The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Proceeding pro se, plaintiff Roy L. Pearson, Jr., brings this lawsuit against the District of Columbia ("the District"), Hon. Tyrone T. Butler, Chief Administrative Law Judge of the Office of Administrative Hearings ("Chief ALJ Butler"), and four members of the Commission on Selection and Tenure of Administrative Law Judges of the Office of Administrative Hearings (the "Commission") -- Peter M. Willner; Hon. Robert R. Rigsby, Associate Judge for the D.C. Superior Court; Hon. Anita Josey-Herring, Associate Judge for the D.C. Superior Court; and George C. Valentine, Deputy Attorney General for the District (collectively, "the Commission Members").
Before the Court are defendants' renewed motion to dismiss, or alternatively, for summary judgment (Dkt. No. 16) and plaintiff's opposition thereto (Dkt. No. 23); plaintiff's motion for expedited ruling, motion for partial summary judgment on Count III of the amended complaint, and motion for preliminary injunction (Dkt. No. 26) and defendants' opposition thereto (Dkt. No. 29). For the reasons stated below, the Court will grant the motion to dismiss Counts I, II, and III and will decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims (Counts IV and V).
A case must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir.1995).
However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "Something stated as fact does not make it fact." Herbage v. Meese, 747 F. Supp. 60, 65 (D.D.C. 1990), aff'd without op., 946 F.2d 1564 (D.C. Cir. 1991). "Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276; see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (explaining that courts need not consider wholly conclusory statements for which no supporting evidence is offered); Herbage, 747 F. Supp. at 65 ("A plaintiff's bare conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted for purposes of a motion to dismiss.") (internal quotation marks omitted).
On a motion to dismiss, the Court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), or documents "upon which the plaintiff's complaint necessarily relies" even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss. Hinton v. Corrections Corp. of Am., __ F. Supp.2d __, 2009 WL 1636100, at *1 (D.D.C. 2009) (internal quotation omitted); see also Marshall v. Honeywell Technology Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C.2008) ("[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion [to dismiss] to one for summary judgment.") (internal quotation and citation omitted).*fn1
In this case although plaintiff is proceeding pro se, he is a lawyer with a law degree from Northwestern University Law School and nearly thirty years of legal experience, including twenty-five years of litigation experience for the D.C. Neighborhood Legal Services Program and two years of service as an administrative law judge. He therefore cannot be heard to complain that he should receive the same treatment as a pro se litigant. Moreover, even a "pro se complaint, like any other, must present a claim upon which relief can be granted by the court." Henthorn v. Dept. of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994).
Plaintiff filed this action against the District, Chief ALJ Butler, and the Commission Members for damages and declaratory and injunctive relief, claiming, inter alia, that the Commission's decision not to reappoint him to a ten-year term of service as an Administrative Law Judge ("ALJ") violated his constitutional and statutory rights to report his supervisors' misconduct and to file private lawsuits without fear of retaliation.
I. Laws Governing the Selection and Tenure of ALJs
The Office of Administrative Hearings Establishment Act ("OAH Act"), D.C. Law. 14-76, 48 D.C. Reg. 11442 (effective March 6, 2002), codified as amended at D.C. CODE § 2- 1831.01 et seq., established the Commission on Selection and Tenure of Administrative Law Judges of the Office of Administrative Hearings.*fn2 See D.C. CODE § 2-1831.06. The Commission has "final authority to appoint, reappoint, discipline, and remove Administrative Law Judges." Id. at § 2-1831.06(b). The Commission is also empowered to "amend or repeal, in whole or in part, or may add to" the rules "govern[ing] the process of selecting Administrative Law Judges." Id. at §§ 2-1831.11(b), (d).
Eligible and qualified ALJs are appointed, after an application and interview process, by an affirmative vote by a majority of the voting members of the Commission. D.C. CODE § 2- 1831.08(b); 6 D.C. CODE MUN. REGS. § 3701. The Commission is also charged with determining whether an ALJ seeking reappointment "has satisfactorily performed the responsibilities of his or her office and is likely to continue to do so." 6 D.C. CODE MUN. REGS. § 3705.21. In doing so, the Commission "may seek any information concerning an applicant that will assist it in determining whether the applicant satisfies any of the standards of this Chapter." Id. at § 3703.7; see also D.C. CODE § 3703.8 ("No person may be appointed or re-appointed to any term as an Administrative Law Judge who fails to provide any necessary release or fails to cooperate in any other way with the efforts of the Commission or any of its designees to obtain any of the information described in section 3703.7.").
Under the applicable regulations, the Commission must provide the ALJ seeking reappointment an opportunity to "appear and be heard at the meeting" provided that he or she makes a timely request. 6 D.C. CODE MUN. REGS. § 3705.19. "In its discretion, the Commission may permit other persons to testify at the meeting, either in support of, or in opposition to, the request for reappointment." Id. "The Commission's decision on whether to reappoint the Administrative Law Judge shall be final, and a decision not to reappoint an Administrative Law Judge shall not be deemed to be disciplinary action." Id. at § 3705.23.
II. Plaintiff's Initial Term at OAH
On March 29, 2005, plaintiff was appointed to an initial term of office as an ALJ at the Office of Administrative Hearings ("OAH"). His initial term began on May 2, 2005, and was set to expire two years later, on May 2, 2007.
Within his first few weeks in office, plaintiff began expressing discontent with OAH's operating procedures.*fn3 On June 20, 2005, plaintiff wrote and distributed to Chief ALJ Butler and his fellow ALJs a nineteen-page memorandum questioning OAH's use of a "peer review" system. (Amd. Compl. ¶ 95; Defs.' Ex. 2.) According to plaintiff, the peer review system, whereby senior ALJs review and comment upon other ALJs' opinions, "appeared to violate the OAH Act, the D.C. Administrative Procedures Act and the OAH Code of Judicial Ethics." (Amd. Compl. ¶ 95.)*fn4
On July 18, 2005, after becoming "increasingly frustrated in [his] efforts to settle in and to begin making a meaningful contribution towards achieving OAH's mission," plaintiff sent a lengthy e-mail to the Commission, requesting that it provide an advisory ethical opinion on the peer review process. (Id. ¶¶ 98-99; Defs.' Ex. 3.) He also sent the Commission a copy of his nineteen-page June 2005 memorandum challenging the peer review system. (Amd. Compl. ¶ 99.) The Commission ultimately declined to take any action. (Id. ¶ 100.)
On July 21, 2005, plaintiff sent a letter to the Mayor regarding defendant Chief ALJ Butler. (Amd. Compl. ¶ 113;Defs.' Ex. 4.) In the letter, plaintiff asserted that Chief ALJ Butler had engaged in "unprofessional, unethical and threatening conduct" and had violated the D.C. Whistleblower Act.*fn5 Plaintiff requested an inquiry into whether good cause existed for Chief ALJ Butler's removal. The Mayor's office ultimately declined to take action against Chief ALJ Butler.*fn6 (See Defs.' Ex. 5.)
On February 13, 2006, plaintiff, still displeased with internal operations at OAH, provided oral and written testimony to the Judiciary Committee of the D.C. Council on "Proposed Amendments to Clarify and Strengthen Decisional Independence for Administrative Law Judges in 'the Office of Administrative Hearings Establishment Act of 2001.'" (Amd. Compl. ¶ 101; Defs.' Ex. 6 at 1.) Plaintiff testified that a "secret and misnamed 'peer review' system" existed at OAH that, in his opinion, violated the law. (Amd. Compl. ¶ 102.)
III. Plaintiff's Reappointment Proceedings
On November 1, 2006, plaintiff submitted a statement to the Commission requesting reappointment to a ten-year term as an ALJ to begin on May 2, 2007. (Id. ¶ 142; Defs.' Ex. 7; see also 6 D.C. CODE MUN. REGS. § 3705.) The Commission published notice of plaintiff's statement in the D.C. Register and sought comments on plaintiff's reappointment. See 53 D.C. REG. 9265 (Nov. 10, 2006).
On March 2, 2007, as required by law, Chief ALJ Butler submitted materials to the Commission regarding plaintiff's suitability for reappointment. (Amd. Compl. ¶¶ 146, 149; Defs.' Ex. 8; see also D.C. CODE § 2-1831.10(b); 6 D.C. CODE MUN. REGS. § 3705.4.) At that time, Chief ALJ Butler indicated that he did "not oppose" the reappointment of plaintiff, but he noted some areas of concern. (Defs.' Ex. 8A at 1-2 (noting "recent complaints from litigants concerning [plaintiff's] judicial demeanor during hearings, and of inconsistencies in legal analyses," stating plaintiff had "some significant challenges transitioning to the environment . . particularly with regard to the tonality of his communications and his relationships with certain of his OAH colleagues," and stating plaintiff's performance evaluation revealed needed improvement in "judicial temperament" and "teamwork").
On March 8, 2007, after the Commission asked Chief ALJ Butler to clarify whether he affirmatively supported plaintiff's reappointment, Chief ALJ Butler stated that he would recommend plaintiff for reappointment "[b]ecause I believe that [plaintiff] has demonstrated a willingness to attempt to address [my] concerns going forward." (Defs.' Ex. 9 at 1; Amd. Compl. ¶ 149.)
The following day, on March 9, 2007, plaintiff sent a global e-mail to all ALJs at OAH encouraging them to "speak truth to power" while "compil[ing] a record" that will "make it difficult for CJ Butler to knife [them]."*fn7 (Amd. Compl. ¶¶ 151-52; Defs.' Ex. 12 at 2.)
The Commission requested supplemental information from Chief ALJ Butler regarding his initial concerns about plaintiff's reappointment. In response, on March 21, 2007, Chief ALJ Butler submitted additional materials. (Amd. Compl. ¶ 158;Defs.' Ex. 10.)
In April and May 2007, a private lawsuit filed by plaintiff two years earlier in D.C. Superior Court began to attract national attention and criticism. (Amd. Compl. ¶ 171.) In that case, plaintiff sought approximately $65 million dollars in damages relating to a pair of pants that had been allegedly misplaced by a small dry cleaners establishment in Washington, DC. See Pearson v. Chung et al., Dkt. No. 05 CA 4302.
On or about April 19, 2007, plaintiff submitted a fifteen-page written response to the Commission, addressing Chief ALJ Butler's March 21 submission. (Amd. Compl. ¶ 159; Defs.' Ex. 11.)
Members of the Commission met with plaintiff on April 24, 27, and 30, 2007, to discuss his possible reappointment. (Amd. Compl. ¶¶ 160-170.) At the April 27 meeting, plaintiff stated that he would apologize to the ALJs for sending the March 9, 2007 e-mail, which he said "lapsed back into 'unnecessary and derogatory references to the Chief Judge'" and evidenced "poor judgment and a lack of civility." (Id. at ¶ 168.) At the April 30 meeting, plaintiff acknowledged that he "could have made . . . other choices in his communications with his colleagues and in his letter to the Mayor about CJ Butler." (Id. at ¶ 167.)*fn8 Plaintiff agreed to extend a public apology to Chief ALJ "for the tone of certain communications in 2005 and an email [he] sent in 2007." (Defs.' Ex. at 14 at 3.)
On May 2, 2007, plaintiff's initial two-year term expired. On that day, he was notified that the Commission had not yet reached its decision, and that pursuant to 6 D.C. CODE MUN. REGS. § 3705.26, he would remain at OAH at his same salary grade and step but would receive non-judicial assignments as determined by the Chief Judge's office. (Amd. Compl. ¶¶ 173-74.)
On May 22, 2007, Chief ALJ Butler made an additional submission to the Commission and recommended that plaintiff not be reappointed. (Id. at ...