UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VESAL YAGHOOBI,

Plaintiff,

v. Civil Action No. 24-1255 (RDM) U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF THE INSPECTOR GENERAL,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Vesal Yaghoobi, proceeding pro se, brings this action against the U.S.

Department of Health and Human Services, Office of the Inspector General (“OIG”) seeking to

compel the OIG “to reopen and properly investigate Plaintiff’s [w]histleblower [r]etaliation

[c]omplaints.” Dkt. 15-1 at 6 (Am. Compl.). Plaintiff asserts three claims under two different

statutes: the 2013 National Defense Authorization Act (“NDAA”),

, and the

Administrative Procedure Act (“APA”),

(1). First, she alleges that the OIG

violated the NDAA by failing to investigate her whistleblower retaliation complaint and by

incorrectly treating the complaint as duplicative of her separate Equal Employment Opportunity

Commission (“EEOC”) discrimination complaint. Dkt. 15-1 at 5 (Am. Compl. ¶¶ 17–20);

(Am. Compl. ¶ 10). Second, she alleges that the OIG violated the APA by closing the

investigation into her whistleblower retaliation complaint “without any rational basis.”

(Am. Compl. ¶¶ 21–23). Finally, she alleges the OIG violated the NDAA by failing to consider

the evidence that her former employer, Tufts Medical Center, retaliated against her for engaging

in activity protected by the NDAA.

(Am. Compl. ¶¶ 24–26). The OIG moves to dismiss for lack of subject-matter jurisdiction. Dkt. 18-1. In less than

two-pages of analysis, the OIG makes only one argument and leaves a host of other jurisdictional

(and nonjurisdictional) arguments unaddressed. The one argument that it does raise, moreover,

is unpersuasive. It argues that the OIG’s decision whether “to prosecute or [to] enforce” the

NDAA is “committed to its absolute discretion” and that, as a result, the Court lacks jurisdiction

to review that decision. Dkt. 18-1 at 5. But unlike the statute at issue in Heckler v. Chaney,

(1985), the principal case upon which the OIG relies, the NDAA does not merely

confer enforcement authority on federal agencies, it requires inspectors general to investigate

retaliation complaints, except under specific, statutorily defined circumstances. Here, the OIG

concluded that one of those exceptions applied because Plaintiff’s complaint had “previously

been addressed in another . . . administrative proceeding.”

(b)(1). Plaintiff’s

complaint, in turn, does not challenge the exercise of any enforcement discretion; instead, she

alleges that the OIG incorrectly invoked this exception to the NDAA’s mandate. According to

Plaintiff, her OIG complaint dealt with whistleblower retaliation, while her prior administrative

complaint dealt with disability discrimination. Or put in APA parlance, the OIG’s determination

that her whistleblower complaint was the subject of a prior administrative proceeding was

arbitrary and capricious. The OIG’s motion ignores the significant differences between Heckler

v. Chaney and this case.

This is not to say that the Court is convinced that it has jurisdiction over this matter. The

Court concludes only that the narrow argument raised in the OIG’s motion is wrong. Before

proceeding further with the case, the Court will still need to determine, for example, whether the

agency head, unlike the inspector general, has discretion to issue an enforcement order and, if so,

what bearing, if any, that has on Plaintiff’s Article III standing or on the Court’s statutory

2 jurisdiction. The Court must also consider whether Plaintiff has brought an enforcement action

against her employer and, if so, whether and how that action might affect the Court’s jurisdiction

here. Although the Court must, of course, resolve these questions before proceeding to the

merits, that does not mean that the Court should do so without the benefit of any briefing from

the parties. The Court will therefore DENY the OIG’s motion without prejudice and will

schedule a status conference to address how best to address these, and any other, threshold issues

raised by Plaintiff’s complaint.

I. BACKGROUND

A. Statutory Background

The NDAA provides protection to employees of federal contractors who report gross

mismanagement of federal funds. In particular, it prohibits federal contractors from

“discharg[ing], demot[ing], or otherwise discriminat[ing] against” an employee “as a reprisal for

disclosing . . . information that the employee reasonably believes is evidence of gross

mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of

authority relating to a Federal contract or grant, a substantial and specific danger to public health

or safety, or a violation of law, rule, or regulation related to a Federal contract (including the

competition for or negotiation of a contract) or grant.”

(a)(1).

It also provides a mechanism by which whistleblowers can report suspected retaliation.

If a whistleblower believes that she “has been subjected to a reprisal” prohibited by the NDAA,

she “may submit a complaint to the Inspector General of the executive agency involved”—here,

HHS.

§ 4712(b)(1). The NDAA provides that the Inspector General “shall investigate” the

complaint “[u]nless the Inspector General determines that the complaint is frivolous, fails to

allege a violation of the [NDAA], or has previously been addressed in another Federal or State

judicial or administrative proceeding initiated by the complainant.” Id. After the investigation is 3 completed, the Inspector General “shall submit a report of the findings of the investigation” to

the whistleblower, the contractor, and the head of the agency, who is tasked with determining the

appropriate action. Id.

B. Factual Background

For purposes of evaluating the OIG’s motion to dismiss, the following facts, taken from

Plaintiff’s complaint, are accepted as true. See Harris v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2015).

Plaintiff was a medical resident at Tufts Medical Center. In the summer of 2023, she

began to suspect that Tufts Medical Center was engaged in “fraud involving government

insurance programs.” Dkt. 15-1 at 2 (Am. Compl. ¶ 7). She raised her concerns with her

supervisors, but those concerns were dismissed. Id. at 3 (Am. Compl. ¶ 8). Plaintiff then

“disclos[ed]” those concerns “to government agencies on August 3 and August 4, 2023,” after

which she allegedly “faced retaliation.” Id. In response, she filed twelve complaints with the

OIG between September and November 2023. Id. (Am. Compl. ¶ 9). Five of those complaints

alleged healthcare fraud, six alleged whistleblower retaliation, and one alleged medical identity

theft. Id. At issue in this case are the whistleblower retaliation claims.

The OIG initiated a review of Plaintiff’s complaints on November 9, 2023. Id. at 4 (Am.

Compl. ¶ 13). During that process, Plaintiff communicated with OIG employees multiple times

regarding her case. In one of those communications, Plaintiff attached a complaint that she had

filed with the Equal Employment Opportunity Commission (“EEOC”) alleging disability

discrimination and related retaliation. See Dkt. 20-1 at 25–31. Specifically, Plaintiff’s EEOC

complaint alleged that her employer, Tufts Medical Center, had labeled her as “a person with a

mental disability after [she] reported patient safety concerns to authorities and [her] program

director[,]” and, based on this disability, Tufts Medical Center had suspended her until she 4 agreed to complete a medical exam. Id. at 26. Soon after Plaintiff forwarded her EEOC

complaint to the OIG, the OIG closed its investigation of Plaintiff’s whistleblower complaints.

Dkt. 20-1 at 25–31. The agency explained that decision by marking the box for “Complaint

Filed in Another Forum (e.g. EEO, Federal/State Court, etc.).” Dkt. 20-2 at 1.

After the OIG closed the investigation, Plaintiff contacted the OIG to provide new

evidence to support her original complaints, but the OIG declined to reopen the investigation. Id.

(Am. Compl. ¶ 14). Later, Plaintiff filed additional complaints detailing additional retaliatory

actions allegedly taken by her employer, but the OIG declined to investigate her claims any

further. Id. (Am. Compl. ¶ 15).

Plaintiff initiated this lawsuit on April 29, 2024, Dkt. 1, and amended complaint on

August 28, 2024, Dkt. 15-1. 1 Count I alleges that the OIG failed to fulfill its statutory obligation

under the NDAA to investigate Plaintiff’s complaints of retaliation. Id. at 5 (Am. Compl. ¶¶ 17–

20). Count II alleges that by closing its initial investigation, the OIG violated the APA’s

prohibition against arbitrary and capricious agency action. Id. (Am. Compl. ¶¶ 21–23). Finally,

Count III alleges that the OIG violated the NDAA by refusing to consider all of the evidence

Plaintiff had presented. Id. at 6 (Am. Compl. ¶¶ 24–26). As a remedy, Plaintiff requests that the

Court order the OIG to reopen and fully to investigate her complaints. Id. (Am. Compl.). She

also asks that the Court order the OIG to report its findings and to consider the additional

evidence of retaliation. Id.

Before the Court is the OIG’s motion to dismiss for lack of subject-matter jurisdiction,

Dkt. 18, which Plaintiff opposes, Dkt. 20.

1 Although Plaintiff labeled the operative complaint her “second amended complaint,” it was, as the Court previously noted, “Plaintiff’s first attempt to amend.” Min. Entry (Aug. 30, 2025).

5 II. LEGAL STANDARD

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton,

(2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994)). A motion to dismiss

under Rule 12(b)(1) challenges the Court’s jurisdiction to hear the claim and may raise a “facial”

or “factual” challenge to the Court’s jurisdiction. A facial challenge asks whether the plaintiff

has pleaded facts sufficient to establish the court’s jurisdiction, while a factual challenge asks the

court to “consider the complaint supplemented by undisputed facts evidenced in the record, or

the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”

Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992). A facial challenge, in other

words, is confined to the four corners of the complaint, while a factual challenge permits the

court to look beyond the complaint to satisfy itself that it has jurisdiction to hear the suit.

Whether a motion to dismiss is facial or factual, the plaintiff bears the burden of establishing by

a preponderance of the evidence that the court has subject-matter jurisdiction. See Lujan v. Defs.

of Wildlife,

(1992). “[I]n passing on a motion to dismiss” for lack of

jurisdiction, however, “the allegations of the complaint should be construed favorably to the

pleader.” Scheuer v. Rhodes,

(1974); see also Leatherman v. Tarrant Cty.

Narcotics and Coordination Unit,

(1993); Phillips v. Bureau of Prisons,

(D.C. Cir. 1979). Moreover, the pleadings of pro se plaintiffs are held to “less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

(2007).

6 III. ANALYSIS

As an initial matter, the Court notes the limited scope of the OIG’s motion to dismiss. It

does not address the Court’s Article III jurisdiction, nor does it address whether the agency head

(as opposed to the OIG) has unreviewable enforcement discretion. Nor does the OIG reach

ahead to the merits. Thus, although it gestures at an argument that the NDAA does not include a

cause of action against the agency, Dkt. 18-1 at 6, it raises that point only in support of its

jurisdictional challenge. Similarly, it says nothing about whether the OIG’s determination

constitutes final agency action for purposes of the APA. Consistent with the principal that the

Court must address jurisdiction before addressing the merits, see Steel Co. v. Citizens for Better

Environment,

(1998), and given the narrow scope of the OIG’s motion and briefing,

the Court will limit its analysis to the question whether the OIG’s determination that Plaintiff’s

whistleblower complaints were “[f]iled in [a]nother [f]orum,” Dkt. 20-2 at 1, was “committed to

its absolute discretion” and is, therefore, “unreviewable,” Dkt. 18-1 at 5. For the reasons

explained below, the Court is unpersuaded.

The OIG’s argument begins and ends with Heckler v. Chaney,

(1985). In

that case, a group of death-row inmates petitioned to “request[] that the” Food and Drug

Administration (“FDA”) “take various enforcement actions to prevent” the unapproved use of

certain drugs in lethal injections.

. When the FDA rejected the petition, the inmates

brought suit under the APA seeking a court order directing the FDA to take the requested

enforcement actions.

. The inmates lost before the district court and prevailed before

the Court of Appeals. The Supreme Court reversed, holding that the district court lacked

jurisdiction because the agency’s decision not to enforce the relevant provisions of the Federal

Food, Drug, and Cosmetic Act (“FDCA”),

et seq., was “committed to agency

7 discretion by law,”

(a)(2), and thus beyond the waiver of sovereign immunity

contained in the APA,

§ 702.

As the Court explained, “agency decisions to refuse enforcement” are generally, although

not always, “unsuitab[le] for judicial review” for several reasons.

. That is

because nonenforcement decisions “often involve[] a complicated balancing of a number of

factors which are peculiarly within [the agency’s] expertise,” including “whether agency

resources are best spent on this violation or another, whether the agency is likely to succeed,”

“whether the particular enforcement action requested best fits the agency’s overall policies,” and

“whether the agency has enough resources to undertake the action at all.”

In addition, the

decision whether to enforce a statute is akin to “the decision of a prosecutor . . . not to indict,”

“which has long been regarded as the special province of the Executive Branch.”

. But

the Court also stressed that a nonenforcement “decision is only presumptively unreviewable,”

and “the presumption may be rebutted where the substantive statute has provided guidelines for

the agency to follow in exercising its enforcement powers.”

at 832–33. That is, “Congress

may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive

priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or

cases it will pursue,” and, absent legislative direction to the contrary, courts should enforce limits

under the APA.

.

Heckler v. Chaney offers two examples of how these principles apply. First, in

considering the provisions of the FDCA at issue in that case, the Court concluded that Congress

left the enforcement determination to the agency alone. Among other things, the Court noted

that the general enforcement provision at issue,

, simply “authorized” the

Secretary to act; it did not require or compel agency action.

. The Court further

8 concluded, more generally, that “[t]he Act’s enforcement provisions . . . commit complete

discretion to the Secretary to decide how and when they should be exercised.”

Second, and

by way of contrast, the Court pointed to its decision in Dunlop v. Bachowski,

(1975), which “involved a suit by a union employee, under the Labor-Management Reporting

and Disclosure Act,

et seq. (LMRDA), asking the Secretary of Labor to

investigate and file suit to set aside a union election.”

. Unlike the FDCA, that

statute spoke in mandatory terms and provided that “[t]he Secretary shall investigate such a

complaint and, if he finds probable cause to believe that a violation . . . has occurred . . . he shall

. . . bring a civil action.”

. The Dunlop Court held that the Secretary’s decision

not to file suit was subject to review under the APA and that “the ‘principle of absolute

prosecutorial discretion’ [was] inapplicable, because the language of the LMRDA indicated that

the Secretary was required to file suit if certain ‘clearly defined’ factors were present” and thus

“[t]he decision . . . was not ‘beyond the judicial capacity to supervise.’” Heckler,

(citations omitted) (cleaned up).

Here, the OIG simply posits, without meaningful analysis, that this case is controlled by

Chaney and its progeny and that Plaintiff “offers no authority for the proposition that [NDAA]

investigations are compelled by any clear right or by any plainly defined and nondiscretionary

duty.” Dkt. 18-1 at 6. But that argument ignores the plain text of the NDAA, which provides

that the Inspector General “shall” investigate a whistleblower complaint and “shall” submit a

report of her findings to the complainant, the contractor, and the head of the relevant agency.

(b)(1). The NDAA also specifies when an inspector general may decline to

“investigate the complaint” and to “submit a report of the findings of the investigation to the

person, the contractor . . . and the head of the agency”—if, and only if, he determines that the

9 complaint (1) “is frivolous,” (2) “fails to allege a violation of the prohibition in” the NDAA, or

(3) “has previously been addressed in another Federal or State judicial or administrative

proceeding initiated by the complainant.”

Understood in this light, this case is seemingly much closer to Dunlop than Chaney. The

statute mandates that the inspectors general “shall” undertake an investigation in response to a

complaint, and the exceptions are both limited and defined. To be sure, the first two exceptions,

neither of which is at issue in this case, require the exercise of sound judgment in assessing the

merits of a claim. But, if anything, the determination whether a complaint is frivolous or fails to

allege a violation of the NDAA involves the exercise of less discretion than the determination at

issue in Dunlop—that is, “whether there is probable cause to believe that violations of [29 U.S.C.

§] 481 have occurred affecting the outcome of the [union] election.” Bachowski v. Brennan,

(3d Cir. 1974). This case, in any event, involves only the third exception, which

turns on the “clearly defined” question whether the complaint “has previously been addressed in

another Federal or State judicial or administrative proceeding initiated by the complainant.”

(b)(1). That is the type of question that courts resolve day-in and day-out in

applying the rules of res judicata and collateral estoppel, and they do not require the exercise of

any meaningful discretion. Notably, moreover, Plaintiff’s complaint does not question the

exercise of agency discretion; rather, she alleges that the OIG simply made an obvious mistake

when it concluded that her EEOC complaint, which alleged disability discrimination, raised the

same issue posed by her whistleblower retaliation claim. If answering that question would

require the Court to tread upon any zone of administrative discretion, the OIG has failed to

explain how.

10 The only (potentially) on-point authority that the OIG invokes is the out-of-district

decision in Sharpe v. United States, No. 7:23-cv-1673,

(E.D.N.C. 2024). In

that case, the district court held that an agency’s dismissal of an NDAA whistleblower complaint

on the grounds that it “did not allege a violation of the prohibition against contract whistleblower

reprisal” was unreviewable under Chaney. See

. The court offered two rationales for

that conclusion, neither of which is persuasive. First, the Court reasoned that “[t]here is no

indication in § 4712(b)(1) or elsewhere in the statute that Congress intended there to be judicial

review of the initial determination by the Inspector General.” Id. To be sure, the NDAA does

not include a cause of action against the inspector general; instead, the statute permits suits

against the entity that allegedly engaged in the underlying retaliatory conduct. But the same

thing could be said of dozens and dozens of other federal statutes that are routinely enforced

pursuant to the APA. Second, the court concluded that, under Chaney, the statute lacked

“guidelines for the agency to follow.” Id. But, as discussed above, the NDAA includes

guardrails that are at least as clear as those at issue in Dunlop, and, unlike the statute at issue in

Chaney, the NDAA provides that the inspectors general “shall investigate” and “submit a report

of the findings of the investigation” to the complainant, the contractor, and the head of the

agency.

(b)(1). The NDAA also sets strict timelines for the inspectors general

to act,

§ 4712(b)(2)(A), and sets parameters for seeking extensions of those timelines, id.

§ 4712(b)(2)(B). Finally, an inspector general’s determination has legal consequence beyond the

bounds of any agency enforcement proceeding. Id. § 4712(c)(3) (inspector general

determinations “shall be admissible in evidence in any de novo action at law or equity brought

pursuant to” the NDAA).

11 Far more persuasive for present circumstances is the D.C. Circuit’s binding precedent in

Cook v. FDA,

(D.C. Cir. 2013). The statue at issue in that case provided (1) that the

FDA “shall request” that Customs and Border Protection (“CBP”) provide the agency with

samples of drugs offered for import and (2) that a drug that (upon examination by the FDA)

violates a substantive provision of the FFDCA “shall be refused admission” into the United

States “except as provided” in another provision.

at 7–8. As in Chaney, the FDA argued that

the court lacked jurisdiction because the statute gave the agency “unreviewable enforcement

discretion.”

. The court, however, was unconvinced. As it explained, the Chaney

presumption can be “rebutted by . . . specific ‘legislative direction in the statutory scheme,’” and

the statutory provision at issue in Cook “set[] forth precisely when the agency must determine

whether a drug offered for import appears to violate the FDCA, and what the agency must do

with such a drug,”

, and, unlike the provisions at issue in Chaney, the statutory provision

at issue used “‘shall’ in connection with the antecedent condition,”

It is less clear that the NDAA imposes similar limits on the decision made by the head of

the agency about whether to issue an order directing that the contractor “abate the reprisal” or

take other remedial action,

(c)(1), and whether that question has any bearing on

the separate question whether a court has jurisdiction to review an inspector general’s decision to

close an investigation, cf. Drake v. FAA,

(D.C. Cir. 2002). But the parties have not

briefed that question, and the Court will not decide that question of first impression without

briefing. It is also unclear whether Plaintiff has Article III standing. The parties have not

addressed, for example, whether Plaintiff has brought suit against Tufts Medical Center and, if

so, where that litigation stands, nor have they addressed whether an order requiring the OIG to

reconsider its decision to close its investigation would redress any cognizable injury that Plaintiff

12 has suffered due to the OIG’s decision. But, again, the Court will not reach those issues without

briefing. For now, the Court will simply deny the OIG’s motion to dismiss without prejudice

and will require the parties to address these and any other threshold questions. 2

CONCLUSION

For the above reasons, it is hereby ORDERED that Defendant’s motion to dismiss, Dkt.

18, is DENIED without prejudice.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: August 1, 2025

2 Although Defendant does not raise the issue, the Court also concludes that Plaintiff’s APA claim is not governed by

(c)(5), which states that a person “adversely affected or aggrieved by an order issued under [§ 4712(c)(1)] may obtain review of the order[] . . . in the United States court of appeals for a circuit in which the reprisal is alleged.” Section 4712(c)(1) concerns an order issued by “the head of the executive agency” after “receiving an Inspector General report.” Here, Plaintiff does not challenge an order under § 4712(c)(1). In fact, on the facts alleged, it seems that the head of HHS never issued a § 4712(c)(1) order because the Inspector General closed the investigation into Plaintiff’s complaints without issuing a report. Thus the provision channeling review of such an order to the Court of Appeals does not apply.

13