Hunt v. United States Department of Agriculture

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES HUNT,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF Civil Action 08-01533 (HHK)
AGRICULTURE

and

UNITED STATES OFFICE OF
SPECIAL COUNSEL,

Defendants.

MEMORANDUM OPINION

James Hunt, a former Chief Administrative Law Judge at the United States Department of

Agriculture (“Department”), proceeding pro se, brings this action against the Department and the

United States Office of Special Counsel (“OSC”) (collectively, “defendants”). Hunt’s principal

claims are that he was deprived unlawfully of the compensation to which he was entitled as

determined by the Office of Personnel Management (“OPM”), that the Department failed to

conduct a hearing before compensating him at a rate lower than that established by OPM, and

that the OSC refused to seek a hearing before the Merits Systems Protection Board (“Board”)

regarding various complaints that Hunt had filed with the OSC. Hunt’s claims are grounded on

alleged violations of the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and the

Fifth Amendment.
 Before the Court are defendants’ motion to dismiss Hunt’s amended complaint on several

grounds, including defendants’ assertion that this Court is unable to exercise subject matter

jurisdiction over Hunt’s claims [#13]. Upon consideration of the motion, the opposition thereto,

and the record of this case, the Court concludes that defendants’ motion should be granted.

I. BACKGROUND

Hunt became an Administrative Law Judge (“ALJ”) with the Department in 1989 and

was appointed Chief Administrative Law Judge (“CALJ”) in 1999, when he was 67 years of age.

He retired in 2003.

At the time of Hunt’s appointment as CALJ, the OPM classified the pay level for the

Department’s CALJ position at the AL-2 level. The Department, however, paid Hunt at a

decreased AL-3 level. Hunt alleges that the Department preferred to appoint younger ALJs to the

position of CALJ and that its reduction of his compensation constituted age discrimination in

violation of 5 U.S.C. § 2302(b)(1)(B).1 Hunt points out that both his predecessor and successor

were in their early fifties when appointed to the CALJ position, and both were paid at the higher

AL-2 level.

Following his retirement, Hunt filed a complaint with the Board (hereinafter “Hunt I”)

under 5 U.S.C. § 7521(a),2 alleging, among other things, that the Department’s reclassification of

1
5 U.S.C. § 2302(b)(1)(B) provides that “[a]ny employee who has authority to take,
direct others to take, recommend, or approve any personnel action, shall not, with respect to such
authority . . . discriminate for or against any employee . . . on the basis of age.” 5 U.S.C.
§ 2302(b)(1)(B).
2
Actions against ALJs, including reductions in pay, are appealable to the Board
under 5 U.S.C. § 7521. 5 U.S.C. § 7521(a) states that “[a]n action may be taken against an
administrative law judge . . . by the agency in which the administrative law judge is employed
only for good cause established and determined by the Merit Systems Protection Board on the

2
the CALJ position’s compensation violated 5 U.S.C. § 5372(b)(2) because only the Office of

Personnel Management has the authority to determine the level of compensation for ALJs.3

Hunt’s complaint with the Board also alleged that the Department constructively removed him

from his position and attempted to influence his judicial independence. The Board ruled against

Hunt. With respect to Hunt’s claim that he was paid at a reduced level, the Board stated the

following:

Petitioner applied for and accepted the CALJ position fully aware of the grade
level of the position, notwithstanding that the position had previously carried a
higher grade level. And once he encumbered the position, he continued to accept
his pay based on the pay level he had agreed to receive when he accepted the
position; at no time did the agency downgrade the position or reduce his pay.
Thus he cannot complain that the agency did not meet its end of the bargain or
that the lower grade made the job too difficult or unpleasant to endure.
Accordingly, he has not alleged facts, which if proved, could establish Board
jurisdiction over his appeal.

Defs.’ Mot. to Dismiss, Ex. 1 at 6. On February 7, 2005, the Board issued a Final Order denying

Hunt’s petition to review the initial decision, and on February 9, 2006, the United States Court of

Appeals for the Federal Circuit affirmed the Board’s decision.

Hunt filed a second complaint with the Board (hereinafter “Hunt II”) on April 5, 2006.

Hunt again alleged that he received less pay than he was entitled to, this time pursuant to 5

U.S.C. § 7512.4 Id., Ex. 4 at 1-2. The Board dismissed Hunt’s complaint for lack of jurisdiction,

record after opportunity for hearing before the Board.” 5 U.S.C. § 7521(a).
3
5 U.S.C. § 5372 states that “[t]he Office of Personnel Management shall
determine . . . the level in which each administrative-law-judge position shall be placed.” 5
U.S.C. § 5372(b)(2).
4
Actions, including reductions in pay, against individuals who meet 5 U.S.C. §
7511’s definition of “employee” are appealable to the Board under 5 U.S.C. § 7512.

3
stating that because Hunt was an ALJ, his complaint must be brought under section 7521, and

even if Hunt were able to establish jurisdiction under section 7512, the case would still be

dismissed because Hunt would not be able to show an actual reduction in pay.5 The Board issued

a Final Order in the matter on January 10, 2007, and the Federal Circuit affirmed on October 4,

2007.

Hunt alleges that while Hunt I was pending, his successor as CALJ, Mark Hillson, offered

him a position as a part-time ALJ. Compl., Ex. 2 at 2. Hunt informed Hillson that he was in the

process of registering for the “senior” ALJ register but would accept the offer when the process

was complete. Hunt also informed Hillson that he filed a complaint against the Department that

was still pending. According to Hunt, Hillson was not aware of this action. When Hunt later

informed Hillson that he had been placed on the register, Hillson withdrew the employment

offer.

Hunt then filed a complaint against the Department with the OSC (hereinafter “Hunt

III”), again alleging a reduction in pay as well as age discrimination and retaliation. Hunt alleged

that the Department’s refusal to hire him was in retaliation for filing his complaint with the

Board, in violation of 5 U.S.C. § 2302(b)(9)(A).6 Compl. ¶¶ 23-24. The OSC did not seek a

hearing before the Board with regard to Hunt’s complaint, but rather issued its findings in a letter

5
Section 7512 specifically states that it “does not apply to . . . an action initiated
under section . . . 7521.” 5 U.S.C. § 7512(E).
6
5 U.S.C. § 2302(b)(9)(A) states that “[a]ny employee who has authority to take,
direct others to take, recommend, or approve any personnel action, shall not, with respect to such
authority . . . take or fail to take, or threaten to take or fail to take, any personnel action against
any employee . . . because of . . . the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(A).

4
dated June 11, 2008. Compl., Ex. 1. The OSC determined that (1) the Department had the

authority to downgrade the OPM-authorized pay level for the CALJ position, (2) the pay level for

ALJs at the Department was downgraded prior to Hunt’s appointment, (3) the OSC had no

jurisdiction over claims of age discrimination, (4) the Department did not retaliate against Hunt

for filing his complaint with the Board, and (5) the Department had not reduced Hunt’s lawfully

authorized compensation. Compl. ¶ 26.

This action followed Hunt Hunt III.

II. LEGAL STANDARD

Defendants move to dismiss Hunt’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim.7 A motion to dismiss under Rule 12(b)(1) “tests whether the

court has subject matter jurisdiction over the action.” Bernard v. U.S. Dep’t of Def., 362 F.

Supp. 2d 272, 277 (D.D.C. 2005). Under Rule 12(b)(1), “the plaintiff bears the burden of

establishing the factual predicates of jurisdiction by a preponderance of the evidence.” Erby v.

United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992)). “The court, in turn, has an ‘affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority.’” Abu Ali v. Gonzales, 387 F. Supp. 2d 16,

17 (D.D.C. 2005) (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.

2d 9, 13 (D.D.C. 2001)). When deciding a motion to dismiss under Rule 12(b)(1), a court may

7
Defendants also move to dismiss Hunt’s complaint on various other grounds,
including lack of standing, res judicata, and collateral estoppel. The Court need not address these
grounds for dismissal given its determination that this Court is without subject matter
jurisdiction.

5
consider matters outside the pleadings. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992).

Under Rule 12(b)(6), a court may dismiss a complaint, or any portion of it, for failure to

state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Although pleadings

filed by pro se litigants are to be liberally construed, see Haines v. Kerner, 404 U.S. 519, 520

(1972), a pro se litigant may not ignore the Federal Rules of Civil Procedure. Jarrell v. Tisch,

656 F. Supp. 237, 239 (D.D.C. 1987). A court considering a motion to dismiss must assume that

all factual allegations are true, even if they are doubtful. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief,’” however, “requires more than labels and conclusions . . . . Factual allegations must be

enough to raise a right of relief above the speculative level.” Id. (internal citations omitted).

III. ANALYSIS

Defendants contend that Hunt’s claims against the Department and against the OSC must

be dismissed because this Court lacks jurisdiction. Although the parties analyze the claims

against the Department and the claims against the OSC together, the claims against the parties

raise distinct legal and factual issues. Accordingly, the Court will analyze the claims against

each party separately.

A. Hunt’s Claims against the Department

1. APA Claim

The Department alleges that Hunt’s claim that his compensation as CALJ was illegally

reduced is barred by its sovereign immunity and that Hunt’s reliance on the APA as a waiver of

that immunity is misplaced. Defendants argue that “[t]he APA excludes from its waiver of

6
sovereign immunity . . . claims for which an adequate remedy is available elsewhere.” Defs.’

Mot. to Dismiss at 6 (quoting Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005)). Such a

remedy is available, defendants maintain, by virtue of various provisions of the Civil Service

Reform Act of 1978 (“CSRA”), Pub. L. 95-454, 92 Stat. 1111. Indeed, defendants assert that the

remedy afforded by the CSRA is not only available to resolve an ALJ’s complaints regarding

reductions in compensation, but is the the exclusive remedy for doing so.

Hunt rejoins that “his claim here, involve[s] more than an adverse personnel action under

the CSRA,” and that defendants’ actions “impacted not only [his] status as an employee but more

importantly [his] status as an administrative law judge under the [APA].” Pl.’s Opp’n at 7. Hunt

argues that the APA provides safeguards for administrative law judges to protect their judicial

independence, including the requirement that before an agency increases or decreases an ALJ’s

pay level, it must obtain the approval of OPM. Hunt also asserts that because the Board

dismissed his complaints for lack of jurisdiction, the CSRA does not provide a remedy for his

claims. Consequently, Hunt maintains, this Court is able to exercise jurisdiction over this case.

Hunt’s arguments are without merit.

The APA’s waiver of sovereign immunity is inapplicable here because Congress has

prescribed a remedy for vindicating claims of adverse actions, such as a reduction in pay, taken

against ALJs other than by filing a suit in this Court. Congress enacted the CSRA as part of a

“comprehensive[] overhaul[]” of the civil service system. Lindahl v. OPM, 470 U.S. 768, 773

(1985). “A leading purpose of the the CSRA was to replace the haphazard arrangements for

administrative and judicial review of personnel actions, part of the ‘outdated patchwork of

statutes and rules built up over almost a century’ that was the civil service system.” United

7
States v. Fausto, 484 U.S. 439, 444 (1988) (quoting S. Rep. No. 95-969, p.3 (1978)). The CSRA

created “an elaborate ‘new framework for evaluating adverse personnel actions against [federal

employees].’” Fausto, 484 U.S. at 443 (quoting Lindahl v. OPM, 470 U.S. 768, 773 (1985)).

Under the CSRA, a federal employee may seek relief from adverse personnel actions through an

appeal to the Board and may obtain subsequent review of Board decisions in the Federal Circuit.

Recognizing the breadth of the statutory scheme, the D.C. Circuit has repeatedly held that

the CSRA’s exclusion of some personnel actions illustrates Congress’s intent to preclude judicial

review in this Court of both actions that are covered by the CSRA and those that are outside its

bounds. See e.g., Fornaro, 416 F.3d at 66 (“[T]hese remedial provisions are exclusive, and may

not be supplemented by the recognition of additional rights to judicial review having their source

outside the CSRA.”); Spagnola v. Mathis, 859 F.2d 223, 227 (D.C. Cir. 1988) (en banc) (per

curiam) (“[I]t is the comprehensiveness of the statutory scheme involved, not the ‘adequacy’ of

specific remedies thereunder, that counsels judicial abstention.”); Harrison v. Bowen, 815 F.2d

1505, 1516 n.25 (D.C. Cir. 1987) (“[The CSRA] creates an extensive scheme regulating civil

service personnel decisions” and courts should not “allow an employee to circumvent this

detailed scheme governing federal employer-employee relations by suing under the more general

APA.”) (quotations omitted); Gray v. Office of Personnel Mgt., 771 F. 2d 1504 (1985) (holding

that the comprehensive remedial scheme established by Congress in the CSRA indicates a

congressional intent to preclude judicial review under the APA of claims that should be reviewed

administratively under the CSRA).

8
 Given this law and the congressional intent underlying the CSRA, it is apparent that this

Court does not have jurisdiction over Hunt’s APA claims.8 Hunt’s argument that this Court has

jurisdiction because the Board ruled that it was without jurisdiction is not convincing. Although,

in both Hunt I and Hunt II, the Board determined that it did not have jurisdiction over Hunt’s

complaint, this determination was based on Hunt’s inability to show that he experienced a

reduction of pay in Hunt I, and his failure to bring his reduction of pay claims under the proper

provision of the CSRA in Hunt II. The determination that the Board lacked jurisdiction was not

based on the conclusion that the CSRA did not provide a remedy for claims for reductions in pay.

Actions against ALJs, including reductions in pay, are appealable to the Board under 5 U.S.C. §

7521. But “[t]o invoke the Board’s jurisdiction, an appellant must show a demonstrable loss,

such as an actual reduction in pay.” Def.’s Ex. 4 at 3 (citations omitted). The Board found that

Hunt failed to make such a showing.9 Accordingly, the Court is not persuaded by Hunt’s

8
To the extent that Hunt’s complaint can be construed to challenge the
classification of his position rather than a reduction of his pay, such a challenge is within the
exclusive jurisdiction of the OPM. See 5 C.F.R. § 511.603; see also Marcheggiani v. U.S. Dep’t
of Defense, 90 M.S.P.R. 212 (MSPB 2001). Under 5 C.F.R. § 511.603(a)(1), “[a]n employee . . .
may request an Office decision as to . . . [t]he appropriate occupational series or grade of the
employee’s official position.” 5 C.F.R. § 511.603 (a)(1).
9
In Hunt I, the Board noted that Hunt “does not argue that he actually suffered a
personnel action [ ] enumerated in section 7521(b),” specifically a reduction in pay. Def.’s Ex. 1
at 3. Accordingly, the Board found that it lacked jurisdiction over Hunt’s complaint. In Hunt II,
Hunt again filed a complaint alleging a reduction in pay, but this time he alleged a violation of 5
U.S.C. 7512 and 7513(d). The Board again dismissed Hunt’s complaint for lack of jurisdiction,
stating that (1) because Hunt was an ALJ, any reduction in pay action must be initiated under
section 7521, not section 7512, and (2) the forms documenting Hunt’s pay “[did] not show any
pay reduction and [Hunt] has not otherwise shown that his pay was reduced.” Def.’s Mot. to
Dismiss, Ex. 4 at 3.

9
argument that the Board’s decisions in Hunt I and Hunt II demonstrate that the CSRA does not

provide a remedy for his claims.10

Hunt’s assertion that his status as an ALJ distinguishes him from other civil service

employees that are covered by the CSRA is similarly unconvincing. According to Hunt, review

under the APA remains available to ALJs despite the passage of the CSRA because an ALJ’s

need for decisional independence requires a higher degree of protection from coercion than is

offered by the CSRA. The D.C. Circuit has specifically addressed this issue in Gray v. Office of

Personnel Mgmt., 771 F.2d 1504, 1510 (D.C. Cir. 1985).11 In Gray, the D.C. Circuit noted the

“pivotal importance of the work of the ALJ corps,” but nevertheless declined “to confer special

status on ALJs beyond that expressly provided by Congress.” Gray, 771 F.2d at 1510.

According to the D.C. Circuit, “had Congress intended to treat ALJS differently . . . it could have

done so explicitly.” Id. at 1511.

2. Constitutional Claims

Hunt also argues that the Department’s reduction of the pay-grade for the position of

CALJ without a hearing deprived him of a property right without due process. Hunt’s claims for

monetary damages arising out of the Department’s allegedly unconstitutional acts must fail.

10
Furthermore, even if the CSRA provides Hunt with no remedy for his reduction of
pay claim, this Court would still not have jurisdiction to hear such a claim. As stated earlier, by
enacting the CSRA, Congress clearly intended to provide an exclusive system for ensuring the
rights of federal employees, whether through the provision of specific remedies or no remedies at
all. See LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed. Cir. 1995) (“The CSRA superseded
preexisting remedies for all federal employees, even those who had no remedy or only limited
remedies under the new system, for all types of personnel action within its scope.”).
11
While defendants discuss Gray v. Office of Personnel Mgmt., 771 F.2d 1504,
1510 (D.C. Cir. 1985), in their motion to dismiss, Hunt fails to distinguish, discuss, or even cite
Gray in his opposition to defendants’ motion.

10
Hunt’s argument essentially boils down to his contention that because “there is no CSRA remedy

available for [his] injury, [he is] not foreclosed from seeking a Bivens remedy in this Court,”

Pl.’s Opp’n at 23, arising out of his alleged deprivation of property without due process.

Defendants rejoin that the CSRA also provides the exclusive remedy for constitutional violations

arising out of federal employment.

Defendants have the better argument. The fact that Hunt alleges constitutional violations

does not take his claims beyond the remedial provisions of the CSRA. The D.C. Circuit has

stated that “Bivens remedies [do not exist] for civil service employees and applicants who

advance constitutional challenges to federal personnel actions.” Spagnola, 859 F.2d at 230 (D.C.

Cir. 1988) (en banc) (per curiam). “[D]ecision[s] concerning pay” fall within the statutory

definition of “personnel actions” under the CSRA. 5 U.S.C. § 2302(a)(2)(A)(ix). Though courts

have discretion to create damages remedies against federal officials for constitutional violations,

they “must decline to exercise that discretion where ‘special factors counsel[ ] hesitation’ in

doing so.” Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (citing Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971)); Spagnola, 859 F.2d at

226). One example of a “special factor” that militates against recognizing a Bivens remedy is the

presence of an “elaborate remedial system” or a “comprehensive scheme,” see Bush v. Lucas,

462 U.S. 367, 385, 388 (1983), which “suggests that Congress has provided what it considers

adequate remedial mechanisms for constitutional violations.” Schweiker v. Chilicky, 487 U.S.

412, 423 (1988). In this Circuit, for “purposes of the special-factors analysis, the CSRA is a

comprehensive statutory scheme precluding Bivens remedies.” Gerlich v. U.S. Dep’t of Justice,

659 F. Supp. 2d 1, 10 (D.D.C. 2009) (citing Spagnola, 859 F.2d at 229-30).

11
 Even if the remedies afforded by the CSRA in this particular case are inadequate, as Hunt

asserts, such a circumstance does not advance his position. The Supreme Court has recognized

that

[t]he question is not what remedy the court should provide for a wrong that would
otherwise go unredressed. It is whether an elaborate remedial system that has
been constructed step by step, with careful attention to conflicting policy
considerations, should be augmented by the creation of a new judicial remedy for
the constitutional violation at issue. That question obviously cannot be answered
simply by noting that existing remedies do not provide complete relief for the
plaintiff.

Bush, 462 U.S. at 388; see also Spagnola, 859 F.2d at 227 (citing Chilicky, 487 U.S. at 423)

(“[I]t is the comprehensiveness of the statutory scheme involved, not the ‘adequacy’ of specific

remedies extended thereunder, that counsels judicial abstention.”). Therefore, “a case-by-case

examination of the particular administrative remedies available to a given plaintiff [is]

unnecessary.” Id. “Spagnola established that a Bivens remedy is precluded by the CSRA even

when that scheme provides the plaintiff with ‘no remedy whatsoever.’” Gerlich, 659 F. Supp. 2d

at 11 (quoting Spagnola, 859 F.2d at 228).

Moreover, the Court does not agree with Hunt’s contention that the CSRA provides him

“no remedy for [his] . . . Constitutional claim.” See Pl.’s Opp’n at 23. The CSRA provides a

mechanism for challenging adverse personnel actions—among them personnel actions affecting

pay—and prohibited personnel practices. Thus, Hunt’s Fifth Amendment claim is cognizable

under the CSRA.12

12
Further, Hunt’s contention that he was entitled to a “predetermination evidentiary
hearing” is governed by the statutorily provided procedures in the CSRA. See 5 U.S.C. § 7521.
To the extent that Hunt finds fault with the process he has experienced, Hunt’s proper recourse is
to follow the appellate procedures outlined in 5 U.S.C. §§ 7701-7703, which provide for judicial
review by the United States Court of Appeals for the Federal Circuit.

12
 Because Hunt seeks monetary damages as compensation for allegedly unconstitutional

acts arising out of agency action that is properly within the scope of the CSRA, this Court does

not have jurisdiction to review that action. Accordingly, Hunt’s constitutional claim against the

Department must be dismissed.

3. Discrimination and Retaliation Claims

It is not altogether clear that Hunt asserts a discrimination or retaliation claim against the

Department. Construing Hunt’s complaint liberally, however, the Court assumes that Hunt

asserts an age discrimination claim and a retaliation claim against the Department based on the

Department’s alleged reduction in his compensation due to his age and its refusal to hire him as a

temporary ALJ after learning that he filed a complaint with the Board. Defendants argue that

Hunt cannot bring these claim because he has failed to exhaust his administrative remedies under

the Age Discrimination in Employment Act (“ADEA”). Specifically, defendants contend that

Hunt neither provided the Equal Employment Opportunity Commission (“EEOC”) with notice of

his intent to sue nor invoked the EEOC’s administrative process. Although Hunt does not assert

that he has exhausted his administrative remedies, he generally states that “allegations of age

discrimination will be considered under the CSRA in a ‘mixed’ case . . . without referral to the

EEOC.” Pl.’s Opp’n at 9.

Although Hunt is correct that he does not have to file a notice with the EEOC, Hunt still

has not exhausted his administrative remedies. Liberally construing Hunt’s complaint as

“mixed,” that is, one containing “an adverse personnel action subject to appeal to the [Board]

coupled with a claim that the action was motivated by discrimination,” see Butler v. West, 164

13
F.3d 634, 638 (D.C. Cir. 1999), there is a carefully prescribed statutory framework that Hunt

must follow in order to pursue his discrimination and retaliation claims in this Court.

Under this framework, the complainant has two paths he may follow: “[a]n aggrieved

person may initially file a mixed case complaint with an agency . . . or [the complainant may file]

an appeal on the same matter with the [Board] pursuant to 5 CFR 1201.151, but not both.” 29

C.F.R. § 1614.302(b). If the complainant pursues an agency decision and is dissatisfied with the

result, then within 30 days of receipt of the agency’s final decision, he may appeal the matter to

the Board, or file a civil action in district court. 29 C.F.R. § 1614.302(d)(1)(ii). If the

complainant forgoes filing the agency complaint and appeals directly to the Board, an

Administrative Judge makes an “initial decision” which becomes final 35 days after issuance,

unless “any party files a petition for review” with the Board, or the Board reopens the case on its

own motion. 5 C.F.R. § 1201.113. The Board may either deny a petition for review, at which

point the decision becomes “final,” 5 C.F.R. § 1201.113(b), or it may grant review. Once the

Board’s decision becomes final, the complainant may then “(1) . . . appeal the discrimination

claim to the EEOC within 30 days, 5 C.F.R. § 1201.157; (2) appeal the entire claim to the

appropriate district court within 30 days; or (3) appeal the nondiscrimination claim to the Court

of Appeals for the Federal Circuit within 60 days. 5 U.S.C. § 7703(b).” Taylor v. Mabus, 685

F.Supp. 2d 94, 98 (D.D.C. 2010).

Hunt makes no assertion that he has pursued any of the paths available to resolve his

claims. He merely asserts that he filed his discrimination and retaliation claims with the OSC.

14
Such a filing does not constitute exhaustion of administrative remedies.13 Since Hunt fails to

show that he has exhausted his administrative remedies, to the extent that Hunt asserts

discrimination and retaliation claims against the Department, such claims must be dismissed.14

B. Hunt’s Claims Against the Office of Special Counsel

Hunt also alleges that the OSC’s findings in Hunt III were not supported by fact or law,

and its “affirmation of [the Department]’s unlawful taking without seeking a predetermination

evidentiary hearing was arbitrary, capricious, not in accordance with law and denied [Hunt] his

right to due process in violation of the Fifth Amendment.” Compl. ¶ 25. Defendants again

contend that this Court lacks subject matter jurisdiction to hear Hunt’s claims.

The CSRA provides that “[t]he Special Counsel shall receive any allegations of a

prohibited personnel practice and shall investigate the allegation to the extent necessary to

determine whether there are reasonable grounds to believe that a prohibited personnel practice

has occurred, exists, or is to be taken.” 5 U.S.C. § 1214(a)(1)(A). Although this Court may have

jurisdiction over a claim that the OSC failed to investigate Hunt’s allegations, see Weber v.

United States, 209 F.3d 756, 759 (D.C. Cir. 2000), it does not have jurisdiction to review the

13
Even assuming that filing a complaint of age discrimination with the OSC is a
sufficient first step in this process, as previously stated, Hunt would have had to file his
complaint in this Court within 30 days of the OSC’s final decision, which he failed to do.
14
Defendants do not specify whether Hunt’s discrimination and retaliation claims
should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). Judges in
this district have not reached a consensus on the appropriate standard for motions to dismiss for
failure to exhaust one’s administrative remedies. Compare Wiley v. Johnson, 436 F. Supp. 2d
91, 94-95 (D.D.C. 2006) (EEOC exhaustion is jurisdictional), with Camp v. District of
Columbia, No. 04-0234, 2006 WL 667956, *6, n.4 (D.D.C. Mar. 14, 2006) (EEOC exhaustion is
not jurisdictional). The Court finds that the outcome in this case is the same under either Rule
12(b)(6) or Rule 12(b)(1).

15
OSC’s decision on the merits. See Wren v. Merit Syst. Protection Bd., 681 F.2d 867, 875 n.9

(D.C. Cir. 1982) (“It is . . . quite clear from the statutory language and corresponding legislative

history that Congress did not mean to make the OSC’s decisions to terminate or conduct an

investigation or bring a proceeding before the Board reviewable on the merits.”). Because

Hunt’s allegations against the OSC involve the merits of OSC’s decision, and not its refusal to

investigate his complaint, the Court does not have jurisdiction to hear Hunt’s claims against the

OSC. See e.g., Carson v. U.S. Office of Special Counsel, 2006 WL 785292, at *5 (D.D.C. March

27, 2006) (“[T]his court only has jurisdiction to review whether OSC conducted an investigation,

it cannot pass on the merits of OSC’s decision to terminate an investigation.”).

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss [# 13] is granted. An

appropriate order accompanies this memorandum opinion.

Henry H. Kennedy, Jr.
United States District Judge

16