Mаria VELIKONJA, Appellant v. Alberto GONZALES, in his official capacity as Attorney General, Appellee.
No. 05-5030.
United States Court of Aрpeals, District of Columbia Circuit.
Argued Sept. 12, 2006. Decided Oct. 17, 2006.
466 F.3d 122
The fact that FERC accepted SPP‘s compliance filing after the Petitioners sought judicial review of the 2004 orders is insufficient, of itself, to cure the defect in the Petitioners’ request for judicial intervention. See Transmission Agency of N. Cal., No. 05-1400, slip op. at 1-2. “Standing is assessed at the time the action commences, i.e., in this case, at the time [Petitioners] sought relief from an Article III court.” Entergy Servs., Inc. v. FERC, 391 F.3d 1240, 1245 (D.C.Cir.2004) (internal quotation marks omitted); see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Because the orders from whiсh relief was sought were “conditional, subject to a further compliance filing,” the Petitioners lacked standing at the timе the action commenced. DTE Energy, 394 F.3d at 960. Although the Petitioners would have had standing to petition for review of the January 2005 order that accepted the SPP‘s further filing, and in so doing to challenge the 2004 interlocutory orders upon which that order was based, see Ciralsky v. CIA, 355 F.3d 611 (D.C.Cir.2004), they failed to file the necessary petition for review. Accordingly, the petitions must be dismissed for lack of jurisdiction.
Dismissed.
John F. Karl, Jr. argued the cause and filed the briefs for appellant.
Charles W. Scarborough, Attorney, U.S. Departmеnt of Justice, argued the cause for appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kеnneth L. Wainstein, U.S. Attorney, and Marleigh D. Dover, Attorney.
Before: TATEL and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the court filed PER CURIAM.
This case arises from a pаir of disciplinary investigations launched by the FBI‘s Office of Professional Responsibility (OPR) against former FBI employee Mariа Velikonja. The OPR investigated claims made by Velikonja‘s supervisor that she had repeatedly falsified arrival times on her time sheets. Ms. Velikonja brought suit alleging that the level of scrutiny to which she was subjected, the unusual delay of the procеedings, and the severity of the penalty imposed on her were all undertaken for either discriminatory or retaliatory reasons in violation of Title VII of the Civil Rights Act of 1964. Velikonja also alleged that the government violated the Privacy Aсt, the Due Process Clause, and the First Amendment. The district court held for the government on each issue. Velikonja v. Mueller, 315 F.Supp.2d 66 (D.D.C.2004); Velikonja v. Mueller, 362 F.Supp.2d 1 (D.D.C.2004); Velikonja v. Gonzalеs, No. 04-1001, slip op. (D.D.C. June 30, 2005).
We reverse the District Court‘s dismissal of Count I of Velikonja‘s first complaint. In Count I, Velikonja alleged that the second time the FBI referred her to the OPR it did so for discriminatory and retaliatory reasons. The government ar-
Count I of Velikonja‘s first complaint also alleges retaliation in violation of Title VII. The District Court‘s decision, however, was issued before Burlington Northern & Santa Fe Railway Co. v. White, — U.S. —, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). There, the Supreme Court held that a Title VII plaintiff need not allege an adverse employment action to state a claim for retaliation, but rather must show that the employer‘s actions are “harmful to the point that thеy could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 2409. Velikonja alleges—allegations that we must accept as true at this stage of the litigation, Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C.Cir.2006)—that she was subject to a lengthy investigаtion, that she was prevented from receiving promotions during the pendency of the investigation, and that “the FBI has plаced a cloud over [her] career, which effectively prevents her from obtaining other career-enhаncing assignments for which she is highly qualified.” 1st Am. Compl. ¶ 40. Because a reasonable jury could find that the prospect of such аn investigation could dissuade a reasonable employee from making or supporting a charge of discrimination, we reverse the dismissal of Velikonja‘s retaliation claim and remand for further consideration by the District Court.
In all other respects, we affirm for the reasons given in the District Court‘s thorough and well-reasoned opinions. Specifically, the District Court correctly granted summary judgment as to Counts II and III of Velikonja‘s first complaint. Velikonja failed to introduce еvidence showing that OPR resolves comparable investigations of male employees more quickly than it did hers or thаt the OPR‘s non-discriminatory explanations for the length of the investigation and the severity of the penalty were pretextual. Velikonja v. Mueller, 362 F.Supp.2d 1, 8-13 (D.D.C.2004). The District Court properly granted summary judgment on Velikonja‘s First Amendment retaliation claim, Count V of her first complaint, because Velikonja introduced no evidence establishing a causal link between her speech and the government‘s actions against her. Velikonja, 362 F.Supp.2d at 24. Moreover, even if there were such a link, Velikonja‘s claim to money damages would bе barred by the principle of sovereign immunity. Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C.Cir.1984). The District Court correctly granted summary judgment on Velikonja‘s Privаcy Act claim, Count VI of her first complaint. Id. at 13-23. Among other deficiencies, Velikonja failed to introduce evidence showing that any alleged violations of the Privacy Act were “intentional or willful.”
So ordered.