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Menoken v. Miles

United States District Court, District of Columbia

September 14, 2017

ADAM MILES, in his official capacity as Acting Special Counsel, U.S. Office of Special Counsel, Defendant. [1]



         For more than two decades, plaintiff Cassandra M. Menoken has been litigating claims that the Office of Personnel Management (OPM) unlawfully discriminated against African Americans, including herself, in its administration of the Administrative Law Judge (ALJ) examination and selection process. In November 2000, the U.S. Equal Employment Opportunity Commission (EEOC) found that the 1993 ALJ examination included a scoring factor-awarding points for partnership in a large law firm -that had an unlawful disparate impact based on race. EEOC ordered OPM to cease use of that scoring factor. In August 2012, Menoken filed a disclosure pursuant to 5 U.S.C. § 1213 with the Office of Special Counsel (OSC), an independent federal agency authorized to receive disclosures of wrongdoing, alleging that OP M continued to use the unlawful scoring factor and that EEOC refused to enforce its order. Dissatisfied with OSC's handling of her disclosure, Menoken filed this law suit under the Administrative Procedures Act (APA), seeking mandamus, declaratory, and injunctive relief requiring OSC to reopen her disclosure and process it in accordance with the requirements of 5 U.S.C. § 1213. OSC moved to dismiss this lawsuit on the grounds that Menokn lacks standing, her APA claims are preclude d by the Civil Service Reform Act, and she has not shown that she is entitled to mandamus relief. See Def.'s Mot. to Dismiss [ECF No. 11-1].[2] Because the Court finds that Menoken lacks standing, OSC's motion to dismiss will be granted.

         I. BACKGROUND

         Menoken is an African-American attorney who “[a]t all times material to this action” has been employed by the EEOC, an executive branch agency charged with, among other things, adjudicating employment discrimination claims filed by federal employees and applicants. Am. Pet. ¶ 4. OPM is the federal agency that administers the selection of ALJs and maintains a register of candidates eligible for placement. Id. ¶ 5; see Menoken v. Whipple, 605 F.Supp.2d 148, 150 n.1 (D.D.C. 2009) (Menoken I), aff'd sub nom. Menoken v. Berry, 408 Fed. App'x 370 (D.C. Cir. 2010) (per curiam). Menoken participated in the 1993 ALJ examination, but she was not selected for a position. Menoken I, 605 F.Supp.2d at 150; Am. Pet. ¶ 8. Since then, she has engaged in persistent litigation against OPM.

         A. Menoken's Claims Against OPM

         In 1994, Menoken filed an EEOC complaint alleging that: the 1993 ALJ selection process violated Title VII of the Civil Rights Act because it had a disparate impact on African American and female applicants, OPM discriminated against her based on her race and sex, and OPM retaliated against her for challenging the ALJ selection process. Menoken I, 605 F.Supp.2d at 150. In November 2000, EEOC ruled for OPM on all but one of Menoken's claims. Id. Menoken prevailed on her claim that OP M had used an improper scoring factor in the 1993 ALJ examination, specifically a benchmark that awarded applicants additional points for partnership in large law firms (the “partner benchmark”). Id. EEOC determined that the partner benchmark created an unlawful disparate impact on the basis of race, and ordered OPM to cease use of the benchmark. Id.; see Am. Pet. ¶¶ 9-12. OP M was further ordered to post and provide notice to those agencies which request ALJ certificates of the finding that the 1993 ALJ examination relied on a discriminatory benchmark. See Ex. 2 to Def.'s Mot. to Dismiss [ECF No. 11-3] (Menoken v. Cohen, No. 100-95-7644X (EEOC June 29, 2001)) at 27. In a June 2001 remedial order, EEOC barred OPM, or any other agency, from relying on the partner benchmark “for any ALJ employment purpose.” Am. Pet. ¶ 13. The remedial order also required OPM to correct any lingering effects of its race discrimination prior to allowing future ALJ appointments to occur on the basis of the “scores assigned under the tainted examination.” Id. ¶ 14. EEOC later clarified that OPM was required to raise the scores of African Americans on the ALJ register who were presumptively harmed by the partner benchmark. Id. ¶ 15. EEOC determined that Menoken was not entitled to any individual relief because, even accounting for the effect of the partner benchmark, she would not have been selected for an ALJ position. See Ex. 2 to Def.'s Mot. to Dismiss at 27-28.

         Shortly thereafter, Menoken filed appeals challenging EEOC's findings and conclusions and OPM's compliance with the remedial order. See Ex. 3 to Def.'s Mot. to Dismiss [ECF No. 11-4] (Menoken v. James, Nos. 01A15194, 01A14969 (EEOC May 16, 2003)) at 1, 7. In May 2003, EEOC issued a decision upholding it s findings and conclusions, and rejecting Menoken's noncompliance claim because it was “reasonably satisfied that [OPM] took appropriate steps in a timely manner to promptly adhere to and implement the directives of the [EEOC administrative judge].” Id. at 8; see Am. Pet. ¶ 21. Menoken filed a request for reconsideration of this decision . See Menoken v. James, No. 05A30918, 2005 WL 38762, at *2 (EEOC Jan. 3, 2005).

         In August 2003, while her rec onside ration request was pending, Menoken filed a Title VII lawsuit against OPM in this court, raising substantially similar claims as her prior EEOC complaints, including that: (1) OPM failed to comply with the remedial order, which required that OPM cease and correct unlawful discrimination against African American applicants caused by the partner benchmark; (2) the ALJ examination unlawfully discriminated against African Americans in general and her in particular; and (3) the ALJ selection process unlawfully discriminated against female applicants in general and her in particular.[3] Menoken I, 605 F.Supp.2d at 151. In March 2009, the court granted OPM's motion for summary judgment on all claims, finding OPM “provided abundant admissible evidence substantiating its full compliance wit h [EEOC's] order to cease and correct the discrimination caused by the partner benchmark.” Id. at 152. The D.C. Circuit affirmed this decision and concluded that “the record reveals no evidence to suggest that OPM continued to use the partner benchmark after the [AJ's] 2000 ruling. ” Menoken, 408 F. App'x at 373.

         In December 2011, Menoken filed a renewed request for EEOC to reconsider her 2001 merits and noncompliance appeals. EEOC declined because her “ allegations regarding OPM's alleged non-compliance and deception were fully litigated in federal district court.” Menoken v. Berry, No. 0520120172, 2012 WL 3060035, at *5 (EEOC July 11, 2012).

         Menoken filed a pair of civil actions in this court against OPM, the Social Security Administration (SSA), and the Department of Health and Human Services (HHS) in January 2016. In the first, Menoken brought Title VII retaliation claims against OPM and SSA, alleging that they manipulated the ALJ selection process in March 2001 to deny her an ALJ position. In the second, Menoken brought Title VII discrimination and retaliation claims against OPM and HHS, alleging that in 2005 they deviated from the normal ALJ selection process by utilizing four small lists of ALJ candidates, rather than one larger list of candidates, as was typical.[4] On August 11, 2017, Judge Amy Berman Jackson of this court issued a consolidated decision and dismissed the first action against OPM and SSA under the doctrines of res judicata and issue preclusion.[5] Menoke n v. McGettigan, No. 16-cv-0084 (ABJ), 2017 WL 3479048, at *4-7 (D.D.C. Aug. 11, 2017) (Menoken II). In the second action, the court denied defendants' motion to dismiss the discrimination claims against OPM and HHS and the retaliation claim against OPM, but granted the motion with respect to the retaliation claim against HHS. Id. at *7-10.

         B. Me noken's Disclosure to OSC

         OSC is an independent federal investigative and prosecutorial agency headed by the Special Counsel. 5 U.S.C. §§ 1211(a), 1212. OSC handles claims of wrongdoing (i. e ., “disclosures”) within the executive branch from current federal employees, former employees, and applicants evidencing (1) “a violation of any law, rule or regulation, ” (2) “gross mismanagement, ” (3) “a gross waste of funds, ” (4) “a n abuse of authority, ” or (5) “a substantial and specific danger to public health or safety” at federal agencies. Id. § 1213(a)(1).

         Federal law dictates a specific process that OSC follows for § 1213 disclosures. When the Special Counsel receives a disclosure, she shall review it within 15 days and determine whether there is a “substantial likelihood” that the information discloses one of the five categories of wrongdoing. Id. § 1213(b). If the Special Counsel makes a “positive determination” of a substantial likelihood of wrongdoing, she “s h a ll promptly transmit the information . . . to the appropriate agency head” and require the agency head to conduct an investigation and submit a written report of findings. Id. § 1213(c)(1) (emphasis added), (e)(1). OSC is not authorized to conduct its own investigation of a § 1213 disclosure. See 5 C.F.R. § 1800.2(a). Upon submission by the agency head, the Special Counsel reviews the report for reasonableness and statutory compliance, and provides a copy of the report to the complainant, who may also submit comments. 5 U.S.C. § 1213(e)(1)-(2). The Special Counsel is required to transmit an agency report, any comments provided by the complainant, and any comments or recommendations by the Special Counsel to the President and the congressional committees with jurisdiction over the relevant agency. Id. § 1213(e)(3).

         If the Special Counsel does not make a “positive determination, ” she nonetheless “may transmit the information to the head of the agency” with the consent of the complainant, but is not required to do so. Id. § 1213(g)(2) (emphasis added). If the Special Counsel does not transmit the disclosure, she “shall inform” the complainant of “the reasons why the disclosure may not be further acted on” and “other offices available for receiving disclosures, should the individual wish to pursue the matter further.” Id. § 1213(g)(3).

         In August 2012, Menoken file d a § 1213 disclosure with OSC, describing an “extraordinary pattern of wrongdoing, committed by OPM and EEOC.” Am. Pet. ¶ 23. Menoken claimed specifically that OPM never complied with EEOC's remedial order and “repeatedly violated it (and thus Title VII) by continuing to use, and rely on, the unlawful scoring factor for years after being ordered to ‘cease.'” Id. ¶ 18 (emphases omitted); see id . ¶ 38. She a ls o claimed that EEOC “abused its authority by blatantly refusing to enforce” the order, id . ¶ 19-for example, by dismissing her noncompliance appeal in 2003, id . ¶ 21.

         On August 15, 2012, Menoken received a call from an OSC attorney who advised her that her disclosure would not be processed “due to OSC's policy of not getting involved in matters relating to EEOC's adjudicatory activities.” Id. ¶ 24. Menoken revised her disclosure to clarify that she was “not seeking OSC's help in proving an EEO[C] claim” and that “the wrongdoing in question . . . harmed, not only [Menoken], but the public at large.” Id. ¶ 25 (emphasis in original) . On September 10, 2012, the same OSC attorney advised Menoken that OSC would not use its §1213 authority to address EEOC's alleged wrongdoing. Id. ¶ 27. By letter dated September 26, 2012, OSC notified Menoken that it had “close[d] the file” on her disclosure and advised her that it would be “more appropriate” to address the alleged wrongdoing with EEOC. Id. ¶ 28.

         Menoken sent a letter objecting to OSC's decision, in which she noted the “conspicuous absence of any mention” of a “substantial likelihood” assessment, as required by 5 U.S.C. § 1213(b). Id. ¶ 29. Menoken alleges that OSC's failure to mention the “likelihood question” in its letter evinces OSC's attempt to circumvent the requirements of § 1213. Id. ΒΆΒΆ 30-32. Menoken also contends that OSC failed to ...

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