United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided June 16, 2017

No. 16-5276

JIM LEE,

APPELLANT

v.

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

AND NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION,

APPELLEES

On Motion for Summary Affirmance

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-02102)

Rhonda L. Campbell and R. Craig Lawrence, Assistant U.S.

Attorneys, were on the motion for summary affirmance.

Jim Lee, pro se, was on the response for appellant. 

Before: ROGERS, KAVANAUGH, and MILLETT, Circuit

Judges.
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PER CURIAM: Jim Lee, proceeding pro se, appeals the

grant of the motion for judgment on the pleadings to the United

States Agency for International Development (“USAID”) and

the National Oceanic and Atmospheric Administration

(“NOAA”) (together “the agencies”). Lee contends that the

agencies violated Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq., by terminating his employment because

of his national origin. He also contends that NOAA violated 18

U.S.C. § 1001, which criminalizes false statements to the

government, by lying about why he was terminated.

The only aspect of his appeal that merits extended

discussion is whether 18 U.S.C. § 1001 creates a private right of

action. We hold it does not.

I.

According to the complaint, Lee was employed by a federal

contracting firm and worked at USAID from 2008 until he was

fired in 2013. Lee alleges that USAID terminated his

employment after the Department of Defense denied his

application for a security clearance in 2012, and that he was

denied a clearance because he and his family are from China.

In July 2013, Lee began working for NOAA. As with his

previous position, he was employed directly by a federal

contracting firm, SSAI. On April 30, 2014, Lee was fired. 

Lee contacted several people at the Department of Defense,

NOAA, and SSAI to determine why his employment was

terminated. Believing he was fired because of his national

origin, Lee alleges he called the Equal Employment Opportunity

Commission (“EEOC”) around the end of May or beginning of

June to make a complaint against NOAA. An EEOC

representative purportedly told Lee that he would have to sue
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SSAI, which in turn, would sue NOAA. Several months later,

Lee contacted NOAA’s Equal Employment Opportunity

(“EEO”) office and began communicating with an EEO

counselor. Lee alleges that during the counselor’s investigation

of his claims, a NOAA official told her that SSAI, not NOAA,

decided to fire Lee. The counselor emailed Lee to inform him

of this information, specifying that SSAI contacted NOAA and

told the agency to stop processing Lee’s paperwork because

SSAI decided to take him off the NOAA contract. Lee alleges

that when he contacted an SSAI manager and told him what the

EEO counselor had said, the manager told him that “was

absolutely not true.” 

Lee filed with the EEOC an employment discrimination

complaint against SSAI. When the EEOC dismissed his

complaint, he sued USAID and NOAA in the district court,

seeking damages and an injunction against further

discrimination and retaliation. He alleges that NOAA and

USAID violated Title VII by terminating his employment

because of his national origin and that NOAA violated 18 U.S.C.

§ 1001 by falsely stating during the EEO investigation that

SSAI, rather than NOAA, fired him. The district court granted

the agencies’ motion for judgment on the pleadings and

dismissed the complaint with prejudice, ruling that Lee does not

have a Title VII claim against the federal government because

he was a federal contractor, not a federal employee, and in any

event, Lee failed to timely exhaust his administrative remedies. 

The district court also ruled that 18 U.S.C. § 1001 does not

provide a private right of action. Lee appeals the dismissal of

his complaint, and the agencies move for summary affirmance. 

II.

On appeal, Lee offers no legal support to show that 

Section 1001 provides a private cause of action. Because this is
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a recurring issue and there are no published decisions by the

Court, we address it here and conclude for the following reasons

that it does not. 

Section 1001 provides, with exceptions not applicable here:

(a) Except as otherwise provided in this section,

whoever, in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the

Government of the United States, knowingly and

willfully –

(1) falsifies, conceals, or covers up by any trick,

scheme, or device a material fact; 

(2) makes any materially false, fictitious, or

fraudulent statement or representation; or

(3) makes or uses any false writing or document

knowing the same to contain any materially false,

fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than

5 years, or, if the offense involves international or

domestic terrorism (as defined in section 2331),

imprisoned not more than 8 years, or both. If the matter

relates to an offense under chapter 109A, 109B, 110, or

117, or section 1591, then the term of imprisonment

imposed under this section shall be not more than 8

years.

18 U.S.C. § 1001.1

1 The remainder of Section 1001 provides:

(b) Subsection (a) does not apply to a party to a
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Congress creates federal rights of action to enforce federal

laws. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Such

causes of action may be created explicitly or implicitly. The

touchstone is always Congress’s intent. Id. An explicit right to

sue is created by the text of the statute. “An express federal

cause of action states, in so many words, that the law permits a

claimant to bring a claim in federal court.” Traverse Bay Area

Intermediate School Dist. v. Michigan Dep’t of Educ., 615 F.3d

622, 627–28 (6th Cir. 2010) (quoting Int’l Union of Operating

Eng’rs, Local 150, AFL-CIO v. Ward, 563 F.3d 276, 283 (7th

Cir. 2009)). Section 1001 does not expressly grant an individual

cause of action to private persons alleging that they were harmed

judicial proceeding, or that party’s counsel, for

statements, representations, writings or documents

submitted by such party or counsel to a judge or

magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction

of the legislative branch, subsection (a) shall apply

only to –

(1) administrative matters, including a claim for

payment, a matter related to the procurement of

property or services, personnel or employment

practices, or support services, or a document

required by law, rule, or regulation to be

submitted to the Congress or any office or

officer within the legislative branch; or

(2) any investigation or review, conducted

pursuant to the authority of any committee,

subcommittee, commission or office of the

Congress, consistent with applicable rules of the

House or Senate.
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by violations of the statute. The question therefore becomes

whether the statute implies a private cause of action. 

Determining whether Congress intended to create an

implied cause of action begins with the text and structure of the

statute. Touche Ross & Co. v. Redington, 442 U.S. 560, 568

(1979). The Supreme Court has “rarely implied a private right

of action under a criminal statute,” Chrysler Corp. v. Brown,

441 U.S. 281, 316 (1979), and nothing in the text of 18 U.S.C.

§ 1001 suggests Congress intended otherwise. Although the

express “provision of a criminal penalty does not necessarily

preclude implication of a private cause of action for damages,”

such a provision in a “bare criminal statute,” with no other

statutory basis for inferring that a civil cause of action exists, is

insufficient to imply Congress intended to create a concomitant

civil remedy. Cort v. Ash, 422 U.S. 66, 79–80 (1975); see also

Central Bank of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 190 (1994). Nor does the structure of

Section 1001 imply a private cause of action inasmuch as it is

part of the criminal code. 

And looking beyond the “bare criminal statute,” the

legislative history of Section 1001 supports our conclusion. 

Section 1001 is a Civil War statute that was enacted to protect

against “bilk[ing] the Government out of money or property.” 

Hubbard v. United States, 514 U.S. 695, 706 (1995). When

amended in 1934, Congress broadened the purpose of Section

1001 “to aid the enforcement of laws” and to protect “federal

agencies from the variety of deceptive practices plaguing the

New Deal administration.” Id. at 707. Then, in 1996, after the

Supreme Court in Hubbard narrowly interpreted the scope of the

statute to exclude making false statements to the legislative and

judicial branches, Congress amended Section 1001 to clarify

that it criminalizes making knowing, willful, material false

statements not only to the executive branch, but also — with
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certain limitations — to the legislative and judicial branches.

142 Cong. Rec. S11605-02 (1996) (statement of Sen. Levin). 

Neither the 1996 amendments nor subsequent amendments in

2004 and 2006, which established longer maximum prison terms

for violations involving terrorism and certain sexual offenses,

indicate that Congress intended to create a private cause of

action under Section 1001. Moreover, Section 1001 was

originally enacted in the same bill as the precursor to the False

Claims Act, 31 U.S.C. §§ 3729 et seq., which does provide for

an express cause of action, id. § 3730(b). See Act of Mar. 2,

1863, ch. 67, 12 Stat. 696 (1863). The 1934 amendment to

Section 1001 “sever[ed] the historical link with the false claims

portion of the statute.” Hubbard, 514 U.S. at 706. That

Congress did not then carry over an express cause of action for

false statements, while leaving one in place elsewhere for false

claims, further belies any intent to create an implied cause of

action under Section 1001. See Touche Ross & Co., 442 U.S. at

571–72. 

Accordingly, we affirm the dismissal of Lee’s claim under

18 U.S.C. § 1001 because the statute does not create a private

cause of action. 

III.

Lee’s remaining contentions lack merit and we affirm, with

one modification of the order of dismissal. Lee contends that he

was unlawfully terminated from USAID and NOAA because of

national origin discrimination in violation of Title VII. Taking

the allegations of the complaint as true, as we must, Erickson v.

Pardus, 551 U.S. 89, 94 (2007), it is unclear whether he was a

federal employee within the meaning of Title VII. See Al-Saffy

v. Vilsack, 827 F.3d 85, 96 (D.C. Cir. 2016) (citing Spirides v.

Reinhardt, 613 F.2d 826, 831–32 (D.C. Cir. 1979)). But even if

Lee were a federal employee, he failed to exhaust his
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administrative remedies. See Payne v. Salazar, 619 F.3d 56, 65

(D.C. Cir. 2010); Park v. Howard Univ., 71 F.3d 904, 907 (D.C.

Cir. 1995). Although Lee filed an EEOC complaint regarding

his termination from NOAA, that complaint was dismissed and

did not effectively exhaust his administrative remedies because,

as Lee acknowledges, Compl. ¶ 30, it asserted claims only

against SSAI rather than the defendant in this action, NOAA. 

On the facts as alleged, however, if tolling applies, see 29

C.F.R. § 1614.105(a)(2), Lee might be able to refile his

administrative complaint and timely exhaust his administrative

remedies against NOAA. Harris v. Gonzales, 488 F.3d 442, 444

(D.C. Cir. 2007); see also Currier v. Radio Free Europe/Radio

Liberty, Inc., 159 F.3d 1363, 1367 (D.C. Cir. 1998). Therefore,

the order of dismissal shall be modified to state that the Title VII

claim against NOAA is dismissed without prejudice. Because

Lee concedes that he never attempted to timely exhaust his

administrative remedies against USAID, his Title VII claim

against USAID shall remain dismissed with prejudice.