UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) RANDOL PH S. KOCH, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-1645 ( PL F) ) ERI C H. HOL DER, J R., ) Attorney

Gene ral of the United States, ) ) Def endant. ) ____________________________________)
MEMORANDUM OPI

NI ON This employ

ment discrimination matter is befor e the Court on def endant’ s motion to dismi ss the action pursua nt to Rul e 12(b) (6) of

the Fe dera l Rules of Civil Procedur e for failure to state a c laim. Defe ndant Eric H . Holder, Jr., the Attorney Gene ral of the United States, filed the motion on March 14, 2012, a pproxi mately

one year ag o. See De fenda

nt’s Motion to Dism iss (“D ef.’ s Mot.”), Dkt. No. 6. Pro se plaintiff, Randolph S. Koch, did not file an opposition. On Fe bruar y 15, 2013, the Court issued an Or der pur suant to Fox v. S trickland, 837 F .2d 507 (D.C. Cir. 1988), and Ne al v. Kelly , 963 F.2d 453 ( D.C. Cir. 1992), direc ting Mr. K och to re spond to defe ndant’s dispositive motion by Fe bruar y 28, 2013, and informinghim of the risks of fa iling to respond. See Orde r, Dkt. No. 19. Althoug h Mr. Koch is tra ined as a n attorney and has submitted briefs in opposition to disposi tive motions i n numerous other related ca ses, he ha s not respondedto the motion to di smiss i n this action. Nor ha s he made any reque st for an e x tension of time, or 1 made a ny other filingwith the Court in the time since the Court’s F ebrua ry 15, 2013 Orde r. In these c ircumstance s, the Court may treat the Attorney

Gene ral’s motion as
conce ded. D.D.C. L oc. Civ. R. 7(b); see a lso Fox v. American Air lines, Inc., 389 F .3d 1291, 1294-95 (D.C. Cir. 2004) ( findingthat district court did not abuse its discre tion in gra nting motion to di smiss on the basis that plaintiffs’ f ailure to timely

respond wa s a conc ession of the motion’s validity

under L ocal Civil Rule 7(b)). The Court also has consider ed the substanc e of the motion to dis miss and, after car eful c onsideration of the motion and the rele vant ca se law a nd statutes, has conc luded that the motion should be g rante d on its merits.
I . BA CKGROUND Randolph Koch is a f

ormer e mploy ee of

the Securities and Exchang e Commissi on (“SEC”). Compl. ¶ 1, Dkt. No. 1. Mr. K och alleg es that he is disabled w ithin the meaningof the Rehabilitation Act. See id. ¶ 6. Although the Complaint contains no alleg ations of his other protec ted statuses, the Court take s judicial notice of the f act that Mr. K och, in re lated lawsuits, has desc ribed himself a s over f orty y ear s old, white, and Jewish. S ee, e .g ., Koch v. Scha piro, 777 F. Supp. 2d 86, 87 (D.D .C. 2011); Koch v. Schapir o, 697 F. Supp. 2d 65, 67 (D.D .C. 2010). Koch br ings this suit ag ainst the Attorney Gene ral in his officia l capa city as hea d of the Depa rtment of Just ice.

See, e.g ., Plaintiff’s Memorandum in Support of His Opposition to Defe ndant’s 1 Motion to Dism iss, Ci vil Action No. 08-1521, Dkt. No. 62; Plaintiff’s Memora ndum of Points and Authorities to Def

endant’ s Dispositi ve Motion, Civil Action No. 10-0150, D kt. No. 33. 2Mr. Koch c laims that an employ ee of the J ustice De partment, Assistant United States Attorney

Marina B raswe ll, discriminated and re taliated ag ainst Koch duringa deposition taken in a r elated c ase, K och v. Dona ldson, et al., Civil Action No. 02-1492. Acc ordingto Koch, Br aswe ll questioned him during the de position about his t ime and attenda nce a s an employee at the SEC. Compl. ¶¶ 5-6, 8. K och alleg es that these que stions were ina ppropriate and beyond the scope of that lawsuit. I d. ¶¶ 7- 9. He then a lleg es that B raswe ll conspired with counse l at the SEC to i nitiate an investig ation by the SEC’s Office of Inspector G ener al (“ OI G”) into his t ime and attenda

nce. I d. ¶ 10. Koc h asser ts that these alleg ed ac ts by a Just ice De partment e mploy ee – askingimproper que stions during a deposition and conspiringto initi ate a n OI G investig ation into Mr. Koch’s c onduct – constitute unlawful discr imination aga inst him beca use of his ag e,
rac e, re ligion, and disa

bility , and unlawf

ul retaliation for

his protected a ctivities in opposing discrimination in employ ment. Compl. ¶¶ 24-25, 31-32. Koch f iled an administrative c omplaint with the J ustice De partment a lleg ing discrimination and re taliation. The complaint wa s dismis sed on the ba sis that he was not an “ag g rieve d employ ee” or an “ ag grieve d applicant f or employ

ment” under

29 C.F.R. § 1614.103 and that his complaint there fore failed to state a claim for r elief unde r 29 C.F.R. § 1614.107(a) (1). See “De f.’s Mot.” at 3. The Off ice of Fe dera l Opera

tions affirmed the dismiss al. I d. at 3-4 (c iting Koc h v. Holder, EE OC Dec ision No. 0120113607, 2011 W L 5023352 (Oc t. 14, 2012)). Koc h subsequently initiated this civil action under Title VI I of the Civil Rights Act, 42 U.S.C. §§ 2000e e t seq., Sections 501 and 505 of the Rehabilitation Act, 29

3U.S.C. §§ 791 et seq., and the Ag e Discr imination in Employ ment Act (“ ADEA” ), 29 U.S.C. §§ 621 et seq. Compl. ¶ 3. The Attorne y Gene ral moved to dismiss.
I I . DI SCUS SI ON Mr. Koch invoke s three dif fer ent fe dera l statutes that prohibit discrimination i n employ ment. Title VI I

of the Civil Ri g hts Act prohibits ex ecutive a g encie s from eng ag ing in employ ment discrimination based on ra ce, c olor, relig ion, sex , or national orig in. See 42 U.S.C. § 2000e-16( a). The ADEA pr ovides, in pertinent par t, that “[i] t shall be unlawful f or an employ er to . . . discriminate ag ainst any individual with respect to his compensation, terms, conditions, or privileg es of e mploy ment, beca

use of suc h individual’s ag e.” 29 U .S.C. § 623(a) (1). The Rehabilitation Act prohibits, amongother thing s, discrimination on the basis of disability in fede ral e mploy

ment. See 29 U.S.C. § 794. These statutes a lso prohibit federa l ag encie s from re taliating a g ainst employ ees f or eng ag ing in pr otected a ctivities. See 42 U.S.C. § 2000e-3( a); 29 U.S.C. § 623(d); 29 U.S.C. § 791; 42 U.S.C. § 12203(a); see a lso Baloc h v. Kempthorne , 550 F.3d 1191, 1198 ( D.C. Cir. 2008).

The Attorne y

Gene ral a sserts that Mr. Koc h cannot state a cla im ag ainst him under a ny of these statutes beca

use Koc h was ne ver e mploy ed by the Depa rtment of Just ice, a

nd beca use Koc h’s alleg ations do not fall within a rec ognized ex ception for non-employees. D ef.’ s Mot. at 2. The Court agree s.

Title VI I , the ADEA , and the Reha bilitation Act cover “ only ‘employees in a direc t employ

ment relationship’ with the employ er” and applica nts for employ

ment. See De lbert v. Dunca n, --- F. Supp. 2d --- -, 2013 WL565867, at *2 (D.D .C. Feb. 14, 2013) (quotingSpirades

4v. Reinhardt, 613 F .2d 826, 829 (D.C. Cir. 1979)) ( dismiss ing T itle VI I claim brought by

nonemploy ee) ; see a lso Mill er v. Clinton, 687 F.3d 1332, 1346 (D .C. Cir. 2012) (explaining that ADEA a nd Rehabilitation Act are modeled on and should be construed c onsistently with Title VI I ). Only

in very limit ed cir cumstance s may an individual who neither worke d for, nor

soug ht employ ment with, an ag ency

bringan employ

ment discrimination claim ag ainst that ag ency . 2 The D.C. Circuit has he ld that a plaintiff may bringa discrimination claim ag ainst a nonemploy er de fenda

nt if the defe ndant “c ontrol[s ] acce ss to such employ ment and . . . den[ies] such
acc ess by ref ere nce to invidious criter ia.” Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1342 (D.C. Cir. 1973) (pe rmitting cla im under Title VI Iag ainst g overnme nt entity that stood betwee n worke r and a ctual employer) ; see a lso Redd v. Summ ers, 232 F .3d 933, 940-41 (D.C. Cir. 2000) (findingSibley exception did not save Rehabilitation Act claim whe re non- employ er defe ndant did not serve a s intermediar y betwee n plaintiff and a ctual employer)
. Mr. Koch ha s made no a lleg ation that he eve r worke d for or applied for employ ment at the De partment of Justice. Nor ha s he alleg ed any fac ts that would support an infere nce that the J ustice De partment c ontrolled ac cess to his employ ment at the SEC. Acc ording ly , he has no c ause of action ag ainst the J ustice De partment unde r Title VI I , the Rehabilitation Act, or the AD EA. Be cause the Court cannot f ind any rea son to believe that the 3 The Supreme Court has rec ognized that a former employ ee ma

y bringa civil 2 action under

these statutes. See Robinson v. S hell Oil Co., 519 U.S. 337, 341 (1997). The Attorne y

Gene ral a lso asserts that Koc h’s alleg ations are purely speculative 3 and insuffic ient to support a claim under Be ll Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) . Def .’s Mot. at 2. The Attorne y Gene ral fur

ther a rgues that Koc h has alre ady challeng ed his firing in another pr ocee ding, a

nd that Koch’ s claim there fore violates the rule a g ainst splitt ing c auses of action. I d. Be cause the Court finds that Koch lac ks the requisite e mploy ment relationship wit h the Depa rtment of Just ice to state a claim, it does not consider the se additional ar guments.

5Complaint could be amende d to state a c laim under these statutes, it will di smiss t he Complaint

with prejudice and dismiss the action in its entirety
.

An Orde r consistent with this Opinion will issue this same day
.
/s/________________________ PAULL . FRI EDMAN DATE: Mar ch 13, 2013 United States District Court

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