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Convertino v. United States Dep't of Justice

October 19, 2005


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on the defendants' Partial Motion [15] to Dismiss. Upon consideration of the defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be granted. The Court agrees with the defendants' contention that plaintiff has failed to exhaust his administrative remedies under the Civil Service Reform Act ("CSRA") and that the claims raised in Count I of plaintiff's Complaint therefore must be dismissed for lack of subject-matter jurisdiction.


Plaintiff Richard G. Convertino, an Assistant United States Attorney in the United States Attorney's Office for the Eastern District of Michigan, brings this lawsuit against his employer, the United States Department of Justice ("DOJ"), and various DOJ officials sued in their official capacities. Plaintiff alleges that he was subjected to a variety of adverse employment actions in retaliation for his criticism of the DOJ's handling of a criminal investigation and trial, and for his testimony, given under subpoena, before a committee of the United States Senate. Plaintiff claims that these personnel decisions violated his rights under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., the Lloyd-LaFollette Act, codified at 5 U.S.C. § 7211, and the First Amendment to the United States Constitution ("Count I").

Between September 2001 and September 2003, Mr. Convertino served as the lead prosecuting attorney for the DOJ in United States v. Koubriti. Plaintiff alleges that during preparation for trial in Koubriti, he voiced concerns regarding the operations of government and the effectiveness of the DOJ in the war on terror. On or about September 2, 2003, plaintiff was contacted by an investigator from the Senate Finance Committee who informed plaintiff that the Committee's Chairman, Senator Charles E. Grassley, wanted plaintiff to testify about the factual background of the Koubriticase. Compl. ¶¶ 38, 47. On September 7, 2003, plaintiff was served a subpoena requiring that he testify before the Senate Finance Committee. See Compl., ¶ 64. In compliance with the subpoena, Mr. Convertino appeared before the Senate Finance Committee on September 9, 2003, and for six minutes gave a brief summary and overview of the facts in Koubriti. Compl. ¶72.

Allegedly as a result of these activities, plaintiff claims that he was (1) removed from the Koubriti case, Compl. ¶ 49; (2) informed by an unidentified Assistant United States Attorney ("AUSA") that "he was in danger of losing his job," Compl. ¶ 52; (3) informed that his supervisors intended to reassign him from "his position as an Assistant United States Attorney in the Organized Crime Strike Force to a newly created position of full time 'Duty AUSA'" which would require plaintiff to "handle exceedingly simple and mundane matters . . . [and] other routine tasks on a full time and daily basis," Compl. ¶ 77; (4) subjected to a "review" of his cases, Compl. ¶¶ 96-98; and (5) subjected to attempts to discredit him with accusations of "leaking" information in violation of federal law. Compl. ¶¶ 86-87. For the claims raised in Count I, plaintiff seeks declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., the Lloyd-LaFollette Act, 5 U.S.C. § 7211, and the First Amendment to the United States Constitution.


Defendants argue that dismissal is required under Federal Rule of Civil Procedure 12(b)(1) because plaintiff failed to exhaust his administrative remedies provided by the CSRA prior to filing suit in this Court. Accordingly, the government insists, Count I should be dismissed for lack of subject matter jurisdiction, in accordance with the D.C. Circuit's approach in Steadman v. Governor, United States Soldiers' & Airmen's Home, 918 F.2d 963, 968 (D.C. Cir. 1990), where the court concluded that the plaintiffs' failure to exhaust administrative remedies in a labor dispute required reversal and "remand[] with instructions to dismiss for lack of subject matter jurisdiction." This Court agrees.

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court must dismiss claims over which it has no subject matter jurisdiction. In evaluating whether it has subject matter jurisdiction, the court must construe the complaint liberally, and give the plaintiff the benefit of all reasonable inferences. See Tozzi v. EPA, 148 F. Supp. 2d 35, 41 (D.D.C. 2001) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). The court must view the allegations as a whole, and a conclusory averment of subject matter jurisdiction negated by other allegations in the pleading should result in dismissal. See id. at 35, 41 (citation omitted).

It is a "long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Bethlehem Shipbuilding Corp. v. MacKenzie, 303 U.S. 41, 50--51 (1938); see also id. at 51 n.9 (collecting cases); Randolph-Shepard Vendors of Am. v. Weinberger, 795 F.2d 90, 104 (D.C. Cir. 1986); Utah Power & Light Co. v. ICC. The exhaustion doctrine functions primarily to forestall the "premature interruption of the administrative process" by the courts. McKart v. United States, 395 U.S. 185, 193 (1969). In addition to preserving the "autonomy of the administrative agency . . . to exercise its expertise and discretion on appropriate matters," Weinberger, 795 F.2d at 105, however, a vigorous exhaustion requirement "also promotes effective and efficient judicial review by ensuring that such review is of a fully developed factual record, and undertaken with the benefit of the agency's exercise of discretion or application of expertise." Id. (citing McKart, 395 U.S. at 194; Athlone Indus. v. Consumer Prod. Safety Comm'n, 707 F.2d 1485, 1488 (D.C. Cir. 1983)).

The D.C. Circuit has explained that "jurisdictional exhaustion," actually limits federal court jurisdiction where "Congress requires resort to the administrative process as a predicate to judicial review," and is an extension of congressional power "to control the jurisdiction of the federal courts." Avocados Plus, Inc. v. Veneman, 370 F.3d at 1247 (D.C. Cir. 2004) (citing EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 963--64 (D.C. Cir. 1999)). An exhaustion requirement will only be of the jurisdictional sort, and therefore not subject to discretionary excuse, where "Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision." I.A.M. Nat'l Pension Fund Benefit Plan C v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984) (quoted in Avocados Plus, 370 F.3d at 1248).

This case involves a federal employee subject to the provisions of the Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat.1111, as amended (codified at various sections of Title 5 of the United States Code). A principal purpose of the CSRA is to "provide increased protection for 'whistleblowers,' federal employees seeking to disclose wrongdoing in the government." Frazier v. Merit Systems Protection Bd., 672 F.2d 150, 152 (D.C. Cir. 1982); accord Wren v. Merit Systems Protection Bd., 681 F.2d 867, 872 (D.C. Cir. 1982) (noting the "primary purpose" of the CSRA is to "safeguard employees . . . who 'blow the whistle' on illegal or improper agency conduct"). Thus, the CSRA explicitly prohibits taking, failing to take, or threatening to take or fail to take, a personnel action "because of" various forms of "whistleblowing." 5 U.S.C. § 2302(b)(8)-(b)(9) (2000). Section 2302 of the CSRA also provides that this subsection "shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress." Id. § 2302(b). Thus, the facts alleged in Count I clearly give rise to claims cognizable under the CSRA's administrative remedial process.

The CSRA replaced the pre-existing "patchwork system with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of various categories of federal employees with the needs of sound and efficient administration." United States v. Fausto, 484 U.S. 439, 445 (1988). One of the fundamental "structural elements" of this integrated scheme of review "is the primacy of the MSPB [Merit Systems Protection Board] for administrative resolution" of personnel disputes, and "the primacy of the United States Court of Appeals for the Federal Circuit for judicial review." Id. at 449. In Bush v. Lucas, the Supreme Court held that the CSRA consists of "comprehensive procedural and substantive provisions giving meaningful remedies against the United States." 462 U.S. 367, 368 (1983).

Mr. Convertino, as an employee of the federal government, has a right to file a complaint under the CSRA with the Office of Special Counsel ("OSC"). See 5 U.S.C. § 1214(a)(1)(A) (2000). After review, if the OSC finds "reasonable grounds" to believe that a prohibited personnel practice has occurred, it must report its finding to the Merit System Protection Board ("MSPB"), the involved Agency, and to Office of Personal Management. Id. § 1214(b)(2)(B). If the agency fails to correct the practice within a reasonable period of time, the OSC may -- but need not -- seek corrective action with the MSPB. Id. § 1214(b)(2)(C). The OSC is required to act on allegations of prohibited personnel practices within 240 days, with an exception for situations in which the person making the allegation agrees to an extension of time. Id. § 1214(b)(2)(A). Further appeal rights to the MSPB may be ...

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