Harris v. Feldman
CourtDistrict Court, District of Columbia
Date FiledOctober 20, 2026
DocketCivil Action No. 2024-1209
JudgeJudge Royce C. Lamberth
StatusPublished
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Full Opinion
UNITED STATES DISTRICT COURF
FOR THE DISTRICT OF COLUMBIA
OLINDA HARRIS,
Plaintiff;
v. Case No. 1:24-CV-1209-RCL
KAYWIN FELDMAN, Director, National
Gallery of Art
Defendant.
MEMORANDUM OPINION
Plaintiff filed this suit pro se in 2024. Defendant failed to respond, and the Clerk of Court
entered default. Defendant now moves to set aside that default. For the reasons stated herein,
Defendant’s motion will be granted.
I. BACKGROUND
A. Statutory Background
“Federal employees are protected from unlawful employment actions by two different—
but overlapping—statutory regimes.” Perry v. Raimondo, 101 F.4th 55, 56 (D.C. Cir. 2024).
First, federal employees enjoy protection under federal anti-discrimination laws like Title
VII of the Civil Rights Act of 1964. Id. Second, the Civil Service Reform Act “establishes a
framework for evaluating personnel actions taken against federal employees.” Id. (internal
quotation marks omitted) (quoting Kloeckner v. Solis, 568 U.S. 41, 44 (2012)). A terminated
federal employee has three available paths of challenging their termination under these statutes.
If an employee wishes to challenge their termination, they may appeal the employing
agency’s decision to the Merit Systems Protection Board (“MSPB”), 5 U.S.C. § 7543(d); id.
§ 7701, “an independent adjudicator of federal employment disputes,” Kloeckner, 568 U.S. at 44.
Ifthe MSPB determines that the termination was justified, the employee may appeal to the Federal
Circuit. 5 U.S.C. § 7703(b)(1)(A), b(2).
But if the employee alleges discrimination as part of their termination, two other routes are
possible. They may seek a remedy with the EEOC and, after exhausting that process, “file a
discrimination case in the district court.” Perry, 101 F.4th at 56 (citing Al-Saffy v. Vilsack, 827
F.3d 85, 89 (D.C. Cir. 2016)).
Otherwise, they may “bring the case before the MSPB as a ‘mixed case,’ which combines
a claim under a federal anti-discrimination statute with a challenge to a serious adverse
employment action under the CSRA.” Jd. at 58 (citing Kloeckner, 568 U.S. at 50). If the MSPB
decides against the employee, they may seek review in a United States District Court. Id.; see also
Grant v. Dept of Treasury 272 F. Supp. 3d 182, 185 (D.D.C. 2017) (“Final orders of MSPB are
subject to appeal to the Federal Circuit, except those that include allegations of discrimination,
which may be appealed to either the EEOC or to a federal district court.” (citing 5 U.S.C.
§ 7703(b)(1)(A), b(2))). The district court then conducts a “trial de novo” on the facts of the
discrimination claim. See Perry, 101 F.4th at 61-62.
B. Factual Background
Plaintiff began working at the National Gallery of Art in 2013. Am. Compl. at 1. In 2021,
Plaintiff alleges that she had serious car accident which placed her in a coma and made it
impossible for her to work. Jd. She was fired in 2022 for absenteeism. Id.
The procedural path that Plaintiff took in response to her termination is unclear from the
Amended Complaint. Plaintiff describes how the MSPB upheld her termination, id., and also
references a report from the EEOC, id. The claims that she made to the MSPB and EEOC are
unclear.
C. Procedural History
Plaintiff brought this lawsuit in 2024, challenging the MSPB’s decision. Id, Plaintiff filed
an Amended Complaint later that year in which she described the circumstances leading up to her
termination. Am. Comp., ECF No. 5. Defendant was served with process in September 2024, see
ECF Nos. 6, 8.
In 2025, the Court ordered Plaintiff to show cause as to why the case should not be
dismissed for failure to prosecute. ECF No. 11. Plaintiff filed an Affidavit for Default in
November 2025. ECF No. 12. Defendant never responded, so the Clerk of Court entered default
in June 2026. ECF No. 14.
Defendant mow moves to set aside the default. Def.’s Mot., ECF No. 17. Plaintiff filed a
response. PI.’s Resp., ECF No. 18. 1 Defendant opted not to file a timely reply, so the motion is
now fully briefed and ripe for the Court’s review.
1 The Court recognizes that Plaintiff's response was not timely under LCvR 7(b). Still, “[cJourts allow leeway to
parties proceeding pro se to ensure access to the judicial system even for those persons who lack an understanding of
the procedural and substantive requirements of litigation.” Garlington v. Dist. of Columbia Water & Sewer Auth., 62
F. Supp. 3d 23, 24 (D.D.C. 2014) (citing Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993)).
Considering that policy, and Defendant’s failure to raise the issue in their brief, the Court considers Plaintiff’s
Response.
I]. LEGAL AUTHORITY
A court may “set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). “In
exercising its discretion, the district court is supposed to consider ‘whether (1) the default was
willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense was meritorious.’”
Mohamad v. Rajoub, 634 F.3d 604, 606 (D.C. Cir. 2011) (quoting Keegel v. Key West & Carribbean
Trading Co., 627 F.2d 372, 373 (D.C. Cir. 1980)). When weighing those factors, the district court
is mindful that “strong policies favor resolution of disputes on their merits... .” Jackson v. Beech,
636 F.2d 831, 836 (D.C. Cir. 1980).
Ill. ANALYSIS
The Court addresses each of the three factors relevant to the Rule 55(c) analysis in turn.
Plaintiff opposes Defendant’s motion in general terms, arguing that a two-year delay in responding
is unreasonable. Pl.’s Resp. at 1. Ultimately, the Court concludes that setting aside the default is
warranted under the circumstances.
A. Willfulness of Default
“The boundary of willfulness lies somewhere between a case involving a negligent filing
error, which is normally considered an excusable failure to respond, and a deliberate decision to
default, which is generally not excusable.” Int’] Painters & Allied Trades Union & Indus. Pension
Fund v. H.W. Ellis Painting Co., Inc., 288 F. Supp. 2d 22, 26 (D.D.C. 2003) (citing Gueci Am., Inc.
v. Gold Ctr, Jewelry, 158 F.3d 631, 634 (2d Cir. 1998).
Defendant explains that “[t]hrough a clerical error, this matter regrettably was missed
several years ago amidst the tidal wave of suits brought against the government.” Def.’s Mot. at
7. Defendant’s counsel appeared shortly after learning of the entry of default. See ECF No. 15.
Absent clear evidence to the contrary, the Court cannot conclude that Defendant’s failure
to respond rises to the level of willfulness. This factor therefore favors Defendant.
B. Prejudice to Plaintiff
“Delay in and of itself does not constitute prejudice.” Acree v. Republic of Iraq, 658 F.
Supp. 2d 124, 128 (D.D.C. 2009) (internal quotation marks omitted) (quoting Capital Yacht Club
v. Vessel AVIVA, 228 F.R.D. 389, 393-94 (D.D.C. 2005)). Therefore, “[t]he issue is not mere delay,
but rather its accompanying dangers: loss of evidence, increased difficulties of discovery, or an
enhanced opportunity for fraud or collusion.” Jd. at 129 (internal quotation marks omitted)
(quoting KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 15 (1st Cir. 2003))._
Defendant argues that Plaintiff would not face prejudice if their motion were granted
because “Plaintiff’s own inaction in this case over the course of two years suggests that she will
not be prejudiced by an adjudication on the merits.” Def.’s Mot. Defendant bases that argument
on the fact that the Court had to order Plaintiff to show cause why the case should not be dismissed
for failure to prosecute in October 2025. ECF No. 11. That argument does not follow. Even if
Plaintiff had failed to diligently pursue the suit in the past, there is no dispute that setting aside the
default will further protract the litigation. And the Court is mindful that Plaintiff is proceeding pro
se and may not be as familiar with the process of litigation as Defendant.
And the Court is not quite persuaded by Defendant’s position that there is no risk of
evidentiary or discovery issues in this case. Defendant argues that Plaintiff “has had the
opportunity to conduct full discovery on this matter” because there was “a full MSPB hearing, as
well as an OFO appeal.” Def.’s Mot. at 9. That is true enough with respect to legal issues such as
MSPB jurisdiction, where the Court applies an “arbitrary and capricious” standard. Perry, 101
F.4th at 61.
But for discrimination claims, the Court would be required to provide a “trial de novo.”
Perry, 101 F.4th at 62 (quoting 5 U.S.C. § 7703(c)). Ina trial de novo, a Plaintiff may be entitled
to discovery. See Ikossi v. Dept of Navy, 516 F.3d 1037, 1046-47 (D.C. Cir. 2008). Still, the
contours of Plaintiff’s claim are unclear from the Amended Complaint, so the Court cannot
determine whether any of that discovery would extend beyond the material in MSPB or EEOC
documents.
Accordingly, the Court is unpersuaded that this case presents no relevant risk of prejudice.
But Defendant is correct that there is little risk of prejudice regarding the Court’s review of MSPB
action that is unrelated to discrimination.
C. Meritorious Defense
“[ A Jllegations are meritorious if they contain even a hint of a suggestion which, proven at
trial, would constitute a complete defense.” Mohamad, 634 F.3d at 606 (internal quotation marks
omitted) (quoting Keegel, 627 F.2d at 374).
Defendants have argued here that the “Amended Complaint states no causes of action,”
and that “[t]here are meritorious defenses that the MSPB’s Decision and the OFO’s decision were
not arbitrary and capricious ....” Def.’s Mot. 10. The Court understands Defendant to mean that
the Amended Complaint’s failure to state a claim is a meritorious defense.
The Court agrees. The Amended Complaint is sparse and there is a serious question as to
whether it has alleged facts which, if true, entitle Plaintiff to relief. To prevail, more factual
allegations concerning Plaintiff’s termination would be required.
To name just one potential issue, actions in district court after MSPB and EEOC decisions
can become time barred. See 5 U.S.C. § 7703(b)(2); Ransom v. Mayorkas, No. 24-692, 2025 WL
947514, at *5 (D.D.C. Mar. 28, 2025) (“A plaintiff seeking judicial review of a MSPB final
decision must file a civil action no later than thirty calendar days after the MSPB decision becomes
final, or if the decision is appealed to the EEOC, within thirty days of the EEOC decision.”).
Because the Amended Complaint does not provide a timeline of Plaintiff’s appeal or provide any
information about MSPB and EEOC determinations regarding her termination, dismissal could be
warranted. See Ransom, 2025 WL 947514, at *5.
Accordingly, the Court concludes that this factor weighs in Defendant’s favor.
IV. CONCLUSION
In sum, considering the “federal policy favoring trial over default judgment,” Whelan v.
Abell, 48 F.3d 1247, 1258 (D.C. Cir. 1995), the Court is persuaded that the factors above favor
setting aside the default. Defendant’s motion will therefore be granted.
Because this motion raises deficiencies in Plaintiff’s Amended Complaint, Plaintiff may
seek leave to file a Second Amended Complaint within 30 days of the issuance of the order
accompanying this opinion. If her Second Amended Complaint is not timely filed or if it simply
restates the Amended Complaint currently before the court, Defendant may move to dismiss. If
Plaintiff does not respond to any such motion, her case may be dismissed. Defendant may file an
answer or other responsive motion within 30 days of any amended complaint.
An Order accompanying this Memorandum Opinion shall issue.
Date: “October, 2026 “hp 6, AA
Hon. Royce C. Lamberth
United States District Judge