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GILLET v. KING

July 8, 1996

JAMES FRANCIS GILLET, Plaintiff,
v.
JAMES B. KING, Director, Office of Personnel Management, et al., Defendants.



The opinion of the court was delivered by: HARRIS

 Before the Court are defendants' motion to dismiss, plaintiff's opposition thereto, and defendants' reply. *fn1" A plaintiff's factual allegations must be presumed true and liberally construed in his favor when reviewing the adequacy of a complaint for purposes of a Rule 12(b)(6) motion. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. Dekalb County, Georgia, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). In addition, plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987) ("A plaintiff's bare conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted" for purposes of a motion to dismiss under Rule 12(b)(6)).

 Dismissal is appropriate only if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth, 820 F.2d at 1254 (citations omitted); Phillips, 591 F.2d at 968. Upon consideration, the Court finds this to be the case and therefore dismisses plaintiff's complaint. Although findings of fact and conclusions of law are unnecessary in ruling on motions to dismiss, see Fed. R. Civ. P. 52(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986), the Court nonetheless sets forth its reasoning.

 Background

 Plaintiff is a Caucasian male who is currently employed by the Social Security Administration's Office of Hearings and Appeals ("OHA") as an attorney. *fn2" On March 29, 1993, plaintiff filed an application for appointment as a federal Administrative Law Judge ("ALJ"). Plaintiff then completed the OPM's ALJ examination process and received a final rating from the OPM. Although plaintiff was dissatisfied with his overall rating, his rating enabled him to be placed on the register of persons eligible for ALJ positions. Plaintiff appealed his final rating, however, and received a Revised Notice of Final Appeal on March 23, 1994. This action followed. *fn3"

 Defendants initially moved to dismiss plaintiff's Title VII claim, which forms the basis of his complaint. Plaintiff responded in his opposition by acknowledging that his Title VII claim should be dismissed because he had not exhausted his administrative remedies, but plaintiff then argued that there were a host of other reasons why his action should go forward. Defendants responded to each of plaintiff's arguments in their reply. Accordingly, defendants' motion to dismiss and defendants' reply to plaintiff's opposition have been taken together by the Court to constitute defendants' arguments for dismissal. Defendants argue that this action should be dismissed because: (1) this Court is without jurisdiction over plaintiff's Title VII claims, since plaintiff failed to exhaust his administrative remedies; (2) this Court is without jurisdiction over plaintiff's Civil Service Reform Act ("CSRA") claim, because the proper forum for plaintiff's appeal is in the Federal Circuit; and (3) neither of plaintiff's constitutional claims has merit.

 Discussion

 Plaintiff correctly admits in his response to defendants' motion to dismiss that this Court does not have jurisdiction over the Title VII claim. It is axiomatic that a plaintiff must exhaust his administrative remedies prior to instituting a Title VII judicial action against a federal agency. See, e.g., United Airlines, Inc. v. Evans, 431 U.S. 553, 555, 97 S. Ct. 1885, 1887, 52 L. Ed. 2d 571 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 1822, 36 L. Ed. 2d 668 (1973); Bayer v. United States Dep't of the Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330 (D.C. Cir. 1992). Since plaintiff admits that he has not exhausted his administrative remedies, plaintiff's Title VII claim is not properly before this Court and is therefore dismissed.

 Plaintiff also accurately acknowledges in his opposition that there is no jurisdictional basis in this Court for a claim under the CSRA. The CSRA provides that a review of a final decision of the MSPB "shall be filed with the United States Court of Appeals for the Federal Circuit." 5 U.S.C. § 7703 (1994). Additionally, in United States v. Fausto, 484 U.S. 439, 108 S. Ct. 668, 98 L. Ed. 2d 830 (1988), the Supreme Court held that the "integrated system" of review provided in the CSRA foreclosed an implied right of judicial review under another statute. See also Bush v. Lucas, 462 U.S. 367, 388, 103 S. Ct. 2404, 2416, 76 L. Ed. 2d 648 (1983); Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171 (D.C. Cir. 1983). While it is unclear whether plaintiff has appealed the decision of the MSPB to the Federal Circuit, that is the proper channel for his appeal. Hence, this Court is without jurisdiction over plaintiff's CSRA claim, and that claim likewise is dismissed.

 Plaintiff's remaining claims are based on the Fifth Amendment of the United States Constitution. *fn4" Plaintiff argues that defendants have violated his rights under both the Due Process Clause and the Equal Protection Clause. The Court finds no merit in either of these claims.

 In order to make out a due process claim, plaintiff must establish a deprivation of a liberty interest or a property interest protected by the Due Process Clause. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 901, 47 L. Ed. 2d 18 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); White v. OPM, 787 F.2d 660, 252 U.S. App. D.C. 104 (D.C. Cir.), cert. denied, 479 U.S. 885, 93 L. Ed. 2d 252, 107 S. Ct. 276 (1986). Plaintiff has failed to establish that he has either a liberty interest or a property interest in employment as an ALJ.

 Plaintiff apparently claims (though it is far from clear) that he has a liberty interest protected by the Due Process Clause in being an ALJ, and that his due process rights have been violated because of his failure to receive a high overall rating in the ALJ eligibility register. The essence of plaintiff's due process argument has previously been rejected by the D.C. Circuit, in a case substantially the same as plaintiff's case. In White v. OPM, 787 F.2d 660, 252 U.S. App. D.C. 104 (D.C. Cir. 1986), cert. denied, 479 U.S. 885, 93 L. Ed. 2d 252, 107 S. Ct. 276 (1986), a plaintiff who also had applied for, but had not been selected for, an ALJ position, challenged his failure to receive a hearing before the OPM abolished his position on the ALJ register of eligibles and required him to reapply. The White court stated:

 
The government's relationship with an applicant for a particular job does not implicate the due process clause's protection of liberty interests . . . . We decline to find a constitutionally protected liberty interest in the freedom to pursue the profession of administrative law judge in the employ of the United States . . . . We simply do not believe that lawyers who wish to become administrative law judges with the United States possess a liberty interest in the mere pursuit of that employment.

 787 F.2d at 665. Because an ALJ position is simply one particular job and is not in itself a profession, see id., plaintiff cannot establish a liberty interest in becoming an ALJ. *fn5" See id. Plaintiff still holds a position as a staff attorney with the OHA, so the government has not excluded plaintiff from all government employment in his profession as an attorney. In addition, ...


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