United States District Court, D. Maryland
DAVID M. SHIPP, Plaintiff,
ERIC HARGAN, Acting SECRETARY OF HEALTH AND HUMAN SERVICES Defendant.
Xinis, United States District Judge
before the Court is Defendant Eric Hargan, Acting Secretary
of the Department of Health and Human Service's motion to
dismiss the Complaint or, in the alternative, for summary
judgment. ECF No. 16. Plaintiff David Shipp
(“Shipp”) opposes the motion. ECF No. 19. Shipp
has also requested leave to amend his Complaint. ECF No. 15.
The Court now rules because no hearing is necessary.
See D. Md. Loc. R. 105.6. For the reasons discussed
below, Defendant's motion is GRANTED as to the claims
which were not administratively exhausted. Shipp's motion
to amend is also GRANTED. Shipp is forewarned that any
Amended Complaint must state only those claims for which he
has exhausted administrative remedies and must conform to the
Rules as discussed below or risk future dismissal with
trained chemist, Shipp applied for the position of GS-09
Chemist with the Food and Drug Administration
(“FDA”) in the end of 2010. ECF No. 16-2 at 24.
On January 20, 2011, Shipp learned that he was not selected
among the “best qualified” of candidates.
Id. Shipp timely filed a formal charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Id. at 20. In it,
Shipp details the grounds for which he believes he was not
selected for the position:
I applied to Job Announcement Number: HHS FDA-2011-0030
during the vacancy announcement period between 12/10/2010 and
12/17/2010. My non-selection took place on 1/20/2011; days
earlier, I was ruled ineligible for the position with the
pretextual basis that all of my required documents were not
included with the application package, even though my package
was full and complete; perhaps, because the discrepancy was
corrected, my non-selection than [sic] took place. The basis
for my claim that racial discrimination was the true reason
is: I am a member of a protected class. I was similarly
situated to others outside my protected class, namely, the
candidates placed on the certification list of best qualified
candidates for review by the selecting official(s), and one
or more candidates were treated more favorably than me,
insofar as the agency and OPM considered those candidates to
be better qualified than me for this chemist position, even
though I met and exceeded all of the basic eligibility
requirements for the GS-09 Chemist position, having
previously occupied the position of chemist with the FDA at
the GS-12/02 level, following previous federal service of 4
years and 11 months where I received yearly promotions,
starting at the GS-07 level . . . .
Id. at 24.
formal charge also references “retaliation” for
prior protected EEO activity “and [a Merit Systems
Protection Board] appeal which was still active at the time
of the non-selection in the form of a pending Petition to
Reopen and is currently active . . . .” Id.
The formal charge concludes, “I want [sic] challenge my
non-selection to vacancy announcement 385227, 392978, 402757,
394191, and Job Announcement Number.
2012, the EEOC Administrative Law Judge issued an Order of
Dismissal and instructed the Agency to issue a Final Agency
Decision (“FAD”). Id. ECF No. 16-2 at 6.
Health and Human Services (“HHS”) issued a FAD in
December 2014. Id. Shipp timely appealed the FAD to
the EEOC Office of Federal Operations (“OFO”).
Id. On April 5, 2017, the OFO upheld the FAD.
Id. Plaintiff then timely sought reconsideration of
the FAD. Id. On August 8, 2017, the OFO denied
reconsideration and upheld its prior decision. Id.
Shipp then timely filed the Complaint in this Court.
See ECF No. 1.
Complaint is undoubtedly dense, rich with detail and not
altogether easy to follow. Much of the factual allegations
appear unrelated to the FDA's 2011 decision to not hire
Shipp. As Defendant rightfully points out, the Complaint
spills much ink discussing earlier discrimination claims that
Shipp pursued in 2006 (hereafter “the 2006
case”), which not only resulted in a settlement
agreement executed in 2007 but in subsequent litigation which
has been fully adjudicated by other courts. Compare
ECF No. 1 ¶¶ 40-51 and at 21-22, with Shipp v.
Leavitt, No. 2:08-CV-1460RAJ, 2009 WL 10695708 (W.D.
Wash. Mar. 2, 2009), aff'd sub nom. Shipp v.
Sebelius, 369 Fed.Appx. 861 (9th Cir. 2010); Shipp
v. Dep't of Health & Human Servs., 498 Fed.Appx.
975, 978 (Fed. Cir. 2012).
has also sought to amend the Complaint, adding greater
confusion to this case. ECF No. 8. The Court denied
Shipp's previous proposed amendment because it failed to
conform with the Federal Rules of Civil Procedure and this
Court's local rules, to include filing a redlined version
of the proposed Amended Complaint so that the Court may
evaluate the proposed amended materials. ECF No. 11. Shipp
responded with a pleading, fifty-three pages in length,
asserting that “to the best of his ability as a
non-lawyer, ” Shipp has attempted again to amend the
Complaint. ECF No. 15 at 2. Yet again, the proposed
“amendment” does not conform with the rules and
is even more inscrutable than the original Complaint.
Specifically, the proposed amendment includes greater detail
about Shipp's 2006 case and does not clearly set forth
the grounds for challenging the FDA's 2011 failure to
hire him. Id. For purposes of Defendant's
motion, therefore, the original Complaint (ECF No. 1) remains
the operative Complaint.
moves to dismiss for lack of jurisdiction, contending that
Shipp only challenges the 2006 matter, the substance of which
Shipp did not administratively exhaust in his formal charge
to the EEOC. ECF No. 16. Defendant fails to address, however,
the merits of the formal charge which Shipp did exhaust -
Shipp's non-selection in 2011. Accordingly, as more fully
discussed below, unexhausted claims must be dismissed while
also providing Shipp one final opportunity to seek resolution
of his exhausted claims on the merits.
Standard of Review
“questions of subject matter jurisdiction must be
decided ‘first, because they concern the court's
very power to hear the case.'” Owens-Illinois,
Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999)
(quoting 2 James Wm. Moore, et al., Moore's
Federal Practice § 12.30 (3d ed. 1998)). The
plaintiff bears the burden of proving that subject matter
jurisdiction properly exists in federal court. See Evans
v. B.F. Perkins Co., a Div. of Standex Int'l Corp.,
166 F.3d 642, 647 (4th Cir. 1999). At the motion to dismiss
stage, “the district court is to regard the
pleadings' allegations as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991); see also
Evans, 166 F.3d at 647. The court may consider evidence
beyond the four corners of the Complaint to resolve matters
of jurisdiction. Chang Lim v. Azar, 310 F.Supp.3d
588, 598 (D. Md. 2018), citing Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009).