United States District Court, District of Columbia
MEMORANDUM OPINION, GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS, Re Document No.
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
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.
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”). See Am. Compl. at 1. Finally, Ms.
Bell claims denial of her due process rights under the Fifth
and Fourteenth Amendments. Id.
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.
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.
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
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.
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
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, ” 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.
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.” 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 ...