UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

RANDOLPH S. KOCH, )

)

Plaintiff, )

)

v. ) Civil Action No. 11-1645 (PLF)

)

ERIC H. HOLDER, JR., )

 Attorney General of the United States, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION

This employment discrimination matter is before the Court on defendant’s motion

to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure

to state a claim. Defendant Eric H. Holder, Jr., the Attorney General of the United States, filed

the motion on March 14, 2012, approximately one year ago. See Defendant’s Motion to Dismiss

(“Def.’s Mot.”), Dkt. No. 6. 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

defendant’s dispositive motion by February 28, 2013, and informing him of the risks of failing to

respond. See Order, Dkt. No. 19. 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 motion to dismiss in this action. Nor has he made any request for an extension of time, or 1

made any other filing with the Court in the time since the Court’s February 15, 2013 Order. 

In these circumstances, the Court may treat the Attorney General’s motion as

conceded. D.D.C. Loc. Civ. R. 7(b); see also Fox v. American Airlines, Inc., 389 F.3d 1291,

1294-95 (D.C. Cir. 2004) (finding that district court did not abuse its discretion in granting

motion to dismiss on the basis that plaintiffs’ failure to timely respond was a concession of the

motion’s validity under Local Civil Rule 7(b)). The Court also has considered the substance of

the motion to dismiss and, after careful consideration of the motion and the relevant case law and

statutes, has concluded that the motion should be granted on its merits. 

I. BACKGROUND

Randolph Koch is a former employee of the Securities and Exchange Commission

(“SEC”). Compl. ¶ 1, Dkt. No. 1. Mr. Koch alleges that he is disabled within the meaning of the

Rehabilitation Act. See id. ¶ 6. Although the Complaint contains no allegations of his other

protected statuses, the Court takes judicial notice of the fact that Mr. Koch, in related lawsuits,

has described himself as over forty years old, white, and Jewish. See, e.g., 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). 

Koch brings this suit against the Attorney General in his official capacity as head of the

Department of Justice.

See, e.g., Plaintiff’s Memorandum in Support of His Opposition to Defendant’s 1

Motion to Dismiss, Civil Action No. 08-1521, Dkt. No. 62; Plaintiff’s Memorandum of Points

and Authorities to Defendant’s Dispositive Motion, Civil Action No. 10-0150, Dkt. No. 33.

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Mr. Koch claims that an employee of the Justice Department, Assistant United

States Attorney Marina Braswell, discriminated and retaliated against Koch during a deposition

taken in a related case, Koch v. Donaldson, et al., Civil Action No. 02-1492. According to Koch,

Braswell questioned him during the deposition about his time and attendance as an employee at

the SEC. Compl. ¶¶ 5-6, 8. Koch alleges that these questions were inappropriate and beyond the

scope of that lawsuit. Id. ¶¶ 7-9. He then alleges that Braswell conspired with counsel at the

SEC to initiate an investigation by the SEC’s Office of Inspector General (“OIG”) into his time

and attendance. Id. ¶ 10. Koch asserts that these alleged acts by a Justice Department employee

– asking improper questions during a deposition and conspiring to initiate an OIG investigation

into Mr. Koch’s conduct – constitute unlawful discrimination against him because of his age,

race, religion, and disability, and unlawful retaliation for his protected activities in opposing

discrimination in employment. Compl. ¶¶ 24-25, 31-32. 

Koch filed an administrative complaint with the Justice Department alleging

discrimination and retaliation. The complaint was dismissed on the basis that he was not an

“aggrieved employee” or an “aggrieved applicant for employment” under 29 C.F.R. § 1614.103

and that his complaint therefore failed to state a claim for relief under 29 C.F.R.

§ 1614.107(a)(1). See “Def.’s Mot.” at 3. The Office of Federal Operations affirmed the

dismissal. Id. at 3-4 (citing Koch v. Holder, EEOC Decision No. 0120113607, 2011 WL

5023352 (Oct. 14, 2012)). Koch subsequently initiated this civil action under Title VII of the

Civil Rights Act, 42 U.S.C. §§ 2000e et seq., Sections 501 and 505 of the Rehabilitation Act, 29 

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U.S.C. §§ 791 et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§§ 621 et seq. Compl. ¶ 3. The Attorney General moved to dismiss.

II. DISCUSSION

Mr. Koch invokes three different federal statutes that prohibit discrimination in

employment. Title VII of the Civil Rights Act prohibits executive agencies from engaging in

employment discrimination based on race, color, religion, sex, or national origin. See 42 U.S.C.

§ 2000e-16(a). The ADEA provides, in pertinent part, that “[i]t shall be unlawful for an

employer to . . . discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.

§ 623(a)(1). The Rehabilitation Act prohibits, among other things, discrimination on the basis of

disability in federal employment. See 29 U.S.C. § 794. These statutes also prohibit federal

agencies from retaliating against employees for engaging in protected activities. 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 also Baloch v.

Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008).

The Attorney General asserts that Mr. Koch cannot state a claim against him

under any of these statutes because Koch was never employed by the Department of Justice, and

because Koch’s allegations do not fall within a recognized exception for non-employees. Def.’s

Mot. at 2. The Court agrees.

Title VII, the ADEA, and the Rehabilitation Act cover “only ‘employees in a

direct employment relationship’ with the employer” and applicants for employment. See Delbert

v. Duncan, --- F. Supp. 2d ----, 2013 WL 565867, at *2 (D.D.C. Feb. 14, 2013) (quoting Spirades

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v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979)) (dismissing Title VII claim brought by nonemployee); see also Miller v. Clinton, 687 F.3d 1332, 1346 (D.C. Cir. 2012) (explaining that

ADEA and Rehabilitation Act are modeled on and should be construed consistently with Title

VII). Only in very limited circumstances may an individual who neither worked for, nor sought

employment with, an agency bring an employment discrimination claim against that agency.

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The D.C. Circuit has held that a plaintiff may bring a discrimination claim against a nonemployer defendant if the defendant “control[s] access to such employment and . . . den[ies] such

access by reference to invidious criteria.” Sibley Memorial Hospital v. Wilson, 488 F.2d 1338,

1342 (D.C. Cir. 1973) (permitting claim under Title VII against government entity that stood

between worker and actual employer); see also Redd v. Summers, 232 F.3d 933, 940-41 (D.C.

Cir. 2000) (finding Sibley exception did not save Rehabilitation Act claim where non-employer

defendant did not serve as intermediary between plaintiff and actual employer).

Mr. Koch has made no allegation that he ever worked for or applied for

employment at the Department of Justice. Nor has he alleged any facts that would support an

inference that the Justice Department controlled access to his employment at the SEC. 

Accordingly, he has no cause of action against the Justice Department under Title VII, the

Rehabilitation Act, or the ADEA. Because the Court cannot find any reason to believe that the 3

 The Supreme Court has recognized that a former employee may bring a civil 2

action under these statutes. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). 

The Attorney General also asserts that Koch’s allegations are purely speculative 3

and insufficient to support a claim under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) . 

Def.’s Mot. at 2. The Attorney General further argues that Koch has already challenged his firing

in another proceeding, and that Koch’s claim therefore violates the rule against splitting causes of

action. Id. Because the Court finds that Koch lacks the requisite employment relationship with

the Department of Justice to state a claim, it does not consider these additional arguments. 

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Complaint could be amended to state a claim under these statutes, it will dismiss the Complaint

with prejudice and dismiss the action in its entirety.

An Order consistent with this Opinion will issue this same day. 

 /s/________________________

 PAUL L. FRIEDMAN

DATE: March 13, 2013 United States District Court

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