HORNSBY v. THOMPSON
MEMORANDUM OPINION granting in part and denying in part 8 Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment; and transferring case to the Federal Circuit. See document for details. Signed by Judge Rudolph Contreras on 1/17/2023. (lcrc1)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SANDRA L. THOMPSON,
Civil Action No.:
Re Document No.:
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT; AND TRANSFERRING TO THE FEDERAL
Plaintiff Richard Hornsby (“Plaintiff”) brings the instant action against Sandra L.
Thompson (“Defendant”), the Acting Director of the Federal Housing Finance Agency (“FHFA”
or “the agency”), and raises a number of claims arising out of the termination of his employment
as Chief Operating Officer of the FHFA and his subsequent appeal of that termination to the
United States Merit Systems Protection Board (“MSPB”). Specifically, Plaintiff alleges that: (1)
in terminating his employment, Defendant retaliated against him in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and the Civil Service Reform Act (“CSRA”), 5
U.S.C. § 2302(b); (2) the Administrative Judge (“AJ”) and MSPB adjudicating Plaintiff’s appeal
failed to provide him with interim relief, in violation of 5 U.S.C. § 7701(b)(2)(A); and (3) the
MSPB’s affirmation of the agency’s decision to terminate Plaintiff’s employment was arbitrary,
capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in
accordance with the law. Compl. ¶¶ 44–48, ECF No. 1. Defendant has filed a motion to dismiss
or, in the alternative, a motion for summary judgment, contending that the Court must first
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dismiss Plaintiff’s retaliation claim for failure to exhaust administrative remedies and then
dismiss Plaintiff’s remaining claims for lack of subject-matter jurisdiction. Mem. in Supp.
Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at 1–2, ECF No. 8-1.
For the reasons explained below, the Court grants Defendant’s motion insofar as it seeks
dismissal of Plaintiff’s retaliation claim, but denies Defendant’s request that Plaintiff’s remaining
claims be dismissed and instead transfers those claims to the Federal Circuit.
A. Statutory Framework
The CSRA “provides a grievance process and remedies to an employee who believes that
he is the victim of a prohibited personnel practice,” Wilson v. U.S. Dep’t of Transp., 759 F. Supp.
2d 55, 63 (D.D.C. 2011), whereas Title VII “prohibits the federal government from . . .
retaliating against employees for engaging in activity protected by Title VII,” Montgomery v.
Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). “When an employee believes he is the victim of a
prohibited practice that was motivated by discrimination in violation of Title VII, the employee
can file a ‘mixed case,’ i.e. one alleging violation of both CSRA and Title VII.” Wilson, 759 F.
Supp. 2d at 63 (D.D.C. 2011). “Government employees alleging discrimination in violation of
Title VII or challenging personnel practices prohibited by the Civil Service Reform Act must
exhaust administrative remedies before bringing their claims to federal court.” Hamilton v.
Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012) (citations omitted). Those who file mixed cases
can exhaust administrative remedies by either “(1) fil[ing] a discrimination complaint with the
agency through the agency’s Equal Employment Opportunity (‘EEO’) Office, or (2) fil[ing] an
appeal directly with the MSPB.” Rodgers v. Perez, 139 F. Supp. 3d 67, 71 (D.D.C. 2015) (citing
29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154(a)); see also Hamilton, 666 F.3d at 1349–50
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(“Because Hamilton’s 2002 detail claim presented a ‘mixed case,’ involving charges of both
discrimination and prohibited personnel practices, Hamilton could have exhausted his
administrative remedies by presenting his claim either to the IRS’s EEO office or to the Merit
Systems Protection Board.”); accord Morris v. Jackson, 842 F. Supp. 2d 171, 177 (D.D.C.
2012), aff’d sub nom. Morris v. McCarthy, 825 F.3d 658 (D.C. Cir. 2016). But “[a]n employee
cannot maintain the same action in both forums,” and must instead “exhaust [his] administrative
remedies in the forum where [his] complaint or appeal was first filed.” Rodgers, 139 F. Supp. 3d
at 71 (citations omitted).
“Generally, decisions of the MSPB ‘are reviewed in the Federal Circuit,’” but an
“exception is made for ‘mixed cases’ brought before the MSPB that allege adverse employment
action along with allegations of discrimination.” Bowe-Connor v. McDonald, No. 15-cv-231,
2016 WL 5675854, at *2 (D.D.C. Sept. 30, 2016) (citation omitted). Thus, an employee who
“pursues a mixed case appeal with the MSPB . . . may appeal an adverse decision by filing suit in
federal district court.” Rodgers, 139 F. Supp. 3d at 71 (citing 5 U.S.C. § 7703(b)(2)).
B. Factual and Procedural Background
The instant case arises out of facts and allegations recounted in significant part by the
D.C. Circuit in Hornsby v. Watt, No. 17-5001, 2017 WL 11687516 (D.C. Cir. Nov. 14, 2017),
which affirmed the decision of another court in this District that dismissed Plaintiff’s previous,
related case filed in 2016. Id. at *1. In that case, the D.C. Circuit recounted:
According to the complaint, Richard Hornsby became the Chief Operating Officer of the
Federal Housing Finance Agency (“FHFA”) on December 5, 2011. On April 25, 2014,
he settled an employee’s human resources complaint against another employee, Jeffrey
Risinger. Three days later, Risinger falsely reported to FHFA’s lawyers and its Office of
Inspector General that he had heard Hornsby make kidnapping, physical harm, and death
threats against Hornsby’s previous supervisor, Edward DeMarco. That same day,
Hornsby denied making these threats but was escorted from his workplace and placed on
paid administrative leave, which included his salary and benefits. On April 30, 2014,
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Hornsby was arrested for three felony charges at his home by agents dressed in assault
gear. He remained overnight in the D.C. jail. Soon after a senior FHFA official leaked
news of Hornsby’s arrest to several media outlets. He remained on paid administrative
leave during the pendency of his criminal proceedings, during which time FHFA offered
him a settlement and threatened to place him on indefinite suspension.
On November 20, 2014, Hornsby was acquitted of the charges, which had been reduced
to two misdemeanors. Hornsby was “chagrined” that he was not immediately reinstated
to his FHFA position. Twenty-nine days after his acquittal the FHFA director, appellee
Melvin Watt, issued a proposal to terminate his employment. This decision was made
final, effective March 21, 2015[.]
Id. (internal citations omitted).1
Plaintiff then appealed his termination to the MSPB, “challeng[ing] his removal on the
substantive merits and also rais[ing] an affirmative defense of retaliation for his prior EEO
activity.” Compl. ¶ 27. In July 2016, the AJ issued an Initial Decision that reversed Plaintiff’s
termination but that also found that Plaintiff had failed to prove his claim of retaliation. Id. ¶ 28.
On August 25, 2016, FHFA filed a Petition for Review of the AJ’s Initial Decision with the
MSPB. Id. ¶ 30. Plaintiff then filed a response opposing the FHFA’s Petition for Review of the
Initial Decision, in which he contended that the MSPB should deny the agency’s petition because
the AJ “made no erroneous findings of material fact, or erroneous applications of law.” Ex. 1 to
Def.’s Mem., Appellant’s Resp. in Opp’n to Agency’s Pet. for Review of Initial Decision (“Pl.’s
Response to Pet. for Review”) at 9, ECF No. 8-2. But because the MSPB did not have a quorum
for over five years, the MSPB only issued a final decision on the FHFA’s petition in April 2022.
Compl. ¶¶ 31–32. Its decision of April 28, 2022 “revers[ed]” the AJ’s Initial Decision and
“order[ed] Mr. Hornsby’s termination be reinstated,” in addition to “affirming the AJ’s
determination that Mr. Hornsby had not proven the affirmative defense that his removal was the
The Court has the “authority to judicially notice related proceedings in other courts.”
Dupree v. Jefferson, 666 F.2d 606, 608 n.1 (D.C. Cir. 1981) (citations omitted).
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product of unlawful retaliation based upon his participation in EEO activity.” Id. ¶ 32. In
particular, the Board noted:
Neither of the parties has challenged the administrative judge’s finding that the appellant
failed to prove his affirmative defense of EEO reprisal, and we discern no reason to
disturb this finding. . . . Because the appellant here failed to prove his initial burden that a
prohibited factor played any part in the agency’s decision, we do not reach the question
of whether EEO reprisal was a but-for cause of that decision.
Ex. 2 to Def.’s Mem., MSPB Final Order at 4 n.5, ECF No. 8-3.
Plaintiff now seeks to challenge the MSPB’s final decision in this Court and alleges that:
(1) in terminating his employment, Defendant retaliated against him in violation of Title VII of
the Civil Rights of Act of 1964, 42 U.S.C. § 2000e-3, and the Civil Service Reform Act, 5
U.S.C. § 2302(b); (2) the AJ and MSPB adjudicating Plaintiff’s appeal failed to provide him with
interim relief, in violation of 5 U.S.C. § 7701(b)(2)(A); and (3) the MSPB’s affirmation of the
agency’s decision to terminate Plaintiff’s employment was arbitrary, capricious, an abuse of
discretion, unsupported by substantial evidence, or otherwise not in accordance with the law.
Compl. ¶¶ 44–48. Defendant filed a motion to dismiss or, in the alternative, a motion for
summary judgment, contending that the Court must first dismiss Plaintiff’s retaliation claim for
failure to exhaust administrative remedies and then dismiss Plaintiff’s remaining claims for lack
of subject-matter jurisdiction. Def.’s Mem. at 1–2. Plaintiff filed an opposition to Defendant’s
motion, see generally Pl.’s Opp’n to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J.
(“Pl.’s Opp’n”), ECF No. 10, and Defendant filed a reply, see generally Def.’s Reply in Supp. of
Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Reply”), ECF No. 11.
Defendant’s motion is therefore ripe for consideration.
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III. LEGAL STANDARD
A. Administrative Exhaustion
“Government employees alleging discrimination in violation of Title VII or challenging
personnel practices prohibited by the Civil Service Reform Act must exhaust administrative
remedies before bringing their claims to federal court.” Hamilton, 666 F.3d at 1349 (citations
omitted). With respect to the CSRA, “exhaustion of administrative remedies is a jurisdictional
prerequisite to suit.” Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996). By
contrast, “the failure to exhaust administrative remedies is a precondition to bringing a Title VII
claim in federal court, rather than a jurisdictional requirement.” Dahlman v. Am. Ass’n of
Retired Persons (AARP), 791 F. Supp. 2d 68, 76 (D.D.C. 2011) (quoting Francis v. City of N.Y.,
235 F.3d 763, 767–68 (2d Cir. 2000)). The defendant “bears the burden of proving by a
preponderance of the evidence that the plaintiff has failed to exhaust his administrative
remedies” with respect to his Title VII claim. Briscoe v. Costco Wholesale Corp., 61 F. Supp. 3d
78, 84–85 (D.D.C. 2014) (quoting Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 276 (D.D.C.
2011)). Where the defendant meets this burden, “the burden shifts to the plaintiff to demonstrate
that dismissal is not warranted.” Id. at 85. But “[e]ven if [a] plaintiff has not properly exhausted
his administrative remedies by failing to follow the highly technical requirements relating to
mixed case filings, the failure to do so does not bar plaintiff from filing a complaint” and a
plaintiff “may be excused from exhaustion requirements where the Court finds that there are
equitable reasons for doing so.” Broom v. Caldera, 129 F. Supp. 2d 25, 29 (D.D.C. 2001)
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B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
“‘[M]otions to dismiss for exhaustion . . . are more appropriately addressed as motions to
dismiss for failure to state a claim under Rule 12(b)(6)’ than for lack of jurisdiction under
12(b)(1).” Bowe-Connor v. McDonald, No. 15-cv-231, 2016 WL 5675854, at *2 (D.D.C. Sept.
30, 2016) (citation omitted), aff’d and remanded sub nom. Bowe-Connor v. Shulkin, No. 165289, 2017 WL 2373002 (D.C. Cir. Apr. 11, 2017); see also Morris, 842 F. Supp. 2d at 176
(analyzing motion to dismiss for failure to exhaust administrative remedies under Federal Rule
of Civil Procedure 12(b)(6)). But see Fernandez v. Donovan, 760 F. Supp. 2d 31, 34 (D.D.C.
2011) (reviewing motion under the Rule 12(b)(1) framework because CSRA exhaustion is
jurisdictional, while also noting that a 12(b)(6) analysis is “required” if a statute does not contain
“sweeping and direct statutory language indicating that there is no federal jurisdiction prior to
exhaustion” (citation omitted)). Accordingly, the Court will apply the standard applicable to a
motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) to
Defendant’s administrative exhaustion argument.2
The Court may consider the exhibits attached to Defendant’s motion—Plaintiff’s
response in opposition to the FHFA’s Petition for Review and the MSPB’s Final Order—in
resolving the motion as a motion to dismiss. See E.E.O.C. v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997) (“In determining whether a complaint fails to state a claim,
[the court] may consider only the facts alleged in the complaint, any documents either attached to
or incorporated in the complaint and matters of which we may take judicial notice.”). Defendant
is correct that the second exhibit, the MSPB’s Final Order, was incorporated into Plaintiff’s
complaint by reference. Compl. ¶¶ 2, 32–43. The Complaint does not, however, refer to the first
exhibit attached to Defendant’s motion, Plaintiff’s Response to the FHFA’s Petition for Review
of the AJ’s Initial Decision. Nevertheless, “even when the complaint does not expressly
incorporate a document, the court may consider [in deciding a motion to dismiss] ‘documents
upon which the plaintiff’s complaint necessarily relies,’ including those ‘produced not by the
plaintiff in the complaint but by the defendant in a motion to dismiss.’” Cogdell v. Murphy, No.
19-cv-2462, 2020 WL 6822683, at *3 (D.D.C. Nov. 20, 2020) (quoting Page v. Mancuso, 999 F.
Supp. 2d 269, 275 (D.D.C. 2013)). Here, the Complaint necessarily relies on Plaintiff’s response
to the FHFA’s Petition for Review because Plaintiff in part challenges the MSPB’s affirmation
of the agency’s decision despite the arguments in that response.
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To meet the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain “‘a short and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss, the “complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In
considering such a motion, a court must construe the complaint “liberally in the plaintiff’s favor
with the benefit of all reasonable inferences derived from the facts alleged.” Stewart v. Nat’l
Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006) (citing Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994)). But “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). Further, a court need not accept a plaintiff’s legal conclusions as
true, see id., nor presume the veracity of legal conclusions that are couched as factual allegations,
see Twombly, 550 U.S. at 555.
C. Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Federal courts are courts of limited jurisdiction, see Gen. Motors Corp. v. EPA, 363 F.3d
442, 448 (D.C. Cir. 2004), and must therefore address jurisdiction as a “threshold matter,” Steel
Thus, whether the Court decides the motion under Rule 12(b)(1) or Rule 12(b)(6), the
Court considers the same documents. Moreover, because “12(b)(1) and 12(b)(6) motions are
reviewed using similar standards,” the Court’s decision on this motion would remain the same
even if it were to consider it under the standard applicable under Rule 12(b)(1). Fernandez, 760
F. Supp. 2d at 35 n.1; see also Marcelus v. Corr. Corp. of Am./Corr. Treatment Facility, 540 F.
Supp. 2d 231, 235 n.5 (D.D.C. 2008) (“Although resolution of a Rule 12(b)(1) motion requires
‘closer scrutiny’ than resolution of a Rule 12(b)(6) motion, since plaintiff’s claims cannot
survive Rule 12(b)(6) scrutiny, they would not withstand jurisdictional scrutiny.” (internal
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Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). To determine whether jurisdiction
exists, a court may “undertake an independent investigation to assure itself of its own subject
matter jurisdiction” and “consider facts developed in the record beyond the complaint.” CFA
Inst. v. Andre, 74 F. Supp. 3d 462, 465 (D.D.C. 2014) (quotation marks and citations omitted).
“Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a preponderance
of the evidence.” Grell v. Trump, 330 F. Supp. 3d 311, 316 (D.D.C. 2018) (citing Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992)).
Although Plaintiff argues that he did not waive his retaliation claim through an
“intentional relinquishment or abandonment of a known right,” Pl.’s Opp’n at 1, a claim “may be
abandoned explicitly or by actions or inactions of the petitioning party,” Wilder v. Paulson, No.
8-cv-1349, 2010 WL 11606948, at *6 (N.D. Ga. June 16, 2010) (citations omitted). Plaintiff did
not file either a petition or cross-petition for review of the AJ’s findings as to his retaliation
claim, stating instead in his response to the FHFA’s Petition for Review that the AJ “made no
erroneous findings of material fact, or erroneous applications of law.” Pl.’s Resp. to Pet. for
Review at 9. Through his inaction, Plaintiff effectively abandoned his retaliation claim, such
that the Court must now dismiss that claim due to Plaintiff’s failure to exhaust his administrative
remedies before the MSPB.3 Moreover, because Plaintiff did not respond in his opposition to
As Defendant acknowledges, a claim of retaliation is made as an affirmative defense
before the MSPB. Def.’s Reply at 3 & n.1. In discussing the forfeiture of affirmative defenses,
the D.C. Circuit has “note[d] the distinction between forfeiture and waiver, terms which ‘though
often used interchangeably by jurists and litigants . . . are not synonymous.’” Maalouf v. Islamic
Republic of Iran, 923 F.3d 1095, 1107 (D.C. Cir. 2019) (quoting Hamer v. Neighborhood Hous.
Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017)). While forfeiture “is the failure to make the
timely assertion of a right,” waiver “is the ‘intentional relinquishment or abandonment of a
known right.” Id. (cleaned up and citation omitted). Because the Federal Circuit has examined
comparable cases as involving waiver as opposed to forfeiture, the Court here also discusses this
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Defendant’s arguments seeking dismissal of Plaintiff’s remaining two claims due to the Court’s
lack of subject-matter jurisdiction, the Court considers those arguments conceded. The Court
must therefore decide whether to dismiss the remainder of Plaintiff’s claims given the dismissal
of Plaintiff’s retaliation claim, which leads to this matter no longer being a “mixed case” that
may be brought in federal district court. In the interest of justice, however, the Court opts
instead to transfer Plaintiff’s non-retaliation claims to the Federal Circuit.
A. Abandonment of Retaliation Claim
Most instructive for the Court’s consideration in evaluating Defendant’s administrative
exhaustion argument is Lizut v. Dep’t of Army, 717 F.2d 1391 (Fed. Cir. 1983), in which the
Federal Circuit declined to consider certain of the petitioner’s claims due to his failure to exhaust
administrative remedies. Id. at 1395–96. The petitioner in Lizut sought to appeal on several
grounds a decision by the MSPB that upheld his removal from his position with the Department
of the Army. Id. at 1392. The presiding official’s initial decision concluded that the removal
action should be reversed because the agency had been obligated to apply for disability
retirement on the petitioner’s behalf. Id. at 1393. But the presiding official also decided “that
the board had no jurisdiction to consider the agency’s refusal to process petitioner’s early
retirement request or the assertion that the agency wrongfully failed to promote petitioner from
GS–12 to GS–13.” Id. “Only the government appealed to the board from the presiding official’s
initial decision, urging reversal of the ruling that the agency was obligated to apply for disability
case as an issue of waiver. Whether the Court considers this case as a matter of forfeiture or
waiver, however, the result is the same: the Court cannot consider Plaintiff’s claim or affirmative
defense of retaliation when Plaintiff has not exhausted his administrative remedies on this issue
before the MSPB. Cf. Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017) (concluding
that appellant not only explicitly waived his claims before the district court, but that he also
forfeited his claims because he did not raise those claims with the district court in the first
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retirement for petitioner in lieu of instigating a removal action,” whereas the petitioner “did not
appeal any part of the presiding official's decision.” Id. Ultimately, the MSPB reversed the
presiding official’s decision, but “did not pass on the agency’s refusal to process an application
for voluntary retirement benefits or on the agency’s failure to promote petitioner.” Id. In his
subsequent appeal of the MSPB’s decision to the Federal Circuit, the petitioner contended in part
that the MSPB should have considered “the agency’s refusal to take steps necessary to process
his request for early optional retirement and the failure to promote him to GS–13.” Id. at 1395.
In declining to consider the petitioner’s early optional retirement and promotion claims,
the Federal Circuit explained that “[o]nly the government appealed to the board, raising the issue
of the agency’s obligation to file for disability retirement,” whereas the petitioner “did not appeal
any aspect of the presiding official’s decision.” Id. It highlighted: “In fact, in response to the
agency’s petition for review of the presiding official’s decision, petitioner’s attorney said: ‘[T]he
Presiding Official made no erroneous interpretation of statute, regulation or prior case law with
respect to the initial decision in this case.’” Id. at 1395–96. It would “undermine the board’s
authority,” the Federal Circuit stated, if it were to “allow a party to withhold important issues
from the board and later present them to [the] court.” Id. at 1396; accord Hays v. Postmaster
Gen. of United States, 868 F.2d 328, 330 (9th Cir. 1989). Accordingly, the petitioner had “failed
to exhaust his administrative remedies with respect to his claims based on the agency’s refusal to
process his request for an early optional retirement and the failure to promote him to GS–13,”
and the Federal Circuit would not consider those claims. Lizut, 717 F.2d at 1396.
Other cases have followed comparable reasoning in finding that plaintiffs waived or
abandoned their claims before the MSPB, such that they failed to exhaust administrative
remedies. See, e.g., Uske v. U.S. Postal Serv., 56 F.3d 1375, 1378 (Fed. Cir. 1995) (“Uske did
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not file an appeal of the AJ’s denial of his whistle-blowing claim to the full board and we,
therefore, will not now consider Uske’s whistle-blowing argument.” (citing Lizut, 717 F.2d at
1396)). For example, in Stephens v. Connley, 842 F. Supp. 1457 (M.D. Ga. 1994), aff’d, 48 F.3d
537 (11th Cir. 1995) (unpublished table decision), the court determined that the plaintiff had
abandoned his race discrimination claim before the MSPB. Id. at 1459. The plaintiff had raised
the issue of race discrimination during the appeal of his removal by the Air Force to the MSPB,
but also “offered no evidence [at the hearing before an administrative judge] that racial
discrimination had played a role in the removal action.” Id. at 1458. Though the administrative
judge deemed the plaintiff’s removal to be unreasonable, she “found that plaintiff ‘did not offer
any evidence in support of his claim that the agency took the removal action against him because
of his race,’” and also wrote that the plaintiff “subsequently abandoned the claim.” Id. (citation
omitted). While the “Air Force petitioned the MSPB for review of the administrative judge’s
decision,” the plaintiff “did not appeal the decision of the administrative judge as it related to
racial discrimination.” Id. The MSPB later reinstated the removal action against the plaintiff.
In its review of the MSPB’s decision in Stephens, the district court set forth:
It is clear that a discrimination claim may be abandoned during MSPB proceedings.
There is no requirement, however, that the discrimination claim must be explicitly waived
in order to find that the claim has been eliminated from the case. The claim may be
eliminated from the case either by explicit waiver or through the actions, or inaction, of
the petitioning party before the MSPB.
Id. at 1459 (internal citations omitted and emphasis in original). The court then listed a number
of factors that other courts had considered in determining whether a discrimination claim had
been eliminated from a case:
For example, did the petition to the MSPB adequately set forth a claim of discrimination?
Did the petitioner introduce evidence of discrimination before the MSPB? Did the
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petitioner raise the issue of discrimination when seeking review of the administrative
judge’s decision? Did the petitioner explicitly waive the discrimination claim in
proceedings before the MSPB? The factors set forth above, however, should not be
considered an exhaustive list. Further, no single factor is dispositive.
Id. (internal citations omitted). Upon consideration of the record, the court stated, the plaintiff
“did not pursue the claim of racial discrimination either before the administrative judge or the
MSPB, given that he “failed to offer any evidence of discrimination in the hearings before the
administrative judge and the MSPB.” Id. at 1459–60.
Another district court, citing the considerations laid out in Stephens, similarly found that
a plaintiff had waived a claim of retaliation through his failure to exhaust his administrative
remedies before the MSPB. See Bullock v. Widnall, No. 95-cv-1031, 1997 WL 1876544, at *5
(M.D. Ala. Aug. 12, 1997). In Bullock, an administrative law judge had “found that plaintiff
failed to establish a prima facie case of retaliation because he produced no evidence that the
agency terminated him as a result of his protected [EEO] activity.” Id. at *3. Rather, “the only
evidence before the ALJ concerning retaliation” was testimony from individuals stating that
“their knowledge of the EEO complaint played no part in their actions concerning plaintiff’s
removal.” Id. at *5. Moreover, “although the Air Force petitioned the MSPB for review of the
ALJ’s decision, ‘[p]laintiff . . . did not appeal the decision of the administrative judge as it
related to . . . discrimination’ in a cross-petition.’” Id. at *6 (citation omitted and emphasis
added). The plaintiff “merely observed, in his response to the Air Force’s petition for review,
that the fact that he ‘elected not to present evidence concerning reprisal, did not mean that such
evidence did not exist;’” but the court did not consider this “somewhat coy” approach to be an
appeal of the administrative judge’s decision on the discrimination claim. Id. at *6 & n.10
(citation omitted). Thus, because “‘discrimination must have been put forth substantively by the
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plaintiff as a basis for the adverse employment decision,’” and the plaintiff failed to do so, he
“effectively abandoned his retaliation claim before the MSPB.” Id. at *6 (citation omitted).
Plaintiff disagrees that Lizut and other cases cited by Defendant are applicable and
contends that abandonment or waiver would have required an intentional relinquishment of the
claim, whereas Plaintiff “was expressly and actively pursuing his retaliation claim” as evident
from “[t]he plain meanings of the words, the assembly of record evidence, and the inferences
drawn in the briefs.” Pl.’s Opp’n at 7–8, 10–12. These arguments are unavailing. Here, as in
the cases described above, Plaintiff abandoned his retaliation claim when he did not challenge
the AJ’s determination that he had failed to prove such a claim. Like the petitioner in Lizut,
Plaintiff urged the MSPB to deny the FHFA’s Petition for Review “[b]ecause the Administrative
Judge made no erroneous findings of material fact, or erroneous applications of law.” Pl.’s
Response to Pet. for Review at 9. Plaintiff later also stated, “[T]he agency has utterly failed to
demonstrate the Administrative Judge committed any error in her findings in favor of appellant
which would warrant overturning the Initial Decision, or even seriously reviewing it.” Id. at 21.
Though Plaintiff recounted the events leading to his removal, including his allegations about Mr.
Risinger’s possible motives for accusing him of making threatening statements, Plaintiff did not
articulate, explicitly or impliedly, how the agency’s termination of his employment constituted
retaliation against him for his EEO activities. And indeed, upon review, the MSPB did not
understand Plaintiff to be challenging the AJ’s findings as to the retaliation claim either, stating,
“Neither of the parties has challenged the administrative judge’s finding that the appellant failed
to prove his affirmative defense of EEO reprisal . . . .” MSPB Final Order at 4 n.5. Defendant
here does not dispute that, unlike the Stephens and Bullock plaintiffs, Plaintiff presented his
claim of retaliation to the AJ. But Stephens and Bullock also demonstrate that, to exhaust his
Case 1:22-cv-01472-RC Document 14 Filed 01/17/23 Page 15 of 23
administrative remedies, a plaintiff must further bring the claim before the MSPB in appealing
the AJ’s decision. See Stephens, 842 F. Supp. at 1458; Bullock, 1997 WL 1876544, at *6. Given
that Plaintiff did not “raise the issue of [retaliation] when seeking review of the administrative
judge’s decision,” Stephens, 842 F. Supp. at 1459, it would, as the Federal Circuit stated in Lizut,
“undermine the board’s authority” if the Court allowed Plaintiff “to withhold important issues
from the board and later present them to this [C]ourt,” 717 F.2d at 1396; cf. Morris v. McCarthy,
825 F.3d 658, 666–67 (D.C. Cir. 2016) (“A party may not allege on appeal as error an action
which he had induced [an administrative] tribunal to take[.]” (quoting Bhd. of R.R. Trainmen v.
Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 380 F.2d 605, 609 (D.C. Cir. 1967))).
Contrary to Plaintiff’s insistence, James v. FERC, 755 F.2d 154 (Fed. Cir. 1985)
confirms rather than limits Lizut’s applicability to this case. Pl.’s Opp’n at 11–12. The Federal
Circuit in James “reaffirm[ed] that the petition for review does not limit the issues before [the]
court.” 755 F.2d at 155. But it also made clear that “[t]he issues or, as in Lizut, the claims, to be
heard in a particular case before th[e] court will be determined on the basis of whether the
circumstances of the particular case show that the petitioner or respondent knowingly abandoned
or waived claims or issues raised below.” Id.; accord Bosley v. Merit Sys. Prot. Bd., 162 F.3d
665, 668 (Fed. Cir. 1998). The plaintiff in Lizut, the Federal Circuit confirmed in James, “in
response to the government’s petition, expressly endorsed the presiding official’s decision in all
respects” and “[a] waiver was, thus, effected as to the other claims.” James, 755 F.2d at 156
(emphasis in original). As previously explained, the statements that Plaintiff made in his
response—whereby he “expressly endorsed” the AJ’s decision—make this case much like Lizut,
and James does not counsel a different result. Id. (emphasis in original).
Case 1:22-cv-01472-RC Document 14 Filed 01/17/23 Page 16 of 23
Nor does Plaintiff’s argument in reliance on Evono v. Reno, 216 F.3d 1105 (D.C. Cir.
2000) fare better. Plaintiff contends that he did not waive his retaliation claim given that, in
Evono, the D.C. Circuit “clearly declared that ‘the language of waiver’ must be present and that
waiver cannot be presumed based on ambiguous statements.” Pl.’s Opp’n at 8 (quoting Evono,
216 F.3d at 1109). But Plaintiff’s statements seeking affirmation of the AJ’s initial decision
were not ambiguous. In addition, the situation in Evono—wherein the district court had
dismissed the plaintiff’s discrimination claims, “rul[ing] that he had waived his right to pursue
his discrimination claim in court before exhausting his administrative remedies” but could refile
after exhausting his remedies before the MSPB—differs from that here. 216 F.3d at 1107 & n.5.
According to the government in Evono, the plaintiff had made a “statement in the MSPB
proceeding that he was not pursuing in the district court the full ‘mixed case’ that was pending
before the MSPB,” and had “attempted to split his claims, keeping his discrimination claims in
the MSPB[.]” Id. at 1108. The D.C. Circuit found that the district court had erred “[t]o the
extent that the district court ruled that [the plaintiff] waived his right to sue in district court on
the basis of his pro se statements to the MSPB suggesting that the relief he sought in court
differed from the relief sought in administrative proceedings.” Id. at 1106–07. But the question
here is a substantively different one from that in Evono: it is not whether Plaintiff waived his
right to proceed in court before he exhausted his administrative remedies, but whether Plaintiff
waived a claim before the MSPB such that he failed to exhaust his administrative remedies. This
difference renders Evono less analogous to this case than Lizut,4 and Lizut weighs in favor of
finding that Plaintiff knowingly abandoned his retaliation claim.
Plaintiff also relies on Bolton v. Colvin, 674 F. App’x 282 (4th Cir. 2017), but Bolton
likewise involved issues dissimilar to those here. See id. at 287–90.
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There are, however, two cases upon which Plaintiff reasonably relies or could have
relied, and the Court addresses each of these in turn. First, in Rodgers, another court in this
District rejected the government’s argument that the plaintiff had “abandoned her Title VII
claims when she failed to object to the ALJ’s Initial Decision.” 139 F. Supp. 3d at 77. The court
reasoned that “[n]either the statute nor accompanying regulations require the employee to file a
petition for review of the ALJ’s Initial Decision prior to proceeding in federal court.” Id. Thus,
in contending that the plaintiff “should have filed a petition for review of the ALJ’s decision, or
alternatively, should have alerted the ALJ that she overlooked the Title VII claims,” the
Department of Labor was “seek[ing] to read in a requirement that is simply not there.” Id.
Accordingly, the court stated, the Department of Labor “fail[ed] to demonstrate that [the
plaintiff] expressly disclaimed her intention of pursuing her Title VII claims further . . . .” Id.
But certain facts distinguish this case from Rodgers. Most importantly, Plaintiff here
expressly endorsed the AJ’s decision and, as illustrated by the Federal Circuit caselaw,
knowingly waived his retaliation claim. Moreover, in Rodgers, “[n]either party filed a petition
for review of the ALJ’s Initial Decision,” 139 F. Supp. 3d at 73; the plaintiff put forward that,
due to the agency’s misconduct and failure to provide her with discovery, “any attempt to appeal
the ALJ’s decision would have been futile,” id. at 77. By contrast, Plaintiff did submit a filing in
response to the FHFA’s Petition for Review—and he used that filing to endorse the AJ’s
decision without reservation. See Pl.’s Resp. to Pet. for Review at 9. To be sure, the Federal
Circuit and other district court caselaw above does not cite any specific statute or regulation
requiring that a plaintiff file a petition or cross-petition to exhaust his administrative remedies,
and relies instead on the practical concerns raised by allowing a plaintiff to raise a challenge in
federal court to an AJ’s decision that he did not first bring on appeal to the full MSPB. But the
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Court agrees that such concerns are compelling. And although the Federal Circuit’s decisions
are not binding on this Court, the Court will nonetheless accord appropriate deference to its
caselaw on the requirements for administratively exhausting remedies before the MSPB. See
Horn v. U.S. Dep’t of Army, 284 F. Supp. 2d 1, 8 n.10 (D.D.C. 2003) (“The Court notes that
deference to the Federal Circuit is warranted in this area as it is the court that has been vested by
Congress with original jurisdiction over MSPB appeals involving non-discrimination issues.”).
Plaintiff might object, however, to the premise that his retaliation claim had been
withheld from the MSPB when the MSPB explicitly acknowledged in its Final Order that
Plaintiff had brought the retaliation claim before the AJ. As support, Plaintiff might have cited
Trammel v. Brown, No. 94-cv-149, 1995 WL 708666 (N.D. Ill. Nov. 30, 1995), where the court
found that the plaintiff had exhausted her administrative remedies as to her race discrimination
claim because the MSPB adopted the administrative judge’s findings about the race
discrimination claim. Id. at *3. In Trammel, an administrative judge reversed the plaintiff’s
removal by the Department of Veterans Affairs (“VA”) on a number of grounds, but found that
the plaintiff had not established a connection between her race and the removal action. Id. at *2.
The VA sought review of the initial decision from the MSPB, but the plaintiff did not file a
petition or a cross-petition for review on the race discrimination claim because she obtained the
relief she sought on her other claims. Id. The MSPB then reversed the initial decision. Id.
Neither the plaintiff nor the VA had specifically raised the race discrimination issue on the
review, but the MSPB stated in a footnote, “We adopt the administrative judge’s finding that the
appellant had failed to show racial discrimination.” Id. When the plaintiff eventually brought
suit in the court, she raised a claim of race discrimination, but the defendant argued in part that
she had not exhausted her administrative remedies because she did not file a petition for review
Case 1:22-cv-01472-RC Document 14 Filed 01/17/23 Page 19 of 23
or a cross-petition that permitted the MSPB to consider the race discrimination claim. Id. at *3.
The court did not reach the issue, however, because it stated that the MSPB had explicitly
adopted the administrative judge’s initial decision on race discrimination. Id. The court
concluded that this was sufficient to exhaust the plaintiff’s administrative remedies. Id.
In this case, the MSPB stated in a footnote in its Final Order: “Neither of the parties has
challenged the administrative judge’s finding that the appellant failed to prove his affirmative
defense of EEO reprisal, and we discern no reason to disturb this finding.” MSPB Final Order at
4 n.5. But it then also noted later in that same footnote that “the appellant here failed to prove
his initial burden that a prohibited factor played any part in the agency’s decision[.]” Id. The
question given Trammel, then, is whether the Court may conclude that the MSPB by this
language adopted the AJ’s findings as to Plaintiff’s retaliation claim, such that Plaintiff’s
administrative remedies were in fact exhausted. The Court declines to make such a finding for
two reasons. First, the MSPB’s statements here did not clearly adopt the AJ’s findings about the
retaliation claim as did the MSPB’s statement in Trammel; the language in this case suggests
instead that the MSPB was acknowledging the AJ’s findings but opting not to address them
further, given the parties’ decisions not to raise the retaliation claim as an issue. Second, “[t]he
purpose of the administrative exhaustion requirement is to preserve judicial resources and
provide the agency with notice and an opportunity to pursue an administrative resolution.” Est.
of Rudder v. Vilsack, 10 F. Supp. 3d 190, 196 (D.D.C. 2014) (citations omitted); see also Brown
v. Marsh, 777 F.2d 8, 15 (D.C. Cir. 1985) (explaining that the exhaustion doctrine’s purpose is to
“giv[e] the agency notice of a claim and opportunity to handle it internally”). While the FHFA
and the MSPB may have had notice that Plaintiff at an earlier stage in the proceedings had a
retaliation claim, neither was put on notice by Plaintiff that he wished to continue to press his
Case 1:22-cv-01472-RC Document 14 Filed 01/17/23 Page 20 of 23
retaliation claim before the MSPB even after the AJ’s Initial Decision. That was evidently not
the MSPB’s understanding of Plaintiff’s case, based on its statements in its Final Order. Thus, to
now find that Plaintiff administratively exhausted his remedies would contradict the purpose of
the exhaustion requirement.
In support of his argument, Plaintiff might also have drawn an analogy to the D.C.
Circuit’s caselaw regarding the need to appeal or cross-appeal to preserve a claim in the federal
courts. In Shatsky v. Palestine Liberation Org., 955 F.3d 1016 (D.C. Cir. 2020), the D.C. Circuit
explained that “[p]arties who win in the district court may advance ‘alternative bases for
affirmance’ that are properly raised and supported by the record without filing a cross-appeal,
even if the district court rejected the argument.” Id. at 1028 (quoting Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735, 741 (D.C. Cir. 1995)). A party need only file a cross-appeal if
“seeking to press arguments that would change or modify the district court’s judgment to their
benefit[.]” Id. (emphasis added); see also Jennings v. Stephens, 574 U.S. 271, 283 (2015)
(holding that, because defendant’s “theory would neither have enlarged his rights nor diminished
the State’s rights under the District Court's judgment,” he was not required to take a cross-appeal
to argue it on appeal); Singh v. George Washington Univ. Sch. of Med. & Health Scis., 508 F.3d
1097, 1100 (D.C. Cir. 2007) (deeming unnecessary a cross-appeal that “seeks only affirmance of
the judgment, either on the grounds of the district court’s latest opinion or on the basis of
arguments that the district court rejected in various interlocutory rulings”). Plaintiff might
therefore have argued that the Court should analogize to this caselaw on cross-appeals and
conclude that his lack of cross-petition at the administrative level need not merit dismissal given
that he sought only affirmance of the AJ’s judgment.
Case 1:22-cv-01472-RC Document 14 Filed 01/17/23 Page 21 of 23
The Court declines to do so. If it were to follow the requirements as set out in those
cross-appeal cases, the Court would lack the information to determine whether, if he had pressed
the retaliation claim further by filing a cross-petition, Plaintiff would have sought to “change or
modify” the AJ’s judgment. Shatsky, 955 F.3d at 1028. Neither party has submitted to the Court
Plaintiff’s original appeal to the AJ, thus leaving unanswered the question of whether Plaintiff
may have, in arguing retaliation, sought different, additional relief than that granted by the AJ’s
Initial Decision. Without these facts, the Court is not in a position to find sua sponte that the
D.C. Circuit’s caselaw on cross-appeals advises a different outcome than that here. And in the
absence of instruction from the D.C. Circuit on the specific issue of waiver presented here, the
Court relies on the Federal Circuit’s guidance as explained above.
Plaintiff does not raise any equitable considerations that would excuse his failure to
exhaust his administrative remedies. Nor does the Court find that potential equitable
considerations identified by other courts apply in this case. See Broom, 129 F. Supp. 2d at 29–30
(collecting cases and listing equitable considerations such as a plaintiff’s “intelligence and
familiarity with the process” and an agency’s actions or notice of a plaintiff’s claims).
Accordingly, because Plaintiff has not exhausted his administrative remedies with respect to his
retaliation claim, that claim must be dismissed from this case.
B. Remaining Claims
Having dismissed Plaintiff’s retaliation claim, the Court turns to Plaintiff’s two remaining
claims: Plaintiff’s claim alleging an unlawful failure to provide him with interim relief and his
appeal of the MSPB’s Final Order. Plaintiff does not respond in his opposition to Defendant’s
argument that the Court should dismiss these two remaining claims for lack of subject-matter
jurisdiction. The Court may therefore deem the argument to be conceded. See Hill v. Garland,
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No. 19-cv-3389, 2021 WL 965624, at *6 (D.D.C. Mar. 15, 2021) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.” (citation omitted)); accord Potter v. Toei Animation Inc., 839 F. Supp. 2d
49, 53 (D.D.C. 2012), aff’d, No. 12-5084, 2012 WL 3055990 (D.C. Cir. July 18, 2012). But
even if Plaintiff did not concede the argument, Defendant is correct that the Court could dismiss
the remaining two claims because, without Plaintiff’s retaliation claim, this case is no longer a
mixed case and the Federal Circuit has exclusive jurisdiction. See, e.g., Blake v. Dep’t of the Air
Force, 794 F.2d 170, 172–73 (5th Cir. 1986) (concluding that, because “racial discrimination
was eliminated as an issue in this case at both the MSPB level and the district court level,” the
district court lacked subject-matter jurisdiction and the Court of Appeals for the Federal Circuit
had exclusive jurisdiction); Henry v. Peake, No. 8-cv-6829, 2009 WL 4729932, at *6 (S.D.N.Y.
Dec. 10, 2009) (“When the original claim of discrimination is eliminated from a case, the Federal
Circuit has exclusive jurisdiction.” (citing cases)); Stephens, 842 F. Supp. at 1459–60.
In the interest of justice, however, the Court will instead transfer Plaintiff’s remaining,
non-retaliation claims to the Federal Circuit, pursuant to 28 U.S.C. § 1631, rather than dismiss
the claims. See, e.g., Hays, 868 F.2d at 331 (remanding case to consider whether transfer to
Federal Circuit would be in interest of justice); Afifi v. U.S. Dep’t of Interior, 924 F.2d 61, 64
(4th Cir. 1991). Not only could these claims have been brought at the Federal Circuit at the time
Plaintiff filed his complaint here, see 28 U.S.C. § 1631; 5 U.S.C. § 7703, but considerations such
as judicial economy and “a concern for . . . uniformity in federal personnel policy” weigh in
favor of transfer rather than dismissal here, Afifi, 924 F.2d at 64.
Case 1:22-cv-01472-RC Document 14 Filed 01/17/23 Page 23 of 23
For the foregoing reasons, Defendant’s Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment is GRANTED IN PART AND DENIED IN PART. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: January 17, 2023
United States District Judge
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