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Jesse Porter, et al v. United States Capitol Police Board

September 20, 2011

JESSE PORTER, ET AL.,
PLAINTIFFS,
v.
UNITED STATES CAPITOL POLICE BOARD,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiffs are nine officers in the Library of Congress Police who were transferred to the U.S. Capitol Police pursuant Congress's merging of the two forces.*fn1 Under this merger, LOC police who met certain requirements were transferred to the USCP as officers. All other LOC police, including Plaintiffs, were transferred as civilians. Plaintiffs filed this suit against the U.S. Capitol Police Board, alleging that the merger unlawfully stripped them of their police powers on account of their age. In addition, Plaintiffs contend that the Act consolidating the LOC and Capitol police forces violates their equal-protection rights because it has a disparate impact on black officers.

Defendant has now filed a Motion to Dismiss or, in the alternative, for Summary Judgment. As Plaintiffs' claims fail for both procedural and substantive reasons, the Court will grant the Motion.

I.Background

A. The "Merger Act"

In 2008, Congress enacted the U.S. Capitol Police and Library of Congress Police Merger Implementation Act ("Merger Act"), Pub. L. No. 110-178, 121 Stat. 2546 (2008). The Act incorporated the LOC police into the USCP in order to enhance security in and around the U.S. Capitol. Id. at §§ 2(a)(1)-(2); see also U.S. General Accounting Office, GAO-02-792R, U.S. Capitol Police Merger Review (2002), at 4. According to the GAO analysis, merging the LOC police with the USCP would improve security on the U.S. Capitol complex by facilitating better coordination of police activities, providing centralized intelligence, developing consistent responses to threats and emergencies, and allowing flexibility in staffing. See GAO Report at 4.

In implementing the merger, Congress had to reconcile the different retirement systems of the LOC police and the USCP. While there is no mandatory retirement age for LOC police, USCP officers must retire when they "become[] 57 years of age or complete[] 20 years of service if then over that age." 5 U.S.C. § 8335(c). The USCP Board may exempt certain officers from mandatory retirement until age 60 if "the public interest so requires." Id. USCP officers who have completed 20 years of eligible federal service by the mandatory retirement age are entitled to retirement benefits comparable to other federal law-enforcement officers. See 5 U.S.C. § 8336(m); GAO Report at 3. By contrast, LOC police receive standard federal retirement benefits.

5 U.S.C. §§ 8336(b), 8412(b); GAO Report at 3.

Congress chose to deal with the variation in the LOC police and USCP retirement policies by transferring LOC police who met certain eligibility requirements to the USCP as officers and transferring the remaining LOC police to the USCP as civilian employees. See Merger Act, §§ 2(b)(1)(A)-(B). More specifically, members of the LOC police who were set to complete 20 years of federal law-enforcement service by the age of 60 (and who met other eligibility requirements) would be transferred to the USCP as officers. Id. § 2(b)(1)(A). Upon transfer, they would be subject to the USCP's mandatory retirement provisions, but would accrue law-enforcement retirement benefits, rather than the standard federal retirement benefits they had accrued as LOC police. See id. § 2(b)(3)(B); 5 U.S.C. §§ 8336(b), 8336(m), 8412(b); see also H.R. Rep. No. 110-470, pt. 1, at 2 (2007). On the other hand, members of the LOC police who would not have 20 years of service by age 60, or who would otherwise not qualify to be a USCP officer, would be transferred to the USCP as civilians. See Merger Act §§ 2(b)(1)(B). As such, they would not be subject to a mandatory retirement age and would still be eligible for USCP civilian retirement benefits. See 5 U.S.C. § 8336(b); Merger Act § 2(b)(2).

B. Plaintiffs' Claims

According to the Amended Complaint, which must be presumed true for purposes of this Motion, Plaintiffs were formerly members of the LOC police who were transferred to the USCP as civilians on October 11, 2009. Am. Compl., ¶ 41. Count I alleges that the U.S. Capitol Police Board unlawfully discriminated against Plaintiffs based on their age by transferring them to the USCP as civilians when younger members of the LOC police were transferred as officers. Id., ¶ 44. In light of this, Plaintiffs assert that they were "stripped of their police powers" on account of their age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633(a). Id., ¶¶ 41-42.

Plaintiffs further allege in Count II that the Merger Act is unconstitutional as applied because it discriminates against black officers. As best the Court can discern from the somewhat tangled Complaint, Plaintiffs claim that transferring LOC police, who are predominantly black, to the USCP as civilians has a racially discriminatory impact. Id., ¶¶ 50, 52-54. Because Plaintiffs' transfer as civilians allegedly denied them "the opportunity for employment, promotion, and advancement as sworn officers based on race," they contend their transfer violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution by virtue of the Fifth Amendment Due Process Clause. Id., ¶ 50, 56. In addition, they allege that Defendant's support for the Merger Act has a racially discriminatory impact in violation of the Constitution. Id. at ¶ 54.

Six of the Plaintiffs in this action - Perry, Rovillard, Myers, Morris, Frazier, and Caul - previously filed lawsuits alleging that their transfer to the USCP as civilians constituted unlawful age discrimination. See Caul v. Capitol Police Bd., No. 09-1250 (D.D.C. March 4, 2010); Frazier v. Capitol Police Bd., No. 09-1251 (D.D.C. March 4, 2010); Morris v. Capitol Police Bd., No. 09-1252 (D.D.C. March 4, 2010); Myers v. Capitol Police Bd., No. 09-0666 (D.D.C. March 4, 2010); Perry v. Capitol Police Bd., No. 09-0683 (D.D.C. March 4, 2010); Rovillard v. Capitol Police Bd., No. 09-0682 (D.D.C. March 4, 2010). In Rovillard and Perry (related cases that were decided in the same opinion), another court in this District dismissed the age-discrimination claims, holding that age limits for law-enforcement officers are exempt from ADEA challenges. See Rovillard v. Capitol Police Bd., 691 F. Supp. 2d 9, 12 (D.D.C. 2010); Perry v. Capitol Police Bd., 691 F. Supp. 2d 9, 12 (D.D.C. 2010). The court also found in favor of the defendant in the other four cases, treating defendant's motions for dismissal or summary judgment as conceded when plaintiffs failed to timely file oppositions. See Mot., Exh. 1-4.

Plaintiffs filed the Complaint in this case on June 14, 2010, and an Amended Complaint on February 9, 2011. Defendant has now moved to dismiss Plaintiffs' Complaint under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, asked for summary judgment under Rule 56. * ...


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