Appendix — Brookens v. Solis (No. 09-463)

| VL (2) Cupane a US.

09-463 0CT13 2009

APPENDIX

No. OFFICE OF THE CLERK

3n Ghe

Supreme Court of the Mnited States

Benoit Brookens,

Petitioner,

Hilda L. Solis,

Secretary of Labor,

Respondent.

‘PETITION FOR WRIT OF CERTIORARI

Appench

TABLE OF CONTENTS

July 13, 2008 Order of

The Court of Appeals for the District

of Columbia Circuit, En

er oe co cicaecmeieeewenee AS

U.S. District Court

ac sigan inehinnnnwieeiaie’ A-5

Applicable Constitutional Provisions,

Statutes,

seal cael aeknmasbeeuks A-19

Pleadings and Evidence Below:

Relevant Docket Entries ...............- A-21

Piaintif’s Exhibit (4) ..................... A-23

United States Court of Appeals

For the District of Columbia

No. 08-5527 September Term 2008

1:08-cv-00086-ESH

Filed on July 13, 2009

Benoit Otis Brookens, II,

Appellant

v.

Hilda L. Solis, Secretary,

U.S. Department of Labor,

Appellee

Before: Sentelle, Chief Judge, and Ginsberg,

Henderson, Rogers, Tatel, Garland,

Brown, Griffith, and Kavanaugh,

Circuit Judges

ORDER

Upon consideration of the petition for

rehearing en banc, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer,

Clerk

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 08-5527 September Term

2008

1:08-cv-00086-ESH

Filed On: May 8,

2009

Benoit Otis Brookens, II,)

Appellant

v. )

Hilda L. Solis,

Secretary, )

U.S. Department of Labor,

Appellee )

BEFORE: Garland, Griffith, and Kavanaugh,

Circuit Judges

ORDER

Upon consideration of the motion for summary

affirmance, the response thereto, and the reply, it is

ORDERED that the motion 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 failed to demonstrate a

genuine issue of material fact that the appellee's

proffered reasons for not promoting him were

pretextual or that he was denied the promotions

because of discriminatory or retaliatory animus. See

Brady v. Office of the Sergeant at Arms, U.S. House

A-3

of Representatives. 520 F.3d 490, 494 (D.C. Cir.

2008). The district court did not abuse its discretion

in denying appellant's Fed. R. Civ. P. 56(f request

for discovery, because any information pertaining to

his qualifications under the delegated examining

authority would have been irrelevant, and the

remainder of the request lacked the requisite

specificity. See Messina v. Krakower. 439 F.3d 755,

762 (D.C. Cir. 2006) ("A party making a Rule 56()

request must state concretely why additional

discovery is needed to oppose a motion for summary

judgment. We will not find an abuse of discretion —

where the requesting party has offered only a

conclusory assertion without any supporting facts to

justify the proposition that the discovery sought will

produce the evidence required.") (internal quotations

and citations omitted). The district court properly

dismissed appellant's 42 U.S.C. § 1981 claim with

prejudice. See Hohri v. United States, 762 F.2d 227,

245 n.43 (D.C. Cir. 1986), vacated on other grounds.

482 U.S. 64 (1987) (stating that § 1981 does "not

apply to actions against the United States").

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 of any timely petition for

rehearing or petition for rehearing en bane. See Fed.

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

Per Curiam

Case 1:08-cv-O0008ESH Document 18 Filed

10/21/2009

Page 1 of 11

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BENOIT BROOKENS, )

Plaintiff

Vv. ) Civil Action No. 08-

0086 ESH

ELAINE L. CHAO, )

Secretary, United States

Department of Labor, )

Defendant

MEMORANDUM OPINION

Plaintiff Benoit Brookens has filed an

amended complaint against Elaine Chao, in her

official capacity as Secretary of the United States

Department of Labor ("DOL"), alleging race and age

discrimination and retaliation under Title VII, 42

U.S.C. § 2000e et seq.; the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.;

and 42 U.S.C. §-1981.' According to plaintiffs

? Plaintiff has voluntarily withdrawn Count V of his

amended complaint, which relies on 42 U.S.C. §

1981, so this count will be dismissed. (See Pl's Opp'n

at 1 nl.)

A-5

complaint, he was unlawfully denied three

promotions in violation of Title VII and the ADEA

(Counts I - IID), and these denials also constituted

retaliation for his exercise of protected activity

(Count IV). Defendant has moved to dismiss the

amended complaint, or in the alternative, for

summary judgment. Plaintiff opposes this motion,

claiming that he was exempt from the qualifications

for these positions and from the requirement of prior

experience at a level above a GS-12. As explained,

more fully below, the Court concludes that plaintiff —

has failed to raise any material issues of fact

regarding his non-promotion to these positions, and

that no reasonable jury could conclude that race or

age played any role in the agency's decision to find

him unqualified for these positions.

[Page 2 of 11]

BACKGROUND

Brookens is an African-American male and is

over forty years of age. (Amd. Compl. para. 7.) He

obtained law and business graduate degrees from

Columbia University, New York, NY. (7d. para. 8.) -

He has previously practiced law and taught as an

adjunct professor at the University of Virginia, Falls

Church, VA. (7d. para. 19.) Brookens has been

employed by the DOL as an International

Economist in the Bureau of International Labor

Affairs ("ILAB") at grade GS-12 since 1990. (/d.

para. 10.) He claims that he has met or exceeded his

employer's legitimate expectations. (Id. para. 11.)

In June 2005, Brookens expressed interest in a

temporary promotion as the Acting Director of the

Trade Policy Division in ILAB, a GS-15 position. (/d.

para. 19.) He was neither considered nor selected for

this position.? (7d para. 20-21,) As a result,

Brookens filed an administrative complaint of

discrimination in August 2005. (/d. para. 22.) Following

an investigation by the DOL's Civil Rights Center

("CRC"), Brookens requested an EEOC hearing. The

Administrative Judge ("AJ") found no discrimination

and specifically found that Brookens, as a GS-12

employee, was not eligible for the temporary

promotion because he did not have “at least one year

of service at the prior grade level -in this case, a GS-

14." (See Def.'s Ex: A, EEOC Case No. 570-2006-

0012IX, at 17. (Dec. 7, 2006).) Brookens timely

appealed. The EEOC Office of Federal Operations

("OFO") affirmed the AJ's decision. .See Brookens v.

Chao, EEOC Doc. 0120071829, 2007 WL 2161734

(July 17, 2007). Brookens also filed a motion for

> The person chosen for the temporary position,

Dobson, was 18 months older than plaintiff and was

the “more senior member of the eligible GS-14

employees who expressed an interest in the

position." (Def.'s Ex. A, EEOC Case No. 570-2606-

0012IX, at 15-16 (Dec. 7, 2006).)

[Page 3 of 11]

reconsideration, which was denied. See Brookens v.

Chao, EEOC Doc. 0520070890, 2007 WL 3051339

(Oct. 9, 2007).

In September 2006, Brookens submitted an

application in response to a vacancy announcement for

the Director of ILAB's Office of Trade and Labor

Affairs, a Senior Executive Service ("SES") position.

(Amd. Compl. paras. 24-25.) Brookens was neither

considered nor selected for this position. (/d. para. 26.)

A human Resources specialist informed Brookens that

he was not eligible for the position because he lacked

"significant senior level management experience." (Zd.)

Brookens consequently filed an administrative

complaint, alleging race discrimination and

retaliation. (/d. para. 27.) On March 14, 2008, the AJ

dismissed Brookens' complaint with prejudice because

Brookens sought relief in this civil action. (See Def.'s

Ex. C, EEOC Case No. 570-2007-00778X (Mar. 14,

2008).)

In October 2006, Brookens submitted an

application for a Deputy Director position in ILAB's

Office of International Relations at both the GS-14 and

GS-15 grade levels. (Amd. Compl. paras. 30-31.)

Brookens was neither considered nor selected for this

position. (/d. f 32.) He was told that he was not certified

for the position because he lacked the time-in-grade

requirement.? (/d_; see also Def.'s Ex. D, Witt Aff. at 3).

? For the GS-14 position, plaintiff was one of eight who

were not certified on the basis of a lack of qualifications,

A-8

As a result, Brookens filed an administrative

complaint of discrimination. (Amd. Compl para. 33.)

Following a CRC investigation, Brookens requested an

EEOC hearing. On March 14, 2008, the AJ dismissed

Brookens' complaint with prejudice because Brookens

sought relief in this civil action. (See Def.'s Ex. C,

EEOC Case No. 570-2007-00778X (Mar. 14, 2008).)

[Page 4 of 11]

Plaintiff filed suit on January 16, 2008, and amended

his complaint on July 8, 2008. While defendant raises

several arguments to support dismissal under Rule

12(b)(6), the Court is not persuaded that the case can

be dismissed on timeliness grounds, failure to state a

claim or collateral estoppel. The Court concludes,

however, that plaintiff has failed to raise any genuine

issue of fact regarding his lack of qualifications for the

positions which are at issue, and that no reasonable

juror could find that defendant denied plaintiff any of

these positions because of a discriminatory or

retaliatory animus.

ANALYSIS

L Title VI, ADEA

A. Legal Standards

To succeed on a claim of discrimination under

Title VII and the ADEA, a plaintiff has the initial

burden of establishing a prima facie case of

and for the GS-15 position, plaintiff was one of eleven.

(Def.'s Ex. D, Witt Aff. At 3.)

discrimination by showing that "(1) she is a member of

a protected class; (2) she suffered an adverse

employment action; and (3) the unfavorable action

gives rise to an inference of discrimination.” Stella v.

Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Carter v. George Washington. Univ., 387 -

F.3d.:872, 878 | D.C. Cir. 2004) (applying McDonnell

Douglas framework to ADEA claims). A prima facie

case of retaliation requires a plaintiff to show that "(1)

she engaged in statutorily protected activity; (2) she

suffered an adverse employment action; and (3) there is

a causal connection between the two." Jaylor v. Small

350 F.3d 1286, 1292 (D.C. Cir. 2003); see also 42 U.S.C.

§ 2000e-3(a).

When reviewing a motion for summary

judgment, a district court need not - and should not -

evaluate a plaintiffs prima facie showing where a

defendant sets forth a legitimate, non-discriminatory

reason for its conduct. Brady v. Office of the Sergeant

at Arms, 520 F.3d 490,

(Page 5 of 11]

494 (D.C. Cir. 2008). In the present case, the Secretary

has consistently proffered a legitimate, non-

discriminatory reason for not selecting. Brookens for the

positions described in Counts I - III. The Secretary

asserts that Brookens was not assigned to the GS-15

level Acting Director of the Trade Policy Division

temporary promotion (Count I) or the GS-14/15 level

Deputy Director of the Office of International Relations

position (Count ITD because both positions required at

A-10

least one year experience at either a GS-13 or GS-14

level. (See Def.'s Stmt. Material Fact 1; Def.'s Ex. D,

Witt Aff. at 3; Def.'s Ex. E, Broderick Decl. paras. [ 14-

15) The Secretary further alleges that Brookens was

not considered for the SES level Director of the Office of

Trade and Labor Affairs position (Count I) because he

lacked the necessary executive experience since he had

only obtained a GS-12 level. (See Def.'s Stmt. Material

Fact 2; Def.'s Ex. F, Holmes Decl. para. 15.)

Because the Secretary sets forth legitimate, non-

discriminatory reasons for the agency's actions, the

Court looks to whether Brookens has offered any

evidence upon which a jury could infer that the

Secretary's proffered nondiscriminatory reasons were

not the true reasons for the employment decisions.

Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d

647, 651 (D.C. Cir. 2003). "At this stage, if [the

plaintiff] is unable to adduce evidence that could allow

a reasonable trier of fact to conclude that [the

defendant's] proffered reason was a pretext for

discrimination [or retaliation], summary judgment

must be entered against [the plaintiff]." Paquin v. Fed.

Nat’ Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C. Cir.

1997).

Applying these standards, the Court will now

turn its attention to the three positions which underlie

Counts I - ITI.

[Page 6 of 11]

B. Count I - GS-15 level Acting Director of

the Trade Policy Division

Count I alleges that Brookens, a GS-12

International Economist, was subjected to

discrimination based on his race and age when he was

neither considered nor selected for a GS-15 level Acting

Director of the Trade Policy Division position. (Amd.

Compl. paras. 18-22.)

The Secretary has shown that the Acting

Director position was a GS-15 temporary

promotion with a time-in-grade requirement,

meaning that an eligible employee had to possess

52 weeks of experience at the next lower grade

level. (See Def.'s Stmt. Material Fact 1 (citing

Def.'s Ex. D, Wiff. Aff} Def.'s Ex. E, Broadrick

Decl.).) Brookens was a GS-12 employee, who

had not performed work at either the GS-13

level] or the GS-14 level for the requisite 52

weeks. The Secretary insists, therefore, that

Brookens was not eligible for the GS-15 level

Acting Director position. The A.J agreed and

specifically found that the Acting Director

position was a “temporary promotion," and that

Brookens, as a GS-12 employee, was not eligible

for the position because he did not have “at least

one years of service at the prior grade level - in

this case, a GS-14." (See Def.'s Ex. A, EEOC

Case No. 570-2006-00121X, at 16-17, 20-22

(Dec. 7, 2006).)

Brookens does not dispute that he failed to

satisfy the time-in-grade requirement. Rather,

A-12

he asserts that the time-in-grade requirement

did not apply to him because the Acting Director

position was a “detail” position lasting 120 days

or less. (PL's Ex. 1, Brookens Decl. para. 2; PL's

Ex. 2, Agreement Between Local 12, AFGE,

AFL-CIO and DOL.) The difficulty with

Brookens' position is that the unrebutted

evidence regarding this position is that it was a

"temporary promotion" and not a "detail," and,

contrary to Brookens' suggestion in his

[Page 7 of 11]

complaint,‘ these two types of positions are not

interchangeable, for a temporary promotion involves

a pay increase to the next grade level, whereas a

detail does not. Therefore, in order to receive a

temporary promotion, the employee needed a

minimum of one year of experience in the next lowest

gerade level. (Def.'s Ex. A, EEOC Case No. 570-2006-

0012IX, at 14 (Dec. 7, 2006).)

While plaintiff, as well as others, may well

have been confused about the difference between a

"detail" and a "temporary promotion" (/d. at 16-17),

‘ See, e.g., Amd. Compl. para. 19 (referring to Acting

Director Position as a “detail and temporary

position"), para. 20 ("detail and/or temporary

promotion"), para. 21 ("detail and/or temporary

promotion"). (See also Def.'s Ex. A, EEOC Case No.

570-2006-0012IX, at 13 (Dec. 7, 2006).)

there is no dispute that there is a difference between

the two classifications and that since the Acting

Director job was to be paid at the higher GS-15 level,

plaintiff was not considered to be eligible because he

had not had a year in service as a GS-14. (7d. at 17.)

Therefore, there is nothing in the record to suggest

that the reason for his non-selection was pretextual.

C. Count II - SES level Director of the

Office of Trade and Labor Affairs

Count II alleges that Brookens was subjected

to discrimination based on his race, age, or prior EEO

activity when he was neither considered nor selected

for the SES level Director of the Office of Trade and

Labor Affairs position after he submitted an

application in response to the vacancy

announcement. (Amd. Compl. paras. 23-28.)

In response, defendant argues that Brookens

lacked the qualifications for the position and

was therefore "determined unqualified under

vacancy announcement DOL-SES-06-021

because he did not possess significant senior

level management experience. (Def.'s Stmt.

Facts para. 2.) In making this argument,

defendant relies on the declaration of the

Human Resources Specialist who was

responsible for filling this vacancy. As she

explained, the vacancy announcement for

[Page 8 of 11]

this position stated that the candidate must have

experience "at a major management level (normally

equivalent to the GS-15 level in the Federal

Service)." (Def.'s Ex. F, Holmes Decl. para. 13.) Based

on the qualifications listed in the vacancy

announcement, Holmes determined that Brookens

"was not minimally qualified for this SES position.

Because Mr. Brookens had been a GS-12 employee

since 1990, he had not achieved the executive

experience needed for this SES position." (/d

para. 15.)

In response, plaintiff merely asserts that he

was qualified for the position. (See PI's Stmt.

Material Fact para. 2.) He offers no evidence to

support this assertion in violation of the well-settled

rule that a plaintiff cannot establish pretext, simply

based on his own subjective assessment of his-own

performance, for "plaintiffs perception of {himself,

and of [his] work performance, is not relevant."

Waterhouse v. District of Columbia, 124 F Supp. 2d

1, 7 (D.D.C. 2000) Gnternal citation omitted), aff'd,

298 F.3d 989 (D.C. Cir: 2002). See also Hastie v.

Henderson, 121 F. Supp.2d 72, 81 (D.D.C. 2000)

(finding no genuine issue of fact where plaintiff

provided no evidence “other than her own self:

serving and conclusory statement that she completed

more work than [her co-worker]"); Sounders v.

DiManio, No. Civ. A. 97-1002, 1998 WL 525798, at *4

(D.D.C. August 14, 1998) ("Plaintiff has otherwise

offered the type of self-serving allegations that are

simply insufficient to establish pretext.").

Count I must therefore be rejected since there

is no showing of pretext.

D. Count III - GS-14 / GS-15 level

Deputy Director of the Office of

International Relations

Count III alleges Brookens was subjected to

discrimination based on race, age, or prior EEO

activity when he was neither considered nor selected

for a GS-14 and GS-15 Deputy Director of the Office

of International Relations position after he submitted

an application. (Amd. Compl. para 29-34.)

(Page 9 of 11)

The Secretary contends that Brookens was not

eligible for the Deputy Director position at either GS-14

or GS-15 because, as a GS-12 employee, Brookens failed

to meet the time-in-grade requirement under the

agency's merit staffing procedures. (Def.'s Mot. at 5;

see also Def.'s Ex. D, Witt Aff.at 3.)

Once again, Brookens does not dispute that he

failed to satisfy the time-in-grade requirement.

Instead, he argues that the time-in-grade requirement

did not apply to the Deputy Director job posting

because the position was subject to the delegated

examining authority process, which allows for

consideration of candidates regardless of their time-in-

grade experience. (See Pl.'s Stmt. Material Fact 1; Pl.'s

Ex. 1, Brookens Decl.paras. 2-4; Pl.'s Ex. 3.)

There is no probative evidence, aside from-

Brookens’ conclusory assertion,® that the Deputy

Director position was subject to the delegated

examining authority process, as opposed to the merit

staffing process. Instead, the record clearly indicates

that Brookens' application was subject to the merit

staffing procedures. Joanne T. Broderick, the Human

Resources Specialist who reviewed Brookens'

application, described his.application under the merit

staffing procedures. She explained that Brookens “is no

eligible for a promotion to GS-14 positions that are

advertised under merzt staffing procedures for DOL

employees because Mr. Brookens does not possess the

required 52 weeks in GS-13 position.” (Def.'s Ex. E,

Broderick Decl. para. 14 (emphasis added).) Broderick

also stated that Brookens "is not eligible for a

promotion to GS-15 positions that are advertised under

merit staffing procedures for DOL employees because

[he] does not possess the required 52 weeks in a GS-14

position." (/d. at para. 15 (emphasis added).)

Broderick further concluded that Brookens was not

eligible for an exclusion from the time-in-

° In support of his assertion, Brookens refers the Court

to an application he submitted under the delegated

examining authority process. (See Pl.'s Ex. 4.)

However, that application was for a Supervisory

International Economist position (LAB 07-068DE), not

for the Deputy Director position (ILAB 07-010M), and

is thus irrelevant to this case.

(Page 10 of 11]

grade requirements under 5 C.F.R. § 300.603(b)

(listing delegated examining authority process as

grounds for exclusion from grade-in-time

requirement). (/d at para 16.) Ericka Witt, another

Human Resources Specialist, explained that

"[blecause [the Deputy Director position] was a merit

promotion announcement, [Brookens] would need to

have worked for at least 52 weeks at the GS-13

grade level before he would be eligible for a GS-14

position.” (Def.'s Ex. D, Wit Aff. at 3 (emphasis

added).)

Based on this uncontroverted evidence, it must

be concluded that the Deputy Director position was

governed by the merit staffing process, and,

consequently, Brookens' failure to meet the time-in-

grade requirement made him ineligible for the

position. Brookens has thus failed to show pretext

with respect to Count III.6

E. Count [V-Retaliation

Because the Court grants summary judgment

to defendant on Brookens' non-selection

claims, it must also grant summary judgment

° For these same reasons, plaintiff has no basis for

asserting that the temporary position (Count I) was

available under the delegated examining process.

(See Pl's Ex. 1, Brookens Decl. para 2.)

on Count IV. No jury could infer that

Brookens' non-selections were retaliatory

because Brookens has failed to rebut the

Secretary's legitimate, non-discriminatory

reasons for not selecting him for the positions.

Rule 56() Request For Discovery

In his declaration, plaintiff requests the

opportunity to conduct discovery because he

"would need the assistance of expert witnesses,

e.g. regarding his qualification and eligibility

under the delegated examining authority ...."

(PL's Ex. 1, Brookens Decl. para. 5.)

While summary judgment ordinarily "is proper

only after the plaintiff has been given adequate time

for discovery," First Chicago Int v. United Exch. Co.,

836 F.2d 1375, 1380 (D.C. Cir. 1988), the information

Brookens seeks through discovery is simply not

necessary to decide

[Page 11 of 11]

this case. As discussed above, the record indicates

that the Deputy Director position was:subject to

merit staffing procedures. Because Brookens has

failed to show that the delegated

examining authority procedures apply here, the

Court concludes that Brookens' eligibility under

those procedures would have no bearing on this

case.

In addition, Brookens has failed to provide

sufficient particularity to justify his request for

discovery. See Messina v. Krakower, 439 F.3d J55, 762

(D:C. Cir. 2006) (party seeking a continuance must —

"state[] concretely why additional discovery is needed

to oppose [the motion]") (internal quotation omitted);

Byrd v. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999)

(party seeking discovery bears the burden of identifying

the factors to be discovered that would create a triable

issue and reasons why the party cannot acquire those

facts without discovery to challenge a motion for

summary judgment).

For these reasons, there is nothing to suggest

that this vague request for discovery will help plaintiff

to respond to defendant's summary judgment motion.

CONCLUSION

For the foregoing reasons, defendant's

motion to dismiss, or in the alternative, for

summary judgment is GRANTED. An Order

accompanies this Memorandum Opinion.

ELLEN SEGAL HUVELLE

United States District Judge

Date: October 21, 2008

Statutes

42 U.S.C.A. Art. 2000e-2(a) provides that

“It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge any

individual,.or otherwise discriminate against

any individual with respect to his

compensatin, terms, conditions, or privileges

of employment because of such individual's

race, color, religion, sex, or national origin.”

41 U.S.C. 198la “Section 1977A. Damages in Cases

of Intentional Discrimination in Employment.

(a) Right of Recovery—

“(1) Civil Rights—In an action:brought by a

complaining party under section 706 or 717 of

the Civil Rights Act of 1964 (42 U.S.C. 2000e-

5) against a respondent who engages in

unlawful intentional discrimination (not an

employment practice because of disparate

impact) prohibited under section 703, 704, or

717 of the Act (42 U.S.C. 2000e-2 or 2000e-3),

and providing that the complaining party

cannot recover compensatory and punitive

damages as allowed under 1977 of the Revised

Statutes (42 U.S.C. 1981), complaining party

may recover compensatory and punitive

damages as allowed in subsection (b), in

addition to any relief authorized by section

706(g) of the Civil Rights Act of 1964, from the

respondent.

TITLE 28 > PART IV > CHAPTER 83 > § 1291

§ 1291. Final decisions of district courts

The courts of appeals (other than the United States

Court of Appeals for the Federal Circuit) shall have

jurisdiction of appeals-from all final decisions of the

district courts of the United States, the United

States District Court for the District of the Canal

Zone, the District Court of Guam, and the District

Court of the Virgin Islands, except where a direct

review may be had in.the Supreme Court. The

jurisdiction of the United States Court of Appeals for

the Federal Circuit shall be limited to.the

jurisdiction described in sections 1292 (c) and (d) and

1295 of this title.

Relevant Docket Sheet Entries

Civil Docket for case #1;08-cv-00086-ESH

Brookens v. Chao Date filed: 1/16/2008

Plaintiff Represented by

Benoit Brookens Boniface K. Cobbina, PC

Defendant Represented by

Elaine Chao Alan Burch

Secretary, U.S. Attorney's Office

Date Fued Item# Docket Text

12/19/2008 13 Notice of Appeal

by Benoit Brookens

10/21/2008 18 . Memorandum Opinion

Regarding 14 defendant's

motion for summary

judgment

10/21/2008 17 Order granting 14

defendant's motion

For Summary Judgment

filed by Elaine Chao

Date Filed Item # Docket Text

9/3/2008 16 Reply to opposition re 14

Motion to Dismiss

Amended Complaint

or in the alternative

Motion for Summary

Judgment filed by Elaine

Chao.

7/25/08 14 Motion to Dismiss

Amended Complaint or in

the alternative, Motion for

Summary

7/8/2008 11 Memorandum in

opposition to re 5

Motion to Dismiss, or, in

the alternative, Summary

Judgment

7/8/09 10 Amended Complaint filed

by Benoit Brookens with

Attachments

5/22/2008 7 Notice of Appearance by

Boniface K. Cobbina on

behalf of Benoit Brookens

1/16/2008 ] Complaint against Elaine

Chao

EVIDENTIARY DOCUMENT

{ Plaintiff's Ex. 4.]

EXECUTIVE OFFICE OF THE

PRESIDENT

Office of Administration

Washington, DC 20503

[Seal]

CERTIFICATE OF ELIGIBLES

DELEGATED EXAMINING CERT:

USTR-04-62-VM

TO: Lorraine Green

Deputy, AUSTR for Admin

and HR Director

FROM: Vel McClure

Human Resources Specialist

POSITION: Policy Analyst (Labor)

GS-301-14/15

(FPL: GS-15)

DATE: 7/19/04

Candidates Eligibility Veterans

Preference

Brookens, Benoit GS-14 NV

Quintana, Carlos GS: 15 NV

Selectee:

Signature a

of Selecting Official:

Name and Title

of Selecting Official:

Date:

{handwritten comment: “Posn cancelled by

Lorraine Green on 12-7-04 Posn no longer

required. D Hardesty”]