The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS
After consideration of the papers in support of and in opposition to Defendant's Motion for Summary Judgment, this Court makes the following findings of fact and conclusions of law:
1. On March 30, 2004, Plaintiff made initial contact with an Equal Employment Opportunity counselor. Plaintiff filed a formal Equal Employment Opportunity complaint on May 19, 2004. The formal complaint identified numerous non- selections for positions with the Department of Homeland Security for which Plaintiff had applied. David R. Kett was responsible for administratively processing Plaintiff's formal Equal Employment Opportunity complaint. [Dock. No. 88, Decl. Kett ¶ 2].
2. After initiating his Equal Employment Opportunity complaint, Plaintiff received a Rights and Responsibilities Memorandum. Plaintiff signed a Certification of Receipt of the Rights and Responsibilities Memorandum. By signing the Certification of Receipt, Plaintiff averred that he had been advised of his responsibilities during the administrative processing of his complaint. [Dock. No. 116, Decl. Kett ¶ 4].
3. Paragraph 3 of the Rights and Responsibilities Memorandum outlines the procedure for submitting amendment requests to the agency. To request an amendment, a complainant must submit a letter describing the new incident and stating that the complainant wishes to amend his pending complaint to include the new claim. In 2004, a complainant seeking amendment was required to send a letter to the Equal Employment Opportunity Complaints Program Management Office in Fort Snelling, Minnesota. [Dock. No. 116, Decl. Kett ¶ 6].
4. On June 7, 2004, the Federal Protective Service headquarters issued a directive establishing a hiring freeze. Under the terms of the hiring freeze, vacancies within the Federal Protective Service could not be filled with applicants not employed by the Federal Protective Service at the time of application. The hiring freeze was in effect, when Announcement 0492414 was open for applications from July 19, 2004 to July 23, 2004. [Dock. No. 100, Decl. Kett ¶ 11].
5. On or about June 30, 2004, a waiver of the hiring freeze was requested for the GS-13 position listed under Announcement 0492414. The waiver was not granted. [Dock. No. 116, Decl. Loerzel ¶ 4].
6. In July of 2004, Plaintiff applied for a position listed under Announcement 0492414. Announcement 0492414 was for a Supervisory Physical Security Specialist in Sacramento, CA. The position listed under Announcement 0492414 was open for application in July of 2004. [Dock. No. 100, Exh. A at 184:23-185:21].
7. Announcement 0492414 limited eligible applicants to Department of Homeland Security employees within the local commuting area of the position. [Dock. No. 100, Exh. A at 185:10-17].
8. Plaintiff was not a Department of Homeland Security employee, when he applied to the position listed under Announcement 0492414. [Dock. No. 100, Exh. A at 185:19-23].
9. On July 29, 2004, Plaintiff received notice of his non-selection for the position listed under Announcement 0492414. [Dock. No. 100, Exh. A at 187:14-21].
10. Plaintiff was informed that his application for the position listed under Announcement 0492414 could not be considered because he was not a Department of Homeland Security employee at the time of application. [Dock. No. 100, Exh. A at 187:14-188:2].
11. On August 1, 2004, Plaintiff sent an e-mail, asking if an oversight authority exists "to make this agency play by the rules," to the Office of Personnel Management, as well as to Department of Homeland Security management ...