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March 30, 1999


The opinion of the court was delivered by: Urbina, District Judge.


Granting in Part and Denying in Part the Defendants' Motion to Dismiss

and Motion for Summary Judgment;

Denying the Plaintiffs' Motion for Partial Summary Judgment.


This case comes before the court on the defendants' motion to dismiss or, in the alternative, for summary judgment. The plaintiffs move for partial summary judgment. For the reasons stated herein, the court grants in part and denies in part the defendants' motion, and denies the plaintiffs' motion. Specifically, the court grants the defendants' motion to dismiss the plaintiffs' claims of a violation of their Fifth Amendment property interests, the unconstitutionality of section 152 of the Omnibus Consolidated Recissions and Appropriations Act of 1996 ("1996 Appropriations Act"), Pub.L. 104-134, § 152, 110 Stat. 1321, 1321-102 (1996), a violation of Plaintiff Kinard's First Amendment rights, and the wrongful termination of the plaintiffs because the plaintiffs have failed to state a claim upon which relief may be granted.*fn1 Additionally, the court grants the defendants' motion to dismiss the plaintiffs' claims of defamation and intentional infliction of emotional distress because the plaintiffs have failed to exhaust their administrative remedies. The court denies the defendants' motion to dismiss or, in the alternative, for summary judgment as to the plaintiffs' claim of a violation of their Fifth Amendment liberty interest. With respect to Plaintiff Sandra Thomas, the court grants the defendants' motion to dismiss her entire action on the basis of res judicata.


All of the plaintiffs in this case held Career Service positions within the government of the District. The plaintiffs all worked for the District's Department of Human Services in the Office of the Controller ("Controller's Office"), except for Plaintiff Mills, who worked for the University of the District of Columbia. At the time of their termination, the plaintiffs held the following positions: Plaintiff Alice Alexis was employed as a Payroll Supervisor, (Pls.' Am. Compl. ¶¶ 4, 6); Plaintiff Anna-Marie Brannic as a Payroll Technician, (Pls.' Am. Compl. ¶ 14); Plaintiff Constance Graham as a Collection Agent, (Pls.' Am. Compl. ¶ 21); Plaintiff Mohammed Hmaey as an Accountant, (Pls.' Am. Compl. ¶ 26); Plaintiff Delores James as a Secretary, (Pls.' Am. Compl. ¶ 31); Plaintiff Hermena Kinard as an Acting Chief, (Pls.' Am. Compl. ¶ 36); Plaintiff Sandra Thomas as an Acting Collection Agent and as an Assistant Supervisor, (Pls.' Am. Comp. ¶ 49); Plaintiff Negussie Timikate as an Accountant, (Pls.' Am. Compl. ¶ 58); and Plaintiff Jasper Mills as a Manager of Treasury Operations (Mills Opp'n to Mot. to Dismiss at 5).*fn2 The total time spent in government service, in one capacity or another, varied from plaintiff to plaintiff, ranging from a low of six years to a high of 24 years of service.

The plaintiffs brought this suit alleging the following seven causes of action: (1) Defendant Williams and the District denied the plaintiffs their Due Process rights and violated their liberty interests as secured by the Fifth Amendment of the United States Constitution by defaming the plaintiffs and terminating the plaintiffs without providing notice and an opportunity to be heard; (2) Defendant Williams and the District violated the plaintiffs' property interest in continued employment (created by the Comprehensive Merit Personnel Act ("CMPA"), D.C.Code Ann. §§ 1-601.1 through 1-637.2 (1992), and protected by the Due Process Clause of the Fifth Amendment of the United States Constitution) by terminating the plaintiffs without cause; additionally, the plaintiffs allege that section 152 of the 1996 Appropriations Act is unconstitutional facially, in its interpretation, and as applied; (3) Defendant Williams and the District violated Plaintiff Kinard's and Plaintiff Thomas's First Amendment right to free speech when they terminated Kinard and Thomas for speaking out on the District's financial position and its hiring practices; (4) the defendants unlawfully terminated Plaintiff Alexis in retaliation for personnel actions she took involving a subordinate employee, who is allegedly related to Defendant Shepherd; (5) Defendant Williams failed to act with requisite prudence, judgment, and discretion in terminating the plaintiffs; (6) in terminating the plaintiffs, Defendant Williams recklessly published false and defamatory statements that caused them emotional, reputational and financial harm; and (7) Defendant Williams's alleged reckless actions in terminating the plaintiffs were tantamount to an intentional infliction of emotional distress upon them.*fn3 The plaintiffs seek compensatory and punitive damages, payment of discontinued pension contributions retroactive to the date of termination, costs and attorneys' fees.


A. Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiffs will prevail on the merits, but instead whether the claimants have properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court may dismiss a complaint for failure to state a claim only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In deciding on such a motion, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiffs. See Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). However, the court need not accept as true the plaintiffs' legal conclusions. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Finally, if the court considers matters outside of the pleadings in ruling upon a Rule 12 motion to dismiss, it must then treat the motion as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(c).

B. Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment sought "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Rule 56(c) mandates summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing a motion for summary judgment may not rely on mere allegations or denials to prevail, but instead must set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Of course, the party moving for summary judgment shoulders the ultimate burden of demonstrating the absence of any genuine issue as to all material facts before a grant of summary judgment can be considered appropriate. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Credibility determinations and the weighing of evidence are functions for the jury, and not for the court ruling on a summary judgment motion. See id. at 255, 106 S.Ct. 2505. Rather, the court must accept the evidence of the nonmovants as true and draw all justifiable inferences in their favor. See id.


A. Claims of Plaintiff Thomas Barred by Res Judicata

Plaintiff Thomas brought suit, as a named plaintiff, in a prior action addressing the lawfulness of the defendants' conduct in terminating her and other similarly-situated District government employees. See District Council 20 v. District of Columbia, Civ. No. 97-0185, 1997 WL 446254 (D.D.C. July 29, 1997), remanded on other grounds, No. 97-7146, 159 F.3d 636 (D.C.Cir. May 14, 1998). The defendants assert that the doctrine of res judicata should bar Plaintiff Thomas from relitigating her claims in this action. The court agrees.

A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. See, e.g., Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). A party may not litigate any further claims based on the same nucleus of facts that gave rise to the prior litigation because it is that nucleus of facts that comprises the cause of action. See Page v. United States, 729 F.2d 818, 820 (D.C.Cir. 1984). "[I]t is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies." Id.

Plaintiff Thomas concedes that the doctrine of res judicata "technically" precludes her from relitigating her claims in this action. (Pls.' Opp'n to Mot. to Dismiss at 3.) The plaintiff asserts, however, that the doctrine should not be applied here because she did not allow herself sufficient time to evaluate her case before joining the other plaintiffs in the District Council 20 action. (Id. at 4.) According to the plaintiff, to bar her from pursuing her claims in this court is to deny her justice and hamper public policy. (Id.)

According to the Supreme Court, however,

  [s]imple justice is achieved when a complex body of
  law developed over a period of years is evenhandedly
  applied. The doctrine of res judicata serves vital
  public interests beyond any individual judge's ad hoc
  determination of the equities in a particular case.
  There is simply no principle of law or equity which
  sanctions the rejection by a federal court of the
  salutary principle of res judicata.

Federated Dept. Stores, 452 U.S. at 401, 101 S.Ct. 2424 (internal quotations omitted).

Several of the legal claims made by Plaintiff Thomas are identical to those considered in District Council 20, and those which differ nevertheless arise from her January 1997 termination. Thus, the legal claims Plaintiff Thomas asserts in the instant case arose from the same nucleus of facts that prompted her prior litigation. Therefore, the court concludes that the doctrine of res judicata bars the plaintiff from pursuing her claims in this action and accordingly grants the defendants' motion to dismiss Plaintiff Thomas's claims in their entirety.

B. Due Process — Liberty Interest

The plaintiffs allege that the defendants violated their Fifth Amendment liberty interests when they terminated and allegedly defamed the plaintiffs in January 1997. According to the plaintiffs, on January 24 Defendant Williams told the press that a number of District employees were losing their jobs because of their laziness, incompetence, bad attitudes, lack of commitment and lack of skills. (Pls.' Am. Compl. ¶ 65.) The plaintiffs assert that these alleged statements were false and imposed a highly injurious "stigma" upon their personal and professional reputations. (Pls.' Am. Compl. ¶ 70.) The plaintiffs contend that the Due Process Clause obligated the defendants to provide the plaintiffs with an appropriate forum in which to challenge the accuracy of the comments. (Pls.' Am. Compl. ¶¶ 65, 70.) Because the court has looked beyond the pleadings in deciding this issue, the defendants' motion will be treated as one for summary judgment. See Fed.R.Civ.P. 12(c).

The Supreme Court has determined that the government's behavior in severing the employer-employee relationship might impermissibly infringe upon an individual's Constitutionally-grounded liberty interest in two distinct ways: either by substantially harming the individual's reputation or essentially foreclosing his career prospects. See Board of Regents v. Roth, 408 U.S. 564, 572-576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, if the government employer makes a charge against the employee that might seriously damage his standing and associations in the community by asserting, for example, "that he had been guilty of dishonesty, or immorality," an actionable claim might arise. Id. at 573, 92 S.Ct. 2701. Similarly, the government would also violate an ...

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