Jim Lee v. AID, et al

Filing

OPINION [1679948] filed PER CURIAM OPINION (Pages: 8). [16-5276]

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided June 16, 2017
No. 16-5276
JIM LEE,
APPELLANT
v.
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
AND NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION,
APPELLEES
On Motion for Summary Affirmance
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-02102)
Rhonda L. Campbell and R. Craig Lawrence, Assistant U.S.
Attorneys, were on the motion for summary affirmance.
Jim Lee, pro se, was on the response for appellant.
Before: ROGERS, KAVANAUGH, and MILLETT, Circuit
Judges.

Page 1 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

2
PER CURIAM: Jim Lee, proceeding pro se, appeals the
grant of the motion for judgment on the pleadings to the United
States Agency for International Development (“USAID”) and
the National Oceanic and Atmospheric Administration
(“NOAA”) (together “the agencies”). Lee contends that the
agencies violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., by terminating his employment because
of his national origin. He also contends that NOAA violated 18
U.S.C. § 1001, which criminalizes false statements to the
government, by lying about why he was terminated.
The only aspect of his appeal that merits extended
discussion is whether 18 U.S.C. § 1001 creates a private right of
action. We hold it does not.
I.
According to the complaint, Lee was employed by a federal
contracting firm and worked at USAID from 2008 until he was
fired in 2013. Lee alleges that USAID terminated his
employment after the Department of Defense denied his
application for a security clearance in 2012, and that he was
denied a clearance because he and his family are from China.
In July 2013, Lee began working for NOAA. As with his
previous position, he was employed directly by a federal
contracting firm, SSAI. On April 30, 2014, Lee was fired.
Lee contacted several people at the Department of Defense,
NOAA, and SSAI to determine why his employment was
terminated. Believing he was fired because of his national
origin, Lee alleges he called the Equal Employment Opportunity
Commission (“EEOC”) around the end of May or beginning of
June to make a complaint against NOAA. An EEOC
representative purportedly told Lee that he would have to sue

Page 2 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

3
SSAI, which in turn, would sue NOAA. Several months later,
Lee contacted NOAA’s Equal Employment Opportunity
(“EEO”) office and began communicating with an EEO
counselor. Lee alleges that during the counselor’s investigation
of his claims, a NOAA official told her that SSAI, not NOAA,
decided to fire Lee. The counselor emailed Lee to inform him
of this information, specifying that SSAI contacted NOAA and
told the agency to stop processing Lee’s paperwork because
SSAI decided to take him off the NOAA contract. Lee alleges
that when he contacted an SSAI manager and told him what the
EEO counselor had said, the manager told him that “was
absolutely not true.”
Lee filed with the EEOC an employment discrimination
complaint against SSAI. When the EEOC dismissed his
complaint, he sued USAID and NOAA in the district court,
seeking damages and an injunction against further
discrimination and retaliation. He alleges that NOAA and
USAID violated Title VII by terminating his employment
because of his national origin and that NOAA violated 18 U.S.C.
§ 1001 by falsely stating during the EEO investigation that
SSAI, rather than NOAA, fired him. The district court granted
the agencies’ motion for judgment on the pleadings and
dismissed the complaint with prejudice, ruling that Lee does not
have a Title VII claim against the federal government because
he was a federal contractor, not a federal employee, and in any
event, Lee failed to timely exhaust his administrative remedies.
The district court also ruled that 18 U.S.C. § 1001 does not
provide a private right of action. Lee appeals the dismissal of
his complaint, and the agencies move for summary affirmance.
II.
On appeal, Lee offers no legal support to show that
Section 1001 provides a private cause of action. Because this is

Page 3 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

4
a recurring issue and there are no published decisions by the
Court, we address it here and conclude for the following reasons
that it does not.
Section 1001 provides, with exceptions not applicable here:
(a) Except as otherwise provided in this section,
whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the
Government of the United States, knowingly and
willfully –
(1) falsifies, conceals, or covers up by any trick,
scheme, or device a material fact;
(2) makes any materially false, fictitious, or
fraudulent statement or representation; or
(3) makes or uses any false writing or document
knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than
5 years, or, if the offense involves international or
domestic terrorism (as defined in section 2331),
imprisoned not more than 8 years, or both. If the matter
relates to an offense under chapter 109A, 109B, 110, or
117, or section 1591, then the term of imprisonment
imposed under this section shall be not more than 8
years.
18 U.S.C. § 1001.1

1

The remainder of Section 1001 provides:
(b) Subsection (a) does not apply to a party to a

Page 4 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

5
Congress creates federal rights of action to enforce federal
laws. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Such
causes of action may be created explicitly or implicitly. The
touchstone is always Congress’s intent. Id. An explicit right to
sue is created by the text of the statute. “An express federal
cause of action states, in so many words, that the law permits a
claimant to bring a claim in federal court.” Traverse Bay Area
Intermediate School Dist. v. Michigan Dep’t of Educ., 615 F.3d
622, 627–28 (6th Cir. 2010) (quoting Int’l Union of Operating
Eng’rs, Local 150, AFL-CIO v. Ward, 563 F.3d 276, 283 (7th
Cir. 2009)). Section 1001 does not expressly grant an individual
cause of action to private persons alleging that they were harmed

judicial proceeding, or that party’s counsel, for
statements, representations, writings or documents
submitted by such party or counsel to a judge or
magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction
of the legislative branch, subsection (a) shall apply
only to –
(1) administrative matters, including a claim for
payment, a matter related to the procurement of
property or services, personnel or employment
practices, or support services, or a document
required by law, rule, or regulation to be
submitted to the Congress or any office or
officer within the legislative branch; or
(2) any investigation or review, conducted
pursuant to the authority of any committee,
subcommittee, commission or office of the
Congress, consistent with applicable rules of the
House or Senate.

Page 5 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

6
by violations of the statute. The question therefore becomes
whether the statute implies a private cause of action.
Determining whether Congress intended to create an
implied cause of action begins with the text and structure of the
statute. Touche Ross & Co. v. Redington, 442 U.S. 560, 568
(1979). The Supreme Court has “rarely implied a private right
of action under a criminal statute,” Chrysler Corp. v. Brown,
441 U.S. 281, 316 (1979), and nothing in the text of 18 U.S.C.
§ 1001 suggests Congress intended otherwise. Although the
express “provision of a criminal penalty does not necessarily
preclude implication of a private cause of action for damages,”
such a provision in a “bare criminal statute,” with no other
statutory basis for inferring that a civil cause of action exists, is
insufficient to imply Congress intended to create a concomitant
civil remedy. Cort v. Ash, 422 U.S. 66, 79–80 (1975); see also
Central Bank of Denver, N.A. v. First Interstate Bank of Denver,
N.A., 511 U.S. 164, 190 (1994). Nor does the structure of
Section 1001 imply a private cause of action inasmuch as it is
part of the criminal code.
And looking beyond the “bare criminal statute,” the
legislative history of Section 1001 supports our conclusion.
Section 1001 is a Civil War statute that was enacted to protect
against “bilk[ing] the Government out of money or property.”
Hubbard v. United States, 514 U.S. 695, 706 (1995). When
amended in 1934, Congress broadened the purpose of Section
1001 “to aid the enforcement of laws” and to protect “federal
agencies from the variety of deceptive practices plaguing the
New Deal administration.” Id. at 707. Then, in 1996, after the
Supreme Court in Hubbard narrowly interpreted the scope of the
statute to exclude making false statements to the legislative and
judicial branches, Congress amended Section 1001 to clarify
that it criminalizes making knowing, willful, material false
statements not only to the executive branch, but also — with

Page 6 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

7
certain limitations — to the legislative and judicial branches.
142 Cong. Rec. S11605-02 (1996) (statement of Sen. Levin).
Neither the 1996 amendments nor subsequent amendments in
2004 and 2006, which established longer maximum prison terms
for violations involving terrorism and certain sexual offenses,
indicate that Congress intended to create a private cause of
action under Section 1001. Moreover, Section 1001 was
originally enacted in the same bill as the precursor to the False
Claims Act, 31 U.S.C. §§ 3729 et seq., which does provide for
an express cause of action, id. § 3730(b). See Act of Mar. 2,
1863, ch. 67, 12 Stat. 696 (1863). The 1934 amendment to
Section 1001 “sever[ed] the historical link with the false claims
portion of the statute.” Hubbard, 514 U.S. at 706. That
Congress did not then carry over an express cause of action for
false statements, while leaving one in place elsewhere for false
claims, further belies any intent to create an implied cause of
action under Section 1001. See Touche Ross & Co., 442 U.S. at
571–72.
Accordingly, we affirm the dismissal of Lee’s claim under
18 U.S.C. § 1001 because the statute does not create a private
cause of action.
III.
Lee’s remaining contentions lack merit and we affirm, with
one modification of the order of dismissal. Lee contends that he
was unlawfully terminated from USAID and NOAA because of
national origin discrimination in violation of Title VII. Taking
the allegations of the complaint as true, as we must, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), it is unclear whether he was a
federal employee within the meaning of Title VII. See Al-Saffy
v. Vilsack, 827 F.3d 85, 96 (D.C. Cir. 2016) (citing Spirides v.
Reinhardt, 613 F.2d 826, 831–32 (D.C. Cir. 1979)). But even if
Lee were a federal employee, he failed to exhaust his

Page 7 of 8

USCA Case #16-5276

Document #1679948

Filed: 06/16/2017

8
administrative remedies. See Payne v. Salazar, 619 F.3d 56, 65
(D.C. Cir. 2010); Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995). Although Lee filed an EEOC complaint regarding
his termination from NOAA, that complaint was dismissed and
did not effectively exhaust his administrative remedies because,
as Lee acknowledges, Compl. ¶ 30, it asserted claims only
against SSAI rather than the defendant in this action, NOAA.
On the facts as alleged, however, if tolling applies, see 29
C.F.R. § 1614.105(a)(2), Lee might be able to refile his
administrative complaint and timely exhaust his administrative
remedies against NOAA. Harris v. Gonzales, 488 F.3d 442, 444
(D.C. Cir. 2007); see also Currier v. Radio Free Europe/Radio
Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998). Therefore,
the order of dismissal shall be modified to state that the Title VII
claim against NOAA is dismissed without prejudice. Because
Lee concedes that he never attempted to timely exhaust his
administrative remedies against USAID, his Title VII claim
against USAID shall remain dismissed with prejudice.

Page 8 of 8