Kent v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00356-GPG-KAS
KENNETH R. KENT,
Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion for a Change of Venue [#11]1
(the “Motion for Transfer”) and Defendant’s Motion to Dismiss Amended Complaint
Pursuant to 12(b)(6) [#23] (the “Motion to Dismiss”) (collectively, the “Motions”).
Defendant filed a Response [#24] to the Motion for Transfer [#11]. No Reply was filed,
and the time in which to do so has elapsed. See D.C.COLO.LCivR 7.1(d). Plaintiff, who
proceeds in this matter as a pro se litigant,2 filed a Response [#30] in opposition to the
Motion to Dismiss [#23], and Defendant filed a Reply [#32]. Plaintiff also submitted an
additional “Reply to [#32] Response to Motion,” which the Court construes as a Surreply
1 “[#11]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
2 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
[litigant’s] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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[#33] filed without leave of the Court.3 The Motions [#11, #23] have been referred to the
undersigned pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72. See [#29]. The Court
has reviewed the briefs, the entire case file, and the applicable law. For the reasons stated
below, the Court RECOMMENDS that the Motion for Transfer [#11] be DENIED and that
the Motion to Dismiss [#23] be GRANTED.
I. Background
A. 	Procedural History
In February 2018, Plaintiff filed a petition with the Merit Systems Protection Board
(the “Board” or “MSPB”) seeking review of an administrative judge’s decision sustaining
his 	removal/termination 	as 	a 	Social 	Insurance 	Specialist 	at 	the 	Social 	Security
Administration’s Workload Support Unit in Golden, Colorado, based on charges of being
absent without leave (“AWOL”), inappropriate conduct, and failure to follow leave and
attendance instructions. See Kent v. SSA (Kent I), No. DE-0752-17-0171-I-1, 2022 WL
15800281, at *1, *1 n.2 (M.S.P.B. Oct. 28, 2022). Before the Board, he initially argued
that “(1) the agency improperly charged him with AWOL when he requested leave without
pay 	for 	tasks 	related 	to 	his 	pending 	Board 	and 	Equal 	Employment 	Opportunity
Commission appeals; (2) the agency improperly changed approved leave to AWOL and
validated his timesheet; and (3) the agency did not provide him with the information it
3 Surreplies are not contemplated by the Federal Rules of Civil Procedure or the Local Rules of
Practice. However, “[g]enerally, the nonmoving party should be given an opportunity to respond
to new material raised for the first time in the movant’s reply.” Green v. New Mexico, 420 F.3d
1189, 1196 (10th Cir. 2005). “Material, for purposes of this framework, includes both new
evidence and new legal arguments.” Id. (internal quotation marks and citation omitted). Although
the Court did not previously grant Plaintiff leave to file a Surreply, the Court nevertheless has
considered it in its adjudication of the Motions.
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relied upon in proposing his removal.” Id. at *1. In part, the Board found that Plaintiff had
“failed to prove his affirmative defense of reprisal for protected EEO activity.” Id. at *2.
The Board’s order contained a Notice of Appeal Rights explaining Plaintiff’s options
for further review: he could file a petition for review with the Federal Circuit within 60 days
of issuance of the order, but to the extent he claimed that he was “affected by an action
that is appealable to the Board and that such action was based, in whole or in part, on
unlawful discrimination,” he could obtain judicial review by filing a civil action “with an
appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit)” within
30 days of receiving the Board’s decision. Id. at *4 (emphasis in original).
Plaintiff petitioned for Federal Circuit review. See Docket Sheet [#1-3] at 11.4 In
his petition, filed on December 20, 2022, Plaintiff listed “[i]ssues which [he] desire[d] to
present on appeal,” including “[r]etaliation from the Veterans Administration (CHAMPVA)
after transferring to the Social Security Administration” and “EEO and Discrimination after
On-Sight investigations at by [sic] female African American investigator.” Id. at 12-13. On
February 	15, 	2023, 	the 	Federal 	Circuit 	dismissed 	Plaintiff’s 	petition 	for 	failure 	to
prosecute, due to his failure to file the required Form 10 - Statement Concerning
Discrimination (“Form 10”). Id. at 97. On May 26, 2023, Plaintiff filed a signed Form 10.
4 On February 5, 2024, the docket for Kent v. Social Security Administration (Kent II), No. 23-1329
(Fed. Cir. 2023), which became the present case after its transfer here, was docketed almost
entirely as a single document, titled “Docket Sheet” [#1-3], and attached to Plaintiff’s Motion and
Declaration for Leave to Proceed In Forma Pauperis [#1]. Only the Federal Circuit’s Transfer
Order [#1-2] was docketed separately. In this Recommendation, when citing to filings in the
Federal Circuit case, the Court cites this lawsuit’s CM/ECF page number for Docket Nos. 1-2 and
1-3. Additionally, two relevant filings in Kent II were not included because they were filed after the
case was transferred: (1) Plaintiff’s Motion for Reconsideration of the transfer order, see Docket
No. 37 in Kent II, No. 23-1329 (Fed. Cir. Feb. 16, 2024), and (2) the Court’s Order denying
rehearing, see Docket No. 38 in Kent II, No. 23-1329 (Fed. Cir. Mar. 8, 2024). For completeness
of the record, the Court has attached these two filings to this Recommendation.
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Id. at 118-20. In Section A, he checked a box indicating he had not argued before the
MSPB “that the adverse employment action (1) was attributable to discrimination on the
basis of race, color, religion, sex, age, national origin, or handicapping condition or (2)
was retaliation for pursuing Equal Employment Opportunity Activity.” Id. at 118. His
appeal was reinstated on June 7, 2023. Id. at 122.
On November 1, 2023, Plaintiff filed another signed Form 10. This time, in Section
A, he checked the box indicating that he had argued discrimination or retaliation before
the MSPB, specifically circling “retaliation.” Id. at 151. In Section B, he identified his
discrimination claim as “retaliation” and, in Section C, he checked a box stating that “I did
claim that I was discriminated against before the MSPB or the Arbitrator and I do not wish
to abandon my discrimination claims.” Id. at 152-53. He added: “Retaliation per MSPB
records prior to the MSPB hearing.” Id. at 153. On the same day, Plaintiff filed a Motion
to Supplement the Record. Id. at 155-57. In part, he asserted that “[t]his documentation
will show the nexus for retaliation, arbitrary, capricious, and abuse of discretion charges
by the Social Security Administration which started 4 months after transferring to the
agency from the Veterans Administration [sic].” Id. at 155.
On December 6, 2023, the Federal Circuit sua sponte raised the issue of whether
it had jurisdiction over Plaintiffs’ appeal because his replacement Form 10 expressly
indicated his intent to seek judicial review of his discrimination (i.e., retaliation) claim. Id.
at 170-71. In part, the Circuit wrote:
While this court has jurisdiction over certain final decisions from the Board,
5 U.S.C. § 7703(b)(1)(A), “[c]ases of discrimination,” where the petitioner
appealed an adverse action to the Board and raised a claim of covered
discrimination, including retaliation, 5 U.S.C. §§ 7703(b)(2), 7702(a)(1),
belong in district court, Perry v. Merit Sys. Prot. Bd., 582 U.S. 420 (2017);
Diggs v. Dep’t of Hous. & Urb. Dev., 670 F.3d 1353, 1357 (Fed. Cir. 2011)
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(holding that the affirmative defense of retaliation for prior EEO activity “falls
outside [of the court’s] jurisdictional reach”).
Id. at 171 (emphasis added). The Federal Circuit ordered the parties to show whether the
case should be transferred to a federal district court and, if so, which court would be most
appropriate. Id.
On February 5, 2024, the Federal Circuit noted that Defendant’s response to the
show cause order “urge[d] transfer” while Plaintiff had “respond[ed] and continue[d] to
argue his discrimination claim.” Transfer Order [#1-2] at 1. The Circuit reiterated that
federal district courts, not the Federal Circuit, have jurisdiction over cases involving
allegations of covered discrimination and found that “[t]his case indisputably meets those
criteria.” Id. at 2. The Circuit found that transfer pursuant to 28 U.S.C. § 1631 was
warranted and transferred the matter to the District of Colorado, “where the employment
action occurred.” Id.
After transfer, Plaintiff moved the Federal Circuit for reconsideration, arguing that
he was “not appealing . . . based upon Discrimination” and that he “unequivocally did not
purpose [sic] to file a Discrimination claim . . . but was showing the pattern of prohibited
personnel actions that Social Security administration had taken to undermine the EEO
and other due process rights.” See Motion for Reconsideration, Docket No. 37, at 2, in
Kent v. SSA (Kent II), No. 23-1329 (Fed. Cir. Feb. 16, 2024). He asserted that he had
“inadvertently submitted the Discrimination form . . . and misinterpreted the premise for
filing the form.” Id. In a brief per curiam order, the Federal Circuit summarily denied
Plaintiff’s motion, which it construed as a petition for panel rehearing. See Order on
Petition for Panel Rehearing, Docket No. 38, at 1-2 in Kent II (Fed. Cir. Mar. 8, 2024).
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Plaintiff now asks this Court to return his case to the Federal Circuit. See Motion for
Transfer [#11] at 2.
B. 	Plaintiff’s Allegations
Plaintiff 	filed 	his 	operative 	Amended 	Complaint 	[#15] 	in 	May 	2024 	on 	an
“Employment Discrimination Complaint” form.5 As the basis for this Court’s jurisdiction,
Plaintiff states “Prohibited Personnel Practices.” See Am. Compl. [#15] at 2. Under his
Statement of Claims, Plaintiff identifies “Claim One: Prohibit Personnel Practices [sic]”
and 	the 	conduct 	he 	complains 	of 	is 	“termination 	of 	employment” 	and 	“Veterans
Administration Prohibit Personnel Practices [sic].” Id. at 3. He did not check any box
identifying what protected category Defendant’s allegedly discriminatory conduct was
based on. Id. He indicated that he has not filed a charge of discrimination and has not
received a notice of right to sue, and his only request for relief is “Send my case back to
the U.S. Federal Circuit.” Id. at 4. The Amended Complaint [#15] contains no factual
allegations about the events underlying his claim.6
5 Whole or partial copies of Plaintiff’s operative complaint have been filed multiple times on the
docket, see [#13, #15, #15-1, #15-2], because a redundant case had inadvertently been opened.
See Order, Docket No. 3, at 1, Kent (PS) v. SSA (Kent III), 1:24-cv-01305-SBP (D. Colo. May 15,
2024). Upon Kent III’s administrative closure, the pleadings were docketed into this matter. Id.
Because the complaints are identical (except that an Exhibit [#15-3] is attached to [#15]), the
Court cites the Amended Complaint [#15] throughout this Recommendation.
6 Plaintiff attached to his Amended Complaint [#15] an exhibit which has no clear relevance to
this 	matter, 	which 	states: 	23 	“Bus 	Passes 	Distributed,” 	0 	“Rideshares 	Purchased,” 	18
“Food/Hygiene Kits Provided,” 2 “Clothing Vouchers Given,” and 10 “Clients Contacted at
Outreach Events,” along with a “good news story (2 sentences) about program achievements last
month for our marketing team.” See Exhibit [#15-3] at 1. The “good news story” is that “This month
Roy Ward went from being homeless to having an apartment with our help. Following that we
were able to get purple heart desert thrift shop to furnish his apartment. We got the elks to provide
appropriate/necessary household goods for him and his two daughters.” Id. The second page of
the Exhibit [#15-3] is identical to the first. On both pages, the sections for “Food/Hygiene Kits
Provided,” 	“Clothing 	Vouchers 	Given,” 	and 	“Clients 	Contacted 	at 	Outreach 	Events” 	are
highlighted. Id. at 1-2.
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II. Legal Standards
A. 	Jurisdiction and Transfer
1. 	Mixed Cases
“[T]he intersection of federal civil rights statutes and civil service law has produced
a complicated, at times confusing, process for resolving claims of discrimination in the
federal workplace.” Kloeckner v. Solis, 568 U.S. 41, 49 (2012). Pursuant to 5 U.S.C. §
7703(a)(1), employees or applicants may seek judicial review of the MSPB’s final
decisions. Under the statute, petitions for review should be filed in the Federal Circuit,
except that “[c]ases of discrimination subject to section 7702 of this title” should be filed
in federal district court. See Kloeckner, 568 U.S. at 49-50 (examining statutory framework
set forth in 5 U.S.C. §§ 7702 and 7703). Where a claim involves both “an action (i.e.,
removal [from employment]) appealable to the MSPB” and “alleged discrimination
prohibited by an enumerated federal law,” it is a “mixed case” and “shall be filed in district
court.” Id. at 50; see also Perry v. Merit Sys. Protection Bd., 582 U.S. 420, 429, 432 (2017)
(stating that there is no doubt “that the Federal Circuit lacks authority to adjudicate [claims
of discrimination in violation of federal law]” and that judicial review of mixed cases lies in
district court).
Accordingly, the Federal Circuit has repeatedly held (including in Plaintiff’s own
case) 	that 	it 	lacks 	jurisdiction 	over 	appeals 	from 	the 	Board 	alleging 	covered
discrimination, including claims of retaliation or reprisal for engaging in EEO activity. See,
e.g., Green-Doyle v. Dep’t of Homeland Sec., 817 F. App’x 983, 986 (Fed. Cir. 2020)
(finding plaintiff had presented a “mixed case” when she claimed that she had been fired
in retaliation for contacting the EEOC and dismissing appeal for lack of jurisdiction); Diggs
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v. Dep’t of Hous. & Urban Dev., 670 F.3d 1353, 1358 (Fed. Cir. 2011) (stating that
“affirmative defenses of reprisal for prior EEO activity are assertion[s] of discrimination
under Title VII and within the meaning of 5 U.S.C. § 7702,” which deprive the Federal
Circuit of jurisdiction); see also Docket Sheet [#1-3] at 171 (Federal Circuit order
explaining that “‘[c]ases of discrimination,’ where the petitioner appealed an adverse
action to the Board and raised a claim of covered discrimination, including retaliation, . . .
belong in district court”).
2. 	Law of the Case
The “law of the case” doctrine states that, “when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in the
same case.” Arizona v. California, 460 U.S. 605, 618 (1983). This is meant to promote
finality and judicial efficiency by “protecting against the agitation of settled issues.”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting 1B J.
Moore et al., MOORE ’S FEDERAL P RACTICE ¶ 0.404[1], p. 118 (1984)). The doctrine “applies
as much to the decisions of a coordinate court in the same case as to a court’s own
decisions,” and “[f]ederal courts routinely apply law-of-the-case principles to transfer
decisions of coordinate courts.” Id. (collecting cases); see also Chrysler Credit Corp. v.
Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991) (stating that “traditional
principles of law of the case counsel against the transferee court reevaluating the rulings
of the transferor court, including its transfer order”). As the Tenth Circuit has explained, a
coordinate court’s prior decision should be reconsidered only in rare circumstances, such
as “when the governing law has been changed by the subsequent decision of a higher
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court”; “when new evidence becomes available”; or “when a clear error has been
committed or to prevent manifest injustice[.]” Chrysler Credit Corp., 928 F.2d at 1516.
The rationale behind the doctrine “appl[ies] with even greater force to transfer
decisions than to decisions of substantive law,” because if a court feels completely free
to revisit another court’s transfer decision, it risks sending litigants into “a perpetual game
of jurisdictional ping-pong.” Christianson, 486 U.S. at 816, 818. To avoid that outcome,
the Supreme Court has instructed that lower courts should “adher[e] strictly to principles
of law of the case,” meaning that, “if the transferee court can find the transfer decision
plausible, its jurisdictional inquiry is at an end.” Id. at 819 (citing Fogel v. Chestnutt, 668
F.2d 100, 109 (2d Cir. 1981) (“The law of the case will be disregarded only when the court
has ‘a clear conviction of error.’”)).
B. 	Rule 12(b)(6)
Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the
complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th
Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility
refers to the scope of the allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to plausible.” Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
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court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, “[a] pleading that offers
‘labels and conclusions’ or a formulaic recitation of the elements of a cause of action will
not do. Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual 	enhancement.’” 	Id. 	(citation omitted). 	Thus, 	“conclusory allegations 	without
supporting factual averments are insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Additionally, a court may
“take judicial notice of its own files and records, as well as facts which are a matter of
public record,” without converting a motion to dismiss into a summary judgment motion.
Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (internal quotations omitted).
Finally, Rule 12(b)(6) allows a court to dismiss a case based on an affirmative
defense when facts establishing the defense are apparent from the face of the complaint
or from matters of which the court may take judicial notice. Fernandez v. Clean House,
LLC, 883 F.3d 1296, 1299 (10th Cir. 2018) (stating that “on occasion it is proper to dismiss
a claim on the pleadings based on an affirmative defense” but “only when the complaint
itself admits all the elements of the affirmative defense by alleging the factual basis for
those elements”); see also Jiying Wei v. Univ. of Wyo. Coll. of Health Sch. Pharmacy,
759 F. App’x 735, 738-40 (10th Cir. 2019) (affirming Rule 12(b)(6) dismissal of pro se
plaintiff’s claims based on affirmative defenses of claim preclusion and statute of
limitations where the court had determined the claim accrual date by taking judicial notice
of a filing the plaintiff had submitted in a prior case).
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III. Analysis
As a threshold issue, the Court must address Plaintiff’s Motion for Transfer [#11]
before considering the Motion to Dismiss [#23], because transferring the case would
deprive this Court of jurisdiction to consider the merits. See, e.g., Chrysler Credit Corp.,
928 F.2d at 1516-17 (“Once the files in a case are transferred physically to the court in
the transferee district, the transferor court loses all jurisdiction in the case[.]”).
A. 	Motion for Transfer [#11]
Plaintiff asks the Court to transfer his case to the Federal Circuit, insisting that
“[t]he MSPB case submitted to the United States Court of Appeals for the Federal Circuit
is not regarding an eeoc [sic] case, [his] case . . . was based upon Prohibit Personnel
Practices [sic].” Motion for Transfer [#11] at 1 (emphasis in original). He asserts that he
“was removed from federal service while [his] eeoc [sic] was pending at the United States
District Court Denver, Colorado and [he] believe[s] this was a violation by the Social
Security Administration.” Id. at 2. Plaintiff “request[s] under 28 USC 1391 [sic] that case
number 1:24 CV 00356 be sen[t] back to the appropriate court which is the United States
Court of Appeals for the Federal Circuit.”7 Id.
However, the Federal Circuit’s jurisdictional finding and transfer order is the law of
the case. See Christianson, 486 U.S. at 817 (stating that the “first [court] to decide the
jurisdictional issue” had set the law of the case). As is relevant here, the Federal Circuit
made two findings: (1) Plaintiff had “pursued discrimination claims before the Merit
7 28 U.S.C. § 1391 is not a transfer statute; it is the venue statute that “govern[s] the venue of all
civil actions brought in district courts of the United States[.]” 28 U.S.C. § 1391(a)(1) (emphasis
added). The emphasized language confirms that the statute is inapplicable to appellate courts,
such as the Federal Circuit. Instead, the relevant transfer statute is 28 U.S.C. § 1631, which allows
for transfer based on lack of jurisdiction to another court “in which the action or appeal could have
been brought at the time it was filed or noticed[.]”
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Systems Protection Board and stated that he does not wish to abandon those claims on
judicial review”; and (2) even after the Circuit brought the issue to the parties’ attention in
a show cause order, Plaintiff “respond[ed] and continue[d] to argue his discrimination
claim.” See Transfer Order [#1-2] at 1. The Federal Circuit concluded that Plaintiff’s claim
was “indisputably” a “case[] involving adverse actions appealable to the Board and
allegations of covered discrimination” over which it lacked jurisdiction. Id. at 2. It
determined that the District of Colorado was the appropriate venue because that is “where
the employment action occurred.” Id.
Plaintiff does not argue that there has been a change in governing law or that new
evidence has become available. See Chrysler Credit Corp., 928 F.2d at 1516. Instead,
he suggests that the Federal Circuit clearly erred because his “MSPB case submitted to
the United States Court of Appeals for the Federal Circuit is not regarding an eeoc [sic]
case . . . [it] was based upon Prohibit Personnel Practices [sic].” Motion for Transfer [#11]
at 1 (emphasis omitted). However, Christianson instructs that, if this Court “can find the
transfer decision plausible, its jurisdictional inquiry is at an end.” Christianson, 486 U.S.
at 819. Here, for the reasons explained below, the Court finds no error, much less clear
error, in the Federal Circuit’s jurisdictional ruling.
From the outset, Plaintiff has continually and repeatedly asserted that Defendant
retaliated against him for pursuing an EEO claim. See, e.g., Kent I, 2022 WL 15800281,
at *2 (considering and rejecting Plaintiff’s “affirmative defense of reprisal for protected
EEO activity”); Motion for Reconsideration, Docket No. 37, in Kent II, No. 23-1329 (Fed.
Cir. Feb. 16, 2024) at 2 (Plaintiff asserting that he “was showing the pattern of prohibited
personnel actions that Social Security administration had taken to undermine the EEO
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and other due process rights”); Motion for Transfer [#11] at 2 (asserting that Plaintiff “was
removed from federal service while [his] eeoc was pending at the United States District
Court Denver, Colorado and [he] believe[s] this was a violation by the Social Security
Administration”). Even giving Plaintiff the benefit of liberal construction, these assertions
can only be reasonably construed in one way: Plaintiff believes Defendant retaliated
against him for EEO activity.
Claims 	of 	retaliation 	for 	engaging 	in 	EEO 	activity 	are 	claims 	of 	covered
discrimination prohibited by federal law, over which the Federal Circuit lacks jurisdiction.
See Green-Doyle, 817 F. App’x at 986 (dismissing plaintiff’s “mixed case” appeal for lack
of jurisdiction when she claimed she had been fired in retaliation for contacting the
EEOC); Diggs, 670 F.3d at 1358 (holding that “affirmative defenses of reprisal for prior
EEO activity are assertion[s] of discrimination under Title VII and within the meaning of 5
U.S.C. § 7702”). This is spelled out in the Federal Circuit’s Form 10, which informs
litigants that discrimination claims include “argu[ing] that the adverse employment action
. . . was retaliation for pursuing Equal Employment Opportunity activity[.]” Docket Sheet
[#1-3] at 151. Additionally, the Federal Circuit expressly told Plaintiff that “claim[s] of
covered discrimination” include retaliation and that it cannot hear such cases. Id. at 171.
Nor has Plaintiff clearly and unequivocally abandoned his retaliation claim. He
could have done so by simply checking the appropriate box in Section C of the Federal
Circuit’s Form 10. See, e.g., Martin v. Dep’t of Veterans Affs., No. 2022-1010, 2022 WL
22890119, at *1 n.* (Fed. Cir. Feb. 11, 2022) (“To the extent that [the petitioner] wishes
to pursue review in this court, she would need to expressly abandon her discrimination
claims by filing a revised Federal Circuit Form 10.”). Had he done so, his claim could have
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proceeded in the Federal Circuit. See, e.g., Higgins v. Dep’t of Veterans Affs., 955 F.3d
1347, 1353 (Fed. Cir. 2020) (“Because [the claimant’s] amended Form 10 abandons all
discrimination claims, we have jurisdiction over his appeal.”). Instead, Plaintiff’s amended
Form 10 confirmed that he had “claim[ed] that [he] was discriminated against before the
MSPB” and that he“[did] not wish to abandon [his] discrimination claims.” Docket Sheet
[#1-3] at 153. The Federal Circuit took Plaintiff at his word when he completed and signed
that Circuit’s required Form 10.
In summary, the Court is not persuaded that the Federal Circuit erred simply
because Plaintiff insists that he is “not requesting an EEOC case review” and that his
claim “is not regarding an eeoc [sic] case.” Motion for Transfer [#11] at 1-2; see also, e.g.,
Watson v. Fed. Bureau of Prisons, 727 F. App’x 685, 685 (Fed. Cir. 2018) (Mem.)
(rejecting the plaintiff’s assertion that he had abandoned any discrimination claims
because “the court has determined that this appeal still presents at least claims of
violations of the Rehabilitation Act of 1973”). The Federal Circuit’s transfer order is the
law of the case, and the Court finds it is well-supported after its own independent review
of the record. There is no clear error or manifest injustice that warrants reconsideration.
Cf. Chrysler Credit Corp., 928 F.2d at 1516.
Accordingly, the Court recommends that the Motion for Transfer [#11] be denied.
B. 	Motion to Dismiss [#23]
Defendant moves to dismiss the Amended Complaint [#15] under Rule 12(b)(6),
arguing that (1) Plaintiff alleged no facts to support his claim and (2) Plaintiff did not timely
file a civil action within 30 days of receiving the MSPB’s decision. See Motion to Dismiss
[#23] at 6-11. Plaintiff does not respond to the argument that he has failed to state a claim;
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instead, he doubles down on his insistence that he did not assert discrimination before
the MSPB. See Response [#30] at 1 (“neither did I Kenneth Ray assert discrimination [in]
case DE-0752-17-0171-1-I [sic]”). He asserts that he “submitted [his] case to the United
States Court of Appeals for the Federal Circuit Court in a timely manner” but offers no
further explanation. Id.
1. 	Failure to State a Claim
Plaintiff’s operative complaint contains no factual averments or details whatsoever.
He 	simply 	asserts, 	in 	conclusory 	fashion, 	that 	Defendant 	engaged 	in 	“prohibited
personnel practices” and “termination of employment.” See Am. Compl. [#15] at 2-3. The
attached Exhibit [#15-3] sheds no additional light on Defendant’s purported misconduct.
The only well-pleaded allegation is that Defendant terminated Plaintiff’s employment,
which is not enough for the Court to infer unlawful personnel practices, employment
discrimination, or even that the termination was wrongful. Moreover, Plaintiff seeks no
relief other than transfer of his case back to the Federal Circuit. Id. at 4.
Plaintiff is advised that “to state a claim in federal court, a complaint must explain
what each defendant did to him or her; when the defendant did it; how the defendant’s
action harmed him or her; and, what specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). After all, to the extent Defendant allegedly engaged in employment discrimination
or retaliation, “there are certain details the Plaintiff should know and could properly plead
to satisfy the plausibility requirement.” Khalik, 671 F.3d at 1194. In the context of allegedly
wrongful termination, for example, these facts might include “when [Plaintiff] was
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terminated” and “the reasons Defendant gave [him] for termination and why in [his] belief
those reasons were pretextual.” Id.
Plaintiff’s Amended Complaint [#15] includes none of this detail and, therefore, it
does not comply with Rule 8’s pleading requirements: it includes neither “a short and plain
statement of the claim showing that the pleader is entitled to relief” nor “a demand for the
relief sought” in the event Plaintiff prevails on the merits of his claim. Fed. R. Civ. P.
8(a)(2)-(3). He does not even identify the protected class on which any discrimination was
allegedly based. 	The Court 	cannot discern 	the factual 	basis 	of 	Plaintiff’s 	claims.
Accordingly, the Court recommends that the Motion to Dismiss [#23] be granted and
that Plaintiff’s Amended Complaint [#15] be dismissed for failure to state a claim.
Ordinarily, dismissal of a pro se litigant’s claim under Rule 12(b)(6) should be
without prejudice. See, e.g., Gabriel v. Emergency Med. Specialists, P.C., No. 16-cv-
00051-RBJ-CBS, 2016 WL 8310097, at *8 n.13 (D. Colo. Nov. 1, 2016). However,
“dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule
12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1219 (10th Cir. 2006). The Court therefore considers Defendant’s
timeliness argument because, if Plaintiff’s claim is time-barred, amendment would be
futile 	and 	dismissal 	with 	prejudice 	would 	be 	appropriate. 	See, 	e.g., 	Lawrence 	v.
Bonaventure of Castle Rock, No. 22-cv-01143-WJM-KLM, 2022 WL 17960556, at *8 (D.
Colo. Dec. 27, 2022) (finding that the pro se plaintiff had failed to state a claim but
recommending dismissal with prejudice because his failure to exhaust administrative
remedies would render amendment futile), report and recommendation adopted, 2023
WL 6976050 (D. Colo. Oct. 23, 2023).
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2. 	Timeliness
Under 5 U.S.C. § 7703(b)(1)(A), a petition to review a final order or decision of the
MSPB “shall be filed in the United States Court of Appeals for the Federal Circuit . . .
within 60 days after the Board issues notice of the final order or decision of the Board.”
However, under § 7703(b)(2), “[c]ases of discrimination . . . must be filed within 30 days
after the date the individual filing the case received notice of the judicially reviewable
action[.]” Discrimination cases must be filed as civil actions in district court. Kloeckner v.
Solis, 568 U.S. 41, 50 (2012). Finally, cases asserting both an action appealable to the
MSPB and alleged discrimination prohibited by an enumerated federal law are “mixed
cases” governed by § 7703(b)(2) and must be filed in district court. Id.
The Supreme Court has recently clarified that the time limits set forth in 5 U.S.C.
§ 7703(b)(1) are not jurisdictional. See Harrow v. Dep’t of Defense, 601 U.S. 480, 482
(2024). Because timeliness is not jurisdictional, Defendant must raise it as an affirmative
defense or waive it. See, e.g., Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185-86 (10th
Cir. 2018) (holding that failure to exhaust under Title VII, such as an untimely filing under
that statute, was a non-jurisdictional affirmative defense subject to waiver). The Court can
resolve this affirmative defense only if Plaintiff’s untimeliness is clear from the face of the
complaint as well as from matters of which the Court may take judicial notice. See, e.g.,
Jiying Wei, 759 F. App’x at 739-40 (stating that under Rule 12(b)(6), the district court was
entitled to “glean[] the date it found relevant for the limitations calculation by taking judicial
notice of a filing in [the pro se plaintiff’s] first case”).
Here, the Court takes judicial notice that the MSPB issued its Kent I decision on
October 28, 2022. See Kent I, 2022 WL 15800281. In Kent I, the Board considered and
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rejected Plaintiff’s “affirmative defense of reprisal for protected [EEO] activity.” Id. at *1.
The MSPB decision contained a “Notice of Appeal Rights” that informed Plaintiff that “[a]s
a general rule, an appellant seeking judicial review of a final Board order must file a
petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be
received by the court within 60 calendar days of the date of issuance of this decision.”
Id. at *4 (citing 5 U.S.C. § 7703(b)(1)(A)) (emphases in original). The notice proceeded to
inform Plaintiff that if he was claiming that he was “affected by an action that is appealable
to the Board and that such action was based, in whole or in part, on unlawful
discrimination,” he could obtain judicial review “by filing a civil action with an appropriate
U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30
calendar days after you receive this decision.” Id. at *4 (citing 5 U.S.C. § 7703(b)(2);
Perry, 582 U.S. 420)) (emphases in original).
The Court also judicially notices that Plaintiff filed his petition for review with the
Federal Circuit on December 20, 2022. See Docket Sheet [#1-3] at 11 (date-stamped). In
that petition, Plaintiff claimed to have received the MSPB’s order on November 8, 2022.
Id. Additionally, in that petition, Plaintiff expressed his intent to pursue claims of
“Retaliation” and “EEO and Discrimination after On-Sight Investigations at by [sic] female
African American investigator.” Id. at 12-13.
The Court need not convert Defendant’s Motion to Dismiss [#23] into a summary
judgment motion to find that Plaintiff filed his petition for review 53 days after the Board
issued its decision and 42 days after he claims he received a copy.8 He sought review of
8 Where date of receipt is unclear or unknown, the Tenth Circuit typically applies a three- or five-
day mailing-time presumption. Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001)
(recognizing that the Tenth Circuit has “implicitly sanctioned applying either a five-day or a three-
day presumption” but declining to decide which presumption was appropriate because it did not
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personnel decisions but also alleged retaliation for protected EEO activity, which is a
discrimination claim. See Diggs, 670 F.3d at 1358 (holding that “affirmative defenses of
reprisal for prior EEO activity are assertion[s] of discrimination under Title VII and within
the meaning of 5 U.S.C. § 7702”). Because Plaintiff was asserting an adverse personnel
decision “based, in whole or in part, on unlawful discrimination” in the form of retaliation,
he was required to file a civil action in federal district court within 30 days after he received
the MSPB decision. See Kent I, 2022 WL 15800281, at *4; 5 U.S.C. § 7703(b)(2).
The Court acknowledges Plaintiff’s repeated insistence that his appeal “is not
regarding an eeoc [sic] case” and that he “did not submit any request for Discrimination
to be determined at the United States Merit Systems Protection Board Denver, Colorado.”
Motion for Transfer [#11] at 1; Surreply [#33] at 2. Plaintiff seems to believe that his
retaliation claims are meaningfully different (for jurisdictional purposes) from direct
discrimination claims, but he is wrong as a matter of law. See Diggs, 670 F.3d at 1358.
Plaintiff’s pro se status entitles him to liberal construction, but it does not excuse
him from complying with the same rules and deadlines that apply to other litigants. See
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (stating that pro se litigants must
comply with the same procedural rules that govern all other litigants); see also Montoya
v. Chao, 296 F.3d 952, 958 (10th Cir. 2002) (finding that the pro se plaintiff’s unfamiliarity
with the law did not excuse him from Title VII filing deadlines, as “[his] difficulties are those
faced by many plaintiffs who nonetheless manage to file suit in a timely manner”). Plaintiff
affect the outcome). Here, Plaintiff claims that he received the MSPB order 11 days after it was
issued. The Court need not decide whether to accept Plaintiff’s claimed date of receipt or to apply
one of the Tenth Circuit’s mailing-time presumptions because, in all three scenarios, he filed his
petition of review more than 30 days after receipt.
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presented a mixed case to which the 30-day deadline applies, but he waited 42 days after
he received the MSPB’s order to seek review.
In summary, the Court agrees with Defendant that Plaintiff’s petition for review was
untimely filed and must be dismissed. Because this untimeliness cannot be cured,
amendment would be futile. The Court therefore recommends that Plaintiff’s claim be
dismissed 	with 	prejudice. 	See, 	e.g., 	Lawrence, 	2022 	WL 	17960556, 	at 	*8
(recommending dismissal with prejudice where pro se plaintiff failed to state a claim and
also failed to exhaust administrative remedies because his failure to exhaust rendered
amendment futile).
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that Plaintiff’s Motion for Transfer [#11] be
DENIED.
IT IS FURTHER RECOMMENDED that Defendant’s Motion to Dismiss [#23] be
GRANTED, that Plaintiff’s claim be DISMISSED with prejudice, and that this case be
CLOSED.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
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by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: February 26, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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