UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) RANDOLPH S. KOCH, ) ) Plaintiff, ) ) v. ) Civil Action No. 12

- 0301 (PLF) ) MARY JO WHITE , Chairman, Securities ) and Exchange Commission, et al

. ) ) Defendants. 1 )

___________________________________ )

OPINION This employment discrimination case is before the Court on defendant s ’ motion to dismiss the action or, in the alternative, for summary judgment. Defendants Mary Jo White , Chairman of the United States Securities and Exchange Commission ( “ SEC ” ), and Susan R. Larson, an SEC employee , filed the ir motion on October 12, 2012, a pproximately eleven months
ago. Pro se plaintiff, Randolph S. Koch, did not file an opposition. On February 15, 2013, the Court issued an Order pursuant to Fox v. Strickland , 837 F.2d 507 (D.C. Cir. 1988), and Neal v. Kelly , 963 F.2d 453 (D.C. Cir. 1992), directing Mr. Koch to respond to defendants ’ dispositive motion by February 28, 2013, and informing him of the risks of failing to respond. See Fox / Neal Order (Feb. 15, 2013)

. Although Mr. Koch is trained as an attorney and has submitted briefs in opposition to dispositive motions in numerous other related cases, he has not responded to the

1 The Court has substituted Chairman Mary Jo White in place of former Chairman Mary L. Schapiro pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.2 motion in this action. 2 Nor has he made any request for an extension of time in this cas e since the Court ’ s February 15, 2013 Order. In these circumstances, the Court may treat the defendants ’ motion as conceded.
D. D.C. L OC
. C IV
. R. 7(b); see also Fox v. American Airlines, Inc. , 389 F.3d 1291, 1294

- 95 (D.C. Cir. 200 4) (finding that district court did not abuse its discretion in granting dispositive motion on the basis that plaintiffs ’ failure to timely respond was a concession of the motion ’ s validity under Local Civil Rule 7(b)) ; Cromartie v. Dist. of Columbia , 806 F. Supp. 2d 222 , 226 (D.D.C. 2011) (declining to reconsider treat ment of defendants’ motion for summary judgment as conceded, where plaintiff had failed to file timely opposition), aff’ d , No. 11

- 7099, 479 Fed. App’x 355 (D.C. Cir. May 2, 2012) . The Court also has considered the substance of the defendants ’ motion

. A fter careful consideration of the motion , the Equal Employment Opportunity Commission ( “ EEOC ” ) decision denying Mr. Koch ’ s administrative appeal, and the relevant legal authorities , the Court h as concluded that the motion should be granted on its mer its
and therefore will dismiss the case. 3

I. BACKGROUND Randolph Koch is a former employee of the Securities and Exchange Commission ( “ SEC ” ). Compl. ¶ 1. Mr. Koch alleges that he “ suffers from numerous, serious medical

2 See , e.g. , Plaintiff’s Memorandum in Support of His Opposition to Defendant’s Motion to Dismiss, Civil Action No. 08

- 1521, [ Dkt. No. 62 ] ; Plaintiff’s Memorandum o f Points and Authorities in Opposition to Defendant’s Dispositive Motion, Civil Action No. 10

- 0150, [ Dkt. No. 33 ].

3 The papers reviewed in connection with the pending motion include the following: Plaintiff’s Civil Complaint (“Compl.”) [Dkt. No. 1]; D efendants’ Motion to Dismiss or, in the Al ternative, for Summary Judgment (“Def s .’ Mot.”) [Dkt. No. 15]; the EEOC decision denying Mr. Koch’s administrative appeal, Koch v. Schapiro , No. 0120112623, 2011 WL 5023377 (E.E.O.C. Oct. 11, 2011), attached as Exh ibit A to Defendants ’ Mot ion ; and this Court’s February 15, 2013 Order (“ Fox / Neal Order”) [Dkt. No. 20].3 conditions which substantially limit him in major life activities. ” I d . ¶ 3. Although the

c omplaint contains no allegations of his other protected statuses, the C ourt takes judicial notice of the fact that Mr. Koch, in related lawsuits, has described himself as over forty years old, white, and Jewish. Koch v. Schapiro , 777 F. Supp. 2d 86, 87 (D.D.C. 2011); Koch v. Schapiro , 697 F. Supp. 2d 65, 67 (D.D.C. 2010). M r. Koch brings this suit against Chairman White in her official capacity as chairman of the SEC and against Ms. Larson in her individual capacity. Mr. Koch initiated this civil action on February 23, 2012, when he filed a complaint in this Court. M ost of Mr. Koch ’ s complaint is devoted to describing the SEC ’ s alleged failure to provide him promptly with certain benefits a fter his separation from the agency and Ms. Larson ’ s a lleged misstatements to him a bout the relevant application process for such benefits

. The se allegations , accepted as true for the purposes of this motion, are summarized as follows. Randolph Koch was separated from the SEC on October 13, 2009, for misconduct. Compl. ¶ 10. Following his separation, Mr. Koch s ent e

- mails and a letter to the
SEC ’ s Office of Human Resources requesting that he be placed in retirement

. Id . ¶ 11

. Soon after, in December 2009, Mr. Koch called Ms. Larson, a benefits officer at the SEC, who informed him that she would begin to process his application for retirement benefits

. Id

. ¶

¶ 12

- 13. Ms. Larson also led Mr. Koch to believe that she would arrange for the temporary continuation of his health insurance coverage and the provision of a subsidy to help him pay his health in surance premium. Id . ¶¶ 13, 17. 4 Mr. Koch does not allege that he had any contact with Ms. Larson before or after this conversation.

4 In the administrative proceedings before the agency, Ms. Larson apparently r efuted Mr. Koch’ s allegations and represented that she never received a request from Mr. Koch to process his retirement application. S ee Compl. ¶ 24.4 Mr. Koch, who has long suffered from a variety of physical ailments, fell ill once again in early 2010. Compl. ¶¶ 3

- 4, 18. From February 2010 through June 2010, he received medical treatment for a kidney stone, vertigo and related problems, and edema. Id

. ¶¶ 18

- 21. Although he continued to receive health coverage during this period, he never received the health ins urance premium subsidy, and instead paid the full premium himself. Id

. ¶ 14 . Nor did he receive retirement benefits

. Id

. ¶¶ 22

- 23. In late 2010, not yet having receiv ed information regarding his retirement application or subsidy, Mr. Koch contacted th e United States Office of Personnel Management ( “ OPM ” ) . Compl. ¶ 23 . Shortly thereafter, the OPM began to process his application, and Mr. Koch received his full accrued retirement benefit in August 2011. Id

. ¶¶ 27

- 28. He has not been paid the value of the he alth insurance premium subsidy , to which he maintains he is entitled. Id

. ¶ 28. In addition to the alleg ed facts summarized above, Mr. Koch ’ s complaint also contains allegations relating to an entirely separate exchange with a different SEC emplo yee. In early 2009, previous to the events described above and while he still was employed at the SEC, Mr. Koch initiated informal counseling through the SEC ’ s Equal Employment Opportunity ( “ EEO ” ) office. Compl. ¶ 29. This counseling was undertaken in connection with EEO Complaint No. 05

- 09

- 09, in which Mr. Koch asserted retaliatory conduct by the SEC Office of the Inspector General. See id

. ¶ 29 and preceding heading ; id . ¶ 42. Mr. Ko ch alleges that counselor Terri Booker was “ disputatious, ” id . ¶ 30 , and that she failed to conduct a final counseling interview. Id . ¶ 31. Mr. Koch asserts four causes of action arising from these events. In the first count of the complaint, Mr. Koch asserts that the SEC, through Ms. Larson, engaged in5 discriminatory and retaliatory conduct in violation of the Rehabilitation Act, the Age Discrimination in Employment Act ( “ ADEA ” ), and Title VII of the Civil Rights Act of 1964 “ by failing to process Koch ’ s retirement request, and/or by deceiving Koch into believing it would, without informing him that he should make his request to the Office of Personnel Management. ” Compl. ¶ ¶ 33, 34. In the second count, he asserts that the SEC, through Ms. Larson, engaged in discriminatory and retaliatory conduct in vio lation of the aforementioned statutes “ by failing to pay the [Federal Employees Health Benefits] premium subsidy required under the American Recovery and Reinvestment Act of 2009. ” Id . ¶¶ 36, 37. The third count is a constitutional due process claim alle ging that Mr. Koch was deprived of his retirement benefits and premium subsidy without due process. Id . ¶¶ 38

- 40. And finally, in the fourth count of the complaint, Mr. Koch asserts that the SEC failed to provide EEO counsel ing ; Mr. Koch does not specify the specific cause of action that stems from this alleged failure. Id . ¶¶ 41

- 43.

II. LEGAL STANDARD S While Mr. Koch is proceeding pro se in this case, the C ourt notes that he is a lawyer and an active litigant who has considerable experience pursuing employment discrimination matters. Koch v. Walter , --- F. Supp. 2d

---- , 2013 WL 1291097, at *2 (D.D.C. 2013). Nevertheless, the Court reviews his complaint under “ less stringent standards than formal pleadings [or legal briefs] drafted by lawyers. ” Chandler v. W.E. Welch & Associates, Inc. , 533 F. Supp. 2d 94, 102 (D.D.C. 2008) (quoting Haines v. Kerner , 404 U.S. 519, 520 (1972)). As the Court relies only on the pleadings and the administra tive decision issued by the EEOC, of which it may take judicial notice, it analyzes defendants ’ motion under Rule 12(b)(6), not as a motion for summary judgment under Rule 56. See F ED
. R. C IV
. P. 12(d);6 Laughlin v. Holder , 923 F. Supp. 2d 204 , 209 (D.D.C. 2013) (noting that a plaintiff ’ s formal administrative complaint is a public record subject to judicial notice). 5 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal of a complaint if a plaintiff fails “ to state a claim upon which relief can be granted. ” F ED
. R. C IV
. P

. 12(b)(6). “ Federal Rule of Civil Procedure 8(a)(2) requires only ‘ a short and plain statement of the claim showing that the pleader is entitled to relief, ’ in order to ‘ give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. ’” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). Although

“ detailed factual allegations ” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, the facts alleged must be “ enough to raise a right to relief above the speculative level. ” Id

. The complaint “ must contain sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face. ’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) ( quoting Bell Atlantic Corp. v. Twombly , 550 U.S. at 555 ). “ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. ” In re Interbank Funding Corp. Sec. Litig

. , 629 F.3d 213, 218 (D.C. Cir. 2010) (quoting Ashcroft v. Iqbal , 556 U.S. at 678). In considering a motion to dismiss under Rule 12(b)(6), the Court “ must accept as true all of the factual allegations contained in the complaint. ” Bell Atlantic Corp. v. Twombly , 550 U.S. at 555 (quoting Swierkiewicz v. Sorema N.A. , 534 U.S. 508, 508 n.1 (2002)). The complaint is construed liberally in the plaintiff ’ s favor, and the Court gives the plaintif f “ the benefit of all inferences that can be derived from the facts alleged. ” Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotations omitted). Nevertheless, the Court need

5 Neither party has supplemented the record with affidavits or other additional evidence.7 not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff ’ s legal conclusions. Id . ( citing Kowal v.
MCI Commc ’ ns Corp ., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

III. DISCUSSION
A. Counts One and Two Defendants asse rt that counts o ne and t wo of the complaint must be dismissed on three independent grounds: untimeliness of the filing of the civil complaint; noncompliance with the administrative counseling requirement; and failure to plead sufficient facts to state a claim for relief. As discussed below, t he Court agrees that counts one and two must be dismissed as untimely and unsupported by adequate factual allegations

. Without considering facts not properly before t he Court , i t can not find that failure to comply with the counseling requirement

serves as an additional ground for dismissal.

1. Ninety

- Day Requirement Before bringing a civil action under Title VII, the ADEA, or the Rehabilitation Act, a plaintiff must fi rst exhaust his administrative remedies with the agency that allegedly discriminated against him

. 42 U.S.C. § 2000e

- 16(c); 29 U.S.C. § 794a(a)(1); 29 U.S.C § 633a(b)

- (d); see also Payne v. Salazar , 619 F.3d 56, 58 (D.C. Cir. 2010). To begin that
process, a federal employee must contact an EEO counselor at the agency within forty

- five days of the alleged violation. 29 C.F.R. § 1614.105 (a)

. If the matter is not resolved through counseling, the emp loyee may file an administrative complaint with the agency. See 29 C.F.R. § 1614.106(a) . If the agency issues a final decision adverse to the employee, the employee may either appea l that decision to the EEOC or fi le a civil actio n in federal court . 29 C. F.R. § § 1614.110 , 1614.401, 1614.407.8 Where the federal employee pursues an appeal to the EEOC

– as Mr. Koch did in this case

– that ultimately proves unsuccessful , he may then file a civil action in federal district court, so long as he files his civil complaint within ninety days of receiving the EEOC right

- to

sue notice. 29 C.F.R. § 1614.407(c) ; see Mack v. WP Co., LLC , 923 F. Supp. 2d 294, 298 (D.D.C. 2013). “ The ninety

- day time limit from the date of receipt ‘ functions like a statute of limit ations. ’” Mack v. WP Co., LLC , 923 F. Supp. 2d at 298 (quoting Wiley v. Johnson , 436 F. Supp. 2d 91, 96 (D.D.C. 2006)). If there is no evidence in the record of the date of receipt, “ the
Court ‘ must determine a presumptive date of receipt. ’” Id

. (quoting Hogue v. Roach , 967 F.Supp. 7, 9 (D.D.C.1997)). Cou rts routinely presume that the right

- to

- sue notice is received either three or five days after it is issued

. Id . at 299 (collecting cases).
Mr. Koch filed a formal administrative complaint in connectio n with the claims presented in counts one and t wo of this action on February 15, 2011. Koch v. Schapiro , 2011 WL 5 023377 , at *1. The agency dismissed his claims, and the EEOC affirmed the agency ’ s dismissal in a decision issued on October 11, 2011. Id . at *3. Included in the EEOC ’ s decision was a right

- to

- sue notice advising Mr. Koch that he had a right to file a civil action within ninety calendar days

. Id . at *4.
Th e issuance of the right

- to

- sue notice triggered the start of the ninet y - day clock. The date that f ell n inety days after October 11, 2011, wa s January 9, 2012. If the Court applies the more common three

- day presumption for receipt of notice , see Mack v. WP Co., LLC , 923 F. Supp. 2d at 299, then Mr. Koch’s deadline for filing a civil complaint was Thursday, January 12,
2012. Applying the more generous five

- day presumption brings the deadline to January 14, 2012, which took place on a S aturday . The next non - holiday weekday was Tuesday, January 17 , 2012.9 Ye t Mr. Koc h waited until February 23, 2012

– over one month after the ninety

day deadline had passed

– to file his civil complaint. Mr. Koch has not provided any evidence or argument that this delay was due to extenuating circumstances. The Court therefore conclud es that counts one and two must be dismissed as untimely.

2. Exhaustion of Administrative Remedies

– EEO Counseling Requirement Defendants next argue that Mr. Ko ch was untimely in seeking c ounseling at the
SEC ’ s EEO Office . As noted above, an employee aggrieved under the ADEA, Title VII, or the Rehabilitation Act must initiate counseling with an agency counselor within forty

- five days after the alleged discriminatory or retaliatory act occurred. 29 C.F.R. § 1614.105; see also Woodruff v. Peters, 482 F.3d 521, 527 (D.C. Cir. 2007). If the employee was unaware of the discriminatory or retaliatory act at the time, however, the clock begins running from the date on which the employee learned, or reasonably should have suspect ed, that he was the victim of discrimination or retaliation

. 29 C.F.R. § 1614.105 (a)(2); see Coghlan v. Peters , 555 F. Supp. 2d 187, 200 (D.D.C. 2008). Although Mr. Koch asserts that he spoke to Ms. Larson in December 2009, Compl. ¶ 1 2 , the EEOC decision indicates that Mr. Koch did not contact an EEO counselor until November 26, 2010. Koch v. Schapiro , 2011 WL 5023377, at *1

- 2 . Defendants contend that the lengthy delay between the date of Mr. Koch ’ s alleged conversation with Ms. Larson and the d ate on which he first sought co unseling render s his administrative complaint untimely. Def s. ’ Mot. at 11. Mr. Koch, for his part, alleges that “ [i]t was only during the fall of 2010 that Koch began to wonder why he was not hearing anything from the SEC about his retirement or the health insurance premium subsidy

. ” Compl. ¶ 22. Whether Mr. Koch timely sought counseling services thus depends on whether he reasonably should have suspected prior to October 201010 that Ms. Larson had misled him. T his issue t urns on questions of fact that cannot be resolved on the pleadings and the EEOC decision

. Approximately ten months passed between December 2009, the month in which the alleged conversation with Ms. Larson took place, and October 12, 2010, the date fort y - five days prior to the date when Mr. Koch first sought counseling. Certainly this is a long time, but
not so long as to put Mr. Koch unquestionably on notice that his application was not being processed. After all, approximately nine months passed between the month in which Mr. Koch contacted the correct office regarding his retirement benefits ( around November 2010) , see Koch v. Schapiro , 2011 WL 5023377, at *1

- 2 , and the month in which he began rece iving these bene fits (August 2011). S ee Compl . ¶ 27

. Based on the record before it, t he Court cannot say that as a matter of law, Mr. Koch reasonably should have suspected before the fall of 2010 that he had been the victim of discrimina tion or retaliation

. 6 Because the Court dismiss es counts one and two for the reasons described above and below , however, it need not resolve this question either on a motion for summary judgment or at trial

. 3. Dismissal for Failure to Allege Sufficient Facts
D efendants assert that Mr. Koch has failed to allege sufficient facts in support of counts one and two to state a facially plausible claim for relief. They are correct.

6 Mr. Koch’s purported failure to timely seek counseling was the basis for the agency’s dismissal of these claims. Koch v. Schapiro , 2011 WL 5023377, at *1. It appears, however, that the agency was considering evidence not currently before the Court. In the EEOC’s affirmance of the agency’s decision, the EEOC cited statements by Mr. Koch that he had contacted Ms. Larson in March 2010 but received no respons e. Id . at *1

- 2. In light of these statements, the EEOC upheld the agency’s finding that Mr. Koch “should have reasonably suspected discrimination as of March 18, 2010 (after the last e

- mail he send [sic] to the Agency), in light of his assertion that the Agency failed to respond to his request[.]” Id . at * 2. In this action, however, defendants have not offered any evidence of Mr. Koch’s statements regarding the March 2010 e

- mail to Ms. Larson ; nor does Mr. Koch mention contacting Ms. Larson in March 201 0 in his civil complaint.11 As noted above, a lthough “ heightened fact pleading of specifics ” is not required
to survive a Rule 12(b)(6) motion , a plaintiff must allege “ enough facts to state a claim to reli ef that is plausible on its face

. ” Bell Atlantic Corp. v. Twombly , 550 U.S. at 570

. The plausibility standard articulated in Twombly , and confirmed in Iqbal , “ asks for more than a sheer possibility that a defendant has acted unlawfully. ” Ashcroft v. Iqbal , 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly , 550 U.S. at 556). “ Where a complaint pleads facts that are ‘ merely consistent with ’ a defendant ’ s li ability, it ‘ stops short of the line between possibility and plausibility of ‘ entitlement to relief. ’” Id . (quoting Bell Atlantic Corp. v. Twombly , 550 U.S.
at 557); see id . ( not ing that a complaint that “ tenders ‘ naked assertion[s] ’ devoid of ‘ further fa ctual enhancement ’” does not suffice)

. Although Mr. Koch alleges facts that support an inference that Ms. Larson misinformed him about the application process for benefits, Compl. ¶¶ 12

- 14, 17, 23, he alleges

no facts suggest ing that Ms. Larson acted w ith discrimin atory or retaliatory purpose. Absent from the complaint are any allegations that Ms. Larson knew about Mr. Koch ’ s protected statuses or protected conduct. Even if the Court assumes that Ms. Larson ascert ained that Mr. Koch was above forty , by virtue of his request for retirement, the facts as alleged in the complaint offer no reason to believe that her alleged misconduct was motivated by discriminatory animus. The only statements in the complaint that might even suggest that Ms. Larson

a cted with discriminatory or retaliatory purpose are located in the summaries of the first and

sec ond causes of action, wherein Mr. Koch states in conclusory fashion that the “ SEC violated the Rehabilitation Act, the Age Discrimination in Employment Act, an d Title VII of the Civil Rights Act ” by discriminating again st him “ on the basis of his disabilities, his age, his race and12 religion ” and “ retaliating against Koch fo r his prior protected activity

. ” Compl. ¶¶ 33

- 34,
36

- 37. But “ the tenet that a court mus t accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. ” Ashcroft v. Iqbal , 556 U.S. at 678

. Mr. Koch ’ s invocation of the federal di scrimination statutes, with nothing more, is insufficient to create an infe rence of defendants ’ liability. Mr. Koch ’ s failure to plead sufficient facts to state a plausible claim for relief the refore provides a second independent ground for dismiss ing counts one and two

.

B. Count Three: Violations of Mr. Koch ’ s Due Process Rights Mr. Koch next contends that the SEC unconstitutionally deprived him of his property interest in his retirement benefits and premium subsidy, without due process of law, when Ms. Larson allegedly misinformed him that she would handle his enrollme nt in these benefits programs. Compl. ¶¶ 38

- 4 0. Although his logic is far from clear, Mr. Koch seems to allege that this misinformation constituted a deprivation of his property interest on the part of the
SEC. Id . ¶ 40. He also implies that the SEC was required to allow him some process

– i.e.,

some opportunity to be heard

– before effecting this deprivation. Based on Mr. Koch’s allegations, the Court will assume, without deciding, that Ms. Larson’s actions deprived Mr. Koch of a protected property interest. Nevertheless, this count must be dismissed for at least two reasons. First, i t is impossible to discer n the procedures to which Mr. Koch believes he was entitled , of which he allegedly was deprived

. “ To state a procedural due process claim, a complaint must suggest ‘ what sort of process is due. ’” Elkins v. Dist. of Columbia , 690 F.3d 554, 561 (D.C. Cir. 2012) (quoting Doe by Fein v. Dist. of Columbia , 93 F.3d 861, 869 (D.C. Cir. 1996)). The complaint fails to do so here, and therefore falls short of Rule 8 ’ s pleading requirement s.13 Second, e ven if the Court assumes that Mr. Koch properly alleged a violation of his constitutional due process rights relating to th e provision of his benefits, this violation is not remediable through the Bivens

- type constitutional tort claim brought here

. In Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics , 403 U.S. 388 (1971) , the Supreme Court held that the federal courts have discretion to create a remedial action by which an aggrieved individual may sue and seek damages for violations of certain constitutional rights by federal officials , even where Cong ress has not expressly authorized a damages remedy. Id . at 39 7 ; see also Davis v. Billington , 681 F.3d 377, 381 (D.C. Cir. 2012). Such discretion is limited, however . The Supreme Court has cautioned that a court should decline to create a Bivens remedy where “ any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. ” Wilkie v. Robbins , 551 U.S. 537, 550 (2007). Where no such alternative process exists, “ the federal courts must make the kind of remedial determination that is appropriate for a common

- law tribunal, paying particular heed, however, to any special factors counsel l ing hesitation before authorizing a new kind o f federal litigation. ” Id . (quoting Bush v.
Lucas , 462 U.S. 367, 378 (1983)). Mr. Koch relies on precisely the same factual allegations to support his due process claim as those relied on for his discrimination and re taliation claims. Compl. ¶¶ 32, 35, 38 (repeating and realleging the allegations contained in paragraphs 1 thro ugh 28 in support of counts one, two and three). To the extent that the due process claim is simply a re

- styled discrimination claim , it would be improper to recognize an independ ent Bivens action to address defendants ’ alleged misconduct , as the anti

- discrimination statutes provide an “ alternative, existing process for protecting [Mr. Koch ’ s] interest. ” Wilkie v. Robbins , 551 U.S. at 550; see14 also Brown v. General Services Admini stration , 425 U.S. 820, 835 (1976) (holding that Title VII of the Civil Rights Act “ provides the exclusive judicial remedy for claims of discrimination [on the basis of race, sex, or religion] in federal employment ” ). Even if the due process claim again st Ms. Larson is viewed as independent of any allegations of discrimination or retaliation, and merely rests on allegation s of an adverse personnel action, it likely is foreclosed by the Civil Service Reform Act ( “ CSRA ” ), which establishes a “ comprehensive system to administer public rights ” for federal employees. Davis v. Billington , 681 F.3d at 384

. The Supreme C ourt and the D.C. Circuit have held that the
CSRA , which establishes “ an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, ” constitutes “ a special factor that preclude [ s ] creation of a Bivens remedy. ” Id

. at 381 (quoting Bush v. Lucas , 462 U.S. at 388 ) ;

see also Kittner v. Gates , 708 F. Supp. 2d 47, 54

- 56 (D.D.C. 2010) ( finding federal employee’s due process claims relating to discrimination and retaliation, if not pre empted by Tit le VII , were precluded by CSRA). Mr. Koch, in declining to respond to the defendants ’ motion, has made no showing that a Bivens remedy is pre served here. Cf

. Davis v. Billington , 681 F.3d at 383 (noting that Bivens remedy may be available to public employee where Congress inadvertently omitte d a damages remedy for claimant or intended to preserve Bivens remedy).

C. Count Four: Improper Processing of Prior Administrative Complaint The fourth count in Mr. Koch ’ s complaint alleges that a counselor in the SEC ’ s EEO office failed to provide adequate counseling services relating to a different administrative complaint , EEO Complaint No. 05

- 0 9

- 09 . Mr. Koch does not specify the cause of action stemming from this alleged misconduct ; indeed , he cannot, as allegations of an agency ’ s improper processing of an administrative complaint do not support an actionable claim. See1 5 Smith v. Casellas , 119 F.3d 33, 34 (D.C. Cir. 1997) ; Jordan v. Summers , 205 F.3d 337, 342 (7th Cir. 2000)

. In Smith v. Casellas , the D.C. Circuit held that a complainant may not sue the EEOC for improper handling of a discrimination charge. 119 F.3d at 34 ( “ Congress has not

a uthorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC ’ s alleged negligence or other malfeasance in processing an employment discrimination charge. ” ). As the court of appeals observed: “ Congress intended the private right of action provided for in section 706(f)(1) of the [ Civil Rights ] Act . . .

– under which an aggrieved employee may bring a Title VII action directly against his or her employer

– to serve as the remedy for any improper handling of a discrimination c harge by the EEOC. ” Id

. ; accord Bagenstose v. Dist. of Columbia , 503 F. Supp. 2d 247, 255

- 56 (D.D.C. 2007).
Th e D.C. Circuit’s analysis is equally applicable to allegations of improper handling of a complaint by the EEO office of a federal agency , whic h provides a function analogous to the EEOC . To the extent that an agency ’ s improper processing of an administrative complaint results in the agency ’ s f ailure to address the underlying violation of an anti

discrimination statute , this harm to the employee can be remedied through the employee ’ s right of action in federal court. See Jordan v. Summers , 205 F.3d at 342 (holding that public employees have no claim against the EEO office of their employer agency for failure to process a discrimination claim) ; 29 C.F.R. § 1614.107(a)(8) (providing that an agency shall dismiss a n administrative complaint “ [t]hat alleges dissatisfaction with the processing of a previously filed complaint ” )

. I ndeed, Mr. Koch availed himself of this right in January 2010, when he initiated a separate lawsuit based on the underlying claims asserted in EEO Complaint No. 05

- 09

- 09

. See16 Koch v. Walter , 2013 WL 1291097, at *1 & n.1. Count four of the complaint therefore must be
dismissed.

IV. CONCLUSION
M r. Koch has not attempted to argue that his complaint might be amended to properly support any of his four claims . For this reason, and b ecause the Court has no independent basis to believe that the c omplaint could be amended to state a claim, it dismisses the c omplaint with prejudice and dismiss es the action in its entirety. An Order consistent with this Opinion will issue this same day.

/s/

________________________ PAUL L. FRIEDMAN DATE: September 10, 2013 United States District Court