Bridges v. Berryhill

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES BRIDGES, : Civil No. 1:17-CV-02285

:

Plaintiff, :

:

v. :

: Judge Jennifer P. Wilson

ANDREW M. SAUL,1 :

Commissioner of Social Security, :

:

Defendant. : Magistrate Judge Joseph F. Saporito, Jr.

MEMORANDUM

This is an employment discrimination case brought by an administrative law

judge (“ALJ”) to challenge promotion and hiring decisions made by the United

States Social Security Administration (“the agency”). Pending before the court are

Defendant’s motion to dismiss and/or for summary judgment, Plaintiff’s motion

for partial summary judgment, a report and recommendation from United States

Magistrate Judge Joseph F. Saporito, Jr. addressing both motions, and both parties’

objections to the report and recommendation. (Docs. 13, 32, 45, 50, 52.) For the

reasons that follow, the report and recommendation is adopted in part and rejected

in part, Defendant’s motion to dismiss and/or for summary judgment is granted in

part and denied in part, and Plaintiff’s motion for summary judgment is denied as

moot.

1 Andrew M. Saul was sworn in as Commissioner of Social Security on June 17, 2019, and is

automatically substituted as the defendant in this action. See Fed. R. Civ. P. 25(d).

STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the

district court is required to conduct a de novo review of the contested portions of

the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may

accept, reject, or modify the magistrate judge’s report and recommendation in

whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive

further evidence or recommit the matter to the magistrate judge with further

instructions. Id. “Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely on

the recommendations of the magistrate judge to the extent it deems proper.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

De novo review is not required where a party raises only general objections

to a report and recommendation. Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984).

“To obtain de novo determination of a magistrate’s findings by a district court, 28

U.S.C. § 636(b)(1) requires both timely and specific objections to the report.” Id.

at 6.

MOTION TO DISMISS STANDARD

In order “[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)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

SUMMARY JUDGMENT STANDARD

A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

PROCEDURAL HISTORY

Plaintiff Charles Bridges (“Bridges”) initiated this case by filing a complaint

against the Commissioner of Social Security (“Defendant”) on December 12, 2017.

(Doc. 1.) Bridges then filed an amended complaint on August 27, 2018. (Doc. 9.)

The amended complaint raises six counts for relief. In Count I, Bridges alleges he

was passed over for a position as a Chief Administrative Law Judge with the

agency because he is African American. (Id. ¶¶ 52–54.) In Count II, Bridges

alleges that a change in position description implemented by the agency violates

the substantive rulemaking provisions of the Administrative Procedures Act

(“APA”). (Id. ¶¶ 55–62.) In Count III, Bridges alleges that the agency’s

supervision of ALJs violates the Appointments Clause of the United States

Constitution under the Supreme Court’s holding in Lucia v. SEC, 585 U.S. __, 138

S. Ct. 2044 (2018). (Id. ¶¶ 63–68.) In Count IV, Bridges alleges that the agency’s

practice of conducting “focused reviews” of ALJs violates the APA. (Id. ¶¶ 69–

73.) In Count V, Bridges alleges that the agency improperly applied the change in

position description and focused review to him retroactively. (Id. ¶¶ 74–80.) In

Count VI, Bridges alleges that the agency subjected him to focused reviews in

retaliation for a lawsuit that he previously filed against the agency. (Id. ¶¶ 81–85.)

On November 9, 2018, Defendant moved to dismiss the amended complaint,

or, in the alternative, moved for summary judgment. (Doc. 13.) Defendant argues

that he should be granted judgment on Bridges’s APA claims because the Civil

Service Reform Act (“CSRA”) provides the exclusive means for administrative

and judicial review of federal government personnel matters. (Doc. 20 at 14–18.)

In the alternative, Defendant argues Bridges does not have standing to bring his

APA claims. (Id. at 18–20.) Defendant then argues that Bridges’s discrimination,

retaliation, and Appointments Clause claims should be dismissed for failure to

state a claim upon which relief can be granted. (Doc. 20 at 20–28, 31–32.)

Defendant additionally argues that he should be granted summary judgment as to

Bridges’s retaliation claim because Bridges failed to exhaust his administrative

remedies as to that claim prior to bringing suit. (Doc. 20 at 28–31.)

Bridges moved for summary judgment as to his APA and Appointments

Clause claims on March 11, 2019. (Docs. 32, 34.) Judge Saporito issued a report

and recommendation addressing both parties’ motions on September 4, 2019 (Doc.

45.) The case was then reassigned from United States District Judge Yvette Kane

to the undersigned to act as the presiding judge on November 20, 2019.

In his report and recommendation, Judge Saporito first analyzes Defendant’s

argument that the CSRA precludes the court’s exercise of jurisdiction over

Bridges’s APA claims. Judge Saporito concludes that the court may not exercise

jurisdiction over Counts II and IV because they raise purely statutory claims under

the APA, but that the court may exercise jurisdiction over Count V because it

raises a constitutional challenge to the retroactive application of an administrative

rule. (Doc. 45 at 12–18.) After concluding that the court may hear Count V,

however, Judge Saporito concludes that the claim should be dismissed for failure

to state a claim upon which relief can be granted. (Id. at 19–25.)

Turning to Bridges’s other claims, Judge Saporito recommends dismissing

the Appointments Clause claim because the Supreme Court’s decision in Lucia is

inapposite to the present case. (Doc. 45 at 25–28.) Judge Saporito then

recommends denying the motion to dismiss Bridges’s race discrimination claim,

finding that Bridges has pleaded sufficient facts to state a claim upon which relief

may be granted. (Id. at 28–31.) As for Bridges’s retaliation claim, Judge Saporito

concludes that exhaustion of that claim was not required because it arose from the

same facts as his properly exhausted claim in his prior litigation. (Id. at 31–32.)

Finally, Judge Saporito concludes that Bridges pleads sufficient facts to state a

retaliation claim upon which relief can be granted and therefore recommends

denying Defendant’s motion as to that claim. (Id. at 32–35.) Both parties have

filed objections to Judge Saporito’s report and recommendation. (See Docs. 50–

53.) Those objections are considered below.

DISCUSSION

A. Defendant’s Objections to the Report and Recommendation Are

Overruled in Part and Sustained in Part

Defendant raises two objections to the report and recommendation, objecting

to Judge Saporito’s recommendations regarding both Bridges’s race discrimination

claim and his retaliation claim. For the reasons that follow, the court will overrule

Defendant’s objection regarding the race discrimination claim but sustain

Defendant’s objection regarding the retaliation claim.

Defendant’s first objection arises from his argument that he is entitled to

summary judgment because Bridges fails to demonstrate an adverse employment

action with regard to his race discrimination claim. Defendant raised this argument

before Judge Saporito, see Doc. 20 at 24–26, but the report and recommendation

discussed the race discrimination claim solely in the context of a motion to

dismiss, recommending that the motion to dismiss the claim be denied because

Bridges pleaded facts sufficient to state a race discrimination claim upon which

relief could be granted. (See Doc. 45 at 28–31). Defendant argues that because his

motion was presented alternatively as either a motion to dismiss or a motion for

summary judgment, Judge Saporito erred by failing to consider Defendant’s

summary judgment argument regarding the race discrimination claim. (Doc. 51 at

4–5.)

Defendant’s argument is incorrect. When a motion is presented alternatively

as either a motion to dismiss or a motion for summary judgment, the district court

is not required to consider the motion as a motion for summary judgment. Rather,

the decision to convert the motion into a motion for summary judgment is left to

the discretion of the district court. Park v. Sec’y U.S. Dep’t of Veterans Affairs,

594 F. App’x 747, 751 (3d Cir. 2014). Accordingly, Judge Saporito was not

required to treat Defendant’s motion as a motion for summary judgment, so his

decision to analyze Bridges’s race discrimination claim solely in the context of a

motion to dismiss does not constitute legal error. Moreover, this court has

reviewed Bridges’s race discrimination claim and agrees with the magistrate judge

that Bridges states a race discrimination claim upon which relief may be granted.

This objection is accordingly overruled.

Defendant’s second objection arises from the conclusion that Defendant is

not entitled to summary judgment for Bridges’s failure to exhaust his retaliation

claim. (See Doc. 45 at 31–32.) The report and recommendation concludes that

Bridges was not required to separately exhaust his administrative remedies with

regard to his retaliation claim because the focused review that forms the basis of

his retaliation claim “falls within the scope of the investigation that arose out of his

June 2014 EEOC complaint.” (Id. at 31.) The report and recommendation bases

this conclusion on the Third Circuit’s holding in Waiters v. Parsons, 729 F.2d 233,

235 (3d Cir. 1984),2 where the court held that “[a] victim of discrimination is not

required to exhaust administrative remedies with respect to a claim concerning an

incident which falls within the scope of a prior EEOC complaint or the

investigation which arose out of it, provided that the victim can still bring suit on

the earlier complaint.” (Id. at 32.)

Defendant argues that this conclusion is erroneous under the Supreme

Court’s holding in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002), where the Court held that “discrete discriminatory acts are not actionable if

2 The report and recommendation also cites two cases from other circuits with similar holdings.

See Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1, 6 (1st Cir. 2001); Gupta v. E. Tex. State Univ.,

654 F.2d 411, 414 (5th Cir. 1981).

time barred, even when they are related to acts alleged in timely filed charges.”

(Doc. 51 at 6.) Defendant argues that the retaliation claim is untimely because

Bridges was aware that he had been subjected to a focused review on February 18,

2014, and therefore needed to bring an EEOC claim no later than April 5, 2014.

(Id. at 6–7.) Whether the retaliation claim is related to the claims Bridges

exhausted in 2014 is, according to Defendant, immaterial under Morgan. (Id. at 7.)

Defendant additionally argues that the Third Circuit’s Waiters holding is

inapposite in the present case because that case concerned a retaliatory act that

occurred after the timely filed EEOC charge, while this case concerns an allegedly

retaliatory act that occurred before the EEOC charge to which it is purportedly

related. (Id. at 7 n.4.)

The court will sustain this objection. To begin with, Defendant is correct

that Waiters is inapposite because the retaliatory action Bridges complains about

occurred before he filed his 2014 EEOC complaint. In Waiters, the Third Circuit

held that “[a] victim of discrimination is not required to exhaust administrative

remedies with respect to a claim concerning an incident which falls within the

scope of a prior EEOC complaint or the investigation which arose out of it,

provided that the victim can still bring suit on the earlier complaint.” Waiters, 729

F.2d at 235. In reaching that holding, the court reasoned that the goals of the

administrative exhaustion requirement would not be advanced by requiring a

plaintiff to separately exhaust claims for related discriminatory acts that occurred

after the plaintiff’s EEOC complaint. See id. at 237 (“Where discriminatory

actions continue after the filing of an EEOC complaint, however, the purposes of

the statutory scheme are not furthered by requiring the victim to file additional

EEOC complaints and re-starting the 180 day waiting period.”). The Waiters

holding was therefore limited to related claims that occur after a properly filed

EEOC charge. See, e.g., Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (“At

issue [in Waiters] was whether Waiters’ suit in federal court, alleging a retaliatory

firing for filing previous complaints with the EEOC, was fairly within the earlier

EEOC complaint charging retaliation.”); Sarin v. Poojan, Inc., No. 3:08-CV-

01077, 2010 WL 2635797, at *7 (M.D. Pa. Apr. 30, 2010) (distinguishing case

from Waiters because “[u]nlike in Waiters, in which the plaintiff’s suit was based

on acts of the defendant that followed the filling of the original EEOC charge, the

wage-discrimination claim that the plaintiff seeks to bring in federal court is based

on acts already known and ongoing at the time that the PHRC charge was filed”).

That is not the case here: Bridges was aware that he had been the subject of a

focused review on February 19, 2014, if not earlier, and his EEOC charge was filed

on June 23, 2014. (See Doc. 20-2 at 20; Doc. 21 ¶ 5.) Accordingly, Waiters does

not apply in this case because the discriminatory act Bridges complains about

occurred before his 2014 EEOC complaint.

Because Waiters is inapposite, Bridges was required to separately exhaust

his administrative remedies with regard to his retaliation claim. The record makes

clear, however, that he did not file a separate EEOC complaint with regard to that

claim. Moreover, whether Bridges’s unexhausted claim is related to the EEOC

complaint Bridges brought in June 2014 is irrelevant. Under Morgan, “[d]iscrete

discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges.”3 Morgan, 536 U.S. at 113. Accordingly, the

court will sustain Defendant’s objection and grant summary judgment to

Defendant on Bridges’s retaliation claim.

B. Bridges’s Objections Are Overruled

The court turns now to Bridges’s seven objections to the report and

recommendation. For the reasons that follow, the objections are overruled.

Bridges’s first objection argues generally that Judge Saporito incorrectly

applied the standard of review applicable to motions to dismiss because “[i]n

3 As an aside, the court notes that there is an apparent tension between the holdings in Waiters

and Morgan. In Waiters, the Third Circuit held that “[a] victim of discrimination is not required

to exhaust administrative remedies with respect to a claim concerning an incident which falls

within the scope of a prior EEOC complaint or the investigation which arose out of it, provided

that the victim can still bring suit on the earlier complaint.” Waiters, 729 F.3d at 235. It is

difficult to reconcile this holding with the Supreme Court’s later holding in Morgan that

“discrete discriminatory acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Morgan, 536 U.S. at 113. Because Waiters is inapplicable to

the facts of this case, the court does not have any reason to analyze whether the Waiters holding

survives the Supreme Court’s holding in Morgan, but the court notes that guidance from the

Third Circuit would be helpful as to the question of whether Morgan abrogated Waiters.

several instances, the RR makes factual assumptions, several of which are

unsupported, or mere conjecture on the part of the Magistrate Judge, and fails to

assume the veracity of Bridges’s well-pled facts.” (Doc. 53 at 12.) Bridges,

apparently not appreciating the irony of his argument, does not offer any support

for this assertion. Accordingly, the court has reviewed the report and

recommendation only for clear error related to this objection. See Goney, 749 F.2d

at 6–7 (holding that de novo review is not required where a party raises only

general objections). Finding none, the court will overrule Bridges’s first objection.

Bridges’s second objection arises from Judge Saporito’s conclusion that the

court does not have subject matter jurisdiction to consider Bridges’s APA claims.

(See Doc. 45 at 12–18.) In objecting to this conclusion, Bridges renews his

argument that jurisdiction in the district court is proper because this is a “mixed

case” like the one the Supreme Court considered in Kloeckner v. Solis, 568 U.S. 41

(2012). (See Doc. 53 at 12–15.)

A mixed case is a case in which a plaintiff both “complains of a personnel

action serious enough to appeal to the [Merit Systems Protection Board (“MSPB”)]

and alleges that the action was based on discrimination.” Kloeckner, 568 U.S. at

44 (emphasis in original). When such a mixed case is filed, a district court may

properly exercise jurisdiction. Id. at 45. In Kloeckner, the Supreme Court noted

that a case is serious enough to appeal to the MSPB when it presents one of the

claims enumerated in 5 U.S.C. § 7512. Id. at 44 n.1. Thus, a complaint only

presents a mixed case when it alleges a removal, a suspension for more than 14

days, a reduction in grade, a reduction in pay, or a furlough. Id. (citing § 7512).

In this case, Judge Saporito rejected Bridges’s argument that his claims

present a mixed case “because none of the personnel actions he challenges were

appealable to the MSPB—he challenges only ‘less serious action[s] as

discriminatory . . . which do not qualify for ‘mixed case’ treatment under § 7702.”

(Doc. 45 at 18. (quoting Kloeckner, 568 U.S. at 44).) This court agrees with Judge

Saporito’s conclusion that Bridges does not present a claim serious enough to

appeal to the MSPB. See Kloeckner, 568 U.S. at 44 n.1. Accordingly, Bridges’s

second objection is overruled because Bridges’s amended complaint does not

present a mixed case.

Bridges’s third and fourth objections assert that Judge Saporito erred by

failing to consider two recent Third Circuit decisions, Komis v. Sec’y of U.S. Dep’t

of Labor, 918 F.3d 289 (3d Cir. 2019), and Pennsylvania v. President of U.S., 930

F.3d 543 (3d Cir. 2019). Bridges argues that these cases support the exercise of

jurisdiction over his APA claims. (Doc. 53 at 15–16.) As Defendant notes,

however, neither one of these cases says anything about when a federal court can

exercise jurisdiction over a federal employee’s APA claims. (Doc. 54 at 5–6.) In

Komis, the Third Circuit considered whether a federal employee could bring a

retaliation claim under Title VII. See Komis, 918 F.3d at 289. In analyzing that

question, the court did not say anything about the APA. Id. In Pennsylvania, the

Third Circuit considered a claim by the Commonwealth of Pennsylvania that

certain administrative rules passed under the Affordable Care Act violated the

APA. See Pennsylvania, 930 F.3d at 543. As part of its analysis, the court

considered whether a state government had standing to sue the federal government

for violations of the APA. Id. at 561–65. Nowhere in its opinion, however, did the

court consider the question of a federal court’s jurisdiction over a federal

employee’s APA claims. See generally id. Accordingly, since Komis and

Pennsylvania are inapposite to the present case, the court will overrule Bridges’s

third and fourth objections.

Bridges’s fifth objection is a general objection that Judge Saporito should

have considered the MSPB’s decision in Watson v. Dept’ of Transp., 49 M.S.P.R.

509 (MSPB 1991). In raising this objection, Bridges notes that he “would rely on

the distinction between cases that hold that an agency lacks authority to address the

constitutionality of a statute under which it has been delegated Congressional

authority to administer, versus an allegation/claim that does not involve the

constitutionality of a statute, but concerns the reasonableness of the Agency’s

policies in light thereof.” (Doc. 53 at 17.) Although the substance of this

objection is difficult to parse, the court has nonetheless reviewed the report and

recommendation in light of Watson and concludes that Watson does not provide a

basis to reject the report and recommendation. This objection is accordingly

overruled.

Bridges’s sixth objection pertains to the recommendation that Count V of

Bridges’s amended complaint be dismissed for failure to state a claim upon which

relief can be granted. (Id. at 18–19.) In concluding that Count V does not state a

claim upon which relief can be granted, Judge Saporito notes that Bridges’s claim

in Count V is based on an alleged link between the change in position description

and the practice of focused reviews, but finds that Bridges alleges no facts to

establish such a link. (Doc. 45 at 21–22.) Judge Saporito further notes that the

existence of a link between the change in position description and focused reviews

is directly contradicted by Bridges’s allegation that he was subjected to focused

reviews prior to the change in position description. (Id. at 22.) Finally, Judge

Saporito notes that the agency’s Hearings, Appeals and Litigation Law Manual

(“HALLEX”) indicates that the change in position description was not the cause of

the agency conducting focused reviews. (Id. at 22–24.)

Bridges argues that Judge Saporito erred in recommending the dismissal of

Count V because the “rejection of retroactive allegations based on a failure of the

change in position description to reference the policy is legal error.” (Doc. 53 at

18–19.) Bridges argues that Judge Saporito “misapprehends the significance of the

association between the change in position description and the focused review,”

noting that the change in position description does not actually mention focused

reviews. (Id. at 19.) Bridges then argues that his primary claim in Count V is to

challenge the practice of focused reviews and that, by recommending dismissal for

failure to establish a link between the change in position description and the

focused reviews, Judge Saporito “has, in error, placed the burden upon Bridges to

support the date when a substantive policy became effective without undergoing

the mandatory procedural requirements of the law.” (Id.)

Bridges’s sixth objection is without merit. Judge Saporito’s conclusion that

Bridges had not sufficiently alleged a link between the change in position

description and the focused reviews was based on the language of the amended

complaint, which expressly based the claim on a link between the two. (See Doc. 9

¶ 76 (“The unconstitutional application of the Agency Position Description and the

focused review it authorized is a proximate and legal cause of Bridges’ non-

selection for the position of Hearing Office Chief Administrative Law Judge and

he is, thereby, aggrieved.”)). Thus, Bridges’s objection that Judge Saporito

“misapprehends the significance of the association between the change in position

description and the focused review” is directly contradicted by his amended

complaint.

Moreover, Bridges’s objection that Judge Saporito improperly “placed the

burden upon Bridges to support the date when a substantive policy became

effective” is nonsensical. Bridges’s claim in Count V is that focused reviews were

improperly applied retroactively. The court does not see how a complaint can

possibly obtain relief for a retroactivity challenge without alleging the date on

which the challenged policy became effective: the effective date is what establishes

whether an action is, in fact, retroactive. Accordingly, Bridges’s sixth objection is

overruled.

Finally, Bridges’s seventh objection simply restates his argument that

agency employees who conducted focused reviews were not properly appointed

under Lucia, but does not make any argument as to why Judge Saporito erred in

dismissing the Lucia claim beyond the conclusory statement that the report and

recommendation “commits an error of law in summarily dismissing” the claim.

(Doc. 53 at 20.) Because this objection does not raise specific objections to the

report and recommendation, the court has reviewed Judge Saporito’s

recommendation to dismiss the Lucia claim for clear error. See Goney, 749 F.2d at

6–7. Finding none, the court will overrule Bridges’s seventh objection.

CONCLUSION

For the foregoing reasons, the report and recommendation is adopted in part

and rejected in part, Defendant’s motion to dismiss and/or for summary judgment

is granted in part and denied in part, and Plaintiff’s motion for summary judgment

is denied as moot. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: May 26, 2020