JULIO C. GUERRA v. DEPARTMENT OF VETERANS AFFAIRS, et al.

• Court: District Court, W.D. Washington
• Decided: February 4, 2026
• Docket: 2:25-cv-00693
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 JULIO C. GUERRA, CASE NO. C25-0693-JCC 10 Plaintiff, ORDER 11 v. 12 DEPARTMENT OF VETERANS AFFAIRS, et al., 13 Defendants. 14

15 This matter comes before the Court on the Department of Veterans Affairs (“VA”) and 16 the Secretary of Veterans Affairs’ (collectively the “VA Defendants”) partial motion to dismiss 17 (Dkt. No. 22). Having thoroughly considered the briefing and the relevant record, and for the 18 reasons described below, the Court GRANTS the VA Defendants’ motion (Dkt. No. 22), thereby 19 DISMISSING claims against them to the extent they either fail as a matter of law or are 20 unrelated to and/or predate Plaintiff’s VA termination, and sua sponte DISMISSES all claims 21 against the non-moving defendants in accordance with 28 USC § 1915(e)(2)(B). 22 I. BACKGROUND1 23 This case began as an appeal of Plaintiff’s VA employment termination to the Merit

24 1 The facts below come from the Amended Complaint (Dkt. No. 20), including documents 25 incorporated by reference into the complaint and/or properly subject to judicial notice (Dkt. Nos. 1, 1-2, 23-1, 23-2, 23-3, 23-4). See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 26

ORDER 1 Systems Protection Board (“MSPB”), which followed Plaintiff’s conviction in this court for 2 Felony-Theft of Public Funds. (See Dkt. Nos. 23-2 at 4, 8; see generally Dkt. No. 24.)2 3 Nevertheless, Plaintiff asserts the termination was pretextual and followed years of 4 discriminatory, retaliatory, and improper conduct by the VA, its Office of Inspector General 5 (“OIG”) and VA personnel. (See generally Dkt. No. 20 at 6–21.) Plaintiff alleges that he was 6 really fired for his race, national origin, and/or disability. (See Dkt. No. 23-3 at 15–16, 18–19.) 7 The MSPB’s administrative judge found otherwise and affirmed the dismissal, (see Dkt. No. 23- 8 2), as did the MSPB’s full Board, see Guerra v. Dep’t of Veterans Affairs, 2024 WL 4404379, 9 slip op. at 1 (M.S.P.B. 2024). Plaintiff then appealed in forma pauperis to the Court of Appeals 10 for the Federal Circuit, who transferred the matter here (as a mixed case). (See Dkt. Nos. 1 at 1– 11 3, 1-3 at 1–4.) 12 In an amended complaint, Plaintiff now asserts the following: Privacy Act and Family 13 and Medical Leave Act (“FMLA”) violations against the VA Defendants (Counts I, II, VII); Title 14 VII and Rehabilitation Act violations against the VA Defendants (Counts III, IV, VIII, IX); and 15 Bivens3 claims against individual defendants (OIG and VA personnel) (Counts V, VI). (Dkt. No. 16 20 at 21–28.) The allegations supporting these claims are largely based on conduct preceding 17 and/or unrelated to the allegedly discriminatory conduct associated with plaintiff’s termination. 18 (See id. at 6–21.) Thus, the VA Defendants move pursuant to Rules 12(b)(1) and 12(b)(6) to 19

20 741, 746 n. 6 (9th Cir. 2006) (taking judicial notice of court filings); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (incorporating documents referenced in a complaint). To be clear, the 21 Court does not take judicial notice of any factual findings made by other courts or facts reasonably subject to dispute contained in those documents. 22 2 Plaintiff was terminated in January 2023. See United States v. Guerra, Case No. 3:22-cr-05213- 23 BHS, Dkt. Nos. 8, 25 (W.D. Wash. 2022). That conviction resulted from Plaintiff’s admission (and guilty plea) to making false statements in support of the receipt of VA program benefits (not 24 directly related to his employment). Id., Dkt. Nos. 7 at 6–7, 14 at 1. 25 3 See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 26

ORDER 1 partially dismiss. (Dkt. No. 22.) They argue that counts I, II, and VII fail as a matter of law; 2 counts III, IV, VIII, and IX are unexhausted and time-barred to the extent they relate to conduct 3 preceding and unrelated to Plaintiff’s termination; and also suggest that counts V and VI fail as a 4 matter of law, thus subjecting them to sua sponte dismissal as to the individual non-moving 5 defendants in accordance with 28 U.S.C. § 1915(e)(2)(B). (See id. at 5–10.) 6 II. DISCUSSION 7 In general, the Civil Service Reform Act (“CSRA”) provides for MSPB review of 8 termination decisions. 5 U.S.C. § 7701 et seq.; see Elgin v. Dep’t of Treasury, 567 U.S. 1, 5 9 (2012). And when the employee attributes the decision, in whole or part, to unlawful 10 discrimination, the appeal presents a “mixed case.” 29 C.F.R. §§ 1614.302, 1614.302(a)(1), 11 1614.302(a)(2). In such instances, the employee has a right to de novo review of the MSPB 12 decision by the appropriate district court, rather than a more limited review by the Court of 13 Appeals for the Federal Circuit (for a non-mixed case). See 5 U.S.C. §§ 7702(a)(1)(B), 14 7703(b)(2). Nevertheless, even at this level, there are limits. 15 A. Legal Standard – Rules 12(b)(1) and 12(b)(6) 16 “Federal courts are courts of limited jurisdiction. They possess only that power 17 authorized by [the] Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 18 U.S. 375, 377 (1994) (internal citations omitted). Accordingly, a party may move pursuant to 19 Rule 12(b)(1) to dismiss a complaint for lack of subject matter jurisdiction at any time. Fed R. 20 Civ. P. 12(b)(1).4 Whereas Rule 12(b)(6) directs a court to dismiss a complaint, upon a 21 4 A party may seek dismissal for lack of jurisdiction “either on the face of the pleadings or by 22 presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the 23 court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). “In such 24 circumstances, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence 25 of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)). 26

ORDER 1 defendant’s motion, for failing to state a claim. Fed. R. Civ. P. 12(b)(6).5 Thus, to avoid 2 dismissal, a plaintiff must point to factual allegations that “state a claim to relief that ‘is plausible 3 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 4 550 U.S. 544, 570 (2007)). Said another way, the Court must be able to conclude that the movant 5 is entitled to judgment as a matter of law, even after accepting allegations as true and construing 6 them in the light most favorable to the non-moving party. Adams v. Johnson, 355 F.3d 1179, 7 1183 (9th Cir. 2004). However, conclusory allegations of law and unwarranted inferences will 8 not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 9 (9th Cir. 2007). Moreover, when a plaintiff is proceeding in forma pauperis, the court “shall” 10 dismiss the case “at any time” if it determines that the action is “frivolous” or “fails to state a 11 claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).6 12 B. Privacy Act and FMLA Claims (cts. 1, II, VII) 13 Plaintiff’s Privacy Act and FMLA claims all relate to the VA’s disclosure of Plaintiff’s 14 medical, disability, and personnel records to the OIG (in the course of its fraud investigation). 15 (See Dkt. No. 20 at 6–8, 12–14, 16–17). In moving to dismiss claims based on this conduct, the 16 VA Defendants point to the OIG’s statutory authority for obtaining just such disclosure. (See 17 Dkt. No. 22 at 5–6) (citing 5 U.S.C. § 406, 38 U.S.C. § 312). Thus, says the VA Defendants,

18 However, when the Court reviews a “facial” challenge to its exercise of jurisdiction, the Court 19 assumes the truth of all material facts in the complaint. See Warren, 328 F.3d at 1139. As the Ninth Circuit has recognized, where the CSRA preempts a plaintiff’s claim, the Court lacks 20 subject matter jurisdiction. Saul v. United States, 928 F.2d 829, 832 (9th Cir. 1991). Finally, the plaintiff bears the burden to prove that jurisdiction exists so as to survive a Rule 12(b)(1) motion 21 challenging the Court’s exercise of subject matter jurisdiction. Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001). 22 5 According to the rule, the Court assumes the truth of the complaint’s factual allegations and 23 credits all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). 24 6 When assessing a complaint under this provision, “a court is not bound, as it usually is when 25 making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). 26

ORDER 1 claims predicated on this disclosure fail as a matter of law. (Id.) Plaintiff, in response, points to 2 the generally circumscribed nature of permitted disclosure of medical and FMLA information. 3 (See Dkt. No. 24 at 4–5.) But this argument does not meaningfully rebut the OIG’s authority 4 here: to gather “all records, reports, audits, reviews, documents, papers, recommendations, or 5 other materials” in the course of its investigation. 5 U.S.C. § 406(a)(1)(A); see, e.g., Burlington 6 N. R. Co. v. Off. of Inspector Gen., R.R. Ret. Bd., 983 F.2d 631, 635 (5th Cir. 1993) (describing 7 the OIG’s broad investigative authority, whether that be through subpoenas or other means); 8 Truckers United For Safety v. Mead, 86 F. Supp. 2d 1, 9 (D.D.C. 2000) (same). Thus, Counts I, 9 II and VII fail as a matter of law, as the disclosure they complain of is permissible. 10 C. Title VII and Rehabilitation Act Claims Based on Conduct Preceding or Unrelated to Termination (cts. III, IV, VIII, IX) 11 In timely appealing his VA termination to the MSPB, Plaintiff alleged that it was 12 motivated by discriminatory animus and was retaliatory in nature. (See Dkt. No. 23-3 at 2–40.) 13 Claims resulting from such conduct were properly before the MSPB as a ‘mixed case.’ See 14 Crowe v. Wormuth, 74 F.4th 1011, 1024–25 (9th Cir. 2023). Thus, they are exhausted and can be 15 brought as stand-alone claim here. See Wine v. Merit Sys. Protec. Bd., 2025 WL 2841689, slip 16 op. at 6 (N.D. Cal. 2025) (describing appeals of MSPB mixed cases flow to the district court). 17 At issue, though, is that the vast majority of Plaintiff’s allegations in support of his Title 18 VII and Rehabilitation Act claims before this Court, (see Dkt. No. 20 at 9–21), seemingly lack a 19 connection to his termination. Thus, they were not considered by the MSPB. (See Dkt. No. 23-3 20 at 2–40.) To properly exhaust them, Plaintiff had to raise them through an EEO complaint, 21 before they could then be considered by this Court. See Crowe, 74 F.4th at 1024–25. And, absent 22 exhaustion, this Court lacks jurisdiction to consider such claims. Id. In response, Plaintiff 23 contends that, in fact, “EEO counseling was already underway” when his MSPB proceeding 24 commenced. (Dkt. No. 24 at 5–6.) But a review of the EEO documentation, which is properly 25 before the Court on a Rule 12(b)(1) motion, see Lacano Investments, LLC v. Balash, 765 F.3d 26

ORDER 1 1068, 1072 (9th Cir. 2014), suggests otherwise. It clearly indicates that the conduct which 2 Plaintiff brought to the EEO’s attention all related to his “suspension” and “termination.” (Dkt. 3 No. 26-3 at 2.) He asserted no claims unrelated to or preceding his termination (or at least no 4 such conduct). (See generally Dkt. Nos. 26-2, 26-3.) 5 Thus, claims raised here based on conduct unrelated to Plaintiff’s termination (and not 6 before the MSPB) have not been exhausted, stripping this Court of jurisdiction to consider such 7 matters. Moreover, the statute of limitations to exhaust such claims has long since run. See 29 8 C.F.R. § 1614.105 (providing a 45-day limitation period). Plaintiff argues for equitable tolling. 9 (See Dkt. No. 24 at 6.) But Plaintiff was put on notice in July 2023 at the latest (when the MSPB 10 notified him that it was affirming the ageny’s termination decision) that it could not consider 11 conduct unrelated to his termination. (See Dkt. No. 23-3 at 21) (explaining that conduct 12 “unrelated to the charge or removal decision” would not be considered by the MSPB). 13 Dismissal of such claims, if based on unrelated conduct, is proper and must be with 14 prejudice. 15 D. Bivens Claims (cts. V, VI) 16 Finally, because the Court has a sua sponte 28 U.S.C. § 1915(e)(2)(B) obligation to 17 dismiss in forma pauperis claims that fail as a matter of law, the VA defendants urge the Court 18 to also dismiss Plaintiff’s Bivens claims (against the individual non-moving defendants). (Dkt. 19 No. 22 at 8–10.) The VA Defendants contend the conduct at issue cannot trigger the narrow 20 relief Bivens affords. (Id.) In response, Plaintiff repeats and expands on the conduct alleged as to 21 the individual defendants. (See Dkt. Nos. 20 at 6–8, 24 at 6–9.) That conduct is insufficient to 22 support a Bivens claim, as it does not withstand Bivens’ two-step framework. See Ziglar v. 23 Abbasi, 582 U.S. 120, 121 (2017); Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023). 24 III. CONCLUSION 25 For the foregoing reasons, the VA Defendants’ motion for partial dismissal (Dkt. No. 22) 26

ORDER 1 is GRANTED. The Court DISMISSES with prejudice claims against the VA Defendants that fail 2 as a matter of law (Counts I, II, VII) and the portions of the claims (Counts III, IV, VIII, IX) to 3 the extent unrelated to and predating Plaintiff’s VA termination. The Court also sua sponte 4 DISMISSES claims against the individual defendants (Counts V, VI) pursuant to 28 USC 5 § 1915(e)(2)(B). 6 7 DATED this 4th day of February 2026. 8 9 10 A 11 12 13 John C. Coughenour 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26

ORDER