UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEAN S. SENECA, Plaintiff ,

v. THOMAS E. PRICE, M.D., Secretary, Department of Health and Human Services, Defendant. Civil Action No. 17-181 (RDM)

MEMORANDUM OPINION Plaintiff Dean S. Seneca is a he alth scientist at the Center f or Disease Control and Prevention (“CDC”), a component a gency of the Department of Hea lth and Human Services (“HHS”). Seneca contends that the CDC discriminated and retali ated against him in violation of Title VII of the Civil R ights Act of 1964, 42 U.S.C. § 2000e et seq. He does not, however, assert a Title VII claim in this acti on. Rather, invoking the Adminis trative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. , Seneca alleges that HHS—and, although not named as a defendan t, the Equal Employment Opportunity Co mmission (“EEOC”)—acted in an ar bitrary and capricious manner when the EEOC administra tive law judge (“ALJ”) assigned to adjudicate his case declined to compel two allegedly “essential” witnesses to appea r for questioning by an EEO investigator and failed to consid er the testimony of those same witnesses before rendering his decision; when HHS adopted the A LJ’s decision on the merits; an d when the EEOC’s Office of Federal Operations affirmed t he ALJ’s decision. Dkt. 1. In sh ort, Seneca challenges the EEO administrative process under the APA, as opposed to asserting a claim against HHS under Title VII or any other antid iscrimination law.2 HHS moves to dismiss Seneca’s complaint under Federal Rule of C ivil Procedure 12(b)(6) for failure to state a claim. See Dkt. 9. HHS argues that, because Seneca has an adequate remedy at law—a priv ate right of action under Title VI I—he cannot invoke the APA to challenge the investigation and a djudication of his administrat ive EEO complaint. Id. at 8–10. As explained below, the Court agrees and will, accordingly, gra nt HHS’s motion to dismiss.
I. BACKGROUND For purposes of the pending moti on to dismiss, the Court accept s the allegations in Seneca’s complaint and incorporated materials as true. See Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011); see also Nichols v. Vilsack , No. 13–01502, 2015 WL 9581799, at *1 (D.D.C. Dec. 30, 2015) (explaining t hat in “adjudicating a m otion to dismiss for failure to state a claim, a court may cons ider, along with the facts alleg ed in the complaint, ‘any documents either attached to or incorporate d in the complaint and matters ’ subject to ‘judicial notice’”) (quoting EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997)). On September 19, 2012, Seneca, an employee at the CDC’s Office of State, Tribal, Local and Territorial Support, filed an ad ministrative EEO complaint with HHS, alleging that the CDC “discriminated against him on the bases of his race (Seneca Ind ian), national origin (Seneca Indian), religions (Catholic/L ong House), color (medium Brown), and reprisal for prior protected activity.” Dkt. 1 at 4 (Compl. ¶10); see also Dkt. 1-2 at 2. Seneca asserted, among other things, that the CDC “created a wr itten policy . . . that specifically targeted [him] by excluding him from certain program activities/assignm ents related to American Indi an tribal activity;” that CDC used the policy “to intimidate, hara ss, and interfere with [his] pur suit of pending EEO matters;” that he was “denied the opportunity t o conduct a program review . . . of one of his grantees” because “of his race;” and that he “was subjected to disparate treatmen t when he was denied the3 opportunity to attend” a meeting. Dkt. 1-2 at 2. Seneca, “thr ough his attorney,” twice amended his complaint to include additional allegations. Id. at 2–3. After performing an investigation into Seneca’s claims, HHS pro duced a Report of Investigation (“ROI”), id. at 3, and, upon receipt of the ROI , Seneca timely requested a hearing before an EEOC ALJ, Dkt. 1-5 at 9. In addition, Seneca filed a motion for sanctions, alleging that, in the course of conducting its investigation, HHS failed to make two “critical” witnesses available for interview and that those witnesses would have pro vided “pertinent” testimony as to “many of the key aspects of his asserted claims of unlawful . . . discrimination.” Dkt. 1-6 at 5– 11. The ALJ denied that motion, explaining that Seneca could “ submit his witness list to the [ALJ] for approval” and that, “[i]f the witnesses [were] determ ined to be relevant, the [ALJ] c[ould] . . . direct[] [HHS] to make the witnesses available fo r a hearing on the merits of [Seneca’s] allegations of discrimination.” Dkt. 1-8 at 1. Sho rtly thereafter, HHS filed a motion requesting a decision from the ALJ on Seneca’s complaint withou t a hearing. Dkt. 1-5 at 9. Over Seneca’s objection, the A LJ granted that motion on July 16 , 2014, and, at the same time, issued a decision on Seneca’s Ti tle VII claims on the merits. Dkt. 1-3 at 16. The ALJ did not seek or consider the testimony of the two witnesses. He explai ned: Because “there [wa]s no genuine dispute” with “respect t o a material fact” or any “issu e of credibility,” there was no need to hold “a hearing on the merits of [Seneca’s] allegations of d iscrimination.” Dkt. 1-3 at 16. On the merits, the ALJ concluded t hat Seneca “failed to prove that [HHS] subjected him to discrimination as alleged.” D kt. 1-2 at 3. HHS, in turn, “ado pt[ed] and fully implement[ed]” the ALJ’s ruling as its fin al decision. Dkt. 1-4 at 1–3. On September 19, 2014, Seneca appealed HHS’s adoption of the AL J’s decision to the EEOC’s Office of Feder al Operations, arguing that the ALJ “erre d in issuing a decision without a4 hearing” because “two management witnesses [who] could have pro ved his prima facie case were not interviewed,” resulting i n a “record [that] was not co mplete.” Dkt. 1-2 at 1, 6–7. In a decision issued more than two year s later, the EEOC disagreed, concluding that Seneca had “not demonstrate[d] that the eviden ce that [the witnesses] would hav e provided would have established his prima facie ca se,” and, even assuming that Sene ca had proven his prima facie case, the EEOC determined that Seneca had not “present[ed] any evidence” showing that HHS’s “articulated legitimate, nondiscri minatory reasons” for its act ions “were pretext for discrimination.” Id. at 4–5. Seneca then filed suit in this Court, alleging that the ALJ, HH S, and the EEOC’s Office of Federal Operations acted a rbitrarily and capriciously by fai ling to solicit or to consider the testimony of the two “critical” w itnesses he identified in the course of the EEO investigation and administrative proceeding. See, e.g. , Dkt. 1 at 5 (Compl. ¶ 17); id. at 6–10 (Compl. ¶¶ 19–31) (challenging the ALJ’s decisi on to issue a decision without hol ding a hearing); id. at 10–11 (Compl. ¶¶ 32–37) (challenging HHS ’s adoption of the ALJ’s deci sion); id. at 12–13 (Compl. ¶¶ 38–43) (challenging the EEOC’s affirmance of HHS’s adoption of the ALJ’s decision).
II. LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) is designed to “test[] the legal suffi ciency of a complaint.” Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating such a m otion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [th e] claim’ to relief, and then determine whether the plaintiff has pleaded those elements with ade quate factual su pport to ‘state a claim to relief that is plausible on its face.’” Blue v. District of Columbia , 811 F.3d 14, 20 (D.C. Cir. 2015) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 678 (2009)) (alterations in original) (int ernal citation omitted).5 Although “detailed factual allega tions” are not necessary to wi thstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a c laim to relief that is plausible on its face,’” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570).
III. ANALYSIS “[F]inal agency action” is only “ subject to judici al review” un der the APA if “there is no other adequate remedy in a c ourt.” 5 U.S.C. § 704. The questi on raised by HHS’s motion to dismiss is whether Title VII’s provision permitting individuals to bring “civil act ion[s]” after receiving “notice of final action taken by . . . the [EEOC] upo n an appeal” constitutes an “adequate remedy” within t he meaning of § 704. 42 U.S.C. § 200 0e-16(c). The Court agrees with HHS that it does. Under Title VII, an aggrieved federal employee like Seneca has the right to de novo review in a federal district c ourt if he is dissatisfied with t he outcome of the administrative EEO proceeding. See Chandler v. Roudebush , 425 U.S. 840, 846 (1976) (“[F]ederal employees are entitled to a trial de novo of their employment discrimination claims.”); see also Wright v. Dominguez , No. 04-5055, 2004 WL 1636961, at *1 (D.C. Cir. July 21, 2004) (“Federal employees . . . are not bound by the outcome of the EEOC’s admi nistrative process but are entitled to de novo review in dist rict court regardless of that outcome.”). The availability of that de novo review, the D.C. Circuit has e xplained, “provides [an employme nt discrimination litigant] an adequate remedy in a court within t he meaning of 5 U.S.C. § 704 for complaints about the EEOC’s administrative process” and “preclud[es] an AP A challenge to the EEOC’s6 procedures.” 1 Wright , 2004 WL 1636961, at *1; see id. (“[T]he district cou rt properly concluded that [the plaintiff’s discrimi nation] claims were not reviewabl e under the Administrative Procedure Act.”); see also Garcia v. Vilsack , 563 F.3d 519, 522–23 (D.C. Cir. 2009) (explaining that relief is not available unde r the APA “‘where a statute af fords an opportunity for de novo district-court review’ of t he agency action”) (quoting El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs. , 396 F.3d 1265, 1270 (D.C. Cir. 2005)); McCall v. Young , 179 F. Supp. 3d 92, 96 (D.D.C. 2016) (explaining that the “D. C. Circuit’s decision in Wright . . . emphasizes that an adequat e remedy in court exists with respect to procedural challenges against the EEOC because a complainant may pursue a substantive discrimination claim in Federal district court” ). The fact that the plaintiff in Wright sought to sue the EEOC, while Seneca seeks to sue HHS, moreover, is irrelevant to the § 704 inquiry; as the D.C. Circuit explained in Wright , the relevant question is whethe r Title VII provides an adequa te remedy to a plaintiff dissatisfied with whatever EEO process he may have received. Here, as in Wright , Title VII provides that remedy. In his opposition brief, Seneca does not identify any contrary authority. Instead, he simply asserts that he “scrupul ously adhered to all Title VII p rocesses” and tha t he carefully “exhaust[ed] [his] federal administrative remedies.” Dkt. 10 at 1, 7. The Court agrees with HHS that these arguments “miss[] the point.” Dkt. 11 at 1. HHS do es not contend that Seneca failed

1 Other Courts of Appeals have r eached the same conclusion. See, e.g. , Ward v. EEOC , 719 F.2d 311, 314 (9th Cir. 1983) (noting that “Congress could [not ] have been more clear in expressing its intent that the pr ivate right of action preserve d by [Title VII] is ‘an adequate remedy in a court’ for the allege d shortcomings in the EEOC’s h andling of the plaintiffs’ charges” and holding that the “actions of the EEOC . . . are no t reviewable . . . under the APA”) (quoting Hall v. EEOC , 456 F. Supp. 695, 701 (N.D. Cal. 1978)); Stewart v. EEOC , 611 F.2d 679, 684 (7th Cir. 1979) (finding that b ecause “an ‘adequate re medy in a court’ [wa]s available to appellants” under Title VII, the ir APA claims were “without merit”).7 to exhaust his administrative re medies; rather, it correctly ar gues that the vehicle by which he challenges the decisions made by the ALJ, HHS, and the EEOC’s O ffice of Federal Operations is unavailable. Seneca’s core contention is that, if HHS had soli cited the testimony of the two witnesses he identified, he w ould have successfully proved the Title VII discrimination and retaliation claims set out in his EEO complaint. See, e.g. , Dkt. 1 at 8–9 (Compl. ¶ 26). The proper vehicle to challenge the government’s failure to solicit or to consider the testimony of these witnesses is not to challenge the EEO administrative proc ess under the APA, but to file a Title VII complaint, and, if that case proceeds to discovery, t o seek to depose those two witnesses and to build the record that Seneca contends was miss ing before the EEOC and HHS. 2
CONCLUSION For these reasons, the Court will GRANT HHS’s motion to dismiss Seneca’s complaint without prejudice. A separate order will issue. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: June 27, 2017

2 Because the Court concludes that Seneca’s complaint fails to state a claim under the APA, it need not pass on HHS’s separate ar gument that venue does not li e in this district. Dkt. 9-1 at 10– 11. The Court notes, however, tha t failure to bring an action in the proper venue is a valid basis for dismissal under Rule 12(b )(3), and that 42 U.S.C. § 2000e-5 (f)(3) mandates that a Title VII action must be brought “in the Sta te in which the unlawful empl oyment practice is alleged to have been committed;” “in the judicial district in which the em ployment records relevant to such practice are maintained and admin istered;” or “in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employmen t practice.”