The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Currently pending before the Court is the Renewed Motion to Dismiss Count One of Plaintiffs' Third Amended Complaint brought by Defendant, the District of Columbia (hereinafter the "District"). On January 16, 2007, the Court issued a Memorandum Opinion and Order granting the District's motion to dismiss Claims Three, Four, and Five of the Third Amended Complaint. Lightfoot v. District of Columbia, Civil Action No. 01-1484 (D.D.C. Jan. 16, 2007) (hereinafter "Slip Op."). In that same Memorandum Opinion and Order, the Court denied without prejudice the District's motion to dismiss Claim One of the Third Amended Complaint in order to allow the parties the opportunity to address the application of United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed. 2d. 697 (1987), to that Claim.Upon a searching review of the District's Renewed Motion to Dismiss, which addresses the application of Salerno to Claim One of the Third Amended Complaint, Plaintiffs' Memorandum in Opposition, the District's Reply, the relevant case law, and the entire record herein, the Court concludes that Plaintiffs have not met their "heavy burden" under Salerno of establishing that "no set of circumstances exists under which the [Comprehensive Merit Personnel Act of 1978 ("CMPA")] would be valid." Salerno, 481 U.S. at 745, 107 S.Ct. 2095. As such, the Court shall dismiss Claim One of the Third Amended Complaint.
This case has been the subject of numerous opinions and orders of this Court as well as of the Court of Appeals for the District of Columbia Circuit. As such, the Court shall recite herein only those facts that are relevant to the motion to dismiss currently before the Court and shall assume familiarity with the factual background of this case.*fn1 Plaintiffs, a class of former District of Columbia employees, challenge the policies and procedures applied to terminate, suspend, and modify their disability compensation benefits pursuant to Title 23 of the District of Columbia Comprehensive Merit Personnel Act ("CMPA") of 1978, as it existed prior to April 5, 2005.
Plaintiffs' Third Amended Complaint includes eight claims. Claim One mounts a facial challenge to the CMPA, alleging that the statute violates the Due Process Clause of the Fifth Amendment to the United States Constitution because it does not afford "beneficiaries adequate and timely notice and opportunity to demonstrate a continuing entitlement to benefits." Third Am. Compl. (hereinafter "TAC") ¶¶ 131-132. Claim Two alleges that, as applied, the CMPA violates the Due Process Clause. Id. ¶¶ 133-134. Claim Three alleges that the notices of termination, suspension, or modification issued by Defendants violate the Due Process Clause because they inadequately and inaccurately advise beneficiaries of various procedural rights, including the right to appeal, right to review their case file, the nature of reconsideration review, and right to retain legal counsel. Id. ¶¶ 135-136. Claim Four alleges that the notices issued by Defendants violate the Due Process Clause because they provide an insufficient and inadequate explanation of the basis for the termination, suspension, or modification, by failing to include the rationale for the decision, a statement of facts, and the evidence and legal standard relied upon. Id. ¶¶ 137-138. Claim Five alleges that Defendants failed to engage in reasoned decision-making, in violation of the Due Process Clause. Id. ¶¶ 139-140. Claim Six alleges that the Defendant's failure to adopt written standards governing the termination, suspension, or modification of benefits violates the Due Process Clause. Id. ¶¶ 141-142. Claim Seven alleges that the District's implicit adoption of unwritten practices without public notice and comment violates the District of Columbia Administrative Procedure Act. Id. ¶¶ 143-144. Finally, Claim Eight alleges that Defendant CLW/CDM materially breached its contract with the District, to which Plaintiffs are a third party beneficiary. Id. ¶¶ 145-146.
In its September 24, 2004 Memorandum Opinion and Order, this Court granted Plaintiffs' motion for partial summary judgment as to Claims Six and Seven. The Court subsequently denied the District's motion for reconsideration in its January 28, 2005 Memorandum Opinion and Order. Lightfoot v. District of Columbia, 355 F. Supp. 2d 414 (D.D.C. 2005). On appeal, the D.C. Circuit reversed this Court's grant of summary judgment as to Claim Six, and remanded Claim Seven -- the DCAPA claim -- back to this Court for reconsideration of this Court's decision to exercise supplemental jurisdiction over that claim. Lightfoot Appeal at 397-99. In addition to the per curiam opinion, Judge Laurence H. Silberman filed a concurring opinion in which he wrote "separately to comment more fully on [this Court's] disposition of claim six."
Following the remand by the D.C. Circuit, this Court directed the parties to each submit a brief statement setting forth the claims that they believed survived the D.C. Circuit's opinion. Lightfoot v. District of Columbia, Civil Action No. 01-1484 (D.D.C. Aug. 24, 2006) (Minute Entry Order). After receiving each party's submission, the Court held a status conference in this matter on October 12, 2006, at which the Court did not rule on whether any viable claims remained in this action, but directed the parties to assume for purposes of discovery that Claim Two remained viable, and indicated that it was not inclined to exercise supplemental jurisdiction over Claim Seven. See Lightfoot v. District of Columbia, Civil Action No. 01-1484 (D.D.C. Oct. 12, 2006) (Order). The District subsequently filed a motion to dismiss Claims, One, Three, Four, and Five of the Third Amended Complaint. In its January 16, 2007 Memorandum Opinion and Order, the Court granted the District's motion to dismiss as to Claims Three, Four, and Five of the Third Amended Complaint. Slip Op. at 12-22.
As to Claim One, the Court indicated that the D.C. Circuit's conclusion with respect to Claim Six that "the CMPA and D.C. court of appeals decisions themselves provide ample standards," Lightfoot Appeal, 448 F.3d at 398, did not appear to preclude Claim One of the Third Amended Complaint. Slip Op. at 10-11. However, the Court noted that Plaintiffs might not be able to maintain Claim One, in which Plaintiffs mount a facial challenge to the CMPA, based on the doctrine arising out of United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed. 2d 697 (1985), which provides that "[a] facial challenge to a legislative Act . . . must establish that no circumstances exist under which the Act would be valid." Slip Op. at 11-12 (citing Salerno, 481 U.S. at 745, 107 S.Ct. 2095). In light of the fact that the Court identified the Salerno doctrine during the course of its own research, such that the parties had not had the opportunity to address its application to Claim One, the Court denied the District's motion to dismiss Claim One without prejudice in order to allow the parties to brief the issue of Salerno's application to Claim One.
The District filed its Renewed Motion to Dismiss Claim One of Plaintiffs' Third Amended Complaint on February 23, 2007. Plaintiffs filed their Memorandum in Opposition to the District's renewed motion to dismiss on March 9, 2007, and the District filed its Reply on March 16, 2007. Thereafter, on March 23, 2007, Plaintiffs filed a Motion for Leave to File a Sur-Reply in opposition to the District's renewed motion to dismiss, along with their proposed Sur-Reply. On March 28, 2007, the District responded to Plaintiffs' Motion for Leave to File a Sur-Reply by indicating that the District would provide a substantive response to Plaintiffs' proposed Sur-Reply in the event that the Court granted Plaintiffs leave to file that Sur-Reply.
In evaluating a motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6), "the Court must construe the complaint in the light most favorable to plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations." In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). While the Court must construe the complaint in the Plaintiff's favor, it "need not accept inferences drawn by [the] plaintif[f] if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, the Court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). The Court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control).
Claim One of the Third Amended Complaint alleges that, on its face, the CMPA violates the Due Process Clause of the Fifth Amendment to the United States Constitution because it does not afford "beneficiaries adequate and timely notice and opportunity to demonstrate a continuing entitlement to benefits." TAC ¶¶ 131-132. The District's renewed motion to dismiss argues that Claim One must be dismissed pursuant to the standard articulated in Salerno because the "procedures used by the District to terminate, suspend, or modify disability benefits owing to a change in a government employee's condition comport with due process." Renew. Mot. to Dismiss at 3. As Plaintiffs correctly argue in their Opposition, the District's renewed motion to dismiss somewhat misses the mark because the District attempts to defend against Plaintiffs' facial challenge to the CMPA by pointing to procedures allegedly employed by the District in applying the CMPA. While the District's arguments may be germane to Claim Two of the Third Amended Complaint -- Plaintiffs' claim that, as applied, the CMPA violates the Due Process Clause, see TAC ¶¶ 133-134 -- the procedures that may have been employed in applying the CMPA are not relevant to Plaintiffs' claim that the CMPA violates the Due Process Clause on its face. Nevertheless, the District is correct that, under Salerno, ...