HARRIGAN v. YANGHARRIGAN v. YANG
Plaintiff Clare Harrigan is a lawyer who, since 2007, has been administratively litigating claims of discrimination and retaliation against her former employer, the U.S. Department of Housing and Urban Development (HUD). In this lawsuit, Plaintiff does not sue HUD; instead, she has sued Defendant Jenny Yang, in her capacity as the Chairwoman of the Equal Employment Opportunity Commission (EEOC), and the EEOC itself. According to Plaintiff, the EEOC acted unlawfully with respect to its review and processing of her various discrimination complaints against HUD. Asserting claims under the
A. Factual Background
Plaintiff Clare Harrigan is a lawyer who worked at HUD from 1991 to 2011. Compl., ECF No. 1, ¶ 24. The events at issue in this case arose while Plaintiff was a lawyer within HUD’s Office of Litigation. Id. ¶ 42. Because the events underlying Plaintiff’s complaints of discrimination are less critical to this case than the processing of those complaints, the court focuses below on the procedural history of each of Plaintiff’s three administrative complaints.
1. The 2007 Complaint
On October 18, 2007, Plaintiff filed an equal employment opportunity (EEO) complaint with HUD (the “2007 Complaint“), alleging that the agency had subjected her to a hostile work environment and had discriminated against her on the basis of sex and on the basis of reprisal for engaging in protected EEO activity. Id. ¶ 65; Harrigan v. Donovan, No. 0120110905, 2012 WL 5995750, at *1 (E.E.O.C. Nov. 21, 2012). HUD dismissed the 2007 Complaint, see Compl. ¶ 67, concluding that Plaintiff had “failed to prove that the Agency subjected her to discrimination as alleged,” Harrigan, 2012 WL 5995750, at *3. On December 1, 2010, Plaintiff appealed that decision to the EEOC. Compl. ¶ 68.
Nearly two years later, on November 21, 2012, the EEOC vacated HUD’s “no discrimination” determination (the “November 2012 Order“). See Harrigan, 2012 WL 5995750 at *5-6. In its Order, the EEOC explained that Plaintiff’s complaint asserted 55 claims of discrimination, but HUD’s decision dismissing the 2007 Complaint addressed only 18 of those claims. Id. at *5. The EEOC remanded the matter to HUD to conduct a supplemental investigation with respect to the remaining claims. Id. at *6.
On February 10, 2014, the EEOC advised Plaintiff that it had “closed compliance without ruling” on her Petition for Enforcement “because the supplementary investigation had been completed and the issues raised remained viable and [would be] more appropriately addressed in the next step of the administrative process.” Id., Ex. C, ECF No. 4-3. As to Plaintiff’s request for a hearing before the EEOC, the EEOC stated that “[h]earings are not available at the appellate level” but noted that the “issues [Plaintiff] raise[d] in [her] Petition for [E]nforcement can best be raised before the administrative judge (AJ).” Id. On January 12, 2015, Plaintiff received a notice that the EEOC had assigned an administrative law judge to adjudicate the 2007 Complaint. Compl. ¶ 100.
2. The 2010 Complaint
On June 28, 2010, Plaintiff filed a second administrative complaint with HUD, alleging that the agency had retaliated against her in violation of Title VII for engaging in protected EEO
On November 21, 2012, in the same order that addressed the 2007 Complaint, the EEOC affirmed HUD’s dismissal of Plaintiff’s 2010 Complaint. Compl. ¶¶ 70, 72; Harrigan, 2012 WL 5995750, at *5. The EEOC described the 2010 Complaint as having alleged that HUD discriminated against Plaintiff for making FOIA requests—a characterization that Plaintiff contests. Harrigan, 2012 WL 5995750 at *3; Compl. ¶ 73. In affirming HUD’s dismissal, the EEOC explained that it “has held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA requests under the appropriate FOIA regulations.” Harrigan, 2012 WL 5995750, at *5 (citation omitted). The EEOC further held that “FOIA requests are not classified as participation in EEO activity or opposition to discrimination” and, therefore, for that additional reason, HUD’s dismissal of Plaintiff’s 2010 Complaint was proper. Id. (citing EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003, at 8-H.B-C (May 20, 1998)).
3. The 2011 Complaint
While Plaintiff’s appeal of HUD’s dismissals of the 2007 and 2010 Complaints was pending before the EEOC, Plaintiff filed a third complaint against HUD on June 13, 2011, alleging retaliation in violation of Title VII. Compl. ¶ 69. After the EEOC remanded her 2007 Complaint to HUD for further investigation, Plaintiff amended the 2007 Complaint “to include the issues and claims in her then-pending 2011 Complaint.” Compl. ¶ 77. Thus, according to Plaintiff, after that amendment, her 2011 Complaint “ceased to exist as an independent complaint.” Id. ¶ 78.
On January 16, 2015, the EEOC reversed HUD’s dismissal of the 2011 Complaint (the “January 2015 Order“). Mot. to Dismiss, Ex. D at 3. The EEOC concluded that “the instant formal complaint is not identical” to either the 2007 or 2010 Complaints. Id. at 4. It explained that the allegations in the 2011 Complaint were “arguably similar” to the earlier complaints, but the new complaint “concerns a different time frame and appears to allege that Complainant is subject to ongoing harassment.” Id. The EEOC remanded the 2011 Complaint to HUD with some limitations. First, the EEOC noted that any allegations in the 2011 Complaint asserting the improper processing of FOIA requests were not properly part of the EEO process. Id. at 5 n.1. Second, it stated that any allegations claiming “dissatisfaction” with the prior complaints “must be raised within the underlying complaint, and not as a separate complaint.” Id. at 5.
B. Procedural History
Plaintiff filed her “Complaint for Mandamus, Declaratory and Injunctive Relief” in this court on April 8, 2015. Compl. at 1. Her Complaint advances three “claims.” Id. at 26-30.
Count One, labeled “Unlawful Dismissal of the 2010 Complaint for Retaliation,” is predicated on the
Count Two, labeled “Unlawful Failure to Comply With Mandatory Regulation,” is premised on the
Count Three, labeled “Unlawful Dismissal of the Former 20112 Complaint for Retaliation,” relies on the
Defendants raise a host of reasons why the court should dismiss Plaintiff’s claims. First, Defendants argue that the court lacks subject matter jurisdiction to review any of the counts. Mot. to Dismiss at 9-11. Because Title VII is the exclusive mechanism for asserting discrimination claims against federal employers, Defendants contend, the
Defendants have moved to dismiss Plaintiff’s Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Although Plaintiff is a lawyer with litigation experience, Compl. ¶ 24, because she is proceeding pro se in this matter, the court reviews her Complaint under “less stringent standards” than if she were represented by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation marks omitted). See Koch v. White, 35 F. Supp. 3d 37, 39-40 (D.D.C. 2014) (reviewing pleading of pro se litigant under less stringent standards even though he was a lawyer).
A. Motion to Dismiss under Rule 12(b)(1)
On a motion to dismiss brought under
In evaluating a
B. Motion to Dismiss under Rule 12(b)(6)
To survive a motion to dismiss under
Similar to a court’s review of a
IV. DISCUSSION
Because standing is a “‘threshold jurisdictional question,’” the court must address it first. Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012) (quoting Byrd v. EPA, 174 F.3d 239, 243 (D.C. Cir. 1999)). An essential element of standing is that the plaintiff must have suffered an “injury-in-fact.” Lujan, 504 U.S. at 560. An injury-in-fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. (citation and internal quotation marks omitted). Moreover, where, as here, a plaintiff seeks prospective declaratory or injunctive relief, allegations of past harms are insufficient. Id. at 564 (citation omitted). Rather, when such relief is sought, a plaintiff must show she “is suffering an ongoing injury or faces an immediate threat of future injury.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011).
Plaintiff must establish standing for each of her claims. See DaimlerChrysler, 547 U.S. at 335. Because Defendants have expressly sought dismissal for lack of standing as to Counts Two and Three, the court addresses those arguments first. The court considers Plaintiff’s standing as to Count One sua sponte and will discuss it last.
The court agrees with Defendants that, as to Count Two, Plaintiff has failed to allege a cognizable injury-in-fact sufficient to establish standing. Under Count Two, Plaintiff alleges that she “is injured by the EEOC’s failure to comply with its regulation on the processing of her petition to enforce.” Compl. ¶ 117. But the nature of Plaintiff’s claimed injury is neither concrete nor particularized. See Pl.’s Revised Opp’n to Defs.’ Mot. to Dismiss, ECF No. 11 [hereinafter Pl.’s Opp’n], at 28 (“A ruling on the plaintiff’s July 2013 Petition for Enforcement would resolve the plaintiff’s 2011 Complaint.“). In its November 2012 Order, the EEOC found that “the record is insufficient to allow a determination of the merits of” Plaintiff’s 2007 Complaint and remanded the “matter for a supplemental investigation.” Harrigan, 2012 WL 5995750, at *5-6. HUD completed the ordered supplemental investigation, albeit belatedly, eleven months later. Compare id. at *6 (ordering completion within 120 days) with Mot. to Dismiss, Ex. A (notification of completion of supplemental investigation dated October 23, 2013). Plaintiff then elected to participate in a hearing at which the supplemental investigation’s findings would be considered. Mot. to Dismiss, Ex. B. Thus, Plaintiff finds herself today exactly where an order from this court requiring the EEOC to enforce the November 2012 Order would put her—with a completed supplemental investigation and an opportunity to have her discrimination claims adjudicated at a hearing.
To the extent that Plaintiff contends that the EEOC’s non-consideration of her Petition for Enforcement denied her a default judgment on her 2007 Complaint, see Compl. ¶ 121(b), such claimed injury is entirely speculative. Plaintiff does not allege that the EEOC’s internal policies required the agency to enter a default judgment on her 2007 Complaint as a result of HUD’s delay in completing the supplemental investigation. See id. ¶¶ 85-86 (alleging only that default “was an
B. Count Three
For similar reasons, the court must dismiss Count Three—which challenges the EEOC’s January 2015 Order—for lack of standing. The January 2015 Order vacated HUD’s dismissal of the 2011 Complaint and remanded the complaint to the agency for further proceedings. Mot. to Dismiss, Ex. D at 5 n.1. As to that claim, Plaintiff’s allegations are narrow. She contends that, pursuant to
Plaintiff, however, mischaracterizes the effect of the January 2015 Order. The EEOC did not, as Plaintiff claims, “dismiss” those aspects of her 2011 Complaint expressing dissatisfaction with how her prior complaints were processed. Rather, the EEOC ruled, in a closing footnote, that “such dissatisfaction [with earlier complaint processing] must be raised within the underlying
Plaintiff also alleges that “[s]ince all of the ‘matters’ in the Former 2011 Complaint ‘can be construed as dissatisfaction’ with the processing of the Former 2007 Complaint, the footnote [in the January 2015 Order] requires the dismissal of the Former 2011 Complaint and the dismissal of all claims for retaliation.” Compl. ¶ 102. Plaintiff seems to be predicting that, on remand, HUD will treat her 2011 Complaint as premised in its entirety on “dissatisfaction” with prior complaint processing and thus lead to a dismissal by HUD. In her Opposition brief, Plaintiff asserts that her “knowledge that HUD will ‘dispose of her 2011 Complaint’ is not speculative,” but is based on eight years of experience with HUD’s EEO office and the fact that HUD “has never found that a HUD employee was the victim of discrimination or retaliation.” Pl.’s Opp’n at 28.
Plaintiff cannot, however, establish standing based on the mere supposition that HUD will rule against her on remand. See United Transp. Union, 891 F.2d at 912. HUD might rule against her on remand or it might not—that determination cannot be made at this time. And even if HUD were to rule against her, it might do so, for example, because it construes her 2011 Complaint as advancing only dissatisfaction claims, or for some other reason altogether. What Plaintiff speculates might transpire in the future does not confer standing on her in the present. Thus, as with Count Two, the court must dismiss Count Three for lack of standing.
Unlike Counts Two and Three, Defendants have not argued that Plaintiff lacks standing to bring Count One. Nevertheless, where there is doubt about a party’s constitutional standing, the court must resolve it sua sponte. See Ege v. Dep’t of Homeland Sec., 784 F.3d 791, 794 (D.C. Cir. 2015); Lee’s Summit, Mo. v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000). Here, the court concludes that Plaintiff also lacks standing as to Count One.
Count One concerns the 2010 Complaint, which alleged that HUD “subjected [Plaintiff] to discrimination based on reprisal for prior protected EEO activity,” namely, her submission of various FOIA requests. Harrigan, 2012 WL 5995750, at *3. The EEOC affirmed dismissal of that complaint on the ground that (1) it “does not have jurisdiction over the processing of FOIA requests,” and (2) under the EEOC Compliance Manual, “FOIA requests are not classified as participation in EEO activity or opposition to discrimination.” Id. at *5. Plaintiff asks the court first, for a “declaration that the EEOC did not [have] the authority to issue guidance that requires dismissal of complaints that mention compliance with FOIA,” and second, for “an order reinstating plaintiff’s 2010 Complaint.” Compl. at 30, VI.C & VI.D.
The court first addresses Plaintiff’s request for a declaration invalidating the EEOC policy that caused the EEOC to affirm the dismissal of her 2010 Complaint. For purposes of standing, when a plaintiff asks for such prospective relief, she must demonstrate that she is “‘realistically threatened by a repetition of h[er] experience.’” Haase v. Sessions, 835 F.2d 902, 910-11 (D.C. Cir. 1987) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)); see also Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 91 (D.D.C. 2013) (stating that the Lyons standard applies “[w]hen a plaintiff seeks injunctive or declaratory relief specifically for the purpose of challenging an alleged policy or practice of a government agency“); Citizens for Responsibility & Ethics v. Dep’t of Homeland Sec., 527 F. Supp. 2d 101, 105 (D.D.C. 2007) (applying Lyons “[w]hen a party seeks prospective relief, such as a declaratory order invalidating an agency policy“). To allege a realistic threat of repetition, a plaintiff must put forth “more than a nebulous assertion of the existence of a ‘policy.’” Haase, 835 F.2d at 911. The plaintiff also must show that she is “likely to be subject to the policy again.” Id. Moreover, the threat of repetition must be “sufficiently ‘real and immediate,’” or stated differently, it must be “realistic[ ].” Id. (quoting Golden v. Zwickler, 394 U.S. 103, 109 (1969), and Lyons, 461 U.S. at 109).
Here, Plaintiff has failed to make any factual averment that she is likely to be subject to the challenged EEOC policy again. For instance, she has not alleged that she has a pending administrative complaint before the EEOC or that she intends to file another complaint that would implicate the policy she challenges in this case. Indeed, it seems highly improbable that Plaintiff could even make such an allegation, as she is no longer an employee at HUD. See Compl. ¶ 24; see also Doe v. D.C., 706 F. Supp. 2d 128, 133 (D.D.C. 2010) (stating that “there can be no credible threat that the alleged harm in question . . . will again befall [the plaintiff],” and dismissing on standing grounds a challenge to a policy that affected individuals under the age of 18 only, where “[a]t the time this lawsuit was filed, [the plaintiff] was already 18 years old“). Having failed to allege a realistic threat that she will be injured again by the challenged EEOC policy, the court concludes that Plaintiff lacks standing to obtain the declaratory relief she seeks in Count One.
As to Plaintiff’s other request for relief under Count One—that the court order the reinstatement of her 2010 Complaint—even if Plaintiff has standing to pursue such limited relief, she has failed to state a claim upon which that relief can be granted for two reasons. First, Plaintiff cannot bring a claim against the EEOC challenging its processing of an administrative complaint. And, second, the
Furthermore, judicial review under the
V. CONCLUSION
For the foregoing reasons, the court grants Defendants’ Motion to Dismiss. A separate Order accompanies this Memorandum.
Dated: February 12, 2016
Amit P. Mehta
United States District Judge