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Louis P. Cannon, et al v. District of Columbia

July 6, 2012


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs purport to represent a class of retired police officers who were first employed by the District of Columbia ("District" or "defendant") before 1987 and were subsequently rehired by the District after 2004. After they retired, they received federal retirement benefits and, when they were rehired, they began receiving a salary from the District. When the District began reducing their pay by the amount of their pension payments, plaintiffs filed suit, alleging violations of the Fair Labor Standards Act, the First Amendment, their Fifth Amendment rights to due process, just compensation, and equal protection, and asserting multiple claims arising under District of Columbia law. Before the Court is the District's motion to dismiss or, in the alternative, for summary judgment and plaintiff's cross-motion for partial summary judgment. For the reasons set forth below, the Court will grant defendant's motion with respect to the federal claims, remand the remaining claims to Superior Court, and deny plaintiffs' motion or partial summary judgment.



Plaintiffs were first employed by the District as police officers before 1987.*fn1 (First Am. Compl. ¶ 35; Def.'s Opp'n to Mot. for Temporary Restraining Order, Ex. 1 ("Toliver Decl.") ¶ 5.) When they retired, they began receiving federal retirement benefits. (Id.) At various points after 2004, plaintiffs were rehired by the District to serve in the Department of General Services ("DGS") and, at that point, began receiving salaries from the District. (Id. ¶ 4; First Am. Compl. ¶ 37.) From the time that they were rehired until early 2012, plaintiffs received both their federal pension payments and their full salaries for the current positions as District employees. (See, e.g., Pls.' Opp'n to Def.'s Mot./Cross-Mot. for Summ. J. ("Pls.' Mot."), Ex. 5 ("Cannon Decl.") ¶ 19.) The simultaneous receipt of federal pension and salary payments is commonly referred to as "double-dipping."

In summer 2011, the District began looking into the legality of double-dipping. (Compl., Ex. 2, at 2.) In fall 2011, it informed plaintiffs that it had mistakenly overpaid them for several years, since it had neglected to apply the offset set forth in D.C. Code § 5-723(e) to reduce their current paychecks by their pension payments. (See Def.'s Partial Mot. to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mot."), Ex. 7 (letters to plaintiffs dated Oct. 12, 2011).) In particular, the District notified them that although it would not recoup the thousands of dollars that it had erroneously paid in the past, it would rectify the error prospectively by offsetting their current salary payments by their monthly pension payments. (Id.)

January 25, 2012 was the first date that plaintiffs' paychecks were reduced to reflect their pension payments. (See First Am. Compl. ¶¶ 46, 50.) One day later, plaintiffs filed suit, seeking a temporary restraining order ("TRO") and preliminary injunction ("PI") to enjoin the offset and claiming that double-dipping was expressly permitted by a D.C. law enacted in 2004-- the D.C. Government Reemployed Annuitant Offset Elimination Amendment Act of 2004 ("Offset Elimination Act of 2004"), Act 15-489. (See Compl. ¶ 32; Mot. for TRO at 6.) At a hearing on January 31, 2012, plaintiffs' motion for a TRO was denied.

Plaintiff Cannon was fired on February 8, 2012, as Chief of the Protective Services Police Department because he allegedly failed to properly investigate an incident that occurred during an Occupy D.C. protest and subsequently submitted a false investigative report to the Director of DGS. (Pls.' Mot. for Leave to File Suppl. Compl. ("Supp. Compl."), Ex. 3 ("Cannon Termination Letter"); Def.'s Opp'n to Pls.' Renewed Mot. for a Preliminary Injunction, Ex.1 ("D.C. Human Resources Decision Form").) He was terminated at the conclusion of a Human Resources Department investigation that was initiated on October 26, 2011, and ended with General Counsel Charles Tucker's recommendation that Cannon be terminated. (Def.'s Mot. for Leave to File a Sur-Reply ("Def.'s Renewed PI Sur-Reply"), Ex. 1 ("Tucker Decl.") ¶ 7.) Tucker's recommendation was made on January 17, 2012-one week before plaintiffs' paychecks were reduced by their pension payments and nine days before the instant suit was filed. (Id.)

On February 10, 2012, some District employees, including several of the plaintiffs, did not receive their normal direct deposit salary payments. (See Def.'s Opp'n to Pls.' Renewed Mot. for a PI, Ex. 2 ("Burrell Decl.") ¶ 6; Def.'s Renewed PI Sur-Reply, Ex. 2 ("Rivera Portis Decl.") ¶ 6.) Due to a clerical error, they received paper checks instead. (Id. ¶ 4.) Employees of DGS called each plaintiff to explain what had happened and the plaintiffs were ultimately paid in full. (Burrell Decl.¶ 6.)

Plaintiffs subsequently amended their complaint to add claims based on these two events.*fn2 (See Supp. Compl.) They now assert claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"), and under 42 U.S.C. § 1983 for the deprivation of due process, just compensation, and equal protection in violation of the Fifth Amendment and for retaliation in violation of the First Amendment. In addition, plaintiffs assert multiple claims under District of Columbia common law,*fn3 the District of Columbia Self-Government and Governmental Reorganization Act, codified as amended at D.C. Code §§ 1-201.01 et seq., and the District of Columbia Whistleblower Protection Act, codified as amended at D.C. Code §§ 1-615.51 et seq. Defendant has moved to dismiss or, in the alternative, for summary judgment, on all claims and plaintiffs have cross-moved for partial summary judgment on their FLSA claims only.



To survive a motion to dismiss under Rule 12(b)(1), plaintiffs must demonstrate that the court has jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). Since district courts are courts of limited jurisdiction, the inquiry into "subject matter jurisdiction is, of necessity, the first issue for an Article III court." Loughlin v. United States, 393 F.3d 155, 170 (D.C. Cir. 2004) (internal quotation marks omitted). In "determining the question of jurisdiction, federal courts accept the factual allegations contained in the complaint as true . . . . Moreover, the Court can consider material outside of the pleadings when determining whether it has jurisdiction." Halcomb v. Office of the Senate Sergeant-At-Arms, 563 F. Supp. 2d 228, 235 (D.D.C. 2008).

To survive a Rule 12(b)(6) motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). This facial plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). "[A] complaint [does not] suffice if it tenders 'naked assertions' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557) (some alteration marks omitted).

Under Rule 56, summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). There is a "genuine issue" of material fact if a "reasonable jury could return a verdict for the nonmoving party." Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). While "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor, Anderson, 477 U.S. at 255, the non-moving party "may not rest upon the mere on allegations or denials of his pleading." Id. at 298.


Plaintiffs Ford-Haynes, Neill, and Weeks assert claims under the FLSA, arguing that they are being paid less than the minimum wage mandated by the FLSA since their paychecks have been reduced by the offset. (First Am. Compl. ¶¶ 56-61.)

Under the FLSA, employers must pay employees at least $7.25 per hour, plus time-and-a-half for overtime work. 29 U.S.C. §§ 206, 207. Exempt from the FLSA's overtime and minimum wage requirements are those "employed in a bona fide executive, administrative, or professional capacity . . . ." 29 U.S.C. § 213(a)(1). To qualify as an exempt "executive" or "administrative" employee, the person must be "[c]ompensated on a salary basis at a rate of not less than $455 per week." 29 C.F.R. §§ 541.100, 541.200. *fn4 This is consistent with the FLSA's goal of "protect[ing] low paid rank and file employees" since "[h]igher earning employees . . . are more likely to be bona fide managerial employees." Darveau v. Detecon, Inc., 515 F.3d 334, 338 (4th Cir. 2008) (quoting Counts v. S.C. Elec. & Gas Co., 317 F.3d 453, 456 (4th Cir. 2003)).

The District argues that Ford-Haynes, Neill, and Weeks are exempt from the FLSA because they are high-level, managerial employees. (See Def.'s Mot. at 22-25 (arguing that Neill and Weeks are exempt as "executive" employees); Def.'s Combined Reply/Opposition (Def.'s Reply") at 18-22 (arguing that Ford-Haynes is exempt as an "administrative" employee).) Plaintiffs do not dispute that they perform the management-related duties described in 29 C.F.R. §§ 541.100(2)-(4), 541.200(2)-(3), but they argue that they do not qualify for the FLSA exemption because they earn less than $455 per week. (See Pls.' Reply at 9-10.) Therefore, the sole dispute between parties is whether plaintiffs Ford-Haynes, Neill, and Weeks are "[c]ompensated on a salary basis at a rate of not less than $455 per week." 29 C.F.R. §§ 541.100, 541.200.

Ford-Haynes receives $1,739.71 gross per week for full-time work. She earns $43.50 per hour-a salary of $90,474.00 annually-as a Management Analyst employed by the District. (See Pls.' Reply, Ex. 4.) From her rehire in July 2011 until January 2012, she also received approximately $72,000 per year-$6,000 per month- in pension payments. (Id.) Since January 25, 2012, her District paychecks have been offset by her pension payments, so she now receives $239.88 gross per week from the District (Answer ¶ 59; Pl.'s Mot., Ex. 2 (Pls.' Stmt.) ¶ 5) and $1,500.00 per week from her pension. (Pls.' Reply, Ex. 4.)

Neill receives approximately $1,897.71 gross per week for full-time work. He earns $40.48 per hour-a salary of $84,202.00 annually-as a District employee. (See Pls.' Mot., Ex. 8.) From his rehire in 2009 until January 2012, he also received $77,724.96 per year- $6,477.08 per month- in pension payments. Since January 25, 2012, his District paychecks have been offset by his pension payments and now he receives $278.44 gross per ...

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