The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs in these consolidated cases are Court Security Officers ("CSOs") who were medically disqualified and then terminated from their positions. As described in great detail in prior opinions, the case has a long and complex factual and legal background. The present matter is before the Court on Defendant John Clark's Motion to Dismiss Plaintiffs' Amended Complaint [Case No. 05-07, Dkt. No. 21] pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion to Partially Dismiss is granted in part and denied in part.
This case was filed on January 4, 2005. The six plaintiffs are CSOs who were terminated from their employment for failure to meet certain medical requirements. The CSOs were employed by private security firms, which in turn contracted with Defendant to provide security services to federal courthouses. Another case with similar facts, legal issues, and parties had been filed in this Court on July 26, 2002. See Int'l Union, United Gov't Security Officers of America v. John Clark, No. 02-CV-1484. On January 4, 2007, the Court granted Plaintiff International Union's Motion to Consolidate the 2002 case with this case. Minute Order (Jan. 4, 2007).*fn1
Before consolidation of the two cases, the six Plaintiffs in this case filed an Amended Complaint [Case No. 05-07, Dkt. No. 3] that contained allegations of discrimination against the United States Marshals Service ("USMS"), and federal contractors MVM Security Services, Inc. ("MVM") and Ares Group Incorporated ("Ares"). The contractors were direct employers of the CSOs. The six CSOs alleged they were fired because of their disabilities, and brought suit under the Fifth Amendment as well as the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Am. Compl. ¶¶ 34-46. Defendant Clark, Director of USMS, filed the present Motion to Dismiss ("Def.'s Mot.") the claims brought against the Marshals Service.
Defendant asks the Court to dismiss the CSOs' claims under Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the plaintiff bears the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction to hear his case. See Jones v. Exec. Office of President, 167 F. Supp. 2d 10, 13 (D.D.C. 2001). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complaint; however, such allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003)(citations and quotations omitted). The Court may rest its decision on the Court's own resolution of disputed facts. Id.
To survive a motion to dismiss under Rule 12(b)(6),*fn2 a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs success . . . must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation marks and citations omitted).
Defendant Clark seeks dismissal of the claims brought by five of the six CSOs under Section 501 of the Rehabilitation Act, arguing that these five Plaintiffs failed to exhaust their administrative remedies before filing this lawsuit, and therefore the Court has no subject matter jurisdiction over the dispute. Def.'s Mot. at 3. Second, Defendant takes the position that Plaintiffs, as federal employees, do not enjoy protection under Section 501 of the Rehabilitation Act and therefore the CSOs fail to state a claim upon which relief can be granted. Defendant also maintains that Plaintiffs' Fifth Amendment challenge to their termination is preempted by statute and, therefore, also fails to state a claim. Id.
A. Defendant Is Entitled to Judgment on the Pleadings on the Section 501 Claims for the Five Plaintiffs Who Failed to Exhaust Their Administrative Remedies.
Before proceeding to the analysis of the exhaustion issue, it is useful to frame the question by reviewing the different procedural ...