated claims that OPM violated Title VII
by failing to comply with the EEOC remedial order, requiring it to cease using the partner
benchmark and correct discrimination against African American ALJ applicants, including herself.
See Menoken I, 605 F. Supp. 2d at 151. Following protracted discovery, the court determined that
OPM provided “abundant admissible evidence substantiating its full compliance with [EEOC’s]
order to cease and correct the discrimination caused by the partner benchmark,” and on that basis,
granted summary judgment to OPM. Id. at 152. It is beyond dispute, then, that the issue of whether
Menoken was injured by OPM’s alleged failure to comply with the remedial order has been
contested, submitted for judicial determination, and actually decided. Menoken is simply wrong
that OSC “cannot point to any finding by any court that OPM undertook any of the corrective
measures mandated by the Menoken Order.” Pl.’s Opp’n at 3. The Court can conceive of no
reason (nor has Menoken supplied one) that precluding further litigation of this issue works any
14
unfairness against her. Hence, Menoken is precluded from relitigating this issue, and she cannot
rely on this alleged injury to establish Article III standing. 9
Menoken next asserts that “as a member of the public, she has a concrete interest in
protecting herself, and others, from the potentially dire consequences of the executive branch’s
systematic unwillingness to embrace Congress’ policy of promoting integrity and accountability
in governmental activities.” Am. Pet. ¶ 44. It is well established that “a plaintiff raising only a
generally available grievance about government—claiming only harm to his and every citizen’s
interest in proper application of the Constitution and laws . . . does not state an Article III case or
controversy.” Lujan, 504 U.S. at 573–74; see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2662
(2013) (“We have repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is
insufficient to confer standing.”); Bernstein v. Kerry, 962 F. Supp. 2d 122, 128 (D.D.C. 2013)
(“[S]tanding cannot be based on plaintiffs’ interest, common among all citizens, in the government
following the law.”), aff’d, 584 Fed. App’x 7 (D.C. Cir.) (mem.). As the Supreme Court stated
unequivocally in Allen v. Wright, “an asserted right to have the Government act in accordance
with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” 468 U.S. at
754; accord. Williams v. Lew, 819 F.3d 466, 475 (D.C. Cir. 2016). Menoken’s interest in
protecting herself and the public from the executive branch’s alleged unwillingness to follow the
law, then, does not constitute a concrete injury sufficient for Article III standing.
Finally, Menoken alleges that “as an executive branch employee charged with a duty to
disclose wrongdoing” she “has a right to be taken seriously and to turn to the judiciary to compel
9
Indeed, Menoken acknowledges in the Amended Petition that she raised the same questions of OPM’s
alleged noncompliance before this court and the D.C. Circuit. See Am. Pet. ¶ 38, 41. Menoken’s allegation that OPM
misled the district court and D.C. Circuit into believing it had fully complied with EEOC’s order, see id. ¶¶ 38–39,
41; Pl.’s Opp’n at 3, does not shield her from issue preclusion. A party may seek relief from a final judgment on the
basis of “newly discovered evidence” or “fraud . . . misrepresentation, or misconduct by an opposing party” by filing
a motion under Federal Rule of Civil Procedure 60(b), not by seeking to relitigate the underlying issue through claims
brought in a different lawsuit.
15
the executive branch, through OSC, to process her Disclosure in the precise manner that Congress
prescribed.” Am. Pet. ¶ 44. But violation of a “right to be taken seriously” does not constitute a
concrete harm, and this allegation is merely a different formulation of Menoken’s asserted right to
have the government follow the law. Allen, 468 U.S. at 754. Hence, this too fails to satisfy the
injury in fact element. 10
B. Traceability
OSC next argues that Menoken fails to establish the causation element of standing because
she does not allege a “fairly traceable connection between [her] injury and the complained-of
conduct of [OSC].” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998); see Def.’s
Mot. to Dismiss at 17–19. Menoken does not directly respond to this argument in her opposition.
The traceability requirement ensures that a plaintiff’s asserted injury was caused by the defendant
and “not the result of the independent action of some third party not before the court.” Arpaio,
797 F.3d at 19 (quoting Lujan, 504 U.S. at 561). “Although ‘standing is not precluded’ in a case
that turns on third-party conduct, ‘it is ordinarily substantially more difficult to establish.’” Id. at
20 (quoting Lujan, 504 U.S. at 562); Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 48–49 (D.C.
Cir. 2016) (“When ‘[t]he existence of one or more of the essential elements of standing “depends
on the unfettered choices made by independent actors not before the courts and whose exercise of
broad and legitimate discretion the courts cannot presume either to control or to predict,”’ it
becomes ‘“substantially more difficult” to establish’ standing.”) 11. The D.C. Circuit has required
10
Menoken also alleges that OPM’s alleged noncompliance “upend[ed] the lives of more than a half a million
people seeking adjudications in the Social Security Administration’s disability claims process.” Am. Pet. ¶ 26
(emphases omitted). But she does not allege that she filed a Social Security disability claim, so this cannot constitute
an injury in fact for her. See Spokeo, 136 S. Ct. at 1548 (plaintiff must show that she “personally has suffered some
actual or threatened injury” (emphasis added) (citation omitted)).
11
See also Fulani v. Brady, 935 F.2d 1324, 1330 (D.C. Cir. 1991) (“[T]his Court has denied standing where
the plaintiff seeks to change the defendant’s behavior only as a means to alter the conduct of a third party, not before
the court, who is the direct source of the plaintiff’s injury.” (citation, internal quotation marks, and emphasis omitted)).
16
“substantial evidence of a causal relationship between the government policy and the third-party
conduct, leaving little doubt as to causation and the likelihood of redress.” Arpaio, 797 F.3d at 20
(quoting Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004)).
In other words, Menoken must show that “absent the [OSC’s] allegedly unlawful actions” there is
a “substantial probability” that she would “not be injured.” Chamber of Commerce v. EPA, 642
F.3d 192, 201 (D.C. Cir. 2011) (citation omitted); Welborn v. IRS, 218 F. Supp. 3d 64, 78 (D.D.C.
2016). She has not done so.
Menoken does not allege anywhere in her Amended Petition that OSC’s failure to comply
with § 1213 in processing her disclosure caused her to suffer any actual injuries. Rather, she
expressly attributes her alleged injuries to actions by OPM and EEOC, two third-parties not now
before the Court. See, e.g., Am. Pet. ¶ 18 (“OPM never complied with the Menoken Order, and,
indeed, repeatedly violated it (and thus Title VII) by continuing to use, and rely on, the unlawful
scoring factor for years after being ordered to ‘cease.’” (emphasis in original)); id. ¶ 19 (“EEOC
abused its authority by blatantly refusing to enforce the Menoken Order . . . .”); id. ¶ 23 (“The
Disclosure described an extraordinary pattern of wrongdoing, committed by OPM and EEOC . . .
.” (emphasis added)). The entire section of the Amended Petition describing the “historical context
of the wrongdoing in question,” id. ¶¶ 7–22, only identifies harm caused by OPM and EEOC, not
by OSC. Even accepting that Menoken suffers ongoing harm, she merely alleges that OSC failed
to comply with the requirements of § 1213, but she does not attempt to plead any facts tracing
OSC’s noncompliance to any ongoing harm she suffers. Hence, she has failed to clearly allege
facts demonstrating the causation element required for standing.
17
C. Redressability
OSC finally argues that Menoken fails to show a “likelihood that the injury will be
redressed by a favorable decision on the merits.” Freedom Republicans, Inc. v. FEC, 13 F.3d 412,
415 (D.C. Cir. 1994) (citing Lujan, 504 U.S. at 561); Def.’s Mot. to Dismiss at 20. To do so,
Menoken must offer “more than a bald allegation” of redressability and instead allege facts
“sufficient to demonstrate a substantial likelihood that the third party directly injuring the plaintiff
would cease doing so as a result of the relief the plaintiff [seeks].” Renal Physicians Ass’n v. U.S.
Dep’t of Health & Human Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007). If a plaintiff relies on a
“chain of allegations,” the court “may reject as overly speculative those links which are predictions
of future events (especially future actions to be taken by third parties).” Arpaio, 797 F.3d at 21
(quoting United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C. Cir. 1989)).
Nowhere does Menoken allege that the relief she seeks will provide her with any remedial
benefit. Nor can the Court “confidently predict any causal connection between a possible judicial
response and the redress of” Menoken’s injuries. Freedom Republicans, 13 F.3d at 419. Menoken
seeks an order “compelling [OSC] . . . to reopen [her] Disclosure for expedited processing in a
manner that fully accords with the letter and spirit of every applicable provision in § 1213.” Am.
Pet. at 10. If this Court were to rule for Menoken and grant the requested relief, her alleged injuries
would be redressed only if: (1) OSC made a positive determination of wrongdoing and forwarded
the disclosure to the agency heads; (2) OPM and EEOC prepared reports at odds with their
consistently held positions, and the earlier holding of this court and the D.C. Circuit, finding no
evidence of noncompliance; (3) those reports resulted in some change to the ALJ examination
results and selection process; and (4) that change would remedy Menoken’s alleged injuries. 12 But
12
OSC is not authorized to itself investigate any wrongdoing in a § 1213 disclosure; rather, it can only refer
a disclosure to an agency and require an investigation and report by that agency. See 5 U.S.C. § 1213(c).
18
because this chain of events is entirely speculative, Menoken has not plausibly alleged a substantial
likelihood that her injuries will actually be remedied by the Court’s action. See Bernstein, 962 F.
Supp. 2d at 129 (“It must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” (internal quotation marks omitted) (quoting Lujan, 504 U.S. at
561)). In her opposition, Menoken argues that “[i]n a political environment currently focused on
‘draining the swamp’ in government, the Court should not assume that granting [her] relief in this
action will not advance important policy goals or otherwise have meaningful effect.” Pl.’s Opp’n
at 5 (emphasis added). But the burden is on Menoken to plausibly allege a likelihood that granting
her requested relief will remedy her injuries. She has not done so in this case; thus, on the record
here she has failed to establish the redressability element required for standing. 13
CONCLUSION
In sum, Menoken has not shown injury, causation, or redressability. She thus has no
standing, and her suit will be dismissed for a lack of subject matter jurisdiction. The Court need
not address OSC’s alternative grounds for dismissal. A separate Order accompanies this
Memorandum Opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: September 14, 2017
Thereafter, OSC must review the agency’s report for reasonableness, and it may provide comments and
recommendations of its own. Id. § 1213(e).
13
Menoken also cites Weber v. United States, 209 F.3d 756 (D.C. Cir. 2000), for the proposition that the
Court has jurisdiction to entertain this action. Pl.’s Opp’n at 4. In Weber, the plaintiff filed a complaint pursuant to
5 U.S.C. § 1214 with OSC for a prohibited personnel practice—the Army’s alleged revocation of his security clearance
in retaliation for his whistleblowing—and OSC declined to investigate his complaint under § 1214. 209 F.3d at 757–
58. The D.C. Circuit concluded that a district court has subject matter jurisdiction to issue a writ of mandamus against
OSC if it determines that OSC violated a non-discretionary statutory duty to investigate allegations of a prohibited
personnel practice under § 1214. Id. at 759. Weber did not involve the question whether the plaintiff had sufficiently
pled the elements of Article III standing.
19