United States District Court, District of Columbia
RUDOLPH CONTRERAS, United States District Judge.
appearing pro se, claims that the Department of
Veterans Affairs (“VA”) discriminated against him
during a job interview in May 2013. Defendant has moved to
dismiss the original complaint, ECF No. 1, under Rule
12(b)(6) of the Federal Rules of Civil Procedure on the
grounds of failure to state a claim and failure to exhaust
administrative remedies. See generally
Def.'s Mot. to Dismiss the Compl. and Mem. of Law, ECF
No. 15. The operative pleading, however, is plaintiff's
“Claim for Relief, ” ECF No. 8, which was filed
as an amended complaint (“Am. Compl.”) in
response to an order permitting plaintiff to adequately plead
his claims. See Nov. 20, 2017 Order, ECF No. 6.
Regardless, the asserted defenses apply to both pleadings and
support dismissal. Therefore, the Court will grant
defendant's motion for the reasons explained more fully
alleges the following facts. In May 2013, he interviewed with
“Mr. Mills” for a “WG-6 Driver
Position” with the VA. Am. Compl. at 1. During the
interview, plaintiff was asked if he had “a CDL and CPR
Certification, ” although, according to plaintiff,
“the position did not require the applicant to
have a CDL or CPR certification.” Id.
(Emphasis added.) Mr. Mills “told” plaintiff that
he “did not qualify for the position” since he
“did not have a CDL or CPR certification” and
“ended the interview due to what [plaintiff] believed
was discrimination by the VA.” Id.
also alleges that his VA records “clearly” show
that he is a “veteran with 10 Point preference, ”
Opp'n at 2, ECF No. 17; therefore, he “was and
should have been considered as being a Schedule A Hiring
Authority for people with disabilities, service connected
from combat war service.” Am. Compl. at 1 (citing 5
C.F.R. § 213-3102(u), titled “Appointment of
persons with intellectual disabilities, severe physical
disabilities, or psychiatric disabilities”); Opp'n
at 2. “For being discriminated against, ”
plaintiff seeks “5.5 million dollars to settle this
action.” Am. Compl. at 1, 2.
Subject Matter Jurisdiction
asserts that jurisdiction is lacking over the claim
predicated on plaintiff's status as a veteran because he
has not exhausted his administrative remedies under the
Veterans Employment Opportunity Act of 1998
(“VEOA”), 5 U.S.C. § 3330a,
“and/or” the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C.
§ 4311. Def.'s Mem. at 5. Although defendant has not
moved to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction, federal courts are courts of limited
jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction [.]” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Therefore, the Court must examine the jurisdictional
challenge first. See Khadr v. United States, 529
F.3d 1112, 1115 (D.C. Cir. 2008) (“Because Article III
courts are courts of limited jurisdiction, we must examine
our authority to hear a case before we can determine the
merits.”) (citations and internal quotation marks
omitted)); Gen. Motors Corp. v. EPA, 363 F.3d 442,
448 (D.C. Cir. 2004) (“As a court of limited
jurisdiction, we begin, and end, with an examination of our
jurisdiction.”); Fed.R.Civ.P. 12 (h)(3) (requiring
dismissal “at any time” the court determines that
it lacks subject matter jurisdiction).
matter jurisdiction is both an Article III requirement and a
statutory requirement. See Akinseye v. District of
Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).
“Jurisdiction of the lower federal courts is . . .
limited to those subjects encompassed within a statutory
grant of jurisdiction.” Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 701
(1982). As the party claiming jurisdiction, plaintiff bears
the burden of establishing that the court indeed has subject
matter jurisdiction. Khadr, 529 F.3d at 1115.
Because the focus is on the Court's power to hear a
claim, plaintiff's factual allegations are scrutinized
closer than when considering the adequacy of a claim under
Rule 12(b)(6). See Grand Lodge of Fraternal Order of
Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001).
Moreover, the Court “may consider such materials
outside the pleadings as it deems appropriate to
resolve” the jurisdictional question. Id. at
14 (citing Herbert v. Nat'l Acad. of Scis., 974
F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987) (other citation and
internal quotation marks omitted)).
Failure to State a Claim
Federal Rules of Civil Procedure require that a complaint
contain “a short and plain statement of the
claim” to give the defendant fair notice of the claim
and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2);
accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6)
“tests the legal sufficiency of a complaint.”
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). The motion does not test a plaintiff's ultimate
likelihood of success on the merits, but only forces the
court to determine whether a plaintiff has properly stated a
claim. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457,
467 (D.C. Cir. 1991). “[W]hen ruling on a
defendant's motion to dismiss [under Rule 12(b)(6)], a
judge must accept as true all of the factual allegations
contained in the complaint[, ]” Atherton v. D.C.
Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(citations omitted), and construe them liberally in the
plaintiff's favor. See, e.g., United States v. Philip
Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000).
not necessary for the plaintiff to plead all elements of a
prima facie case in the complaint. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v.
Pepco, 730 F.Supp.2d 25, 28-29 (D.D.C. 2010).
Nevertheless, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This means that a plaintiff's
factual allegations “must be enough to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at
555-56 (citations omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, ” are therefore insufficient to withstand a
motion to dismiss. Iqbal, 556 U.S. at 678. A court
need not accept a plaintiff's legal conclusions as true,
see id., nor must a court presume the veracity of
the legal conclusions that are couched as factual
allegations. See Twombly, 550 U.S. at 555. A pro
se complaint, such as here “must be held to less
stringent standards than formal pleadings drafted by lawyers
. . . . But even a pro se complainant must plead
‘factual matter' that permits the court to infer
‘more than the mere possibility of
misconduct.'” Atherton, 567 F.3d at 681-82