UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BATOOL KHAKSARI ) ) Plaintiff, ) ) v. ) ) Civil Case No. 06cv1990 (RJL) l KENNETH Y. TOMLINSON ) ) Defendant. ) --------------------------)
11- MEMORANDUM OPINION (August 2009)s: , Plaintiff Batool Khaksari' s action against the Broadcasting Board of Governors
("BBG" or "Agency") alleges, inter alia, that BBG exceeded its statutory authority when
it rejected her applications for three job vacancies and hired non-citizens instead. Before
the Court are the parties' cross-motions addressing plaintiffs challenge to BBG's hiring
practices as unlawful under the Administrative Procedure Act ("AP A"). After
consideration of the parties' pleadings and motions, the relevant law, and the entire record
herein, the Court DENIES plaintiffs Motion for Partial Summary Judgment and
GRANTS the defendant's Cross-Motion to Dismiss Count Five of plaintiffs Complaint.
BACKGROUND
Batool Khaksari is a female, Persian-born Muslim who speaks Farsi fluently and is
'Kenneth Y. Tomlinson is named here in his official capacity as the Chairman of the Broadcasting Board of Governors. a United States citizen. First Amended Complaint ("FAC") ~~ 3, 5. BBG is an
independent Government agency responsible for Government-sponsored broadcasting to
foreign countries. Id. ~ 4.
Khaksari was employed as a contract translator and news writer at BBG from
November 2003 to April 2005. Id. ~~ 5,6. Beginning in October 2004, and through late
2005, Khaksari applied for several positions at BBG but was not selected for any of them.
Id. ~~ 7-10. Khaksari contends that in each case she was deemed qualified for the
position, and in at least one case, that she was the only qualified U.S. citizen. Id. ~~ 7-10.
Also, in each case BBG selected non-citizen applicants over Khaksari. Id. BBG
subsequently terminated Khaksari' s employment. Id. ~ 11.
After her termination, Khaksari filed formal complaints with BBG and the Equal
Employment Opportunity Commission ("EEOC"). Id. ~ 13. The EEOC issued a right to
sue letter on September 26, 2006, id. ~ 15, and Khaksari commenced this lawsuit on
November 21,2006.
On January 21, 2009, Khaksari filed a Motion for Partial Summary Judgment [Dkt.
# 28] ("PI. Mot.") on her APA claim, which appears in Count V of the FAC. 2 Defendant
opposed the motion by filing its own Cross-Motion to Dismiss [Dkt. # 31] ("Def. Mot.")
Plaintiff's Motion for Partial Summary Judgment does not explicitly limit its scope to 2
Count Five by name. It does, however, limit its scope to the "portion of Plaintiff's challenge to the agency actions" regarding BBG's authority to "hire aliens as not in accordance with law." PI. Mot. at 1. Because plaintiff's administrative challenge appears only in Count Five of the FAC, the Court treats plaintiff's motion as a motion for summary judgment on that count alone.
-2- for lack of subject matter jurisdiction. Plaintiff then filed her Reply [Dkt. # 34], which
opposes defendant's Cross Motion to Dismiss and supports plaintiffs Motion for Partial
Summary Judgment. For the following reasons, the Court agrees with BBG and finds
jurisdiction lacking over Khaksari's APA claims.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), which bars a federal court from
hearing claims beyond its subject matter jurisdiction, "the plaintiff bears the burden of
establishing the factual predicates of jurisdiction by a preponderance of the evidence."
Lindsey v. United States, 448 F. Supp. 2d 37, 42 (D.D.C. 2006) (quoting Erby v. United
States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006)). A court may dismiss a complaint for
lack of subject matter jurisdiction only if "it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief."
Richardson v. United States, 193 FJd 545,549 (D.C. Cir. 1999) (quoting Caribbean
Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)).
Where a court's subject matter jurisdiction is called into question, the court may consider
matters outside the pleadings to ensure it has power over the case. Teva Pharm., USA,
Inc. v. u.s. Food & Drug Admin., 182 F.3d 1003, 1008 (D.C. Cir. 1999). DISCUSSION
Khaksari's motion revolves around BBG's interpretation of the phrase "suitably
qualified" as it is used in 22 U.S.C. § I 474(1)-the provision ofBBG's organic statute
-3- which authorizes BBG to hire non-citizens for certain programs "when suitably qualified
United States citizens are not available.") PI. Mot. at 1. Specifically, Khaksari objects to
the interpretation adopted in Section 822 of BBG' s Manual of Operations and
Administration, which permits BBG to hire non-citizens if "no equally or better qualified
U.S. citizen is available.,,4 Id. at 4. In effect, Section 822 interprets the term "suitably
qualified" to mean "equally or better qualified." Khaksari argues that such an
3 22 U.S.C. § 1474(1) provides in pertinent part:
[T]he Secretary, or any Government agency authorized to administer such provisions may (1) employ, without regard to the civil service and classification laws, aliens within the United States and abroad for service in the United States relating to the translator or narration of colloquial speech in foreign languages or the preparation and production of foreign language programs when suitably qualified United States citizens are not available when job vacancies occur . ...
(emphasis added).
4BBG rules implementing § 147 4( 1) provide that
[a] non-U.S. citizen may be appointed only after reasonable efforts to recruit equally or better qualified us. citizens have been made and have been unsuccessful. A non-U.S. citizen may be employed or promoted only ifno equally or better qualified us. citizen is available to perform the duties of the position . ... As a matter of Broadcasting policy, non-U.S. citizens will not be employed in or promoted to supervisory positions .... (1) Exceptions will be allowed only on an individual basis when the appropriate Office, or Service Head determines, with the concurrence of the Director of Personnel that the unavailability of an equally or better qualified us. citizen to perform such supervisory ... functions is not only significantly handicapping the ability of the Office, or Service to operate, but also is having an adverse impact on Broadcasting's mission.
BBG Manual of Operations & Administration, Part V-A, §§ 822.I(a), (c) (AR at 13) (emphasis added).
-4- interpretation is unlawful under the Administrative Procedure Act ("APA") § 706(2) and
not entitled to any judicial deference. Id. at 11, 14. Indeed, Khaksari claims that she
would have been hired were it not for Section 822 because "suitably qualified" should be
interpreted to mean "minimally qualified," and Khaksari claims she was deemed at least
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BATOOL KHAKSARI ) ) Plaintiff, ) ) v. ) ) Civil Case No. 06cv1990 (RJL) l KENNETH Y. TOMLINSON ) ) Defendant. ) --------------------------)
11- MEMORANDUM OPINION (August 2009)s: , Plaintiff Batool Khaksari' s action against the Broadcasting Board of Governors
("BBG" or "Agency") alleges, inter alia, that BBG exceeded its statutory authority when
it rejected her applications for three job vacancies and hired non-citizens instead. Before
the Court are the parties' cross-motions addressing plaintiffs challenge to BBG's hiring
practices as unlawful under the Administrative Procedure Act ("AP A"). After
consideration of the parties' pleadings and motions, the relevant law, and the entire record
herein, the Court DENIES plaintiffs Motion for Partial Summary Judgment and
GRANTS the defendant's Cross-Motion to Dismiss Count Five of plaintiffs Complaint.
BACKGROUND
Batool Khaksari is a female, Persian-born Muslim who speaks Farsi fluently and is
'Kenneth Y. Tomlinson is named here in his official capacity as the Chairman of the Broadcasting Board of Governors. a United States citizen. First Amended Complaint ("FAC") ~~ 3, 5. BBG is an
independent Government agency responsible for Government-sponsored broadcasting to
foreign countries. Id. ~ 4.
Khaksari was employed as a contract translator and news writer at BBG from
November 2003 to April 2005. Id. ~~ 5,6. Beginning in October 2004, and through late
2005, Khaksari applied for several positions at BBG but was not selected for any of them.
Id. ~~ 7-10. Khaksari contends that in each case she was deemed qualified for the
position, and in at least one case, that she was the only qualified U.S. citizen. Id. ~~ 7-10.
Also, in each case BBG selected non-citizen applicants over Khaksari. Id. BBG
subsequently terminated Khaksari' s employment. Id. ~ 11.
After her termination, Khaksari filed formal complaints with BBG and the Equal
Employment Opportunity Commission ("EEOC"). Id. ~ 13. The EEOC issued a right to
sue letter on September 26, 2006, id. ~ 15, and Khaksari commenced this lawsuit on
November 21,2006.
On January 21, 2009, Khaksari filed a Motion for Partial Summary Judgment [Dkt.
# 28] ("PI. Mot.") on her APA claim, which appears in Count V of the FAC. 2 Defendant
opposed the motion by filing its own Cross-Motion to Dismiss [Dkt. # 31] ("Def. Mot.")
Plaintiff's Motion for Partial Summary Judgment does not explicitly limit its scope to 2
Count Five by name. It does, however, limit its scope to the "portion of Plaintiff's challenge to the agency actions" regarding BBG's authority to "hire aliens as not in accordance with law." PI. Mot. at 1. Because plaintiff's administrative challenge appears only in Count Five of the FAC, the Court treats plaintiff's motion as a motion for summary judgment on that count alone.
-2- for lack of subject matter jurisdiction. Plaintiff then filed her Reply [Dkt. # 34], which
opposes defendant's Cross Motion to Dismiss and supports plaintiffs Motion for Partial
Summary Judgment. For the following reasons, the Court agrees with BBG and finds
jurisdiction lacking over Khaksari's APA claims.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), which bars a federal court from
hearing claims beyond its subject matter jurisdiction, "the plaintiff bears the burden of
establishing the factual predicates of jurisdiction by a preponderance of the evidence."
Lindsey v. United States, 448 F. Supp. 2d 37, 42 (D.D.C. 2006) (quoting Erby v. United
States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006)). A court may dismiss a complaint for
lack of subject matter jurisdiction only if "it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief."
Richardson v. United States, 193 FJd 545,549 (D.C. Cir. 1999) (quoting Caribbean
Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)).
Where a court's subject matter jurisdiction is called into question, the court may consider
matters outside the pleadings to ensure it has power over the case. Teva Pharm., USA,
Inc. v. u.s. Food & Drug Admin., 182 F.3d 1003, 1008 (D.C. Cir. 1999). DISCUSSION
Khaksari's motion revolves around BBG's interpretation of the phrase "suitably
qualified" as it is used in 22 U.S.C. § I 474(1)-the provision ofBBG's organic statute
-3- which authorizes BBG to hire non-citizens for certain programs "when suitably qualified
United States citizens are not available.") PI. Mot. at 1. Specifically, Khaksari objects to
the interpretation adopted in Section 822 of BBG' s Manual of Operations and
Administration, which permits BBG to hire non-citizens if "no equally or better qualified
U.S. citizen is available.,,4 Id. at 4. In effect, Section 822 interprets the term "suitably
qualified" to mean "equally or better qualified." Khaksari argues that such an
3 22 U.S.C. § 1474(1) provides in pertinent part:
[T]he Secretary, or any Government agency authorized to administer such provisions may (1) employ, without regard to the civil service and classification laws, aliens within the United States and abroad for service in the United States relating to the translator or narration of colloquial speech in foreign languages or the preparation and production of foreign language programs when suitably qualified United States citizens are not available when job vacancies occur . ...
(emphasis added).
4BBG rules implementing § 147 4( 1) provide that
[a] non-U.S. citizen may be appointed only after reasonable efforts to recruit equally or better qualified us. citizens have been made and have been unsuccessful. A non-U.S. citizen may be employed or promoted only ifno equally or better qualified us. citizen is available to perform the duties of the position . ... As a matter of Broadcasting policy, non-U.S. citizens will not be employed in or promoted to supervisory positions .... (1) Exceptions will be allowed only on an individual basis when the appropriate Office, or Service Head determines, with the concurrence of the Director of Personnel that the unavailability of an equally or better qualified us. citizen to perform such supervisory ... functions is not only significantly handicapping the ability of the Office, or Service to operate, but also is having an adverse impact on Broadcasting's mission.
BBG Manual of Operations & Administration, Part V-A, §§ 822.I(a), (c) (AR at 13) (emphasis added).
-4- interpretation is unlawful under the Administrative Procedure Act ("APA") § 706(2) and
not entitled to any judicial deference. Id. at 11, 14. Indeed, Khaksari claims that she
would have been hired were it not for Section 822 because "suitably qualified" should be
interpreted to mean "minimally qualified," and Khaksari claims she was deemed at least
minimally qualified in each instance she applied for a vacant position. Id. at 9-11.
SSG argues in response that the Civil Service Reform Act ("CSRA") divests this
Court of jurisdiction over Khaksari's APA claims. Def. Mot. at 2-3. According to SSG,
Khaksari's AP A claims amount to no more than allegations of a "prohibited personnel
practice" as defined by the CSRA under 5 U.S.C. § 2302(b)(6) or 5 U.S.C. § 2301(b)(2)
& (8)(A). Accordingly, SSG argues the CSRA's exclusive remedial scheme divests this
Court of jurisdiction over both Khaksari' s claim for specific relief for damages based on
her non-hiring and her claim for general relief enjoining the Agency from continuing to
interpret § 1474 as it now does in Section 822. Id at 1-3. I agree.
In Grosdidier v. Glassman, No.1 :07-01551 (D.D.C. filed Aug. 31, 2007), three
SBG employees sued the Agency because it had hired non-citizens instead of promoting
the three citizen-plaintiffs. These plaintiffs, like Khaksari, claimed they were deemed
qualified for the respective positions for which they were passed over. And, like
Khaksari, they challenged BBG's authority under the APA to interpret § 1474(1)'s
"suitably qualified" as "equally or better qualified." Finally, the Grosdidier plaintiffs
sought the exact same relief as Khaksari now seeks on her AP A claims-specific relief to
-5- remedy their individual non-hiring and general relief declaring BBG's interpretation of §
1474(1) unlawful. See id. (Mem. Op. And Order) (D.D.C. Apr. 22, 2008).
The Grosdidier plaintiffs' action was dismissed by another judge on this Court
because the CSRA was found to strip the Court of jurisdiction over plaintiffs' suit. See
id. This past April, BBG's jurisdictional argument was affirmed by our Court of Appeals,
in Grosdidier et ai. v. Chairman, Broad. Bd. O/Governors, 560 F.3d 495 (D.C. Cir.
2009). Importantly, the jurisdictional arguments affirmed by our Circuit in Grosdidier are
virtually identical to those raised here. In dismissing the plaintiffs' AP A claims for lack
of subject matter jurisdiction, the Court of Appeals held that the CSRA's remedial
scheme "is comprehensive and exclusive" and that "[Section 1474] does nothing to affect
the exclusivity of the CSRA for suits targeting personnel decisions." Id at 497-98.
Accordingly, judicial review ofBBG's hiring decisions is precluded by the
remedial scheme provided by the CSRA, and Khaksari' s Partial Motion for Summary
Judgment on her APA claim is hereby DENIED. BBG's Cross-Motion to Dismiss Count
Five ofKhaksari's complaint is hereby GRANTED. An appropriate order will issue with
this Memorandum Opinion.
~United States District Judge
-6-