Gause v. Esper, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50135

HAROLD K. GAUSE,

Plaintiff - Appellant

v.

PATRICK M. SHANAHAN, ACTING SECRETARY, U.S. DEPARTMENT OF
DEFENSE; CAPTAIN OLSEA COLLINS, United States Department of
Defense; JOSEPH KINLIN, United States Department of Defense; HENRY
BREZILLAC, United States Department of Defense; LYNN SMITH,
Investigative and Resolutions Directorate; RICHARD MOYED, United States
Department of Labor; ALEXANDER ACOSTA, Secretary, United States
Department of Labor; SCOTT LEVINS, Director, National Archives &
Records Administration; JAMES SPRINGS, Inspector General, National
Archives & Records; UNKNOWN EMPLOYEE #1, National Archives &
Records; UNKNOWN EMPLOYEE #2, National Archives & Records; JANET
DHILLON, Chair, Equal Employment Opportunity Commission; JUDGE
DAVIDSON MOMAH, Equal Employment Opportunity Commission; JUDGE
LINDA GUTIERREZ, Equal Employment Opportunity Commission,

Defendants - Appellees

Appeal from the United States
for the Western District of Texas
USDC No. 5:18-CV-417

United States Court of Appeals
Fifth Circuit
FILED
February 4, 2020

Lyle W. Cayce
Clerk
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Before KING, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Harold Gause, a former Marine and current Department of Labor
employee, applied for a human resources position with an Army recruiting
battalion. He received a tentative offer that was later withdrawn after his
background check revealed he had made false statements on his application.
Gause filed an EEOC complaint alleging that the withdrawal was based on his
race, disability, and prior EEOC activity.
Frustrated by the subsequent administrative proceedings, Gause—
representing himself—sued various federal agencies and officials in the
Southern District of Texas. He argued that the disclosure of his service records
during the EEOC proceeding violated the Privacy Act and other federal laws.
He also sought a writ of mandamus to compel the EEOC to expedite resolution
of his complaint. The district court dismissed that lawsuit. In affirming, we
held that the district court lacked jurisdiction to issue a writ of mandamus and
the other claims failed under Rule 12(b)(6). See Gause v. U.S. Dep’t of Def., 676
F. App’x 316 (5th Cir. 2017) (per curiam).
The EEOC proceedings resumed, and the agency eventually concluded
that the government lawfully revoked Gause’s job offer because he had
misrepresented his criminal history and military discharge.
Gause’s employment disputes did not end there. He filed three more
EEOC complaints against the Labor Department, alleging the agency
retaliated and discriminated against him by passing him over for certain jobs
and giving him a lukewarm performance review. The EEOC dismissed two of

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
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the complaints as a sanction for failing to comply with an administrative order;
the third is still pending.
Gause sued again, this time in the Western District of Texas. He alleged
violations of the Privacy Act, Title VII, the Rehabilitation Act, 42 U.S.C. § 1985,
and the Veterans Employment Opportunity Act (VEOA). Gause challenged
not only the Labor Department’s actions, but also the Army’s revocation of his
tentative offer. The government moved to dismiss on several grounds. The
district court granted the motion and dismissed Gause’s amended complaint
with prejudice. This appeal followed.
We need not belabor Gause’s Privacy Act claims. Gause asserts the same
Privacy Act claims against the same parties that were raised and finally
decided in his first lawsuit. Blackletter law prevents him from relitigating
them. See, e.g., Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 521–
22 (5th Cir. 2016).
Gause’s section 1985 conspiracy allegations against the EEOC fare no
better. Although he argues that jurisdiction exists under the Administrative
Procedure Act, we have long held that “the United States and its officials are
entitled to sovereign immunity . . . under the civil rights statutes.” Newsome
v. E.E.O.C., 301 F.3d 227, 223 (5th Cir. 2002). The district court thus correctly
dismissed these claims for lack of subject matter jurisdiction. See United
States v. $4,480,466.16 in Funds Seized from Bank of Am. Account Ending in
2653, 942 F.3d 655, 665 (5th Cir. 2019) (“Whether the United States’ sovereign
immunity has been waived is a question of subject matter jurisdiction . . . .”).
Gause’s Title VII and Rehabilitation Act claims also do not survive the
pleading stage. Gause asserts two sets of claims under these statutes, some
against the Army and others against the Labor Department. The district court
held, and we agree, that Gause failed to state a claim against the Labor
Department. Gause seems to acknowledge as much, alleging that “[h]e did not
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know any of the selectees or the hiring officials or ha[ve] any reasons to suspect
discrimination.”
The district court held that the Army claims were untimely because they
were filed more than 90 days after Gause’s receipt of the right-to-sue letter.
Gause disputes when he received that letter. We need not resolve the
timeliness issue, however, because we agree with an alternate ground the
government urged as a basis for dismissal: Gause failed to state a claim.
Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 672 (5th Cir.
2018) (“This court reviews a Rule 12(b)(6) dismissal de novo and may affirm on
any basis supported by the record.” (quotation omitted)).
Gause does not allege any facts that could plausibly support the
conclusion that the Army rescinded the job offer because of discrimination
instead of its learning that Gause lied about his criminal history and military
discharge. The amended complaint focuses on the perceived unfairness of the
administrative process that followed the rescinding of the job offer; it does not
allege facts showing that race or disability discrimination caused the job offer
to be pulled. The complaint does cite questions the Army asked about Gause’s
marital status and family during his job interviews. Such questions do not
reveal any animus. More than that, they ignore that Gause was offered the
job subject to the background investigation. Gause alleges no facts that
discriminatory intent developed after the job offer to cause it to be rescinded
(or that the plan all along was to deny him the job, but only after going through
the time and effort of obtaining a background investigation the Army knew
would reveal lies—a theory that on its face is not plausible). Because Gause
failed to state plausible claims of discrimination against the Army, we affirm
the dismissals of those claims. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467,
470–71 (5th Cir. 2016) (per curiam).
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Finally, Gause’s amended complaint alleges a number of “new” claims
that, unlike the ones just discussed, he did not first present to an executive
agency—claims based on the VEOA, “continuing violations” of Title VII by the
Labor Department, and “additional . . . allegations” of Defense Department
misconduct. As Gause no doubt knows from his extensive litigation, Title VII
and VEOA claims must be administratively exhausted before they are brought
in court. Melgar v. T.B. Butler Publ’g Co., 931 F.3d 375, 378 (5th Cir. 2019)
(per curiam) (Title VII); 5 U.S.C. §§ 3330a(a)–(d), 3330b (VEOA); see also
Conyers v. Rossides, 558 F.3d 137, 148–49 (2d Cir. 2009) (noting that a VEOA
claimant must appeal to the Merit Systems Protection Board before filing suit).
Because Gause does not argue that he exhausted these claims, the district
court correctly dismissed them.
Gause tries to get around the exhaustion problem by arguing that the
VEOA claim relating to the Army’s tentative offer is part of a “mixed case” as
it is joined with discrimination claims. A “mixed case” is a complaint of “a
personnel action serious enough to appeal to the [Merit Systems Protection
Board] and [an] alleg[ation] that the action was based on discrimination.”
Kloeckner v. Solis, 568 U.S. 41, 44 (2012). Whether a federal employee’s
lawsuit is a “mixed case” may have consequences for where administrative
review may be sought and where a later lawsuit may be filed. Id. But it does
not eliminate the requirement that the employee go through some
administrative review before filing a lawsuit; either the employing agency or
the Merit Systems Protection Board must first review the claim. Id. at 45
(citing 5 C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b)). Even assuming Gause
correctly classifies this as a “mixed case,” he never exhausted the Army VEOA
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claim in any administrative forum, so it was properly dismissed.
1
Cf. Hill v.
Potter, 48 F. App’x 198, 199 (6th Cir. 2002) (affirming the dismissal of the
plaintiff’s VEOA claim because he failed to “pursue[] administrative remedies
against the [agency] before filing suit . . .”); Hunt v. U.S. Army, 30 F. App’x 567,
568 (6th Cir. 2002) (per curiam) (same).
***
We AFFIRM the with-prejudice dismissal of Gause’s amended
complaint.

1
In any event, Gause failed to state a plausible claim under the VEOA, which provides
that “[p]reference eligibles or veterans . . . may not be denied the opportunity to compete for
[certain] vacant positions . . . .” 5 U.S.C. § 3304(f)(1); see also Dean v. Consumer Prod. Safety
Comm’n, 548 F.3d 1370, 1373 (Fed. Cir. 2008) (“The VEOA guarantees the veteran only a
right to apply and an opportunity to compete under the merit promotion process.” (quotation
omitted)). By alleging that he not only applied and interviewed for the human resources
position, but also that he received a tentative job offer, Gause establishes that the Army
complied with the VEOA. McMillon v. U.S. Dep’t of Justice, 637 F. App’x 600, 602 (Fed. Cir.
2016) (per curiam) (holding that an agency did not violate an applicant’s VEOA rights when
it considered her application and interviewed her); Smyth v. U.S. Postal Serv., 41 F. App’x
475, 477 (Fed. Cir. 2002) (per curiam) (holding that an agency did not violate an applicant’s
VEOA rights when it granted him an interview but later disqualified him based on
disciplinary issues).
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