Harrup v. Carter

Filing 23

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 6/16/17. (Copy mailed to pro se plaintiff).(jtho, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

JOAN C. HARRUP,
Plaintiff,
V.

Civil Action No, 3il5cv697

ASHTON B. CARTER,

Secretary, Department ofDefense,
Defendant.

MEMORANDUM OPINION

This matter comes before the Court on Defendant Ashton B. Carter's Motion to Dismiss.'

(ECF No. 10.) Plaintiff Joan C. Harrup, proceeding pro se^ has responded to the Motion to
Dismiss, (ECF No. 19), and Carter has replied, (ECF No. 21). Accordingly, the matter is ripe for

disposition. The Court dispenses with oral argument because the materials before it adequately

present the facts and legal contentions, and argument would not aid the decisional process. For
the reasons that follow, the Court will grant the Motion to Dismiss.
L

Federal Rule of Civil Procedure 12(b>(l) Standard

In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(l)^ challenging the
Court's subject-matter jurisdiction, the burden rests with the plaintiff, as the party asserting
jurisdiction, to prove that federal jurisdiction is proper. See Int 7 Longshoremen's Ass 'n v. Va.

' Carter provided Harrup with appropriate notice pursuant to Roseboro v. Garrison, 528
F.2d 309, 310 (4th Cir. 1975). (ECF No. 12.)

^"District courts have a duty to construe pro se pleadings liberally." Blankenship v. Am.
Fed. Gov'tEmployees.-^o. 3:15cv294, 2016 WL 1276425, at *2 (E.D. Va. Mar. 30, 2016)
(citing Bracey v. Buchanan, 55 F. Supp. 2d 416,421 (E.D. Va. 1999)).

^"[A] party may assert the following defense[ ] by motion: (1) lack of subject-matter
jurisdiction." Fed. R. Civ. P. 12(b)(1).

Int'l Terminals, Inc„ 914 F. Supp. 1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors

Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982)). Amotion to dismiss pursuant to Rule 12(b)(1) can attack subject-matter jurisdiction

intwo ways. First, a Rule 12(b)(1) motion may attack the complaint on itsface, asserting that
the complaint fails to state a claim upon which subject-matter jurisdiction can lie. See Int 7
Longshoremen's Ass914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. Insuch a

challenge, a court assumes the truth ofthe facts alleged by plaintiff, thereby functionally
affording the plaintiffthe same procedural protection he or she would receive under Rule
12(b)(6) consideration. See Int'l Longshoremen's Ass % 914 F. Supp. at 1338; see also Adams,
697 F.2datl219.

A Rule 12(b)(1) motion may also challenge the existence of subject-matter jurisdiction in

fact, apart from the pleadings. See Richmond, Fredericksburg

Potomac R.R. Co. v. United

States, 945 F.2d 765, 768 (4th Cir. 1991); Int'l Longshoremen's Ass 'n, 914 F. Supp. at 1338; see
also Adams, 697 F.2d at 1219. In such a case, because a party challenges the court's "'very

power to hear the case,'" the trial court is free to weigh evidence to determine the existence of
jurisdiction. Int'lLongshoremen's Ass 'n, 914 F. Supp, at 1338 (quoting Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness attaches to

the plaintiffs allegations, and the existence ofdisputed material facts will not preclude the trial
court from evaluating for itselfthe merits ofjurisdictional claims. See id; see alsoAdams, 697
F.2datl219.

II. Procedural and Factual Background

Afterthe United States Equal Employment Opportunity Commission (the "EEOC")
denied consideration of her Petition to Review a final decision of the Merit Systems Protection

Board (the "MSPB"), Joan C. Harrup filed a Complaint in this Court against Ashton B. Carter,

the former Secretary of the Department of Defense. The facts underlying Harrup's claim arise
from the implementation of the 2013 Federal Government Furlough, which she claims applied to

her inviolation ofthe Rehabilitation Act, 29 U.S.C. §§ 701 etseq.^ (CompL 1, ECF No, 4.)
Harrup's 2013 Challenge to the Furlough

Harrup alleges that, in February 2011, she began working a reasonable accommodation
schedule to comply with her neurologist's orders following an injury sustained in a car accident.
Under that schedule, Harrup contends she worked only thirty-four hours per week, with reduced

hours on Tuesdays and Thursdays. The Defense Logistics Agency ("DLA"), a component of the
Department of Defense, recorded the hours she did not work as Leave without Pay ("LWOP"),
Anticipating an upcoming furlough, the DLA negotiated a Memorandum of Agreement
("MOA") with the American Federation of Government Employees, Council 169 ("AFGE"), a
union to which Harrup belonged, regarding application of the furlough to union members. The

DLA and the AFGE signed this agreement on May 1, 2013. {See Mem. Agreement Between the
DLA and the AFGE Administrative Furlough, ECF No. 4-3.) On May 29, 2013, the DLA issued
a memorandum to its affected employees informing them of a proposed furlough ("Furlough
Notice"), which would be implemented "not earlier than 30 days from receipt of [the] notice."
(May 29, 2013 DLA Memo. 1, ECF No, 11-1.)

In July and August 2013, due to budget constraints, the DLA fiirloughed many of its
civilian employees, including Harrup, for six non-consecutive days. The DLA required that

employees record furlough hours as LWOP and that they take the hours on Mondays or Fridays
during the furlough period. Prior to the first week of the furlough, the DLA allowed employees

^The Rehabilitation Act guarantees rights to adults with disabilities and allows for
reasonable accommodations.

to choose which day of the week they wanted to serve as their furlough day, but required
employees to maintain that choice throughout the furlough period.
Pursuant to the MOA, "[t]hose employees who currently have an alternative work
schedule with a scheduled regular day off will have the option of retaining their current day off

as their weekly furlough day." (Mem, Agreement Between the DLA and the AFGE
Administrative Furlough

3.) It also provided that part-time employees should work with their

"supervisors ... [to] compute a pro-rated number of furlough hours per pay period
commensurate with that part-time schedule." {Id. ^ 6.) Both the DLA and the AFGE "agree[d]

to abide by applicable laws, rules, and regulations regarding furloughs" in implementing the
upcoming furlough. {Id. 115.)
After receiving the Furlough Notice and in accordance with the procedures within it,

Harrup sent a letter to the DLA's Deciding Official asserting that the furlough would cause her
financial hardship due to pay reduction and continued medical payments, stating that it "d[id] not

promote the efficiency of the service, is unwarranted, and is unprecedented." (Joan Harrup
Mem. for Deciding Official 13, ECF No. 11-2.) On June 27, 2013, the Deciding Official

responded on behalf of the DLA by issuing a "Notice of Decision to Furlough Due to Lack of
Funds." (ECF No. 11-3.) In that notice, the DLA rejected any claim that the furlough was
"unwarranted" or lacked legal support. (June 27, 2013 DLA Mem. 1-2, ECF No. 11-3.) The
DLA also deemed the furlough "valid." {Id. at 2.) Recognizing that the furlough might "create a

financial hardship for employees," the DLA stated that it had attempted to limit the impact
"across-the-board for all employees," and referred Harrup to resources within DLA to assist with
financial or other issues. {Id.) Finally, the DLA instructed Harrup that she, and other

employees, could pursue various avenues of appeal depending onthebasis of their claim, or on
their employee status.
HarruD*s August 2.2013 Appeal to the MSPB

OnAugust 2,2013, Harrup appealed the furlough to the MSPB asserting again thatthe

furlough did "notpromote the efficiency of service, is unwarranted, and unprecedented,"

(MSPB Form 185-2, ECF No. 11 -4). Harrup charged that she "knew" the furlough would be
deleterious to "the DLA mission." {Id.) She reiteratedthat the proposed furlough would cause

her financial hardship due to pay reduction and continued medical needs.
The November 3,2014 Notice to Appellants

On November 3, 2014, Administrative Law Judge Nicole DeCrescenzo (the "ALJ")

issued a Notice to Appellants on behalf of the MSPB. {See ALJ's Notice to Appellants

(the"ALJ Notice"), ECF No. 11-5.) The ALJ Notice informed Harrup and approximately thirty
others thattheir appeals had beenconsolidated. The ALJ notified Harrup's appeal group that she
would consider at leastthe following four issues undertheir appeals: "[f]urlough was arbitrary,
unfair, or inconsistent with the efficiency of the service; [f]urlough was uimecessary because

agency had sufficient funds and/or the agency could have utilized other cost saving methods
without furloughing employees; [furlough caused me financial hardship; [and, w]orking Capital
Fundemployees should not have been fiirloughed." {Id. at 4.)
The ALJ Notice also ordered all appellants "to file a written notice specifying the

arguments or affirmative defenses [they] intend[ed] to raise" and cautioned them that "[a]ny

allegations or affirmative defenses not listed above thatare not specifically identified in response
to this order may be deemed as waived and may not be considered further." {Id.) Harrup didnot

identify any affirmative defenses, nor did she submit anything indicating thatshe intended to

pursue a disability discrimination claim or otherwise rely onthe Rehabilitation Act. Indeed, for

roughly nineteen months between August 2013 and January 2015, the gravamen of Harmp's
claims rested on concerns about efficiency, arbitrary action, lack of procedure, or lack of need to

save ftinds. Similarly consistent were Harrup's complaints of financial hardship stemming from
reduced income as she continued to incur medical bills. This focus—including the absence of

specific reference to any disability claim—^persisted despite at least one formal opportunity to
add claims or affirmative defenses to the record.
Proceedings before the ALJ in 2015

In the ALJ's January 12, 2015 Order and Summary of Conference Call, the ALJ noted
that Harrup and several others had preserved their appeals by, among other things, participating
in the agency-ordered January 8, 2015 conference call. The ALJ explained that, with one

exception not applicable to Harrup, "[n]o appellant has preserved an affirmative defense."
(O. & Summ. of Conference Call 1, ECF No. 11-6.) After articulating the applicable law and
burdens of proof, the ALJ instructed appellants, including Harrup, that "[a]11 evidence and

argument must be filed by" February 16, 2015, and that anything filed after that date "will not be
accepted." {Id. at 7.)

Harrup submitted material in supportof her claim. On January 23, 2015, she argued that
the furlough was not applied to her in a "fair and even manner." (Harrup's Jan. 23, 2015 MSPB
Submission 3, ECF No. 4-2.) Harrup stated that she was "denied due process in not being
allowed to continue" her reduced hours on Tuesday and Thursday, which complied with a
"Reasonable Accommodation Request fi-om [her] neurologist." {Id.) Because the furlough

allowed only a Monday or Friday off, Harrup stated that she had to take medical leave in order to
maintain her medical treatment as directed. {Id.) Personal financial hardship ensued. {Id.)

While Harrup mentioned a Rehabilitation Act term of art by referencing her earlier, agreed-upon

accommodation, she did not allege that she was being discriminated against based on her
disability in the January 23, 2015 filing.

Harrup timely preserved her right to a hearing. {See Jan. 26, 2015 O. & Summ. of

Prehearing Conference 1, ECF No. 11-7). On January 26, 2015, the ALJ issued an Order and
Summary of Prehearing Conference. {Id.) In that order, the ALJ summarized the issue to be
addressed as to Harrup and others: "whether the agency can prove, by a preponderance of the
evidence, the factual basis for the furlough, that the furlough promoted the efficiency of the

service, and that itprovided the appellants with due process."^ {Id. at2.) The ALJ also
instructed the parties that if they believed the summary to be incorrect, they must notify the court
"no later than 4:00 pm on January 30,2015." {Id. at 5.)

On January 30, 2015, Harrup submitted a new pleading regarding her opposition to the

furlough. (Harrup's January 30, 2015 MSPB Submission 3, ECF No. 4-3.) Harrup contended
that "DLA Aviation failed to implement [her] furlough [in accordance with] their higher

headquarters guidance" when they required her to be furloughed on "a day inconsistent with

[her] regular reasonable accommodation schedule." {Id.) In support of this claim, Harrup cited

Paragraph Three ofthe MOA,^ which allowed employees with a regular day offto retain that day
offas their weekly furlough day. She also cited Paragraph Six ofthe MOA,^ which allowed
^The ALJ also indicated she would consider a different issue raised by two of Harrup's
consolidated appellees. This procedural argument did not affect Harrup's claim.

^Paragraph Three of the MOA states, in relevant part: "Those employees who currently
have an alternative work schedule with a scheduled regular day off will have the option of
retaining their current day off as their weekly furlough day. For furlough days that fall on a
holiday, the next business day will serve as a furlough day." (Mem. Agreement Between the
DLA and the AFGE Administrative Furlough ^3.)

^Paragraph Six of the MOA states: "Supervisors will work with part-time employees to
define a set schedule for duration of the furlough period. Based on this established schedule,
supervisors will compute a pro-rated number of furlough hours per pay period commensurate

supervisors to "work with" part-time employees to devise a pro-rated furlough hourly

requirement. Again, Harrup noted the negative financial consequences of being furloughed on a
Monday while also still having to take part of Tuesday and Thursday off for medical reasons. In

making this argument, however, Harrup never claimed discrimination because o/her disability.
Instead, Harrup turned to the MOA itself for relief from what she characterized as the failure of

the DLA to implementtheir "higher headquarters guidance," which Harrup claimed caused her
"great hardship." (Harrup's Jan. 23, 2015 MSPB Submission 3.)
The February 18,2015 ALJ Initial Decision

On February 18, 2015, on behalf of the MSPB, the ALJ issued an Initial Decision

regarding seven appellants remaining in the consolidated appeal. (ALJ Initial Decision, ECF

No. 11-8.) Harrup was the only appellant who did not waive participation in the February 2,
2015 hearing. The ALJ affirmed the DLA's action by finding that the DLA had proved, by a
preponderance of the evidence, that the furloughs "promoted the efficiency of the service" and
that the DLA provided due process when effectuating the furlough. {Id. at 10-11.)

As to Harrup, the ALJ determined that—for the first time and just before the hearing—
Harrup raised an affirmative defense of "harmful procedural error" when contending that her

furlough violated two provisions of the MOA. {Id, at 10-11.) The ALJ concludedthat Harrup
failed to satisfy the burden of proof with regard to her affirmative defense because her own

testimonyestablishedthat, as to Paragraph Three, which permitted employees to retain their

current day off as their weekly furlough day, "she [did] not have a scheduled regular day off
and, as to Paragraph Six, which stated that supervisors would work with part-time employees to
set their work schedule, "she [was] a full-time employee." {Id. at 12.) Therefore, the ALJ

with the part-time schedule." (Mem. Agreement Between the DLA and the AFGE
Administrative Furlough ^ 6.)

decided that Harrup did not prove, by a preponderance ofthe evidence, that the furlough

provisions requiring special treatment ofthose whose work schedules included aregular day off,
and those who worked part-time, applied to her. The ALJ concluded that the DLA applied the
furlough to her appropriately.
Harrup*s Appeal to the Full MSPB

On March 25, 2015, Harrup appealed to the full MSPB. {See Pet. for Review, ECF

No. 4-4.) Inher Petition for Review—^nineteen months into her furlough challenge—^Harrup
identified, for the first time, the Rehabilitation Act as the lawthat should be applied to her case.
In the Petition for Review, Harrup also alleged that the initial decision was wrongbecause

[t]he manner in which the Agency imposed the furlough across the board failed to
consider and, consequently, violated the Reasonable Accommodation that had

previously been granted to me pursuant to which I was entitled to two hours of
leave without pay on Tuesday mornings and 4 hours of leave without pay on

Thursday mornings for cognitive recovery time. The Agency's insistence that the
furlough be fully imposed onMonday or Friday made it impossible for me to take
those hours off and still accomplish my work requirements, fulfill my financial

responsibilities, and maintain my therapy schedule due to the fact that I had to
take 8 hours off every Mon.

(Pet. for Review 5.)

In her"response" to the DLA'sresponse to her Petition for Review, Harrup conceded
that shedidnothave a regularly scheduled day off andthat she was not a part-time employee.

{See Appellant Response to Agency Response to Appellant Pet. for Review 4, ECF No. 4-6.)
She also conceded that she was not "prevented from taking additional LWOP, sick, or annual

leave during the six week furlough period." {Id. at 5.) She argued, however, that "[t]he question
remains whether theAgency supported reasonable accommodation. I attest thatin implementing
the furlough in my situation they did not." {Id.)

The MSPB^s Final Decision

On June 8, 2015, the full board of the MSPB issued a Final Order in which it affirmed the

ALJ's decision to uphold the furlough and deny Harrup's affirmative defense of harmful

procedural error. (MSPB Final Order, ECF No. 11 -9.) It found that Harrup "failed to raise an
affirmative defense of disability discrimination in the proceedings below" and "that she cannot
raise such a claim for the first time on review." {Id. at 5.) Further, the MSPB pointed out that

"[t]he record reflects that [Harrup] did notraise herdisability discrimination allegations in her
initial appeal,and that she did not do so in response to the administrative judge's affirmative
defenses order." (Id.) Finally, it found that the new documentation Harrup provided with her
Petition for Review "was available to her and it does not justify accepting a new claim of

disabilitydiscrimination for the first time on review." {Id.)
Harrup*s EEOC Complaint

On July 7, 2015, in response to the MSPB's Final Order, Harrup filed a complaint with
the EEOC. (Notice of Appeal/Petition to the EEOC, ECF No. 11-10.) On October 15, 2015, the
EEOC denied consideration of Harrup's complaint "[b]ecause the MSPB did not address any
matters within the Commission's purview." (EEOC Denial of Consideration 2, ECF No. 11-11).
The EEOC identified that the MSPB did not reach a final decision on Harrup's disability

discrimination claim "because she raised it for the first time in her petition to the Full Board."

{Id.) Therefore, the EEOC concluded that it lackedjurisdiction over Harrup's complaint. {Id.)
On May 16, 2016, Harrup filed this action.

^Harrup first appealed the furlough to the MSPB on August 2, 2013. She raised her
disabilitydiscriminationallegations for the first time on March 25, 2015.
10

III. Analysis

Carter seeks dismissal of Harrup's action on either of two grounds: (1) lack of subject-

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1); or, alternatively, (2) failure to

state aclaim upon which relief can be granted under Federal Rule ofCivil Procedure 12(b)(6).^
Of course, if the Court lacks subject-matter jurisdiction over the alleged claims, Carter's
alternative basis for dismissal becomes moot. Harrison v. U.S. Soc. Sec. Admin., No. 3:l3cv435,

2014 WL 29042, at *1 (E.D. Va. Jan. 2, 2014), Accordingly, the Court begins by addressing

Carter's motion as it pertains to subject-matterjurisdiction. Because Harrup has failed to
exhaust her administrative remedies with regard to her disability discrimination claim, the Court
will dismiss her Complaint.

A.

The Rehabilitation Act Requires Federal Employees to Exhaust All
Administrative Remedies Prior to Filing with the District Court

Although the ALJ, through the MSPB Notice, provided Harrup with ample opportunityto
raise her Rehabilitation Act claim prior to her Petition for Review to the full MSPB, Harrup
failed to do so. As a result, the ALJ had no disability claim to evaluate. The Ml MSPB, in turn,

could not make a finding on the Rehabilitation Act claim. Therefore, Harrup failed to exhaust
her administrative remedies. See Lucas v. Henrico Cty. Sch. Bd., 822 F, Supp. 2d 589, 604 n.l3

(E.D. Va. 2011) ("Because '[t]he remedies, procedures, and rights .. . [of Title VII] of the Civil

^"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992)(citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §
1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs wellpleaded allegations are taken as true and the complaint is viewed in the light most favorable to
the plaintiff. MylanLabs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993);see also Martin,
980 F.2d at 952. This principle applies only to factual allegations, however, and "a court
consideringa motion to dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
11

Rights Act of 1964 ... shall be available, with respect to any complaint' brought under Section

501 [of the Rehabilitation Act], [29 U.S.C.] § 794a(a)(l), the Title VII exhaustion requirement
applies to federal employees bringing claims under the Rehabilitation Act." (quoting Wilkinson
V. Rumsfeld, 100 F. App'x 155, 157 (4th Cir. 2004)). Thus, the Court lacks subject-matter

jurisdiction over Harrup's Complaint and must grant the Motion to Dismiss under Rule 12(b)(1).
"Federal employees ... who seek to enforce their rights under ... the Rehabilitation Act
must exhaust their available administrative remedies before pursuing an action in federal court."

Melendez v. Sebelius, 611 Fed. App'x 762, 763 (4th Cir. 2015). If a federal employee does not

exhaust all administrative remedies prior to filing a case in federal court, it deprives the court of

subject matterjurisdiction. See Jones v. Culvert Group, Ltd., 551 F.3d 297, 301 (4th Cir. 2009).
In administrative proceedings below, Harrup contended that the DLA did not apply its

furlough to her in a "fair and even manner." (Harrup's Jan. 23, 2015 MSPB Submission 3.)
Harrup argued that she was "denied due process in not being allowed to continue" her schedule
of reduced hours on Tuesday and Thursday—a schedule that complied with an earlier reasonable
accommodation—^because that schedule could not be reconciled with the MOA. This due

process claim did not rest on disability discrimination. Although Harrup's January 2015 claim
mentioned a "reasonable accommodation" as the basis for her work schedule, the need for

accommodation did not drive her claim. {See id. (citing reduced hours caused by the staggered
schedule to demonstrate the DLA's violation of the MOA); Harrup's January 30, 2015 MSPB
Submission 3 (same).) Even through her January 30, 2015 claim—^added at the invitation of the
ALJ—Harrup did not rely on the Rehabilitation Act or disability discrimination to oppose the

furlough, much less with clarity or specificity.'®
As the Court will explain below, courts require that claimants raise issues before
administrative tribunals with "sufficient specificity and clarity" so as to make the administrative
12

In fact, Harrup didnotexplicitly identify theRehabilitation Actas the law governing her
claim until she filed her March 25, 2015 Petition for Review—approximately nineteen months

after she first appealed the furlough to the MSPB on August 2, 2013. For that reason, Harrup
improperly failed to give the ALJ the first shotat consideration.
As a result, in its June 8, 2015 Final Order, the full MSPB refused to considerHarrup's
new discrimination claim because it found that she "did not raise her disability discrimination

allegations in her initial appeal, and that she did not do so in response to the administrative
judge's affirmative defenses order." (MSPB Final O. 5.) "[T]he [Merit Systems Protection]

Board generally will not consider an argument raised for the first time in a petition for review
absent a showing thatit is based on new and material evidence notpreviously available despite
the party's due diligence." Ronso v. Dep't ofNavy, 122 M.S.P.R. 391, 393 n.l (M.S.P. Apr, 14,
2015). The MSPB further found thatthe information thatHarrup submitted in support of her
disability discrimination claim "was available to her and ... [did] notjustify accepting a new
claim of disability discrimination for the firsttime on review." {Id.) Therefore, the MSPB
declined to make a finding on this new charge. {Id.)

The EEOC can consider the final decision ofthe MSPB on a mixed-case appeal^' within
30 days after that decision becomes final. 5 U.S.C. § 7702(b)(1); 29 C.F.R. §§ 1614.303(a),(c),

judge "aware that [he or she] must decide the issue." Wallace v. Department of the AirForce,
879 F.2d 829, 832 (Fed. Cir. 1989).

Although the Court of Appeals for the Federal Circuit has exclusive jurisdictionover

appeals of MSPB decisions concerning claims of adverse personnel actions, "[a]nexception .,.
exists for appeals to the MSPB that involve discrimination claims in addition to a qualifying
adverse personnel action." Wade v. McDonald, No. 7:13cv394, 2014 WL 4667253, at *4 (W.D.
Va. Sept. 18, 2014). These cases are referred to as "mixed-case appeals."

13

Although Harrup complied with the 30-day requirement of the statute,

I o

the MSPB did not

decide the discrimination claim Harrup raised improperly. Thus, the EEOC lacked jurisdiction

over her claim, 29 C.F.R. § 1614.303(a), and denied consideration of her appeal.
After the EEOC denies consideration of an MSPB appeal, the MSPB's decision becomes

judicially reviewable. 5 U.S.C. § 7702(a)(3)(B). In this case, however, no MSPB decision exists
for this Court to review. Rather, the MSPB refused to make a decision regarding Harrup's

disability discrimination claim because it found that she did not properly raise the claim.
Therefore, Harrup failed to exhaust her administrative remedies, and this Court lacks jurisdiction
to consider her disability discrimination claim. See Jones, 551 F.3d at 301.
B.

The Administrative Law Judge Did Not Err in
Failing to Decide the Disability Discrimination

Because Harrup did not identify the Rehabilitation Act as the law governing her
administrative filings and did not raise disability discrimination before filing her Petition for
Review to the full MSPB, the ALJ did not commit an error of law in failing to decide Harrup's
disability discrimination claim.

Harrup asserts that the ALJ committed an error of law by "rejecting the evidentiary value
of the MOA which was before her." (PL's Resp. to Def.'s Mot. Dismiss 2, ECF No. 19.) Harrup
finds support for this claim in the fact that the MOA includes a provision stating that all parties

"agree to abide by applicable laws, rules, and regulations regarding furloughs." {Id (quoting
Mem. Agreement Between the DLA and the AFGE Administrative Furlough ^ 15).) As Carter
points out, the record belies any contention that Harrup argued to the ALJ that the
implementation of the furlough constituted disability discrimination or violated the
Rehabilitation Act.

The MSPB's Final Order was issued on June 8,2015. Harrup filed her Notice of

Appeal/Petition with the EEOC on July 7, 2015.
14

In Wallace v. Department ofthe Air Force, the United States Court of Appeals for the
Federal Circuit found that where the employee did not raise a vagueness issue until her Petition
for Review to the full MSPB, the issue was not properly before the court, 879 F.2d 829, 832,

837 (Fed. Cir. 1989). The courtnoted that an "issue must be raised with sufficient specificity
and claritythat the tribunal is aware that it must decidethe issue, and in sufficienttime that the

agency can do so." Id at 832. In this case, Harrup did not raise the disability discrimination

with enough specificity or clarity that the ALJ knew that she must decide it.'^ The ALJ,
consequently, never addressed disability discrimination in her Initial Order. Following no
objection by Harrup, the ALJ upheld the furlough as applied to the appellants, found that the

agency provided the appellants withdue process, and concluded that Harrup failed to satisfy the
affirmative defense of harmful procedural error. Additionally, both the full MSPB and the
EEOC denied consideration of Harrup's disability claim because Harrup failed to raise it

properlybefore the ALJ, and Harrup's failure prevented the ALJ from deciding the issue.
Moreover, on at least three occasions, the ALJ instructed appellants, including Harrup,

that if they wanted to raise any additional issues, they must do so within a specified period and in
a certain way. On each occasion, Harrup failed to respond by clearly and specifically adding her
disability discrimination claim. First, in the Notice to Appellants, the ALJ identified four issues
raised by the appellants in the consolidated appeal and ordered appellants "to file a written notice

specifying the arguments or affirmative defenses" outside of those issues. (MSPB Notice to
Appellants 4.) The ALJ also warned appellants that if they failed to do so, any additional
arguments "may be deemed as waived and may not be considered further." (Id)

As discussed previously, Harrup's claim referenced a "reasonable accommodation" as
the factual predicate for her unusual work schedule. Especially given her concentrated pursuit of
different claims, Harrup's passing reference to an "accommodation" does not establish that she
intended to pursue, or did seek, a claim under the Rehabilitation Act or for disability
discrimination.

15

Second, inthe January 12, 2015 Order and Summary of Conference Call, the ALJ set

forth the applicable law and burdens ofproof, discussing only "whether the agency can prove, by

apreponderance ofthe evidence, that itproperly furloughed the appellants in this appeal." (O. &
Summ, ofConference Call 3.) It also asserted that "[n]o appellant preserved anaffirmative

defense." (M at 7.) The ALJ then instructed appellants that "[a]ll evidence and argument must

be filed by" February 16, 2015, and that anything filed after that date "will not be accepted."

(M) Finally, two weeks later, on January 26, 2015, the ALJ issued an Order and Summary of
Prehearing Conference in which she identified the issues to be decided in the case and instructed
the parties that ifthey believed the summary to be incorrect they must notify the court "no later
than 4:00 pm on January 30, 2015." (O. & Summ. ofPrehearing Conference 5.)
The record contains no evidence that Harrup responded to these instructions and raised

her disability discrimination claim prior to the administrative hearing. Rather, even in her

Response to Carter's Motion to Dismiss here, Harrup reverts to her longstanding complaint about
the furlough when arguing that the "Judge committed an error oflaw by rejecting the evidentiary
value of the MOA which was before her." (Pi's Resp. to Def.'s Mot. Dismiss 2.) Because

Harrup presented no evidence to the ALJ giving notice that the ALJ should decide any disability
discrimination issue, and because Harrup did not assert affirmative defenses, submit evidence, or

posit arguments based on adisability claim, the ALJ did not commit an error oflaw in failing to
apply the Rehabilitation Act to Harrup's case.
IV. Conclusion

For the foregoing reasons, the Court will grant the Motion to Dismiss. (ECF No. 10.)
The Court will dismiss the Complaint, with prejudice, for lack of subject-matter jurisdiction.

(ECF No. 4.) Because amendment would be futile, the Court will not grant leave to amend the
Complaint. See Dolgaleva v. Va. Beach City Pub. Sck, 364 F. App'x 820, 824 (4th Cir. 2010)
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("Her delay therefore deprived the district court ofsubject-matter jurisdiction over this claim and
any amendment of that claim would have been futile."); see also Bahta v. Renaissance Hotel
Operating Co., No. 1:15cv89,2016 WL 356034, at *5 &n.l (E.D. Va. Jan. 27, 2016) (denying
leave to amend on grounds offutility because "failure by the plaintiff to exhaust administrative
remedies... deprives the federal courts ofsubject matter jurisdiction over the claim").
An appropriate order will accompany this Memorandum Opinion.

M.H;

[,apK

United States District Judge

Richmond, Virginia

Date:J2,ne

20l7

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