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Fraternal Order of Police v. Gates

June 13, 2008

FRATERNAL ORDER OF POLICE, D.C. LODGE 1, DEFENSE PROTECTIVE SERVICES LABOR COMMITTEE, INC., PLAINTIFF,
v.
ROBERT M. GATES, SECRETARY OF THE DEPARTMENT OF DEFENSE, DEFENDANT.



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

MEMORANDUM OPINION

Defendant Robert M. Gates, in his official capacity as Secretary of the Department of Defense, moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint for failure to state a claim. See Dkt. # 8. The Motion to Dismiss will be granted.

I. BACKGROUND

Plaintiff Fraternal Order of Police, D.C. Lodge 1, Defense Protective Services Labor Committee, Inc. ("Plaintiff" or "FOP"), is the exclusive representative of police officers employed by the Department of Defense, Pentagon Force Protection Agency ("PFPA" or "Defendant"), concerning personnel policies and practices and other conditions of employment. Compl. ¶¶ 6, 10. The PFPA is an agency within the Department of Defense and is subject to the authority and control of Secretary Gates. Id. ¶ 8. The FOP brings this suit on behalf of certain of its members who have filed grievances with the Defendant.

The FOP and Defendant are parties to a collective bargaining agreement (the "CBA"), which provides a grievance and arbitration procedure for the resolution of disputes. Compl. ¶¶ 21-22, Ex. A. Article 50 of the CBA provides:

A grievance is any complaint by any employee concerning any matter relating to the employment of the employee; or by the Union concerning any matter relating to the employment of any unit employee; or by any employee, the Union or Employer concerning:

(a) The effect or interpretation, or claim of breach of this agreement; or (b) Any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment.

Ex. A, Section 50.01. Article 51 of the CBA provides:

Within twenty (20) days following a receipt of a decision at Step 3,*fn1 the party who initiated the grievance will notify the other party if it intends to submit the matter to arbitration. Within seven (7) days after notification, the moving party will request a panel of arbitrators from the Federal Mediation and Conciliation Service (FMCS) or any other source. Within fourteen (14) days from receiving a list of arbitrators, the Parties will select an arbitrator. If the panel is unacceptable to either party one additional panel may be requested. If the Parties cannot agree upon an arbitrator, they will strike one (1) name from the list alternately and then repeat this procedure until only one (1) name remains. The person whose name remains will be selected as the arbitrator. The party striking the first name from the list in each case will be chosen by a coin toss or otherwise as agreed.

Id., Section 51.01.

Plaintiff alleges that the FOP, acting on behalf of certain members, lodged various grievances with the Defendant, that as part of this grievance process, these members validly invoked arbitration, and that Defendant refused to participate in arbitration. Compl. ¶¶ 23-28. The fifteen grievances at issue involve, inter alia, performance appraisals and disciplinary actions. Id. ¶ 24. "For more than a year in some cases and up to three years in others, the FOP has attempted to have the [D]efendant meet with the [FOP] and select an arbitrator from the respective FMCS lists. The [D]efendant refuses to meet with the FOP and select an arbitrator from the respective FMCS lists." Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") [Dkt. # 11] at 3-4 (citing Compl. ¶¶ 25-26).

Plaintiff claims that Defendant's non-participation in arbitration violates the members' constitutional and statutory rights under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. Plaintiffs seek declaratory relief and for this Court to "[e]njoin the defendant from further failure and refusal from meeting with the FOP in a timely manner and selecting an arbitrator." See Compl. at 9 (Prayer for Relief). Defendant argues that Plaintiff failed to exhaust its administrative remedies and the case should be dismissed for failure to state a claim.

II. LEGAL STANDARDS

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. A sufficient complaint "contains a short and plain statement of the claim showing that the pleader is entitled to relief" enough "to give a defendant fair notice of the claims against him." Ciralsky v. CIA, 355 F.3d 661, 668-70 (D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, ...


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