Jo Spence v. DVA

 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 6, 2024                 Decided July 23, 2024

                         No. 22-5273

                          JO SPENCE,
                          APPELLANT

                               v.

  UNITED STATES DEPARTMENT OF VETERANS AFFAIRS AND
     DENIS MCDONOUGH, IN HIS OFFICIAL CAPACITY AS
    SECRETARY OF THE UNITED STATES DEPARTMENT OF
                  VETERANS AFFAIRS,
                      APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:19-cv-01947)



    Jo Spence, pro se, argued the cause and filed the briefs for
appellant.

    Bradley G. Silverman, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Brian P. Hudak
and Jane M. Lyons, Assistant U.S. Attorneys. R. Craig
Lawrence, Assistant U.S. Attorney, entered an appearance.

    Before: MILLETT, KATSAS, and RAO, Circuit Judges.
                               2

    Opinion for the Court filed by Circuit Judge RAO.

     RAO, Circuit Judge: Does the pleading leniency we
afford pro se litigants apply when the litigant is a licensed
attorney? We conclude it does not. Trained lawyers are
generally not unsophisticated litigants in need of special
protections, and any leniency afforded is left to the discretion
of the district court.

     In this case, Jo Spence was fired after more than a decade
working as an attorney at the Department of Veterans Affairs
(“VA”). She alleged the termination was in retaliation for filing
internal discrimination complaints. But Spence failed to plead
sufficient facts in her complaint to state all but one of her
claims. Because of her legal training, the district court was not
required to grant Spence the leniency afforded a typical pro se
litigant, nor did the district court abuse its discretion in
declining to do so. Spence’s surviving claim fails on summary
judgment. Accordingly, we affirm.

                               I.

     Spence worked as a senior attorney at the VA for eleven
years. In 2017, she filed a complaint with the VA’s Equal
Employment Opportunity (“EEO”) Office alleging
discrimination on the basis of race, sex, and age. She separately
filed whistleblower disclosures with the Office of
Accountability and Whistleblower Protection (“OAWP”),
alleging the VA engaged in illegal preferential hiring of Army
attorneys. The VA terminated Spence in 2018 for
“unacceptable performance.”

    Claiming the action was retaliatory, Spence challenged her
termination before the Merit Systems Protection Board
(“MSPB”). The MSPB affirmed Spence’s termination and
                               3
relied on examples of Spence making errors in cases, protesting
work assignments, and refusing to communicate with clients as
substantial evidence she was terminated for poor performance.

     Spence then filed a complaint in district court alleging
discrimination and retaliation by the VA. She first filed a 98-
page complaint asserting five counts: Count I, discrimination
and retaliation based on her EEO complaint; Count II,
retaliation based on her OAWP complaint; Count III, hostile
work environment; Count IV, unlawful hiring practices; and
Count V, termination in violation of statutory process. After the
VA moved for summary judgment, Spence moved to amend
her complaint to add Count VI, a challenge to the MSPB’s
decision, attaching a 234-page complaint. The district court
denied Spence’s motion and imposed a 50-page limit on any
subsequent amended complaints.

     Spence again moved to amend, proposing a 148-page
complaint that contained the original 98-page complaint as well
as an additional 50 pages for the MSPB claim. The district
court denied the motion and clarified that the cap was 50 pages
total, not 50 pages for the additional count. Spence moved to
amend a third time, attaching a 50-page complaint and three
extensive exhibits containing her submissions in the MSPB
proceeding. The district court granted the motion to amend.

     In response, the VA moved to dismiss the amended
complaint for repeated violations of the court’s filing
requirements. It argued Spence’s exhibits were merely another
attempt to skirt the page limit. For example, Exhibit A of the
amended complaint was a 57-page statement of facts that
Spence incorporated by reference, making her 50-page
complaint really 107 pages. The VA also argued Spence failed
to satisfy Federal Rule of Civil Procedure 8 because her MSPB
claim was “rambling” and included “wholly irrelevant or
                               4
unnecessary” material. See FED. R. CIV. P. 8(a)(2) (requiring a
complaint to include “a short and plain statement of the claim
showing that the pleader is entitled to relief”).

     The district court reversed course, dismissing Spence’s
amended complaint because it incorporated the statement of
facts and so violated the page limit. The court explained it was
“troubled by [Spence’s] flagrant disregard for the limits the
Court has imposed” but dismissed the complaint without
prejudice, giving Spence one last chance to meet the length
requirement.

     Finally, on her fourth attempt, Spence filed an amended
complaint that complied with the court’s page limit. The VA
again moved to dismiss—for failure to state a claim and for
violating Rule 8—and, alternatively, for summary judgment.
Spence filed a memorandum in opposition to the motion that
alleged additional facts supporting her claims. The district
court construed the allegations in Spence’s complaint liberally
because she was proceeding pro se, but it declined to consider
the additional allegations in her opposition memorandum
because Spence was an attorney and so was a “poor candidate
for [the] special treatment” afforded pro se plaintiffs. The
district court dismissed Counts I–IV and VI for failure to state
a claim and granted summary judgment on Count V. The
district court also dismissed Spence’s claims with prejudice
because Spence had disregarded the court’s repeated warnings
about pleading requirements and was imposing on the “finite
resources” of the VA and the courts. Spence timely appealed.

                              II.

    We begin with the threshold issue of whether the district
court was required to consider the facts Spence alleged in her
opposition memorandum. The district court limited its analysis
to the factual allegations in Spence’s amended complaint.
                                5
Spence contends the district court erred by failing to consider
her other filings because, under our precedent, courts must
“consider a pro se litigant’s complaint in light of all filings.”
Appellant Br. 10 (quoting Brown v. Whole Foods Mkt. Grp.,
Inc., 

 (D.C. Cir. 2015) (per curiam) (cleaned
up)).

     In considering whether leniency is required for pro se
attorneys, we briefly note the evolution of our pleading
standards. Pleadings at common law required “technical
exactness in stating a claim for relief or a defense,” and courts
construed all allegations against the pleader. 5 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & A. BENJAMIN SPENCER,
FEDERAL PRACTICE AND PROCEDURE § 1286 (4th ed. 2021).
With the promulgation of the Federal Rules of Civil Procedure,
our system moved away from that harsh standard. Today,
plaintiffs must put forth only “a short and plain statement of the
claim” and “a demand for the relief sought,” and courts must
construe pleadings “so as to do justice.” FED. R. CIV. P. 8(a),
(e); accord WRIGHT, MILLER & SPENCER, supra, § 1286
(explaining district courts must “make a determined effort to
understand what the pleader is attempting to set forth and to
construe the pleading in his or her favor, whenever the interest
of justice so requires”).

     Courts have extended this liberal pleading standard even
further for plaintiffs proceeding pro se. Beginning in the 1970s,
the Supreme Court held that a pro se plaintiff’s complaint must
be held “to less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 

(1972) (per curiam); accord Estelle v. Gamble, 

 (1976). Thus, when weighing whether a pro se plaintiff has
stated a claim, courts must treat “technical deficiencies in the
complaint … leniently” and “scrutinize[]” the “entire
pleading … to determine if any legally cognizable claim can be
                                6
found.” WRIGHT, MILLER & SPENCER, supra, § 1286. This
court has explained the liberal standard extends to
“consider[ing] supplemental material filed by a pro se litigant
in order to clarify the precise claims being urged”—including
facts set forth in a plaintiff’s opposition to a motion to dismiss.
Greenhill v. Spellings, 

 (D.C. Cir. 2007); see
also Brown, 

.

     We have never decided whether this liberal pleading
standard applies when a pro se litigant is a licensed lawyer. See
Klayman v. Zuckerberg, 

 (D.C. Cir. 2014)
(declining to answer whether the liberal pleading standard
applies to pro se lawyers). But we have recognized in similar
circumstances that the typical leniency afforded pro se litigants
does not necessarily follow for pro se lawyers. In Mann v.
Castiel, for example, we cited approvingly a district court’s
finding that “the additional latitude [the court] typically affords
pro se litigants to correct defects in service of process” is
“unwarranted” when the litigants are not “typical,
unsophisticated pro se litigants,” but instead are people with
“extensive litigation experience … [or] formal legal training.”

 (D.C. Cir. 2012) (cleaned up); see also
Bristol Petroleum Corp. v. Harris, 

 (D.C. Cir.
1990) (explaining, in the context of a failure to enter an
appearance, that “a law-trained individual, unlike the
unsophisticated pro se litigant, can be presumed to have some
acquaintance with the rules of the judicial process and the
consequences risked by their infringement”).

     We now hold that the liberal pleading standard for pro se
litigants does not invariably apply when the litigant is a
licensed attorney. In reaching this conclusion, we join the
unanimous consensus of the other circuits that have addressed
                                  7
this question.1 As the Supreme Court has recognized, pro se
pleadings are different from “formal pleadings drafted by
lawyers.” Haines, 

 (emphasis added). The
requirement that courts construe pro se pleadings liberally does
not ordinarily apply to pro se lawyers. Of course, district courts
“must” construe complaints “so as to do justice.” FED. R. CIV.
P. 8(e). In discharging that duty, courts retain discretion to
consider supplemental materials submitted by a pro se attorney,
but they need not.

     The district court did not abuse its discretion when
declining to consider Spence’s additional submissions. Spence
is a licensed attorney, not the typical pro se litigant. She has
formal legal training and 36 years of legal work experience,
including serving as a senior attorney at the VA for over a
decade. Her division at the VA handles contract procurement

1
  See Tracy v. Freshwater, 

 (2d Cir. 2010) (“[A]
lawyer representing himself ordinarily receives no such solicitude at
all.”); Olivares v. Martin, 

, 1194 n.1 (5th Cir. 1977)
(“We cannot accord [the plaintiff] the advantage of the liberal
construction of his complaint normally given pro se litigants because
he is a licensed attorney.” (cleaned up)); Andrews v. Columbia Gas
Transmission Corp., 

 (6th Cir. 2008) (concluding
it was not an abuse of discretion to deny pro se practicing attorneys
special consideration); Godlove v. Bamberger, Foreman, Oswald, &
Hahn, 

 (7th Cir. 1990) (“Ordinarily, we treat the
efforts of pro se applicants gently, but a pro se lawyer is entitled to
no special consideration.”); Huffman v. Lindgren, 

 (9th Cir. 2023) (“There is a good reason that we afford leeway
to pro se parties, who appear without counsel and without the benefit
of sophisticated representation … . That logic does not apply to
practicing attorneys, nor should the grace extend to them.”); Smith v.
Plati, 

 (10th Cir. 2001) (“While we are generally
obliged to construe pro se pleadings liberally, we decline to do so
here because [the plaintiff] is a licensed attorney.” (cleaned up)).
                                   8
litigation, and she was specifically given “litigation-related
work assignments and those that required coordination with the
Litigation Team.” In these circumstances, the district court was
not required to consider the facts introduced in Spence’s
opposition memorandum, nor was it an abuse of discretion to
limit review to Spence’s complaint.2

                                  III.

      We review de novo the district court’s dismissal of Counts
I, II, IV, and VI, and grant of summary judgment for Count V.3
We consider only the facts in Spence’s complaint with respect
to the dismissed counts.

     “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 

 (2009) (cleaned up). “[W]e accept the well-pleaded
factual allegations as true and draw all reasonable inferences
from those allegations in the plaintiff’s favor.” Air Excursions
LLC v. Yellen, 

, 277–78 (D.C. Cir. 2023) (cleaned
up).



2
  Spence also argues the district court’s failure to take judicial notice
of her opposition memorandum’s exhibits violates Federal Rule of
Evidence 201. District courts may take judicial notice in ruling on a
motion to dismiss. See Abhe & Svoboda, Inc. v. Chao, 

 (D.C. Cir. 2007). But Rule 201 requires a district court to take
judicial notice only of “a fact that is not subject to reasonable
dispute.” FED. R. EVID. 201(b). The facts Spence alleged in her
opposition memorandum’s exhibits are disputed, so the district court
properly declined to take judicial notice of them.
3
 Spence does not appeal the district court’s dismissal of Count III,
her hostile work environment claim.
                                  9
                                 A.

     In Count I, Spence alleged the VA terminated her
employment in retaliation for her EEO complaint,4 in violation
of Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (“ADEA”). To state a
claim for retaliation under Title VII or the ADEA, a plaintiff
must plausibly allege that (1) she “engaged in statutorily
protected activity,” (2) she “suffered a materially adverse
action by [her] employer,” and (3) the two are causally
connected. Howard R.L. Cook & Tommy Shaw Found. ex rel.
Black Emps. of the Libr. of Cong., Inc. v. Billington, 

 (D.C. Cir. 2013) (Title VII); see Paquin v. Fed. Nat’l
Mortg. Ass’n, 

 (D.C. Cir. 1997) (ADEA). An
act is materially adverse if it objectively “would have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Baloch v. Kempthorne, 

 (D.C. Cir. 2008) (cleaned up). To be actionable
under Title VII or the ADEA, in other words, the act must also
have “produce[d] an injury or harm.” Burlington N. & Santa
Fe Ry. v. White, 

 (2006) (Title VII); see also
Baloch, 

 n.4 (ADEA).

    The district court dismissed Count I for failing to state a
claim. It held that Spence did not plead facts showing any
materially adverse actions except her termination, and that she
did not adequately plead a causal connection between her
termination and her protected activity, filing the EEO
complaint.



4
 Spence does not challenge the district court’s dismissal of her Count
I discrimination claim, so she has forfeited any challenge to it on
appeal.
                               10
     Spence alleged the VA retaliated against her by sending
letters of counseling and reprimand, reducing her performance
rating to unsatisfactory, and proposing to suspend her. But, on
this record, none of these allegations, taken as true, amounts to
a materially adverse action. Letters of counseling or reprimand
are not adverse actions when they “contain[] no abusive
language, but rather job-related constructive criticism,” nor
when they fail to affect the plaintiff’s salary, bonus, or other
benefits. See Baloch, 

; see also Weber v.
Battista, 

 (D.C. Cir. 2007). Similarly,
“performance reviews typically constitute adverse actions only
when attached to financial harms” or other identified adverse
employment consequences. Baloch, 

. Spence
did not allege in her complaint that the letters contained abusive
language or that the letters or change in performance rating
resulted in any financial or other adverse employment harm.
And Spence never served her proposed suspension, so that is
not a materially adverse action either. See 

 Ordinary
employer evaluations and feedback do not constitute materially
adverse actions.

     The only adverse action Spence plausibly pleaded was her
termination. But even then, Spence failed to plead facts
showing the causal link between her termination and her
protected activity. Spence asks us to infer her termination must
have been retaliatory because she was terminated after she
submitted her EEO complaint. But we do not “accept
inferences that are unsupported by the facts set out in the
complaint.” Islamic Am. Relief Agency v. Gonzales, 

 (D.C. Cir. 2007). When “mere temporal proximity” is
the only “evidence of causality,” the Court has held that “the
temporal proximity must be very close.” Clark Cnty. Sch. Dist.
v. Breeden, 

 (2001) (per curiam) (cleaned
up). We sometimes accept an adverse employment action
occurring within three to four months of the protected activity
                               11
as sufficient to allow an inference of causation. See 

 at 273–
74 (collecting cases). In Spence’s case, however, ten months
had passed between the filing of her EEO complaint and her
supervisor proposing her termination. Spence maintains that
the continuous chain of allegedly retaliatory actions bridges the
gap between her complaint and termination. But even the latest
action in this purported chain, Spence’s proposed suspension,
is not an adverse action and was separated from the proposal of
her termination by four months. We are unable to infer the
necessary element of causation from these facts.

     Spence failed to plead facts sufficient to state a claim for
retaliation under Title VII or the ADEA, and so we affirm the
dismissal of Count I.

                               B.

     In Count II, Spence alleged the VA unlawfully retaliated
against her for filing complaints about the VA’s hiring
practices. Under the Whistleblower Protection Act, the
employee bears the burden to show her protected disclosures
were a “contributing factor in the personnel action,” which can
be accomplished by showing the adverse action “occurred
within a period of time” that reasonably shows causation. 

(e)(1). The district court dismissed this claim for
the same reasons as Count I: Spence failed to allege an adverse
action except termination, and she failed to show a causal link
between her termination and her OAWP complaint.

     Based on the facts in her complaint, Spence failed to plead
a link between her disclosures and any adverse personnel
action. She alleged the VA retaliated against her because she
“made whistleblower disclosures in complaints in 2017 and
2018.” But Spence did not plead facts that plausibly suggest
her complaints were a contributing factor in her termination.
We cannot infer from Spence’s allegations the type of
                               12
causation required to state a claim under the Whistleblower
Protection Act, and therefore we affirm the dismissal of Count
II.

                               C.

     In Count IV, Spence alleged the VA violated the
Whistleblower Protection Act’s “prohibited personnel
practices.” 

. That provision makes it unlawful
to deceive job applicants as to their “right to compete for
employment,” or to afford unlawful “preference or advantage”
to applicants. 

 § 2302(b)(4), (6). The district court dismissed
this claim for failing to plead facts sufficient to infer a
prohibited personnel practice.

     In her complaint, Spence set forth only conclusory
statements about the VA’s hiring practices. Her claim, in full,
is that “she was deceived with respect to her right to compete
for employment when Army attorneys were hired at the GS-15
level to perform the same work as [Spence] under [an operating
agreement] intended for VA attorneys which resulted in the
attorneys being granted preferences or advantages not
authorized by law, rule or regulation to improve their prospect
of employment.” Spence’s statement does not include any
necessary factual allegations. For example, Spence did not
plead facts showing that Army applicants were given favorable
treatment in the application process or that the job posting
deceived her about her ability to compete. Further, Spence did
not allege she applied for and was denied a job, as required by
the Act. See id. § 1221(e)(1). Because Spence failed to state a
prohibited personnel practices claim, we affirm the district
court’s dismissal of Count IV.
                               13
                               D.

    In Count V, Spence alleged the VA unlawfully terminated
her employment without first receiving approval from the
Office of Special Counsel. The district court granted the
government summary judgment on this claim, so we consider
whether there is a genuine dispute of material fact and whether
the VA is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(a). We “draw all reasonable inferences in favor of the
nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc.,

 (2000).

     The VA Secretary may use an expedited procedure to
discipline employees for misconduct or substandard
performance. See Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017,

 Stat. 862 (codified in scattered
sections of 38 U.S.C.). For an employee seeking corrective
action from the Office of Special Counsel, however, the Act
requires “the approval of the Special Counsel” before the
employee may be removed.5 

(e)(1).

    When Spence’s supervisor first proposed her termination,
an attorney in the VA’s Office of General Counsel asked a
senior advisor in the OAWP whether Spence had a retaliation
claim pending with the Office of Special Counsel. The senior
advisor communicated that the investigation was complete:
“Neither [the Special Counsel] nor [the] Office of
Accountability and Whistleblower Protection will continue to

5
  The Office of Special Counsel investigates and prosecutes
Whistleblower Protection Act cases across the government. It is “a
remedial mechanism independent of the civil service system to
which [employees can] bring their grievances.” Barnhart v. Devine,

, 1520 n.9 (D.C. Cir. 1985).
                              14
hold the action proposed under [

(e)]. The
proposal [to remove Spence] is clear to proceed.” Spence was
removed the next day.

    Spence appealed her termination to the MSPB, claiming
among other things that the VA erred by proceeding without
receiving the Special Counsel’s approval directly. The MSPB
concluded the VA adequately followed its procedures for
termination. See 

 § 714(d)(2)(A) (requiring an
administrative judge to uphold the VA Secretary’s decision to
terminate for cause if “supported by substantial evidence”).
The district court affirmed the MSPB decision because the
email exchange between the General Counsel’s office and the
OAWP advisor was substantial evidence that Spence’s
termination was processed with the Special Counsel’s approval
and in accordance with the VA’s procedures.

    Spence does not raise any factual dispute about the email.
She argues only that the email must come from the Office of
Special Counsel directly, not the OAWP, to serve as evidence
of the Special Counsel’s approval. But while the statute
requires the Special Counsel’s approval, it does not impose a
requirement on how that approval is conveyed.

     Like the district court, we consider whether the MSPB’s
decision was supported by substantial evidence, which
“requires such evidence as a reasonable mind might accept as
adequate to support a conclusion.” Spirit Airlines, Inc. v. U.S.
Dep’t of Transp., 

 (D.C. Cir. 2021)
(cleaned up). We conclude that standard is easily met here. The
email came from the OAWP, an office with frequent
interactions with the Office of Special Counsel, and the OAWP
explicitly stated it received approval from the Special Counsel
to move ahead with Spence’s termination. Accordingly, we
affirm the grant of summary judgment on Count V.
                              15
                              E.

     Finally, in Count VI, Spence alleged the MSPB decision
was arbitrary and capricious and unsupported by substantial
evidence. The district court dismissed this claim for violating
Rule 8, which requires that a complaint include “a short and
plain statement of the claim.” FED. R. CIV. P. 8(a)(2). The
district court held Spence’s MSPB claim was “too unwieldy”
and did not “give fair notice” to the VA because of its length,
redundancy, and disorganization. On appeal, Spence argues her
approach was necessary to establish her challenge and that she
presented the facts in as orderly a manner as possible.

      Enforcement of Rule 8 “is largely a matter for the trial
court’s discretion.” Ciralsky v. CIA, 

 (D.C.
Cir. 2004); accord WRIGHT, MILLER & SPENCER, supra,
§ 1217. The district court did not abuse that discretion here.
Count VI totals 41 of the complaint’s 50 pages but includes
little or no explanation of how the material is relevant to
Spence’s claims. Because Spence’s complaint was neither
short nor plain, we affirm the dismissal of Count VI.

                             IV.

     Finally, Spence claims the district court abused its
discretion in dismissing her complaint with prejudice. When
determining whether a district court abused its discretion, “we
may not substitute our judgment for that of the trial
court.” Standing Rock Sioux Tribe v. U.S. Army Corps of
Eng’rs, 

 (D.C. Cir. 2021) (cleaned up).
“Abuse of discretion is a particularly high bar where the court
is simply exercising its judgment about whether to relieve a
party from an unexcused (i.e., no good cause) failure to comply
with the Rules.” Morrissey v. Mayorkas, 

(D.C. Cir. 2021) (cleaned up).
                               16
     Although dismissal with prejudice is an extreme sanction,
it is permissible when a plaintiff has violated court rules or
engaged in egregious conduct. See Cohen v. Bd. of Trs., 

 (D.C. Cir. 2016). The district court afforded
Spence multiple opportunities to amend her complaint and
specified the deficiency in her pleadings with each dismissal.
After Spence’s fourth complaint failed to comport with the
Federal Rules and the district court’s requirements, the court
warned it would dismiss her claims with prejudice if she failed
to comply on her next attempt. Notwithstanding this notice,
Spence again disregarded the pleading requirements.

    In these circumstances, we hold the district court did not
abuse its discretion in denying Spence another bite at the apple.

                             ***

     We hold that the requirement to afford a liberal
construction to a pro se plaintiff’s pleadings does not apply to
pro se attorneys. Rather, we leave such questions to the sound
discretion of the district court. The district court here neither
erred nor abused its discretion by considering only the
allegations in Spence’s complaint and disregarding her lengthy
additional filings. For the reasons above, we affirm the district
court’s dismissal of Counts I, II, IV, and VI, and summary
judgment for the VA on Count V.

                                                    So ordered.