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Board’s failure to act allows claims to proceed

Where the former Selective Service System employee’s bias and whistleblower claims first needed to be exhausted before the Merit Systems Protection Board, or MSPB, the board failed to act for more than 500 days so the employee could proceed to federal district court.


Anthony Clark, an African American male and formerly a 10-year veteran of the Selective Service System, or SSS, has brought this mixed-case against the acting director of the SSS. Defendant has moved to dismiss several counts in the second amended complaint.


Defendant argues that Counts 1-4 must be dismissed because the MSPB has neither issued any “decision” nor prepared the required administrative “record” necessary for judicial review.

Plaintiff filed the equivalent of these counts with the MSPB on Dec. 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 administrative judge has issued any “judicially reviewable action.” Instead, the MSPB administrative  judge 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.

Because the MSPB has not taken any “judicially reviewable action” within the required 120-day period, 5 U.S.C. § 7702(e)(1)(B) permits plaintiff to file a civil action in federal district court and for the district court to decide the claims. Congress enacted § 7702(e)(1)(B) to ensure “that complainants should have access to a judicial forum should their claims languish undecided in the administrative machinery” and, here, it is appropriate to give effect to Congress’ intent. Few courts have addressed whether a claimant may overcome the MSPB’s purported inability to review claims by seeking direct review in federal court pursuant to § 7702(e)(1)(B). But importantly, a recent decision from the U.S. District Court for the Northern District of Illinois, supports the result reached here.

Defendant argues that § 7702(e)(1)(B) is limited to rescuing solely Title VII discrimination claims left to languish in the administrative process, but not the Civil Service Reform Act and Whistleblower Protection Act claims alleged in Counts One-Four. Defendant’s proposed limitation of § 7702(e)(1)(B) to Title VII claims has previously been rejected by numerous courts of appeals, and there are no compelling reasons to conclude otherwise here.

Defendant also argues that it is not possible to review these counts because there is no administrative record to review. This argument misses the obvious point; there are two separate statutes for judicial review, § 7702 and § 7703, and here § 7702 governs because the MSPB has failed to issue a judicially reviewable action and to produce an administrative record.

Hostile work environment

The second question presented is whether the second amended complaint plausibly alleges the existence of a hostile work environment based on plaintiff’s protected status as a whistleblower and race. The court finds that it does.

The second amended complaint alleges that plaintiff routinely expressed concerns about the SSS’s network security but that plaintiff’s colleagues and superiors instead ridiculed plaintiff and his work performance, ultimately blaming him for certain security failures. And the second amended complaint identifies seven discriminatory remarks based on race, clarifies that the previously unspecified racial slur that another employee used to refer to plaintiff was the N-word and explains that plaintiff “felt fear each day as he went to work [and] also began to experience a disturbance in his sleeping habits.

Defendant’s partial motion to dismiss denied.

Clark v. Brown, Case No. 1:20-cv-00481, April 29, 2021. EDVA at Alexandria (Ellis). VLW 021-3-231. 14 pp.

VLW 021-3-231

Virginia Lawyers Weekly