UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __ ) STEVEN H. HALL, ) ) Plaintiff, ) v. ) ) DEPARTMENT OF COMMERCE, et. al.,) Civil Action No. 16-1619 (EGS) ) Defendants. ) )
MEMORANDUM OPINON AND ORDER
Plaintiff Steven Hall (“Mr. Hall”), proceeding pro se,
brings suit against the United States Patent and Trade Office
(“USPTO”) and USPTO Employee Relations Specialist William House
(collectively, “defendants”) pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;
the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C.
§ 701, et. seq.; and the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346. He alleges that the defendants discriminated
against him on the basis of his race and disability by allegedly
withdrawing a tentative job offer in November 2014.
Before the Court are Mr. Hall’s objections to Magistrate
Judge G. Michael Harvey’s Report and Recommendation (“R&R”),
which recommends that the Court grant the defendants’ motion to
dismiss because Mr. Hall failed to exhaust his administrative
remedies and failed to timely appeal the denial of his FTCA
1 claim. See R&R, ECF No. 19 (issued August 22, 2017). Upon
consideration of the R&R, Mr. Hall’s objections, the defendants’
response to those objections, the defendants’ motion to dismiss,
the responses and replies thereto, and the relevant law, this
Court ADOPTS Magistrate Judge Harvey’s R&R and GRANTS the
defendants’ motion to dismiss.
I. Background
Magistrate Judge Harvey pieced together a complete history
of the facts in this case from a variety of sources, including
“a substantial number of administrative proceedings initiated by
the Plaintiff, in addition to two other federal court actions he
brought in this district.” R&R, ECF No. 19 at 2. Throughout the
background section, Magistrate Judge Harvey cited and relied on
several documents not attached to the amended, operative
complaint. See id. at 2-10. However, such reliance was proper as
the documents were either “incorporated by reference in the
complaint, or documents upon which the plaintiff's complaint
necessarily relies . . . .” Ward v. D.C. Dep’t of Youth Rehab.
Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal
citations and quotations omitted). Magistrate Judge Harvey also
properly took judicial notice of certain administrative
proceedings that Mr. Hall had attached as exhibits to his
original complaint, but failed to re-attach to the amended,
operative complaint. R&R, ECF No. 19 at 12; see Vasser v.
2 McDonald, 228 F. Supp. 3d 1, 7-8, 9-10 (D.D.C. 2016)(taking
judicial notice of administrative orders and administrative
complaints not attached to the complaint: “[i]f courts could not
take judicial notice of such public documents, plaintiffs who
obviously had not complied with the administrative-exhaustion
process could survive motions to dismiss purely by failing to
attach their administrative complaint.”).
To briefly summarize, Mr. Hall worked at the Department of
Homeland Security (“DHS”)—which is not a party to this suit—
until he was terminated in November 2013. R&R, ECF No. 19 at 5.
He received a tentative job offer from the USPTO in November
2014. Id. On November 13, 2014, the USPTO rescinded Mr. Hall’s
job offer upon learning that he had previously been terminated
by DHS. Id. at 6. Allegedly on advice from an unnamed Department
of Commerce employee, Pl.’s Opp’n, ECF No. 16 at 3, Mr. Hall
challenged the USPTO’s withdrawal of his offer by filing an FTCA
claim in December 2014. R&R, ECF No. 19 at 7. His FTCA claim was
denied on June 16, 2015. Id. On June 24, 2015, Mr. Hall
initiated contact with the USPTO’s Equal Employment Opportunity
(“EEO”) Office, alleging that the USPTO’s rescission was
unlawfully motivated by his race and disability. Id. at 8. On
August 5, 2016, Mr. Hall filed the instant action. Mr. Hall does
not object to these facts and confirms the operative dates. See
Pl.’s Objection, ECF No. 20 at 7, 11.
3 Mr. Hall objects to one fact included in the R&R and one
fact not included in the R&R. First, he objects to the fact that
Magistrate Judge Harvey mentioned that Mr. Hall had been accused
of sexual harassment at DHS, as it “shows favoritism for USPTO .
. . implying and insinuating that [the defendants] made the
correct decision to rescind [his] tentative job offer due to
alleged misconduct.” Id. at 2. Magistrate Judge Harvey included
this fact “only for the purpose of providing factual context”;
it did not “constitute the basis of any recommendation.” R&R,
ECF No. 19 at 2. That said, the Court will not consider this
irrelevant fact. Indeed, given the defendants’ arguments in
their motion to dismiss, the only facts relevant “are those
arising from Plaintiff’s engagement with the administrative
process.” Id.
Second, Mr. Hall objects that Magistrate Judge Harvey did
not include the fact that he had filed “several reconsideration
requests and appeals” and “submitted two other District Court
cases” regarding DHS’ termination decision. Id. at 3. While
Magistrate Judge Harvey did in fact discuss the multitude of
litigation that Mr. Hall has been involved in, see R&R, ECF No.
19 at 8-9, these disputes are not relevant to the instant case
against USPTO. Mr. Hall himself acknowledges that these other
cases are “closed and not related to this case.” Pl.’s
Objections, ECF No. 20 at 6.
4 Having found no error in the factual background and
overruling Mr. Hall’s objections otherwise, the Court adopts and
incorporates Magistrate Judge Harvey’s thorough recitation of
the facts in the R&R. See R&R, ECF No. 19 at 2-10.
II. Standard of Review: Objections to a Magistrate Judge’s Report and Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), once a
magistrate judge has entered a recommended disposition, a party
may file specific written objections. The district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to,” and “may accept, reject or
modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).
Proper objections “shall specifically identify the portions of
the proposed findings and recommendations to which objection is
made and the basis for objection.” Local R. Civ. P. 72.3(b). “As
numerous courts have held, objections which merely rehash an
argument presented to and considered by the magistrate judge are
not ‘properly objected to’ and are therefore not entitled to de
novo review.” Shurtleff v. U.S. Envtl. Prot. Agency, 991 F.
Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, Case No.
08–2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)
(collecting cases)). Likewise, the Court need not consider
cursory objections made only in a footnote. Hutchins v. District
of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); see also
5 Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir.
2009) (Williams, J. concurring) (internal citations omitted).
III. Analysis
In his amended complaint, Mr. Hall alleges that the
defendants discriminated 1 against him by rescinding his tentative
employment offer. Am. Compl., ECF No. 11 ¶ 3. The defendants
allegedly rescinded his job offer upon learning that DHS had
terminated him. Id. According to Mr. Hall, this decision was
improper because the defendants allegedly knew that DHS had
unlawfully terminated Mr. Hall due to his medical accommodation.
Id. ¶ 4. Defendants filed a motion to dismiss Mr. Hall’s
complaint, arguing that: (1) Mr. Hall had sued improper parties,
(2) Mr. Hall failed to administratively exhaust his
discrimination claims, and (3) Mr. Hall’s FTCA claim was time-
barred. See Defs.’ Mot., ECF No. 15.
Magistrate Judge Harvey recommended that the Court grant
the defendants’ motion to dismiss because: (1) Mr. Hall did not
sue the proper parties, to the extent that he is attempting to
sue individual employees, see R&R, ECF No. 19 at 13; (2) Mr.
1 Mr. Hall does not explicitly state the basis upon which the defendants allegedly discriminated against him, beyond stating that the defendants are liable for “employment discrimination” and “disability discrimination. See Am. Compl., ECF No. 11. Because Mr. Hall makes many references to his race, Magistrate Judge Harvey properly assumed that Mr. Hall alleged race-based employment discrimination. See R&R, ECF No. 19 at 14. Mr. Hall did not object. See generally Pl.’s Objection, ECF No. 20.
6 Hall failed to timely exhaust his administrative remedies as he
must to bring a Title VII claim or a Rehabilitation Act claim,
see id. at 14-22; and (3) Mr. Hall failed to timely appeal his
FTCA claim, see id. at 22-24.
A. Objection One: Mr. Hall Did Not Sue the Proper Parties
the defendants’ motion to dismiss certain individual employees.
See R&R, ECF No. 19 at 13. Should Mr. Hall be permitted to
proceed, Magistrate Judge Harvey recommended that the Court
grant Mr. Hall leave to amend his complaint to sue the proper
parties: the United States and the head of the USPTO. See id.
While styling his response as an objection, Mr. Hall agrees that
he was attempting to sue “the United States and the USPTO
Director,” who “are liable for discriminatory actions against
the Plaintiff.” Pl.’s Objections, ECF No. 19 at 7. He confirmed
that his “intent is to properly sue the agency head (USPTO) and
not the employees.” Pl.’s Opp’n, ECF No. 16 at 6. The Court
therefore ADOPTS this recommendation.
B. Objection Two: Mr. Hall Did Not Timely Exhaust His Administrative Remedies
the defendants’ motion to dismiss Mr. Hall’s discrimination
claims pursuant to Title VII and the Rehabilitation Act for
failure to timely exhaust administrative remedies. R&R, ECF No.
7 19 at 14. “An employee of the federal government who believes
that she has been the subject of unlawful discrimination must
‘initiate contact’ with an EEO Counselor in her agency ‘within
45 days of the date of the matter alleged to be
discriminatory.’” Steele v. Schafer, 535 F.3d 689, 693 (D.C.
Cir. 2008) (quoting 29 C.F.R. § 1614.105(a)(1)). This
requirement applies to claims arising under both Title VII and
the Rehabilitation Act. See Bowden v. United States, 106 F.3d
433, 437 (D.C. Cir. 1997) (“Complainants must timely exhaust
these administrative remedies before bringing their [Title VII]
claims to court.”); Spinelli v. Goss, 446 F.3d 159, 162 (D.C.
Cir. 2006) (dismissing the plaintiff’s Rehabilitation Act claim
for failure to exhaust administrative remedies). “A court may
not consider a discrimination claim that has not been exhausted
in this manner absent a basis for equitable tolling.” Steele,
535 F.3d at 693.
Magistrate Judge Harvey found that Mr. Hall did not
initiate contact with the agency EEO within the 45-day deadline.
R&R, ECF No. 19 at 15. Indeed, the USPTO’s alleged
discriminatory action—rescinding his job offer—occurred on
November 13, 2014. Am. Compl., ECF No. 11 at 24. It is
undisputed that Mr. Hall did not contact the USPTO EEO office
until June 24, 2015–over 200 days later. Am. Compl., ECF No. 11
at 8; Pl.’s Objection, ECF No. 20 at 11. Rather than disputing
8 this fact, Mr. Hall argues that his failure to timely exhaust
should be excused under the doctrine of equitable estoppel or
equitable tolling. See Pl.’s Objection, ECF No. 20. Mr. Hall
argues that this relief is warranted because USPTO “manipulated
him,” id. at 8, when an unnamed Department of Commerce employee
told him over the phone that his “concerns” seemed to be
“related to an FTCA claim,” Pl.’s Opp’n, ECF No. 16 at 3. This
erroneous advice “prevented him from filing a [timely] EEO
complaint.” Pl.’s Objection, ECF No. 20 at 8. Mr. Hall’s
arguments largely rehash the arguments he made before Magistrate
Judge Harvey in opposing the defendants’ motion to dismiss. See
Pl.’s Opp’n, ECF No. 16 at 7 (“USPTO misled and took advantage
of Plaintiff, thus prevented Plaintiff from administratively
exhausting his remedies.”).
The Court agrees that Mr. Hall’s failure to initiate
contact with the USPTO’s EEO office within 45 days cannot be
excused. True, this exhaustion requirement is subject to
equitable estoppel and equitable tolling, Currier v. Radio Free
Europe, 159 F.3d 1363, 1367 (D.C. Cir. 1998), but Mr. Hall has
not met his burden to “plead[] . . . equitable reasons to excuse
his failure to comply with the 45–day requirement,” O'Neal v.
England, No. 03–5261, 2004 WL 758965, at *1 (D.C. Cir. Apr. 7,
2004) (citing Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir.
1982)).
9 1. Equitable Estoppel
Equitable estoppel “prevents a defendant from asserting
untimeliness where the defendant has taken active steps to
prevent the plaintiff from litigating in time.” Currier, 159
F.3d at 1367 (citations omitted). Proving equitable estoppel is
warranted is “not surprisingly[,] a ‘high’ ‘hurdle’ to
clear. Indeed, only in ‘extraordinary and carefully
circumscribed instances’ will the Court exercise its equitable
power . . . .” White v. Geithner, 602 F. Supp. 2d 35, 37-38
(D.D.C. 2009) (quoting Smith–Haynie v. District of Columbia, 155
F.3d 575, 579–80 (D.C. Cir. 1998)). The Supreme Court has
“powerful[ly] caution[ed] against [the] application of the
doctrine of equitable estoppel to the government as normally
barring its use to undercut statutory exhaustion
requirements.” Rann v. Chao, 346 F.3d 192, 197 (D.C. Cir.
2003) (citing Office of Personnel Mgmt. v. Richmond, 496 U.S.
414, 419–24 (1990); Deaf Smith Cty. Grain Processors, Inc. v.
Glickman, 162 F.3d 1206, 1214 (D.C. Cir. 1998)). A plaintiff
must therefore include proof of “each of the traditional
elements” of equitable estoppel: “[1] false representation, [2]
a purpose to invite action by the party to whom the
representation was made, [3] ignorance of the true facts by that
party, and [4] reliance, as well as ... [5] a showing of an
injustice ... and [6] lack of undue damage to the public
10 interest.” ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111
(D.C. Cir. 1988)(internal quotations and citations
omitted)(explaining that application of estoppel “to the
government must be rigid and sparing”).
Courts within this Circuit have routinely found that a
government employee’s erroneous advice cannot alone give rise to
an equitable estoppel claim. See Rann v. Chao, 346 F.3d at 197
(declining to apply equitable estoppel when a government
employee erroneously told the plaintiff that he could opt out of
the administrative process); Deaf Smith Cty., 162 F.3d at 1214
(declining to allow the plaintiff to “avoid the exhaustion
requirement on the ground that [government] officials
erroneously advised [the plaintiff] of the futility of pursuing
his administrative remedies”); Rahimi v. Weinstein, 271 F. Supp.
3d 98, 103-04 (D.D.C. 2017) (declining to apply equitable
estoppel when a government employee allegedly gave potentially
erroneous advice to the plaintiff); Int’l Union v. Clark, Case
No. 02-1484, 2006 WL 2598046, at *12 (“[the] provision of
erroneous information, without more, cannot give rise to an
equitable estoppel claim against the government”) (citing
Richmond, 496 U.S. at 415-16)).
Moreover, accepting as true Mr. Hall’s allegation that a
government employee told him that his “concerns were related to
an FTCA claim,” Pl.’s Opp’n, ECF No. 16 at 3, he has not pled a
11 necessary element of equitable estoppel: that he “had ignorance
of the true facts,” R&R, ECF No. 20 at 16 (quoting ATC
Petroleum, 860 F.2d at 1111). Indeed, Mr. Hall knew that he had
a discrimination claim. Just days after the USPTO rescinded his
tentative job offer, Mr. Hall argued that he had been the victim
of discrimination. Am. Compl., ECF No. 11 at 12 (stating, in a
November 20, 2014 email to USPTO employee Mr. House, “I had
assumed in America we are given a second chance, but male
African-Americans like myself are not given a second chance in
[sic] USPTO.”). Therefore, Mr. Hall “had all the facts
necessary” to file an EEO complaint; he merely lacked knowledge
of the “legal theory” on which his complaint would succeed.
Daiichi Sankyo Co., Ltd. V. Rea, 12 F. Supp. 3d 8, 20 (D.D.C.
2013) (quoting Venture Coal Sales Co. v. United States, 370 F.3d
1102, 1107 (Fed. Cir. 2004)). To that end, the 45-day exhaustion
deadline may not be equitably estopped because Mr. Hall
“relie[d] on the government officer's or agency's interpretation
of [his] legal rights.” Id. at 19.
To the extent that Mr. Hall objects because the “USPTO did
not notify the Plaintiff that his opportunity to file his EEO
complaint would expire,” Pl.’s Objection, ECF No. 20 at 9, he
fails to establish a different element of equitable estoppel.
See ATC Petroleum, 860 F.2d at 1111. An agency’s mere failure to
provide “information about the EEO process reflect[s] passive
12 rather than affirmative conduct” and is not enough to warrant
invoking equitable estoppel. Klugel v. Small, 519 F. Supp. 2d
66, 73 (D.D.C. 2007). Because Mr. Hall has not met his burden to
plead that equitable estoppel is warranted, the Court declines
to apply it in order to excuse his failure to timely exhaust
administrative remedies.
2. Tolling
Mr. Hall also argues, again rehashing his original
arguments before Magistrate Judge Harvey, that his failure to
exhaust his administrative remedies should be excused under 29
C.F.R. § 1614.105(a)(2) 2 and the doctrine of equitable tolling.
The doctrine of equitable tolling “applies most commonly when
the plaintiff ‘despite all due diligence ... is unable to obtain
vital information bearing on the existence of his claim.’” Chung
v. Dep’t of Justice, 333 F.3d 273, 278 (D.C. Cir. 2003) (quoting
Currier, 159 F.3d at 1367). The Court is persuaded that this
doctrine is also not available to Mr. Hall because “there is no
question that he ‘had a reasonable suspicion that he had been a
2 “The agency or the Commission shall extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.”
13 victim of discrimination’ in November 2014.” R&R, ECF No. 20 at
18 (quoting Hayes v. Chao, 592 F. Supp. 2d 51, 55 (D.D.C. 2008).
In Hayes v. Chao, the court declined to toll the pro se
plaintiff’s missed 45-day deadline to exhaust administrative
remedies because the plaintiff had “considerable experience with
employment claims” and had a “reasonable suspicion of
discrimination.” 592 F. Supp. 2d at 57. So here too.
As discussed above, Mr. Hall had all of the necessary
information bearing on his claim. Specifically, he knew that he
intended to bring a discrimination claim. He stated in a
November 20, 2014 email that “male African-Americans like myself
are not given a second chance” at the USPTO. Am. Compl., ECF No.
11 at 12. Additionally, Mr. Hall complained that the USPTO
engaged in employment discrimination when he submitted his
November 26, 2014 FTCA claim. See Compl., ECF No. 1-2 at 9-12.
Moreover, Mr. Hall had experience with discrimination
litigation. He admitted that he had “engaged in protected
activity with agencies EEO and EEOC and submitted two other
cases [sic] District Court cases” involving instances of
employment discrimination unrelated to this action. Pl.’s
Objection, ECF No. 20 at 3. 3
3 For the same reasons, his failure to initiate EEO proceedings cannot be extended under 29 C.F.R. § 1614.105(a)(2).
14 The Court therefore ADOPTS Magistrate Judge Harvey’s
recommendation to grant defendants’ motion to dismiss as to Mr.
Hall’s discrimination claims.
C. Objection Three: Mr. Hall Did Not Timely Appeal the Defendants’ FTCA Determination
Mr. Hall did not explicitly bring an FTCA claim in his
Amended Complaint. See generally Am. Compl., ECF No. 11.
However, assuming Mr. Hall had intended to bring suit under the
FTCA, Magistrate Judge Harvey recommended that the Court grant
the defendants’ motion to dismiss because Mr. Hall failed to
timely appeal the USPTO’s denial of his FTCA claim. R&R, ECF No.
19 at 22. “A tort claim against the United States shall be
forever barred unless . . . action is begun within six months
after the date of mailing . . . of notice of final denial of the
claim by the agency to which it was presented.” 28 U.S.C. §
2401(b). “A claim not so presented and filed is forever barred.”
Mittleman v. United States, 104 F.3d 410, 413 (D.C. Cir. 1997).
It is undisputed that Mr. Hall did not appeal the FTCA
determination within this six-month window. On June 16, 2015,
the USPTO denied Mr. Hall’s FTCA claim. Pl.’s Objection, ECF No.
20 at 11; Am. Compl., ECF No. 11 at 10 (FTCA denial letter). Mr.
Hall did not file his claim until August 5, 2016—missing the
deadline by almost eight months. See Compl., ECF No. 1.
15 Mr. Hall does not contest these findings. Instead, he seems
to argue that his failure to appeal should be excused because
the USPTO did not timely resolve his FTCA claim. Pl.’s
Objection, ECF No. 20 at 11-12. Assuming the USPTO did delay in
processing his claim, Mr. Hall’s objection is irrelevant; the
USPTO’s alleged delay does not eliminate Mr. Hall’s deadline.
Regardless of any alleged USPTO delay, Mr. Hall was obligated to
appeal its decision within six months. 28 U.S.C. § 2401(b).
Mr. Hall also argues that his failure to timely appeal the
FTCA decision should be excused because his June 2015 EEO
complaint tolls the FTCA appeal deadline. Pl.’s Objection, ECF
No. 20 at 11-12. Not so. As Mr. Hall rightly notes, the only
mechanism for appealing the USPTO’s FTCA denial was “the federal
court system.” Id. at 11. Mr. Hall may not appeal the FTCA
decision by filing an untimely EEO claim.
D. Other Objections
Mr. Hall makes several other objections, all of which are
unrelated to Magistrate Judge Harvey’s recommendations. See
Pl.’s Objection, ECF No. 20 at 13-15.
First, Mr. Hall argues that Magistrate Judge Harvey did not
“acknowledge” his motion for default judgment. Id. at 13. This
is irrelevant and moot; the Court denied Mr. Hall’s motion for
default judgment on November 14, 2016. See Order, ECF No. 6.
16 Mr. Hall also makes five other objections, all related to
disputes with agencies other than the USPTO. Pl.’s Objection,
ECF No. 20 at 13-15. These objections are irrelevant to the
instant case against USPTO. See Am. Compl., ECF No. 11.
IV. Conclusion and Order
For the aforementioned reasons, Mr. Hall’s objections to
Magistrate Judge Harvey’s R&R are overruled and Magistrate Judge
Harvey’s R&R is ADOPTED in its entirety. Accordingly, the Court
GRANTS the defendants’ motion to dismiss Mr. Hall’s amended
complaint and DENIES Mr. Hall’s “motion not to dismiss
complaint.” This is a final, appealable Order.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge April 30, 2018