Clark v. Brown

536 F.Supp.3d 56

Anthony CLARK, Plaintiff,

v.Craig BROWN, Acting Director, United States Selective Service System, Defendant.

Civil Action No. 1:20-cv-00481

United States District Court, E.D. Virginia, Alexandria Division.

Signed April 29, 2021

Robert Scott Oswald, Andrew Dylan Howell, The Employment Law Group PC, Washington, DC, for Plaintiff.

Yuri Fuchs, US Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

Anthony Clark ("Plaintiff"), an African American male and formerly a ten-year veteran of the United States Selective Service System ("SSS"), has brought this mixed-case action¹ against Craig Brown, Acting Director of the SSS ("Defendant"), alleging the following seven claims:

• Count 1 alleges a claim for unlawful removal from employment, in violation of the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7513(a) ;

• Count 2 alleges a claim for retaliation, in violation of the Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2302(b)(8) ;

• Count 3 alleges a claim for hostile work environment, in violation of the WPA, 5 U.S.C. § 2302(b)(8) ;

• Count 4 alleges a claim for retaliation, in violation of the WPA, 5 U.S.C. § 2302(b)(9) ;

• Count 5 alleges a claim for race discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16 ;

• Count 6 alleges a claim for hostile work environment, in violation of Title VII, 42 U.S.C. § 2000e-16 ; and

• Count 7 alleges a claim for retaliation, in violation of Title VII, 42 U.S.C. § 2000e-16.

Plaintiff exhausted his administrative remedies for all seven claims by presenting the equivalent of Counts 1–4 to the Merit Systems Protection Board ("MSPB") and by presenting the equivalent of Counts 5–7 to the Equal Employment Opportunity Commission.² Importantly, however, the MSPB has not decided Plaintiff's CSRA and WPA claims, even though those claims have been pending before the MSPB since December 12, 2019.

Thus, in this civil action, Defendant previously filed an initial threshold motion to dismiss ("Motion to Dismiss"), seeking dismissal of Counts 1–4 based solely on the fact that judicial review of these claims could not occur pursuant to 5 U.S.C. § 7703, the CSRA's ordinary judicial review provision, because the MSPB had neither issued any "decision" nor prepared the required administrative "record" necessary for judicial review under § 7703. See 5 U.S.C. § 7703(a) and (c) (permitting judicial review of the MSPB's "decision" based on "the record" before the MSPB). Defendant's motion also sought dismissal of Counts 5–7 for failure to state plausible Title VII claims for race discrimination, hostile work environment, and retaliation, respectively. Following oral argument, Defendant's Motion to Dismiss was deferred in part, granted in part, and denied in part. Specifically, Defendant's Motion to Dismiss was:

(1) deferred with respect to Counts 1–4 pending supplemental briefing by the parties on the applicability of § 7702(e)(1)(B), a provision of the CSRA that apparently governs what should occur where, as here, a plaintiff files claims with the MSPB and the MSPB fails to issue a "judicially reviewable action" on the claims within 120 days;³

(2) granted without prejudice with respect to Count 6, but with leave for Plaintiff to file a Second Amended Complaint alleging additional facts to support a Title VII hostile work environment claim; and

(3) denied with respect to Counts 5 and 7.

Thereafter, the parties submitted the required supplemental briefing and Plaintiff filed a Second Amended Complaint, providing additional facts in support of Count 6, a Title VII claim for hostile work environment based on race. Defendant responded to the Second Amended Complaint by filing a second motion to dismiss ("Second Motion to Dismiss"), seeking dismissal of the amended Count 6, as well as Count 3, a WPA claim for hostile work environment based on Plaintiff's protected whistleblowing activity.

Thus, the current status of this matter is as follows: Counts 1–4 and 6 remain subject to dismissal and Counts 5 and 7 have survived threshold dismissal and are proceeding to discovery. Consequently, there are three remaining questions to address here at the motion to dismiss stage:

(1) whether Counts 1–4, asserting claims under the CSRA and WPA, may proceed in federal court under § 7702(e)(1)(B), where, as here, the MSPB has not issued a judicially reviewable action on those claims within the statutorily required 120-day time period;

(2) whether Count 3, asserting a WPA hostile work environment claim, plausibly alleges harassment towards Plaintiff based on his status as a whistleblower that is sufficiently severe or pervasive to state a WPA claim for hostile work environment; and

(3) Count 6, asserting a Title VII hostile work environment claim, plausibly alleges harassment towards Plaintiff based on his race that is sufficiently severe or pervasive to state a Title VII claim for hostile work environment.

Because the facts and legal arguments related to these questions are fully set forth in the exiting record and the parties’ briefing, oral argument is unnecessary and would not aid the decisional process. Accordingly, it is appropriate to address and resolve the pending motions based on the existing record and the parties’ arguments, and the matter is now ripe for disposition.

I.

Analysis of the first question presented properly begins with a brief review of the statutory framework applicable to judicial review of civil service claims under the CSRA and WPA. To begin with, it is well established that such civil service claims are judicially reviewable only if the plaintiff has administratively exhausted those claims by first presenting them to the appropriate agency, in this case the MSPB.⁴ Here, no party disputes that Plaintiff has exhausted his administrative remedies, as Plaintiff presented the equivalent of Counts 1–4 to the MSPB on December 12, 2019 but the assigned MSPB Administrative Judge ("MSPB AJ") has determined that he cannot decide those claims owing to the MSPB's current lack of a quorum.⁵

In the ordinary case, the MSPB timely issues a judicially reviewable action on the civil service claims and therefore judicial review proceeds under the deferential record review standard set forth in § 7703. See id. ; see also Archuleta v. Sullivan , 944 F.2d 900 (Table), 1991 WL 179071, at *2 (4th Cir. 1991) (discussing the record review standard under § 7703 ); Butler v. West , 164 F.3d 634, 639 n.10 (D.C. Cir. 1999) (same). Yet where, as here, the MSPB does not issue any judicially reviewable action within 120 days, § 7702(e)(1)(B) permits a plaintiff to file a civil action in federal district court and for the district court to decide the claims. See id. ; see also Perry v. MSPB , ––– U.S. ––––, 137 S. Ct. 1975, 1981 n.2, 198 L.Ed.2d 527 (2017) (discussing judicial review under § 7702(e)(1) ); Bonds v. Leavitt , 629 F.3d 369, 378–79 (4th Cir. 2011) (same).⁶ Section 7702(e)(1)(B), authorizing judicial review in the event the MSPB does not resolve the civil service claims within the required 120 days "clearly expresses Congress’ desire that ... complainants should have access to a judicial forum should their claims languish undecided in the administrative machinery." Ikossi v. Dep't of Navy , 516 F.3d 1037, 1042 (D.C. Cir. 2008).

Here, Plaintiff filed the equivalent of Counts 1–4 with the MSPB on December 12, 2019. Yet, as of the date of this Order, more than 500 days after Plaintiff filed his administrative claims with the MSPB, neither the MSPB nor the assigned MSPB AJ has issued any "judicially reviewable action." 5 U.S.C. § 7702(e)(1)(B). Instead, the MSPB AJ has deferred decision on Plaintiff's administrative claims until the three-member MSPB reaches a quorum, a possibility that is unlikely to occur anytime soon as the MSPB has had no board members since March 1, 2019 and there is no current plan for that situation to change. See U.S. MSPB, FAQ About the Lack of Board Quorum and Lack of Board Members: Updated February 10, 2021 , www.mspb.gov/FAQs_Absence_of_Board_Quorum_Feb_10_2021_508.pdf (last accessed Apr. 29, 2021) ("[I]t is not possible to determine exactly when the quorum will be restored."). Thus, because the MSPB has not taken any "judicially reviewable action" within the required 120-day period, § 7702(e)(1)(B) permits Plaintiff to file a civil action in federal district court and for the district court to decide the claims. 5 U.S.C. § 7702(e)(1)(B) ; see also Bonds v. Leavitt , 629 F.3d 369, 379 (4th Cir. 2011) ("[D]istrict courts possess jurisdiction ... in mixed cases when agencies fail to meet the time limit that 7702(e)(1)(B) establishes.").⁷ Accordingly, Defendant's Motion to Dismiss Counts 1–4 must be denied, and these claims may now be heard in the first instance in federal court pursuant to § 7702(e)(1)(B).⁸

To be sure, on February 25, 2020, a date within the 120-day time period, the MSPB AJ issued a three-page decision in Plaintiff's administrative case that dismissed Plaintiff's claims subject to automatic refiling or refiling after the MSPB reaches a quorum. This three-page decision, however, does not alter the result reached here that Counts 1–4 may be heard pursuant to § 7702(e)(1)(B), for nothing in this three-page decision is amenable to judicial review. See Def.’s Mot. to Dismiss at 11 (Dkt. 12) ("[T]here is nothing for the Court here to review."). Specifically, the MSPB AJ's decision is not a "judicially reviewable action" within the meaning of § 7702(e)(1)(B) because this decision does not dispose of Plaintiff's case, either on the merits or on any jurisdictional or procedural ground.⁹ Rather, the MSPB AJ's decision dismissed Plaintiff's administrative claims subject to automatic refiling—a procedure under 5 C.F.R. § 1201.29 that has been described by the Federal Circuit as akin to a stay of proceedings. See In re Jadhav , 795 F. App'x at 848 (describing similar...