GIBBS v. DEPARTMENT OF THE INTERIOR et al

Filing 30

MEMORANDUM OPINION Signed by Judge Paul L. Friedman on 4/21/2014. (zmm, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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SALLY JEWELL, et al.,
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U.S. Secretary of the Interior,
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Defendants.
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___________________________________ )

JESSICA W. GIBBS,

Civil Action No. 13-0378 (PLF)

MEMORANDUM OPINION
This matter is before the Court on several motions filed by the parties in this
case. 2 Plaintiff Jessica Gibbs, proceeding pro se, alleges that she suffered various acts of
retaliation after lodging complaints about her supervisor and others within the Department of the
Interior (“DOI”), where Ms. Gibbs formerly was employed. See generally Compl. She further
alleges that the DOI’s Office of the Inspector General has retaliated against her and has violated
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The Court has substituted Secretary Sally Jewell in place of former Secretary Ken
Salazar pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
2

The papers reviewed in connection with the pending motions include the
following: plaintiff’s complaint (“Compl.”) [Dkt. No. 1]; defendants’ motion to dismiss (“Defs.’
MTD”) [Dkt. No. 16]; plaintiff’s first opposition (“Pl.’s 1st Opp.”) [Dkt. No. 21]; plaintiff’s
second opposition (“Pl.’s 2d Opp.”) [Dkt. No. 24]; plaintiff’s third opposition (“Pl.’s 3d Opp.”)
[Dkt. No. 26]; defendants’ reply (“Defs.’ Reply”) [Dkt. No. 25]; plaintiff’s motion for immediate
summary judgment (“Pl.’s MSJ”) [Dkt. No. 23]; plaintiff’s motion to stay agency proceedings
(“Pl.’s Mot. to Stay”) [Dkt. No. 27]; defendants’ opposition to plaintiff’s motion to stay agency
proceedings (“Defs.’ Opp.”) [Dkt. No. 28]; plaintiff’s reply (“Pl.’s Reply”) [Dkt. No. 29]; MSPB
Initial Decision in DC-1221-11-0794-B-1 (“MSPB Initial Decision (Aug. 1, 2012)”) [Dkt. No.
16-4]; MSPB Initial Decision in DC-1221-12-0725-W-1 (“MSPB Initial Decision (Nov. 28,
2012)”) [Dkt. No. 16-5]; MSPB Final Order in DC-1221-12-0725-W-1 (“MSPB Final Order
(Mar. 6, 2014)”) [Dkt. No. 28-1]; and MSPB Final Order in DC-1221-11-0794-B-1 (“MSPB
Final Order (Feb. 25, 2014)”) [Dkt. No. 28-2].

her due process rights in the course of investigating her alleged misuse of an agency charge
account. The government has moved to dismiss the action for lack of subject matter jurisdiction
or, in the alternative, for failure to state a claim. Ms. Gibbs has filed a motion for summary
judgment; she also has asked the Court to stay collection proceedings against her that are
ongoing within the DOI’s administrative system. After careful consideration of the parties’
papers, the relevant legal authorities, and the entire record in this case, the Court will dismiss the
action. Accordingly, it will deny the plaintiff’s two motions.

I. BACKGROUND
The plaintiff’s action stems from her former employment at the U.S. Geological
Survey, an agency within the Department of the Interior. See generally Compl. Ms. Gibbs
alleges that she reported complaints regarding two workplace incidents and then suffered various
forms of retaliation as a consequence. The first alleged incident involved a co-worker’s
“coercing” Ms. Gibbs to place a phone call to the supervisor of the co-worker’s niece, also an
agency employee, for the purpose of procuring increased tuition compensation benefits for the
niece. Id. at 2-3. Ms. Gibbs states that after being forced to make this call, she reported the
incident up her “chain of command.” Id. at 3. In the second episode, Ms. Gibbs’ supervisor,
Leslie Jones, allegedly asked her to sign and backdate a document, which Ms. Gibbs refused to
do. Id. at 1-3. Ms. Gibbs states that she complained to a number of authorities about this
incident, including DOI’s human resources office, its Office of the Inspector General (“OIG”),
its Office of Equal Employment Opportunity (“EEO”), and her congressional representatives.
See id. She contends that as a consequence of these reports, Ms. Jones retaliated against her by
withdrawing her purchase card authority, changing her work duties, “reconstructing [her]
performance plan,” filing complaints against Ms. Gibbs with OIG and human resources, and
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publicly humiliating and harassing her. Id. at 1. In addition, Ms. Gibbs alleges that Ms. Jones
forced her to lift and move several boxes, despites Jones’ awareness that the plaintiff suffered
from back trouble. Id. at 3-5. Ms. Gibbs subsequently sought medical attention, and she alleges
that Jones thwarted her ability to receive workers’ compensation for the injury. Id.
Linked to both of these incidents was a DOI program that permitted employees to
pursue college coursework at agency expense. Ms. Gibbs had taken advantage of this benefit
and she states that, for three years, Ms. Jones had attentively advised her in these educational
pursuits. See Compl. at 1-2, 6-7. But, it seems, Jones failed to ensure that Gibbs had submitted
necessary paperwork during those years, leading Jones to ask Gibbs to sign and backdate the
document. See id. at 2-3. The incident involving the coerced phone call also related to the
educational benefits program, as the co-worker sought Ms. Gibbs’ assistance in procuring a
higher level of benefits for her niece. Id. The upshot of these events was that, in addition to the
alleged retaliation that the plaintiff suffered at the hands of Ms. Jones, the OIG began
investigating Ms. Gibbs in relation to costs that she had charged to the agency. See id. at 3, 5-6.
It appears that this investigation has led to the agency’s pursuit of repayment from Ms. Gibbs in
internal collection proceedings. See id. at 2, 6-7. As previously noted, Ms. Gibbs has moved
this Court to stay these proceedings; she reports that the next scheduled hearing before DOI’s
Office of Hearings and Appeals will take place on April 22, 2014. Pl.’s Mot. to Stay at 1.
The final component of Ms. Gibbs’ complaint relates to the OIG’s conduct during
its investigation of her. Ms. Gibbs alleges that the OIG itself retaliated against her after she
contacted Senator Mark Warner in relation to these events. See Compl. at 5-7. Specifically, she
asserts that OIG agents have mistreated her and have refused to consider evidence that she has
sought to submit, thus denying her a “meaningful opportunity to be heard.” See id.

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Ms. Gibbs’ complaint, for all of the various facts that are alleged, neglects to
specify what form of relief she seeks. In addition, Ms. Gibbs alludes to ongoing proceedings
before the Merit Systems Protection Board (“MSPB”), but does not detail their nature or history.
See Compl. at 7-8. The government, however, has provided the Court with several decisions
issued by the MSPB arising from Ms. Gibbs’ claims before that body. See MSPB Final Order
(Mar. 6, 2014); MSPB Final Order (Feb. 25, 2014); MSPB Initial Decision (Nov. 28, 2012);
MSPB Initial Decision (Aug. 1, 2012). 3 These materials reveal that the plaintiff has pursued
through the administrative process claims based on the same allegations presented in her
complaint to this Court. The government argues that this Court therefore lacks jurisdiction over
the subject matter of Ms. Gibbs’ action because her claims, arising as they did in the federal
workplace, fall within the exclusive confines of the procedures prescribed by federal statute,
including resort to the MSPB. Defs.’ MTD at 4-6. If Ms. Gibbs is to reach federal court at all,
the government argues, she may do so only by appeal from a final decision of the MSPB to the
United States Court of Appeals for the Federal Circuit. See id. at 4.

II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction, with the ability to hear only cases
entrusted to them by a grant of power contained either in the Constitution or in an act of
Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir.
2005); Tabman v. FBI, 718 F. Supp. 2d 98, 100 (D.D.C. 2010). On a motion to dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the
plaintiff bears the burden of establishing that the Court has jurisdiction. See Tabman v. FBI, 718
F. Supp. 2d at 100; Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68,
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These decisions are the proper object of judicial notice, see Koch v. White, 967 F.
Supp. 2d 326, 331 (D.D.C. 2013), and Ms. Gibbs has not disputed their authenticity.
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72 (D.D.C. 2004). In determining whether to grant such a motion, the Court must construe the
complaint in the plaintiff’s favor and treat all well-pled allegations of fact as true. See Jerome
Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). But the Court need not
accept unsupported inferences or legal conclusions cast as factual allegations. See Primax
Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003). The Court may dispose of the
motion on the basis of the complaint alone or it may consider materials beyond the pleadings “as
it deems appropriate to resolve the question whether it has jurisdiction to hear the case.” Scolaro
v. D.C. Board of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see also Coalition
for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003).
In addition, in this case the Court is mindful that the plaintiff is proceeding pro se,
and therefore her complaint is to be “held to a less stringent standard than complaints drafted by
attorneys.” Dorsey v. American Express Co., 499 F. Supp. 2d 1, 3 (D.D.C. 2007) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

III. DISCUSSION
A. The Law Governing Federal Personnel Claims
Federal statutory law comprehensively regulates employment relations between
the United States government and its employees. Congress in 1978 passed the Civil Service
Reform Act (“CSRA”), Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered
sections of Title 5 of the U.S. Code), a “leading purpose” of which was “to replace the haphazard
arrangements for administrative and judicial review of personnel action” in the outdated civil
service system. United States v. Fausto, 484 U.S. 439, 444 (1988). “The CSRA protects
covered federal employees against a broad range of personnel practices, and it supplies a variety
of causes of action and remedies to employees when their rights under the statute are violated.”
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Grosdidier v. Chairman, Broadcasting Board of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009).
This scheme “is comprehensive and exclusive.” Id. “It constitutes the remedial regime for
federal employment and personnel complaints.” Nyunt v. Chairman, Board of Governors,
589 F.3d 445, 448 (D.C. Cir. 2009) (emphasis in original). Moreover, where the CSRA fails to
provide a remedy for a claim brought by a federal employee, the claim generally is not
actionable in any forum. See Fornaro v. James, 416 F.3d 63, 66-67 (D.C. Cir. 2005);
Graham v. Ashcroft, 358 F.3d 931, 933-36 (D.C. Cir. 2004).
In 1989, Congress amended the law pertaining to whistleblowing by federal
employees by enacting the Whistleblower Protection Act (“WPA”), Pub. L. No. 101-12, 103
Stat. 16 (codified as amended in scattered sections of Title 5 of the U.S. Code). Under its
provisions, a federal employee raising whistleblower claims generally must first complain to the
Office of Special Counsel (“OSC”). 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1209.5(a). If the OSC
either terminates its investigation of a claim or fails to notify the claimant whether it intends to
seek corrective action, the claimant may then pursue an individual right of action before the
MSPB. 5 U.S.C. § 1214(a)(3). A final decision of the MSPB is appealable to the Federal
Circuit, 5 U.S.C. § 7703(b)(1)(A), although certain whistleblower claims may also be appealed
to any court of appeals. 5 U.S.C. § 7703(b)(1)(B). In any event, “[u]nder no circumstances does
the WPA grant the District Court jurisdiction to entertain a whistleblower cause of action
brought directly before it in the first instance.” Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir.
2002); see also Weber v. United States, 209 F.3d 756, 757-58 (D.C. Cir. 2000) (describing
procedures for bringing whistleblower claims); Carson v. U.S. Office of Special Counsel, 514 F.
Supp. 2d 54, 56-57 (D.D.C. 2007) (same).

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Although federal employees generally are barred from bringing workplace-related
claims to federal district court, the CSRA specifically “preserves the rights of employees to bring
suit under Title VII and other federal anti-discrimination laws.” Mahoney v. Donovan, 721 F.3d
633, 635 n.4 (D.C. Cir. 2013) (citing 5 U.S.C. § 2302(d)). Federal employees may, of course,
bring these claims to district court after exhausting the requisite EEO procedures, but they also
may elect to pursue their discrimination-based claims before the MSPB. See 5 U.S.C. § 7702.
These “mixed cases” involve “an adverse personnel action subject to appeal to the MSPB
coupled with a claim that the action was motivated by discrimination.” Butler v. West, 164 F.3d
634, 638 (D.C. Cir. 1999). Upon a final decision from the MSPB on an employee’s mixed case
appeal, judicial review may then be obtained in the district court. Vickers v. Powell, 493 F.3d
186, 192 (D.C. Cir. 2007) (citing 5 U.S.C. § 7703(b)(2)).

B. Analysis
The government contends that the Court lacks jurisdiction over this matter
because Ms. Gibbs’ complaint is predicated on alleged harms that she suffered in the context of
her federal employment, see Defs.’ MTD at 5-6, and it further argues that Ms. Gibbs’ complaint
does not fall within the exception for discrimination-based claims because she alleges no
discriminatory conduct on the part of the defendants. Id. at 4; Defs.’ Reply at 3. The
government also emphasizes that Ms. Gibbs has pursued these precise claims in actions before
the MSPB, and therefore maintains that Ms. Gibbs’ sole option for further relief would lie in an
appeal to the Federal Circuit. Defs.’ MTD at 4-5; Defs.’ Reply at 3-4.

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Ms. Gibbs appears to contend that she has, in fact, alleged claims of
discrimination. 4 In her memoranda opposing the government’s motion to dismiss, Ms. Gibbs
alludes to having filed an EEO complaint prior to her initiation of MSPB proceedings, see Pl.’s
2d Opp. at 3-4, Pl.’s 3d Opp. at 1-2, and she argues that “the fact that EEOC accepted [her]
discrimination claims shows the EEOC found that at least on prima facie the claims are
discriminatory.” Pl.’s 3d Opp. at 1-2. 5 But Ms. Gibbs never specifies the grounds on which her
purported claims of discrimination were based and, in fact, her complaint in this action seems to
indicate that she simply reported to DOI’s EEO office the same non-discriminatory incident that
she also reported to a variety of other authorities — namely, Ms. Jones’ attempt to obtain her
signature on a backdated document. See Compl. at 1. In one of her memoranda, Ms. Gibbs
references the concept of a mixed case, but again, she does not argue that discrimination played
any role in the course of events at issue here. See Pl.’s 2d Opp. at 3-4. The gravamen of Ms.
Gibbs’ complaint surely is its narrative of whistleblowing and subsequent retaliation against her
by her supervisor and by the OIG. Moreover, Ms. Gibbs appears to have litigated her claims as
whistleblower claims — not as mixed claims — throughout the course of her proceedings before

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Ms. Gibbs also protests the fact that the government failed to serve her with its
motion to dismiss. Indeed, the government’s motion did not include a certificate of service, and
it appears that the motion was not transmitted by the government to Ms. Gibbs until nearly two
months after the motion had been filed. See Defs.’ Reply at 1-2. The Court admonishes the
government for its failure and emphasizes the importance of timely service when litigating
against a pro se plaintiff who lacks access to the ECF system. In this case, however, no
prejudice ensued because Ms. Gibbs ultimately did receive the government’s filing and had an
opportunity to respond.
5

Plaintiff’s third opposition to the defendants’ motion to dismiss was filed after the
government already had filed its reply. Ordinarily, the Court would not consider such a filing —
indeed, the Court usually would not consider a second opposition brief, let alone a third. But due
to the difficulty posed by the plaintiff’s at times inscrutable presentation of her claims and
arguments, the Court has found it useful to consult all of Ms. Gibbs’ various submissions.
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the MSPB. See MSPB Final Order (Mar. 6, 2014); MSPB Final Order (Feb. 25, 2014); MSPB
Initial Decision (Nov. 28, 2012); MSPB Initial Decision (Aug. 1, 2012).
Ms. Gibbs’ whistleblower claims have culminated in two final decisions issued by
the MSPB, which, at this time, remain appealable to the Federal Circuit. See MSPB Final Order
(Mar. 6, 2014), at 5-6 (informing Ms. Gibbs of her right to appeal to the Federal Circuit and
providing time limit within which any appeal must be filed); MSPB Final Order (Feb. 25, 2014),
at 6-7 (same). To the extent that Ms. Gibbs seeks to bring her whistleblower claims afresh in this
Court, therefore, her effort is misguided. As the D.C. Circuit has unequivocally stated, “[u]nder
no circumstances does the WPA grant the District Court jurisdiction to entertain a whistleblower
cause of action brought directly before it in the first instance.” Stella v. Mineta, 284 F.3d at 142.
Nor could this Court exercise appellate jurisdiction over the decisions of the MSPB. See
5 U.S.C. § 7703(b). If Ms. Gibbs wishes to further pursue these claims, she must heed the
notices provided to her by the MSPB regarding her right to appeal to the Federal Circuit.
Ms. Gibbs’ effort to cast as due process violations her allegations that the OIG
retaliated against her by refusing to accept evidence supporting her side of the story, see Compl.
at 6-7, do not alter this conclusion. See Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126, 2133-36
(2012) (holding that where federal employees challenge adverse employment actions on
constitutional grounds, the sole avenue for judicial review lies in an MSPB appeal followed by
review in the Federal Circuit); Bush v. Lucas, 462 U.S. 367, 380-90 (1983) (declining to fashion
Bivens remedy for federal employee’s allegations that First Amendment rights were violated by
superiors). The Court also must deny Ms. Gibbs’ motion for a stay of the collection proceedings
against her that are ongoing before the DOI’s Office of Hearings and Appeals. See generally
Pl.’s Mot. to Stay; Pl.’s Reply. Without resolving where Ms. Gibbs’ ultimate right of appeal

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might lie from any adverse action taken against her in those proceedings, it is clear that she has
yet to be subjected to any final agency action and, therefore, any challenge to the fairness of the
process to which she is now a party is premature. See Thermal Ecology Must Be Preserved v.
Atomic Energy Comm’n, 433 F.2d 524 (D.C. Cir. 1970) (per curiam) (declining to intervene in
ongoing agency proceedings where no final order had been issued); Connor-Stokes v. Ishimaru,
No. 09-0786, 2010 WL 1687952, at *1 (D.D.C. Apr. 27, 2010) (same).
For these reasons, this Court lacks jurisdiction over Ms. Gibbs’ whistleblower
claims; her sole remaining recourse lies in filing appeals to the Federal Circuit from the final
decisions already issued by the MSPB, in accordance with the instructions provided to her in
those decisions. And the Court also must deny Ms. Gibbs’ challenge to the collection
proceedings against her that are ongoing before DOI’s Office of Hearings and Appeals.
Consequently, the government’s motion to dismiss must be granted and Ms. Gibbs’ motions for
summary judgment and for a stay of agency proceedings must be denied. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.

/s/__________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: April 21, 2014

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