United States District Court, N.D. California
ANTHONY J. SILVERIA, et al., Plaintiffs,
ROBERT WILKIE, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
SECOND AMENDED COMPLAINT
M. CHEN UNITED STATES DISTRICT JUDGE
Anthony J. Silveria, proceeding pro se, initiated this case
in the Eastern District of California in February 2018. He
asserted claims of employment discrimination (based on
disability) and whistleblower retaliation against the
Secretary of the U.S. Department of Veteran Affairs.
Subsequently, Mr. Silveria moved to amend his complaint-not
only to name the new Secretary, but also “to add the
direct line managers who were involved in the
discrimination.” Docket No. 4. The Eastern District
court granted the motion and thus Mr. Silveria filed his
first amended complaint (“FAC”) in May 2018.
See Docket No. 7. The case was thereafter
transferred, in November 2018, to the Northern District
because “the alleged unlawful employment practice
occurred at the VA's Regional Office in
Oakland.” Docket No. 25. Defendant then moved this
Court for a dismissal of the FAC. See Docket No. 43.
In April 2019, the Court granted the motion to dismiss but
with leave to amend. Docket No. 59. Mr. Silveria subsequently
filed his second amended complaint (“SAC”), and
now Defendant moves for a dismissal of that pleading. This is
the motion currently pending before the Court. Docket No. 64
FACTUAL & PROCEDURAL BACKGROUND
the Court's order, Mr. Silveria filed his SAC, naming
Robert Wilkie, the Secretary of the U.S. Department of
Veteran Affairs, as the sole defendant on the captions
page. Docket No. 61. The Court previously dismissed the three
individual “direct line managers” as they were
not proper defendants. See Docket No. 60; see
also Johnston v. Horne, 875 F.2d 1415, 1419 (9th Cir.
1989) (noting that a plaintiff who was or is a federal
employee and who asserts employment discrimination may bring
a Rehabilitation Act claim under 29 U.S.C. § 791 but
must “name the appropriate head of the department,
agency or unit” as the defendant), overruled on
other grounds by Irwin v. Dep't of Veterans Affairs,
498 U.S. 89 (1990). The SAC alleges as follows. A.
Employment History with the U.S. Veteran Affairs Mr.
Silveria served in the U.S. Marine Corps from 1989 to 1999.
SAC ¶ 46. After his service, he became a federal
employee with the U.S. Department of Veteran Affairs
(“VA”), serving as a Rating Veterans Service
Representative in its Oakland office-a/k/a/ the Oakland VA
Regional Benefit Office (VARBO)-from September 2009 until his
removal in June 2014. Id. ¶ 48. From 2010 until
the present, Mr. Silveria has suffered from “100%
permanent disability, ” and he has been diagnosed with
“GERD, ulcers, multiple brain injuries, vision loss,
migraines, psoriasis, psoriatic arthritis, back pain,
shoulder pain, knee pain, and a reconstructed ankle, with
more than one major life limiting disability . . . .”
Id. ¶ 51.
August and September 2012, Mr. Silveria complained of
discrimination to the Office of Resolution Management
(“ORM”) by filing an Equal Employment Opportunity
(“EEO”) complaint. Id. ¶¶ 53,
54. Because of this activity, Mr. Silveria suffered from
prohibited personnel practices in the form of
“increase[d] surveillance.” Id. ¶
55. While Mr. Silveria's claims were pending, he was
“followed around work and getting routinely harassed .
. . in 2012, 2013, and 2014 . . . .” Id.
¶ 59. Throughout this period, Mr. Silveria reported the
increased surveillance to his managers. Id. ¶
2012, Mr. Silveria received repeated prohibited personnel
practices because of his protected disclosures. Id.
¶ 61. From August 2013 through May 2014, VA took adverse
actions against Mr. Silveria by ordering him back to work
while he was out on FMLA leave; suspending him for three days
while out on FMLA leave; proposing removal for being sick;
denying him a within-grade increase in January 2014; and
charging him thirty (30) times for being absent without leave
while he was sick. See SAC ¶ 69.
to Mr. Silveria, these practices became so severe and
pervasive that he was unable to work, which led to him losing
a within-grade increase and ultimately being removed from
work while he had a pending reasonable accommodation request
from December 2013. Id. ¶ 62 On May 30, 2014,
Mary Markey, Veterans Service Center Manager, proposed Mr.
Silveria's removal based on four charges: (1) failure to
follow instructions; (2) failure to follow leave procedures;
(3) inappropriate conduct; and (4) waste of official duty
time. Defendant's Request for Judicial Notice, Ex. 5 at
6. Mr. Silveria was removed on June 29, 2014. Id.
Mr. Silveria never received a reasonable accommodation before
his removal in June 2014. Id. ¶¶ 79, 82.
He also did not receive his final pay check, which he
considered to be continued retaliation by VA and reported it
to the Office of Accountability and Whistleblower Protection
(“OAWP”) and the Office of Special Counsel
(“OSC”). Id. ¶ 84.
on October 20, 2014, Mr. Silveria filed a complaint with the
OSC, alleging that he was a whistleblower and that he had
suffered retaliation as a result of his whistleblowing
activities. Id. at 7. On December 9, 2014, the OSC
notified Mr. Silveria that it was closing its file and gave
him notice of his opportunity to file an Individual Right of
Action (IRA) with the MSPB. Id. Mr. Silveria did not
file an IRA appeal with the MSPB by the deadline of March 5,
Timeline of Relevant Administrative Proceedings
Silveria filed two formal EEO complaints with the ORM for
claims that are related to this lawsuit. See Collazo
Decl. ¶¶ 7-8, Declaration of Robert J. Barnhart
(“Barnhart Decl.”) ¶ 3 & Ex. 1. Below is
a timeline of Mr. Silveria's claims and his appeals
• January 29, 2013-Mr. Silveria initiated an EEO
complaint (“2013 EEO Claim”) and asserted a claim
of discrimination and hostile work environment on the basis
of national origin, reprisal, and disability. Barnhart Decl.,
• April 19, 2014-Mr. Silveria initiated a second EEO
complaint (“2014 EEO Claim”) asserting the
following: (1) a non-mixed-case claim that Mr. Silveria was
subjected to a hostile work environment and five discrete
based on disability and reprisal by events occurring between
March 2014 and July 2014; (2) a mixed-case claim based on a
request for reconsideration for the denial of Mr.
Silveria's within-grade increase; and (3) a mixed-case
claim that Mr. Silveria was subjected to discrimination based
on disability and reprisal when he was removed from
employment effective June 29, 2014;
• April 21, 2014-The 2013 EEO Claim was denied in an ORM
Final Agency Decision, and that decision was affirmed by the
EEOC's Office of Federal Operations (“OFO”)
on July 13, 2017. It is unclear whether Mr. Silveria
• July 7, 2015-the ORM referred the mixed case to the
Office of Employment Discrimination Complaint Adjudication
(“OEDCA”) and it issued a Final Agency Decision
that found no discrimination from VA's actions in the
2014 EEO Claim.Mr. Silveria appealed the two mixed-case
decisions to the Merit Service Protection Board
(“MSPB”), and the MSPB separated them into two
appeals. Mr. Silveria is currently pursuing the non-mixed
case before the EEOC;
• January 6, 2017-the MSPB held that it did not have
jurisdiction to consider the denial Mr. Silveria's
request for reconsideration regarding his within-grade
increase claim. Mr. Silveria was advised that he had 60
days to request review by the U.S. Court of Appeals for the
Federal Circuit. RJN, Ex. 4. The Federal Circuit PACER system
contains no record of any case filed by Mr. Silveria.
• August 1, 2017-the MSPB affirmed the ORM's denial
of Mr. Silveria's removal claim, finding that the removal
was not based on disability discrimination or whistleblower
retaliation. The MSPB notified Mr. Silveria of his appeal
rights to the EEOC or file a civil action in an appropriate
U.S. District Court. RJN, Ex. 5. Mr. Silveria elected to
appeal to the EEOC.
• January 24, 2018-the EEOC's decision affirmed the
MSPB's removal finding, and it issued a right-to-sue
letter on Mr. Silveria's removal claim, informing him of
his right to sue in federal district court within thirty (30)
Silveria filed the present lawsuit on February 23, 2018.
Docket No. 1. This case was transferred to this Court on
December 4, 2018, following Defendant's motion to dismiss
for improper venue. Docket Nos. 25, 26. Then, in dismissing
Mr. Silveria's FAC, this Court instructed him to group
his factual allegations by each specific claim of each
alleged unlawful act. Based on the groupings in the SAC, Mr.
Silveria alleges five claims for relief:
• Claim 1: Disability discrimination, termination, and
harassment in violation of 5 U.S.C. section 2302, 42 U.S.C.
12112(a), Rehabilitations Act, and Executive Order 5396 for
differential treatment and denial of reasonable
• Claim 2: Whistleblower retaliation and EEO retaliation
in violation of 5 U.S.C. 2302 and 42 U.S.C. 12203 for
retaliation based on his protected disclosures; • Claim
3: Disability discrimination for denial of within-grade
increase in violation of CFR 432.105, 5 U.S.C. 2302, and the
Rehabilitations Act of 1973;
• Claim 4: Disability discrimination for wrongful
termination in violation of the Rehabilitations Act and 5
U.S.C. 2302; and
• Claim 5: HIPPA violations pursuant to 5 U.S.C. section
Rule 8, a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief, ” and “[e]ach allegation must be
simple, concise, and direct.” Fed. R. Civ.P. 8(a), (d).
“[T]he short and plain statement must provide the
defendant with fair notice of what the plaintiff's claim
is and the grounds upon which it rests.” Dura
Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005)
(citation omitted). “Experience teaches that, unless
cases are pled clearly and precisely, issues are not joined,
discovery is not controlled, the trial court's docket
becomes unmanageable, the litigants suffer, and society loses
confidence in the court's ability to administer
justice.” Bautista v. Los Angeles Cnty., 216
F.3d 837, 841 (9th Cir.2000) (citations and internal
quotation marks omitted).
“has been held to be violated by a pleading that was
needlessly long, or a complaint that was highly repetitious,
or confused, or consisted of incomprehensible
rambling.” Cafasso v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1059 (9th Cir.2011) (citation and
internal quotation marks omitted). See also Mc Henry v.
Renne, 84 F.3d 1172, 1177 (9th Cir.1996) (affirming the
dismissal of a complaint under Rule 8 for being
“argumentative, prolix, replete with redundancy, and
largely irrelevant”). A complaint may be dismissed for
violating Rule 8 even if “a few possible claims”
can be identified and the complaint is not “wholly
without merit.” Id. at 1179.
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Woods v. Carey, 525 F.3d 886, 889-90
(9th Cir.2008) (citations and internal quotation marks
omitted). However, “a pro se litigant is not excused
from knowing the most basic pleading requirements” or
“from following court rules.” Am. Ass'n
of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104,
1107-08 (9th Cir.2000) (citation and internal quotation marks
omitted); see also Pliler v. Ford, 542 U.S. 225, 231
(2004) (“District judges have no obligation to act as
counsel or paralegal to pro se litigants.”).
Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss for lack of subject matter jurisdiction. When subject
matter jurisdiction is challenged, “the party seeking
to invoke the court's jurisdiction bears the burden of
establishing that jurisdiction exists.” Scott v.
Breeland, 792 F.2d 925, 927 (9th Cir. 1986). A Rule
12(b)(1) motion will be granted if the complaint, when
considered in its entirety, on its face fails to allege facts
sufficient to establish subject matter jurisdiction. See
Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039
(9th Cir. 2003).
Rule of Civil Procedure 8(a)(2) requires a complaint to
include “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A complaint that fails to meet this
standard may be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To
overcome a Rule 12(b)(6) motion to dismiss after the Supreme
Court's decisions in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), a plaintiff's “factual allegations
[in the complaint] ‘must . . . suggest that the claim
has at least a plausible chance of success.'”
Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir.
2014). The court “accept[s] factual allegations in the
complaint as true and construe[s] the pleadings in the light
most favorable to the nonmoving party.” Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008). But “allegations in a complaint . . .
may not simply recite the elements of a cause of action [and]
must contain sufficient allegations of underlying facts to
give fair notice and to enable the opposing party to defend
itself effectively.” Levitt, 765 F.3d at 1135
(internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (internal quotation
contends that the SAC should be dismissed for four reasons:
(1) the SAC fails to comply with Rule 8; (2) the Court lacks
subject matter jurisdiction all claims except his removal
claim; (3) Mr. Silveria fails to state a claim under the
Rehabilitation Act; and (4) Mr. Silveria fails to state a
claim under the Whistleblower Protection Act. Mot. at 2. A.
Mr. Silveria's Compliance with Rule 8 Defendant
argues that the entire SAC should be dismissed because it
fails to comply with Rule 8(a) and 8(d)(2). As noted above,
the Court previously granted Defendant's motion to
dismiss the FAC. In granting the motion, the Court advised
Mr. Silveria “to group his factual allegations by each
specific claim of an unlawful act (for instance, each act of
discrimination or retaliation) ...