REYNOLDS v. U.S. DEPARTMENT OF JUSTICE et al
MEMORANDUM AND OPINION regarding the Court's Order 45 . Signed by Judge Royce C. Lamberth on January 21, 2014. (lcrcl4)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES DEPARTMENT
OF JUSTICE, ET AL.,
Civil No. 12-917 (RCL)
Before the Court are the defendants’ Partial Motion to Dismiss the Fourth Amended
Complaint  and the plaintiff’s Motion for Leave to File the Fifth Amended Complaint .
Upon consideration of each of these motions, the oppositions thereto, and the replies, the
defendants’ Motion  is GRANTED and the plaintiff’s Motion  is DENIED. And, for the
reasons stated herein, the plaintiff’s remaining claims will be transferred to the U.S. District
Court for the District of Maryland.
Gary Reynolds is a medical doctor previously employed by the federal Bureau of Prisons
(“BOP”) at the federal detention center in Philadelphia, Pennsylvania. On January 5, 2009, BOP
terminated Mr. Reynolds’ decade-long tenure as a Medical Officer after finding that Mr.
Reynolds improperly performed a breast examination during the pre-employment screening of a
female correctional officer.
In compliance with the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320a-7e, BOP reported Mr. Reynolds’
actions and subsequent termination to the National Practitioner Data Bank (“the Bank” or
“NPDB”)1. This case stems from Mr. Reynolds’ various challenges to the accuracy and validity
of that report.
A. The National Practitioner Data Bank
The NPDB is maintained by the Department of Health and Human Services (“HHS”) and
exists to improve healthcare quality by collecting and disseminating information regarding the
professional record of healthcare practitioners.
Federal agencies are required to report all
“adjudicated actions or decisions,” including employment terminations, to the NPDB “regardless
of whether the [termination] is subject to a pending appeal.” 45 C.F.R. § 60.16(a); 45 C.F.R. §
60.3. Subjects of adverse Bank reports who wish to challenge the accuracy or propriety of an
NPDB entry must first request that the reporting agency revise the report.
45 C.F.R. §
60.21(b)(3). If the agency declines, or fails to respond within 60 days, the subject may request
that the Secretary of HHS review the report for accuracy. Id. Secretarial review is limited to the
accuracy of the reported information and does not include “the merits or appropriateness of the
action or the due process that the subject received.” Id. § 60.21(c)(1). At the conclusion of the
review, the Secretary will decide whether to void the NPDB report or issue a corrected report,
typically within 30 days, though more time is permitted for “good cause.” Id. § 60.21(b)(3); §
B. Mr. Reynolds’ Administrative Challenge to the NPDB Report
BOP reported Mr. Reynolds’ termination to the Bank on February 5, 2009. Fourth Am.
Compl., Ex. D (Secretarial Review Decision, June 8, 2010), at 1. The report stated that
Prior to May 6, 2013, there were two separate medical data banks—the NPDB and the Healthcare Integrity and
Protection Data Bank (“HIPDB”). To eliminate overlap and duplication, Section 6403 of the Patient Protection and
Affordable Care Act merged the HIPDB into the NPDB. Patient Protection & Affordable Care Act, Pub. L. No. 11148 (2010). Only the NPDB exists today.
A female correctional officer filed a complaint with the agency alleging that a
male medical officer misused his power of position while conducting her preemployment physical examination. This allegation was sustained after an internal
investigation was completed. Medical officer was terminated on January 5, 2009.
Id. The reason for Mr. Reynolds’ termination was listed as a “non-sexual dual relationship or
boundary violation.” Id.
A year later, in January 2010, Mr. Reynolds requested Secretarial review of the NPDB
report. On June 8, 2010, HHS issued a decision denying Mr. Reynolds any relief, finding that
“when the Federal BOP terminated [Mr. Reynolds’] employment, they were legally required to
report [Mr. Reynolds] to the [NPDB].” Id. at 3. The decision letter encouraged Mr. Reynolds to
seek reconsideration of the decision should he become aware of information that was unavailable
to him at the time of his initial review request. Id.
C. District Court Litigation
Aside from his administrative challenge to the NPDB report, Mr. Reynolds filed three
separate lawsuits stemming from his tenure with, and termination from, BOP.
First, in March 2007, Mr. Reynolds filed Civil Action No. 07-0499 in this Court, alleging
employment discrimination on the basis of his race in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII case”). The complaint alleged that BOP supervisors restricted Mr.
Reynolds’ clinical privileges and denied him leave for military training on the basis of his race
and as retaliation for a prior discrimination complaint filed by Mr. Reynolds. Reynolds v.
Mukasey, Civ. No. 07-499, Compl., ECF No. 1. Pursuant to the venue provision of Title VII, 42
U.S.C. § 2000e-5(e)(3), this Court transferred the case to the Eastern District of Pennsylvania,
where the Philadelphia detention center is located. Mem. Op., No. 07-499, ECF No. 36. The
case, re-captioned Civil Action No. 08-4270, was dismissed on November 29, 2010 after the
parties reached a settlement. Reynolds v. Mukasey, No. 08-4270, Order, ECF No. 99. Under the
settlement agreement signed on December 24, 2010, BOP agreed to
[R]emove the January 5, 2009 letter of termination from Plaintiff’s personnel file
(and all references thereto) and [to] replace it with a form SF-50, noting Plaintiff’s
resignation from the BOP.
Fourth Am. Compl., Ex. E (Stipulation for Compromise Settlement, Dec. 24, 2010), at ¶ 2
[hereinafter Settlement Agreement].
Second, on August 5, 2009, Mr. Reynolds filed Civil Action No. 09-3096 in the Eastern
District of Pennsylvania alleging that BOP violated his constitutional right to due process,
violated various state and federal statutes, and engaged in tortious conduct against Mr. Reynolds.
The district court ultimately dismissed Mr. Reynolds’ complaint because “none of the claims
alleged therein is viable.” Reynolds v. BOP, No. 09-3096, Mem. Op., ECF No. 56, at 5. Mr.
Reynolds appealed to the U.S. Court of Appeals for the Third Circuit, but withdrew the appeal
pursuant to the agreement reached in his Title VII case. Reynolds v. BOP, No. 10-4250, Order,
ECF Doc. No. 003110395150, Dec. 30, 2010.
Finally, on October 20, 2010, Mr. Reynolds filed Civil Action No. 10-5549 in the Eastern
District of Pennsylvania challenging the NPDB report regarding his termination. The sole claim
presented by Mr. Reynolds was that the NPDB report should have listed the cause for his
termination as unprofessional conduct involving sexual misconduct rather than the boundary and
relationship violations cited in the report. Reynolds v. DOJ, No. 10-5549, Am. Compl., ECF No.
22. On December 24, 2010, roughly two months after Mr. Reynolds filed this complaint, Mr.
Reynolds and BOP settled the Title VII case. In a summary judgment motion filed on May 25,
2011, Mr. Reynolds argued that the terms of the settlement—which required BOP to replace the
termination letter with a resignation SF-50—precluded any report to the NPDB. S. J. Mot., ECF
No. 26, at ¶¶ 41–42.
On July 24, 2011, the district court granted summary judgment in favor of the
government, finding that the NPDB report “adequately describe[d] the actions of Reynolds and
the corresponding findings of the BOP.” Mem. Op., No. 10-5549, ECF No. 31, at 7. As to Mr.
Reynolds’ argument regarding the settlement agreement, the court found that because Mr.
Reynolds failed to advance that argument to HHS, he failed to exhaust his administrative
remedies. Id. Mr. Reynolds did not appeal.
D. The Present Case & Corrected NPDB Reports
More than a year after he was first invited to do so, and nearly one year after the
December 2010 settlement, Mr. Reynolds requested that HHS reconsider its decision regarding
the NPDB report, arguing that the settlement agreement required removal of the report entirely.
Fourth Am. Compl., Ex. L (Reconsideration Request, Nov. 27, 2011). Before receiving any
response from HHS, Mr. Reynolds filed the present action in June 2012. On October 11, 2012,
BOP filed three “corrected” NPDB reports, which supersede the original report. Fourth Am.
Compl., Ex. O (Data Bank Entries, Oct. 11, 2011). A letter accompanying the reports informed
Mr. Reynolds that if he disagreed with the corrected reports, he could request Secretarial review,
which Mr. Reynolds did in August 2013. Id. HHS has not yet issued a decision on Mr.
The Fourth Amended Complaint alleges nine causes of action: (1) failure of HHS to void
the original NPDB report in violation of the Administrative Procedures Act, 5 U.S.C. §§ 701–
706 (“APA”); (2) application for a writ of mandamus requiring HHS to void all NPDB reports
regarding Mr. Reynolds; (3) failure of BOP to release documents in violation of the Privacy Act,
5 U.S.C. § 552a; (4) failure of BOP to release documents in violation of the Freedom of
Information Act, 5 U.S.C. § 552 (“FOIA”); (5) failure of BOP to withdraw the initial NPDB
report and improper filing of the corrected reports in violation of the APA; (6) application for a
writ of mandamus requiring BOP to withdraw the NPBD reports filed in October 2012; (7)
deprivation of Mr. Reynolds’ liberty interest in having no NPDB reports in violation of the Due
Process Clause of the Fifth Amendment; (8) breach of the settlement agreement by failure to
allow Mr. Reynolds access to a corrected SF-50 pursuant to the Little Tucker Act, 28 U.S.C. §
1246(a)(2); and (9) retaliation by filing corrected NPDB report in violation of Title VII.
The government has moved to dismiss all except the third and fourth claims alleged in
the complaint. For the reasons stated below, the Court will dismiss Counts One, Two, Five, Six,
Seven, and Nine of the Fourth Amended Complaint, and transfer Counts Three, Four, and Eight
to the U.S. District Court for the District of Maryland. The Court will also deny as futile Mr.
Reynolds’ motion to amend his complaint.
The government makes the following arguments in support of its motion to dismiss: (1)
that the Eastern District of Pennsylvania is the proper venue for the claims arising from the
settlement agreement; (2) that the plaintiff’s claims regarding the NPDB report are barred by the
doctrine of res judicata; (3) that the plaintiff has failed to exhaust his administrative remedies
with respect to the corrected NPDB reports; (4) that the writ of mandamus is unavailable to the
plaintiff; (5) that the plaintiff has failed to state a claim upon which relief can be granted on his
Title VII retaliation claim; and (6) that the District of Maryland, and not this Court, is the proper
venue for the plaintiff’s claim under the Little Tucker Act, 28 U.S.C. § 1246(a)(2). The Court
will address each of these arguments in turn.
Generally, venue must be established as to each cause of action. See, e.g., Lamont v.
Haig, 590 F.2d 1124, 1135 (D.C. Cir. 1978). With the exception of Counts Eight and Nine,
discussed separately in Sections II.F and II.E, respectively, the venue for each of the plaintiff’s
claims is governed by 28 U.S.C. § 1391(e)(1), which permits civil actions against officers or
agencies of the United States to be brought in any “judicial district in which any defendant
resides.” Because each of the defendants reside and maintain offices and records in this district,
venue is not only proper under § 1391, but is also appropriate “[f]or the convenience of parties
and witnesses [and] in the interest of justice” under 28 U.S.C. § 1404(a). The government’s
argument that venue is more appropriate in the Eastern District of Pennsylvania because that
district has “a significant interest in reviewing a challenge to a settlement agreement that it
affirmed,” is unavailing—first because that court did not “affirm” the settlement but dismissed
the case on a joint motion of the parties prior to the execution of the settlement agreement, and
second, because interpretation of the settlement agreement is entirely separate from the facts of
the underlying case. Cf. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)
(noting that, in a case involving the proper jurisdiction for breach of a settlement agreement,
“[t]he suit involves a claim for breach of a contract, part of the consideration for which was
dismissal of an earlier federal suit. . . . The facts to be determined with regard to such alleged
breaches of contract are quite separate from the facts to be determined in the principal suit, and
automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court
The Court therefore finds that this district is a proper venue for Counts One, Two, Five,
Six, and Seven of the Fourth Amended Complaint.
B. Res Judicata
The doctrine of res judicata “is designed to conserve judicial resources, avoid
inconsistent results, engender respect for judgments of predictable and certain effect, and to
prevent serial forum-shopping and piecemeal litigation.” Hardison v. Alexander, 655 F.2d 1281,
1288 (D.C. Cir. 1981). To this end, the doctrine bars “repetitious suits involving the same cause
of action.” C.I.R. v. Sunnen, 333 U.S. 591, 597 (1948). Suits implicate the same cause of action
when they arise from the same “nucleus of facts.” Drake v. F.A.A., 291 F.3d 59, 66 (D.C. Cir.
2002). Once a court renders a final judgment on the merits of a cause of action, the parties are
forever precluded from “relitigating issues that were or could have been raised in that action.”
Id. Significantly for the present case, dismissal of a case for failure to exhaust administrative
remedies is a final judgment that triggers res judicata and bars subsequent litigation based upon
the same cause of action. See e.g., McGee v. D.C., 646 F. Supp. 2d 115, 123 (D.D.C. 2009)
Applying these principles to Mr. Reynolds’ complaint, this Court finds that Counts One,
Two, Five, Six, and Seven are barred by res judicata. Each of these claims stems from the same
nucleus of facts—BOP’s submission of the NPDB report and the effect of the Title VII
settlement agreement on that report. Mr. Reynolds advances two theories to support these causes
of action. First, he alleges that the settlement agreement transformed his termination into a
resignation, and second, that this transformation precludes any NPDB report regarding the
improper breast examination and his subsequent departure from the BOP. All of the facts and
both of these theories were available to Mr. Reynolds while his case was pending in the Eastern
District of Pennsylvania; yet, Mr. Reynolds declined to amend his complaint or appeal the
district court’s judgment. These failures require dismissal of Counts One, Two, Five, Six, and
Seven of Mr. Reynolds’ complaint.
A case from the U.S. Court of Appeals for the D.C. Circuit, Hardison v. Alexander, 655
F.2d 1281, 1288 (D.C. Cir. 1981), is particularly instructive. Hardison, a captain in the U.S.
Army, alleged that he was wrongfully denied two promotions and scheduled for involuntary
discharge from the Army. Captain Hardison simultaneously pursued administrative review and a
federal lawsuit. Like Mr. Reynolds, Hardison’s administrative appeal was unsuccessful and his
federal case dismissed—a decision that Hardison declined to appeal. And, as here, Hardison,
“despite his failure to appeal, . . . did not give up altogether,” but sought reconsideration of the
administrative decision. Unsatisfied with the outcome of that reconsideration, Hardison filed a
second federal suit. The D.C. Circuit affirmed the district court’s dismissal of Hardison’s case,
When Hardison failed to appeal the unfavorable summary judgment ruling of the
Michigan court, he permitted the judgment of that court to become final, and
forever lost the right to relitigate the issues he had an opportunity to raise before
Id. at 1289.
This reasoning applies equally to the present case. Mr. Reynolds’ argument that his
“new” claim based on the settlement agreement could not have been litigated in the EDPA fails
because just as in Hardison, Mr. Reynolds could have, but did not, properly advance those
arguments before the court that first considered his claims. Although the settlement agreement
occurred seven months prior to the summary judgment decision, Mr. Reynolds did not seek to
amend his complaint or seek a stay of the litigation in order to present the settlement argument to
HHS—both court-approved methods for avoiding the res judicata bar. See, e.g., Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 714–15 (9th Cir. 2001); Woods v. Dunlop Tire Corp.,
972 F.2d 36, 40–41 (2d Cir. 1992). And perhaps most significantly, Mr. Reynolds did not appeal
the district court’s summary judgment opinion.
Rather, he simply brought his claim to a
different jurisdiction and hoped for a different result. Allowing Mr. Reynolds’ claims to proceed
would defeat the purpose of res judicata “to prevent serial forum-shopping and piecemeal
litigation.” Hardison, 655 F.2d at 1288. As the Circuit stated in Hardison, “the appeal process is
available to correct error; subsequent litigation is not.” 655 F.2d at 1288.
Mr. Reynolds also argues that the corrected reports issued in October 2012 create a new
cause of action, but this is not so. In Hardison, the Circuit considered the question whether the
Army had waived the res judicata effect of the summary judgment ruling by agreeing to
reconsideration, thereby resurrecting the cause of action. In answer, the Circuit noted that
penalizing an agency for its willingness to reconsider would “only serve as a disincentive to
future flexibility.” Id. at 1289. Given the important policy interests served by res judicata, the
Circuit held that courts “should act with caution before [finding] an implicit waiver of the res
judicata effects of a judgment.” Id. at 1290. Mr. Reynolds has presented no compelling reason
to find an implicit waiver here.
Moreover, neither the statute nor the regulations governing the NPDB require
reconsideration of a final review decision; thus, the reconsideration offered by HHS is akin to the
standby advisory boards that reconsidered Captain Hardison’s promotion, which were not
required by statute but created as “an act of administrative grace,” Knehans v. Alexander, 566
F.2d 312, 315 (D.C. Cir. 1977). Faced with an undesirable outcome of such administrative
grace, Mr. Reynolds, like Captain Hardison, must “take the bitter with the sweet.” Hardison,
655 F.2d at 1290.2
This case is distinguishable from Poulin v. Bowen, 817 F.2d 865 (D.C. Cir. 1987), where the Circuit held that
while “a subsequent claim may be the same claim for res judicata purposes, if it has nevertheless been reconsidered
on the merits to any extent and at any administrative level, it is thereupon properly treated as having been, to that
extent, reopened as a matter of administrative discretion . . . [and] subject to judicial review to the extent of the
reopening.” In Poulin, the Circuit examined Social Security regulations that permitted administrative law judges to
dismiss claims based upon res judicata. Rather than doing so, the administrative law judge in Poulin expressly
declined to dismiss the claim on res judicata grounds and proceeded to adjudicate the case on the merits. Moreover,
Accordingly, Counts One, Two, Five, Six, and Seven of the Fourth Amended Complaint
are dismissed. 3
Even if Mr. Reynolds could somehow surmount the res judicata bar, the APA violations
alleged in Counts One and Five would be subject to dismissal because Mr. Reynolds has—yet
again—failed to exhaust his administrative remedies. The APA permits judicial review of “final
agency action for which there is no other adequate remedy.” 5 U.S.C. § 704. HHS regulations,
in accordance with HIPAA, delineate an administrative process for challenges to NPDB reports.
In response to the reconsideration requested by Mr. Reynolds, BOP has submitted corrected
NPDB reports to HHS, and HHS, per Mr. Reynolds’ request, is currently reviewing the propriety
of those reports. Judicial review at this juncture would improperly interfere with the agency’s
ability to “exercise its discretion and expertise on the matter and to make a factual record to
support its decision.” Hidalgo v. F.B.I., 344 F.3d 1256, 1258 (D.C. Cir. 2003).
D. Unavailability of Mandamus Relief
Additionally, the writs of mandamus sought in Counts Two and Six would be unavailable
to Mr. Reynolds even if those claims were not precluded by res judicata. The extraordinary
remedy of mandamus “generally will not issue unless  there is a clear right in the plaintiff to
the relief sought,  a plainly defined and nondiscretionary duty on the part of the defendant to
the government raised the res judicata defense for the first time on appeal. Thus, the Circuit held that “[t]he failure
to plead res judicata, coupled with the express waiver at the administrative level, precludes its application now.”
None of these factors exist in the present case.
Count Seven of the Fourth Amended Complaint alleges a violation of Mr. Reynolds constitutional “liberty interest
in having no [NPDB] reports.” It is worth noting that in addition to his failure to assert this claim in Civil Action
No. 10-5549, which centered on the original NPDB report, Mr. Reynolds actually raised the Fifth Amendment due
process argument in Civil Action No. 09-3096. There, his argument that BOP’s restrictions on his clinical privileges
and subsequent NPDB report infringed upon a constitutional property interest was rejected by the Eastern District of
Pennsylvania, Mem. Op., No. 09-3096, ECF No. 56, and Mr. Reynolds withdrew his appeal in that case.
honor that right, and  no other adequate remedy, either judicial or administrative, available.”
Ganem v. Heckler, 746 F.2d 844, 852 (D.C. Cir. 1984). Mr. Reynolds’ request for writs of
mandamus ordering HHS and BOP to void the NPDB reports fails on each of these three prongs.
First, it is not at all clear that a settlement agreement, which neither mentions the NPDB nor
negates BOP’s finding that Mr. Reynolds grossly abused his power as a physician, relieves BOP
of its statutory duty to report such abuse to the NPDB. Second—although both BOP’s duty to
report Mr. Reynolds’ abuse and subsequent termination and HHS’s duty to maintain an accurate
Data Bank are plainly defined—there is no plain, nondiscretionary duty to remove the reports
regarding Mr. Reynolds. Finally, there are administrative remedies available that Mr. Reynolds
has failed to exhaust. As such, mandamus is unavailable to the plaintiff and Counts Two and Six
are dismissed as Mr. Reynolds has failed to state a claim upon which relief can be granted.
E. Improper Venue & Failure to State a Claim of Title VII Retaliation
Count Nine of the Fourth Amended Complaint alleges that BOP retaliated against Mr.
Reynolds by filing the October 2012 corrected NPDB report in violation of Title VII.4 Aside
from the merits of the claim, the government argues that this this Court is not the proper venue
for this claim. Under 42 U.S.C. § 2000e-5(e)(3), a plaintiff may bring a Title VII action in (1)
any judicial district in the State in which the unlawful employment practice is alleged to have
been committed; (2) the judicial district in which the employment records relevant to such
Though the Court dismissed other Counts relating to the settlement agreement and the NPDB report as barred by
res judicata, Mr. Reynolds’ claims under the Little Tucker Act and Title VII are not precluded. Count Eight alleges
that BOP breached the settlement agreement by refusing to grant Mr. Reynolds access to the SF-50 promised in the
agreement, which negatively affected Mr. Reynolds’ efforts to secure new employment. Because the alleged breach
occurred after the prior suit, Civil Action No. 10-5549, was dismissed, it could not have been litigated in that case
and is not barred by res judicata. Count Nine alleges that the corrected NPDB reports were not prompted by Mr.
Reynolds’ reconsideration request, but were an act of reprisal for Mr. Reynolds’ prior claims of discrimination.
Claims based upon acts of discrimination occurring after an initial final judgment are not precluded by res judicata.
Indeed, in his concurring opinion in Hardison, for example, Judge Bazelon noted that had Captain Hardison’s
second complaint alleged an “unlawful act such as discrimination,” such a claim would have been proper.
Hardison, 655 F.2d at 1290. In other words, administrative grace may not be used a shield for unlawful
practice are maintained and administered; (3) in the judicial district in which the aggrieved
person would have worked but for the alleged unlawful employment practice; or (4) if the
respondent is not found within any such district, the judicial district in which the respondent has
its principal office. The unlawful employment practice alleged by Mr. Reynolds is the
submission of the corrected NPDB report in retaliation for his prior discrimination complaints.
In his opposition to the government’s motion, Mr. Reynolds avers that the address listed for BOP
on the NPDB report is in the District of Columbia; presumably, records regarding the report are
maintained in the District as well. Venue is proper in this district and the government’s motion
on this point is denied.
The government next alleges that Mr. Reynolds has failed to state a claim of retaliation
and moves this Court to dismiss this claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). Although Rule 8(a)(2) does not
require “detailed factual allegations,” a complaint must present more than “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements.” Id. Taken
together, the facts alleged in the complaint must be sufficient to raise a plausible claim and to
permit “the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In
deciding the motion, the Court must “accept the plaintiff’s factual allegations as true and
construe the complaint liberally, granting plaintiff the benefit of all inferences that can be
derived from the facts alleged.” Browning, 292 F.3d at 242. The facts alleged in Count Nine of
Mr. Reynolds’ complaint must therefore be sufficient to support a plausible claim of reprisal.
To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made
unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3)
that the employer took the action because the employee opposed the practice. McGrath v.
Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). Even assuming that each of the facts alleged by
Mr. Reynolds is true, this Court finds that the facts are insufficient to raise a plausible claim of
reprisal, particularly as to the third element of a retaliation claim. Mr. Reynolds is correct that a
false report to government authorities is a materially adverse action under Title VII. See, e.g.,
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006); Steele v. Schafer, 535 F.3d
689, 696 (D.C. Cir. 2008). But even if the report is materially adverse, Mr. Reynolds does not
specifically allege, and the complaint does not give rise to a reasonable inference that, the report
was filed because of the prior discrimination complaint. BOP is statutorily required to report
certain conduct to the NPDB, and it would be illogical to find the fulfillment of a statutory duty
illegal. Accordingly, Count Nine of Mr. Reynolds’ complaint is dismissed.
F. Venue Under the Little Tucker Act
Count Eight of Mr. Reynolds’ complaint, brought pursuant to the Little Tucker Act,
alleges that BOP breached the settlement agreement by refusing to produce the SF-50 reflecting
resignation rather than termination. Mr. Reynolds claims that BOP’s actions prohibited his
employment, and $300 monthly salary, as a physician at an outpatient clinic operated by the Air
Force. Fourth Am. Compl. ¶ 142. The Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives
sovereign immunity for civil actions against the federal government arising from “any express or
implied contract with the United States.” For suits such as this seeking damages less than
$10,000, the Act grants concurrent jurisdiction to federal district courts and the Court of Federal
Claims, id., but venue is limited to the district where the plaintiff resides, 28 U.S.C. § 1402(a)(1).
As Mr. Reynolds is a Maryland resident, the U.S. District Court for the District of Maryland is
the proper venue for this claim. Mr. Reynolds, however, asks this Court to consider his Little
Tucker Act claim under the doctrine of pendent venue.
The D.C. Circuit recognized the doctrine of pendent venue in Beattie v. U.S., 756 F.2d
91, 103 (D.C. Cir. 1984) abrogated on other grounds by Smith v. U.S., 507 U.S. 197 (1993). In
doing so, the Circuit reasoned that pendent venue mirrors pendent jurisdiction in that both
concepts “embod[y] factors that bear upon judicial economy, convenience, and fairness.” Id. at
103. In deciding whether to exercise pendent venue, courts should consider factors such as
“fairness to the litigants, convenience of the witnesses, and the avoidance of piecemeal
Problems arise in cases where some claims (e.g., Counts Three and Four) are properly
venued, while others (e.g., Count Eight) are not. Courts have recognized two approaches to
resolving this problem. The first approach focuses on whether any of the claims are controlled
by a specific venue provision, and if so, the venue mandated by that provision controls. See, e.g.,
Dehaemers v. Wynne, 522 F. Supp. 2d 240, 249 (D.D.C. 2007) (“[T]the authority in this Circuit
indicates that when a plaintiff brings a Title VII action, which is covered by Title VII’s
restrictive venue provision, as well as an action governed by the general venue provision, the
narrower venue provision of § 2000e–5(f)(3) controls.”); 14D Charles Alan Wright, Arthur R.
Miller et al., Federal Practice & Procedure, § 3808 (3d ed.) (noting that some courts “evince
concern about overriding congressional venue limitations. . . . [T]hus, claims governed by a
special venue statute cannot be appended for venue purposes to claims that are governed by the
general venue statute.”). The second approach, which originated in this district, asks which
claim is “primary” and applies the venue for the primary claim to all other claims. See, e.g.,
Hayes v. RCA Serv. Co., 546 F. Supp. 661, 664 (D.D.C. 1982) (holding that “if one of the causes
of action can be considered a principal one and the others are secondary, proper venue must be
established for that principal cause of action. This is particularly so if the principal cause of
action is governed by a narrower venue provision than the secondary cause of action.”) (internal
Under either approach—and given that this Court has dismissed, with the exception of
the FOIA and Privacy Act counts, all of Mr. Reynolds’s claims for which this Court was the
proper venue—transfer of what remains of this case to the District of Maryland is appropriate.
As an initial matter, all of Mr. Reynolds’ remaining allegations center on BOP’s alleged refusal
to produce SF-50’s and other documents related to Mr. Reynolds’ employment. Maintaining two
separate actions to adjudicate (1) whether BOP complied with FOIA and the Privacy Act in
producing the SF-50’s and other documents; and (2) whether BOP’s refusal to produce the SF-50
regarding Mr. Reynolds’ resignation/termination violated the settlement agreement would not
advance the goals of judicial economy, convenience, fairness, or the avoidance of piecemeal
litigation. Beattie, 756 F.2d at 103.
Mr. Reynolds’ primary remaining claim that BOP blocked his efforts to secure the SF-50
promised in the settlement agreement is controlled by the specific venue provision of the Little
Tucker Act. See 28 U.S.C. § 1402(a)(1).
Accordingly, Counts Three, Four, and Eight will be transferred to the District of
Maryland. As such, any amendment to the complaint in this Court would be futile, and Mr.
Reynolds’ motion for leave to file is denied.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, United States District Judge, on January 21, 2014.
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