UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __ ) STEVEN H. HALL, ) ) Plaintiff, ) v. ) ) DEPARTMENT OF COMMERCE, et. al.,) Civil Action No. 16-1619 (EGS) ) Defendants. ) )

MEMORANDUM OPINON AND ORDER

Plaintiff Steven Hall (“Mr. Hall”), proceeding pro se,

brings suit against the United States Patent and Trade Office

(“USPTO”) and USPTO Employee Relations Specialist William House

(collectively, “defendants”) pursuant to Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;

the Rehabilitation Act of 1973 (“Rehabilitation Act”),

, et. seq.; and the Federal Tort Claims Act (“FTCA”),

. He alleges that the defendants discriminated

against him on the basis of his race and disability by allegedly

withdrawing a tentative job offer in November 2014.

Before the Court are Mr. Hall’s objections to Magistrate

Judge G. Michael Harvey’s Report and Recommendation (“R&R”),

which recommends that the Court grant the defendants’ motion to

dismiss because Mr. Hall failed to exhaust his administrative

remedies and failed to timely appeal the denial of his FTCA

1 claim. See R&R, ECF No. 19 (issued August 22, 2017). Upon

consideration of the R&R, Mr. Hall’s objections, the defendants’

response to those objections, the defendants’ motion to dismiss,

the responses and replies thereto, and the relevant law, this

Court ADOPTS Magistrate Judge Harvey’s R&R and GRANTS the

defendants’ motion to dismiss.

I. Background

Magistrate Judge Harvey pieced together a complete history

of the facts in this case from a variety of sources, including

“a substantial number of administrative proceedings initiated by

the Plaintiff, in addition to two other federal court actions he

brought in this district.” R&R, ECF No. 19 at 2. Throughout the

background section, Magistrate Judge Harvey cited and relied on

several documents not attached to the amended, operative

complaint. See

. However, such reliance was proper as

the documents were either “incorporated by reference in the

complaint, or documents upon which the plaintiff's complaint

necessarily relies . . . .” Ward v. D.C. Dep’t of Youth Rehab.

Servs.,

(D.D.C. 2011) (internal

citations and quotations omitted). Magistrate Judge Harvey also

properly took judicial notice of certain administrative

proceedings that Mr. Hall had attached as exhibits to his

original complaint, but failed to re-attach to the amended,

operative complaint. R&R, ECF No. 19 at 12; see Vasser v.

2 McDonald,

(D.D.C. 2016)(taking

judicial notice of administrative orders and administrative

complaints not attached to the complaint: “[i]f courts could not

take judicial notice of such public documents, plaintiffs who

obviously had not complied with the administrative-exhaustion

process could survive motions to dismiss purely by failing to

attach their administrative complaint.”).

To briefly summarize, Mr. Hall worked at the Department of

Homeland Security (“DHS”)—which is not a party to this suit—

until he was terminated in November 2013. R&R, ECF No. 19 at 5.

He received a tentative job offer from the USPTO in November

2014.

On November 13, 2014, the USPTO rescinded Mr. Hall’s

job offer upon learning that he had previously been terminated

by DHS.

. Allegedly on advice from an unnamed Department

of Commerce employee, Pl.’s Opp’n, ECF No. 16 at 3, Mr. Hall

challenged the USPTO’s withdrawal of his offer by filing an FTCA

claim in December 2014. R&R, ECF No. 19 at 7. His FTCA claim was

denied on June 16, 2015.

On June 24, 2015, Mr. Hall

initiated contact with the USPTO’s Equal Employment Opportunity

(“EEO”) Office, alleging that the USPTO’s rescission was

unlawfully motivated by his race and disability.

. On

August 5, 2016, Mr. Hall filed the instant action. Mr. Hall does

not object to these facts and confirms the operative dates. See

Pl.’s Objection, ECF No. 20 at 7, 11.

3 Mr. Hall objects to one fact included in the R&R and one

fact not included in the R&R. First, he objects to the fact that

Magistrate Judge Harvey mentioned that Mr. Hall had been accused

of sexual harassment at DHS, as it “shows favoritism for USPTO .

. . implying and insinuating that [the defendants] made the

correct decision to rescind [his] tentative job offer due to

alleged misconduct.”

. Magistrate Judge Harvey included

this fact “only for the purpose of providing factual context”;

it did not “constitute the basis of any recommendation.” R&R,

ECF No. 19 at 2. That said, the Court will not consider this

irrelevant fact. Indeed, given the defendants’ arguments in

their motion to dismiss, the only facts relevant “are those

arising from Plaintiff’s engagement with the administrative

process.”

Second, Mr. Hall objects that Magistrate Judge Harvey did

not include the fact that he had filed “several reconsideration

requests and appeals” and “submitted two other District Court

cases” regarding DHS’ termination decision.

. While

Magistrate Judge Harvey did in fact discuss the multitude of

litigation that Mr. Hall has been involved in, see R&R, ECF No.

19 at 8-9, these disputes are not relevant to the instant case

against USPTO. Mr. Hall himself acknowledges that these other

cases are “closed and not related to this case.” Pl.’s

Objections, ECF No. 20 at 6.

4 Having found no error in the factual background and

overruling Mr. Hall’s objections otherwise, the Court adopts and

incorporates Magistrate Judge Harvey’s thorough recitation of

the facts in the R&R. See R&R, ECF No. 19 at 2-10.

II. Standard of Review: Objections to a Magistrate Judge’s Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), once a

magistrate judge has entered a recommended disposition, a party

may file specific written objections. The district court “must

determine de novo any part of the magistrate judge’s disposition

that has been properly objected to,” and “may accept, reject or

modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).

Proper objections “shall specifically identify the portions of

the proposed findings and recommendations to which objection is

made and the basis for objection.” Local R. Civ. P. 72.3(b). “As

numerous courts have held, objections which merely rehash an

argument presented to and considered by the magistrate judge are

not ‘properly objected to’ and are therefore not entitled to de

novo review.” Shurtleff v. U.S. Envtl. Prot. Agency,

(D.D.C. 2013) (quoting Morgan v. Astrue, Case No.

08–2133,

, at *3 (E.D. Pa. Oct. 30, 2009)

(collecting cases)). Likewise, the Court need not consider

cursory objections made only in a footnote. Hutchins v. District

of Columbia,

, 539 n.3 (D.C. Cir. 1999); see also

5 Potter v. District of Columbia,

(D.C. Cir.

2009) (Williams, J. concurring) (internal citations omitted).

III. Analysis

In his amended complaint, Mr. Hall alleges that the

defendants discriminated 1 against him by rescinding his tentative

employment offer. Am. Compl., ECF No. 11 ¶ 3. The defendants

allegedly rescinded his job offer upon learning that DHS had

terminated him.

According to Mr. Hall, this decision was

improper because the defendants allegedly knew that DHS had

unlawfully terminated Mr. Hall due to his medical accommodation.

Id. ¶ 4. Defendants filed a motion to dismiss Mr. Hall’s

complaint, arguing that: (1) Mr. Hall had sued improper parties,

(2) Mr. Hall failed to administratively exhaust his

discrimination claims, and (3) Mr. Hall’s FTCA claim was time-

barred. See Defs.’ Mot., ECF No. 15.

Magistrate Judge Harvey recommended that the Court grant

the defendants’ motion to dismiss because: (1) Mr. Hall did not

sue the proper parties, to the extent that he is attempting to

sue individual employees, see R&R, ECF No. 19 at 13; (2) Mr.

1 Mr. Hall does not explicitly state the basis upon which the defendants allegedly discriminated against him, beyond stating that the defendants are liable for “employment discrimination” and “disability discrimination. See Am. Compl., ECF No. 11. Because Mr. Hall makes many references to his race, Magistrate Judge Harvey properly assumed that Mr. Hall alleged race-based employment discrimination. See R&R, ECF No. 19 at 14. Mr. Hall did not object. See generally Pl.’s Objection, ECF No. 20.

6 Hall failed to timely exhaust his administrative remedies as he

must to bring a Title VII claim or a Rehabilitation Act claim,

see id. at 14-22; and (3) Mr. Hall failed to timely appeal his

FTCA claim, see id. at 22-24.

A. Objection One: Mr. Hall Did Not Sue the Proper Parties

Magistrate Judge Harvey recommended that the Court grant

the defendants’ motion to dismiss certain individual employees.

See R&R, ECF No. 19 at 13. Should Mr. Hall be permitted to

proceed, Magistrate Judge Harvey recommended that the Court

grant Mr. Hall leave to amend his complaint to sue the proper

parties: the United States and the head of the USPTO. See id.

While styling his response as an objection, Mr. Hall agrees that

he was attempting to sue “the United States and the USPTO

Director,” who “are liable for discriminatory actions against

the Plaintiff.” Pl.’s Objections, ECF No. 19 at 7. He confirmed

that his “intent is to properly sue the agency head (USPTO) and

not the employees.” Pl.’s Opp’n, ECF No. 16 at 6. The Court

therefore ADOPTS this recommendation.

B. Objection Two: Mr. Hall Did Not Timely Exhaust His Administrative Remedies

Magistrate Judge Harvey recommended that the Court grant

the defendants’ motion to dismiss Mr. Hall’s discrimination

claims pursuant to Title VII and the Rehabilitation Act for

failure to timely exhaust administrative remedies. R&R, ECF No.

7 19 at 14. “An employee of the federal government who believes

that she has been the subject of unlawful discrimination must

‘initiate contact’ with an EEO Counselor in her agency ‘within

45 days of the date of the matter alleged to be

discriminatory.’” Steele v. Schafer,

(D.C.

Cir. 2008) (quoting

(a)(1)). This

requirement applies to claims arising under both Title VII and

the Rehabilitation Act. See Bowden v. United States,

(D.C. Cir. 1997) (“Complainants must timely exhaust

these administrative remedies before bringing their [Title VII]

claims to court.”); Spinelli v. Goss,

(D.C.

Cir. 2006) (dismissing the plaintiff’s Rehabilitation Act claim

for failure to exhaust administrative remedies). “A court may

not consider a discrimination claim that has not been exhausted

in this manner absent a basis for equitable tolling.” Steele,

.

Magistrate Judge Harvey found that Mr. Hall did not

initiate contact with the agency EEO within the 45-day deadline.

R&R, ECF No. 19 at 15. Indeed, the USPTO’s alleged

discriminatory action—rescinding his job offer—occurred on

November 13, 2014. Am. Compl., ECF No. 11 at 24. It is

undisputed that Mr. Hall did not contact the USPTO EEO office

until June 24, 2015–over 200 days later. Am. Compl., ECF No. 11

at 8; Pl.’s Objection, ECF No. 20 at 11. Rather than disputing

8 this fact, Mr. Hall argues that his failure to timely exhaust

should be excused under the doctrine of equitable estoppel or

equitable tolling. See Pl.’s Objection, ECF No. 20. Mr. Hall

argues that this relief is warranted because USPTO “manipulated

him,” id. at 8, when an unnamed Department of Commerce employee

told him over the phone that his “concerns” seemed to be

“related to an FTCA claim,” Pl.’s Opp’n, ECF No. 16 at 3. This

erroneous advice “prevented him from filing a [timely] EEO

complaint.” Pl.’s Objection, ECF No. 20 at 8. Mr. Hall’s

arguments largely rehash the arguments he made before Magistrate

Judge Harvey in opposing the defendants’ motion to dismiss. See

Pl.’s Opp’n, ECF No. 16 at 7 (“USPTO misled and took advantage

of Plaintiff, thus prevented Plaintiff from administratively

exhausting his remedies.”).

The Court agrees that Mr. Hall’s failure to initiate

contact with the USPTO’s EEO office within 45 days cannot be

excused. True, this exhaustion requirement is subject to

equitable estoppel and equitable tolling, Currier v. Radio Free

Europe,

(D.C. Cir. 1998), but Mr. Hall has

not met his burden to “plead[] . . . equitable reasons to excuse

his failure to comply with the 45–day requirement,” O'Neal v.

England, No. 03–5261,

, at *1 (D.C. Cir. Apr. 7,

2004) (citing Saltz v. Lehman,

(D.C. Cir.

1982)).

9 1. Equitable Estoppel

Equitable estoppel “prevents a defendant from asserting

untimeliness where the defendant has taken active steps to

prevent the plaintiff from litigating in time.” Currier,

(citations omitted). Proving equitable estoppel is

warranted is “not surprisingly[,] a ‘high’ ‘hurdle’ to

clear. Indeed, only in ‘extraordinary and carefully

circumscribed instances’ will the Court exercise its equitable

power . . . .” White v. Geithner,

(D.D.C. 2009) (quoting Smith–Haynie v. District of Columbia,

, 579–80 (D.C. Cir. 1998)). The Supreme Court has

“powerful[ly] caution[ed] against [the] application of the

doctrine of equitable estoppel to the government as normally

barring its use to undercut statutory exhaustion

requirements.” Rann v. Chao,

(D.C. Cir.

2003) (citing Office of Personnel Mgmt. v. Richmond,

, 419–24 (1990); Deaf Smith Cty. Grain Processors, Inc. v.

Glickman,

(D.C. Cir. 1998)). A plaintiff

must therefore include proof of “each of the traditional

elements” of equitable estoppel: “[1] false representation, [2]

a purpose to invite action by the party to whom the

representation was made, [3] ignorance of the true facts by that

party, and [4] reliance, as well as ... [5] a showing of an

injustice ... and [6] lack of undue damage to the public

10 interest.” ATC Petroleum, Inc. v. Sanders,

(D.C. Cir. 1988)(internal quotations and citations

omitted)(explaining that application of estoppel “to the

government must be rigid and sparing”).

Courts within this Circuit have routinely found that a

government employee’s erroneous advice cannot alone give rise to

an equitable estoppel claim. See Rann v. Chao,

(declining to apply equitable estoppel when a government

employee erroneously told the plaintiff that he could opt out of

the administrative process); Deaf Smith Cty.,

(declining to allow the plaintiff to “avoid the exhaustion

requirement on the ground that [government] officials

erroneously advised [the plaintiff] of the futility of pursuing

his administrative remedies”); Rahimi v. Weinstein,

(D.D.C. 2017) (declining to apply equitable

estoppel when a government employee allegedly gave potentially

erroneous advice to the plaintiff); Int’l Union v. Clark, Case

No. 02-1484,

, at *12 (“[the] provision of

erroneous information, without more, cannot give rise to an

equitable estoppel claim against the government”) (citing

Richmond,

)).

Moreover, accepting as true Mr. Hall’s allegation that a

government employee told him that his “concerns were related to

an FTCA claim,” Pl.’s Opp’n, ECF No. 16 at 3, he has not pled a

11 necessary element of equitable estoppel: that he “had ignorance

of the true facts,” R&R, ECF No. 20 at 16 (quoting ATC

Petroleum,

). Indeed, Mr. Hall knew that he had

a discrimination claim. Just days after the USPTO rescinded his

tentative job offer, Mr. Hall argued that he had been the victim

of discrimination. Am. Compl., ECF No. 11 at 12 (stating, in a

November 20, 2014 email to USPTO employee Mr. House, “I had

assumed in America we are given a second chance, but male

African-Americans like myself are not given a second chance in

[sic] USPTO.”). Therefore, Mr. Hall “had all the facts

necessary” to file an EEO complaint; he merely lacked knowledge

of the “legal theory” on which his complaint would succeed.

Daiichi Sankyo Co., Ltd. V. Rea,

(D.D.C.

2013) (quoting Venture Coal Sales Co. v. United States,

(Fed. Cir. 2004)). To that end, the 45-day exhaustion

deadline may not be equitably estopped because Mr. Hall

“relie[d] on the government officer's or agency's interpretation

of [his] legal rights.” Id. at 19.

To the extent that Mr. Hall objects because the “USPTO did

not notify the Plaintiff that his opportunity to file his EEO

complaint would expire,” Pl.’s Objection, ECF No. 20 at 9, he

fails to establish a different element of equitable estoppel.

See ATC Petroleum,

. An agency’s mere failure to

provide “information about the EEO process reflect[s] passive

12 rather than affirmative conduct” and is not enough to warrant

invoking equitable estoppel. Klugel v. Small,

(D.D.C. 2007). Because Mr. Hall has not met his burden to

plead that equitable estoppel is warranted, the Court declines

to apply it in order to excuse his failure to timely exhaust

administrative remedies.

2. Tolling

Mr. Hall also argues, again rehashing his original

arguments before Magistrate Judge Harvey, that his failure to

exhaust his administrative remedies should be excused under

(a)(2) 2 and the doctrine of equitable tolling.

The doctrine of equitable tolling “applies most commonly when

the plaintiff ‘despite all due diligence ... is unable to obtain

vital information bearing on the existence of his claim.’” Chung

v. Dep’t of Justice,

(D.C. Cir. 2003) (quoting

Currier,

). The Court is persuaded that this

doctrine is also not available to Mr. Hall because “there is no

question that he ‘had a reasonable suspicion that he had been a

2 “The agency or the Commission shall extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.”

13 victim of discrimination’ in November 2014.” R&R, ECF No. 20 at

18 (quoting Hayes v. Chao,

(D.D.C. 2008).

In Hayes v. Chao, the court declined to toll the pro se

plaintiff’s missed 45-day deadline to exhaust administrative

remedies because the plaintiff had “considerable experience with

employment claims” and had a “reasonable suspicion of

discrimination.”

. So here too.

As discussed above, Mr. Hall had all of the necessary

information bearing on his claim. Specifically, he knew that he

intended to bring a discrimination claim. He stated in a

November 20, 2014 email that “male African-Americans like myself

are not given a second chance” at the USPTO. Am. Compl., ECF No.

11 at 12. Additionally, Mr. Hall complained that the USPTO

engaged in employment discrimination when he submitted his

November 26, 2014 FTCA claim. See Compl., ECF No. 1-2 at 9-12.

Moreover, Mr. Hall had experience with discrimination

litigation. He admitted that he had “engaged in protected

activity with agencies EEO and EEOC and submitted two other

cases [sic] District Court cases” involving instances of

employment discrimination unrelated to this action. Pl.’s

Objection, ECF No. 20 at 3. 3

3 For the same reasons, his failure to initiate EEO proceedings cannot be extended under

(a)(2).

14 The Court therefore ADOPTS Magistrate Judge Harvey’s

recommendation to grant defendants’ motion to dismiss as to Mr.

Hall’s discrimination claims.

C. Objection Three: Mr. Hall Did Not Timely Appeal the Defendants’ FTCA Determination

Mr. Hall did not explicitly bring an FTCA claim in his

Amended Complaint. See generally Am. Compl., ECF No. 11.

However, assuming Mr. Hall had intended to bring suit under the

FTCA, Magistrate Judge Harvey recommended that the Court grant

the defendants’ motion to dismiss because Mr. Hall failed to

timely appeal the USPTO’s denial of his FTCA claim. R&R, ECF No.

19 at 22. “A tort claim against the United States shall be

forever barred unless . . . action is begun within six months

after the date of mailing . . . of notice of final denial of the

claim by the agency to which it was presented.”

(b). “A claim not so presented and filed is forever barred.”

Mittleman v. United States,

(D.C. Cir. 1997).

It is undisputed that Mr. Hall did not appeal the FTCA

determination within this six-month window. On June 16, 2015,

the USPTO denied Mr. Hall’s FTCA claim. Pl.’s Objection, ECF No.

20 at 11; Am. Compl., ECF No. 11 at 10 (FTCA denial letter). Mr.

Hall did not file his claim until August 5, 2016—missing the

deadline by almost eight months. See Compl., ECF No. 1.

15 Mr. Hall does not contest these findings. Instead, he seems

to argue that his failure to appeal should be excused because

the USPTO did not timely resolve his FTCA claim. Pl.’s

Objection, ECF No. 20 at 11-12. Assuming the USPTO did delay in

processing his claim, Mr. Hall’s objection is irrelevant; the

USPTO’s alleged delay does not eliminate Mr. Hall’s deadline.

Regardless of any alleged USPTO delay, Mr. Hall was obligated to

appeal its decision within six months.

(b).

Mr. Hall also argues that his failure to timely appeal the

FTCA decision should be excused because his June 2015 EEO

complaint tolls the FTCA appeal deadline. Pl.’s Objection, ECF

No. 20 at 11-12. Not so. As Mr. Hall rightly notes, the only

mechanism for appealing the USPTO’s FTCA denial was “the federal

court system.”

. Mr. Hall may not appeal the FTCA

decision by filing an untimely EEO claim.

D. Other Objections

Mr. Hall makes several other objections, all of which are

unrelated to Magistrate Judge Harvey’s recommendations. See

Pl.’s Objection, ECF No. 20 at 13-15.

First, Mr. Hall argues that Magistrate Judge Harvey did not

“acknowledge” his motion for default judgment.

. This

is irrelevant and moot; the Court denied Mr. Hall’s motion for

default judgment on November 14, 2016. See Order, ECF No. 6.

16 Mr. Hall also makes five other objections, all related to

disputes with agencies other than the USPTO. Pl.’s Objection,

ECF No. 20 at 13-15. These objections are irrelevant to the

instant case against USPTO. See Am. Compl., ECF No. 11.

IV. Conclusion and Order

For the aforementioned reasons, Mr. Hall’s objections to

Magistrate Judge Harvey’s R&R are overruled and Magistrate Judge

Harvey’s R&R is ADOPTED in its entirety. Accordingly, the Court

GRANTS the defendants’ motion to dismiss Mr. Hall’s amended

complaint and DENIES Mr. Hall’s “motion not to dismiss

complaint.” This is a final, appealable Order.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 30, 2018

17