The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
James Hunt, a former Chief Administrative Law Judge at the United States Department of Agriculture ("Department"), proceeding pro se, brings this action against the Department and the United States Office of Special Counsel ("OSC") (collectively, "defendants"). Hunt's principal claims are that he was deprived unlawfully of the compensation to which he was entitled as determined by the Office of Personnel Management ("OPM"), that the Department failed to conduct a hearing before compensating him at a rate lower than that established by OPM, and that the OSC refused to seek a hearing before the Merits Systems Protection Board ("Board") regarding various complaints that Hunt had filed with the OSC. Hunt's claims are grounded on alleged violations of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., and the Fifth Amendment.
Before the Court are defendants' motion to dismiss Hunt's amended complaint on several grounds, including defendants' assertion that this Court is unable to exercise subject matter jurisdiction over Hunt's claims [#13]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that defendants' motion should be granted.
Hunt became an Administrative Law Judge ("ALJ") with the Department in 1989 and was appointed Chief Administrative Law Judge ("CALJ") in 1999, when he was 67 years of age. He retired in 2003.
At the time of Hunt's appointment as CALJ, the OPM classified the pay level for the Department's CALJ position at the AL-2 level. The Department, however, paid Hunt at a decreased AL-3 level. Hunt alleges that the Department preferred to appoint younger ALJs to the position of CALJ and that its reduction of his compensation constituted age discrimination in violation of 5 U.S.C. § 2302(b)(1)(B).*fn1 Hunt points out that both his predecessor and successor were in their early fifties when appointed to the CALJ position, and both were paid at the higher AL-2 level.
Following his retirement, Hunt filed a complaint with the Board (hereinafter "Hunt I") under 5 U.S.C. § 7521(a),*fn2 alleging, among other things, that the Department's reclassification of the CALJ position's compensation violated 5 U.S.C. § 5372(b)(2) because only the Office of Personnel Management has the authority to determine the level of compensation for ALJs.*fn3 Hunt's complaint with the Board also alleged that the Department constructively removed him from his position and attempted to influence his judicial independence. The Board ruled against Hunt. With respect to Hunt's claim that he was paid at a reduced level, the Board stated the following:
Petitioner applied for and accepted the CALJ position fully aware of the grade level of the position, notwithstanding that the position had previously carried a higher grade level. And once he encumbered the position, he continued to accept his pay based on the pay level he had agreed to receive when he accepted the position; at no time did the agency downgrade the position or reduce his pay. Thus he cannot complain that the agency did not meet its end of the bargain or that the lower grade made the job too difficult or unpleasant to endure. Accordingly, he has not alleged facts, which if proved, could establish Board jurisdiction over his appeal.
Defs.' Mot. to Dismiss, Ex. 1 at 6. On February 7, 2005, the Board issued a Final Order denying Hunt's petition to review the initial decision, and on February 9, 2006, the United States Court of Appeals for the Federal Circuit affirmed the Board's decision.
Hunt filed a second complaint with the Board (hereinafter "Hunt II") on April 5, 2006. Hunt again alleged that he received less pay than he was entitled to, this time pursuant to 5 U.S.C. § 7512.*fn4 Id., Ex. 4 at 1-2. The Board dismissed Hunt's complaint for lack of jurisdiction, stating that because Hunt was an ALJ, his complaint must be brought under section 7521, and even if Hunt were able to establish jurisdiction under section 7512, the case would still be dismissed because Hunt would not be able to show an actual reduction in pay.*fn5 The Board issued a Final Order in the matter on January 10, 2007, and the Federal Circuit affirmed on October 4, 2007.
Hunt alleges that while Hunt I was pending, his successor as CALJ, Mark Hillson, offered him a position as a part-time ALJ. Compl., Ex. 2 at 2. Hunt informed Hillson that he was in the process of registering for the "senior" ALJ register but would accept the offer when the process was complete. Hunt also informed Hillson that he filed a complaint against the Department that was still pending. According to Hunt, Hillson was not aware of this action. When Hunt later informed Hillson that he had been placed on the register, Hillson withdrew the employment offer.
Hunt then filed a complaint against the Department with the OSC (hereinafter "Hunt III"), again alleging a reduction in pay as well as age discrimination and retaliation. Hunt alleged that the Department's refusal to hire him was in retaliation for filing his complaint with the Board, in violation of 5 U.S.C. § 2302(b)(9)(A).*fn6 Compl. ¶¶ 23-24. The OSC did not seek a hearing before the Board with regard to Hunt's complaint, but rather issued its findings in a letter dated June 11, 2008. Compl., Ex. 1. The OSC determined that (1) the Department had the authority to downgrade the OPM-authorized pay level for the CALJ position, (2) the pay level for ALJs at the Department was downgraded prior to Hunt's appointment, (3) the OSC had no jurisdiction over claims of age discrimination, (4) the Department did not retaliate against Hunt for filing his complaint with the Board, and (5) the Department had not reduced Hunt's lawfully authorized compensation. Compl. ¶ 26.
This action followed Hunt ...