UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARK WILLIAM TOWNSEND,

Plaintiff, Civil Action No. 15-1644 (BAH) v. Judge Beryl A. Howell UNITED STATES OF AMERICA et al.,

Defendants.

MEMORANDUM OPINION

This Court once again considers a dispositive motion in this ten-year-old age-

discrimination case concerning a job reassignment that lasted four days before the plaintiff, Mark

William Townsend, was terminated due to his role in a multi-year time-and-attendance fraud

against his employer, the Environmental Protection Agency (“EPA”). For the reasons explained

below, defendants’ Motion to Dismiss, ECF No. 106, is granted, and defendants’ Second

Amended Complaint (“SAC”), ECF No. 66, is dismissed.

I. BACKGROUND

The facts in this matter are described thoroughly in Townsend v. United States

(“Townsend III”), No. 15-1644 (BAH),

(D.D.C. Aug. 27, 2019). The

pertinent facts for the disposition of this motion are described below.

A. Factual Background

Plaintiff began working at EPA in 1980 and was over the age of 40 at the time of the

events giving rise to this litigation. See Townsend III,

, at *2. He held various

positions at EPA, as parts of the agency were periodically reorganized. See

From 2005 until

the alleged wrongful employment action, plaintiff was a Supervisory Biologist (Branch Chief) in

the Risk Assessment Division of EPA’s Office of Pollution Prevention and Toxics. Id.; SAC ¶ 1.

1 In 2012, the EPA’s Office of the Inspector General began investigating plaintiff for his

involvement in a time-and-attendance fraud perpetrated by his subordinate. See Townsend v.

United States (“Townsend I”),

(D.D.C. 2017).

In 2013, EPA began a reorganization of plaintiff’s Office, which ultimately led to the

dissolution of his Branch. Townsend III,

, at *2. As a result, plaintiff was

reassigned to a Senior Advisor (Biologist) position. See id. at *6. Plaintiff alleges he was

“openly pressured by his putative supervisor . . . to ‘step aside’ as branch chief in order to make

room for ‘younger’ employees.” SAC ¶ 41. Notably, the reassignment “did not change

[plaintiff’s] job series or pay grade, nor did it reduce his pay, benefits, or working hours.”

Townsend III,

, at *6.

Just four days after the reassignment became effective, on July 31, 2014, plaintiff was

placed on leave and physically escorted out of the building due to his role in the time-and-

attendance fraud that had been under investigation. Id. at *7. Plaintiff was officially terminated

about three months later. Id.

B. Procedural Background

Plaintiff appealed his removal to the Merit Systems Protection Board (“MSPB”), which

according to plaintiff, “failed to timely adjudicate” his case. SAC ¶¶ 46-47. Plaintiff then filed

suit in this Court alleging eighteen counts of violations of federal law against EPA, the United

States, the Department of Justice, and several individuals at EPA. See Compl., ECF No. 1.

Plaintiff soon after amended that complaint, alleging 21 counts. Townsend I,

; First Am. Compl., ECF No. 35. Defendants moved to dismiss, and this Court granted

that motion in large part. See

A single claim, Count One, regarding age discrimination under

the Age Discrimination in Employment Act (“ADEA”) for plaintiff’s constructive demotion (his

reassignment to the Senior Advisor position), survived. See

. Plaintiff had also pled 2 age discrimination due to his termination for Count One, but the Court held that his allegations

did not support the termination aspect of his claim, given that plaintiff admitted he

“participate[d] in time-and-attendance malfeasance” so there was no plausible inference that

“age played a role in his termination.”

.

Plaintiff filed a second amended complaint, relying on similar but expanded factual

allegations. See SAC. Defendants moved to dismiss, which motion the Court granted again in

large part. See Townsend v. United States (“Townsend II”),

(D.D.C. 2017).

Plaintiff’s Counts I and II survived this time, with Count I again limited to age discrimination for

the constructive demotion,

at 127 & n.4. Count II involved EPA’s engagement in a “pattern

or practice” of age-based disparate treatment, and the new allegations in the SAC “nudge[d] the

plaintiff’s claim into the realm of the plausible.”

.

Defendants moved for summary judgment on those claims in 2019. That motion was

granted. See Townsend III,

, at *16. Plaintiff appealed the judgment, and the

D.C. Circuit remanded three years later, upon the parties’ joint motion for reversal and remand,

in light of new case law changing the standard for anti-discrimination claims. See Notice of

Appeal, ECF No. 83; D.C. Cir. Order, ECF No. 85-1 (citing Chambers v. District of Columbia,

(D.C. Cir. 2022)); Joint Status Report, ECF No. 87. On remand, the parties agreed

that Count I should proceed to trial if the parties could not reach a settlement, but plaintiff did

not intend to pursue Count II further. See Joint Status Report.

The Court issued a scheduling order and set a date for a bench trial, despite plaintiff’s

request for a jury trial. See Min. Order (Oct. 20, 2022). Plaintiff appealed the decision regarding

a bench trial, and the matter was stayed pending that appeal. See Min. Order (Feb. 21, 2023).

The D.C. Circuit dismissed the appeal for lack of jurisdiction, see D.C. Cir. Order, ECF No. 94-

3 1, but this case was once again stayed before this Court pending the Supreme Court’s decision in

Muldrow v. City of St. Louis,

(2024), see Min. Order (Nov. 16, 2023). After that

decision, defendants pointed to a different new decision, Seed v. EPA,

(D.C. Cir.

2024), that, in their view, was dispositive in this case. See Defs.’ Status Rep. at 3-5, ECF No.

103. Specifically, under Seed, the Court should not reach the merits but rather dismiss for lack

of jurisdiction.

Defendants then filed a motion to dismiss the sole remaining claim, Count I (with respect

to the constructive demotion) for lack of jurisdiction due to lack of redressability. See Defs.’

MTD, ECF No. 106. Plaintiffs opposed. Pls.’ Opp’n, ECF No. 107.

II. LEGAL STANDARD

Federal courts have “limited jurisdiction” and possess “only that power authorized by

Constitution and statute.” Gunn v. Minton,

(2013) (quoting Kokkonen v.

Guardian Life Ins. Co.,

(1994)). They have an “affirmative obligation ‘to

consider whether [such] authority exist[s] . . . to hear each dispute.’” James Madison Ltd. ex rel.

Hecht v. Ludwig,

(D.C. Cir. 1996) (quoting Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992)). The court must dismiss “at any time” a case over which it

lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3); Arbaugh v. Y&H Corp.,

(2006). Accordingly, a party may raise an objection to subject matter jurisdiction “at any

time.” Henderson ex rel. Henderson v. Shinseki,

(2011).

One essential element of subject matter jurisdiction is standing. See Lujan v. Defs. of

Wildlife,

(1992). A plaintiff bears the burden to establish that all three

requirements for standing—an injury in fact, a causal connection between the injury and

challenged conduct, and redressability—exist. Seed,

. “[T]he court must

4 have the power to issue relief that is likely to redress the plaintiff’s injury.”

. The

plaintiff must make that showing “with the manner and degree of evidence required at the

successive stages of the litigation.”

at 261 (quoting Humane Soc’y v. Perdue,

(D.C. Cir. 2019)).

III. DISCUSSION

In Seed,

, the D.C. Circuit considered a claim for age discrimination

premised on a constructive demotion that occurred in the same EPA office from which plaintiff

had been terminated. This claim was nearly identical to plaintiff’s claim in Count I. 1 The Seed

court held that jurisdiction was lacking because the plaintiff there could not demonstrate that her

harm could be redressed by any available remedy. See

. Likewise here, plaintiff cannot

demonstrate that his injury is likely to be redressed and thus lacks standing, warranting dismissal

of this case.

To satisfy redressability, a plaintiff must show that his injury will “likely . . . be redressed

by a favorable decision.”

at 260 (quoting Lujan,

); Abulhawa v. U.S. Dep’t

of Treasury,

(D.D.C. 2017) (“The key word is likely . . ., and thus the

prospect of obtaining relief from the injury as a result of a favorable ruling cannot be too

speculative.” (internal quotation marks and citation omitted)), aff’d, No. 17-5158,

(D.C. Cir. June 19, 2018). “The starting point in the redressability analysis is

necessarily the relief sought.” Abulhawa,

. Plaintiff here has requested

reinstatement, front pay, back pay, and compensatory damages, as well as any other damages and

relief as would be just. See SAC at 18. Just as in Seed, however, none of those remedies—or

any other remedy under the ADEA—is available. See Liu v. Georgetown Univ., No. 22-cv-157

1 Plaintiff in Seed was represented by the same counsel as in the instant case.

5 (RDM),

, at *13 (D.D.C. Sept. 30, 2024) (“A plaintiff lacks Article III

standing to pursue an ADEA claim where the statute does not provide any remedies.”),

reconsideration denied, No. 22-cv-157 (RDM),

(D.D.C. Dec. 12, 2024).

First, to be eligible for reinstatement or front pay, a plaintiff must have experienced

wrongful discharge. Seed,

(“Wrongful discharge, either actual or constructive,

is ‘a necessary element of a claim for reinstatement.’” (quoting Taylor v. FDIC,

(D.C. Cir. 1997))). In other words, for an age discrimination claim, “the plaintiff must show

that age discrimination was the but-for cause of the discharge.” Steele v. Mattis,

(D.C. Cir. 2018). Here, however, plaintiff was discharged due to his involvement in a fraud.

See Townsend III,

, at *1 n.1 (“[A]ll claims related to the plaintiff’s

termination were dismissed because, in light of his fraudulent activity . . ., ‘an inference that age

played a role in his termination . . . is rendered implausible.’” (second alteration in original)

(quoting Townsend I,

)). Consequently, he was not wrongfully terminated

and is not entitled to reinstatement or front pay. McKennon v. Nashville Banner Publ’g Co.,

(1995) (holding that generally “neither reinstatement nor front pay is an

appropriate remedy” where the “employee has engaged in wrongdoing” because the employer

would terminate that employee “in any event and upon lawful grounds”).

Second, “a backpay award consists of ‘the difference between what the employee would

have earned but for the wrongful discharge and [her] actual interim earnings.’” Seed,

(alteration in original) (quoting Oil, Chem. & Atomic Workers Int’l Union v. NLRB,

(D.C. Cir. 1976)). Plaintiff is not eligible for backpay because plaintiff did not

suffer wrongful discharge, and the four-day job reassignment prior to discharge did not result in

any reduction in pay or benefits, as this Court previously found. See

(reaching the same

6 conclusion for plaintiff there); Townsend III,

, at *6 (“[T]he plaintiff’s

reassignment did not change his job series or pay grade, nor did it reduce his pay, benefits, or

working hours.”). As defendants explain, “[e]ven if [p]laintiff could establish liability for his

reassignment, the difference between what [p]laintiff would have earned but for his reassignment

and what plaintiff did in act earn during his four-day reassignment is zero.”). Defs.’ MTD at 11.

Third, compensatory damages are not available under the ADEA. In Seed, the Court

rejected an argument that the ADEA waived the United States’ sovereign immunity to allow for

compensatory damages. See Seed,

. Plaintiff therefore cannot receive such

relief here.

No other relief under the ADEA is apparent. Plaintiff has not requested declaratory or

injunctive relief, see SAC, nor would any be proper considering that “there is no record evidence

that” plaintiff “plans to return to EPA” or even that he could feasibly do so, considering his

termination for-cause, “so no ‘present harm [is] left to enjoin.’” Seed,

(alteration in original) (quoting Taylor v. Resol. Tr. Corp.,

(D.C. Cir. 1995)).

Plaintiff is therefore left with no viable remedy and thus his remaining claim, Count I (with

respect to the constructive demotion), lacks redressability.

Plaintiff offers no coherent argument to the contrary. Indeed, plaintiff offers no

affirmative argument about how he can satisfy redressability, nor does plaintiff persuasively

rebut any of defendants’ points. Plaintiff seems to take issue with the holding in Seed but that

decision is binding on this Court, and plaintiff makes no argument to distinguish it, merely

insisting that it is “unrelated.” See Pls.’ Opp’n at 2 n.1, 3; Pls.’ Mem. in Supp. of Opp’n at 2, 8,

ECF No. 107-1 (describing the defendants’ argument as an “absurd redressability tactic” and

dismissing it perfunctorily because “even if Seed were applicable here (it is not), . . . Plaintiff has

7 easily established” redressability under Lujan);

at 4 n.3 (“Standing is a relatively simple

concept to understand . . . . Injury in fact, causation, and redressability are self evident in this

case.”). Plaintiff seems to suggest his harm was not merely the constructive demotion itself but

also the “disparate treatment” under the ADEA starting from “the time of notification by agency

management of reassignment,” id. at 5, but how this helps plaintiff is unclear. Plaintiff also

seems to suggest some impropriety for defendants to raise the issue of sovereign immunity

precluding compensatory damages—and a challenge to standing altogether—at this stage in the

litigation. See id. at 7. As explained, however, issues related to a court’s jurisdiction, and

therefore concern about the lack of any available remedy, may be raised “at any time.”

Henderson ex rel. Henderson,

.

IV. CONCLUSION

For the reasons explained, plaintiff’s sole remaining claim in Count I is not redressable.

Plaintiff therefore lacks standing and this Court lacks jurisdiction over that claim. Defendants’

motion to dismiss, ECF No. 106, is therefore GRANTED. An order reflecting this conclusion

and closing this case will be filed contemporaneously.

Date: May 20, 2025 __________________________ BERYL A. HOWELL United States District Judge

8