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Babb v. Chertoff

May 16, 2006

TERRY M. BABB AND FEDERAL AIR MARSHALS ASSOCIATION, INC., PLAINTIFFS,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AND THOMAS D. QUINN, DIRECTOR, FEDERAL AIR MARSHAL SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,

MEMORANDUM OPINION

This matter comes before the Court on the defendants' Motion [9] to Dismiss. Upon consideration of defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be granted. The Court agrees with defendants' contention that this Court lacks jurisdiction over Counts I and III and that plaintiffs have failed to state any claim upon which relief may be granted in Count

II. BACKGROUND

In this case, the Federal Air Marshals Association ("FAMA")*fn1 and its President Terry Babb ("Babb") raise several First Amendment claims against the Federal Air Marshal Service ("FAMS") and the Department of Homeland Security ("DHS"). Babb is employed as a Civilian Air Security Specialist in the Federal Air Marshal Service. Babb brings this action as a result of injuries suffered by him during defendants' investigation into alleged employee disclosures of purported classified information to members of the media. FAMA joined on behalf of its members who were also questioned during the investigation and who were compelled to disclose non-job related information about FAMA. Plaintiffs also allege that FAMS Policy Directive ("ADM 3700") is facially unconstitutional because it impermissibly restricts the free speech rights of FAMA members.

On April 18, 2005, more than one month prior to the filing of the instant lawsuit, the Bureau of Immigration and Customs Enforcement ("ICE"), which was the supervising agency for FAMS, distributed to all ICE employees an Interim Table of Offenses and Penalties for Non-Bargaining Unit Employees*fn2 -- a group that includes FAMS employees. (SeeTsungu Decl.) The stated intent of the table was to "provide guidance to employees regarding unacceptable behavior, and the consequences for that behavior" and "to bring fairness and consistency of application of those standards to non-bargaining unit employees in all programs." Id.

Approximately three months later on July 26, 2005, the Director of FAMS sent out a memorandum to FAMS employees, titled OMS 3700, that eliminated any potential doubt that employees could speak out on matters of public concern. (Defs.' Mot, Ex. 1, Att. 2, OMS 3700.) The stated purpose of the memorandum was to "establish[] the standards of behavior required of all Federal Air Marshal Service (FAMS) employees." (Id. at 1.) The published amendments provided that nothing "shall be interpreted as prohibiting legally protected disclosures, including disclosures to Congress, under 5 U.S.C. § 2302 or other Whistleblower protection laws or regulations." (Id. at ¶ 7(i).) Further, the message provided that "an employee has the right to disclose any information that the employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, unless such disclosure is prohibited by law, valid federal regulation or executive order." (Id. at ¶ 12(f).)

Finally, it should be noted that on October 1, 2005, authority over FAMS was transferred to the Transportation Security Administration ("TSA"). TSA's employee policies also permit employees to comment on matters of public concern. (SeeEx. 3, Ross Decl., TSA Employee Policy ¶¶ 4, 10, 12.)

DISCUSSION

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiffs bear the burden of establishing that the Court has jurisdiction. In turn, the Court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority," See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001), which includes the obligation to determine whether the plaintiffs' claims are moot. See Mine Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994). A court may consider material other than the allegations of the complaint in determining whether it has jurisdiction, but must accept the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005).

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Conley v. Gibson, 355 U.S. 41, 45-46, (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). However, the Court need not accept asserted inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. The Court will dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.

B. Plaintiffs' Motion to Amend Complaint

On October 6, 2005 defendants filed their motion to dismiss. ADM 3700 was repealed on July 26, 2005, and replaced with OMS 3700. On December 12, 2005 plaintiffs filed a "Response in Opposition to Defendants' Motion to Dismiss and/or in the Alternative Motion to Amend the Complaint."*fn3 Plaintiffs' motion in the alternative to amend their complaint to challenge OMS 3700 is without merit. As an initial matter, Local Rule of Civil Procedure 15.1 requires that a motion for leave to file an amended pleading "be accompanied by an original of the proposed pleading as amended." Plaintiffs have not submitted the proposed pleading with their motion. Accordingly, plaintiffs' ...


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