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Bell v. Esper

United States District Court, District of Columbia

December 19, 2019

YOLANDA BELL, Plaintiff,
v.
MARK T. ESPER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF DEFENSE, UNITED STATES DEPARTMENT OF DEFENSE, [1] Defendant.

          MEMORANDUM OPINION, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, Re Document No. 14

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Yolanda Bell, a former employee of the Department of Defense, has brought a Complaint against Defendant Mark T. Esper, in his official capacity as Secretary of Defense. Ms. Bell, originally proceeding pro se, makes several claims relating to her employment at and her termination from the Department of Defense. Defendant has moved, pursuant to Fed.R.Civ.P. 12(b)(1), (3), and (6), to dismiss this case for lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. Ms. Bell, now represented by counsel, concedes that all her claims should be dismissed except for those arising under the Whistleblower Protection Act. Instead of dismissing, Ms. Bell asks that the Court transfer her Whistleblower Protection Act claims to the U.S. Court of Appeals for the Federal Circuit. For the reasons discussed below, the Court denies Defendant's motion to dismiss Ms. Bell's Whistleblower Protection Act claims and grants Defendant's motion to dismiss Ms. Bell's remaining claims. The Court further grants Ms. Bell's request to transfer her Whistleblower Protection Act claims to the U.S. Court of Appeals for the Federal Circuit.

         II. FACTUAL BACKGROUND

         Plaintiff Ms. Bell, originally proceeding pro se but now with the assistance of counsel, filed suit against then-Secretary of Defense James N. Mattis. Am. Compl. at 2, ECF No. 4. Ms. Bell, proceeding pro se, filed her original Complaint on October 1, 2018, ECF No. 1, and her Amended Complaint on October 22, 2018, ECF No. 4. Count I of the Amended Complaint alleges harmful error and violation of law on the part of the Merit Systems Protection Board (“MSPB”) and the Defense Logistics Agency (“DLA”) under 5 C.F.R. 1201.56(b)(1), (b)(3), and (c)(3). Am. Compl. at 4-8. Counts II and III of the Amended Complaint, brought pursuant to the Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302, allege reprisal and retaliation for Ms. Bell's Equal Employment Opportunity (“EEO”) complaints, and her disclosures to the Department of Defense Inspector General and members of Congress. Id. at 9-12. The Complaint proceeds from Count III to Count V without including a Count IV, but the Court will assume that Count IV was meant to be the unlabeled claim following Count III-interference with a worker's compensation claim Ms. Bell had pursued while at the Department of Defense. Am. Compl. at 11-12. Count V of the Amended Complaint alleges discrimination based on race, color, disability, and sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII'), 42 U.S.C. § 2000e et seq., and the Rehabilitation Act, 29 U.S.C. 791. Am. Compl. at 12- 15. Count VI alleges harassment and hostile work environment under Title VII, id. at 15-20, and Count VII alleges age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 631, Am. Compl. at 20. Ms. Bell further appears to allege violations of and seek relief under the Americans with Disabilities Act Amendments Act (“ADAAA”), 42 U.S.C. § 12101 et seq., the Civil Service Reform Act, 42 U.S.C. § 1983, and the False Claims Act (“FCA”).[2] See Am. Compl. at 1. Finally, Ms. Bell claims denial of her due process rights under the Fifth and Fourteenth Amendments. Id.

         Ms. Bell was employed by the U.S. Department of Defense (“DoD”) Defense Travel System (“DTS”) as a GS-14 Program Analyst beginning on November 21, 2009. Bell v. Dep't of Def., No. 16-2403, 2018 WL 4637006, at *2 (D.D.C. Sept. 27, 2018). In July 2011, after DTS was absorbed by the DLA, Ms. Bell began working for DLA. Id. Ms. Bell was officially removed from her position on February 6, 2015 for being absent without leave. Id.

         In pursuit of various claims in relation to her employment and removal from the DoD, Ms. Bell has filed several prior complaints with the EEO, the MSPB, United States District Court for the Eastern District of Virginia, and this Court. See generally Mem. of Law in Supp. of Def.'s Mot. to Dismiss (“Def.'s Mem.”) at 2-13, ECF No. 15. Most relevant to the present action, Ms. Bell, in her second perfected MSPB appeal of her removal from the DLA, raised the following affirmative defenses: harmful error; violation of due process; discrimination based on race, color, national origin, sex, religion, and age; hostile work environment; and “retaliation for [EEO] activity, for filing Inspector General (IG) complaints, for filing an Office of Workers' Compensation Program (OWCP) claim, and for making disclosures to Congress.” Def.'s Mem. Ex. 12, MSPB, Initial Decision, Dkt. No. DC-0752-15-0474-I-4 (July 27, 2018) (“MSPB Decision”) at 9-10, ECF No. 15-11. All of Ms. Bell's arguments were rejected, id. at 24, and the MSPB issued its initial decision affirming the Agency's removal of Ms. Bell on July 27, 2018, id. at 1. The MSPB's decision became final on August 31, 2018. See Id. at 34. Ms. Bell subsequently filed the present action on October 1, 2018. See Compl.

         Ms. Bell's Amended Complaint is, to a large extent, a reiteration of the same arguments that she presented before the MSPB. See Am. Compl. The only apparent additional claims include an allegation of harmful error by the MSPB on multiple grounds, see Id. at 4, and an allegation that DLA interfered with a worker's compensation claim that Ms. Bell pursued, see Id. at 11-12.

         Now before the Court is Defendant's Motion to Dismiss, ECF No. 14. Defendant first argues that all of Ms. Bell's claims are barred by the doctrine res judicata because Ms. Bell's claims are based on the same nucleus of operative fact as the claims she brought previously before this Court and before the U.S. District Court for the Eastern District of Virginia. Def.'s Mem. at 18-23. Defendant argues that Ms. Bell could have brought all the instant claims in those prior actions, and that many of her claims were in fact litigated in her Eastern District of Virginia lawsuit and are therefore barred by the doctrine of collateral estoppel. Id. Moreover, Defendant argues that Ms. Bell's due process claims must be dismissed for lack of subject matter jurisdiction. Id. at 23. Finally, Defendant argues that all of Ms. Bell's claims must be dismissed because this District is an improper venue. Id. at 23-25. Ms. Bell, now with the benefit of counsel, responds that her WPA claims remain viable and that, instead of dismissing, the Court should certify the WPA claims to the U.S. Court of Appeals for the Federal Circuit-where they should have originally been brought. Pl.'s Response to Def.'s Mot. to Dismiss (“Opp'n”) at 4, ECF No. 18.

         III. ANALYSIS

         The Court will first address Ms. Bell's WPA claims in order to determine whether these should be certified to the U.S. Court of Appeals for the Federal Circuit, as requested by Ms. Bell, or dismissed, as requested by Defendant. Then, the Court will turn to Ms. Bell's remaining claims. The Court concludes that transferring Ms. Bell's WPA claims to the U.S. Court of Appeals for the Federal Circuit best serves the interests of justice and that Ms. Bell's remaining claims are barred by res judicata and/or collateral estoppel.

         A. WPA Claims

         Ms. Bell, while proceeding pro se, filed all her claims/appeals under the WPA with this Court. See Compl.; Am. Compl. at 9. Now, with the assistance of counsel, Ms. Bell acknowledges that these actions were improperly filed with this Court and, instead, should have been filed with the U.S. Court of Appeals for the Federal Circuit. Opp'n at 4. Ms. Bell, therefore, asks the Court to extend leniency for the mistake she made while proceeding pro se, and to “certify the [WPA] claims in [the] Complaint to the Court of Appeals for the Federal Circuit, or in the alternative, dismiss it [without prejudice for] filing there, per the WPA statutory appeal process.” Id. Defendant responded by arguing that Ms. Bell's “WPA claims are barred by the doctrine of res judicata, ”[3] and, alternatively, that this case should be dismissed for improper venue rather than be transferred because transfer “is not in the interest of justice.” Reply Mem. of Law in Supp. of Def.'s Mot. to Dismiss (“Def.'s Reply”) at 1-2, ECF No. 19. The question before the Court, then, is whether the WPA claims should be (1) transferred to the U.S. Court of Appeals for the Federal Circuit, (2) dismissed without prejudice, or (3) dismissed with prejudice. The Court finds that transfer to the U.S. Court of Appeals for the Federal Circuit is the most appropriate resolution in this context.

         The Court agrees with Ms. Bell's current position that her claims arising under the WPA should have been appealed from the MSPB directly to the U.S. Court of Appeals for the Federal Circuit and not to this Court. Opp'n at 4. Under the WPA, claims like Ms. Bell's “shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.”[4] 5 U.S.C. § 7703(b)(1)(B); see also Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002) (“The MSPB's decision [on a whistleblower claim] is appealable to the Federal ...


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