Summary
denying motion to strike pro se plaintiff's sur-reply where it did not prejudice defendants
Summary of this case from Saleh v. PastoreOpinion
19-CV-916 (MKB)
09-25-2020
Brian J. NEARY, Plaintiff, v. Margaret WEICHERT, Acting Director, U.S. Office of Personnel Management, and Donald J. Trump, President of the United States of America, Defendants.
Brian J. Neary, Bellmore, NY, pro se. James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, Layaliza K. Soloveichik, United States Attorneys Office, Brooklyn, NY, Samuel Hilliard Dolinger, U.S. Attorney's Office, New York, NY, for Defendants.
Brian J. Neary, Bellmore, NY, pro se.
James H. Knapp, United States Attorneys Office Eastern District of New York, Central Islip, NY, Layaliza K. Soloveichik, United States Attorneys Office, Brooklyn, NY, Samuel Hilliard Dolinger, U.S. Attorney's Office, New York, NY, for Defendants.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Plaintiff Brian Neary, proceeding pro se , commenced the above-captioned action on September 11, 2018, against Defendant U.S. Office of Personnel Management (the "OPM") former Director Jeff T.H. Pon and filed an Amended Complaint on September 20, 2018, adding Defendant President of the United States Donald J. Trump. (Compl., Docket Entry No. 2; Am. Compl., Docket Entry No. 6.) Plaintiff alleges that he was denied employment at several federal agencies because he is not a recent graduate and because President Barack Obama's Executive Order No. 13,562, 5 C.F.R. § 362 (2013) (the "Executive Order"), which promotes the federal hiring of recent graduates, violates the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the "ADEA"). (Compl.) The Court liberally construes the Amended Complaint as asserting claims for discrimination in violation of the ADEA.
On January 1, 2019, the Court substituted OPM Acting Director Margaret Weichert for former Director Jeff T. H. Pon pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. (Order dated Jan. 1, 2019, Docket Entry No. 16.)
Plaintiff commenced the action in the Southern District of New York and the Court consolidated the two pleadings as an "operative complaint." (Order dated Nov. 8, 2018, Docket Entry No. 9.) On February 15, 2019, the SDNY transferred the case to this District. (Transfer Order dated Feb. 15, 2019, Docket Entry No. 33.)
Because the Complaint is not consecutively paginated, the Court refers to the page numbers assigned by the Electronic Case Filing ("ECF") system.
Defendants move to dismiss the ADEA claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim or, in the alternative, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (Defs.’ Mot. to Dismiss ("Defs.’ Mot."), Docket Entry No. 49; Defs.’ Reply Mem. in Supp. of Defs.’ Mot. ("Defs.’ Mem."), Docket Entry No. 50.) Plaintiff opposes the motion to dismiss. (Pl.’s Opp'n to Defs.’ Mot. ("Pl.’s Opp'n"), Docket Entry No. 43; Pl.’s Opp'n to Defs.’ Mot. II ("Pl.’s Opp'n II"), Docket Entry No. 47.) After the parties had fully briefed Defendants’ motion to dismiss, Plaintiff filed a sur-reply, (Pl.’s Sur-Reply, Docket Entry No. 52), which Defendants move to strike as unauthorized, (Letter dated November 5, 2019 ("Defs.’ Mot. to Strike"), Docket Entry No. 53). Plaintiff opposes the motion to strike. (Pl.’s Opp'n to Defs.’ Letter ("Pl.’s Opp'n Letter"), Docket Entry No. 54.)
For the reasons set forth below, the Court denies Defendants’ motion to strike but grants Defendants’ motion to dismiss and dismisses all claims.
I. Background
The Court assumes the truth of the factual allegations in the Complaint for purposes of this Memorandum and Order.
Plaintiff is an unemployed fifty-two-year-old. For several years, he did not work because he was the sole caregiver for his sick mother. (Compl. 13.) Following a lengthy absence, he sought to return to the workforce. (Id. ) As of September of 2018, Plaintiff had "applied to more than 300+ jobs; not including ... public-sector applications," yet he only had "a handful of interviews." (Id. ) Plaintiff alleges that federal jobs restricted to recent graduates have had a "direct impact" on his unemployment because they result in "[o]ne more job that [he] cannot apply" for and "one less viable career opportunity." (Id. at 14.) Plaintiff asserts that everyone should have complete and unrestricted access to every job that the federal government advertises to the public and that the Recent Graduates Program (the "RGP") job postings are exclusionary. (Id. )
Plaintiff asserts an ADEA claim based both on disparate treatment and disparate impact theories, alleging that the Executive Order discriminates on the basis of age and that the OPM violates the ADEA by promulgating regulations directed by the Executive Order. (Id. at 11, 13.)
The OPM is an independent federal agency created pursuant to Reorganization Plan No. 2 of 1978. See 5 C.F.R § 2.0143 (2011); 43 Fed. Reg. 36,037 (Aug. 15, 1978). The head of the office, the OPM Director, is tasked with "[e]xecuting, administering and enforcing the [c]ivil [s]ervice rules and regulations of the President and the Office," including "promot[ing] an efficient [c]ivil [s]ervice and systematic application of ... merit system principles, including measures relating to the selection, promotion, [and] performance" of employees. 43 Fed. Reg. at 36,037 §§ 103–104.
a. The Recent Graduates Program
In December of 2010, President Obama issued Executive Order No. 13,562, which expressly directed OPM to promulgate regulations implementing, inter alia , the Pathways Program. See 3 C.F.R. § 13,562 (2011) (executive order); 5 C.F.R. § 362 (implementing legislation); see also 75 Fed. Reg. 82,585, 82,585 –88 (Dec. 27, 2010) (executive order); 77 Fed. Reg. 28,194, 28,209 –10 (May 11, 2012) (implementing legislation) (stating that the "2-year eligibility window is required by Executive Order" such that there is "no discretion" to alter it). The Pathways Program consists of separate programs: the Internship Program, the Presidential Management Fellows Program, and the RGP. See 5 C.F.R. § 362. The RGP reserves certain job opportunities to those who have earned a degree within the last two years from a higher education institution, and functions as a "supplement to, rather than a substitute for" hiring entry-level candidates. 77 Fed. Reg. at 28,195.
The Executive Order provides flexibility for veterans whose military service precluded applying for such jobs within the two-year window. See 3 C.F.R. 13,562; 5 C.F.R § 362.302(b)(2).
Plaintiff asserts that the RGP is based on an "arbitrarily chosen time limitation." (Compl. 14.) He questions the basis of the requirements and concludes that the RGP violates the ADEA because it has a disparate impact on individuals over fifty years old. ( Id. ) As an example, Plaintiff reviews hiring data from fiscal years 2012 to 2018, which suggest that 3.71% of the total job candidates hired into the RGP were over the age of fifty, whereas 54% of the total workforce is over the age of forty. (Id. at 16; id. Ex. F, at 57.) Plaintiff contends that these numbers "prove[ ] intentional age discrimination." (Id. at 16.)
Defendants contend that agencies do not "hire a majority" via the Pathways Program "for any single entry level [position]," and eligible applicants must meet the merit-based qualifications for hire. (Defs.’ Mot. 5 (quoting 77 Fed. Reg. at 28,194, 28,199).) See 75 Fed. Reg. at 82,585, 82,588; see also 5 C.F.R. § 362.105(c) (appointments); 5 C.F.R. § 362.302 (eligibility); 5 C.F.R. § 362.303(d) (qualifications). Defendants cite OPM's final rules, (Compl. 13), which state that the RGP is "open to all ... recent graduates regardless of age," and "[e]ligible students and recent graduates will include older individuals who left the workforce and returned to school to prepare themselves for new careers, as well as those who obtained degrees while they took time off from their careers to raise a family," 77 Fed. Reg. at 28,202.
b. Plaintiff's job search
Plaintiff has been "unemployed for the past several years" and attributes his "rotten luck" with his job search to his disqualification from positions advertised under the RGP. (Id. at 13.) Because Plaintiff obtained his most recent education, a Master's degree, in 2009, he is ineligible for jobs advertised under the RGP. (Id. at 9.) According to Plaintiff, the two-year educational qualification requirement for the RGP prohibits him from "applying to jobs that [he is] otherwise fully capable [and] proficient" for based on his "extensive professional background [and] work experience." (Id. at 18.) Despite his ineligibility, Plaintiff applied to thirty-three RGP job openings and was "automatically removed [from] consideration." (Id. at 17.) Plaintiff argues that his "auto-rejection," (id. at 18), "from an additional 2,500 job openings; as advertised within the Drug Enforcement Administration mass recruitment dated 8/2/2018," (id. at 17; id. Ex. I, at 91), "is the best example showcasing [his] age[ ]discrimination charge," (id. at 18).
Plaintiff previously filed suit against Federal Deposit Insurance Company (the "FDIC") Chairman Gruenberg, alleging that the FDIC's participation in the RGP discriminated against older workers. See Neary v. Gruenberg , 730 F. App'x 7, 10 (2d Cir. 2018). The Second Circuit affirmed the dismissal of both Plaintiff's Equal Protection Clause claim and ADEA claim, reasoning, inter alia , that Plaintiff lacked standing to challenge the RGP because "[h]e was an intended beneficiary of the initiative," having graduated within the RGP's educational time requirements. Id. The Second Circuit further concluded that while
the government could have adopted a different selection process to identify qualified applicants ... and [while] it may be true that the selection criteria the program used failed to account for the work preferences of [m]illennials, ... [t]he government has proffered a rational basis for its hiring practices and [Plaintiff's] allegations are insufficient to raise an inference that those practices violate equal protection.
Id. Finally, in dismissing Plaintiff's ADEA claim, the Court noted that "[Plaintiff] alleges that [fifty-three] of the FDIC's [fifty-four] new hires were under the age of [forty] ... [b]ut he fails to plead facts that allow us to infer that the applicants ultimately hired were disproportionately younger than [forty], relative to the applicant pool." Id. at 12.
Although unrelated to the previous FDIC suit or the suit before the Court, Plaintiff attaches to the Complaint an appeals decision from the Equal Employment Opportunities Commission (the "EEOC") dated August 22, 2018, based on a final agency action arising out of an FDIC vacancy announcement on the RGP. (Compl. Ex. A, at 22–25.) According to the EEOC decision — which affirmed dismissal of Plaintiff's administrative complaint — following Plaintiff's ineligibility to apply for an FDIC position under the Pathways Program, Plaintiff timely filed a complaint with OPM alleging that the pathways program "allows the FDIC and all participating federal [a]gencies ... to use educational time limitations to deliberately exclude older workers from recruitment." (Id. at 23.)
Plaintiff further asserts that it is "suspicious[ ]" that the EEOC does not participate in the RGP, (id. at 16), and questionable that since his Complaint was filed, the FDIC no longer participates in the RGP and has removed the two-year educational time constraint from their job vacancies, (id. at 17).
Defendants note that the FDIC did not remove the RGP requirement; they only posted — as they routinely do — additional jobs in the competitive service and without the educational time limitation. (Defs.’ Mot. n.8.)
Plaintiff's "fundamental complaint is that [he] should be able to have complete [and] unrestricted access" to every federal government job advertised to the public. (Id. at 14.)
c. The OPM Retirement Services job
Plaintiff applied to an OPM Retirement Services job as an Administrative Specialist, Series 0901, GS-07 grade/pay level, (id. Ex. I, at 86), and asserts that he was "automatically disqualified because of the discriminatory policy [and] ... [its] exclusionary educational qualification," (id. at 18). Plaintiff commenced the instant action on September 11, 2018, (id. ), and seeks suspension of the RGP, monetary damages equal to the number of job announcements he has applied to, and removal of the two-year education limitation from the Pathways Programs, (id. at 12).
Defendants contend that Plaintiff failed to apply for jobs which were similar to those offered under the RGP, including a vacancy announcement posted by the OPM in December of 2018 "for a position with OPM Retirement Services, for a Legal Administrative Specialist, Series 0901, at GS-7 pay/grade level (in addition to GS-5 positions)," which was "very similar to that [posted with RGP requirements in] June [of] 2018," (the "OPM Retirement Services job"), that Plaintiff was deemed ineligible for. (Id. at 7.) The vacancy announcement read "Service: Competitive" and the "announcement nowhere limited eligibility to recent graduates, unlike the previous such announcement in June [of] 2018," yet "Plaintiff failed to apply for that position." (Id. at 8.) "Competitive" jobs are those open to the public and not limited by the RGP educational timing requirements. See 75 Fed. Reg. at 82,585.
Defendants contend that the application was rejected in August of 2018, and Plaintiff did not exhaust administrative steps to submit his grievance. (Defs.’ Mot. 8 (citing Decl. of Jessica Parton ("Parton Decl."), dated Aug. 20, 2019 ¶ 6).) "Plaintiff [neither] contacted an OPM [Equal Employment Opportunity ("EEO")] counsel within the requisite [forty-five] days of such rejection [nor] filed the requisite formal administrative complaint — alleging discrimination on the basis of age or any other basis." (Id. at 8 (citing Decl. of Lashonn Woodland ("Woodland Decl."), dated August 20, 2019 ¶ 6).) Defendants also assert that Plaintiff "failed to submit to EEOC a [n]otice of [i]ntent to [s]ue within 180 days of this rejection or at any time since, let alone [thirty] days before filing the instant action against OPM." (Id. (citing Woodland Decl. ¶ 7).)
II. Discussion
a. Standards of review
i. Rule 12(b)(1)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court "lacks the statutory or constitutional power to adjudicate it." Huntress v. United States , 810 F. App'x 74, 75 (2d Cir. 2020) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova , 201 F.3d at 113 ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ). " ‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (first quoting Natural Res. Def. Council v. Johnson , 461 F.3d 164, 171 (2d Cir. 2006) ; and then quoting APWU v. Potter , 343 F.3d 619, 623 (2d Cir. 2003) ), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Ultimately, "the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. U.S. Operating Co. , 720 F. App'x 52, 53 (2d Cir. 2018) (citing Morrison , 547 F.3d at 170 ); Clayton v. United States , No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon , 752 F.3d at 243 ); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon , 369 F. Supp. 3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon , 752 F.3d at 243 ).
ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Kim v. Kimm , 884 F.3d 98, 103 (2d Cir. 2018) (quoting Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002) ); see also Tsirelman v. Daines , 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ. , 131 F.3d 326, 329 (2d Cir. 1997) ). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
In reviewing a pro se complaint, a court must be mindful that a plaintiff's pleadings must be held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ); see also Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) (noting that after Twombly , courts "remain obligated to construe a pro se complaint liberally").
b. The Court declines to strike Plaintiff's sur-reply
Defendants move to strike Plaintiff's sur-reply, "or, in the alternative, to direct the government to any portion as to which the Court would like a response." (Defs.’ Mot. to Strike 1.) Defendants argue that Plaintiff has "identified no basis for needing a sur-reply," and that the sur-reply impermissibly addresses Plaintiff's "concerns with declarations attached to, and threshold legal arguments advanced in, the [Defendants’] opening papers, and should have been made in [P]laintiff's opposition to the [Defendants’] motion, not after the [Defendants] filed its reply." (Id. at 2.)
Plaintiff argues that the Court should strike Defendants’ objection because they waited "more than [nine] days from [Plaintiff's] submission to" move to strike. (Pl.’s Opp'n Letter 1.) Plaintiff also asserts that the Court should allow his sur-reply because he has "been vigilant to ... meet or exceed" his filing deadlines. (Id. )
The general principle is that supplemental filings require leave of the court. See Guadagni v. N.Y.C. Transit Auth. , 387 F. App'x 124, 126 (2d Cir. 2010) ("[T]here is no evidence that [the plaintiff] moved the district court for leave to file a sur-reply."); Ruggiero v. Warner-Lambert Co. , 424 F.3d 249, 252 (2d Cir. 2005) (finding that the plaintiff could have "sought to file a responsive sur-reply" in district court); Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G. , 215 F.3d 219, 227 (2d Cir. 2000) ("[The defendant] did not move the district court for leave to file a sur-reply to respond to [the plaintiff's] evidence."); Sevilla v. Perez , No. 15-CV-3528, 2016 WL 5372792, at *2 n.5 (E.D.N.Y. Sept. 26, 2016) ("[The plaintiff] did not seek leave to file the sur-reply and the court did not grant permission for the filing of a sur-reply; this contravenes the general principle that supplemental filings require leave of the court."); Endo Pharm. Inc. v. Amneal Pharm., LLC , No. 12-CIV-8060, 2016 WL 1732751, at *9 (S.D.N.Y. Apr. 29, 2016) (striking a supplemental filing where the plaintiff "neither sought nor received permission from the court to file a [sur-reply]"). District courts have discretion to decide whether to strike or permit a litigant's sur-reply. See Endo Pharm. Inc. , 2016 WL 1732751, at *9 ("It is beyond dispute that the decision to permit a litigant to submit a [sur-reply] is a matter left to the court's discretion" (citing Kapiti v. Kelly , No. 07-CV-3782, 2008 WL 754686, at *1 n.1 (S.D.N.Y. Mar. 12, 2008) )); Kapiti , 2008 WL 754686, at *1 n.1 ("[T]he decision to permit a litigant to submit a [sur-reply] is a matter left to the Court's discretion, since neither the Federal Rules of Civil Procedure nor the Local Civil Rules of [the] court authorize litigants to file [sur-replies]."). While Plaintiff neither sought nor received permission from the Court to file a sur-reply to Defendants’ motion to dismiss, Plaintiff is proceeding pro se and the Court construes his supplemental filings liberally. Plaintiff's sur-reply consists of some beneficial data to corroborate Plaintiff's substantive claims, rather than arguments regarding the subject matter jurisdictional issues raised by Defendants in their motion. (See Pl.’s Opp'n Letter.) As Defendants argue,
[Plaintiff's] sur-reply ... fails to grapple with the threshold legal arguments of absolute immunity, sovereign immunity, standing, administrative exhaustion, and failure to state a claim addressed in the opening brief; ... [rather, it] sets forth a factual contention without addressing its implications for the ‘injury in fact’ and ‘traceability’ prongs of standing that [Defendants] discuss[ ] at length.
(Defs.’ Mot. to Strike 2.) Thus, Plaintiff's sur-reply does not prejudice Defendants because it "largely repeat[s] [arguments] [P]laintiff previously interposed," (id. at 3), and Defendants do not argue otherwise.
Accordingly, the Court exercises its discretion and denies Defendants’ motion to strike Plaintiff's sur-reply.
c. The Court lacks subject matter jurisdiction
Defendants argue that Plaintiff's claims against President Trump must be dismissed because "he enjoys absolute immunity in actions such as this one predicated on a President's official acts," (Defs.’ Mot. 12), and, in the alternative, because President Trump has sovereign immunity from this action, (id. at 14). Defendants also argue that Plaintiff's claims against Weichert must be dismissed because she has sovereign immunity and, in the alternative, because Plaintiff lacks standing and failed to exhaust his administrative remedies. (Id. at 13, 17.)
Plaintiff fails to address Defendants’ arguments regarding President Trump's absolute and sovereign immunity, Weichert's sovereign immunity, and Defendants’ arguments that he lacks standing to bring this suit. (See Pl.’s Opp'n.)
Although Plaintiff does not respond to Defendants’ claim that he failed to exhaust administrative remedies, (Defs.’ Mot. 21), Plaintiff asserts in the Complaint that he filed an age discrimination complaint with OPM in March of 2018, which was dismissed for failure to make a claim, (Compl. 8). The OPM's final decision was affirmed by the EEOC. (Id. Ex A, at 22.)
i. President Trump enjoys absolute immunity
Defendants argue that even if "President Trump [is] culpable for failing to revoke his predecessor's allegedly discriminatory [Executive Order] — President Trump would still enjoy absolute immunity from suit, as well as from liability." (Defs.’ Mot. 13.) Defendants argue that the Executive Order "is a quintessentially non-ministerial official act, setting federal-employment policy government-wide and rendering a discretionary determination to mandate a new excepted service." (Id. )
Plaintiff argues that the Executive Order "exceeds the President's [c]onstitutional [a]uthority." (Compl. 20.)
"No one doubts that Article II guarantees the independence of the [e]xecutive [b]ranch. As the head of that branch, the President ‘occupies a unique position in the constitutional scheme.’ " Trump v. Vance , –––, U.S. ––––, ––––, 140 S. Ct. 2412, 2425–26, 207 L.Ed.2d 907 (2020) (quoting Nixon v. Fitzgerald , 457 U.S. 731, 749, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) ). The President's duties "come with protections that safeguard [his] ability to perform his vital functions." Id. These include "absolute immunity from damages liability predicated on his official acts." Nixon , 457 U.S. at 749, 102 S.Ct. 2690. The President has absolute immunity because "the prospect of ... liability could ‘distract a President from his public duties, to the detriment of not only the President and his office but also the [n]ation.’ " Trump , 140 S. Ct. at 2426 (quoting Nixon , 457 U.S. at 753, 102 S.Ct. 2690 ); see also Franklin v. Massachusetts , 505 U.S. 788, 802, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (noting that an injunction "against the President himself" as to apportioning representatives based on census data "is extraordinary, and should have raised judicial eyebrows"). Courts define official acts using a "functional approach." Clinton v. Jones , 520 U.S. 681, 694, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (holding that a president did not have absolute immunity from sexual harassment claims); see also Nixon , 457 U.S. at 757–78, 102 S.Ct. 2690 (holding that a former President was entitled to absolute immunity based on his official acts in reorganizing the armed forces).
The Executive Order is an official act, which sets policy on how federal employees are hired, and, as a result, the President enjoys absolute immunity from this suit. See Franklin , 505 U.S. at 827, 112 S.Ct. 2767 (Scalia, J., concurring in part) ("As the plurality notes, [the Supreme Court] emphatically disclaimed the authority to [enjoin President Johnson from enforcing the Reconstruction Acts], stating that ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.’ " (quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L.Ed. 437 (1867) )).
Accordingly, the Court finds that President Trump has absolute immunity from this suit, and dismisses Plaintiff's claims against him.
ii. President Trump enjoys sovereign immunity
Defendants argue that "[a]ssuming arguendo that President Trump were not dismissed [from the suit] owing to absolute immunity, sovereign immunity would still bar this ADEA action against" him because "[t]he only proper defendant to such ADEA action is the head of the subject federal agency." (Defs.’ Mot. 14.)
"It is, of course, ‘axiomatic’ under the principle of sovereign immunity ‘that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.’ " Adeleke v. United States , 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ); see also Dep't of the Army v. Blue Fox, Inc. , 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) ("Absent a waiver, sovereign immunity shields the [f]ederal [g]overnment and its agencies from suit." (quoting FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) )). Waivers of sovereign immunity must be "unequivocally expressed" by statute. United States v. Nordic Vill., Inc. , 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (quoting Irwin v. Dep't of Veterans Affs. , 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ); see also United States v. White Mountain Apache Tribe , 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) ("The terms of consent to be sued may not be inferred, but must be ‘unequivocally expressed’ " (quoting United States v. Mitchell , 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) )). Congress created a limited sovereign immunity waiver in the ADEA, which authorizes age-based discrimination suits against federal employers under certain circumstances. See 29 U.S.C. § 633a(a).
The waiver in section 633a(a) covers:
All personnel actions affecting employees or applicants for employment who are at least [forty] years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the [f]ederal [g]overnment having positions in the competitive service, in the Smithsonian Institution, and in the Government Publishing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on age.
29 U.S.C. § 633a(a).
Although the ADEA does not specify who the proper defendant should be in an age-based discrimination suit against federal employers, courts have held that the proper defendant in a federal employee's ADEA suit is the head of the agency. See, e.g. , Ellis v. U.S. Postal Serv. , 784 F.2d 835, 838 (7th Cir. 1986) (applying Title VII's rule that "the only proper defendant is the head of the agency" to the ADEA); Healy v. U.S. Postal Serv. , 677 F. Supp. 1284, 1289 (E.D.N.Y. 1987) ("Since both [Title VII and the ADEA] should be construed consistently, this court holds that the only proper party defendant in a suit against the Postal Service under the ADEA is the Postmaster General of the United States.").
Plaintiff improperly named President Trump as a defendant in this suit. The only proper defendant in this action is the head of the OPM, Weichert. See Rector v. DOJ , No. 14-CIV-11883, 2016 WL 7188135, at *1 n.1 (S.D.N.Y. Nov. 22, 2016) (dismissing claims against the Department of Justice and Director of Executive Office for Immigration Review because the only proper defendant was the head of the agency being sued); Klestadt v. Duncan , No. 14-CV-2831, 2016 WL 816788, at *1 n.1 (E.D.N.Y. Feb. 25, 2016) (collecting cases) (granting leave to amend caption "because the proper defendant in [an] ... ADEA lawsuit is the ‘head of the federal agency in which the alleged discriminatory actions occurred.’ " (quoting Tulin v. U.S. Postal Serv. , No. 06-CV-5067, 2008 WL 822126, at *4 (E.D.N.Y. Mar. 25, 2008) )); Elhanafy v. Shinseki , No. 10-CV-3192, 2012 WL 2122178, at *11 (E.D.N.Y. June 12, 2012) (collecting cases) (substituting the original defendants, U.S. Department of Veterans Affairs and the New York Harbor Healthcare System, with the Secretary of the Department of Veterans Affairs, as the Secretary was the proper defendant in the lawsuit).
Accordingly, the Court dismisses Plaintiff's claims against President Trump on this basis also. iii. Plaintiff lacks standing
With regard to jurisdiction over Weichert, Defendants argue that sovereign immunity precludes the ADEA claim against her because immunity is limited to "personnel actions" by the OPM, and the Executive Order is not personnel action but rather a mandatory promulgation of executive regulations. (Defs.’ Mot. 16.) While the Court declines to address this issue because it dismisses the claims on other grounds, the Court notes that
it is now well established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive.’ Even if the [director] were acting at the behest of the President, this ‘does not leave the courts without power to review the legality [of the action], for courts have power to compel subordinate executive officials to disobey illegal Presidential commands.
Chamber of Comm. of U.S. v. Reich , 74 F.3d 1322, 1328 (D.C. Cir. 1996) (first and third alterations in original) (first quoting Franklin v. Massachusetts , 505 U.S. 788, 815, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (Scalia, J., concurring in part and concurring in the judgment); and then quoting Soucie v. David , 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971) ).
Defendants argue that Plaintiff cannot bring this suit because Plaintiff lacks standing "to assert an ADEA claim as to [ ]his non-selection" and "also lacks standing to the extent that the wrong allegedly accruing to OPM is its promulgation of the RGP regulations, as mandated by the [Executive Order] that created the RGP hiring authority." (Defs.’ Mot. 18.) In support, Defendants argue, inter alia , that Plaintiff fails to show that his "injury will be redressed by a favorable decision," because Plaintiff's "failure to secure a variety of jobs, cannot by definition be redressed by prospectively enjoining the RGP." (Id. at 20–21 (citing Platsky v. Nat'l Sec. Agency , 547 F. App'x 81, 83 (2d Cir. 2013) ).)
Because, as explained below, Plaintiff fails to show redressability, the Court declines to address the injury-in-fact and causal connection requirements.
Plaintiff seeks to enjoin the RGP, requests monetary damages equal to the number of job announcements he applied to, and seeks removal of the two-year education limitation from the Pathways Program. (Compl. 12.)
" ‘Standing to sue is a doctrine’ that ‘limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.’ " Liberian Cmty. Ass'n of Conn. v. Lamont , 970 F.3d 174, 183–84 (2d Cir. 2020) (quoting Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (May 16, 2016) ). In order to show standing, a plaintiff must establish three things: (1) an "injury in fact — an invasion of a legally protected interest which is ... concrete and particularized and actual or imminent, not conjectural or hypothetical," (2) "a causal connection between the injury and the conduct complained of," and (3) redressability of the injury "by a favorable decision." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Pincus v. Nat'l R.R. Passenger Corp. , 581 F. App'x 88, 89 (2d Cir. 2014) (citing City of L.A. v. Lyons , 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ) (describing the three elements of standing); Cacchillo v. Insmed, Inc. , 638 F.3d 401, 404 (2d Cir. 2011) ("[A] plaintiff must show the three familiar elements of standing: injury in fact, causation, and redressability." (citing Summers v. Earth Island Inst. , 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) )). "If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim." Mahon v. Ticor Title Ins. Co. , 683 F.3d 59, 62 (2d Cir. 2012) (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, L.L.C. , 433 F.3d 181, 198 (2d Cir. 2005) ).
The nature of a redressability inquiry "focuses ... on whether the injury that a plaintiff alleges is likely to be redressed through the litigation." Sprint Commc'ns Co. v. APCC Servs., Inc. , 554 U.S. 269, 286–87, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). To satisfy the redressability requirement, a plaintiff must establish that "it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief [the] plaintiff seeks in bringing suit[ ]." Id. at 273–74, 128 S.Ct. 2531 (citing Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ); see also M.S. v. Brown , 902 F.3d 1076, 1083 (9th Cir. 2018) ("A plaintiff's burden to demonstrate redressability is relatively modest. [The plaintiff] need not demonstrate that there is a guarantee that her injuries will be redressed by a favorable decision; rather, a plaintiff need only show a substantial likelihood that the relief sought would redress the injury." (alteration and citations omitted)).
"Th[e] [Supreme] Court is reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 413, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ; see also Himber v. Intuit, Inc. , No. 10-CV-2511, 2012 WL 4442796, at *7 (E.D.N.Y. Sept. 25, 2012) (holding that "[i]t is purely speculative whether the denials of service specified in the complaint can be traced to [the] petitioners’ ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications" and "whether the desired exercise of the court's remedial powers in this suit would result in the availability to respondents of such services" (quoting Simon v. E. Ky. Welfare Rts. Org. , 426 U.S. 26, 28, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) )). There is no redressability where such depends on an independent actor who retains "broad and legitimate discretion [that] the courts cannot presume either to control or to predict." ASARCO, Inc. v. Kadish , 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) ; see also Himber , 2012 WL 4442796, at *7 ("As the jurisprudence of the Supreme Court and Second Circuit has clearly articulated, claims of harm based upon speculation regarding decisions by third parties is insufficient to confer Article III standing.").
Plaintiff fails to establish redressability. While enjoining the RGP may theoretically offer Plaintiff increased employment opportunities, Plaintiff's inability to get jobs in the past allegedly due to the RGP is "merely ‘speculative’ " and cannot be redressed. Lujan , 504 U.S. at 561, 112 S.Ct. 2130. Plaintiff does not adequately suggest that he would have been hired if he applied for jobs via the RGP. As Defendants argue, Plaintiff failed to apply to a similarly competitive OPM job that did not have educational timing requirements. (Defs.’ Mot. 7.) In addition, Plaintiff cannot show that he would be hired for the RGP jobs in the future even if he were eligible for them because such decisions depend on the discretion of "independent decisionmakers." Clapper , 568 U.S. at 413, 133 S.Ct. 1138. The RGP operates as an entry-level hiring avenue, and as Plaintiff notes, he has adequate "professional background [and] work experience," (Compl. 18), and yet has had "rotten luck," (id. at 13), in the job market. Plaintiff therefore fails to show redressability.
Given that the Court dismisses Plaintiff's claims for lack of subject matter jurisdiction, the Court declines to address Plaintiff's substantive claims. Nevertheless, the Court reiterates the Second Circuit's conclusion that the "Supreme Court has not to date recognized disparate impact claims under [29 U.S.C.] § 633a, which applies to federal employers." Neary , 730 F. App'x at 11 n.3.
Accordingly, because Plaintiff cannot satisfy redressability, he cannot satisfy all three prongs necessary to adjudicate a claim in federal court. The Court therefore dismisses Plaintiff's claims for lack of standing. III. Conclusion
Defendants also moved to dismiss for failure to exhaust the administrative review and appeals processes as required by the Administrative Procedure Act (the "APA"), 5 U.S.C. § 704. (Defs.’ Mot. 3–4.) Because the Court dismisses Plaintiff's claims for lack of standing, the Court declines to address this argument.
--------
For the foregoing reasons, the Court grants Defendants’ motion to dismiss and dismisses the action.
SO ORDERED.