Virginia Lawyers Weekly VA Lawyers Weekly
Where a man challenged various employment actions taken against him while he served as a civilian employee for the federal government, his multicount complaint was dismissed because the court lacked jurisdiction over some of the claims and the remaining claims were implausible as a matter of law.
Background
In his amended complaint, Martin Akerman challenges various employment actions taken against him while he served as a civilian employee for the federal government. The gravamen of the amended complaint is defendants’ decision to revoke Akerman’s eligibility for a security clearance, which led first to his indefinite suspension and then to his resignation. Before the court are defendants’ motion to dismiss the operative amended complaint and plaintiff’s multiple motions for relief.
Motion to quash
Plaintiff seeks to “[q]uash or otherwise label … as untimely” defendants’ pending motion to dismiss, as well as a motion for an enlargement of time filed by defendants. There is no basis for granting the requested relief.
Defendants’ deadline to respond to plaintiff’s amended complaint was Oct. 17, 2022. Because defendants electronically filed the motion to dismiss on Oct. 17, 2022, before midnight, it was timely filed. As for defendants’ motion for an enlargement of time, it was timely filed on Sept. 29, 2022, which renders moot any objection by plaintiff.
Motion to dismiss
In connection with his “unlawful suspension and constructive discharge,” the amended complaint lists a series of alleged violations of various federal laws. Because, as pleaded, all of these claims are based on, or connected to, the revocation of his eligibility for a security clearance, under Supreme Court and Fourth Circuit precedent, this court does not have jurisdiction over these claims.
Next the amended complaint seeks to recover the remaining student loan payments which the Air Force allegedly failed to pay pursuant to a purported agreement to repay plaintiff’s student loans. Defendants argue that the court lacks jurisdiction over these claims because they remain pending before the Merit Systems Protection Board, or MSPB, and are not the type of employment-related claims that fall within the jurisdiction of a district court under the Civil Service Reform Act, or CSRA, and the Whistleblower Protection Act, or WPA. Defendants are correct.
Even if the court had jurisdiction over plaintiff’s WPA claims, the amended complaint fails to state a claim for retaliation under the WPA. The amended complaint does not allege any facts describing that plaintiff made a protected disclosure or a causal connection between such a disclosure and any adverse personnel action.
Turning to plaintiff’s claim under the Age Discrimination in Employment Act, or ADEA, the amended complaint contains only a conclusory allegation of “age discrimination” and is devoid of any factual allegations suggesting that plaintiff was treated less favorably than a younger employee for any reason.
The amended complaint also alleges that plaintiff “endured a deliberately hostile environment.” Because the amended complaint has not alleged that plaintiff’s WPA and discrimination claims involve any major personnel action that is directly appealable to the MSPB, these claims do not qualify as a mixed case that can be removed from the MSPB to a district court. Even considering plaintiff’s hostile work environment claims independent of the WPA claim, the amended complaint fails to allege any facts about specific harassing conduct experienced by plaintiff based on his age, disability or any other protected characteristics, let alone facts suggesting that the unwelcome conduct was severe or pervasive.
Next, the amended complaint alleges that the Department of Defense has engaged in “systemic discrimination” on the basis of age. But the Fourth Circuit has expressly declined to recognize a “private, non-class cause of action” for individual plaintiffs for “pattern or practice” discrimination under Title VII. As for the WPA claims for systemic whistleblower retaliation, because they concern alleged “illegal actions related to [p]laintiff’s security clearance,” the court lacks jurisdiction over them. And in any event, the amended complaint fails to state a claim of retaliation under the WPA, because it does not allege any whistleblowing activity or protected disclosure.
The last set of claims allege violations of the Privacy Act based on the “improper disclosure and use of personnel and medical records” by the Department of Defense during plaintiff’s effort to obtain unemployment benefits. But the amended complaint contains no facts that support the assertion that the records were “inaccurate.” Further the disclosure was part of the processing of plaintiff’s application for unemployment benefits, which falls under the “routine use” exception to the Privacy Act. Finally the amended complaint lacks any facts supporting the conclusory allegation that the disclosure was “willful,” as required to recover monetary damages under the Privacy Act.
Leave to amend
The proposed amended complaints do not allege any additional facts that support the claims presented in the operative amended complaint and are even more barren of factual allegations. For these reasons, plaintiff’s pending motions for leave to amend will be denied.
Plaintiff’s motions denied. Defendants’ motion to dismiss granted.
Akerman v. Austin, Case No. 1:22-cv-696, Nov. 3, 2022. EDVA at Alexandria (Brinkema). VLW 022-3-494. 26 pp.
