5 U.S.C. § 7703(a)(2). The language is clear and unambiguous that the proper defendant is the agency whose action resulted in the appeal to the Board. Id. Therefore, the Board is not a proper defendant under section 7701, since it is not the agency which brought the action resulting in the appeal to the Board. Id.
Alternatively, defendant argues if the Whistleblower Protection Act (WPA), effective July 9, 1989, which amends the statute is applicable to this case, then this still does not affect the above conclusion. More specifically, the WPA provides in pertinent part that:
The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision on the merits on the underlying personnel action or on a request for attorney fees, in which case the agency responsible for taking the action shall be the respondent.
5 U.S.C.A. § 7703(a)(2) (West Supp. 1991). Plaintiff alleges that the Board discriminated against him by failing to adjudicate in his favor the denial of his employment with respect to his claims of handicap and religious discrimination. Response at 2:9-21. Plaintiff alleges facts which address the merits of the Board's decision. Thus, even if the amended statute applies to the case at hand, the Board would still not be the proper defendant since this case involves an appeal of the Board's decision on the merits. 5 U.S.C.A. § 7703(a)(2) (West Supp. 1991). In this situation the amended statute is clear that again it is the agency responsible for taking the action resulting in the appeal to the Board which is the proper defendant. Id.
Therefore, based on either version of the statute, the Board and Levinson are not proper defendants because the Board was not the "agency responsible for taking the action appealed." Id. (original and amended). Because the IRS and FDIC disqualified the plaintiff from employment pursuant to procedures developed by OPM, and plaintiff initiated an appeal to the Board against OPM on the basis of these procedures, OPM is the agency responsible for the action that was appealed to the Board. Accordingly, OPM is the proper defendant.
Under the Civil Service Reform Act, the Board and Levinson are barred as defendants as a matter of law. Therefore, the Board and Levinson are dismissed as defendants to the Civil Service Reform Act claim, because plaintiff has failed to state a cause of action against them under Federal Rule of Civil Procedure 12(b)(6). Conley, 355 U.S. at 78.
(2) Civil Rights Act Of 1964
Additionally, plaintiff asserts that the discrimination he experienced in being denied employment is a violation of Title VII of the Civil Rights Act of 1964. This statute provides that personnel actions affecting employees or applicants for employment shall be made free from any discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e et seq. Furthermore, the statute specifically states that the head of the employing agency is the appropriate defendant in any action under this statute: "[Aggrieved party] may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant." Id. § 2000e-16(c). Because the Board is not the head of the employing agency, it is not a proper defendant. Id. However, because the OPM provided the hiring guidelines for plaintiff's disqualification by the IRS and FDIC, the OPM can be considered the head of the employing agency for hiring purposes. Therefore, plaintiff's claim for discrimination is proper against Constance Newman, Director, Office of Personnel Management. Id.
Consequently, the Court dismisses the Board and Levinson as defendants from the Title VII claim because plaintiff has failed to state a cause of action against them under Federal Rule of Civil Procedure 12(b)(6). Conley, 355 U.S. at 78.
Even construing the complaint in the light most favorable to the plaintiff, the Merit System Protection Board and Daniel Levinson are not proper defendants under either the Civil Service Reform Act or the Civil Rights Act of 1964 as a matter of law. Therefore, the Court DISMISSES the Merit System Protection Board and Daniel Levinson as defendants.
A status conference in this matter is hereby scheduled for Wednesday, October 9, 1991, at 9:00 a.m. Parties are directed to file status conference statements as provided under the rules of this Court.
IT IS SO ORDERED.
DATED: August 2, 1991.
D. Lowell Jensen
United States District Judge
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