Jennifer Seed v. Environmental Protection Agency and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2024 Decided May 7, 2024
No. 22-5321
JENNIFER SEED,
APPELLANT
v.
ENVIRONMENTAL PROTECTION AGENCY AND UNITED STATES
OF AMERICA,
APPELLEES
Appeal from the United States District Court for
the District of Columbia
(No. 1:16-cv-00748)
Mark Ramsey Heilbrun argued the cause and filed the
briefs for appellant.
Joshua M. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Melissa N. Patterson, Attorney.

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Before: RAO and CHILDS, Circuit Judges, and ROGERS,
Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: Dr. Jennifer Seed, a
longtime employee of the Environmental Protection Agency,
retired in 2014 following a reorganization of her division. She
appeals the grant of summary judgment on her age
discrimination claim, contending principally that the district
court erred as a matter of fact and law in view of the evidence
that she was involuntarily demoted to a junior position as older
managers were replaced with younger employees. The court
does not have jurisdiction to address the merits of Dr. Seed’s
reassignment claims because she lacks standing under Article
III of the United States Constitution whereby a court could
likely redress her claimed injuries. The appeal is therefore
dismissed and the case remanded to the district court with
instructions to vacate the grant of summary judgment and to
dismiss the reassignment claim for lack of standing.
I.
“Federal courts are courts of limited jurisdiction,”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994), and have “an independent obligation to determine
jurisdiction de novo.” Waters v. Rumsfeld, 320 F.3d 265, 271
(D.C. Cir. 2003).
“[T]he party invoking federal jurisdiction [must] have
standing — the ‘personal interest that must exist at the
commencement of the litigation.’” Davis v. FEC, 554 U.S.
724, 732 (2008) (quoting Friends of the Earth, Inc. v. Laidlaw

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Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The
“irreducible constitutional minimum of standing” has three
requirements: (1) an “injury in fact,” (2) “a causal connection
between the injury and the conduct complained of,” and (3) it
“must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations and
quotations omitted). If a plaintiff lacks any one of these
elements of standing, the court lacks jurisdiction. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 109–10 (1998).
The plaintiff bears the burden to establish each element of
standing “in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the
litigation.” Humane Soc’y of the U.S. v. Perdue, 935 F.3d 598,
602 (D.C. Cir. 2019) (quoting Defs. of Wildlife, 504 U.S. at
561). At the summary judgment stage, FED. R. CIV. P. 56, the
plaintiff cannot “‘rest on . . . “mere allegations,” but must “set
forth” by affidavit or other evidence “specific facts,” which for
purposes of the summary judgment motion will be taken to be
true.’” Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240
(D.C. Cir. 2015) (alteration in original) (quoting Defs. of
Wildlife, 504 U.S. at 561 (quoting FED. R. CIV. P. 56(e))).
II.
From 2009 until her reassignment in 2013, Dr. Seed was
the Deputy Division Director in the Office of Pollution
Prevention and Toxics, Risk Assessment Division of the
Environmental Protection Agency (“EPA”). She had served as
Branch Chief from 1998, and in both positions she had dual
roles as a senior scientist and a manager. As Deputy her duties

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covered science functions, including being a task force
representative and working with the World Health
Organization, while directing and overseeing program
planning, staffing requirements, and human resources
functions. Certain managerial functions, such as the budget,
tended to be handled by an associate division director, and Dr.
Seed had no direct supervision of employees.
In 2013, EPA reorganized the Office of Pollution
Prevention and Toxics. It combined the risk assessment
components of each of the Office’s seven divisions, disbanded
two divisions, and created a new division. As in other
divisions, the Deputy Division Director would have primary
responsibilities for administrative and procedural functions
such as contract management and oversight, program
implementation, FOIA responses and tracking, personnel
actions and procedures, and travel planning and oversight.
Ninety-one positions were reassigned.
Dr. Tala Henry, who was slated to be the Division Director
of the reconstituted Risk Assessment Division, met with the
affected managers in developing a staffing plan. During a
meeting with Dr. Seed in July 2013, Dr. Henry advised that the
newly reconstituted Deputy Division Director position would
have “primary managerial responsibilities related to
administrative and procedural functions.” Henry EEOC Aff. ¶
27 (Apr. 22, 2014). Upon inquiring whether Dr. Seed would
be interested in these administrative duties, Dr. Seed
“adamantly responded ‘no.’” Id. Dr. Seed disputed this, stating
that she had told Dr. Henry she “did not want to do budget as a
full-time job, and that it was a disservice to a science Division
to have a Deputy Division Director focus solely on budget.”
Seed EEOC Aff. ¶ 28 (May 20, 2014). In response to Dr.

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Henry’s August 2013 email to managers on available
management positions, Dr. Seed identified the newly
constituted Deputy Division Director as her top choice for
reassignment, followed by the non-supervisory Senior Science
Advisor.
Dr. Seed, then 59 years old, was reassigned to be the Senior
Science Advisor. A man about five years younger who was a
Branch Chief was selected as the new Deputy Division
Director. Dr. Henry explained to Dr. Seed that she was selected
for the Senior Science Advisor position because she had
indicated she was “not interested” in the budgetary and
logistical duties of the Deputy Division Director, which she
thought were “not the best application of [her] scientific
expertise and experience.” Henry Email to Seed (Oct. 22,
2013). According to Dr. Seed, when she inquired about the
Branch Chief position to be vacated by the new Deputy
Director, Dr. Henry told her that “[w]e were hoping to fill those
[positions] with younger people who had just been through the
leadership training program.” Seed Dep. at 37:21–23 (Nov. 29,
2017). Dr. Henry denied making this statement. Henry EEOC
Aff. ¶¶ 31–32 (Apr. 22, 2014).
As Senior Science Advisor, Dr. Seed retained the same pay
grade and benefits she had as Deputy Division Director. Dr.
Seed averred, however, that the reassignment to Senior Science
Advisor limited her future professional advancement in the
federal government, and it was humiliating and a demotion.
Seed EEOC Aff. ¶¶ 27, 32 (Apr. 9, 2014). For instance, she was
no longer invited to meetings on science and policy matters
with senior managers. Her office was relocated to a cubicle.
When senior managers walked by they did “not even bother to
say hello.” Seed Dep. at 65:12–13 (Nov. 29, 2017). Moreover,

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the selection process during the reorganization was unfair,
differing without reason, as she illustrated: the reconstituted
Deputy Division Director position required neither a formal
application nor any interviews, while a one-year, less senior
Branch Chief position (for which she applied, was offered, and
declined) required a formal application and two rounds of
interviews. Seed EEOC Aff. ¶ 37 (May 20, 2014).
Dr. Seed’s reassignment as Senior Science Advisor was
effective on November 17, 2013. A little over a year later, on
December 27, 2014, she retired under the Voluntary Separation
Incentive Payments program, 5 U.S.C. §§ 3521–3525 (2014),
and received a $25,000 lump-sum separation incentive
payment from EPA.
Dr. Seed filed complaints with EPA’s Office of Civil
Rights and appealed to the Equal Employment Opportunity
Commission and the Merit Systems Protection Board. Failing
to obtain relief, she filed suit against EPA on April 21, 2016,
alleging violations of the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., and Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
et seq. Although her claims overlap, Count I alleged
constructive discharge, constructive demotion, and also
disparate treatment and a continuing hostile work environment;
Count II alleged de jure discrimination beginning in 2012–13
targeting her as well as older, more experienced employees and
subjecting them to prohibited employment practices; Count III
alleged disparate impact; Count IV alleged a continuing hostile
work environment; and Count V alleged retaliation based on
her previous protected activity challenging discriminatory
policies and participating in a civil rights violation
investigation. As relief, Dr. Seed sought reinstatement with a

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retroactive promotion, $300,000 in compensatory damages,
front pay, costs and reasonable attorneys’ fees, and “other
damages and further relief as deemed just and reasonably
calculated to make [her] whole.” Compl. at 37; id. at 38–39.
On July 19, 2016, EPA moved to dismiss the complaint in
part for lack of timely exhaustion of administrative remedies,
FED. R. CIV. P. 12(b)(6). The district court dismissed the
constructive demotion claim in Count I, the constructive
discharge claim in Count II, and the retaliation claim in Count
V. Seed v. Pruitt, 246 F. Supp. 3d 251, 257 (D.D.C. 2017)
(“Seed I”). Following discovery, EPA moved on January 12,
2018, for summary judgment on the remaining claims,
attaching a statement of material facts not in dispute. FED. R.
CIV. P. 56(c), (e), (f); D.C. LOCAL CIV. R. 7(h)(1). Dr. Seed
filed an opposition but did not include record citations nor file
a statement of material facts in dispute. The district court
dismissed the Title VII claim for failure to state a claim
pursuant to Rule 12(b)(6), and granted summary judgment to
EPA on Count III (disparate impact) and Count IV (hostile
work environment). Supp. Order (Feb. 11, 2019). Upon
receiving supplemental briefs on the remaining reassignment
claim, including whether Dr. Seed could obtain any form of
relief other than nominal damages, the district court, on
November 30, 2022, granted summary judgment to EPA on Dr.
Seed’s remaining reassignment and disparate treatment ADEA
claims in Count I. Seed v. Regan, 643 F. Supp. 3d 129, 140
(D.D.C. 2022) (“Seed II”). The court observed that Dr. Seed
had proffered neither direct evidence of discriminatory intent
that would entitle her to a trial, nor indirect evidence giving rise
to an inference of discrimination, nor shown that after her
reassignment she was treated less favorably than younger
employees or that her treatment was based on her age. Id. at

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137–40. Dr. Seed appeals only her ADEA reassignment claim
that was the subject of the Order and Memorandum Opinion in
Seed II.
III.
As a threshold matter, EPA maintains that Dr. Seed has
failed to establish Article III standing to pursue her claims and
her case must be dismissed for lack of jurisdiction. Appellees’
Br. 18–27.
This court’s analysis “begins and ends with consideration
of our jurisdiction.” Swanson Grp. Mfg. LLC, 790 F.3d at 239.
Dr. Seed’s case fails on the element of redressability, which
“poses a simple question: ‘[I]f plaintiffs secured the relief they
sought, . . . would [it] redress their injury’?” Wilderness Soc’y
v. Norton, 434 F.3d 584, 590 (D.C. Cir. 2006) (alterations in
original) (quoting Mountain States Legal Found. v. Glickman,
92 F.3d 1228, 1233 (D.C. Cir. 1996)). To proceed, the court
must have the power to issue relief that is likely to redress the
plaintiff’s injury. M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir.
2018); see Swan v. Clinton, 100 F.3d 973, 976–77 (D.C. Cir.
1996).
Dr. Seed’s cause of action arises under the federal-sector
provision of the ADEA, 29 U.S.C. § 633a, which provides: “All
personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . shall be made
free from any discrimination based on age.” Id. § 633a(a). A
person “may bring a civil action in any Federal district court of
competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter.” Id. § 633a(c).
Congress authorized EEOC “to enforce the provisions of

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subsection (a) through appropriate remedies, including
reinstatement or hiring of employees with or without backpay,
as will effectuate the policies of this section.” Id. § 633a(b).
The ADEA was modeled after Title VII of the Civil Rights Act
of 1964, see, e.g., Lehman v. Nakshian, 453 U.S. 156, 166–67
(1981), but it is not identical in relevant respects.
The federal-sector provision of the ADEA generally
permits plaintiffs to seek reinstatement, backpay, or injunctive
or declaratory relief. See Steele v. Mattis, 899 F.3d 943, 945
(D.C. Cir. 2018). In 1991, Congress amended Title VII to
allow recovery of compensatory and punitive damages. Civil
Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071,
1072–74 (codified as amended at 42 U.S.C. § 1981a).
Congress amended other anti-discrimination statutes but did
not similarly amend the ADEA. Villescas v. Abraham, 311
F.3d 1253, 1260 (10th Cir. 2002); see Smith v. City of Jackson,
544 U.S. 228, 240 (2005).
In her complaint, Dr. Seed sought reinstatement “with a
retroactive promotion to the [Senior Executive Service
(“SES”)] level or some equivalent grade and pay band
commensurate with her experience and expertise, with all
attendant back pay, benefits and other properly-offset
emoluments of employment,” as well as $300,000 in
compensatory damages, “front pay at the SES (Level III) pay
level (including [] increases) until [Dr. Seed] reaches an age
when she would have voluntarily retired from federal service,”
costs and reasonable attorneys’ fees, and “other damages and
further relief as deemed just and reasonably calculated to make
[her] whole.” Compl. at 37. Dr. Seed has not proffered
evidence or presented legal argument to demonstrate that her
requested remedies would redress her injuries. As a matter of

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law she has not shown that compensatory damages are
available to her under the ADEA.
A.
A backpay award consists of “the difference between what
the employee would have earned but for the wrongful discharge
and [her] actual interim earnings.” Oil, Chem. & Atomic
Workers Int’l Union v. NLRB, 547 F.2d 598, 602 (D.C. Cir.
1976) (citing Heinrich Motors, Inc. v. NLRB, 403 F.2d 145, 148
(2d Cir. 1968)). Dr. Seed’s counsel referred to an Office of
Personnel Management manual purporting to authorize
backpay for “creditable service until age 70,” Oral Arg.
Rec’d’g at 9:44–10:00 (Jan. 22, 2024), but nothing in the record
or briefing reflects the existence or applicability of this policy.
Dr. Seed acknowledged that as Senior Science Advisor she had
the same pay grade, salary, vacation, and other benefits that she
had as Deputy Division Director prior to her reassignment. She
has presented no ground on which the court could find any
difference in earnings or benefits to compensate as backpay.
B.
Nor has Dr. Seed shown that she is eligible for
reinstatement or front pay. Wrongful discharge, either actual
or constructive, is “a necessary element of a claim for
reinstatement.” Taylor v. FDIC, 132 F.3d 753, 767 (D.C. Cir.
1997). Dr. Seed retired under the Voluntary Separation
Incentive Program and received a lump sum incentive payment
from EPA. 5 U.S.C. §§ 3521–3525 (2014). She did not appeal
the Rule 12(b)(6) dismissal of three counts and attempts for the
first time on appeal to present challenges that have been
forfeited, Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019),
or are unavailable. Her notice of appeal referred only to the
district court’s order and opinion of November 30, 2022, and

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her opening brief states that these are the rulings under review,
Appellant’s Br. i, 2. Having forfeited challenges to other
district court orders — most notably the Rule 12(b)(6)
dismissal of her constructive discharge claim — by failing to
refer to it in her opening brief, her claims have not been
preserved for appeal.
Nor can the court address her front pay claim. Even
assuming the Rule 12(b)(6) dismissal was part of her intended
appeal, see Messina v. Krakower, 439 F.3d 755, 759 (D.C. Cir.
2006), Dr. Seed did not address the issue of front pay in her
opening (or reply brief), and EPA did not address the issue in
the response brief.
C.
Dr. Seed fares no better in seeking injunctive or declaratory
relief. She cannot receive injunctive relief because there is no
record evidence that she plans to return to EPA or is currently
working there, so no “present harm [is] left to enjoin,” Taylor
v. Resol. Tr. Corp., 56 F.3d 1497, 1502 (D.C. Cir. 1995).
Similarly, in seeking declaratory relief, the record indicates that
it is “‘most unlikely’ that [she] would again be subject to the
[ADEA] . . . [and so there is] no case or controversy of
‘sufficient immediacy and reality’ . . . to allow a declaratory
judgment.” City of Los Angeles v. Lyons, 461 U.S. 95, 104
(1983) (quoting Golden v. Zwickler, 394 U.S. 103, 109 (1969));
see Fair Emp. Council of Greater Wash., Inc. v. BMC Mktg.
Corp., 28 F.3d 1268, 1273 (D.C. Cir. 1994). She thus has not
proffered evidence nor shown either remedy is available to her.
D.
Finally, Dr. Seed’s request for compensatory damages
is not well taken.

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“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v. Mitchell, 463
U.S. 206, 212 (1983). A federal government waiver “must be
unequivocally expressed in statutory text, see, e.g., United
States v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992), and
will not be implied, Lane v. Pena, 518 U.S. 187, 192 (1996).”
Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1105 (D.C. Cir.
2005). Courts, in turn, must “strictly construe[]” a waiver of
sovereign immunity “in terms of its scope, in favor of the
sovereign.” Lane, 518 U.S. at 192. When a plaintiff seeks
monetary damages, “the waiver of sovereign immunity must
extend unambiguously to such monetary claims.” Id.; see
Settles, 429 F.3d at 1105.
The ADEA authorizes “appropriate remedies, including
reinstatement or hiring of employees with or without backpay.”
29 U.S.C. § 633a(b). Congress’s use of the word “including”
can be understood to “introduce[] examples, not an exhaustive
list.” A. Scalia & B. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 132 (2012). But Dr. Seed
presents no persuasive argument this canon would apply to
sovereign immunity. Her generalizations and atextual analysis
do not identify the specificity that the Supreme Court requires
for such waivers. E.g., Lane, 518 U.S. at 192.
The federal-sector provision of the ADEA does waive the
United States’ sovereign immunity for certain federal
employers by providing for “legal or equitable relief” to carry
out the purposes of the ADEA. 29 U.S.C. § 633a(c). Dr. Seed,
citing Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008), views
this broad statement to waive sovereign immunity for monetary

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damages. Reply Br. 12–13. Yet other courts, in analyzing
disputes over the availability of compensatory damage awards,
have concluded that in affording “legal or equitable relief,” 29
U.S.C. § 633a(c), Congress did not unequivocally,
unambiguously waive sovereign immunity for compensatory or
punitive damages under the federal-sector provision of the
ADEA. See, e.g., Villescas, 311 F.3d at 1259–61; Smith v. Off.
of Pers. Mgmt., 778 F.2d 258, 260–62 (5th Cir. 1985); Miller
v. Kerry, 924 F. Supp. 2d 133, 138–40 (D.D.C. 2013). In her
Reply Brief at 12–16, Dr. Seed argued that the ADEA provides
for compensatory damages by its plain text and
“unequivocally” waives the United States’ sovereign
immunity, but acknowledged at oral argument that the ADEA
does not provide an explicit waiver of sovereign immunity for
compensatory damages. Oral Arg. Rec’d’g at 5:04–28 (Jan.
22, 2024).
Dr. Seed relies principally on Babb v. Wilkie, 589 U.S. 399
(2020), to support her claim for compensatory damages under
the ADEA. There, the Supreme Court stated in dictum that a
plaintiff may obtain relief that is “generally available for a
violation of § 633a(a), including hiring, reinstatement,
backpay, and compensatory damages,” if the plaintiff shows
that “age was a but-for cause of the challenged employment
decision.” Id. at 402. No claim for compensatory damages was
before the Court. Nor did the Court address the United States’
waiver of sovereign immunity under the ADEA. Instead, the
Court assumed without deciding that compensatory damages
were available. Id. at 413. A bare assumption is not the type
of “carefully considered language of the Supreme Court” that
this court considers authoritative for purposes of applying
Supreme Court dictum. Zivotofsky ex rel. Zivotofsky v. Sec’y
of State, 725 F.3d 197, 211–12 (D.C. Cir. 2013) (quoting

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United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006)),
aff’d sub nom. Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S.
1 (2015).
No more persuasive is Dr. Seed’s suggestion that EPA
“appears to impute” sovereign immunity in a manner that the
Supreme Court has abandoned. Reply Br. 12. She interprets
Gomez-Perez, 553 U.S. at 491, to instruct that “where one
statutory provision unequivocally provides for a waiver of
sovereign immunity to enforce a separate statutory provision,
that latter provision ‘need not . . . be construed in the manner
appropriate to waivers of sovereign immunity.’” Reply Br. 12.
In Gomez-Perez, the Court concluded that a provision of the
federal-sector ADEA outlawing discrimination did not need to
be analyzed in the same manner as a statutory provision that
provided for a waiver of sovereign immunity. 553 U.S. at 490–
91 (citing United States v. White Mountain Apache Tribe, 537
U.S. 465, 472–73 (2003)). Dr. Seed offers no explanation why
that reasoning would apply in her case. A sovereign immunity
waiver must be explicit in the applicable statutory provision,
Lane, 518 U.S. at 192, and the court must strictly construe the
waiver in 29 U.S.C. § 633a(c) in the United States’ favor, see
id.
Accordingly, because Dr. Seed lacks Article III standing,
the court dismisses the appeal for lack of jurisdiction and
remands the case to the district court to vacate the grant of
summary judgment and to dismiss the reassignment claim in
Count I for lack of jurisdiction.

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