Borrell v. Naval Facilities Eng'g Command

ERIC JAMES BORRELL, Plaintiff, v. NAVAL FACILITIES ENGINEERING COMMAND WASHINGTON, Defendant.

Civil Action No. 1:19-cv-01160 (CJN)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 11, 2020

MEMORANDUM OPINION

Plaintiff Eric James Borrell, proceeding pro se, alleges that he was improperly terminated from his civil service position with the Naval Facilities Engineering Command ("NAVFAC"), a division of the Department of the Navy, because the action lacked due process, defamed him, violated the Rehabilitation Act, 29 U.S.C. § 794, and improperly deprived him of his security clearance. See generally Compl., ECF No. 1. The government moves to dismiss for lack of subject-matter jurisdiction. See generally Def.'s Mot. to Dismiss Pl.'s Compl., ECF No. 9. The Court agrees that it lacks jurisdiction and grants the Motion.

I. Background

According to the Complaint and a supporting attachment, Borrell accepted a permanent, competitive, civilian position as a Community Planner at NAVFAC's Bethesda, Maryland office in February 2012. Compl. ¶ I; Notification of Personnel Action ("SF-50"), ECF No. 1-3.¹Borrell's supervisor, Deputy Public Works Officer Caroline Koch, approved a telework arrangement to permit him to work from home part-time due to unspecified medical conditions. Compl. ¶ IV(d). Borrell alleges that he received positive performance evaluations throughout his tenure, consistent with his experience in previous NAVFAC positions in other offices. Id. ¶ IV(g).

In January 2014, a dispute arose between Borrell and Koch over Borrell's absence from work. Id. ¶ IV(i). Borrell asserted that his absence was due to a combination of approved telework and medical leave, and he submitted a written statement to that effect. Id. ¶¶ IV(i), (l). But rather than following up with him to work through the problem, Koch initiated procedures to separate Borrell involuntarily. Id. ¶ IV(i). NAVFAC terminated Borrell's employment on January 19, 2014. Id.; see also SF-50.

Borrell spent the next five years unsuccessfully applying to over sixty civil service positions in his field. Compl. ¶ II. He then filed this suit on April 19, 2019, over five years after his termination. See generally id. The Complaint contains several allegations that NAVFAC deprived him of due process and generally treated him unfairly, including claims that Koch, a civilian, made the decision to terminate Borrell without consulting military officers or human resources professionals on the staff, id. ¶¶ IV(a)-(b); that the organization knew Borrell was at his home (the address for which was on file) but declared him absent without leave (a term which, in military parlance, refers to personnel who have gone missing altogether), id. ¶ IV(c); that the decision to terminate him was inconsistent with his successful performance in the position, id. ¶¶ IV(e)-(g), (m); and that the organization prevented his participation in a Navy Reserve program, id. ¶ IV(h). Borrell also alleges that his termination violated the Rehabilitation Act because he was fired while on medical leave. Id. ¶ IV(l). In addition to his due-process anddisability claims, Borrell alleges that his supervisors intentionally damaged his reputation by maliciously mischaracterizing his departure. Id. ¶ II. Finally, Borrell claims that his termination resulted in the loss of his security clearance without his knowledge, thereby depriving him of future employment opportunities. Id. ¶ IV(j). Borrell seeks correction of his personnel record, reinstatement to a comparable position, and backpay. Id. ¶ VI.

The government moves to dismiss for lack of subject-matter jurisdiction. See generally Def.'s Mem. of P. & A. in Support of Def.'s Mot. to Dismiss Pl.'s Compl. ("Mot."), ECF No. 9-1. It argues that jurisdiction over Borrell's due-process claims rests with the Merit Systems Protection Board, id. at 4-5; that Borrell failed to exhaust administrative remedies on his disability claim, id. at 5-6; that the Federal Tort Claims Act bars actions against the federal government for defamation or misrepresentation, id. at 6-8; and that discretionary actions regarding security clearances are not subject to judicial review, id. at 8.

II. Legal Standard

"[T]he party asserting federal jurisdiction . . . has the burden of establishing it," and the Court presumes that it "lack[s] jurisdiction unless the contrary appears affirmatively from the record." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)). The Court has an "independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). "For this reason, 'the Plaintiff'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 the 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)). The Court "mayconsider materials outside the pleadings in deciding whether to grant [the Motion]." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

III. Analysis

A. Due-Process Claims

As the government correctly notes, "the Civil Service Reform Act of 1978 . . . , 5 U.S.C. § 1101 et seq., . . . established a comprehensive system for reviewing personnel action taken against federal employees." Mot. at 4 (quoting Elgin v. Dep't of Treasury, 567 U.S. 1, 5 (2012) (internal quotation omitted)). "If the agency takes final adverse action against the employee [including termination], the [Act] gives the employee the right to a hearing and to be represented by an attorney or other representative before the Merit Systems Protection Board." Elgin, 567 U.S. at 5 (citing 5 U.S.C §§ 7513(d), 7701(a)(1)-(2)). "An employee who is dissatisfied with the [Board's] decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit," which has "'exclusive jurisdiction' over appeals from a final decision of the [Board]." Id. at 6 (quoting 28 U.S.C. § 1295(a)(9)) (citing 5 U.S.C. § 7703(b)(1)). "[A]n appeal [to the Board] must be filed no later than 30 days after the effective date . . . of the action being appealed." 5 C.F.R. § 1201.22(b)(1).

Borrell was a member of the competitive Civil Service and therefore comes within the scope of the Civil Service Reform Act. See 5 U.S.C. § 7511(a)(1)(A); SF-50 (indicating that Borrell was a member of the competitive service).² It is undisputed that Borrell did not appeal tothe Merit Systems Protection Board. See Molly A. Leckey Decl., ECF No. 9-2 (asserting that the Board has no record of any appeal by Borrell). Because the Act "provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action," Elgin, 567 U.S. at 5, the Court lacks subject-matter jurisdiction over Borrell's due-process challenges to his termination.

B. Rehabilitation Act Exhaustion of Administrative Remedies

The government next argues that the Court lacks jurisdiction over Borrell's disability-discrimination claim because he failed to exhaust administrative remedies.³ See Mot. at 5-6. The Rehabilitation Act requires that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of . . . his disability, . . . be subjected to discrimination . . . under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a). The Act incorporates the employment discrimination standards of the Americans with DisabilitiesAct. Id. § 794(d). It also incorporates Title VII's administrative-exhaustion requirement and available remedies for federal employees. See id. § 794a(a)(1) (incorporating 42 U.S.C. § 2000e-16). Under the applicable regulation, federal employees alleging disability discrimination must initiate an administrative complaint "within 45 days of the effective date of the [personnel] action." 29 C.F.R. § 1614.105(a)(1).

"For claims against federal agencies, exhaustion requires submitting a claim to the employing agency itself." Doak v. Johnson, 798 F.3d 1096, 1099 (D.C. Cir. 2015). "The obligation to initiate one's claim in the government agency charged with discrimination is 'part and parcel of the congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel primary responsibility for maintaining nondiscrimination in employment.'" Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25, 34 (D.C. Cir. 2014) (quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983)). Unlike under Title VII, the Rehabilitation Act limits judicial review to "any employee . . . aggrieved by the final disposition of [his administrative] complaint, or by the failure to take final action on such complaint." 29 U.S.C. § 794a(a)(1). Courts have interpreted that language to require strict compliance with the exhaustion requirement and as depriving courts of jurisdiction over cases in which the complainant failed to file an administrative claim. See Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) ("Such jurisdictional exhaustion . . . may not be excused." (internal quotation omitted)).

It is undisputed that Borrell never filed an administrative complaint with the agency. See Deanner P. White Decl., ECF No. 9-3 (stating that the Department of the Navy's Equal Employment Opportunity office has no record of any complaint by Borrell). For his part, Borrell argues that it is unjust to permit wrongdoing and discrimination merely because the allegedvictim waited too long to complain or went to court rather than to an administrative office to file his grievance. See Pl.'s Resp. to Def.'s Mot. to Dismiss Pl.'s Compl. ("Resp.") at 2, ECF No. 11 ("Right is right and wrong is wrong. There is not an expiring time table. (sic)...