Petition for Writ of Certiorari — Warren R. Johnson, Petitioner v. United States Federal Government, et al.

USCA Case #25-5228

Document #2155119

Filed: 01/21/2026

Pagel of 2

(Cnitrf nf ^Appeals

Mmteb

For The District of Columbia Circuit

No. 25-5228

September Term, 2025

1:23-cv-03924-TJK

Filed On: January 21,2026

Warren R. Johnson,

Appellant

v.

United States Federal Government, et al.,

Appellees

BEFORE:

Rao, Walker, and Childs, Circuit Judges

ORDER

Upon consideration of the motion for summary affirmance; the order to show

cause filed September 22, 2025, and the response thereto, which the court construes to

include a motion for extension of time to respond to the motion for summary affirmance;

and the motion to appoint counsel, it is

ORDERED that the order to show cause be discharged. It is

FURTHER ORDERED that the motion to extend time be denied. Appellant has

failed to justify any extension. See D.C. Cir. Rule 27(g)(1). It is

FURTHER ORDERED that the motion for summary affirmance be granted. The

merits of the parties’ positions are so clear as to warrant summary action. See

Taxpayers Watchdog, Inc, v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam).

Appellant has forfeited any opposition to the motion for summary affirmance by failing to

respond to that motion. See U.S, ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497

(D.C. Cir. 2004). It is

FURTHER ORDERED that the motion to appoint counsel be dismissed as moot.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to withhold issuance of the mandate herein until seven days after resolution

USCA Case #25-5228

Filed: 01/21/2026

Document #2155119

Page 2 of 2

ffinurt nf ^Appeals

For The District of Columbia Circuit

September Term, 2025

No. 25-5228

of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.

P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY:

Page 2

/s/

Selena R. Gancasz

Deputy Clerk

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WARREN R. JOHNSON,

Plaintiff,

v.

Civil Action No. 23-3924 (TJK.)

UNITED STATES FEDERAL GOVERN­

MENT, et al.,

Defendants.

MEMORANDUM OPINION

Warren R. Johnson sues the United States, the Administrator of the Environmental Protec­

tion Agency, and two other agency officials alleging, among other things, that his former employer

miscalculated his retirement benefits and discriminated against him in violation of Title VII of the

Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Defendants

move to dismiss, arguing that the Court lacks subject-matter jurisdiction over some of Johnson’s

claims, and that he failed to exhaust his administrative remedies on the others. The Court agrees,

so it will grant the motion and dismiss the case.

I.

Background

Johnson, who is black, alleges that he began a promising career in federal service around

1974. Amended Complaint (“Am. Compl.”) at 24, ECF No. 26. “[T]he first 20 years,” he says,

were “glorious”: Johnson allegedly became “the first minority/African American to ever hold an

elite/strategic position” within the Environmental Protection Agency (“EPA”) and rose “to a GS13, Step 4 level on [his] own.” Id. But some “Caucasian” EPA employees allegedly began “down­

playing]” and “undermin[ing]” his accomplishments, “throwing] roadblocks” wherever they

could. Id. In 1994, he brought a “Civil Rights case” against the EPA administrator, id. at 5, which

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the parties settled roughly a year later, see Johnson v. Browner, No. 94-cv-2743 (D.D.C. Feb. 2,

1996), ECF No. 15. Under the settlement agreement, the EPA had to pay Johnson $30,000 and

“retroactively promote” him “from GS 13, Step 4 to GS 14, Step 1” for the 1992-1993 period and

to “GS 14, Step 2” for the 1993-1994 period, “the date of [his] disability retirement.” Id.

1. The

settlement represented a “full and complete satisfaction” of Johnson’s “discrimination and retali­

ation” claims, and the parties agreed to dismiss the case with prejudice. Id.

3, 5.

Though that case settled, Johnson’s issues with EPA apparently did not. The agency al­

legedly “lied” about “returning” him to a position worthy of his education and training and instead

“sent [him] back to the same EPA division” and into “the same hostile work environment.” Am.

Compl. at 19-22. In that position, he received “no accommodations,” “suffered permanent health

setbacks,” and went “through the worst disparate treatment ever.” Id. at 15, 19-20. Johnson says

that EPA “trashed [his] re-employment rights,” “denied” him promotions and on-the-job training,

and “downgraded [him] to a measly GS-9, Step 10 type of position.” Id. at 20-21. And in No­

vember 2021, when EPA “let [him] go after less than approximately 60 days” using a sham “pro­

cess,” the agency “gave [him] half-measured retirement benefits”—“a mere disability retire­

ment”—instead of “a full retirement.” Id. at 15, 21, 26. Johnson also discovered that EPA had

allegedly “miscalculated/underpaid” his Worker’s Compensation benefits and that he had been

“unnecessarily paying premium/top of the line for a healthcare insurance.” Id. at 15-16, 20. On

his account, “EPA did not do a thing to update [him] on the variety of plans that could better

fit/benefit [his] needs” as part “of the Worker’s Compensation program during all of the 28+ years’

worth of open seasons.” Id. at 16; see id. at 20.

In November 2023, Johnson moved unsuccessfully to “reopen” his old case. See Johnson

v. Browner, No. 94-cv-2743, ECF No. 16. A month later, he sued the United States, EPA, and

what appeared to be four EPA employees for violating Title VII of the Civil Rights Act of 1964,

2

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42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C.

§§ 621-34 (“ADEA”), and unspecified “other” federal laws. ECF No. 1. The United States moved

to dismiss for insufficient service of process, but the Court gave Johnson leave to properly effec­

tuate service. ECF No. 19. Johnson then amended his complaint, naming as defendants “the

United States/EPA,” the EPA’s Administrator, and the Director and Deputy Director of the Office

of Administration. Am. Compl. at 2-3. As best the Court can tell, Johnson brings a host of em­

ployment-discrimination claims under Title VII and the ADEA ranging from failure to hire, failure

to promote, failure to accommodate his disability, wrongful termination, and retaliation, to dispar­

ate treatment and hostile work environment. Id. at 10, 22. He also appears to bring a claim for

miscalculation of retirement benefits, id. at 15, 24,26; ECF No. 34 at 20, and in later filings alleges

there are “negligence components” to his suit too. ECF No. 37 at 2; see also ECF No. 34 at 27;

ECF No. 37 at 2. Among other things, Johnson asks for $300,000 in “underpaid money damages,”

$500,000 in punitive damages, retroactive promotions, reinstatement, and restoration of sick and

annual leave. Am. Compl. at 18-19; ECF No. 34 at 21-22.

Defendants now move to dismiss for lack of subject-matter jurisdiction and failure to state

a claim. ECF No. 30.

IL

Legal Standards

On a motion to dismiss under Rule 12(b)(1), the plaintiff “bears the burden of establishing

jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, 442 F. Supp. 3d 87, 9192 (D.D.C. 2020) (citation omitted). The Court “assume[s] the truth of all material factual allega­

tions in the complaint and ‘construe[s] the complaint liberally, granting plaintiff the benefit of all

inferences’” that it can “derive[] from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011) (citation omitted). Although pro se plaintiffs like Johnson are gener­

ally held to a “less stringent standard,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), the “factual

3

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allegations in the complaint... will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,

503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal quotation marks and citation omitted).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon

which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552 (2007). A plaintiff

states a facially plausible claim when he pleads “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). The Court accepts as true “all well-pleaded factual allegations” and

“construes reasonable inferences from those allegations in the plaintiffs favor.” Sissel v. HHS,

760 F.3d 1, 4 (D.C. Cir. 2014). But “mere conclusory statements” are not enough to establish a

plausible claim, and courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Moreover, because John­

son is pro se, the Court considers not only the facts in his complaint, but also those alleged in his

opposition to Defendants’ motion to dismiss. See Watson v. D.C. Water & Sewer Auth., 249 F.

Supp. 3d 462, 464 (D.D.C. 2017).

III.

Analysis

The Court will dismiss Johnson’s claims for the reasons Defendants assert. The Court

lacks subject-matter jurisdiction over his claims for disability benefits and any that assert Defend­

ants were negligent. And his employment-discrimination claims under Title VII and the ADEA

are either barred by his settlement agreement or unexhausted.

First, the Court cannot review Johnson’s disability retirement benefits, which he claims

EPA miscalculated, because it lacks jurisdiction over them. The Civil Service Retirement Act,

which “specifies the benefits to which federal employees ... are entitled,” provides “a reticulated

remedial regime for beneficiaries to secure review—including judicial review—of benefits

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determinations.” Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005); see 5 U.S.C. §§ 8331 et

seq. The Office of Personnel Management (“0PM”), which administers that system, “adjudicate[s] all claims,” 5 U.S.C. § 8347(b), and any adverse decisions must first be appealed to the

Merit Systems Protection Board (“MSPB”), id. § 8347(d)(1). From there, a claimant can seek

judicial review, but—except in narrow circumstances inapplicable here—he “must do so before

the Court of Appeals for the Federal Circuit.”

Fornaro, 416 F.3d at 64 (citing 5 U.S.C.

§ 7703(b)(1)). “[T]hese remedial provisions are exclusive.” Id. at 66; see Lindahl v. 0PM, 470

U.S. 768, 798-99 (1985) (concluding that “MSPB decisions concerning retirement disability

claims are reviewable in the first instance by the Federal Circuit”). Thus, although Johnson says

he took his miscalculation grievance up with 0PM, ECF No. 37 at 2, he cannot now “challenge

how 0PM calculate[d]” his benefits in this court. Fornaro, 416 F.3d at 68. Congress chose to

“channel[] review” of these determinations to the MSPB and the Federal Circuit, so this Court

lacks jurisdiction over this claim. Id.

Johnson’s “negligence” claim also runs into a jurisdictional wall. Absent a waiver, sover­

eign immunity bars suits against the United States, its agencies, and its employees sued in their

official capacities—the entities Johnson sues here. See FDIC v. Meyer, 510 U.S. 471, 475 (1994);

Governor of Ga. v. Madrazo, 26 U.S. 110, 123-24 (1828).1 And while the Federal Tort Claims

Act (“FTCA”) waives the United States’ immunity as to certain claims for money damages, in­

cluding negligence, 28 U.S.C. §§ 1346(b), 2671-80, that waiver kicks in only if “the plaintiff has

1 Even liberally construed, nothing in Johnson’s complaint or pleadings suggests that he

sues the EPA Administrator or the Director and Deputy Director of the Office of Administration

in their individual capacities. See Gebretsadike v. District of Columbia, No. 23-CV-3198 (RCL),

2024 WL 3291744, at *4 (D.D.C. July 3, 2024) (“When the plaintiff does not formally name a

defendant in their individual capacity, that indicates that the plaintiff has pleaded an official ca­

pacity rather than an individual capacity claim.”).

5

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exhausted administrative remedies by ‘first presenting] the claim to the appropriate Federal

agency’ and obtaining a final written decision or waiting six months after presentment.” Emrit v.

NIH, 157 F. Supp. 3d 52, 54-55 (D.D.C. 2016) (quoting 28 U.S.C. § 2675(a)). Exhaustion under

the FTCA is a “jurisdictional” requirement, Simpkins v. District of Columbia Gov’t, 108 F.3d 366,

371 (D.C. Cir. 1997), so Johnson “has the burden to plead” it, Doak v. Johnson, 19 F. Supp. 3d

259, 268 (D.D.C. 2014), aff’d, 798 F.3d 1096 (D.C. Cir. 2015); see Greenhill v. Spellings, 482

F.3d 569, 573 (D.C. Cir. 2007) (“Jurisdiction is determined by looking to the complaint.”). He

hasn’t. Indeed, and as explained in more detail below, Johnson appears to believe that adminis­

trative exhaustion requirements do not apply to any of his claims. See ECF No. 34 at 25 (“Because

America is a free country, I could choose to opt out/go directly to the federal courthouse for re­

lief.”). Thus, the Court will dismiss Johnson’s claims for miscalculation of retirement benefits and

negligence for lack of subject-matter jurisdiction.2

That leaves Johnson’s employment-discrimination claims under Title VII and the ADEA.

To begin, the operative complaint is unclear on whether Johnson attempts to reassert any discrim­

ination claims he already settled. In it, Johnson requests “a total review” of his case “from 1994,”

Am. Compl. at 18, but he later clarified that he “do[es] not seek to reopen” that case after all, which

is “used” only “as reference materials/displays” showing “how we got here,” ECF No. 34 at 17,

21; see id. at 25 (“I agree there is no argument about the ‘old closed case.’”). To the extent Johnson

ever sought to bring such claims, then, the Court will dismiss them as abandoned. Johnson v.

2 To the extent Johnson’s claim for miscalculation of disability benefits is a claim for

breach of his settlement agreement, the Court could not hear it either, because the Tucker Act vests

exclusive jurisdiction in the Court of Federal Claims for contract claims against the United States

when more than $10,000 is at stake. See 28 U.S.C. § 1491(a)(1); Greenhill v. Spellings, 482 F.3d

569, 572 (D.C. Cir. 2007). And Johnson contends that he missed out on “28+ years” of benefits

totaling “$300k,” thereby implicating the Tucker Act’s jurisdictional bar. Am. Compl. at 17-18.

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District of Columbia, 725 F. Supp. 3d 62, 67 (D.D.C. 2024) (quoting Fleming v. Medicare Free­

dom ofInfo. Grp., No. 15-cv-l 135, 2019 WL 6330719, at *2 (D.D.C. Oct. 24, 2019)). Of course,

he could not reassert these claims anyway. Under the settlement agreement, Johnson “waive[d],

release[d] and abandoned] any and all claims against” the EPA and “its officers, agents or em­

ployees ... alleged” in the “litigation ... as well as any and all other claims arising out of the

events and/or subject matter involved.” Johnson v. Browner, No. 94-cv-2743 (D.D.C. Feb. 2,

1996), ECF No. 15

3. And by “executing]” the agreement, the parties agreed to “dismiss[]” the

case “with prejudice.” Id.

5. So any claims Johnson could have raised back then are barred. See

Moore v. U.S. Dep’t ofState, 351 F. Supp. 3d 76, 88 (D.D.C. 2019).3

To the extent that Johnson’s hodgepodge of Title VII and ADEA claims relate to later

events, Defendants correctly argue they must be dismissed for a different reason. Whether he

contends Defendants created a hostile work environment, wrongfully terminated him, or anything

in between, he “must exhaust administrative remedies” before he can bring such claims under

either statute. Bain v. Off. ofAtt’y Gen., 648 F. Supp. 3d 19, 44 (D.D.C. 2022). These exhaustion

requirements give federal agencies a chance “to handle matters internally whenever possible” and

“to right any wrong that [they] might have done.” Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir. 2017)

(citation omitted). They also “ensure that the federal courts are burdened only when reasonably

3 Johnson also alleges without further detail that he signed the agreement “under duress.”

Am. Compl. at 18. But for the reasons explained above, he has abandoned any claim directed at

the settlement agreement, which in any event the Court would likely lack subject-matter jurisdic­

tion to hear because it must be brought in the Court of Federal Claims under the Tucker Act. On

top of that, he pleads no facts to support such an attack on the agreement’s validity. To do so,

Johnson would have had to plausibly allege that his “manifestation of assent [wa]s induced by an

improper threat by the other party that 1 [eft]” him “no reasonable alternative.” Restatement (Sec­

ond) of Contracts § 175(1); Harrison v. IRS, No. 20-cv-828 (CRC), 2021 WL 930266, at *7

(D.D.C. Mar. 11, 2021) (explaining that courts “appl[y] Second Restatement of Contracts when

considering duress claims for contracts” between a private party and the federal government,

which are “analyzed under federal common law”). His conclusory statement comes up well short.

7

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necessary.” Brown v. Marsh, 77 F.2d 8, 14 (D.C. Cir. 1985).4 Exhaustion under Title VII and the

ADEA is “non-jurisdictional,” so a plaintiff need not plead it Bain, 648 F. Supp. 3d at 46 (citing

Bowden v. United States, 106 F.3d 433,437 (D.C. Cir. 1997)). Instead, the agency must plead and

prove it as an affirmative defense. Id. At the motion-to-dismiss stage, the agency may raise that

defense only if the plaintiffs failure to exhaust is “clear from the face of the complaint.” Id. Put

another way, the “the complaint itself [must] state[] that the plaintiff has failed to exhaust [his]

administrative remedies.” Mackinac Tribe v. Jewell, 87 F. Supp. 3d 127, 138 (D.D.C. 2015).

The Court will dismiss these claims because Johnson’s complaint makes clear he has not

exhausted his administrative remedies for them. Johnson used the Court’s standard pro se form

for employment-discrimination cases, which contains an “Exhaustion of Federal Administrative

Remedies” section. Am. Compl. at 12. It asked when Johnson “filed a charge with the [EEOC]

or [his EEO] counselor regarding the ... alleged discriminatory conduct,” and he answered “N/A.”

Id. It also required him to indicate whether the EEOC “issued a Notice of Right to Sue letter,” and

if so, when. Johnson left those boxes unchecked. Id. And it required him to “answer” whether

“more” or “less than 60 days” had elapsed “[s]ince filing [any] charge of age discrimination” with

the EEOC; but again, Johnson said nothing. Id. And Johnson removed whatever doubt might

remain about whether he availed himself of these administrative procedures in his later filings. He

responded to Defendants’ exhaustion argument by explaining that he was “free to pursue a new

4 Generally, Title VII and the ADEA require a plaintiff to “fil[e] a charge of discrimination

with the EEOC.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 180 (D.D.C. 2012). And

Title VII requires the plaintiff to wait for a right-to-sue letter. See Hunter v. Washington Metro.

Area Transit Auth., No. 22-cv-3552 (CKK), 2025 WL 522052, at *3 (D.D.C. Feb. 18, 2025). The

ADEA also permits an employee to “bring a claim directly to federal court so long as, within 180

days of the allegedly discriminatory act, he provides the EEOC with notice of his intent to sue at

least 30 days before commencing suit.” Johnson v. Vilsack, 815 F. Supp. 2d 221, 226 (D.D.C.

2011) (quoting Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003)); 29 U.S.C. §§ 633a(c), (d).

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case if [he] so wished, and [he] did” after he was told his 1994 case was “already well done and

closed.” ECF No. 34 at 18. Doubling down, he contended that he “could choose to opt out/go

directly to the federal courthouse for relief’ because “America is a free country.” Id. at 25. But

unfortunately for Johnson, that he has no “faith” in “the EEOC,” “only in the judge,” does not

excuse his non-compliance. Id. at 21.

To be sure, Johnson could have directly filed his ADEA claims in federal court had he sued

“within 180 days of the allegedly discriminatory act” and notified the EEOC. Rann v. Chao, 346

F.3d 192,195 (D.C. Cir. 2003); 29 U.S.C. § 633a(c), (d). But if Johnson chose the ADEA’s alter­

native path to judicial review, the complaint makes clear that any claim would be time-barred, as

none of the alleged events occurred within 180 days of him suing. The last incident alleged in the

complaint happened in November 2021, when EPA fired him. Am. Compl. at 21. But more than

two years passed until Johnson sued, so any ADEA claim would be untimely had he chosen that

route. See ECF No. 1; Bain, 648 F. Supp. 3d at 49 (dismissing ADEA claims in part as untimely

because none “of these incidents occurred] 180 days or less before [the plaintiff] filed this law­

suit”).5

IV.

Conclusion

For all these reasons, the Court will grant Defendants’ motion to dismiss. A separate order

will issue.

/s/ Timothy J. Kelly_______

TIMOTHY J. KELLY

United States District Judge

Date: May 23,2025

5 Even if Johnson’s complaint is construed as also raising a disability discrimination claim

under § 501 of the Rehabilitation Act, it would be subject to dismissal for lack of subject-matter

jurisdiction too. A plaintiff must also exhaust his administrative remedies before suing under that

statute but, unlike in the Title VII and ADEA context, failure to exhaust a Rehabilitation Act claim

is a jurisdictional defect. Doakv. Johnson, 798 F.3d 1096, 1103-04 (D.C. Cir. 2015).

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WARREN R. JOHNSON,

Plaintiff,

v.

Civil Action No. 23-3924 (TJK)

UNITED STATES FEDERAL GOVERN­

MENT, et al.,

Defendants.

ORDER

For the reasons set forth in the Court’s accompanying Memorandum Opinion, it is hereby

ORDERED that Defendants’ Motion to Dismiss, ECF No. 30, is GRANTED. It is further OR­

DERED that this case is DISMISSED. This is a final, appealable order. The Clerk of Court is

directed to close the case.

SO ORDERED.

/s/ Timothy J. Kelly______

TIMOTHY J. KELLY

United States District Judge

Date: May 23, 2025