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Keller v. Embassy of the United States of America

November 28, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


After a career with the United States Army, David Keller was employed by the United States Department of State as a janitor at the American Embassy in Berlin, Germany. He worked from July 17, 2000 until March 8, 2004, when he was terminated. In this venue, he asserts claims under 42 U.S.C. §§ 1983 and 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; and the Fifth Amendment to the Constitution. The United States moves to dismiss, or for summary judgment, on all but the Fifth Amendment claim(s), and to dismiss all named individual Defendants*fn1 in their individual, non-official capacity for lack of service. Having considered all the papers and the applicable law, the Court will grant the motion to dismiss all but the Fifth Amendment claim(s).


Mr. Keller is an African American male who retired from the U.S. Army and became a janitor at the U.S. Embassy in Berlin in July 2000. Amended Complaint ("Am. Compl.") at 3, 6. At all times leading up to his termination on March 8, 2004, he worked as a janitor in the Embassy. Id. at 3. Mr. Keller contends that State Department Document Number 2004STATE122732 falsely states:

On October 5, 2003, Mr. Keller assumed his new job as a doorman at the Embassy.

Prior to beginning his new assignment, Mr. Keller was informed that he must serve a six-month probationary period after which an interim performance report would be issued. Mr. Keller was also informed that to continue in the doorman position, he must receive an overall assessment of "fully successful" or better on the interim performance rating on February 24, 2004.

Plaintiff's Motion to Deny Defendant's [sic] Partial Motion to Dismiss or in the Alternative for Summary Judgment ("Pl.'s Opp.") at 2. Mr. Keller asserts that he never worked as anything but a janitor. Id. He also contends that the Department of State entered into a Personnel Service Agreement with him on October 19, 2003. Id. According to Mr. Keller, that Agreement provided that the terms would be governed by German law. Id. at 3.

Mr. Keller was terminated effective March 8, 2004, allegedly because he stole from another employee. Am. Compl. at 4-5. Mr. Keller denies any wrongdoing. Id. Prior to termination, Mr. Keller was not given notice or any opportunity to be heard, purportedly because his personnel file inaccurately indicated that he was a probationary employee. Id. He appealed his termination to the German Labor Court, which dismissed the case, finding that it lacked the authority to reinstate Mr. Keller because his security clearance and classified status had been rescinded. Id. at 5.

On January 19, 2006, James Onusko of The Department of State advised Mr. Keller that he had no right to appeal the revocation of his security clearance. Id. This revocation of his security clearance without an opportunity to be heard is the basis for the alleged violation of the Fifth Amendment. This claim is not part of the instant Motion to Dismiss.

Mr. Keller is married to a Caucasian German native. Id. at 6. He asserts that James Shawn Hardy, Janitorial Team Leader, harassed and intimidated him on numerous occasions on the basis of his race and his Caucasian German wife. Id.


Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). Because "subject-matter jurisdiction is an 'Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment]to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). The court must treat the complaint's factual allegations - including mixed questions of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor, Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003), and the facts alleged "must be enough to raise a right to relief above the speculative level," Twombly, 127 S.Ct. at 1965. But the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).In deciding a 12(b)(6) motion, the court may consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial ...

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