Coleman v. Napolitano

65 F.Supp.3d 99

John Coleman, Plaintiff

v.Janet Napolitano, in her official capacity as Secretary of the Department of Homeland Security, Defendant.

Civil Action No. 13–cv–1307 BAH

United States District Court, District of Columbia.

Signed August 25, 2014

Lawrence A. Berger, Mahon & Berger, Esqs., Glen Cove, NY, for Plaintiff.

Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The plaintiff, John Coleman, an employee within the Department of Homeland Security (“DHS”), filed this action against defendant Janet Napolitano, in her official capacity as Secretary of the DHS, to challenge, as violative of his constitutional due process rights, his reassignment between components of DHS, even though the reassignment did not result in any reduction in his grade or pay. Pending before the Court is the defendant's Motion to Dismiss, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, respectively. Def.'s Mot. to Dismiss at 1, ECF No. 9. For the reasons set out below, the defendant's motion to dismiss is granted.

I. BACKGROUND

The undisputed facts in this case, as set forth in the Complaint, may be briefly summarized as follows: In 2007, the plaintiff was a GS–118–13 Criminal Investigator within Homeland Security Investigations (“HSI”), which is the largest investigative branch of DHS. Compl. ¶¶ 1, 2. Effective February 18, 2007, the plaintiff received a temporary promotion to a GS–1811–14 position within another DHS department called the Office of Professional Responsibility (“OPR”), “which is tasked with investigating allegations of employee misconduct; overseeing detention functions; reviewing HSI programs and offices; and personnel security, including background investigations and security clearance adjudications.” Id. ¶¶ 1, 4, 5. The advertisement made clear that the position was “a TEMPORARY ASSIGNMENT” and may be accompanied by “a TEMPORARY PROMOTION not to exceed three (3) years.” Id. ¶ 3 (capitalization in original). The advertisement further stated that the temporary “assignment may be terminated any time depending on the needs of the service” and that “[u]pon completion of assignment, selectee(s) will be returned to position held prior to selection.” Id.

The following year, on August 5, 2008, the plaintiff received a memorandum (“2008 Memorandum”) from OPR's deputy director, informing him that his permanent position of record as GS–1811–13 Criminal Investigator in HIS “will be reassigned from [HSI] to [OPR].” See Pl.'s Opp'n Def.'s Mot. Dismiss (“Pl.'s Opp'n”), Exhibit A (“2008 Memorandum”), at 1, ECF No. 12–1. The 2008 Memorandum also indicated that: “[t]he effective date of this reassignment action will coincide with the effective date of your current temporary assignment with OPR, so that your temporary promotion will not be impacted and to avoid pay interruptions.” Id. The document explicitly stated that the plaintiff was “still subject to the conditions of employment as stated in the vacancy announcement [LAG–OPR–126852–RT–321] from which you were selected for your current temporary assignment.”Id. ; see Compl. ¶¶ 3–4

When the plaintiff's position with OPR at a GS–14 level was set to expire, the DHS extended the position for an additional year twice—once in 2010 and then again in 2011. Compl. ¶¶ 7–8. On February 12, 2012, the plaintiff's temporary position at a GS–14 level expired, and was again temporarily extended from November 2012 until March 2013, when he was scheduled to return to his GS–1811–13 position. Id. ¶ 10. Before the expiration of his temporary GS–14 position in OPR expired, the plaintiff's GS–1811–13 position was reassigned from OPR back to HSI on January 13, 2013. Id. ¶¶ 9, 11.¹

Shortly thereafter, the plaintiff filed this action claiming that his transfer or reassignment from OPR back to his original position in HSI was an “arbitrary and capricious” action that violated his due process rights. Id. ¶ 12–13. The plaintiff seeks equitable relief directing DHS to reassign his permanent position from HSI to OPR. See id., Prayer of Relief. The defendant's motion for dismissal is now ripe for consideration.

II. LEGAL STANDARD

A. Subject Matter Jurisdiction Under Rule 12(b)(1)

“ ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’ ” Gunn v. Minton, –––U.S. ––––, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Indeed, federal courts are “forbidden ... from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C.Cir.2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for us to hear each dispute.’ ” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C.Cir.1996) (quoting Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992) ). Absent subject matter jurisdiction over a case, the court must dismiss it. McManus v. District of Columbia, 530 F.Supp.2d 46, 62 (D.D.C.2007).

When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and “construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (internal citations and quotation marks omitted). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). In evaluating subject matter jurisdiction, the court, when necessary, may look beyond the complaint to “undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert, 974 F.2d at 197 ; see also Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 142 (D.D.C.2005).

B. Failure to State a Claim Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). A motion under Rule 12(b)(6) does not test a plaintiff's likelihood of success on the merits; rather it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” to provide “grounds” of “entitle[ment] to relief.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ) (alteration in original). The Supreme Court has stated “[t]o 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.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).

III. DISCUSSION

The defendant contends that the Complaint must be dismissed on two separate bases: First, the defendant argues that the Court lacks subject matter jurisdiction to hear this matter because the Civil Service Reform Act (“CSRA”) authorizes the plaintiff to challenge an adverse personnel action only through a hearing before the Merit Systems Protection Board (“MSPB”) and subsequent appeal to the Federal Circuit. See Def.'s Mem. Supp. of Mot. to Dismiss (“Def.'s Mem.”) at 3, ECF 9. Second, the defendant posits that the Complaint must be dismissed for failure to state a claim upon which relief may be granted. See id. at 6–10. Each of these arguments is addressed below.

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

According to the defendant, this Court lacks subject matter jurisdiction to hear the plaintiff's constitutional due process claim because “[t]he CSRA ‘established a comprehensive system for reviewing personnel action taken against federal employees.’ ” Def.'s Mem. at 3 (quoting United States v. Fausto, 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) ).² Under the CSRA, the plaintiff “has the right to a hearing before the [MSPB], and if dissatisfied by the MSPB's decision, the employee is entitled to judicial review in the Federal Circuit.” Def.'s Mem. at 3. Both parties agree that “[o]nly certain personnel actions, described as adverse actions, are subject to review under CSRA,” id. and that “a reassignment, such as the reassignment at issue here, without loss of rank or pay is not an adverse action” entitled to administrative review. Pl.'s Opp'n at 5; see Def.'s Mem. at 3.³ Nevertheless, the defendant insists that the Court lacks jurisdiction to determine whether the plaintiff's reassignment from OPR to HSI “violated Plaintiff's due process rights,” Compl. ¶ 12, because the CSRA is the “exclusive” system for challenging personnel actions taken against federal employees and “applies to constitutional challenges to...