United States District Court, District of Columbia
TIMOTHY J. KELLY, United States District Judge
Benoit Brookens worked as an economist for the Department of
Labor (“DOL, ” sued in this case through
Defendant, the Secretary of Labor, in his official capacity).
Brookens claims that DOL unlawfully terminated him, alleging
that his firing amounted to age- and race-based
discrimination and retaliation for his union activity. He
litigated those claims before the Merit Systems Protection
Board (“MSPB”), which rejected them. He then
sought to appeal the MSPB's decision to the U.S. Court of
Appeals for the Federal Circuit. Because Brookens'
discrimination claims deprived the Federal Circuit of
jurisdiction, it transferred the case here.
moved to dismiss, arguing that Brookens' failure to file
this lawsuit within 30 days of when he received the
MSPB's order deprives this Court of subject matter
jurisdiction. The Court agrees and will dismiss the case.
Factual and Procedural Background
is a former DOL economist with degrees in law and economics.
See ECF No. 18-1 (“Fed. Cir. Tr.”) at
9:21-10:4. DOL fired him in 2008. ECF No. 7 at 1;
Brookens v. Dep't of Labor, 120 M.S.P.R. 678,
680 (2014). He then filed grievances for arbitration,
claiming, among other things, that his firing was both the
result of unlawful age and race discrimination and in
retaliation for his participation in protected union activity
(such as a grievance he had filed in 1999).
Brookens, 120 M.S.P.R. at 680-81. In 2012, an
arbitrator disagreed and rejected the claims. See
Id. Brookens appealed the arbitrator's decision to
the MSPB, which referred the case to an administrative law
judge (“ALJ”). Id. at 686.
recommended ruling against Brookens on the ground that he had
not substantiated his claims. Brookens v. Dep't of
Labor, No. CB-7121-13-0012-V-1, 2014 WL 7146454
¶¶ 3-4 (M.S.P.B. Dec. 16, 2014). After Brookens
failed to file timely objections to the ALJ's
recommendations, the MSPB adopted those recommendations in an
order dated December 16, 2014. See Id. ¶¶
5-7. The MSPB explained that the order was its “final
decision.” Id. ¶ 8.
order informed Brookens that he could seek further review of
his discrimination claims before the Equal Employment
Opportunity Commission. Id. Alternatively, Brookens
could seek review of all of his claims in federal district
court if he did so in a timely manner, as the MSPB's
You must file your civil action with the district court no
later than 30 calendar days after your receipt of this order.
If you have a representative in this case, and your
representative receives this order before you do, then you
must file with the district court no later than 30 calendar
days after receipt by your representative. If you
choose to file, be very careful to file on
Id. (emphasis added). Brookens does not dispute that
he received a copy of the order within five days of when it
was issued (that is, by December 21, 2014). See ECF
No. 23 (“Pl.'s Supp.”) at 1-2.
did not file suit in district court within 30 days. Instead,
on February 12, 2015, he sought to appeal the MSPB's
decision to the U.S. Court of Appeals for the Federal
Circuit. See ECF No. 1-2 (“Fed. Cir.
Dkt.”) at 3. The Federal Circuit required Brookens to
file a form explaining the status of any discrimination
claims by checking one of five boxes. His options included:
that his case had never included discrimination claims, that
he had abandoned any discrimination claims previously before
the MSPB, and that the MSPB's ruling was jurisdictional.
Brookens, who had been represented by counsel before the MSPB
but was proceeding pro se at the time, erroneously
selected the first of those three options. See Form
10 Statement Concerning Discrimination, Brookens v. Labor
Dep't, No. 15-3084 (Fed. Cir. Mar. 13, 2015), ECF
No. 3. The Federal Circuit subsequently asked the parties to
clarify whether Brookens had in fact permanently abandoned
his earlier discrimination claims. See Fed. Cir.
Dkt. at 5 (docket entry 57). The Federal Circuit also asked
the parties to address whether the court had jurisdiction in
light of Kloeckner v. Solis, 568 U.S. 41 (2012),
which held that appeals from MSPB decisions in “mixed
cases” (that is, cases before the MSPB that include
discrimination claims) must be brought in district court, not
the Federal Circuit. See id.; Fed. Cir. Dkt. at 5
(docket entry 57). Having once again retained counsel by that
point, Brookens explained that he did intend to preserve his
discrimination claims, but asserted that the MSPB's
decision was jurisdictional and thus appealable to the
Federal Circuit. See ECF No. 16-5; ECF No. 16-6.
argument, the Federal Circuit panel appeared convinced that
it lacked jurisdiction, and suggested that a transfer to this
Court might be more appropriate than outright dismissal.
See Fed. Cir. Tr. at 4:7-12, 6:1-9. DOL argued
against a transfer on the ground that Brookens had not met
the 30-day deadline for bringing suit in district court.
See Id. at 11:5-13. The judges on the panel
expressed skepticism, opining that the “30-day deadline
is not jurisdictional” and therefore could be
“waive[d]” by the transferee district court.
Id. at 11:14-17. When pressed at oral argument, DOL
agreed that the 30-day deadline was not jurisdictional and
could be waived, id. at 11:18-19, but asserted that
Brookens could not justify equitable tolling of the 30-day
deadline because he had been aware of the deadline, had been
represented by counsel before the MSPB, and himself had a
legal education, see Id. at 12:20-13:7. The panel,
however, suggested that equitable tolling was “a
decision that the District Court should make, not us, ”
and DOL agreed. Id. at 12:15-19. The panel further
suggested that Brookens might have an argument in favor of
equitable tolling, given that the MSPB's order did not
explain that Brookens had a right to an appeal to the Federal
Circuit if he gave up his discrimination claims, see
Id. at 13:8-17, and that Brookens may have been
“confused” about where to file, see Id.
9, 2016, the Federal Circuit issued a per curiam
order concluding that Brookens' appeal was timely, but
that the court lacked subject matter jurisdiction.
See ECF No. 1-1 (“Fed. Cir. Order”). The
Federal Circuit transferred the case to this Court pursuant
to 28 U.S.C. § 1631. See Fed. Cir. Order.
this Court received the case, DOL moved to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
See ECF No. 16 (“DOL Br.”). DOL now
argues that the 30-day deadline for filing suit is, in fact,
jurisdictional under the D.C. Circuit's holding in
King v. Dole, 782 F.2d 274 (D.C. Cir. 1986) (per
curiam). Therefore, DOL argues, the case must be dismissed
for lack of subject matter jurisdiction because Brookens
filed the Federal Circuit appeal more than 30 days after he
received the MSPB's order. See DOL Br. at 3. DOL
argues in the alternative that, even if King is no
longer controlling precedent, the case should be dismissed as
time-barred under Rule 12(b)(6). See Id. at 3 n.1.
opposes on the ground that the Federal Circuit's order
has already resolved DOL's motion by holding that his
claims were timely and that this Court has jurisdiction.
See ECF No. 18 (“Pl.'s Opp'n”)
at 3-8. Brookens further argues that the case should not be
dismissed merely because Brookens erred by filing in the
wrong court, especially since he did so within the 60-day
deadline for taking appeals from the MSPB to the Federal
Circuit. See Id. at 9.
“have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006). Thus, district courts
must dismiss any claim over which they lack subject matter
jurisdiction, regardless of when the challenge to subject
matter jurisdiction arises. See Fed. R. Civ. P.
12(h)(3). When a party moves to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), “the person
seeking to invoke the jurisdiction of a federal court . . .
bears the burden of establishing that the court has
jurisdiction.” Hamidullah v. Obama, 899
F.Supp.2d 3, 6 (D.D.C. 2012). “Although a court must
accept as true all of the [plaintiff's] factual
allegations when reviewing a motion to dismiss pursuant to
Rule 12(b)(1), factual allegations will bear closer scrutiny
in resolving a 12(b)(1) motion than in resolving a 12(b)(6)
motion for failure to state a claim.” Id.
(alterations, citations and internal quotation marks
motion to dismiss under Rule 12(b)(6) “tests whether a
plaintiff has properly stated a claim.” BEG Invs.,
LLC v. Alberti, 85 F.Supp.3d 13, 24 (D.D.C. 2015).
“A court considering such a motion presumes that the
complaint's factual allegations are true and construes
them liberally in the plaintiff's favor.”
Id. Nonetheless, the complaint must set forth enough
facts to “state a claim to relief that is plausible on
its face.” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “If ‘no
reasonable person could disagree on the date' on which
the cause of action accrued, the court may dismiss a claim on
statute of limitations grounds.” Potts v. Howard
Univ. Hosp., 623 F.Supp.2d 68, 72 (D.D.C. 2009) (quoting
Smith v. Brown & Williamson Tobacco Corp., 3
F.Supp.2d 1473, 1475 (D.D.C. 1998)). “A complaint will
be dismissed under Rule 12(b)(6) as ‘conclusively
time-barred' if ‘a trial court determines that the
allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency.'”
Momenian v. Davidson, 878 F.3d 381, 387 (D.C. Cir.
2017) (internal quotation marks omitted) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.
Cir. 1996)); see also Tran v. Citibank, N.A., 208