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February 26, 2004.

IRA L. FRANK, Plaintiff,
TOM RIDGE, Secretary, U.S. Department of Homeland Security, Defendant

The opinion of the court was delivered by: RICARDO URBINA, District Judge



In this employment-discrimination action, the pro se plaintiff*fn1 is a special agent of the Immigration and Naturalization Service ("INS") who is suing the Secretary of Homeland Security ("the defendant").*fn2 The plaintiff brings suit pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. alleging that the INS discriminated against him on the basis of gender by demoting and transferring him after receiving allegations of inappropriate sexual comments. In response to the plaintiff's complaint, the defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Because the court lacks subject-matter jurisdiction, the court grants the defendant's motion to dismiss. Page 2


  A. Factual Background

  This tale of two claims begins in 1996. The plaintiff, then a grade GS-15 supervisory special INS agent serving as Assistant District Director for Investigations in the San Antonio district office, was accused of making inappropriate comments of a sexual nature. Compl. ¶ 3.1.Although the plaintiff denied the allegations, the INS commenced an investigation. Id. ¶¶ 3.1, 3.4. In October 1998, after finding that the plaintiff had disobeyed orders and engaged in conduct unbecoming an officer, the district director for the Chicago INS field office demoted him to a grade GS-14 non-supervisory position and transferred him to Washington, D.C. Id. ¶¶ 3.5, 3.12; Def.'s Mot. to Dismiss ("Def.'s Mot.") at 1-2 (citing Frank v. Ashcroft, No. 01-0225, slip op. at 2 (W.D. Tex. Feb. 18, 2002)). The district director informed the plaintiff that he could either (1) appeal his demotion to the Merit Systems Protection Board ("MSPB"), and during that appeal raise any discrimination claims, or (2) proceed with any discrimination claims through the INS' equal employment opportunity ("EEO") process. Def.'s Mot. at 2 (citing Frank, slip op. at 2). The district director alerted the plaintiff that he could "appeal only through one of the two processes and whichever forum you file first with will determine your election of process." Id.

  The chain of events which followed are critical to this case. In December 1998, with the assistance of counsel, the plaintiff appealed his demotion to the MSPB, also raising a defense of whistleblower protection. Id. (citing Frank, slip op. at 3); Pl.'s Opp'n at 2, 3 n.3. In October 1999, the plaintiff refiled his MSPB appeal, adding a claim of religious discrimination.*fn3 Def.'s Mot. at 2; Pl.'s Opp'n at 2. After a three-day hearing, the MSPB administrative judge affirmed Page 3 the plaintiffs demotion in July 2000. Compl. ¶ 2.3.5; Def.'s Mot. at 3 (citing Frank, slip op. at 3); Pl's Opp'n at 3. In September 2000, the plaintiff petitioned the MSPB for review of the MSPB administrative judge's decision, dropping his religious-discrimination claim in the process. Id.

  In January 2000, while his MSPB appeal was underway, the plaintiff learned that the INS had failed to discipline a female INS grade GS-14 supervisory employee facing sexual-misconduct allegations.*fn4 Compl. ¶¶ 2.3.1, 3.7; Def.'s Mot. at 2 (citing Frank, slip op. at 3); Pl's Opp'n at 3. With this information in hand, the plaintiff filed an EEO complaint with the agency in February 2000 alleging that the INS demoted him on the basis of gender discrimination and, at the same time, notifying the agency of his ongoing MSPB demotion case. Compl. ¶¶ 1.1, 2.3.1-2. In January 2001, before the MSPB issued its ruling on the plaintiff's demotion, the agency dismissed the plaintiff's gender-discrimination claim on the grounds that the plaintiff should have raised it in his MSPB case. Id. ¶ 2.3.4; Def.'s Mot. at 3 (citing Frank, slip op. at 3). The plaintiff once again appealed to the MSPB.*fn5 Compl. ¶ 2.3.7; Pl's Opp'n at 4.

  In June 2001, with both the demotion appeal and the gender-discrimination claim now before it, the MSPB issued its decision. Compl. ¶ 2.3.8; Def.'s Mot. at 3 (citing Frank, slip op. at 4); Pl's Opp'n at 4. The MSPB upheld the MSPB administrative judge on the plaintiff's demotion. Frank v. Dep't of Justice, 2001 MSPB LEXIS 544, at *l-2 (M.S.P.B. June 21, 2001). The MSPB declined to consider the plaintiff's gender-discrimination claim, however, because the Page 4 plaintiff had failed to raise the claim before the MSPB administrative judge and had not shown that he based the claim "on new and material evidence not previously available despite his due diligence." Frank, 2001 MSPB LEXIS 544, at *2.

  Not satisfied with the MSPB decision, the plaintiff appealed to the Western District of Texas as a mixed case involving both demotion and discrimination claims.*fn6 Compl. ¶¶ 2.3.9-.10; Pl's Opp'n at 4-5. In March 2002, however, the court concluded that it lacked jurisdiction over the case and transferred it to the United States Court of Appeals for the Federal Circuit. Compl. ¶ 2.3.11. Believing that the Federal Circuit could not hear discrimination claims, the plaintiff appealed the MSPB gender-discrimination claim decision to the Equal Employment Opportunity Commission ("EEOC"). Id. ¶¶ 2.3.12-.13. In May 2002, the EEOC denied consideration of the plaintiff's claim on the grounds that it lacks jurisdiction over matters that the MSPB declines to hear on procedural grounds. Id. ¶ 2.3.14; Def.'s Mot. at 4-5 n.1.

  B. Procedural History

  In June 2002, the plaintiff filed his complaint in this court pursuant to Title VII, seeking declaratory relief and damages. Compl. ¶¶ 2.1, 9.1. The plaintiff executed service on the defendant in September 2002. Six months later, in March 2003, the defendant filed a motion for leave to late-file a motion to dismiss, followed by the motion to dismiss. The plaintiff responded with a motion to strike the defendant's motion to dismiss and a motion for referral to mediation. In May 2003, after concluding that the defendant's inadvertent delay constituted excusable neglect and stressing that courts strongly favor the resolution of disputes on their merits, the court granted the defendant's motion for leave to late-file its motion to dismiss and denied the Page 5 plaintiff's motion to strike. Mem. Order dated May 6, 2003. The plaintiff subsequently retained counsel and filed a motion for oral argument. The court now turns to the defendant's motion to dismiss, the plaintiff's motion for oral argument, and the plaintiffs motion for referral to mediation.


A. Statutory and Regulatory Framework for Prosecution of Mixed Cases
  Section 7702 of title 5 of the United States Code governs the prosecution of "mixed cases." 5 U.S.C. § 7702. A mixed case is "an adverse personnel action subject to appeal to the MSPB coupled with a claim that the action was motivated by discrimination." Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999). As our court of appeals has noted, "[t]he MSPB and EEOC regulations that structure the ...

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