UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHANIE M. REDDING,

Plaintiff,

v. No. 21-cv-2449 (DLF) KIRAN AHUJA, Director, Office of Personnel Management,

Defendant.

MEMORANDUM OPINION

Stephanie Redding brings this suit alleging that the Director of the Office of Personnel

Management (“OPM”) unlawfully discriminated against her in violation of the Rehabilitation Act

and violated her constitutional procedural due process rights when OPM rescinded her disability

retirement benefits. Before the Court is the defendant’s Motion to Dismiss or, in the Alternative,

to Transfer Venue, Dkt. 28, and the plaintiff’s Motion to Consolidate, Dkt. 34. For the following

reasons, the Court will grant the defendant’s motion and deny the plaintiff’s motion.

I. BACKGROUND

In March 13, 2011, Redding started working as a Federal Air Marshal in the Department

of Homeland Security’s Transportation Security Agency. 1 Am. Compl. ¶ 10, Dkt. 23. She suffers

from severe myopia and chronic dry eyes. Id. ¶ 11. In April 2017, a physician determined that

she was no longer medically qualified to continue as a Federal Air Marshal. Id. ¶¶ 14, 15. After

1 In resolving the Director’s motion to dismiss, the Court has assumed the truth of the material factual allegations in the amended complaint. See Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011). learning this, on September 28, 2017, Redding submitted a disability retirement application to

OPM. Id. ¶ 15.

In January 2018, Redding completed a reasonable accommodation request to be reassigned

to a position for which she would be medically qualified. Id. ¶ 21. She had not been notified that,

prior to her request, the Transportation Security Agency had already determined that a

reassignment search would be futile. Id. ¶¶ 16, 17. In May 2018, Redding was reassigned to a

position in the Federal Law Enforcement Training Centers Behavioral Science Division in

Brunswick, Georgia, with a $20,000 decrease in salary Id. ¶¶ 24, 25, 27. Redding “had difficulty

with the conditions of the reassignment,” but found that “[n]o one seemed to know the process”

for requesting reconsideration of it. Id. ¶ 28. On January 6, 2020, Redding “was placed in an

Absent Without Leave status[,] and [she was] ultimately removed from service” “for excessive

absences” on June 17, 2020. Id. ¶ 37 & n.6.

Around the same time Redding was reassigned, OPM denied her initial disability

retirement application, which had been submitted before her reassignment. Id. ¶ 29. After Redding

requested reconsideration, id. ¶ 30, OPM approved the application, id. ¶ 31. On October 2, 2019,

Redding attempted to request “immediate separation” from her position based on this approval,

but her request was not processed. Id. ¶¶ 32, 33. On October 25, 2019, Redding was instead told

that she could no longer rely on the approval and “needed to reapply for disability retirement”

because she had accepted a reassigned position. Id. ¶ 35. Ultimately, in April 2020, OPM

rescinded its initial approval of Redding’s disability retirement application, id. ¶ 38.

Redding filed “informal complaints of disability discrimination” against the Transportation

Security Administration and the Federal Law Enforcement Training Centers. Id. ¶ 34. She also

filed before the Merit Systems Protection Board (MSPB) an appeal of OPM’s April 2020

2 rescission of her disability retirement benefits approval, id. ¶ 39, that the MSPB dismissed for lack

of jurisdiction, id. ¶ 41. At the same time, on both August 10, 2020 and August 25, 2020, she

requested that OPM reconsider its April 2020 rescission. Id. ¶¶ 40, 42. On September 24, 2020,

OPM affirmed that it “had improperly approved [her] disability retirement application,” id. ¶ 43,

and Redding requested reconsideration again, id. ¶ 45.

On October 30, 2020, OPM changed course again and approved Redding’s disability

retirement application a second time—this time, for her job in the Behavioral Science Division.

Id. ¶ 46. On March 2, 2021, however, OPM rescinded the second approval, too. Id. ¶ 48. Redding

appealed this second rescission to the MSPB in March 2021. Id. ¶ 49. On July 13, 2021, the

MSPB issued an initial decision “affirming [OPM] had properly withdrawn . . . Redding’s

disability retirement application and properly rescinded its approval of benefits.” Id. ¶ 52. That

decision became final on August 17, 2021. Id.

On September 14, 2021, Redding filed a pro se complaint in this Court against the Director

of OPM. Dkt. 1. Still proceeding pro se, she filed an amended complaint on August 4, 2022. Dkt.

23. In Count I of the amended complaint, she alleges that the Director unlawfully discriminated

against her in violation of § 504 of the Rehabilitation Act by “fail[ing] to provide policies and

procedures that would provide [her] a timely decision regarding her disability retirement,” id. ¶ 66;

“fail[ing] to provide . . . timely notice that [the Transportation Security Administration] had

deemed the effort to reassign or accommodate [her] futile,” id. ¶ 67; “fail[ing] to provide . . . the

policies and procedures that would allow [her] to be separated due to her disability,” id. ¶ 68;

“rescinding approvals of [her] disability retirement,” id. ¶ 69; and “subject[ing] [her] to a

bureaucratic process that non-disabled federal employees are not subjected to,” id. ¶ 70. In Count

II, she alleges that the Director violated her constitutional procedural due process rights by denying

3 her disability retirement benefits twice “without appropriate notice and reasoning[] and[,] on at

least one occasion, without appeal rights.” Id. ¶ 76. According to Redding, these errors “allowed

[the Department of Homeland Security] to proceed with removing [her] from federal service for

reasons other than the disability retirement approval,” and “caused [her] to lose her ability to obtain

gainful employment.” Id. ¶¶ 83, 84. Before the Court now is the Director’s motion to dismiss the

amended complaint for lack of subject-matter jurisdiction or, in the alternative, to transfer venue,

Dkt. 28, and the plaintiff’s motion to consolidate this case with a related case in this District,

Dkt. 34.

II. LEGAL STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal law

empowers federal district courts to hear only certain kinds of cases, and it is “presumed that a

cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). When deciding a Rule 12(b)(1) motion, the court must “assume the truth of all

material factual allegations in the complaint and construe the complaint liberally, granting plaintiff

the benefit of all inferences that can be derived from the facts alleged, and upon such facts

determine [the] jurisdictional questions.” Am. Nat’l Ins.,

(cleaned up). But the

court “may undertake an independent investigation” that examines “facts developed in the record

beyond the complaint” in order to “assure itself of its own subject matter jurisdiction.” Settles v.

U.S. Parole Comm’n,

(D.C. Cir. 2005) (internal quotation marks omitted).

4 III. ANALYSIS

A. Motion to Dismiss or, in the Alternative, to Transfer Venue

1. Count I (Rehabilitation Act)

Count I, labeled “Section 504 of the Rehabilitation Act” in the amended complaint, alleges

that the Director violated Section 504 by discriminating against Redding “on the basis of her

disability.” Am. Compl. ¶¶ 61–71. This count will be dismissed.

Section 504 prohibits “discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted by any Executive agency.”

(a). Redding does not allege that she has been discriminated against by such a

“program or activity.” Rather, she was a federal employee of the Department of Homeland

Security. Am. Compl. ¶ 10. And the Circuit has held that § 501 of the Rehabilitation Act is the

sole route to relief for federal employees alleging disability discrimination; Ҥ 504 does not

provide federal employees an alternative route for relief under the Rehabilitation Act.” Taylor v.

Small,

(D.C. Cir. 2003) (emphasis added) (cleaned up). 2 Redding therefore

cannot state a claim under Section 504 of the Rehabilitation Act. See id.; Rouse v. Berry,

, 238–39 (D.D.C. 2010) (Taylor required dismissal of claim by federal employee

participating in a long-term insurance benefit program administered by OPM).

2 Redding seeks to distinguish Taylor because the case “was decided upon a motion for summary judgment,” see Pl.’s Opp. at 4, Dkt. 29. But whether a federal employee can seek relief under § 504 is a question of law that can be decided on a motion to dismiss, and in Taylor, the district court did just that. Taylor, 350 F.3d at 1290–92 (affirming district court’s dismissal of federal employee’s § 504 Rehabilitation Act claim).

Moreover, Minney v. U.S. Office of Personnel Management,

(D.D.C. 2015), did not limit the applicability of Taylor as plaintiff contends, see Pl.’s Opp. at 4–5; Minney merely “refrain[ed] from addressing the merits of [the plaintiff’s] statutory challenge,”

.

5 Even if the Court were to construe Redding’s pro se complaint liberally, 3 see Dufur v. U.S.

Parole Comm’n,

(D.C. Cir. 2022), to instead allege a claim under § 501 of

the Rehabilitation Act (which permits a federal employee to bring suit), it would still dismiss Count

I for lack of subject-matter jurisdiction. To bring a § 501 claim, a plaintiff must timely exhaust

administrative remedies before filing suit in federal district court, including by filing an

administrative complaint. See Spinelli v. Goss,

(D.C. Cir. 2006); see also

Taylor,

(“Even if Taylor had pleaded her claim under § 501, we doubt the district

court would have had jurisdiction to entertain it because she failed to exhaust her administrative

appeal rights.”). In this Circuit, the failure to administratively exhaust a Rehabilitation Act claim

by “fail[ing] to file an administrative complaint or to obtain any administrative decision at all” is

a jurisdictional defect. Doak v. Johnson,

, 1103–04 (D.C. Cir. 2015) (citing Spinelli,

); see also Morris v. Off. of Pers. Mgmt., No. 20-cv-0016,

, at

*3 (D.D.C. May 28, 2021). Accordingly, “the plaintiff bears the burden of alleging facts sufficient

to establish that . . . she exhausted administrative remedies.” Williams v. Brennan,

(D.D.C. 2018).

Redding has not established that she exhausted her administrative remedies relating to a

§ 501 discrimination claim against OPM. She has provided no evidence that she ever “initate[d]

contact with a[n] [Equal Employment Opportunity] Counselor,”

(a)(1),

regarding OPM’s alleged discrimination against her on the basis of her disability. Indeed, she

alleges that she filed Equal Employment Opportunity complaints against the Federal Law

Enforcement Training Centers and the Transportation Security Administration, but never OPM.

3 The Court notes that Redding is now represented by counsel, and that counsel prepared Redding’s opposition to the Director’s motion to dismiss. See Dkt. 29.

6 Am. Compl. ¶ 34 n.5; cf. Morris,

, at *3 (negotiations before an EEO Counselor

with a non-defendant agency had “no bearing” on exhaustion requirement). Nor has Redding

shown that, when she brought a complaint against OPM before the MSPB, she litigated any § 501

claim that she was discriminated against on the basis of her disability. 4 See Pl.’s Opp. at 5–6

(citing no evidence that she brought such a claim to the MSPB); cf. Niskey v. Kelly,

(D.C. Cir. 2017) (permitting an employee to “forgo the internal agency exhaustion process and

take his claim directly to the [MSPB]”). The Court will therefore dismiss Count I for lack of

subject-matter jurisdiction.

2. Count II (Procedural Due Process)

In Count II, Redding alleges that the Director violated her constitutional procedural due

process rights by twice rescinding OPM’s approvals of her FERS disability benefits without due

4 At best, in her appeal to the MSPB, Redding used the word “discriminatory” once to refer to OPM’s rescissions of her disability retirement approvals. See Ex. 2 at 4, Dkt. 28-3. Absent any further evidence that Redding pursued a disability discrimination claim before the MSPB, her single cursory reference to “discriminat[ion]” is likely not sufficient to show exhaustion. See Vasser v. McDonald,

(D.D.C. 2016) (“To allow plaintiffs to proceed to federal court after having raised claims in only a cursory manner would undermine” the exhaustion requirement. (cleaned up)).

Even setting that aside, her isolated use of the term “discriminat[ion]” appears to refer to a different theory of discrimination than the one Redding now asserts. Before the MSPB, she complained that the rescissions were discriminatory because they “occurred at the same time of [her] administrative proceedings with the MSPB and EEO against [her] former agency.” Ex. 2 at 4. Redding did not assert, or even suggest, that the recissions were discriminatory on the basis of her disability. See Am. Compl. ¶¶ 62, 65. Nor did she identify as discriminatory the various other OPM actions she challenges now in this case. See

¶¶ 66–68.

Finally, as noted below, by failing to respond (with counsel) to the Director’s argument that she never alleged a § 501 discrimination claim before the MSPB, Def.’s Mem. at 10–13, Dkt. 28-1, Redding has conceded this issue. See Pl.’s Opp. at 6–7 (failing to respond to argument that MSPB appeal was not a mixed case); Bautista-Rosario v. Mnuchin,

, 9 (D.D.C. 2021). A plaintiff bears the burden to establish that she exhausted her administrative remedies. See Williams,

. Redding has not done so here.

7 process. Am. Compl. ¶¶ 72–84. The Court lacks subject-matter jurisdiction over this claim

because it can only be properly brought before the Federal Circuit.

The Civil Service Reform Act (CSRA) “specifies the benefits to which federal employees

. . . are entitled[] and provides a reticulated remedial regime for beneficiaries to secure . . . judicial

review[] of benefits determinations.” Fornaro v. James,

(D.C. Cir. 2005). “That

regime provides for adjudication of all claims by OPM,

(b), appeal of adverse

decisions by OPM to the MSPB,

§ 8437(d)(1), and subsequent review of MSPB decisions in

the Federal Circuit, id. § 7703(b)(1);

(a)(9).”

“[T]hese remedial provisions

are exclusive, and may not be supplemented by the recognition of additional rights to judicial

review having their sources outside the CSRA.”

Accordingly, “[t]he Federal Circuit has

‘exclusive jurisdiction’ over appeals from a final decision of the MSPB.” Elgin v. Dep’t of

Treasury,

, 5–6 (2012) (quoting

(a)(9)).

These judicial review provisions in the CSRA apply to Redding’s claim in Count II because

she seeks review of an OPM adjudication of her FERS disability retirement benefits, see Am.

Compl. ¶¶ 74–76. See Lindahl v. Off. of Pers. Mgmt.,

(1985) (holding that the

CSRA applies to disability retirement cases brought under the Civil Service Retirement System,

so “MSPB decisions concerning retirement disability claims are reviewable in the first instance by

the Federal Circuit”); Anthony v. Off. of Pers. Mgmt.,

(D.C. Cir. 1995)

(extending Lindahl to review of disability retirement decisions under the FERS); Fed. L. Enf’t

Offs. Ass’n v. Ahuja,

, 559–60 (D.C. Cir. 2023). Redding must therefore pursue

judicial review of the MSPB’s decision in the Federal Circuit.

(b)(1);

(a)(9).

8 The CSRA provides the exclusive avenue to judicial review here even though Redding’s

claim is stylized as a claim to vindicate constitutional rights, not statutory rights, see Pl.’s Opp. at

6–7. It is well-established in this Circuit that the CSRA precludes exercise of federal district court

jurisdiction over certain constitutional claims by federal employees, including Bivens claims

relating to adverse personnel decisions. Fornaro,

; see also Spagnola v. Mathis,

, 229–30 (D.C. Cir. 1988) (en banc); Davis v. Billington,

, 387–88 (D.C.

Cir. 2012). This is because “extrastatutory review is not available to those employees to whom

the CSRA grants administrative and judicial review.” Elgin, 567 U.S. at 11–12.

Applying this reasoning, Redding’s constitutional claim is the sort of constitutional claim

precluded by the CSRA. As explained above, the CSRA explicitly provides a meaningful judicial

review mechanism for her disability retirement claim, including any constitutional dimension to

the claim. See id. at 12 (“[T]he MSPB routinely adjudicates some constitutional claims, . . . [and]

. . . these claims must be brought within the CSRA scheme.”); cf. Coleman v. Napolitano,

, 103–05 (D.D.C. 2014) (district court had subject-matter jurisdiction to hear the

plaintiff’s constitutional claim because the CSRA did not otherwise provide a judicial forum for a

challenge to the sort of personnel action at issue). Redding seeks damages to vindicate her alleged

constitutional property rights to the approvals of her disability retirement benefits, 5 see Am.

5 Although Redding’s complaint contains one request for equitable relief—that the Director “be ordered to remove any and all derogatory references in [Redding’s] Official Personnel File,” Am. Compl. at 15 ¶ g—the Court understands her complaint to request that relief in connection with Count I, see id. ¶ 37 (alleging that OPM’s failure to separate her from federal service as soon as her benefits were approved caused her to be placed in Absent Without Leave status), not Count II. Redding has not alleged any connection between her constitutional claim, which is based on OPM’s two rescissions of her disability retirement benefits approvals, and her personnel file. If anything, she has alleged the opposite. The first rescission occurred four months after Redding was already placed on Absent Without Leave status, id. ¶¶ 37 n.6, 38, and the second over eight months after she was removed from federal service, id. ¶¶ 37 n.6, 48.

9 Compl. at 15, which can be obtained through the CSRA review mechanism. She does not bring

the sort of constitutional claim seeking equitable relief, such as reinstatement, that would not be

judicially reviewable at all if the CSRA precluded review in a federal district court. See Spagnola,

(precluding creation of a Bivens remedy for “employees . . . who advance

constitutional challenges to federal personnel actions,” but affirming their “right . . . to seek

equitable relief against their supervisors, and the agency itself, in vindication of their constitutional

rights” (emphasis added)); see also Coleman, 65 F. Supp. 3d at 104–05 (citing Suzal v. Dir., U.S.

Info. Agency,

(D.C. Cir. 1994)); Lamb v. Holder,

(D.D.C.

2015) (drawing same distinction based on whether plaintiff sought equitable relief otherwise

unavailable); cf. McCabe v. Barr,

, 211 (D.D.C. 2020) (subject-matter

jurisdiction over constitutional claim seeking equitable relief); Peter B. v. CIA,

, 70–74 (D.D.C. 2009) (same). Nor is Redding’s claim “wholly collateral” to the CSRA’s

statutory review provisions or otherwise “beyond the expertise of the agency.” 6 Fed. L. Enf’t,

(citation omitted). The Court thus concludes that the CSRA precludes Redding’s

claim in Count II. See Townsend v. United States,

, 321–22 (D.D.C. 2017).

At any rate, Redding cannot avoid “the CSRA’s elaborate framework,” Elgin,

(cleaned up), for review of her claim, which is squarely “of the type Congress intended for CSRA review,” see Fed. L. Enf’t,

(cleaned up), by tacking on an ancillary request for equitable relief that appears to bear little relation to her claim. Because Redding seeks equitable relief only as to Count One, which the Court will dismiss for lack of subject-matter jurisdiction, her request for equitable relief does not factor into the Court’s analysis of whether the CSRA precludes review. 6 Redding squarely challenges OPM’s FERS disability retirement benefits determinations. Thus, her case is distinguished from Minney, upon which she relies, see Pl.’s Opp. at 6–7. In that case, the district court concluded that it had subject-matter jurisdiction because the plaintiff in that case brought a due process challenge to an OPM determination that was “wholly collateral” to the standard FERS benefits determination that “the MSPB is authorized to hear.”

n.4 (citing Thunder Basin Coal Co. v. Reich,

(1994)).

10 Finally, Redding’s case does not fall into the exception for “mixed cases.” The CSRA’s

judicial review provisions do not apply to “[c]ases of discrimination subject to the provisions of

section 7702 of [the CSRA],”

(b)(2)—namely, “the case of any employee or

applicant . . . who has been affected by an action which the employee or applicant may appeal to

the [MSPB], and alleges that a basis for the action was discrimination” prohibited by various

statutes,

§ 7702(a)(1). For the mixed case exception to apply, the plaintiff must raise her

discrimination claim “expressly and unequivocally” before the MSPB. Meehan v. U.S. Postal

Serv.,

(Fed. Cir. 1983); see also Bowe-Connor v. Shulkin, No. 16-5289,

, at *1 (D.C. Cir. Apr. 11, 2017) (“Appellant failed to raise the issues of retaliation

or disability discrimination prior to her hearing before an Administrative Law Judge. Appellant’s

case was therefore not properly classified as a mixed case pursuant to

(b)(2) . . . .”

(citations omitted)).

This exception does not apply here because, in Redding’s MSPB appeal, she did not

sufficiently raise a discrimination claim. At most, she asserted to the MPSB that it was

“discriminatory that the[] [rescissions] . . . occurred at the same time of [her] administrative

proceedings with the MSPB and EEO.” Ex. 2 at 4. This cursory statement, standing alone, is the

sort of “general and conclusory pleading of discrimination” insufficient to create a mixed case.

Hill v. Dep’t of the Air Force,

(Fed. Cir. 1986). Moreover, counsel for

Redding conceded this argument by failing to respond to the Director’s argument that she did not

sufficiently raise a discrimination claim in her MSPB appeal, see Def.’s Mem. at 11–12. 7 “When

7 In a few sentences in her Reply to Defendant’s Supplemental Authority, Dkt. 39, Redding implies, without any argument, that she is asserting a “mixed case,” see id. at 2 (“Defendant’s use of Officers Association as the basis for its argument that Ms. Redding has not properly asserted a ‘mixed case’ is erroneous.”). The Court need not consider an issue raised for the first time in a response to a supplement. See United States v. Sum of $70,990,605,

, 208 n.19

11 a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by

the defendant, the court may treat those arguments as conceded, even when the result is dismissal

of the entire case.” Bautista-Rosario, 568 F. Supp. 3d at 9 (cleaned up); see also Twelve John

Does v. Dist. of Columbia,

(D.C. Cir. 1997) (“Where the district court relies on

the absence of a response as a basis for treating the motion as conceded, we honor its enforcement

of the rule.”). The Court thus considers the Director’s argument that Redding did not allege a

discrimination claim before the MSPB conceded, so Count II of Redding’s amended complaint

was not properly brought in this Court.

Although the Court concludes that it lacks jurisdiction over Count II of Redding’s case,

states that the Court “shall, if it is in the interest of justice, transfer such action or

appeal to any other such court . . . in which the action or appeal could have been brought at the

time it was filed or noticed.” “[T]ransfers, when possible, are preferred to outright dismissals,”

Leitner-Wise v. Clark, No. 18-cv-771,

, at *7 (D.D.C. Dec. 26, 2018) (citing

Goldlawr, Inc. v. Heiman,

, 466–67 (1962)), and “[t]he interest of justice generally

favors transferring a case, particularly when a plaintiff is proceeding pro se,” as Redding was when

she filed her amended complaint in this Court, Abou-Hussein v. Mabus,

(D.D.C. 2013). The Court concludes that it is in the interest of justice to transfer Count II to the

Federal Circuit. See Bell v. Esper, No. 18-cv-2277,

, at *4–*5 (D.D.C. Dec. 19,

2019); see also Def.’s Mem. at 13 (agreeing that “the interests of justice may be served by

transferring [Count II of] the case to the Federal Circuit instead of dismissal”). Redding could

(D.D.C. 2014). And even if it did, this conclusory assertion does not assert a coherent argument in opposition to the Director’s “mixed case” argument. See Gov’t of Manitoba v. Bernhardt,

(D.C. Cir. 2019) (“A party forfeits an argument by mentioning it only in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” (cleaned up)).

12 have brought her claim in Count II in the Federal Circuit at the time it was filed or noticed, see

Does 1-144 v. Chiquita Brands Int’l, Inc.,

(D.D.C. 2018), because the

MSPB’s August 17, 2021 final decision, Ex. 1 at 5, Dkt. 28-2, became final within 60 days, see

(b)(1), of Redding filing her initial complaint, Dkt. 1, on September 14, 2021. So

the Court will transfer Redding’s claim in Count II to the Federal Circuit.

B. Motion to Consolidate

Finally, the Court will deny the plaintiff’s motion under Rule 42(a) of the Federal Rules of

Civil Procedure, Dkt. 34, to consolidate this action with another case, No. 22-cv-3264, that she

filed in this District against a different defendant. The other case is based on different factual

allegations, and it raises an entirely different set of legal issues than the instant case. See Moten

& Bricklayers, Masons & Plasterers Int’l Union,

, 228 n.8 (D.C. Cir. 1976) (“[T]he

question of consolidation . . . is ordinarily left to the sound discretion of the District Court.”);

Blasko v. Wash. Metro. Transit Auth.,

(D.D.C. 2007) (“If the parties at issue,

the procedural posture[,] and the allegations in each case are different . . . , consolidation is not

appropriate.”).

13 CONCLUSION

For the foregoing reasons, the Director’s motion to dismiss or, in the alternative, to transfer

venue is granted. Count I is dismissed for lack of subject-matter jurisdiction. The Court also lacks

jurisdiction over Count II and transfers it to the U.S. Court of Appeals for the Federal Circuit. The

plaintiff’s motion to consolidate is denied. A separate order consistent with this decision will

accompany this memorandum opinion.

________________________ DABNEY L. FRIEDRICH September 18, 2023 United States District Judge

14