Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 1 of 17

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
KIRK E. WEBSTER, SR., )
)
Plaintiff, )
)
v. )
) Case No. 16-2114-CRC
JAMES N. MATTIS, )
SECRETARY OF DEFENSE, et al., )
)
Defendants. )
__________________________________________)

DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE,

TO DISMISS IN PART AND TRANSFER IN PART

Defendants respectfully move to dismiss the claims against the Secretary of the

Department of Defense and the Departments employees for improper venue, pursuant to Rule

12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. 1406(a); and to dismiss,

pursuant to Rules 12(b)(1) and 12(b)(6), the claims against the EEOC employee-Defendants

Kenneth Morse and James Lee for lack of subject matter jurisdiction and failure to state a claim

upon which relief may be granted. In the alternative, Defendants respectfully move to dismiss

the claims against all Defendants but the Secretary of Defense and transfer this case to the

Eastern District of Virginia pursuant to 28 U.S.C. 1404(a). In support of this motion,

Defendants submit the attached memorandum of points and authorities.

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 2 of 17

Dated: February 14, 2017 Respectfully submitted,

CHANNING D. PHILLIPS
D.C. Bar # 415793
United States Attorney for the District of
Columbia

DANIEL VAN HORN

D.C. Bar # 924092
Chief, Civil Division

/s/
JOSHUA L. ROGERS
Assistant United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20530
(202) 252-2578
Joshua.Rogers3@usdoj.gov

ASHLEY MARTIN
Office of Legal Counsel
U.S. Equal Employment Opportunity
Commission
131 M Street, N.E.
Washington, D.C. 20507
(202) 663-4695 (Phone)
Ashley.Martin@eeoc.gov

Counsel for Defendants

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 3 of 17

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
KIRK E. WEBSTER, SR., )
)
Plaintiff, )
)
v. )
) Case No. 16-2114-CRC
JAMES N. MATTIS, )
SECRETARY OF DEFENSE, et al., )
)
Defendants. )
__________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF DEFENDANTS MOTION TO DISMISS OR TRANSFER

Plaintiff Kirk E. Webster has brought suit against various Defendants from the

Department of Defense (DOD) and the Equal Employment Opportunity Commission

(EEOC) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., alleging

claims of retaliation. The Court should dismiss Plaintiffs claims against all Defendants; or in

the alternative, dismiss Plaintiffs claims against all Defendants but the Secretary of Defense and

transfer the case to the Eastern District of Virginia, as explained below.

STATEMENT OF FACTS

On October 24, 2016, Plaintiff, proceeding pro se, filed his Complaint in the above-

captioned matter against several Defendants, including the Secretary of the Department of

Defense; Robert Cardillo, the Director of the National Geospatial Intelligence Agency (NGA),

a component of the Department of Defense; NGA employees Jack Rickert, John Zimmerman,

and Patsy Coleman; DOD Defense Finance and Accounting Service employee Theodore Harper;

and EEOC employees Kenneth Morse and James Lee. Plaintiff brought his claims in the District

of Columbia.
 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 4 of 17

The Complaint, though difficult to comprehend, appears to allege that Plaintiff engaged

in whistleblowing activities; and various DOD/NGA employees retaliated against him by

revoking his security clearance, forcing him into early retirement, withholding financial benefits,

removing him from his position, forcing him into a settlement agreement under duress, and

colluding with EEOC counsel to undermine his wifes claims against the Department of the

Navy. Pl.s Compl. at pp. 1-2. His claims against EEOC employees Morse and Lee appear to be

based on his dissatisfaction with EEOCs processing of several federal sector complaints of

discrimination that he filed against the NGA.

As will be shown herein, this Court is not the proper venue for Plaintiffs Complaint

against the Secretary of Defense and the other DOD-Defendants; moreover, as to the individual

DOD-employee Defendants, Plaintiffs Complaint names improper parties. As to EEOC

employees Morse and Lee, the claim lacks subject matter jurisdiction in this Court and does not

state a claim upon which relief may be granted. The Defendants therefore move this Court to

dismiss the Complaint against all Defendants; or in the alternative, to dismiss the Complaint

against all Defendants but the Secretary of Defense and transfer venue to the Eastern District of

Virginia.

STANDARD OF REVIEW

I. Fed. R. Civ. P. 12(b)(1)

Pursuant to Fed. R. Civ. P. 12(b)(1), a court must dismiss a claim for relief when the

complaint lack[s] . . . subject-matter jurisdiction. To survive a motion to dismiss under Rule

12(b)(1), plaintiffs bear the burden of proving that the Court has subject-matter jurisdiction to

hear their claims. Olson v. United States, 953 F. Supp. 2d 223, 228 (D.D.C. 2013); U.S.

Ecology, Inc. v. Dept of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an independent

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 5 of 17

obligation to determine whether subject matter jurisdiction exists, even in the absence of a

challenge from any party. Olson, 953 F.Supp. 2d at 228 (citing Arbaugh v. Y & H Corp., 546

U.S. 500, 514 (2006)).

II. Fed. R. Civ. P. 12(b)(3)

When presented with a motion to dismiss or transfer for improper venue under Fed. R.

Civ. P. 12(b)(3), the Court accepts the plaintiffs well-pled factual allegations regarding venue as

true, draws all reasonable inferences from those allegations in the plaintiffs favor, and resolves

any factual conflicts in the plaintiffs favor. Abraham v. Burwell, 110 F.Supp.3d 25, 28

(D.D.C. 2015) (internal quotation marks omitted). The Court need not accept plaintiffs legal

conclusions as true, however, and may consider material outside of the pleadings. Id.

Because it is the plaintiffs obligation to institute the action in a permissible forum, the plaintiff

usually bears the burden of establishing that venue is proper. Id. (internal quotation marks

omitted).

III. Fed. R. Civ. P. 12(b)(6)

The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the legal

sufficiency of a complaint. Atchinson v. District of Columbia, 73 F. 3d 418, 421 (D.C. Cir.

1996). A complaint may be dismissed for failure to state a claim upon which relief may be

granted if the facts pled and reasonable inferences therefrom are legally insufficient to support

the relief requested. Appleton v. United States, 69 F.Supp.2d. 83, 86 (D.D.C. 1999). In

reviewing a motion to dismiss, whether on grounds of lack of jurisdiction over the subject matter

or for failure to state a cause of action, all allegations in the complaint and all reasonable

inferences that can be drawn therefrom must be accepted as true and viewed in the light most

favorable to the non-moving party. Scheuer v. Rhodes, 416 U.S. 232 (1974); Conley v. Gibson,

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 6 of 17

355 U.S. 41, 45-46 (1957). The court need not, however, accept as true the plaintiffs legal

conclusions. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).

ARGUMENT

I. This District is an Improper Venue for Plaintiffs Title VII Claim Against the
Secretary of the Department of Defense and the Defendant DOD Employees.

Venue in Title VII cases is set by the venue provision in 42 U.S.C. 2000e-5(f)(3).

Taylor v. Shinseki, 13 F. Supp. 3d 81, 86 (D.D.C. 2014). Under Section 2000e-5(f)(3), a

plaintiff may bring a Title VII action (i) where the unlawful employment practice is alleged to

have been committed, (ii) where the employment records relevant to such practice are

maintained and administered, or (iii) where the aggrieved person would have worked but for

the alleged unlawful employment practice. 42 U.S.C. 2000e-5(f)(3). Only if the defendant

is not found within any of these districts can a plaintiff rely on a fourth possible location the

judicial district in which the respondent has his principal office. Taylor, 13 F. Supp. 3d at 86.

This venue statute governs all Title VII claims and supersedes any other venue provision

governing actions in federal court. Id.

This Court explicitly held, in a similar case involving a sub-agency of the Department of

Defense, that under Section 2000e-5(f)(3) venue was not proper within the District of Columbia.

See Jackson-Spells v. Rumsfeld, 457 F.Supp.2d 39 (D.D.C. 2006). The Court reasoned that there

was no basis for venue because the plaintiff challenged unlawful employment practices that

allegedly took place at an office that was located at all relevant times in Arlington, Virginia; and

the agencys employment records were maintained in either Pennsylvania or Virginia. Jackson-

Spells, 457 F.Supp.2d at 40. The Court added, Even if plaintiff were permitted to rely on the

location of defendant's principal office as a basis for venue, venue still would be improper in this

district since, as noted, the principal office of the Department of Defense is in Arlington,

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 7 of 17

Virginia, not the District of Columbia. Id. at 40, n.1 (citing Spencer v. Rumsfeld, 209 F.Supp.2d

15, 18 (D.D.C. 2002)).

Here, the alleged unlawful employment practices were committed in Springfield,

Virginia, or Bethesda, Maryland, where Plaintiff and his supervisors worked during Plaintiffs

employment with NGA. See Rickert Decl., Ex. A, 8-9; see also Pl.s Compl. at ECF 1, 35-

38 (noting that some of the alleged actions by Defendants took place in Bethesda). NGA

maintains all of its employment records on servers located in Virginia and Missouri. See Rickert

Decl., Ex. A, 6. Plaintiffs Complaint does not allege that the employment practice happened

in Washington, D.C., nor does it allege that he would have worked in the District of Columbia

but for the alleged acts of discrimination. See generally Pl.s Compl. Furthermore, as this Court

stated in Spencer, [e]ven if plaintiff were permitted to rely on the location of Defendants

principal office as a basis for venue, venue still would be improper in this district since . . . the

principal office of the Department of Defense is in Arlington, Virginia, not the District of

Columbia. Jackson-Spells, 457 F.Supp.2d. at 40, n.1. Under these circumstances, venue for

Plaintiffs Title VII claims is proper in the Eastern District of Virginia.

Where venue is improper, the court shall dismiss, or if it be in the interest of justice,

transfer such case to any district or division in which it could have been brought. 28 U.S.C.

1406(a). Although the decision to transfer or dismiss is committed to the sound discretion of

the district court, the interest of justice generally requires transferring a case to the appropriate

judicial district in lieu of dismissal. Abraham, 110 F. Supp. 3d at 30. Accordingly, this Court

should dismiss this case, or in the alternative, transfer Plaintiffs Title VII claims against the

Secretary of Defense to the Eastern District of Virginia.

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 8 of 17

II. Plaintiffs Complaint Must Be Dismissed for Failure to Name the Required Party.

In the caption of Plaintiffs Complaint, he names as Defendants then-Secretary of

Defense Ashton Carter; Robert Cardillo, the Director of the NGA; DOD employees Jack Rickert,

John Zimmerman, and Patsy Coleman; DOD Defense Finance and Accounting Service employee

Theodore Harper; and EEOC employees Kenneth Morse and James Lee. See Pl.s Compl. at 1.

Under the section, Parties, Plaintiffs Complaint names Robert Cardillo as being sued in his

official capacity and does not explain the capacity in which he sues the remaining Defendants.1

See Pl.s Compl. at 4-5.

Outside of the Secretary, none of the DOD Defendants are proper parties to this lawsuit

because they are all employees of the Defendant agencies. Hackley v. Roudebush, 520 F.2d 108,

115 n.17 (D.C. Cir. 1975) (a Title VII suit can be brought only against the head of the

department, agency, or unit against which the discrimination is alleged). Therefore, Plaintiffs

claims against all DOD employees other than the Secretary must be dismissed; and as explained

below, the claims against the EEOC employees must be dismissed for lack of subject matter

jurisdiction and for failure to state a claim upon which relief can be granted.

1
In subsequent conversations and correspondence with the Assistant United States
Attorney assigned to this matter, pro se Plaintiff stated that he was suing all Defendants in their
official capacities and not their individual capacities, but then he later said he was suing the
Secretary in his official capacity and all other Defendants in their official and individual
capacities. Notwithstanding any oral assertions by Plaintiff to the contrary, given the statutory
provision specifying that the only proper defendant in a Title VII action is the head of the
employing agency in his or her official capacity, the only proper defendant here is James N.
Mattis, in his official capacity as Secretary of Defense; and all individual Defendants should be
dismissed. See 42 U.S.C. 2000e-16(c). To the extent Plaintiff may subsequently seek to bring
any individual capacity claims against any of these Defendants, all defenses to their claims,
including immunity from suit, are expressly reserved.
6

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 9 of 17

III. The Complaint Against Defendants Lee and Morse Should Be Dismissed for Lack of
Subject Matter Jurisdiction.

Federal courts are courts of limited jurisdiction, deriving jurisdiction solely from the

congressional exercise of authority to ordain and establish inferior courts under the

Constitution. Lockerty v. Phillips, 319 U.S. 182, 187 (1943). A federal district court may hear a

case only if it is authorized to do so by a congressional grant of jurisdiction. Kokkonen v.

Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-702 (1982). It is to be presumed that a

cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon

the party asserting jurisdiction. Kokkonen, 511 U.S. at 377. The Plaintiff cannot establish

jurisdiction by this Court over EEO employees Lee and Morse, and accordingly, his Complaint

should be dismissed against these Defendants under Fed. R. Civ. P. 12(b)(1).

A. Sovereign Immunity Bars Plaintiffs claim.

Insofar as Plaintiff may be seeking monetary damages from the EEOC or its employees

acting in their official capacities, this Court lacks subject matter jurisdiction over Plaintiffs

claim because such claims are barred by sovereign immunity. [T]he United States, as

sovereign, is immune from suit except as it consents to be sued, and the terms of its consent to be

sued in any court define that courts jurisdiction to entertain the suit. United States v. Mitchell,

445 U.S. 535, 538 (1980) (citing United States v. Sherwood, 312 U.S. 548, 586 (1941)); Teton

Historic Aviation Found. v. U.S. Dep't of Def., 686 F. Supp. 2d 75, 78 (D.D.C. 2010). Any suit

against the United States must be brought in compliance with the specific statute under which the

government has waived its sovereign immunity. See United States v. Testan, 424 U.S. 392, 399

(1976). This doctrine of sovereign immunity also applies to suits in which a federal agency or its

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 10 of 17

officials are the named defendants. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475

(1994); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

Before a court may exercise jurisdiction over a suit against the United States, it must have

a clear statement that the government has waived sovereign immunity, together with a claim

falling within the terms of that waiver. United States v. White Mountain Apache Tribe, 537 U.S.

465 (2003); Mitchell, 445 U.S. at 538; United States v. King, 395 U.S. 1, 4-5 (1969); Geronimo

v. Obama, 725 F. Supp. 2d 182, 185 (D.D.C. 2010). The plaintiff has the burden of showing an

unequivocal waiver of sovereign immunity. Mitchell, 445 U.S. at 538. Absent a waiver,

sovereign immunity shields the Federal government and its agencies from suit. Meyer, 510

U.S. at 471.

In order for this Court to entertain a claim against Defendants Lee and Morse, Plaintiff

must establish that the United States has waived its sovereign immunity and consented to be

sued. See Mitchell, 445 U.S. at 538; Testan, 424 U.S. at 399; Sherwood, 312 U.S. at 586. Here,

there has been no such waiver. Plaintiff has not identified any statute that waives sovereign

immunity to allow an individual to sue EEOC or its employees acting in their official capacities

for damages in connection with the processing of a charge of employment discrimination, and

Defendants are not aware of any such statute. Thus, Plaintiff has failed to meet his burden of

demonstrating an unequivocal waiver of immunity. Accordingly, this action is barred as to

Defendants Lee and Morse.

B. Title VII does not provide a jurisdictional basis for this claim.

To the extent Plaintiff alleges that Defendants Lee and Morse engaged in activities in

violation of Title VII, he is unable to maintain this action because this Court does not have

jurisdiction over this matter. Title VII does not extend district court jurisdiction over the EEOC

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 11 of 17

or its employees in the instant action, and we are aware of no other statutory provision conferring

subject matter jurisdiction over this case against Defendants Lee and Morse.

Title VII provides federal courts with three grants of jurisdiction: section 706(f)(3), 42

U.S.C. 2000e-5(f)(3); section 707(b), 42 U.S.C. 2000e-6(b); and section 717(c), 42 U.S.C.

2000e-16(c). First, section 706(f)(3) authorizes federal courts to hear enforcement actions

brought against allegedly discriminating private employers by private parties, the Attorney

General, or the EEOC. 42 U.S.C. 2000e-5(f)(1), (3). The EEOC was not the Plaintiffs private

employer, and as an executive agency within the United States Government, it is excluded from

the definition of employer covered by section 706(f)(3). 42 U.S.C. 2000e(b). Second, section

707(b) grants federal courts jurisdiction over actions brought by the EEOC against persons

engaged in a pattern or practice of resistance to the goals of Title VII. 42 U.S.C. 2000e-6(b).

The civil action here is not an action being brought by EEOC. Lastly, section 717(c) authorizes

federal courts to adjudicate claims of employment discrimination brought by federal employees

or applicants for federal employment against their federal employer. 42 U.S.C. 2000e-16(c).

The Plaintiff does not allege that he is an employee of the EEOC, nor does he allege that he

applied for a job with EEOC.

Thus, none of the Title VII sections discussed above authorize individuals alleging

employment discrimination by a third party to file suit against the EEOC employees or the

EEOC in its role as the agency responsible for enforcing Title VII. Therefore, Title VII does not

confer subject matter jurisdiction over Plaintiffs claim against Defendants Lee and Morse.

C. Plaintiff has Failed to State a Claim Against EEOC Employees Lee and
Morse Upon Which Relief Can Be Granted.

Assuming, arguendo, that this Court has subject matter jurisdiction over Plaintiffs claim

against Defendants Lee and Morse, the Complaint fails to provide sufficient facts that state a

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 12 of 17

claim to relief against Defendants Lee and Morse, under Title VII that is plausible on its face,

and his Complaint, therefore, should be dismissed against under Fed. R. Civ. P. 12(b)(6).

Plaintiff cannot state a claim under Title VII or any other statute regarding his dissatisfaction

with EEOCs processing of his administrative charge of discrimination. In order for Plaintiff to

prevail against Defendants Lee and Morse under Title VII, he must demonstrate that Congress

granted a clear right of action against the EEOC or its employees, acting in their official

capacities, either expressly or by implication. Transamerica Mortgage Advisors, Inc. v. Lewis,

444 U.S. 11, 15 (1979); Warth v. Seldin, 422 U.S. 490, 510 (1975).

Title VII does not create an express cause of action by persons such as Plaintiff against

EEOC or EEOC employees acting in their official capacities. As noted previously in this

Memorandum, Sections 706, 707, and 717 of Title VII, 42 U.S.C. 2000e-5, 6, and 16, provide

the explicit remedies for individuals who claim to be victims of employment discrimination.

Section 717 provides the explicit remedy for persons like the Plaintiff who believe they are

victims of discrimination in the federal sector. These individuals may file a charge of

discrimination with the allegedly discriminating employer, and a Title VII suit can be brought

only against the head of the department, agency, or unit against which the discrimination is

alleged. Hackley v. Roudebush, 520 F.2d 108, 115 n.17 (D.C. Cir. 1975).

No remedy is expressly set out for a suit against the EEOC or its employees by a person

dissatisfied with EEOCs processing of his or her federal sector EEO complaint. Plaintiff was

not employed by EEOC, nor did he seek employment with EEOC, and consequently, there is no

provision in Title VII permitting the type of claim Plaintiff seeks to bring against Defendants Lee

and Morse. Plaintiff, therefore, fails to establish that Title VII provides an express cause of

against these Defendants.

10

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 13 of 17

Similarly, Plaintiff cannot show that an implied remedy against the EEOC or its

employees under Title VII is appropriate in this case. The question of whether a federal statute

implicitly authorizes a cause of action can be determined by looking at whether the statutory

scheme is consistent with the inference that Congress intended to create a particular right of

action (here, a suit against the EEOC in its role as the enforcement agency). Northwest Airlines,

Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 91 (1981); Transamerica Mortgage

Advisors, Inc., 444 U.S. at 15-17. Congress did not intend to create a cause of action for Plaintiff

under Title VII against the EEOC, as evidenced by the fact that the statute provides a different

avenue of recourse for Plaintiff.

Congress created an explicit remedy that it intended to be a charging partys exclusive

recourse for any failure by the EEOC: a de novo cause of action against the alleged

discriminating employer. 42 U.S.C. 2000e-2000e(5)(f)(1); Occidental Life Ins. Co. v. EEOC,

432 U.S. 355, 365-66 (1977). In Occidental Life, the Supreme Court reviewed the private sector

judicial relief provision of Title VII, section 706(f)(1), 42 U.S.C. 2000e-5(f)(1), and concluded

on the basis of the provisions legislative history that Congress intended the individuals right to

bring a de novo lawsuit against respondent employer to be the sole judicial remedy. This was

considered a complete and sufficient remedy even though EEOC, in processing a charge, might

act slowly, erroneously, or not at all.2

Accordingly, the D.C. Circuit has stated that Congress has not authorized, either

expressly or impliedly, a cause of action against the EEOC for the EEOCs alleged negligence or

2
The retention of the private right of action . . . allow[s] the person aggrieved to
elect to pursue his or her own remedy under this title in the courts where there is agency
inaction, dalliance, or dismissal of the charge, or unsatisfactory resolution. Occidental
Life, 432 U.S. at 365-66 (quoting 118 Cong. Rec. 7168 (1972)).
11

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 14 of 17

other malfeasance in processing an employment discrimination charge. Smith v. Casellas, 119

F.3d 33, 34 (D.C. Cir. 1997); accord Packer v. Garrett, 735 F. Supp. 8, 9 (D.D.C. 1990) (Title

VII provides a former employee with a remedy only against his or her employer and does not

create an independent cause of action against the EEOC for its investigation and processing of a

charge (internal quotations omitted). All courts that have considered this issue have agreed

with the D.C. Circuits analysis and conclusion.

The rationale of these private sector Title VII cases applies to federal employees who

raise Title VII discrimination claims as well, because federal complainants have the same right to

a trial de novo on their discrimination claims as private sector employees do. Chandler v.

Roudebush, 425 U.S. 840, 843 (1976); Chennareddy v. Dodaro, 698 F. Supp. 2d 1, 10 (D.D.C.

2009) (concluding that a federal employee did not have a cause of action under Title VII to

challenge the EEOCs process of his discrimination complaint); Keeley v. Small, 391 F.Supp.2d

30, 45 (D.D.C. 2005) (concluding that a federal employees claim of an employers alleged

interference in the EEOCs investigation did not provide a cause of action under Title VII). At

the trial de novo, a court can determine whether the federal employee was discriminatorily

aggrieved and can grant full and appropriate relief.

The Complaint describes Plaintiffs dissatisfaction with the manner in which the EEOC

processed his charge. He asserts vague allegations of retaliation and collusion between the

EEOC and his former employer, which merely reiterate his overriding contention that the EEOC

did not properly process his EEO charge. Pls. Compl. 12, 23, 26, 56. He also asserts

dissatisfaction with the manner in which mediation and settlement proceeded. See Pls. Compl.

92-101. Regardless of Plaintiffs dissatisfaction with EEOCs processing of his

administrative charge, Title VII does not provide jurisdiction for a claim against EEOC in its role

12

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 15 of 17

as the enforcement agency. Rather, Plaintiff is entitled to file a de novo lawsuit against his

former employer.

Therefore, because Plaintiff has failed to state a claim against these EEOC employees for

which relief can be granted, his Complaint should be dismissed as to Defendants Lee and Morse

pursuant to Fed. R. Civ. Pro. 12(b)(6).

CONCLUSION

For all of the foregoing reasons, Defendants respectfully move to dismiss the claims

against the Department of Defense and its employees for improper venue; and to dismiss the

claims against EEOC employees Kenneth Morse and James Lee for lack of subject matter

jurisdiction and failure to state a claim upon which relief may be granted. In the alternative,

Defendants respectfully move to dismiss the claims against all Defendants but the Secretary of

Defense, and transfer this case to the Eastern District of Virginia.

13

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 16 of 17

Dated: February 14, 2017 Respectfully submitted,

CHANNING D. PHILLIPS
D.C. Bar # 415793
United States Attorney for the District of
Columbia

DANIEL VAN HORN

D.C. Bar # 924092
Chief, Civil Division

/s/
JOSHUA L. ROGERS
Assistant United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20530
(202) 252-2578
Joshua.Rogers3@usdoj.gov

ASHLEY MARTIN
Office of Legal Counsel
U.S. Equal Employment Opportunity
Commission
131 M Street, N.E.
Washington, D.C. 20507
(202) 663-4695 (Phone)
Ashley.Martin@eeoc.gov

Counsel for Defendants

14

 Case 1:16-cv-02114-CRC Document 23 Filed 02/15/17 Page 17 of 17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 14th day of February, 2017, the foregoing has been

served on Plaintiff by first-class mail, postage pre-paid, and addressed as follows:

Kirk E. Webster
43184 Gatwick Square
Ashburn, VA 20147

/s/ Joshua L. Rogers

JOSHUA L. ROGERS
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W.
Washington, D.C. 20530
(202) 252-2578

15

Case 1:16-cv-02114-CRC Document 23-1 Filed 02/15/17 Page 1 of 3

EXHIBIT
A
 Case 1:16-cv-02114-CRC Document 23-1 Filed 02/15/17 Page 2 of 3

UNCLASSIFIED

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
KIRK E. WEBSTER, SR., )
)
Plaintiff, )
)
v. )
) Case No. 16-2114-CRC
JAMES N. MATTIS, )
SECRETARY OF DEFENSE, et al., )
)
Defendants. )

DECLARATION OF JACK RICKERT

I, Jack Rickert, declare and state the following:

L I am an Assistant General CoWlsel at the National Geospatial-Intelligence Agency

("NGA"). I have been employed at NGA and its predecessor agencies since 1995.

2. I am submitting this declaration for the Secretary of Defense's use in the above-captioned

matter.

3. NGA is located in Springfield, VA, on the northern annex of Fort Belvoir, VA. There is

another NGA facility in St. Louis, MO.

4. NGA was formerly located and headquartered in Bethesda, MD, Wltil January 201 L

Due to the Base Realignment and Closure Act ("BRAC") of2005, NGA's Bethesda, MD,

location was closed and subsequently transferred to its current location in Springfield,

VA,in2011.

5. NGA does not have any offices or facilities in Washington, D.C.

UNCLASSIFIED
 Case 1:16-cv-02114-CRC Document 23-1 Filed 02/15/17 Page 3 of 3

UNCLASSIFIED

6. NGA maintains its employment records on servers located in Springfield, VA, and St.

Louis, MO.

7. There are no NGA records stored in Washington, D.C.

8. At all times relevant to this instant lawsuit and prior to his retirement in June 2012, the

_plaintiff was employed and physically located at either NGA's Bethesda, MD, facility or

its facility in Springfield, VA.

9. At no time was the defendant employed by NGA in Washington, D.C.

I declare under penalty of perjury, pursuant to Title 28, United States Code, Section 1746,
that the foregoing is true and correct to the best of my information and knowledge.

jACK_WRICKERT
Assistant General Counsel, NGA, OGC

DATE

UNCLASSIFIED

------------------------------------
 Case 1:16-cv-02114-CRC Document 23-2 Filed 02/15/17 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
KIRK E. WEBSTER, SR., )
)
Plaintiff, )
)
v. )
) Case No. 16-2114-CRC
JAMES N. MATTIS, )
SECRETARY OF DEFENSE, et al., )
)
Defendants. )
__________________________________________)

ORDER

UPON CONSIDERATION of the Defendants Motion to Dismiss or, in the Alternative,

to Dismiss in Part and Transfer in Part, and for good cause shown, it is hereby

ORDERED that Defendants motion is GRANTED.

SO ORDERED this __ day of _______________, 2017.

Date: ____________________ ____________________________________

Christopher R. Cooper
United States District Judge