United States District Court, District of Columbia
CASSANDRA M. MENOKEN, Plaintiff,
ADAM MILES, in his official capacity as Acting Special Counsel, U.S. Office of Special Counsel, Defendant. 
D. BATES UNITED STATES DISTRICT JUDGE
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]. Because the Court finds that Menoken lacks
standing, OSC's motion to dismiss will be granted.
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.
Menoken's Claims Against OPM
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.
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).
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. 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
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).
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. 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. 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.
Me noken's Disclosure to OSC
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).
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).
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).
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.
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.
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. ¶¶ 30-32. Menoken also contends
that OSC failed to ...