Hornsby v. Thompson

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RICHARD HORNSBY, :

:

Plaintiff, : Civil Action No.: 22-1472 (RC)

:

v. : Re Document No.: 8

:

SANDRA L. THOMPSON, :

:

Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS OR, IN THE

ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT; AND TRANSFERRING TO THE FEDERAL

CIRCUIT

I. INTRODUCTION

Plaintiff Richard Hornsby (“Plaintiff”) brings the instant action against Sandra L.

Thompson (“Defendant”), the Acting Director of the Federal Housing Finance Agency (“FHFA”

or “the agency”), and raises a number of claims arising out of the termination of his employment

as Chief Operating Officer of the FHFA and his subsequent appeal of that termination to the

United States Merit Systems Protection Board (“MSPB”). Specifically, Plaintiff alleges that: (1)

in terminating his employment, Defendant retaliated against him in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and the Civil Service Reform Act (“CSRA”), 5

U.S.C. § 2302(b); (2) the Administrative Judge (“AJ”) and MSPB adjudicating Plaintiff’s appeal

failed to provide him with interim relief, in violation of 5 U.S.C. § 7701(b)(2)(A); and (3) the

MSPB’s affirmation of the agency’s decision to terminate Plaintiff’s employment was arbitrary,

capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in

accordance with the law. Compl. ¶¶ 44–48, ECF No. 1. Defendant has filed a motion to dismiss

or, in the alternative, a motion for summary judgment, contending that the Court must first

dismiss Plaintiff’s retaliation claim for failure to exhaust administrative remedies and then

dismiss Plaintiff’s remaining claims for lack of subject-matter jurisdiction. Mem. in Supp.

Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at 1–2, ECF No. 8-1.

For the reasons explained below, the Court grants Defendant’s motion insofar as it seeks

dismissal of Plaintiff’s retaliation claim, but denies Defendant’s request that Plaintiff’s remaining

claims be dismissed and instead transfers those claims to the Federal Circuit.

II. BACKGROUND

A. Statutory Framework

The CSRA “provides a grievance process and remedies to an employee who believes that

he is the victim of a prohibited personnel practice,” Wilson v. U.S. Dep’t of Transp., 759 F. Supp.

2d 55, 63 (D.D.C. 2011), whereas Title VII “prohibits the federal government from . . .

retaliating against employees for engaging in activity protected by Title VII,” Montgomery v.

Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). “When an employee believes he is the victim of a

prohibited practice that was motivated by discrimination in violation of Title VII, the employee

can file a ‘mixed case,’ i.e. one alleging violation of both CSRA and Title VII.” Wilson, 759 F.

Supp. 2d at 63 (D.D.C. 2011). “Government employees alleging discrimination in violation of

Title VII or challenging personnel practices prohibited by the Civil Service Reform Act must

exhaust administrative remedies before bringing their claims to federal court.” Hamilton v.

Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 2012) (citations omitted). Those who file mixed cases

can exhaust administrative remedies by either “(1) fil[ing] a discrimination complaint with the

agency through the agency’s Equal Employment Opportunity (‘EEO’) Office, or (2) fil[ing] an

appeal directly with the MSPB.” Rodgers v. Perez, 139 F. Supp. 3d 67, 71 (D.D.C. 2015) (citing

29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.154(a)); see also Hamilton, 666 F.3d at 1349–50

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(“Because Hamilton’s 2002 detail claim presented a ‘mixed case,’ involving charges of both

discrimination and prohibited personnel practices, Hamilton could have exhausted his

administrative remedies by presenting his claim either to the IRS’s EEO office or to the Merit

Systems Protection Board.”); accord Morris v. Jackson, 842 F. Supp. 2d 171, 177 (D.D.C.

2012), aff’d sub nom. Morris v. McCarthy, 825 F.3d 658 (D.C. Cir. 2016). But “[a]n employee

cannot maintain the same action in both forums,” and must instead “exhaust [his] administrative

remedies in the forum where [his] complaint or appeal was first filed.” Rodgers, 139 F. Supp. 3d

at 71 (citations omitted).

“Generally, decisions of the MSPB ‘are reviewed in the Federal Circuit,’” but an

“exception is made for ‘mixed cases’ brought before the MSPB that allege adverse employment

action along with allegations of discrimination.” Bowe-Connor v. McDonald, No. 15-cv-231,

2016 WL 5675854, at *2 (D.D.C. Sept. 30, 2016) (citation omitted). Thus, an employee who

“pursues a mixed case appeal with the MSPB . . . may appeal an adverse decision by filing suit in

federal district court.” Rodgers, 139 F. Supp. 3d at 71 (citing 5 U.S.C. § 7703(b)(2)).

B. Factual and Procedural Background

The instant case arises out of facts and allegations recounted in significant part by the

D.C. Circuit in Hornsby v. Watt, No. 17-5001, 2017 WL 11687516 (D.C. Cir. Nov. 14, 2017),

which affirmed the decision of another court in this District that dismissed Plaintiff’s previous,

related case filed in 2016. Id. at *1. In that case, the D.C. Circuit recounted:

According to the complaint, Richard Hornsby became the Chief Operating Officer of the

Federal Housing Finance Agency (“FHFA”) on December 5, 2011. On April 25, 2014,

he settled an employee’s human resources complaint against another employee, Jeffrey

Risinger. Three days later, Risinger falsely reported to FHFA’s lawyers and its Office of

Inspector General that he had heard Hornsby make kidnapping, physical harm, and death

threats against Hornsby’s previous supervisor, Edward DeMarco. That same day,

Hornsby denied making these threats but was escorted from his workplace and placed on

paid administrative leave, which included his salary and benefits. On April 30, 2014,

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Hornsby was arrested for three felony charges at his home by agents dressed in assault

gear. He remained overnight in the D.C. jail. Soon after a senior FHFA official leaked

news of Hornsby’s arrest to several media outlets. He remained on paid administrative

leave during the pendency of his criminal proceedings, during which time FHFA offered

him a settlement and threatened to place him on indefinite suspension.

On November 20, 2014, Hornsby was acquitted of the charges, which had been reduced

to two misdemeanors. Hornsby was “chagrined” that he was not immediately reinstated

to his FHFA position. Twenty-nine days after his acquittal the FHFA director, appellee

Melvin Watt, issued a proposal to terminate his employment. This decision was made

final, effective March 21, 2015[.]

Id. (internal citations omitted).1

Plaintiff then appealed his termination to the MSPB, “challeng[ing] his removal on the

substantive merits and also rais[ing] an affirmative defense of retaliation for his prior EEO

activity.” Compl. ¶ 27. In July 2016, the AJ issued an Initial Decision that reversed Plaintiff’s

termination but that also found that Plaintiff had failed to prove his claim of retaliation. Id. ¶ 28.

On August 25, 2016, FHFA filed a Petition for Review of the AJ’s Initial Decision with the

MSPB. Id. ¶ 30. Plaintiff then filed a response opposing the FHFA’s Petition for Review of the

Initial Decision, in which he contended that the MSPB should deny the agency’s petition because

the AJ “made no erroneous findings of material fact, or erroneous applications of law.” Ex. 1 to

Def.’s Mem., Appellant’s Resp. in Opp’n to Agency’s Pet. for Review of Initial Decision (“Pl.’s

Response to Pet. for Review”) at 9, ECF No. 8-2. But because the MSPB did not have a quorum

for over five years, the MSPB only issued a final decision on the FHFA’s petition in April 2022.

Compl. ¶¶ 31–32. Its decision of April 28, 2022 “revers[ed]” the AJ’s Initial Decision and

“order[ed] Mr. Hornsby’s termination be reinstated,” in addition to “affirming the AJ’s

determination that Mr. Hornsby had not proven the affirmative defense that his removal was the

The Court has the “authority to judicially notice related proceedings in other courts.”

1

Dupree v. Jefferson, 666 F.2d 606, 608 n.1 (D.C. Cir. 1981) (citations omitted).

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product[] of unlawful retaliation based upon his participation in EEO activity.” Id. ¶ 32. In

particular, the Board noted:

Neither of the parties has challenged the administrative judge’s finding that the appellant

failed to prove his affirmative defense of EEO reprisal, and we discern no reason to

disturb this finding. . . . Because the appellant here failed to prove his initial burden that a

prohibited factor played any part in the agency’s decision, we do not reach the question

of whether EEO reprisal was a but-for cause of that decision.

Ex. 2 to Def.’s Mem., MSPB Final Order at 4 n.5, ECF No. 8-3.

Plaintiff now seeks to challenge the MSPB’s final decision in this Court and alleges that:

(1) in terminating his employment, Defendant retaliated against him in violation of Title VII of

the Civil Rights of Act of 1964, 42 U.S.C. § 2000e-3, and the Civil Service Reform Act, 5

U.S.C. § 2302(b); (2) the AJ and MSPB adjudicating Plaintiff’s appeal failed to provide him with

interim relief, in violation of 5 U.S.C. § 7701(b)(2)(A); and (3) the MSPB’s affirmation of the

agency’s decision to terminate Plaintiff’s employment was arbitrary, capricious, an abuse of

discretion, unsupported by substantial evidence, or otherwise not in accordance with the law.

Compl. ¶¶ 44–48. Defendant filed a motion to dismiss or, in the alternative, a motion for

summary judgment, contending that the Court must first dismiss Plaintiff’s retaliation claim for

failure to exhaust administrative remedies and then dismiss Plaintiff’s remaining claims for lack

of subject-matter jurisdiction. Def.’s Mem. at 1–2. Plaintiff filed an opposition to Defendant’s

motion, see generally Pl.’s Opp’n to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J.

(“Pl.’s Opp’n”), ECF No. 10, and Defendant filed a reply, see generally Def.’s Reply in Supp. of

Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Reply”), ECF No. 11.

Defendant’s motion is therefore ripe for consideration.

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III. LEGAL STANDARD

A. Administrative Exhaustion

“Government employees alleging discrimination in violation of Title VII or challenging

personnel practices prohibited by the Civil Service Reform Act must exhaust administrative

remedies before bringing their claims to federal court.” Hamilton, 666 F.3d at 1349 (citations

omitted). With respect to the CSRA, “exhaustion of administrative remedies is a jurisdictional

prerequisite to suit.” Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996). By

contrast, “the failure to exhaust administrative remedies is a precondition to bringing a Title VII

claim in federal court, rather than a jurisdictional requirement.” Dahlman v. Am. Ass’n of

Retired Persons (AARP), 791 F. Supp. 2d 68, 76 (D.D.C. 2011) (quoting Francis v. City of N.Y.,

235 F.3d 763, 767–68 (2d Cir. 2000)). The defendant “bears the burden of proving by a

preponderance of the evidence that the plaintiff has failed to exhaust his administrative

remedies” with respect to his Title VII claim. Briscoe v. Costco Wholesale Corp., 61 F. Supp. 3d

78, 84–85 (D.D.C. 2014) (quoting Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 276 (D.D.C.

2011)). Where the defendant meets this burden, “the burden shifts to the plaintiff to demonstrate

that dismissal is not warranted.” Id. at 85. But “[e]ven if [a] plaintiff has not properly exhausted

his administrative remedies by failing to follow the highly technical requirements relating to

mixed case filings, the failure to do so does not bar plaintiff from filing a complaint” and a

plaintiff “may be excused from exhaustion requirements where the Court finds that there are

equitable reasons for doing so.” Broom v. Caldera, 129 F. Supp. 2d 25, 29 (D.D.C. 2001)

(citation omitted).

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B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

“‘[M]otions to dismiss for exhaustion . . . are more appropriately addressed as motions to

dismiss for failure to state a claim under Rule 12(b)(6)’ than for lack of jurisdiction under

12(b)(1).” Bowe-Connor v. McDonald, No. 15-cv-231, 2016 WL 5675854, at *2 (D.D.C. Sept.

30, 2016) (citation omitted), aff’d and remanded sub nom. Bowe-Connor v. Shulkin, No. 16-

5289, 2017 WL 2373002 (D.C. Cir. Apr. 11, 2017); see also Morris, 842 F. Supp. 2d at 176

(analyzing motion to dismiss for failure to exhaust administrative remedies under Federal Rule

of Civil Procedure 12(b)(6)). But see Fernandez v. Donovan, 760 F. Supp. 2d 31, 34 (D.D.C.

2011) (reviewing motion under the Rule 12(b)(1) framework because CSRA exhaustion is

jurisdictional, while also noting that a 12(b)(6) analysis is “required” if a statute does not contain

“sweeping and direct statutory language indicating that there is no federal jurisdiction prior to

exhaustion” (citation omitted)). Accordingly, the Court will apply the standard applicable to a

motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) to

Defendant’s administrative exhaustion argument.2

2

The Court may consider the exhibits attached to Defendant’s motion—Plaintiff’s

response in opposition to the FHFA’s Petition for Review and the MSPB’s Final Order—in

resolving the motion as a motion to dismiss. See E.E.O.C. v. St. Francis Xavier Parochial Sch.,

117 F.3d 621, 624 (D.C. Cir. 1997) (“In determining whether a complaint fails to state a claim,

[the court] may consider only the facts alleged in the complaint, any documents either attached to

or incorporated in the complaint and matters of which we may take judicial notice.”). Defendant

is correct that the second exhibit, the MSPB’s Final Order, was incorporated into Plaintiff’s

complaint by reference. Compl. ¶¶ 2, 32–43. The Complaint does not, however, refer to the first

exhibit attached to Defendant’s motion, Plaintiff’s Response to the FHFA’s Petition for Review

of the AJ’s Initial Decision. Nevertheless, “even when the complaint does not expressly

incorporate a document, the court may consider [in deciding a motion to dismiss] ‘documents

upon which the plaintiff’s complaint necessarily relies,’ including those ‘produced not by the

plaintiff in the complaint but by the defendant in a motion to dismiss.’” Cogdell v. Murphy, No.

19-cv-2462, 2020 WL 6822683, at *3 (D.D.C. Nov. 20, 2020) (quoting Page v. Mancuso, 999 F.

Supp. 2d 269, 275 (D.D.C. 2013)). Here, the Complaint necessarily relies on Plaintiff’s response

to the FHFA’s Petition for Review because Plaintiff in part challenges the MSPB’s affirmation

of the agency’s decision despite the arguments in that response.

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To meet the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, a

complaint must contain “‘a short and plain statement of the claim showing that the pleader is

entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss, the “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 Twombly, 550 U.S. at 570). In

considering such a motion, a court must construe the complaint “liberally in the plaintiff’s favor

with the benefit of all reasonable inferences derived from the facts alleged.” Stewart v. Nat’l

Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006) (citing Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994)). But “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are insufficient. Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555). Further, a court need not accept a plaintiff’s legal conclusions as

true, see id., nor presume the veracity of legal conclusions that are couched as factual allegations,

see Twombly, 550 U.S. at 555.

C. Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Federal courts are courts of limited jurisdiction, see Gen. Motors Corp. v. EPA, 363 F.3d

442, 448 (D.C. Cir. 2004), and must therefore address jurisdiction as a “threshold matter,” Steel

Thus, whether the Court decides the motion under Rule 12(b)(1) or Rule 12(b)(6), the

Court considers the same documents. Moreover, because “12(b)(1) and 12(b)(6) motions are

reviewed using similar standards,” the Court’s decision on this motion would remain the same

even if it were to consider it under the standard applicable under Rule 12(b)(1). Fernandez, 760

F. Supp. 2d at 35 n.1; see also Marcelus v. Corr. Corp. of Am./Corr. Treatment Facility, 540 F.

Supp. 2d 231, 235 n.5 (D.D.C. 2008) (“Although resolution of a Rule 12(b)(1) motion requires

‘closer scrutiny’ than resolution of a Rule 12(b)(6) motion, since plaintiff’s claims cannot

survive Rule 12(b)(6) scrutiny, they would not withstand jurisdictional scrutiny.” (internal

citation omitted)).

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Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). To determine whether jurisdiction

exists, a court may “undertake an independent investigation to assure itself of its own subject

matter jurisdiction” and “consider facts developed in the record beyond the complaint.” CFA

Inst. v. Andre, 74 F. Supp. 3d 462, 465 (D.D.C. 2014) (quotation marks and citations omitted).

“Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a preponderance

of the evidence.” Grell v. Trump, 330 F. Supp. 3d 311, 316 (D.D.C. 2018) (citing Lujan v. Defs.

of Wildlife, 504 U.S. 555, 561 (1992)).

IV. ANALYSIS

Although Plaintiff argues that he did not waive his retaliation claim through an

“intentional relinquishment or abandonment of a known right,” Pl.’s Opp’n at 1, a claim “may be

abandoned explicitly or by actions or inactions of the petitioning party,” Wilder v. Paulson, No.

8-cv-1349, 2010 WL 11606948, at *6 (N.D. Ga. June 16, 2010) (citations omitted). Plaintiff did

not file either a petition or cross-petition for review of the AJ’s findings as to his retaliation

claim, stating instead in his response to the FHFA’s Petition for Review that the AJ “made no

erroneous findings of material fact, or erroneous applications of law.” Pl.’s Resp. to Pet. for

Review at 9. Through his inaction, Plaintiff effectively abandoned his retaliation claim, such

that the Court must now dismiss that claim due to Plaintiff’s failure to exhaust his administrative

remedies before the MSPB.3 Moreover, because Plaintiff did not respond in his opposition to

3

As Defendant acknowledges, a claim of retaliation is made as an affirmative defense

before the MSPB. Def.’s Reply at 3 & n.1. In discussing the forfeiture of affirmative defenses,

the D.C. Circuit has “note[d] the distinction between forfeiture and waiver, terms which ‘though

often used interchangeably by jurists and litigants . . . are not synonymous.’” Maalouf v. Islamic

Republic of Iran, 923 F.3d 1095, 1107 (D.C. Cir. 2019) (quoting Hamer v. Neighborhood Hous.

Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017)). While forfeiture “is the failure to make the

timely assertion of a right,” waiver “is the ‘intentional relinquishment or abandonment of a

known right.” Id. (cleaned up and citation omitted). Because the Federal Circuit has examined

comparable cases as involving waiver as opposed to forfeiture, the Court here also discusses this

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Defendant’s arguments seeking dismissal of Plaintiff’s remaining two claims due to the Court’s

lack of subject-matter jurisdiction, the Court considers those arguments conceded. The Court

must therefore decide whether to dismiss the remainder of Plaintiff’s claims given the dismissal

of Plaintiff’s retaliation claim, which leads to this matter no longer being a “mixed case” that

may be brought in federal district court. In the interest of justice, however, the Court opts

instead to transfer Plaintiff’s non-retaliation claims to the Federal Circuit.

A. Abandonment of Retaliation Claim

Most instructive for the Court’s consideration in evaluating Defendant’s administrative

exhaustion argument is Lizut v. Dep’t of Army, 717 F.2d 1391 (Fed. Cir. 1983), in which the

Federal Circuit declined to consider certain of the petitioner’s claims due to his failure to exhaust

administrative remedies. Id. at 1395–96. The petitioner in Lizut sought to appeal on several

grounds a decision by the MSPB that upheld his removal from his position with the Department

of the Army. Id. at 1392. The presiding official’s initial decision concluded that the removal

action should be reversed because the agency had been obligated to apply for disability

retirement on the petitioner’s behalf. Id. at 1393. But the presiding official also decided “that

the board had no jurisdiction to consider the agency’s refusal to process petitioner’s early

retirement request or the assertion that the agency wrongfully failed to promote petitioner from

GS–12 to GS–13.” Id. “Only the government appealed to the board from the presiding official’s

initial decision, urging reversal of the ruling that the agency was obligated to apply for disability

case as an issue of waiver. Whether the Court considers this case as a matter of forfeiture or

waiver, however, the result is the same: the Court cannot consider Plaintiff’s claim or affirmative

defense of retaliation when Plaintiff has not exhausted his administrative remedies on this issue

before the MSPB. Cf. Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017) (concluding

that appellant not only explicitly waived his claims before the district court, but that he also

forfeited his claims because he did not raise those claims with the district court in the first

instance).

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retirement for petitioner in lieu of instigating a removal action,” whereas the petitioner “did not

appeal any part of the presiding official's decision.” Id. Ultimately, the MSPB reversed the

presiding official’s decision, but “did not pass on the agency’s refusal to process an application

for voluntary retirement benefits or on the agency’s failure to promote petitioner.” Id. In his

subsequent appeal of the MSPB’s decision to the Federal Circuit, the petitioner contended in part

that the MSPB should have considered “the agency’s refusal to take steps necessary to process

his request for early optional retirement and the failure to promote him to GS–13.” Id. at 1395.

In declining to consider the petitioner’s early optional retirement and promotion claims,

the Federal Circuit explained that “[o]nly the government appealed to the board, raising the issue

of the agency’s obligation to file for disability retirement,” whereas the petitioner “did not appeal

any aspect of the presiding official’s decision.” Id. It highlighted: “In fact, in response to the

agency’s petition for review of the presiding official’s decision, petitioner’s attorney said: ‘[T]he

Presiding Official made no erroneous interpretation of statute, regulation or prior case law with

respect to the initial decision in this case.’” Id. at 1395–96. It would “undermine the board’s

authority,” the Federal Circuit stated, if it were to “allow[] a party to withhold important issues

from the board and later present them to [the] court.” Id. at 1396; accord Hays v. Postmaster

Gen. of United States, 868 F.2d 328, 330 (9th Cir. 1989). Accordingly, the petitioner had “failed

to exhaust his administrative remedies with respect to his claims based on the agency’s refusal to

process his request for an early optional retirement and the failure to promote him to GS–13,”

and the Federal Circuit would not consider those claims. Lizut, 717 F.2d at 1396.

Other cases have followed comparable reasoning in finding that plaintiffs waived or

abandoned their claims before the MSPB, such that they failed to exhaust administrative

remedies. See, e.g., Uske v. U.S. Postal Serv., 56 F.3d 1375, 1378 (Fed. Cir. 1995) (“Uske did

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not file an appeal of the AJ’s denial of his whistle-blowing claim to the full board and we,

therefore, will not now consider Uske’s whistle-blowing argument.” (citing Lizut, 717 F.2d at

1396)). For example, in Stephens v. Connley, 842 F. Supp. 1457 (M.D. Ga. 1994), aff’d, 48 F.3d

537 (11th Cir. 1995) (unpublished table decision), the court determined that the plaintiff had

abandoned his race discrimination claim before the MSPB. Id. at 1459. The plaintiff had raised

the issue of race discrimination during the appeal of his removal by the Air Force to the MSPB,

but also “offered no evidence [at the hearing before an administrative judge] that racial

discrimination had played a role in the removal action.” Id. at 1458. Though the administrative

judge deemed the plaintiff’s removal to be unreasonable, she “found that plaintiff ‘did not offer

any evidence in support of his claim that the agency took the removal action against him because

of his race,’” and also wrote that the plaintiff “subsequently abandoned the claim.” Id. (citation

omitted). While the “Air Force petitioned the MSPB for review of the administrative judge’s

decision,” the plaintiff “did not appeal the decision of the administrative judge as it related to

racial discrimination.” Id. The MSPB later reinstated the removal action against the plaintiff.

Id.

In its review of the MSPB’s decision in Stephens, the district court set forth:

It is clear that a discrimination claim may be abandoned during MSPB proceedings.

There is no requirement, however, that the discrimination claim must be explicitly waived

in order to find that the claim has been eliminated from the case. The claim may be

eliminated from the case either by explicit waiver or through the actions, or inaction, of

the petitioning party before the MSPB.

Id. at 1459 (internal citations omitted and emphasis in original). The court then listed a number

of factors that other courts had considered in determining whether a discrimination claim had

been eliminated from a case:

For example, did the petition to the MSPB adequately set forth a claim of discrimination?

Did the petitioner introduce evidence of discrimination before the MSPB? Did the

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petitioner raise the issue of discrimination when seeking review of the administrative

judge’s decision? Did the petitioner explicitly waive the discrimination claim in

proceedings before the MSPB? The factors set forth above, however, should not be

considered an exhaustive list. Further, no single factor is dispositive.

Id. (internal citations omitted). Upon consideration of the record, the court stated, the plaintiff

“did not pursue the claim of racial discrimination either before the administrative judge or the

MSPB, given that he “failed to offer any evidence of discrimination in the hearings before the

administrative judge and the MSPB.” Id. at 1459–60.

Another district court, citing the considerations laid out in Stephens, similarly found that

a plaintiff had waived a claim of retaliation through his failure to exhaust his administrative

remedies before the MSPB. See Bullock v. Widnall, No. 95-cv-1031, 1997 WL 1876544, at *5

(M.D. Ala. Aug. 12, 1997). In Bullock, an administrative law judge had “found that plaintiff

failed to establish a prima facie case of retaliation because he produced no evidence that the

agency terminated him as a result of his protected [EEO] activity.” Id. at *3. Rather, “the only

evidence before the ALJ concerning retaliation” was testimony from individuals stating that

“their knowledge of the EEO complaint played no part in their actions concerning plaintiff’s

removal.” Id. at *5. Moreover, “although the Air Force petitioned the MSPB for review of the

ALJ’s decision, ‘[p]laintiff . . . did not appeal the decision of the administrative judge as it

related to . . . discrimination’ in a cross-petition.’” Id. at *6 (citation omitted and emphasis

added). The plaintiff “merely observed, in his response to the Air Force’s petition for review,

that the fact that he ‘elected not to present evidence concerning reprisal, did not mean that such

evidence did not exist;’” but the court did not consider this “somewhat coy” approach to be an

appeal of the administrative judge’s decision on the discrimination claim. Id. at *6 & n.10

(citation omitted). Thus, because “‘discrimination must have been put forth substantively by the

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plaintiff as a basis for the adverse employment decision,’” and the plaintiff failed to do so, he

“effectively abandoned his retaliation claim before the MSPB.” Id. at *6 (citation omitted).

Plaintiff disagrees that Lizut and other cases cited by Defendant are applicable and

contends that abandonment or waiver would have required an intentional relinquishment of the

claim, whereas Plaintiff “was expressly and actively pursuing his retaliation claim” as evident

from “[t]he plain meanings of the words, the assembly of record evidence, and the inferences

drawn in the briefs.” Pl.’s Opp’n at 7–8, 10–12. These arguments are unavailing. Here, as in

the cases described above, Plaintiff abandoned his retaliation claim when he did not challenge

the AJ’s determination that he had failed to prove such a claim. Like the petitioner in Lizut,

Plaintiff urged the MSPB to deny the FHFA’s Petition for Review “[b]ecause the Administrative

Judge made no erroneous findings of material fact, or erroneous applications of law.” Pl.’s

Response to Pet. for Review at 9. Plaintiff later also stated, “[T]he agency has utterly failed to

demonstrate the Administrative Judge committed any error in her findings in favor of appellant

which would warrant overturning the Initial Decision, or even seriously reviewing it.” Id. at 21.

Though Plaintiff recounted the events leading to his removal, including his allegations about Mr.

Risinger’s possible motives for accusing him of making threatening statements, Plaintiff did not

articulate, explicitly or impliedly, how the agency’s termination of his employment constituted

retaliation against him for his EEO activities. And indeed, upon review, the MSPB did not

understand Plaintiff to be challenging the AJ’s findings as to the retaliation claim either, stating,

“Neither of the parties has challenged the administrative judge’s finding that the appellant failed

to prove his affirmative defense of EEO reprisal . . . .” MSPB Final Order at 4 n.5. Defendant

here does not dispute that, unlike the Stephens and Bullock plaintiffs, Plaintiff presented his

claim of retaliation to the AJ. But Stephens and Bullock also demonstrate that, to exhaust his

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administrative remedies, a plaintiff must further bring the claim before the MSPB in appealing

the AJ’s decision. See Stephens, 842 F. Supp. at 1458; Bullock, 1997 WL 1876544, at *6. Given

that Plaintiff did not “raise the issue of [retaliation] when seeking review of the administrative

judge’s decision,” Stephens, 842 F. Supp. at 1459, it would, as the Federal Circuit stated in Lizut,

“undermine the board’s authority” if the Court allowed Plaintiff “to withhold important issues

from the board and later present them to this [C]ourt,” 717 F.2d at 1396; cf. Morris v. McCarthy,

825 F.3d 658, 666–67 (D.C. Cir. 2016) (“A party may not allege on appeal as error an action

which he had induced [an administrative] tribunal to take[.]” (quoting Bhd. of R.R. Trainmen v.

Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 380 F.2d 605, 609 (D.C. Cir. 1967))).

Contrary to Plaintiff’s insistence, James v. FERC, 755 F.2d 154 (Fed. Cir. 1985)

confirms rather than limits Lizut’s applicability to this case. Pl.’s Opp’n at 11–12. The Federal

Circuit in James “reaffirm[ed] that the petition for review does not limit the issues before [the]

court.” 755 F.2d at 155. But it also made clear that “[t]he issues or, as in Lizut, the claims, to be

heard in a particular case before th[e] court will be determined on the basis of whether the

circumstances of the particular case show that the petitioner or respondent knowingly abandoned

or waived claims or issues raised below.” Id.; accord Bosley v. Merit Sys. Prot. Bd., 162 F.3d

665, 668 (Fed. Cir. 1998). The plaintiff in Lizut, the Federal Circuit confirmed in James, “in

response to the government’s petition, expressly endorsed the presiding official’s decision in all

respects” and “[a] waiver was, thus, effected as to the other claims.” James, 755 F.2d at 156

(emphasis in original). As previously explained, the statements that Plaintiff made in his

response—whereby he “expressly endorsed” the AJ’s decision—make this case much like Lizut,

and James does not counsel a different result. Id. (emphasis in original).

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Nor does Plaintiff’s argument in reliance on Evono v. Reno, 216 F.3d 1105 (D.C. Cir.

2000) fare better. Plaintiff contends that he did not waive his retaliation claim given that, in

Evono, the D.C. Circuit “clearly declared that ‘the language of waiver’ must be present and that

waiver cannot be presumed based on ambiguous statements.” Pl.’s Opp’n at 8 (quoting Evono,

216 F.3d at 1109). But Plaintiff’s statements seeking affirmation of the AJ’s initial decision

were not ambiguous. In addition, the situation in Evono—wherein the district court had

dismissed the plaintiff’s discrimination claims, “rul[ing] that he had waived his right to pursue

his discrimination claim in court before exhausting his administrative remedies” but could refile

after exhausting his remedies before the MSPB—differs from that here. 216 F.3d at 1107 & n.5.

According to the government in Evono, the plaintiff had made a “statement in the MSPB

proceeding that he was not pursuing in the district court the full ‘mixed case’ that was pending

before the MSPB,” and had “attempted to split his claims, keeping his discrimination claims in

the MSPB[.]” Id. at 1108. The D.C. Circuit found that the district court had erred “[t]o the

extent that the district court ruled that [the plaintiff] waived his right to sue in district court on

the basis of his pro se statements to the MSPB suggesting that the relief he sought in court

differed from the relief sought in administrative proceedings.” Id. at 1106–07. But the question

here is a substantively different one from that in Evono: it is not whether Plaintiff waived his

right to proceed in court before he exhausted his administrative remedies, but whether Plaintiff

waived a claim before the MSPB such that he failed to exhaust his administrative remedies. This

difference renders Evono less analogous to this case than Lizut,4 and Lizut weighs in favor of

finding that Plaintiff knowingly abandoned his retaliation claim.

4

Plaintiff also relies on Bolton v. Colvin, 674 F. App’x 282 (4th Cir. 2017), but Bolton

likewise involved issues dissimilar to those here. See id. at 287–90.

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There are, however, two cases upon which Plaintiff reasonably relies or could have

relied, and the Court addresses each of these in turn. First, in Rodgers, another court in this

District rejected the government’s argument that the plaintiff had “abandoned her Title VII

claims when she failed to object to the ALJ’s Initial Decision.” 139 F. Supp. 3d at 77. The court

reasoned that “[n]either the statute nor accompanying regulations require the employee to file a

petition for review of the ALJ’s Initial Decision prior to proceeding in federal court.” Id. Thus,

in contending that the plaintiff “should have filed a petition for review of the ALJ’s decision, or

alternatively, should have alerted the ALJ that she overlooked the Title VII claims,” the

Department of Labor was “seek[ing] to read in a requirement that is simply not there.” Id.

Accordingly, the court stated, the Department of Labor “fail[ed] to demonstrate that [the

plaintiff] expressly disclaimed her intention of pursuing her Title VII claims further . . . .” Id.

But certain facts distinguish this case from Rodgers. Most importantly, Plaintiff here

expressly endorsed the AJ’s decision and, as illustrated by the Federal Circuit caselaw,

knowingly waived his retaliation claim. Moreover, in Rodgers, “[n]either party filed a petition

for review of the ALJ’s Initial Decision,” 139 F. Supp. 3d at 73; the plaintiff put forward that,

due to the agency’s misconduct and failure to provide her with discovery, “any attempt to appeal

the ALJ’s decision would have been futile,” id. at 77. By contrast, Plaintiff did submit a filing in

response to the FHFA’s Petition for Review—and he used that filing to endorse the AJ’s

decision without reservation. See Pl.’s Resp. to Pet. for Review at 9. To be sure, the Federal

Circuit and other district court caselaw above does not cite any specific statute or regulation

requiring that a plaintiff file a petition or cross-petition to exhaust his administrative remedies,

and relies instead on the practical concerns raised by allowing a plaintiff to raise a challenge in

federal court to an AJ’s decision that he did not first bring on appeal to the full MSPB. But the

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Court agrees that such concerns are compelling. And although the Federal Circuit’s decisions

are not binding on this Court, the Court will nonetheless accord appropriate deference to its

caselaw on the requirements for administratively exhausting remedies before the MSPB. See

Horn v. U.S. Dep’t of Army, 284 F. Supp. 2d 1, 8 n.10 (D.D.C. 2003) (“The Court notes that

deference to the Federal Circuit is warranted in this area as it is the court that has been vested by

Congress with original jurisdiction over MSPB appeals involving non-discrimination issues.”).

Plaintiff might object, however, to the premise that his retaliation claim had been

withheld from the MSPB when the MSPB explicitly acknowledged in its Final Order that

Plaintiff had brought the retaliation claim before the AJ. As support, Plaintiff might have cited

Trammel v. Brown, No. 94-cv-149, 1995 WL 708666 (N.D. Ill. Nov. 30, 1995), where the court

found that the plaintiff had exhausted her administrative remedies as to her race discrimination

claim because the MSPB adopted the administrative judge’s findings about the race

discrimination claim. Id. at *3. In Trammel, an administrative judge reversed the plaintiff’s

removal by the Department of Veterans Affairs (“VA”) on a number of grounds, but found that

the plaintiff had not established a connection between her race and the removal action. Id. at *2.

The VA sought review of the initial decision from the MSPB, but the plaintiff did not file a

petition or a cross-petition for review on the race discrimination claim because she obtained the

relief she sought on her other claims. Id. The MSPB then reversed the initial decision. Id.

Neither the plaintiff nor the VA had specifically raised the race discrimination issue on the

review, but the MSPB stated in a footnote, “We adopt the administrative judge’s finding that the

appellant had failed to show racial discrimination.” Id. When the plaintiff eventually brought

suit in the court, she raised a claim of race discrimination, but the defendant argued in part that

she had not exhausted her administrative remedies because she did not file a petition for review

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or a cross-petition that permitted the MSPB to consider the race discrimination claim. Id. at *3.

The court did not reach the issue, however, because it stated that the MSPB had explicitly

adopted the administrative judge’s initial decision on race discrimination. Id. The court

concluded that this was sufficient to exhaust the plaintiff’s administrative remedies. Id.

In this case, the MSPB stated in a footnote in its Final Order: “Neither of the parties has

challenged the administrative judge’s finding that the appellant failed to prove his affirmative

defense of EEO reprisal, and we discern no reason to disturb this finding.” MSPB Final Order at

4 n.5. But it then also noted later in that same footnote that “the appellant here failed to prove

his initial burden that a prohibited factor played any part in the agency’s decision[.]” Id. The

question given Trammel, then, is whether the Court may conclude that the MSPB by this

language adopted the AJ’s findings as to Plaintiff’s retaliation claim, such that Plaintiff’s

administrative remedies were in fact exhausted. The Court declines to make such a finding for

two reasons. First, the MSPB’s statements here did not clearly adopt the AJ’s findings about the

retaliation claim as did the MSPB’s statement in Trammel; the language in this case suggests

instead that the MSPB was acknowledging the AJ’s findings but opting not to address them

further, given the parties’ decisions not to raise the retaliation claim as an issue. Second, “[t]he

purpose of the administrative exhaustion requirement is to preserve judicial resources and

provide the agency with notice and an opportunity to pursue an administrative resolution.” Est.

of Rudder v. Vilsack, 10 F. Supp. 3d 190, 196 (D.D.C. 2014) (citations omitted); see also Brown

v. Marsh, 777 F.2d 8, 15 (D.C. Cir. 1985) (explaining that the exhaustion doctrine’s purpose is to

“giv[e] the agency notice of a claim and opportunity to handle it internally”). While the FHFA

and the MSPB may have had notice that Plaintiff at an earlier stage in the proceedings had a

retaliation claim, neither was put on notice by Plaintiff that he wished to continue to press his

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retaliation claim before the MSPB even after the AJ’s Initial Decision. That was evidently not

the MSPB’s understanding of Plaintiff’s case, based on its statements in its Final Order. Thus, to

now find that Plaintiff administratively exhausted his remedies would contradict the purpose of

the exhaustion requirement.

In support of his argument, Plaintiff might also have drawn an analogy to the D.C.

Circuit’s caselaw regarding the need to appeal or cross-appeal to preserve a claim in the federal

courts. In Shatsky v. Palestine Liberation Org., 955 F.3d 1016 (D.C. Cir. 2020), the D.C. Circuit

explained that “[p]arties who win in the district court may advance ‘alternative bases for

affirmance’ that are properly raised and supported by the record without filing a cross-appeal,

even if the district court rejected the argument.” Id. at 1028 (quoting Crocker v. Piedmont

Aviation, Inc., 49 F.3d 735, 741 (D.C. Cir. 1995)). A party need only file a cross-appeal if

“seeking to press arguments that would change or modify the district court’s judgment to their

benefit[.]” Id. (emphasis added); see also Jennings v. Stephens, 574 U.S. 271, 283 (2015)

(holding that, because defendant’s “theory would neither have enlarged his rights nor diminished

the State’s rights under the District Court's judgment,” he was not required to take a cross-appeal

to argue it on appeal); Singh v. George Washington Univ. Sch. of Med. & Health Scis., 508 F.3d

1097, 1100 (D.C. Cir. 2007) (deeming unnecessary a cross-appeal that “seeks only affirmance of

the judgment, either on the grounds of the district court’s latest opinion or on the basis of

arguments that the district court rejected in various interlocutory rulings”). Plaintiff might

therefore have argued that the Court should analogize to this caselaw on cross-appeals and

conclude that his lack of cross-petition at the administrative level need not merit dismissal given

that he sought only affirmance of the AJ’s judgment.

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The Court declines to do so. If it were to follow the requirements as set out in those

cross-appeal cases, the Court would lack the information to determine whether, if he had pressed

the retaliation claim further by filing a cross-petition, Plaintiff would have sought to “change or

modify” the AJ’s judgment. Shatsky, 955 F.3d at 1028. Neither party has submitted to the Court

Plaintiff’s original appeal to the AJ, thus leaving unanswered the question of whether Plaintiff

may have, in arguing retaliation, sought different, additional relief than that granted by the AJ’s

Initial Decision. Without these facts, the Court is not in a position to find sua sponte that the

D.C. Circuit’s caselaw on cross-appeals advises a different outcome than that here. And in the

absence of instruction from the D.C. Circuit on the specific issue of waiver presented here, the

Court relies on the Federal Circuit’s guidance as explained above.

Plaintiff does not raise any equitable considerations that would excuse his failure to

exhaust his administrative remedies. Nor does the Court find that potential equitable

considerations identified by other courts apply in this case. See Broom, 129 F. Supp. 2d at 29–30

(collecting cases and listing equitable considerations such as a plaintiff’s “intelligence and

familiarity with the process” and an agency’s actions or notice of a plaintiff’s claims).

Accordingly, because Plaintiff has not exhausted his administrative remedies with respect to his

retaliation claim, that claim must be dismissed from this case.

B. Remaining Claims

Having dismissed Plaintiff’s retaliation claim, the Court turns to Plaintiff’s two remaining

claims: Plaintiff’s claim alleging an unlawful failure to provide him with interim relief and his

appeal of the MSPB’s Final Order. Plaintiff does not respond in his opposition to Defendant’s

argument that the Court should dismiss these two remaining claims for lack of subject-matter

jurisdiction. The Court may therefore deem the argument to be conceded. See Hill v. Garland,

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No. 19-cv-3389, 2021 WL 965624, at *6 (D.D.C. Mar. 15, 2021) (“It is well understood in this

Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to

address as conceded.” (citation omitted)); accord Potter v. Toei Animation Inc., 839 F. Supp. 2d

49, 53 (D.D.C. 2012), aff’d, No. 12-5084, 2012 WL 3055990 (D.C. Cir. July 18, 2012). But

even if Plaintiff did not concede the argument, Defendant is correct that the Court could dismiss

the remaining two claims because, without Plaintiff’s retaliation claim, this case is no longer a

mixed case and the Federal Circuit has exclusive jurisdiction. See, e.g., Blake v. Dep’t of the Air

Force, 794 F.2d 170, 172–73 (5th Cir. 1986) (concluding that, because “racial discrimination

was eliminated as an issue in this case at both the MSPB level and the district court level,” the

district court lacked subject-matter jurisdiction and the Court of Appeals for the Federal Circuit

had exclusive jurisdiction); Henry v. Peake, No. 8-cv-6829, 2009 WL 4729932, at *6 (S.D.N.Y.

Dec. 10, 2009) (“When the original claim of discrimination is eliminated from a case, the Federal

Circuit has exclusive jurisdiction.” (citing cases)); Stephens, 842 F. Supp. at 1459–60.

In the interest of justice, however, the Court will instead transfer Plaintiff’s remaining,

non-retaliation claims to the Federal Circuit, pursuant to 28 U.S.C. § 1631, rather than dismiss

the claims. See, e.g., Hays, 868 F.2d at 331 (remanding case to consider whether transfer to

Federal Circuit would be in interest of justice); Afifi v. U.S. Dep’t of Interior, 924 F.2d 61, 64

(4th Cir. 1991). Not only could these claims have been brought at the Federal Circuit at the time

Plaintiff filed his complaint here, see 28 U.S.C. § 1631; 5 U.S.C. § 7703, but considerations such

as judicial economy and “a concern for . . . uniformity in federal personnel policy” weigh in

favor of transfer rather than dismissal here, Afifi, 924 F.2d at 64.

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V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss or, in the Alternative, Motion

for Summary Judgment is GRANTED IN PART AND DENIED IN PART. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: January 17, 2023 RUDOLPH CONTRERAS

United States District Judge

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