United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
Elaine Hecht is employed by the U.S. Department of Health and
Human Services (“HHS”) at its HIV/AIDS Bureau in
Rockville, Maryland. Plaintiff alleges that HHS has violated
her due process rights under the Fifth Amendment. The
Government has filed a Motion to Dismiss for lack of
jurisdiction, ECF No. 4. No hearing is necessary.
See Loc. Rule 105.6. Because Plaintiff has failed to
exhaust her administrative remedies, the Court holds that it
has no jurisdiction to consider these claims and GRANTS
Defendant's Motion to Dismiss.
STANDARD OF REVIEW
the plaintiff's burden to prove that subject-matter
jurisdiction exists. See Evans v. B.F. Perkins Co.,
166 F.3d 642, 647 (4th Cir. 1999). In a facial challenge to
subject-matter jurisdiction, a court must determine if the
complaint fails to allege facts upon which subject-matter
jurisdiction can be based. See Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009). In such
challenges, the facts alleged in the complaint are taken as
has thirty-five years of federal service and is currently
employed as a GS-12 Information Management Specialist at HHS.
ECF No. 1 ¶¶ 6, 30. She alleges a litany of
transgressions by various supervisors and managers at HHS
beginning prior to 2005, when she was employed as a Grade-8
secretary. Id. ¶ 6. Specifically, she contends
that HHS violated her due process rights by:
refusing to recognize her as a GS-12 Information Management
Specialist; upgrading Plaintiff Hecht's position to a
Grade-13 and refusing to select her for the upgraded
position; summarily removing Plaintiff's duties and
requiring Plaintiff Hecht to train the person selected for
the Grade-13 position; falsely claiming that Plaintiff had
limited proficiency and needed daily coaching; and ordering
Plaintiff Hecht to perform duties outside of her position
description and clerical duties and service as a back up to a
grade 8 clerical staff person.
Id. ¶ 30. Defendant contends that prior to
bringing this action in federal court, Plaintiff must have
first exhausted her remedies available under the Civil
Service Reform Act (“CRSA”), 5 U.S.C. §
1214. The Court agrees.
CSRA “plainly precludes extrastatutory judicial review
of constitutional claims that are asserted before an employee
has exhausted his remedies available under the
statute.” Fleming v. Spencer, 718
Fed.Appx. 185, 188 (4th Cir. 2018). Because the CSRA
“established a comprehensive system for reviewing
personnel action taken against federal employees, ” it
“provides the exclusive avenue to judicial review when
a qualifying employee challenges an adverse employment
action” by arguing that the action is unconstitutional.
Elgin v. Dep't of Treasury, 567 U.S. 1,
5 (2012). An adverse action includes a removal from federal
service, a suspension for more than 14 days, a reduction in
grade, a reduction in pay, and a furlough of 30 days or less.
5 U.S.C. § 7512. An adverse action also includes a
“constructive demotion.” See, e.g., Spicer v.
Dep't of Defense, 59 M.S.P.R. 359, 368 (M.S.P.B.
1993). The act gives an employee the right to challenge an
adverse action in a hearing before the Merit Systems
Protection Board (“MSPB”). Elgin, 567
U.S. at 5. Employees who are “dissatisfied with the
MSPB's decision [are] entitled to judicial review in the
United States Court of Appeals for the Federal
allegations of prohibited personnel practices that are not
considered “adverse actions” under the CSRA, the
statute requires complaints be first brought to the
MSPB's Office of Special Counsel (“OSC”).
See 5 U.S.C. § 1214(a)(3); Fleming,
718 Fed.Appx. at 188. These prohibited practices include the
taking of any personnel action that violates “merit
system principles, ” including any violation of an
employee's constitutional rights and any “arbitrary
action.” 5 U.S.C. § 2301(b)(2).
Plaintiff's action is considered a non-adverse action
that must have been first brought to OSC or an adverse action
that could have initially been brought before the MSPB, she
was required to utilize one or both of these procedures to
exhaust her administrative remedies under the CSRA.
Fleming, 718 Fed.Appx. at 188. Plaintiff offers only
the conclusory allegation that she has “exhausted all
administrative remedies prior to filing suit.” ECF No.
1 ¶ 2. But whether a plaintiff has exhausted
administrative remedies is a question of law. See
Kilpatrick v. Hollifield, 592 Fed.Appx. 199, 200 (4th
Cir. 2015). Plaintiff offers no factual support for this
legal conclusion, as she never alleges that she brought her
claim either to OSC or to MSPB. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“[W]e are not
bound to accept as true a legal conclusion couched as a
factual allegation.”) Because she has not plausibly
alleged that she has exhausted her administrative remedies,
this Court has no jurisdiction to consider her claims.
Motion to Dismiss, ECF No. 4, is granted without prejudice. A