Abou-Hussein v. Mabus

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
HAMDY ALEX ABOU-HUSSEIN, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0913 (RBW)
)
RAYMOND EDWIN MABUS, JR. )
Secretary, United States Department )
of Navy, and )
)
NAVAL CRIMINAL INVESTIGATIVE )
SERVICES )
Unknown Agents, )
)
)
Defendants. )
____________________________________ )
MEMORANDUM OPINION
Plaintiff Hamdy Alex Abou-Hussein, proceeding pro se, filed this action seeking relief
for the alleged actions of his employer, the Department of the Navy, see Complaint (“Compl.”)
¶¶ 56–61, and unknown agents of the Naval Criminal Investigative Services (“NCIS”), see id. at
1 (listing unknown NCIS agents in the caption). Currently before the Court is Defendant
Raymond Edwin Mabus, Jr.’s (“the Secretary”) motion to dismiss this case pursuant to various
provisions of Federal Rule of Civil Procedure 12(b) or, in the alternative, for summary
judgment. 1 Motion to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Mot.”) at
1
Although the Secretary moves to dismiss the complaint in its entirety, the Secretary’s motion is filed on his behalf
alone, and does not address the claim or claims asserted against the unknown NCIS agents. See Motion to Dismiss
or, in the Alternative, for Summary Judgment at 1. Moreover, no appearance has been entered on behalf of the
unknown NCIS agents also named as defendants in this matter. See ECF No. 4 at 1 (entering an appearance “as
counsel of record for defendant Ray Mabus, Secretary, Department of the Navy”). The Court therefore does not
(continued . . . )
1
1. After carefully considering the plaintiff’s complaint, the Secretary’s motion to dismiss, and
all memoranda of law relating to that motion, 2 the Court concludes for the reasons that follow
that it must grant in part and deny in part the Secretary’s motion to dismiss the claims against
him.
I. BACKGROUND
The following factual allegations are taken from the plaintiff’s complaint, and are
accepted as true for the purpose of resolving the Secretary’s motion as required by Federal Rule
of Civil Procedure 12(b). The plaintiff began working for his current employer, the Space and
Naval Warfare Systems Command (“Command”) in Charleston, South Carolina, in September
2005. Compl. ¶¶ 1, 30. After settling an Equal Employment Opportunity Commission
complaint against the Command in 2007, id. ¶ 37, the plaintiff was falsely accused of sexual
harassment, id. ¶ 39, and was subjected to repeated “false espionage and terrorism allegations,”
id. ¶ 37, “based on his Arabic national origin,” id. ¶ 57. During this time, the plaintiff “began to
piece the puzzle together” of rampant contract fraud within the Command. Id. ¶ 40. After his
supervisors noticed that he had begun “collecting financial and contracting information” showing
the fraudulent conduct within the Command, members of the Command “humiliated him
unceasingly with busy work, refused to fund his training, tried to have him shipped to combat
zones for a year deployment away from Habeas Corpus, and [made] snide remarks behind his
( . . . continued)
treat the motion as filed on behalf of the other defendants referenced in the complaint.
2
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Secretary’s Memorandum of Points and Authorities in Support of Motion to Dismiss or, in the
Alternative, for Summary Judgment (“Def.’s Mem.”); (2) the Plaintiff’s Response in Opposition to Defen[]dants’
Motion to Dismiss, or in the Alternative, for a Summary Judgment (“Pl.’s Opp’n”); and (3) the Reply in Support of
Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Reply”).
2
back,” id., eventually culminating in his transfer to the Command’s facility in San Diego, id. ¶
47, and a requirement that he obtain a higher-level security clearance for the purpose of
“disqualify[ing] [him] from federal service,” id. ¶ 50. Following these events, the plaintiff
travelled to the District of Columbia, where he “hand-carried an appeal for redress to all
members of the Senate and House Armed Services Committees.” Id. ¶ 51.
In May 2008, the plaintiff filed a complaint with the Office of Special Counsel, which
resulted in him being subjected to “intimidating death threats, humiliation, discrimination, and a
conspiracy that needs a much longer complaint to detail,” including an unfounded criminal
investigation by the NCIS. Id. ¶ 55. He subsequently filed actions in the United States District
Court for the District of South Carolina against the Command under the False Claims Act and
the Freedom of Information Act (“FOIA”). Id. ¶ 55. Beginning in 2009, the plaintiff also
“repeatedly filed [m]ixed-[c]ase appeals with the Merit Systems Protection Board [(“MSPB”)] . .
. alleging contract fraud, conspiracy death threats, and retaliatory discrimination on account of
his Arab origin and in retaliation for his whistleblowing.” Id. ¶ 8. The plaintiff received final
decisions on two of his appeals from the MSPB in December 2010 and on April 4, 2012. Id. ¶¶
12–13. A third appeal is currently pending before the MSPB. Pl.’s Opp’n at 15.
The plaintiff filed this action on June 5, 2012, alleging discrimination based on his
national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2
(2006), Compl. ¶¶ 56–57, retaliation resulting from his whistleblowing activity in violation of
the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (2006), Compl. ¶¶ 58–59, and
retaliation resulting from the previous suits he filed against his employer under the False Claims
Act, 31 U.S.C. § 3730(h) (2006), Compl. ¶¶ 60–61, for which he seeks an array of remedies, id.at pp. 19–20. The plaintiff also requests the Court to issue an order to the United States
3
Department of Justice’s Office of Information Policy “to publish an update on [its] website”
regarding the plaintiff’s previous suit against the defendant under the FOIA. Id. at 20.
The Secretary seeks dismissal of this action pursuant to Federal Rules of Civil Procedure
12(b)(1), (2), (3), (4), (5), and (6). Def.’s Mot. at 1. Alternatively, the Secretary requests
summary judgment pursuant to Federal Rule of Civil Procedure 56. Id. The plaintiff opposes
the Secretary’s motion, and indicates that he is also bringing claims pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for declaratory
relief, Pl.’s Opp’n at 1, 4–5, and the Racketeer Influenced and Corrupt Organizations (“RICO”)
Act, 18 U.S.C. § 1964 (2006), Pl.’s Opp’n at 8–13. For the reasons explained below, the Court
concludes that the Secretary is entitled to either dismissal or transfer under Rules 12(b)(1), (3),
and (6), and that his motion can be resolved without consideration of the additional exhibits
attached to the Secretary’s motion. 3
II. STANDARDS OF REVIEW
A. Motion to Dismiss Under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) “presents a threshold challenge to the [C]ourt’s
jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). When reviewing such a
motion, the Court must “assume the truth of all material factual allegations in the complaint and
3
Although the Secretary moved alternatively for summary judgment, he did not provide notice to the plaintiff of the
requirements for opposing a summary judgment motion as required by Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992).
The Secretary noted this error in his reply, but contends that the plaintiff had notice of the requirements from his
involvement in prior litigation. Def.’s Reply at 4 n.2. Despite this possibility, when government counsel fails to
provide the required notice under Neal, the district court must do so. Neal, 963 F.2d at 457. Nonetheless, because
of the Court’s disposition of the motion under Rule 12(b), the Court did not need to provide such notice to the
plaintiff. Cf. Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 361 (D.C. Cir. 1982) (holding that district
court’s consideration of matters outside of the pleadings on motion under Rule 12(b)(6) without providing the
parties with notice of its intent to do so and opportunity to submit additional documents may be upheld “only if it
meets the stringent standard for dismissal without regard to matters outside the pleadings”).
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‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be
derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (citation omitted). However, because “[f]ederal courts are courts of limited jurisdiction,”
it is “presumed that a cause lies outside [their] limited jurisdiction,” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994), and “the [p]laintiff bears the burden of establishing
by a preponderance of the evidence that the Court possesses jurisdiction,” Hollingsworth v. Duff,
444 F. Supp. 2d 61, 63 (D.D.C. 2006). Accordingly, the “‘[p]laintiff’s factual allegations in the
complaint . . . 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.” Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (quoting 5A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Finally, in determining whether it
has jurisdiction, the Court “may consider materials outside of the pleadings.” Jerome Stevens
Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
B. Motion to Dismiss Under Rule 12(b)(3)
In considering a motion to dismiss for lack of proper venue under Rule 12(b)(3), “the
Court accepts the plaintiff[’s] well-pled factual allegations regarding venue as true, draws all
reasonable inferences from those allegations in the plaintiff[’s] favor, and . . . resolves any
factual conflicts in the plaintiff[’s] favor.” Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 8
(D.D.C. 2003) (internal quotation marks and citation omitted); see also 2215 Fifth St. Assocs. v.
U-Haul Int’l, Inc., 148 F. Supp. 2d 50, 54 (D.D.C. 2001) (stating that courts will grant a 12(b)(3)
motion if “facts [are] presented that . . . defeat [the] plaintiff’s assertion of venue”) (citation
omitted). “Because it is the plaintiff’s obligation to institute the action in a permissible forum,
the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. Fallin,
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254 F. Supp. 2d 52, 56 (D.D.C. 2003) (citations omitted).
C. Motion to Dismiss Under Rule 12(b)(6)
A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint “state[s] a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to
dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In making this
assessment, a plaintiff receives the “benefit of all inferences that can be derived from the facts
alleged,” Am. Nat’l Ins. Co., 642 F.3d at 1139 (internal quotation marks and citation omitted),
and the Court “may consider only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial
notice,” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)
(footnote omitted). But raising a “sheer possibility that a defendant has acted unlawfully” fails to
satisfy the facial plausibility requirement. Iqbal, 556 U.S. at 678. Rather, a claim is facially
plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). While the Court must accept the plaintiff’s factual allegations as true, any conclusory
allegations are not entitled to an assumption of truth, and even those allegations pleaded with
factual support need only be accepted to the extent that “they plausibly give rise to an entitlement
to relief.” Id. at 679.
D. Treatment of Pro Se Pleadings
The pleadings of pro se litigants are to be “liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
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by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations and
quotation marks omitted). However, even though a pro se complaint must be construed liberally,
the complaint must still “present a claim on which the Court can grant relief.” Chandler v.
Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308
(D.C. Cir. 1981)).
III. ANALYSIS
A. The Plaintiff’s Discrimination Claim
The Secretary contends that the plaintiff’s discrimination claim must be dismissed
because venue in this Court is improper. Def.’s Mem. at 7–9. Claims of discrimination under
Title VII may be brought where “the unlawful employment practice is alleged to have been
committed, . . . the employment records relevant to such practice are maintained and
administered, . . . [or where] the aggrieved person would have worked but for the alleged
unlawful employment practice.” 42 U.S.C. § 2000e-5(f)(3). If the defendant cannot be brought
before the court in any of the three preceding districts, the action may be brought where “the
respondent has his principal office.” Id. The Court agrees with the Secretary’s position that
venue is improper in this district.
This district is neither the location of the alleged discrimination nor the district in which
the plaintiff would have worked but for the alleged discrimination. The facts underlying the
plaintiff’s discrimination claim occurred in Charleston, South Carolina, Tampa, Florida, and San
Diego, California, the three locations where the plaintiff was employed while the alleged
discrimination occurred. See Compl. ¶¶ 38–50, 55; see also Pl.’s Opp’n, Exhibit (“Ex.”) C
(Affidavit in Rebuttal of Defendants’ Statement of Material Facts (“Pl.’s Aff.”)) ¶ 10 (stating that
the plaintiff has worked at Command facilities in Charleston, Tampa, and San Diego). The
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plaintiff continues to work for the Command in Charleston. See Compl. ¶¶ 1, 14. Indeed, the
only allegation in the complaint relating to this forum is that the plaintiff drove to the District of
Columbia in order to hand-deliver “an appeal for redress to all members of the Senate and House
Armed Services Committee.” Id. ¶ 51. Because the Secretary could have been brought before
the courts in the districts where the alleged discrimination occurred under the first provision of §
2000e-5(f)(3), the plaintiff cannot avail himself of the provision permitting suit in the district
where the defendant has his principal office. See § 2000e-5(f)(3) (“if the respondent is not found
within any such district, [i.e., a district where the alleged discrimination occurred,] such an
action may be brought within the judicial district in which the respondent has his principal
office” (emphasis added)); Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100, 1102
(D.C. Cir. 1969).
The plaintiff chiefly relies on the second provision of § 2000e-5(f)(3) as grounds for
venue in this district, arguing that venue is proper here because the “[f]ederal government moved
storage to computers’ clouds, which does not leave a physical street address.” Pl.’s Opp’n, Ex. C
(Pl.’s Aff.) ¶ 12. The electronic accessibility of documents in this district does not satisfy §
2000e-5(f)(3)’s second provision, which permits a case to be brought “in the judicial district in
which the employment records relevant to such practice are maintained and administered,” §
2000e-5(f)(3), because the statute contemplates venue in the single judicial district where the
records are “maintained and administered,” not “wherever records could be accessed,” Khalil v.
L-3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 136 (D.D.C. 2009) (venue is proper “where the
complete master set of Plaintiff’s relevant employment records are maintained and administered,
not merely where any records happen to be located”) (citation and quotation marks omitted)).
The plaintiff has therefore failed to meet his burden to establish that venue is proper in this
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district.
This conclusion does not end the Court’s inquiry, however. Under 28 U.S.C. § 1406, a
district court which finds that a plaintiff has filed a case in the wrong venue “shall dismiss, or if
it be in the interest of justice, transfer such case to any district or division in which it could have
been brought.” 28 U.S.C. § 1406(a) (2006). The decision whether to transfer or dismiss a case
is committed to the discretion of the district court where a suit was improperly filed. Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Although a district court may
dismiss a case if the plaintiff’s claim suffers from obvious substantive defects, see Buchanan v.
Manley, 145 F.3d 386, 389 n.6 (D.C. Cir. 1998); Naartex Consulting Corp., 722 F.2d at 789, the
interest of justice generally favors transferring a case, particularly when a plaintiff is proceeding
pro se, James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 15 (D.D.C. 2009). In determining
whether transfer as opposed to dismissal is appropriate, a court must “decide as a preliminary
matter that venue and jurisdiction would be proper as to all defendants” in the district where the
case would be transferred. Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228,
1230 (D.C. Cir. 1981).
The Secretary argues that the plaintiff’s Title VII claim must be dismissed because the
plaintiff has failed to exhaust his administrative remedies prior to bringing suit in federal court,
which, he contends, deprives any district court of jurisdiction over the claim. See Def.’s Mem. at
9–15. In order to bring a discrimination claim in district court under Title VII, a plaintiff must
first timely exhaust his administrative remedies. Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir.
2010). A federal employee may accomplish administrative exhaustion of his Title VII claim by
either filing a complaint with the agency’s Equal Employment Opportunity office or by
administratively filing a “mixed case appeal,” which includes both discrimination and non-
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discrimination claims, directly with the MSPB. Butler v. West, 164 F.3d 634, 638 & n.6 (D.C.
Cir. 1999). The plaintiff argues that he exhausted his administrative remedies through the latter
route. See Compl. ¶ 8; Pl.’s Opp’n at 7–8 (“Plaintiff exhausted [d]iscrimination and
Whistleblower Protection Act . . . administrative process at the [MSPB] . . . in four mixed-case
appeals starting April 2009.”).
As the defendant correctly points out, however, the plaintiff’s appeals before the MSPB
are not properly characterized as “mixed case appeals.” Def.’s Mem. at 10–12. Under 5 U.S.C.
§ 7702, a mixed case is one in which the employee “has been affected by an action which the
employee . . . may appeal to the [MSPB], and alleges that a basis for the action was
discrimination prohibited by” Title VII, among other statutes. § 7702(a)(1). An employee may
appeal only five types of employment actions directly to the MSPB: (1) removal, (2) suspension
for more than fourteen days, (3) reduction in grade, (4) reduction in pay, and (5) a furlough of
thirty days or less. § 7512. Thus, in order to bring a mixed case appeal before the MSPB, and
thus to exhaust his administrative remedies through a mixed case appeal, a plaintiff must allege
that the defendant has taken one of the five designated actions against him and that “a basis for
the action was discrimination” in violation of Title VII. 4 See Cruz v. Dep’t of the Navy, 934
F.2d 1240, 1243–46 (Fed. Cir. 1991) (en banc); Dews-Miller v. Clinton, 707 F. Supp. 2d 28, 44–
45 (D.D.C. 2010); Greenhouse v. Geren, 574 F. Supp. 2d 57, 65–67 (D.D.C. 2008); Marren v.
DOJ, 51 M.S.P.R. 632, 638–40 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992). As far as the Court
can discern from the convoluted allegations in his complaint, none of these enumerated
4
This conclusion is not altered by the Supreme Court’s recent decision in Kloeckner v. Solis, __ U.S. __, 133 S.Ct.
596 (2012), which was issued while this motion was being briefed. Kloeckner is inapplicable because, as the
Supreme Court noted, “[n]o one here contests that Kloeckner brought a mixed case—that she was affected by an
action (i.e., removal) appealable to the MSPB and that she alleged discrimination prohibited by an enumerated
federal law.” __ U.S. at __, 133 S.Ct. at 604 (emphasis added).
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employment actions have been taken against the plaintiff. Consequently, the plaintiff has not
properly filed a mixed case appeal with the MSPB, and therefore, has not exhausted his Title VII
administrative remedies.
Contrary to the Secretary’s assertion, however, the failure to exhaust administrative
remedies does not pose a jurisdictional bar to the plaintiff’s claim under Title VII, Artis v.
Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011) (“Title VII’s exhaustion requirements are
not jurisdictional”), and thus the failure to exhaust is not appropriately resolved on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(1), Hamilton v. Geithner, 743 F. Supp. 2d
1, 7–8 (D.D.C. 2010) (Walton, J.), aff’d, 666 F.3d 1344 (D.C. Cir. 2012). Because the failure to
exhaust here is not jurisdictional, determinations regarding the effect of the plaintiff’s failure to
exhaust are best made by a court where venue is proper, particularly because supplemental
briefing on the issue may be necessary. Cf. Ebron v. Dep’t of Army, 766 F. Supp. 2d 54, 58
(D.D.C. 2011) (declining to determine whether the plaintiff exhausted her administrative
remedies because the case was not properly before the court). The same is true with respect to
the Secretary’s arguments regarding the applicability of res judicata to this case. At least some
of the allegations included in the complaint occurred well after the plaintiff instituted an earlier
case, Abou-Hussein v. Gates, No. 08-783 (D.D.C.), see, e.g., Compl. ¶ 55 (including various
allegations occurring in the summer and fall of 2009, shortly before a decision was rendered on
September 25, 2009, in the plaintiff’s earlier case, 657 F. Supp. 2d 77 (D.D.C. 2009) (Leon, J.)),
but because the plaintiff does not identify which factual allegations relate to his Title VII claim,
this Court would require supplemental briefing on the applicability of res judicata to properly
assess the issue. Therefore, the Secretary’s arguments regarding res judicata are best resolved by
the transferee court. See, e.g., Spaeth v. Mich. State Univ. Coll. of Law, 845 F. Supp. 2d 48, 52–
11
53 (D.D.C. 2012) (“Defendants’ Rule 12(b)(1) and Rule 12(b)(6) arguments are best addressed
by the courts where [the plaintiff] should have brought his claims.”).
The Court therefore concludes that it is in the interest of justice to transfer this case to the
United States District Court for the District of South Carolina. As the Secretary suggests, venue
would be proper in that district because the alleged discrimination occurred primarily, if not
entirely, at the Charleston Command facility, see Def.’s Mem. at 8, and that court can exercise
personal jurisdiction over the Secretary, who is sued in his official capacity, Cameron v.
Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993) (citing 28 U.S.C. § 1391(e)). Moreover,
transfer, rather than dismissal, will allow this case to proceed expeditiously to resolution without
the delay and expense that would be occasioned by requiring the pro se plaintiff to re-file his
discrimination claim in another court.
B. The Plaintiff’s Whistleblower Protection Act Claim
The Secretary also contends that the plaintiff’s Whistleblower Protection Act (“WPA”)
claim must be dismissed because he did not properly pursue a mixed case appeal before the
MSPB, and thus cannot invoke this Court’s jurisdiction under 5 U.S.C. § 7703 over this claim
either. Def.’s Mem. at 16–17. A federal court lacks jurisdiction over a WPA claim if it was not
first brought before the MSPB by either the Office of Special Counsel or by the employee
himself if the Office of Special Counsel declines to act on his behalf. Stella v. Mineta, 284 F.3d
135, 142 (D.C. Cir. 2002) (citing 5 U.S.C. §§ 1221, 1214). Judicial review of the MSPB’s
decision may then be sought in the United States Court of Appeals for the Federal Circuit. Id.(citing § 7703(b)(1)).
The plaintiff contends that this Court has jurisdiction over his WPA claim because he
pursued mixed case appeals before the MSPB, in which he raised both discrimination and
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whistleblowing claims. See Compl. ¶ 8. Under § 7703, judicial review of a mixed case appeal
properly filed under the provisions of § 7702 may be sought in any district court. See §
7703(b)(2); Stella, 284 F.3d at 143 (“where the MSPB decides a case combining discrimination
and non-discrimination claims, the [d]istrict [c]ourt takes jurisdiction over appeals from both
determinations” (citation omitted)). As explained above, however, the plaintiff did not properly
file a mixed case appeal before the MSPB under § 7702, and therefore, this Court cannot
exercise jurisdiction over his WPA claim under § 7703(b)(2). The only proper forum for judicial
review of the plaintiff’s WPA claim is the Court of Appeals for the Federal Circuit. See §
7703(b)(1). And transfer of the plaintiff’s claim to the Federal Circuit pursuant to 28 U.S.C. §
1631 is not warranted because under § 7703(b)(1), the plaintiff was required to institute suit
“within 60 days after the Board issues notice of the final order or decision of the Board.” §
7703(b)(1)(A). The plaintiff did not commence this action until June 5, 2012, sixty-two days
after he received a final decision from the MSPB on April 4, 2012. See Compl. ¶ 13. The
statutory time limit contained in § 7703(b)(1) is jurisdictional, and thus cannot be extended for
any reason. King v. Dole, 782 F.2d 274, 275–76 (D.C. Cir. 1986).
In his opposition to the defendant’s motion, the plaintiff argues that the Court should
consider his suit to be timely filed because his currently-pending MSPB case has been pending
for more than five hundred days, and thus “is constructively denied.” Pl.’s Opp’n at 16. Unlike
actions under § 7702, however, there is no statutory time limit by which the MSPB must act with
respect to WPA claims, compare 5 U.S.C. § 1221 (providing that “[a] final order or decision
shall be rendered by the [MSPB] as soon as practicable”), with § 7702(a)(1) (requiring the
MSPB take action within 120 days of filing appeal), and thus there is no basis for this Court to
deem the plaintiff’s pending appeal before the MSPB “constructively denied.” Accordingly, the
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plaintiff’s WPA claim must be dismissed because this Court, and indeed, any federal district
court, lacks subject matter jurisdiction over it, and the plaintiff’s untimely filing deprives the
Federal Circuit of jurisdiction over it as well. 5
C. The Plaintiff’s RICO Claim
Although his complaint indicates that his second claim is brought pursuant to the WPA
and 18 U.S.C. § 1513, see Compl. ¶ 59, the plaintiff represents in his opposition to the motion to
dismiss that his second claim, and for that matter this entire suit, is brought under the RICO Act,
Pl.’s Opp’n at 8, 11–13. “Sovereign immunity bars suits . . . for money damages against the
government itself, and against public officials sued in their official capacities.” Konarski v.
Brown, No. 03-5340, 2004 WL 1249346, at *1 (D.C. Cir. June 7, 2004) (per curiam) (citation
omitted). Any waiver of sovereign immunity must be clear and unequivocal. United States v.
Mitchell, 445 U.S. 535, 538 (citation omitted). The complaint indicates that the plaintiff has
brought suit against the Secretary in his official capacity, see Compl. ¶ 15 (“Defendant, Ray
Mabus, is Secretary of the Navy . . . and in that capacity is the chief executive officer of the
Department of the Navy” (emphasis added and original emphasis omitted)), and therefore, the
claim requires a waiver of sovereign immunity by the defendant. No such waiver authorizing
treble damages for claims brought under the RICO Act has been executed by the United States. 6
Norris v. Dep’t of Defense, No. 96-5326, 1997 WL 362495, at *1 (D.C. Cir. May 5, 1997).
5
Count II of the plaintiff’s complaint also includes a citation to 18 U.S.C. § 1513, which is a criminal statute
prohibiting retaliation against witnesses, victims, or informants. No private cause of action is recognized under this
statute. Shahin v. Darling, 606 F. Supp. 2d 525, 538 (D. Del. 2009), aff’d, 350 F. App’x 605 (3d Cir. 2009).
Accordingly, to the extent that the plaintiff intends to raise a claim pursuant to § 1513, such a claim cannot be
maintained.
6
Although the Secretary does not raise the defense of sovereign immunity to a RICO claim, sovereign immunity is
jurisdictional in nature, and therefore, the Court raises it sua sponte. In re Al Fayed, 91 F. Supp. 2d 137, 138
(D.D.C. 2000) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)), aff’d, 229 F.3d 272 (D.C. Cir. 2000).
14
The plaintiff’s repeated characterization of himself as a “private attorney general,” Pl.’s
Opp’n at 11–13, who represents “the citizens[’] class with public interest in fighting organized
crime,” id. at 13, does not alter this conclusion. The Court finds no support for the proposition
that the United States has waived its sovereign immunity whenever a putative RICO plaintiff
brings a claim in furtherance of the public interest. None of the cases cited by the plaintiff in
support of his status as a “private attorney general” indicate that sovereign immunity is
inapplicable when a plaintiff seeks relief that will purportedly benefit society at large. See
Rotella v. Wood, 528 U.S. 549, 557–58 (2000) (discussing the purpose of the RICO Act in
determining when RICO cause of action accrues); Agency Holding Corp. v. Malley-Duff &
Assocs., 483 U.S. 143, 151 (1987) (discussing the purpose of the RICO Act in determining
applicable statute of limitations). Rather, “[a] waiver of sovereign immunity cannot be implied
but must be unequivocally expressed.” Mitchell, 445 U.S. at 538 (citation and quotation marks
omitted). And as just discussed, Congress did not waive the United States’ sovereign immunity
for suits for treble damages under the RICO Act. Accordingly, to the extent that the plaintiff
brings a claim against the Secretary under the RICO Act, regardless of whether he purports to
represent only himself or the public at large, the claim must be dismissed for lack of jurisdiction.
D. False Claims Act Claim
The Secretary argues that the plaintiff’s claim under § 3730(h) of the False Claims Act
must also be dismissed because sovereign immunity has not been waived for claims under §
3730(h). Def.’s Mem. at 18–19. The Court agrees that a claim under § 3730(h) against the
Secretary in his official capacity is barred by sovereign immunity. See Galvan v. Fed. Prison
Indus., Inc., 199 F.3d 461, 467–68 (D.C. Cir. 1999).
In his opposition, the plaintiff contends that his claim was brought against the Secretary
15
in an individual capacity, and that he has effected service on the Secretary accordingly. Pl.’s
Opp’n at 7. Although the Secretary disputes that he was properly served in an individual
capacity, Def.’s Mem. at 18 n.6; Def.’s Reply at 6, the Court need not resolve this dispute
because even if the Secretary was properly served as an individual, the plaintiff’s claim is
nonetheless deficient. The whistleblower protections contained in the Civil Service Reform Act
constitute the exclusive set of statutory remedies for federal employees who allege retaliation
resulting from whistleblowing activity. LeBlanc v. United States, 50 F.3d 1025, 1029–30 (Fed.
Cir. 1995) (concluding that Congress did not intend to create a remedy in addition to those
included in the Civil Service Reform Act without statutory language to that effect and in light of
the comprehensiveness of the Act); Gibbs v. United States, 865 F. Supp. 2d 1127, 1139–40
(M.D. Fla. 2012) (same); Harris v. Bodman, 538 F. Supp 2d 78, 82 (D.D.C. 2008) (same)
(citations omitted). And given the existence of a remedy for the alleged conduct in the Civil
Service Reform Act, a suit against the Secretary in his individual capacity pursuant to Bivens is
not warranted. 7 See Daly v. Dep’t of Energy, 741 F. Supp. 202, 205 (D. Colo. 1990).
Accordingly, the plaintiff’s claim under § 3730(h) of the False Claims Act must be dismissed. 8
7
The plaintiff relies heavily on Samuel v. Holmes, 138 F.3d 173 (5th Cir. 1998), to support his argument that the
Secretary cannot assert immunity as a defense. Here, the Secretary invokes the doctrine of sovereign immunity, see
Def.’s Mem. at 18–19, whereas Samuel addressed qualified immunity, see Samuel, 138 F.3d at 178. Whether the
Secretary has qualified immunity for his actions would be relevant if the plaintiff could proceed with a claim under §
3730(h) against the Secretary in his individual capacity. As indicated, however, a Bivens claim under § 3730(h) is
not appropriate because of the existence of a comprehensive alternative remedy for the alleged injury in the Civil
Service Reform Act. Samuel does not alter this conclusion because, unlike the plaintiff in Samuel, who was an
employee of a local school district, the plaintiff here is a federal employee whose allegations can be redressed by the
remedial scheme created by the Civil Service Reform Act. See Samuel, 138 F.3d at 175.
8
Because the Court concludes that the plaintiff cannot proceed with a claim under § 3730(h) against the Secretary in
either his official or individual capacity, the Court need not address the plaintiff’s arguments regarding the merits of
his claim, including “the motive to retaliate” allegedly created by the plaintiff’s earlier False Claims Act suits. See
Pl.’s Opp’n at 8.
16
E. Injunctive Relief
In addition to the three enumerated claims in the complaint, 9 the plaintiff also seeks an
“[o]rder [from the Court] to [the] Department of Justice[’s] (“DOJ”) Office of Information
Policy . . . to publish an update on [its] website that DOJ has recently litigated the [f]undamental
[q]uestion” referenced in McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d
1182 (D.C. Cir. 2004). Compl. ¶ 1 (emphasis removed). The plaintiff characterizes this
requested relief as either “a Bivens claim not seeking monetary damages,” id. ¶¶ 3, 13; Pl.’s
Opp’n at 3–5, or as a RICO claim, Pl.’s Opp’n at 2, 3–5. As noted earlier in this opinion, the
plaintiff cannot bring a RICO claim against the United States government. The requested relief
is also not properly sought as a Bivens claim, which is “an action against a federal officer
seeking damages for violations of the plaintiff’s constitutional rights” brought “against federal
officers in their individual capacity, not their official capacity.” Simpkins v. Dist. of Columbia
Gov’t, 108 F.3d 366, 368 (D.C. Cir. 1997). Because the plaintiff seeks injunctive relief, which
can be enforced only against a federal agency, and not damages against an individual federal
officer for the alleged violation of the plaintiff’s constitutional rights, Bivens does not provide
the plaintiff an avenue for the relief he seeks. See Fletcher v. Dist. of Columbia, 481 F. Supp. 2d
156, 164 (D.D.C. 2007), vacated in part on other grounds, 550 F. Supp. 2d 30 (D.D.C. 2008);
Hatfill v. Gonzales, 519 F. Supp. 2d 13, 23–24 (D.D.C. 2007) (“Regardless of the manner by
which a plaintiff designates the action, a suit should be regarded as an official-capacity suit . . .
9
The plaintiff makes a solitary reference to the Notification and Federal Employee Anti-Discrimination and
Retaliation Act of 2002, 5 U.S.C. § 2301 note (2006), in his complaint, see Compl. ¶ 3, but does not include it as an
enumerated claim and makes no reference to a claim under this Act in his response to the Secretary’s motion, see
Pl.’s Opp’n at 8 (sole mention of the Act is in reference to a citation in the defendant’s motion). To the extent that
the plaintiff seeks to bring a claim under the Act, such a claim must be dismissed because the Act does not create a
private right of action. See Glaude v. United States, 248 F. App’x 175, 177 (Fed. Cir. 2007); Williams v. Spencer,
883 F. Supp. 2d 165, 182 (D.D.C. 2012).
17
when . . . the effect of the judgment would be to restrain the Government from acting, or to
compel it to act.” (citation and quotation marks omitted)); see also Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 74 (2001) (noting that availability of injunctive relief made extension of
Bivens to private entities inappropriate and that “unlike the Bivens remedy, which we have never
considered a proper vehicle for altering an entity’s policy, injunctive relief has long been
recognized as the proper means for preventing entities from acting unconstitutionally” (emphasis
added)).
In any event, the Court cannot grant the relief requested by the plaintiff for an even
simpler reason: the plaintiff has not named the Department of Justice as a defendant in this suit
or properly served that agency. See Compl. ¶¶ 14–15 (listing the plaintiff and defendants
Raymond Edwin Mabus and unknown NCIS agents as the only parties to this suit). And as the
Secretary rightly notes, Def.’s Mem. at 23–24, this Court cannot assert personal jurisdiction over
an entity that has not been properly served. Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
514 (D.C. Cir. 2002) (“Even if there are sufficient contacts for a court to assert personal
jurisdiction over a defendant, it lacks the power to do so unless the procedural requirements of
effective service of process are satisfied.”) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff &
Co., Ltd., 484 U.S. 97, 104 (1987)).
Although the plaintiff suggests that he could amend his complaint to include the
Department of Justice as a defendant in order to cure this deficiency, see Pl.’s Opp’n at 5, the
plaintiff has also failed to demonstrate that he has standing to bring a claim challenging what the
Department of Justice chooses to publish on its website. “[T]o satisfy Article III’s standing
requirements, a plaintiff must show (1) [he] has suffered an ‘injury in fact’ that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is
18
fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Friends of the
Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). Even under the
broadest reading of the plaintiff’s filings, he has failed to demonstrate that he can satisfy any of
these three prongs. For example, the Court fails to discern what injury-in-fact the plaintiff has
suffered from the Department of Justice’s failure to publish certain information on its website.
Thus, while permitting the plaintiff to amend his complaint may address this Court’s ability to
exercise personal jurisdiction over the Department of Justice, such an amendment would
nonetheless fail to show that he has standing to seek injunctive relief against this agency.
Therefore, the Court is unable to award the plaintiff any relief against the Department of Justice.
F. The Plaintiff’s Claims Against Unknown NCIS Agents
In addition to the above claims against the Secretary, the plaintiff also purports to bring a
claim or claims against unknown NCIS agents. See Compl. at 1 (listing “[u]nknown NCIS
[a]gents” in the caption). The cause of action asserted against the NCIS agents and the factual
allegations supporting the claim are entirely unclear because the plaintiff does not reference the
agents in his enumerated claims. See id. ¶¶ 56–61 (referring only to a singular “defendant” who
committed the unlawful acts). The plaintiff’s opposition to the Secretary’s motion to dismiss,
however, references the NCIS agents when discussing his RICO claim. See Pl.’s Opp’n at 9, 10,
11–12. As already explained, a RICO claim cannot be asserted against federal officials acting in
their official capacity because such a claim is barred by sovereign immunity. To the extent that
the plaintiff seeks to assert a claim against the NCIS agents in their individual capacity, it is
apparent to the Court from the record that the NCIS agents have not been properly served under
Federal Rule of Civil Procedure 4(i), which provides that to serve a United States officer or
19
employee in his or her individual capacity, “a party must serve the United States and also serve
the officer or employee.” See Pl.’s Opp’n, Ex. 7 (Plaintiff’s Affidavit in Proof of Service Made
on Defendants in Both Individual and Official Capacities) (“I served Mabus/Unknowns via
certified mail intended for both [i]ndividual and [o]fficial capacity by putting Mabus[’] name on
the envelope with same Bivens claim in complaint that could be brought only against officials in
individual capacity.”). Because there “exists a reasonable prospect that service can be obtained,”
Novak v. World Bank, 703 F.2d 1305, 1310 (D.C. Cir. 1983), and pro se litigants are generally
given great latitude to correct defects in service, Angellino v. Royal Family Al-Saud, 688 F.3d
771, 778 (D.C. Cir. 2012) (citation omitted), the Court finds that sua sponte dismissal of the
claim or claims against the NCIS agents is not appropriate.
In accordance with the general practice of this Circuit, the Court thus transfers the claim
or claims against the unknown NCIS agents in addition to the plaintiff’s discrimination claim.
See Saran v. Harvey, No. 04-18479JDB0, 2005 WL 1106347, at *4 (D.D.C. May 9, 2005)
(“When venue is improper for a Title VII claim, courts have consistently transferred the entire
case, pursuant to 28 U.S.C. § 1406(a), to a judicial district where venue is appropriate for all
claims, rather than split a case apart.” (citation omitted)). Venue in the United States District
Court for the District of South Carolina is proper under 28 U.S.C. § 1391 based on the
allegations in the complaint because that court is “a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred.” See Modaressi v. Vedadi, 441 F.
Supp. 2d 51, 54–55 (D.D.C. 2006) (holding that venue for a civil RICO claim may be established
pursuant to the general venue provision of 28 U.S.C. § 1391 and collecting cases). The Court
therefore finds that transfer of all claims in the case that have not been dismissed by the Court is
warranted.
20
IV. CONCLUSION
Despite the liberal construction the Court has afforded to the plaintiff’s filings, the Court
nonetheless concludes for the foregoing reasons that all of the plaintiff’s claims against the
Secretary must be dismissed, except for his discrimination claim under Title VII. 10 With respect
to the discrimination claim, the Court finds that venue is improper in this district, and that
transferring that claim to the United States District Court for the District of South Carolina is in
the interest of justice. Accordingly, the Secretary’s motion to dismiss is granted in part, and
denied with respect to the plaintiff’s Title VII claim.
SO ORDERED this 17th day of July, 2013. 11
REGGIE B. WALTON
United States District Judge
10
The Court has endeavored to comprehend the plaintiff’s claims and allegations in accordance with its duty to
liberally construe pro se complaints. In his opposition, the plaintiff includes a variety of allegations against
individuals who are not named as defendants here and which are not connected to any of the plaintiff’s claims under
the broadest possible reading. See Pl.’s Opp’n at 13–16. To the extent that the plaintiff requests relief against these
individuals, the Court must deny those requests because, as described with respect to the plaintiff’s requested order
directed to the Department of Justice, this Court, nor any other federal district court, can exercise personal
jurisdiction over individuals or entities who have not been named in this suit as a defendant or properly served with
a summons and complaint.
11
An Order consistent with this Memorandum Opinion shall be issued contemporaneously.
21