The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Steven Steinberg brings this action against the District of Columbia and various District officials (collectively, "defendants")*fn1 to redress what he alleges to be the wrongful termination from his job as an emergency medical technician ("EMT") with the District's Fire and Emergency Medical Services Department ("Fire Department"). Steinberg contends that defendants violated his procedural and substantive due process rights during the period following his removal. Before the Court is defendants' motion to dismiss for failure to state a claim [#18]. Upon consideration of the motion, the opposition thereto, and the record of the case, the Court concludes that the motion should be granted in part and denied in part.
Taking as true the facts in Steinberg's Amended Complaint, see City of Harper Woods Emps.' Ret. Sys. v. Olver,589 F.3d 1292, 1298 (D.C. Cir. 2009), Steinberg's dispute with the Department began in 1997, when he was removed from his position as an EMT. Am. Compl. ¶ 9. Eleven days after being terminated, Steinberg appealed his dismissal, filing a petition with the Office of Employee Appeals ("OEA").*fn2 Id. ¶ 10. Steinberg won his appeal. In an "initial decision" that was issued in 2004, the OEA determined that Steinberg should be reinstated and reimbursed for pay and benefits lost as a result of his termination. Id. ¶ 14.*fn3
The OEA's order did not go into effect immediately. The Department had 35 days from the time the OEA issued its decision to file a petition for review with the OEA's Board. Id. ¶ 15; D.C. CODE § 1-606.03(c). The Department did not appeal, and the decision became final on June 16, 2004. Id. ¶ 16. The Department was thus required to comply with the OEA decision no later than July 17, 2004. Id.
Despite the OEA's mandate that Steinberg be reinstated and reimbursed for back pay by July 17, 2004, the Department did not comply. Id. ¶¶ 16--20. It also did not challenge the OEA order by seeking review of the award in the Superior Court of the District of Columbia. Id. ¶ 17; D.C. CODE § 1-606.03(d) ("Any employee or agency may appeal the decision of the Office [of Employee Appeals] to the Superior Court of the District of Columbia for a review of the record and such Court may affirm, reverse, remove, or modify such decision, or take any other appropriate action the Court may deem necessary."). The parties pursued settlement discussions, but those proved unsuccessful. Am. Compl.¶ 17.
Four years went by after which the OEA made additional attempts to enforce compliance with its order. On August 13, 2008, the OEA issued an addendum decision on compliance in which it certified the matter to the OEA's General Counsel's office for enforcement. Id. ¶ 18; D.C. CODE § 1-606.09 (providing that if the OEA "determines that the respondent has not complied with an order within 30 calendar days of service of the order, the Office shall certify the matter to the General Counsel and any agency that may be appropriate for enforcement"). Subsequently, on September 11, 2008, the General Counsel's office issued an order directing that the Fire Department submit documents to the OEA by October 17, 2008 verifying compliance with the OEA's order. Am. Compl. ¶ 19. The Fire Department did not submit any such verification. Instead, on January 29, 2009, four and a half years after the date on which the Fire Department was ordered to reinstate Steinberg and provide him back pay, the Fire Department filed a response indicating that it refused to comply with the OEA determination. Id. ¶ 20. As of the time of the parties' most recent filings, Steinberg has neither been reinstated nor received back pay.
On July 10, 2009, almost five years Fire after the Department was
required to comply with the OEA's decision, Steinberg brought this
action. Steinberg contends that the Department's behavior amounted to
an "illegal deprivation of his property without due process of law . .
. ." Id. ¶ 22. Steinberg specifies that "having obtained a final
judgment" from the OEA, he "has a property right in such a judgment."
Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s
Opp'n") at 4.Steinberg continues that, "[t]he unilateral decision of
the Defendants to simply belatedly declare on January 9, 2009, to the
Plaintiff (and the Office of the General Counsel) that they refused to
pay what they owed" violated his procedural and substantive due
process rights because the defendants did so "without participating at
all in any procedural or substantive hearing." Id. Steinberg disavows
pursuing any due process violations stemming from the "firing process"
Because Steinberg brings this lawsuit against the District and District officials, any due process rights Steinberg enjoys are pursuant to the Due Process Clause of the Fifth Amendment. U.S. CONST. amend. V; Butera v. District of Columbia, 235 F.3d 637, 646 n.7 (D.C. Cir. 2001). His vehicle for this lawsuit is 42 U.S.C. § 1983 ("Section 1983"), which provides a cause of action for violations of constitutional rights.*fn4
Under Federal Rule of Civil Procedure Rule 12(b)(6), a defendant may move to dismiss a complaint for failure to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6).
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In evaluating whether a complaint is sufficient to withstand a motion to dismiss, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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