Plaintiff was employed by the Social Security Administration ("SSA"), United States Department of Health and Human Services ("HHS"), as Chief Administrative Law Judge ("CALJ") in 1990. Plaintiff removed himself from the CALJ position in 1991 and asserts that he was constructively discharged. He brought this action on January 5, 1994, alleging deprivation of civil rights, discrimination on the basis of race and sex, and retaliation for protected activities, in violation of 42 U.S.C. § 2000(e), et seq. (Title VII); 42 U.S.C. §§ 1981, 1983, 1985 and 1986; and 5 U.S.C. §§ 7521 and 7702.
Plaintiff sued seventeen officials of HHS, SSA, Office of Personnel Management, Office of Special Counsel, Department of Labor, and six offices or agencies.
He sued fourteen other administrative law judges (judges),
most of whom are at the SSA but some of whom hold office in the Association of Administrative Law Judges (the "Association"). And he sued the Association.
All defendants move to dismiss for lack of personal or subject matter jurisdiction or both. The federal agency defendants and the federal individual defendants seek dismissal because of improper venue and failure to state a claim on which relief may be granted. In the alternative, they seek an order transferring this case to the Eastern District of Virginia. On January 26, 1995, the court heard and denied plaintiff's motion for preliminary injunction upon finding that plaintiff had failed to show either the requisite likelihood of success on the merits or irreparable injury. The court now turns to the defendants' motion to dismiss or transfer.
There is no avenue through which plaintiff can assert claims under 42 U.S.C. §§ 1981, 1985, and 1986 against defendants. See Richardson v. Wiley, 186 U.S. App. D.C. 309, 569 F.2d 140, 141 (D.C. Cir. 1977) (precluding § 1981 discrimination action by federal employee covered by Title VII); Great American Federal Savings and Loan Ass'n v. Novotny, 442 U.S. 366, 378, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979), (same with regard to § 1985 claim); Thomas v. News World Communications, 681 F. Supp. 55, 73 (D.D.C. 1988) (same with regard to § 1986 action). Plaintiff's claim under § 1983 will not lie because no defendant was acting or is alleged to have been acting under color of state law during the time of plaintiff's alleged constructive removal.
See District of Columbia v. Carter, 409 U.S. 418, 424, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973).
Plaintiff does not have a separate claim under the Civil Service Reform Act, 5 U.S.C. §§ 7521 and 7701, but must file his discrimination claim 42 U.S.C. 2000e-16(c) (Title VII). 5 U.S.C. §§ 7702, 7703(b)(2); see also Williams v. McCausland, 791 F. Supp. 992 (S.D.N.Y. 1992).
Thus, plaintiff's only viable claims are encompassed within the scope of Title VII, the exclusive judicial remedy for federal employees alleging employment discrimination.
See Brown v. GSA, 425 U.S. 820 (1976). The only proper defendant in a Title VII suit brought by a federal employee is the head of the agency alleged to have unlawfully discriminated. 42 U.S.C. § 2000e-16(c) See also Brown, 425 U.S. at 835; Davis v. Califano 198 U.S. App. D.C. 224, 613 F.2d 957, 958 n. 1 (D.C. Cir. 1979).
Defendants argue that, if the Title VII claim against Secretary Shalala is not dismissed, it should be transferred. That motion will be denied. Plaintiffs are generally entitled to their choice of forum. The matter has been pending before this court for over a year. The action is capable of resolution in this forum. And the interests of judicial economy favor retaining the case in this Court.
Accordingly, the motions of the parties and entire record having been considered, it is this 13th day of March, 1995,
ORDERED that the motion of Secretary Shalala to dismiss plaintiff's title VII claim is DENIED; and it is further
ORDERED that the motions of Secretary Shalala and all other defendants to dismiss all other claims set forth in plaintiff's complaint are GRANTED; and it is further
ORDERED that the motion of Secretary Shalala to transfer this case to the Eastern District of Virginia is DENIED; and it is further
ORDERED that plaintiff and Counsel for Secretary Shalala are directed to meet and confer under Local Rule 206 and to promptly file the statement required by that rule.
United States District Judge