had been instructed not to engage in counseling on any of
plaintiffs' allegations of a discriminatory pattern and practice
of racial discrimination. See Opp'n at 13. Plaintiffs further
rely on an affidavit of Ms. Nelsen submitted in Logan v.
Greenspan, Civ. Action No. 98-0049. See Pl.'s 12/6/99 Opp'n,
Ex. 11. In that affidavit, Ms. Nelson details numerous Board
policies and practices that she alleges intentionally discourage
individuals from pursuing EEO complaints. Specifically, Ms.
Nelson avers that she was told to not counsel the group as a
group, but rather to require plaintiffs to file individual
complaints. Id. at 14. She states that the Board's EEO
Programs Director, Sheila Clark, explained that "she wanted the
group to file individually because then the complaints could
then be dismissed as untimely." Id. at 15. Ms. Nelson further
describes actions and directives of Ms. Clark that she believes
violated agency regulations governing the counseling process.
While the parties have attached a significant number of
documents to their pleadings, the Court is mindful that the
parties have not engaged in any formal discovery. Where a
defendant has challenged "only the legal sufficiency of the
plaintiffs jurisdictional allegations," the Court must take the
plaintiffs factual allegations as true in determining whether
subject matter jurisdiction is appropriate. Phoenix Consulting,
Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000).
However, where the defendant submits materials outside the
pleadings to support its motion to dismiss for lack of subject
matter jurisdiction, the Court must consider whether the motion
"present[s] a dispute over the factual basis of the court's
subject matter jurisdiction. . . ." Id. (discussing presence
of jurisdictional facts for a claim under the Foreign Sovereign
Immunities Act). In such a case, "[t]he district court retains
`considerable latitude in devising the procedures it will follow
to ferret out the facts pertinent to jurisdiction,' but it must
give the plaintiff `ample opportunity to secure and present
evidence relevant to the existence of jurisdiction.'" Id.
(quoting Prakash v. American Univ., 727 F.2d 1174, 1179-80
(D.C. Cir. 1984)). However, the D.C. Circuit has cautioned that
such jurisdictional discovery should be "carefully controlled
and limited," and should first consider other "jurisdictional"
or "non-merits" grounds, to the extent that they may dispose of
the case without imposing the burden of jurisdictional
discovery. Id. (citing In re Papandreou, 139 F.3d 247,
254-55 (D.C. Cir. 1998)).
In Artis I, the D.C. Circuit held that, in order to exhaust
administrative remedies, "[c]laims must be brought to the EEO
Counselor in a manner that lends itself to potential
resolution. . . . [P]roviding the agency with bare `notice' of
the basis of a complaint during the counseling stage is not
enough." 158 F.3d at 1306. Several courts have held that good
faith cooperation in the administrative process is a
prerequisite to a finding that a plaintiff has exhausted
administrative remedies. See, e.g., Vinieratos v. United States
Dep't of Air Force, 939 F.2d 762 (9th Cir. 1991); Wade v.
Sct'y of the Army, 796 F.2d 1369, 1377 (11th Cir. 1986).
Here, plaintiffs have proffered evidence to support their
contention that the Board counseling sessions are being used as
a means of preventing plaintiffs from instituting a civil action
in a federal district court. Some courts have recognized that,
where a plaintiff can show that pursuit of administrative
remedies would be futile, exhaustion requirements may be
relaxed. A plaintiff may be excused from exhausting
administrative remedies if she presents "`[o]bjective and
undisputed evidence of administrative bias [that] would render
pursuit of an administrative remedy
futile.'" Anderson v. Babbitt, 230 F.3d 1158, 1164 (9th Cir.
2000) (quoting Joint Bd. of Control of Flathead, Mission &
Jocko Irrigation Districts v. United States, 862 F.2d 195, 200
(9th Cir. 1988)); cf. Kizas v. Webster, 707 F.2d 524, 544
(D.C. Cir. 1983) (declining to find that a "futility doctrine
[could] be stretched to sanction court adjudication of a Title
VII action when no party to the action has ever filed an initial
charge with the agency").
In Sizova v. National Institute of Standards and Technology,
the Tenth Circuit remanded a case to the district court for
jurisdictional discovery because the federal employee plaintiff
and her defendant employer disputed the outcome of plaintiffs
EEO counseling. See, 282 F.3d 1320, 1324-28 (10th Cir. 2002).
The court was "troubled" by factual disputes regarding the
circumstances of the plaintiffs attempt to file an informal
complaint with the EEO counselor, as well as disputes regarding
the content of the counseling. Id. at 1327. The Tenth Circuit
concluded that the question of the district court's subject
matter jurisdiction was "decided prematurely," and that "further
factual development" of the issues surrounding plaintiffs EEO
counseling was necessary. Id. at 1328.
This Court is also troubled by the factual disputes
surrounding the 1997 EEO counseling session that occurred in
this case. The Court finds that it is appropriate to permit
plaintiffs to conduct some limited jurisdictional discovery.
This discovery should concentrate on any EEO counseling that was
conducted with individual plaintiffs in 1997, and the two group
sessions held in January and February 1997. Relevant inquiries
may focus on the content of the actual sessions, any follow-up
communication between the parties, and Board policy or practices
that would support a conclusion that the administrative
counseling process was a futile exercise.
The Court is cognizant of defendant's position that Counts
II-V have never been the subject of any counseling sessions, and
must therefore be dismissed. See Mot. to Dismiss, at 30.
However, this argument is better addressed by the Court at such
time as the parties have engaged in limited jurisdictional
Accordingly, the Court will permit the parties to engage in
discovery on the extremely narrow issue of whether plaintiffs
have satisfied their obligation to engage in counseling at the
administrative level and have thus exhausted their
administrative remedies. This discovery may touch on the content
of any counseling sessions, the parties' responses to each
other's requests for information, and the alleged futility of
the administrative counseling process.
C. Defendant's Motion to Dismiss for Failure to State a
Claim and on Statute of Limitations Grounds
As discussed above, the D.C. Circuit has instructed the
district courts to consider whether other jurisdictional or
"non-merits" grounds for dismissing a case exist before ordering
jurisdictional discovery. Phoenix Consulting, Inc., 216 F.3d
at 40. These other bases for decision are limited in scope by
the Court's obligation to determine that it has subject matter
jurisdiction of a party's claims before determining the merits
of those claims. Defendant's motion pursuant to Fed.R.Civ.P.
12(b)(6), as well as its argument that some of plaintiffs'
claims are barred by the statute of limitations, would require
the Court to examine the merits of plaintiffs' claims before
assuring itself that it properly has subject matter jurisdiction
over plaintiffs' claims.