The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, Timothy Toms, brings this action under the First and Fifth Amendments and the Privileges and Immunities Clause of Article IV of the United States Constitution, the Architect of the Capitol Human Resources Act, 2 U.S.C. § 1831 (2006), and 2 U.S.C. § 60-1(a) and (b) (2006) against defendants Alan Hantman, Richard McSeveney, Arthur McIntye, Edgar Martinez, Gerald Walker and Rebecca Tiscione, named in their personal capacities, and against the Architect of the Capitol, Stephen Ayers, in his official capacity. Currently before the Court is the defendants' Motion to Dismiss Complaint ("Defs.' Mot.") pursuant to Federal Rule of Civil Procedure 12(b)(6), which the plaintiff opposes, Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pl.'s Opp'n").*fn1 For the reasons set forth below, the Court concludes that the defendants' motion should be granted.
Viewing the evidence in the light most favorable to the plaintiff, the facts alleged in the complaint are as follows.
On November 1, 1999, the plaintiff was appointed to a GS-13 auditor position in the Office of the Inspector General of the Office of the Architect of the Capitol ("AOC"). Complaint ("Compl.") ¶ 12. Defendant McIntye, Inspector General of the AOC, was the plaintiff's first-line supervisor, id.¶ 15, and defendant Hantman, then the Architect of the Capitol, was the plaintiff's second-line supervisor, id. In April 2003, the plaintiff "was assigned to [work out of] the 'trailer' located on the grounds of the West Front" of the United States Capitol (the "West Front Trailer"). Id.¶ 41. Tap water was provided to the West Front Trailer, but the plaintiff was not advised "that [it] was not potable and was not to be drunk." Id. ¶ 43. The plaintiff was not made aware that the tap water should not be consumed until July 2003, at which time he had already been drinking the non-potable water for approximately four months. Id.¶ 46. To remedy this situation, the plaintiff requested approval of a "purchase order requisition for bottled water and a cooler for use of the occupants of [the] West Front Trailer." Id. ¶ 48.
"After [a] long delay, on or about January/February 2004, bottled water and a water cooler w[ere] provided [to the plaintiff] and the other occupants of the West Front Trailer." Id. ¶ 52. The bottled water and water cooler were placed in a kitchen area for general use. Id.¶ 53. However, Serena Coleman, Director of the Workforce Planning and Management Section of the Human Resources Department, became "displeas[ed]" by the amount of water consumed by Capitol Police Officers and moved the bottled water and water cooler "into the outer office of the Workforce Planning and Management Section of the West Front Trailer." Id. ¶ 54. This move "depriv[ed] the police officers of [the] potable water and requir[ed] the [p]laintiff to enter the office of the Workplace Planning and Management Section to avail himself of the potable water." Id. ¶ 54. On October 6, 2004, after learning that the Workplace Planning and Management Section would soon move out of the West Front Trailer, the plaintiff moved the bottled water and water cooler into his office in the West Front Trailer. Id. ¶¶ 55-56. Shortly thereafter, the plaintiff "was confronted by an angry, loud and aggressive Director Coleman who forcibly attempted to enter" his office "and retrieve the bottled water and water cooler," id.¶58, but the plaintiff "refused Director Coleman's forcible attempt to enter into his 'office[,]'" id.¶ 59. A Capitol Police Officer then "removed Director Coleman from the area . . . [and] ordered the [p]laintiff to stay within his office and to write a statement respecting the incident." Id.¶ 60. Thereafter, the plaintiff was arrested and charged "with Simple Assault on the person of Director Coleman." Id.¶ 63. After being released following his arrest, the plaintiff was told "not to report to work until further notice[,]" id.¶ 66, and he learned by letter on October 12, 2004, that he had been placed on administrative leave, id.¶ 67.
By letter dated October 24, 2004, the plaintiff's first-line supervisor, defendant McIntye, proposed that the plaintiff be terminated as a result of the incident involving Director Coleman. Id.¶¶ 68-69. On October 26, 2004, the United States Attorney's Office for the District of Columbia "'no papered,'" i.e., declined to prosecute, the criminal charge for which the plaintiff had been arrested. Id. ¶ 72. Three days later, the plaintiff wrote to defendant McSeveney, the Chief Operating Officer of the AOC, informing him that the proposal to terminate the plaintiff's employment was based on erroneous facts and that the criminal charge against him would not be prosecuted. Id. ¶¶ 23, 73-74. Nevertheless, on November 5, 2004, defendant McSeveney agreed with defendant McIntye's proposal to terminate the plaintiff's employment. Id.¶ 75.
The plaintiff then requested an administrative hearing on his termination pursuant to Chapter 752 of the AOC Human Resource Manual, and the hearing was held on February 2, 2005. Id.¶¶ 76, 82. The plaintiff was represented by counsel at the hearing, id.¶¶ 83, 85, and the AOC was represented by defendant Martinez, an AOC attorney, and defendant Walker, the AOC Chief Employee Relations Specialist, id.¶¶ 24-25. At the hearing, the plaintiff had the ability to present his own witnesses and to cross-examine the witnesses called by the AOC. Id. ¶¶ 93-94; Compl., Ex. 1 ("AOC Administrative Hearings: Proposed Terminations, A Guide for AOC Employees" ("AOC Guide")) at 9. The plaintiff's counsel chose to call as his witness the Capitol Police Officer who had arrested the plaintiff, and his attorney cross-examined Director Coleman and defendant McIntye, who were called as witnesses by the AOC. Compl.¶¶ 93-97. The plaintiff's counsel also had the opportunity to present a "closing statement" in "response to the Office's charges and the penalty proposed." Compl., Ex. 1 (AOC Guide) at 9.
According to the plaintiff, "[s]tatements were provided to USCP Police Officers and/or USCP Detectives by the alleged victim and witnesses[,] which [were not] provided [to the plaintiff] prior to the commencement of the administrative hearing on February 2, 2005." Compl. ¶ 87. They were not provided even though "at the commencement of the hearing on February 2, 2005, [the plaintiff's counsel] requested a copy of [these] statements."*fn2 Id.¶ 88. The plaintiff's counsel also requested a copy of the tape recording of the hearing from defendants Walker and Martinez, but it was not provided. Id.¶¶ 85-86. Moreover, the plaintiff did not receive a copy of the Findings of Fact and Recommendations of the AOC Hearing Officer (the "Hearing Officer's report"), even though it also was requested. Id.¶ 101-02.
On February 24, 2005, defendant McSeveney, on behalf of the AOC, sent the plaintiff a letter indicating that his employment with the AOC was to be terminated. Id.¶ 98. The plaintiff received this letter on March 1, 2005, and his termination became effective on March 4, 2005. Id. Subsequent to the administrative hearing, the plaintiff, "by [a] March 10, 2005 letter to [d]efendant Walker and two additional oral requests thereafter," requested a copy of the tape recording of the administrative hearing and a copy of the Hearing Officer's report. Id. ¶ 101. Defendant Walker advised the plaintiff at all times that the tape was unavailable and that he was not entitled to a copy of the report. Id. ¶ 102.
Unsatisfied with the procedures and events leading up to and following his termination, the plaintiff filed a complaint in this Court on October 6, 2005, against then-Architect Hantman and defendant McIntye, along with a number of other employees of the AOC in their personal capacities. See Toms v. Hantman ("Toms I"), No. 05-1981 (D.D.C. Feb. 15, 2007).*fn3 There, the plaintiff brought Bivens actions against the defendants,*fn4 alleging, inter alia, that he had been deprived of his Fifth Amendment right to procedural due process because "'[t]here is no appeal from the [AOC's termination] process, and the hearing officer . . . produced a report which [the plaintiff] has never seen.'" Id. at 9. Judge Friedman dismissed the plaintiff's complaint in its entirety on Feb. 15, 2007, ruling that "[the] plaintiff was afforded procedural due process in this matter. . . . Neither an appeals process nor a final report available to the employee are required for constitutionally ...