MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS Chief Judge.
Plaintiff Betty Clayton brings suit against the District of Columbia (“District”) alleging that the District reclassified her position and terminated her in violation of D.C. law and the United States Constitution. The District moves for reconsideration of a March 21, 2013 memorandum opinion and order that granted in part and denied in part the District’s motion to dismiss. Because justice does not require reconsideration, the District’s motion will be denied.
The background of this case is discussed more fully in Clayton v. District of Columbia, Civil Action No. 11-1889 (RWR), 2013 WL 1154098 (D.D.C. Mar. 21, 2013). Briefly, Clayton was the Director of the D.C. Government Operations Division of the District of Columbia National Guard (“DCNG”). Id. at *1. “During the events relevant to the complaint, Clayton reported to Major General Errol Schwartz, the Commanding General of the Joint Force Headquarters of the DCNG.” Id. As the agency head, Clayton was “under an obligation and duty to investigate and discipline potential wrongdoing at the DCNG as well as report fraud, waste and abuse.” Id. (internal quotation marks omitted).
Clayton alleges that in this capacity, she reported several incidents of unlawful conduct within the DCNG despite pressure from the Judge Advocate General and federal Inspector General investigators “to not file or report the sexual harassment allegations[.]” Id. (internal quotation marks omitted).
When Clayton was appointed, the Director of the D.C. Government Operations Division was a Career Service position. Id.
In May 2010, “General Schwartz’s staff solicited the advice of the D.C. Human Resources Department’s General Counsel regarding General Schwartz’s administrative authority over the employees of the Government Operations Division.” [Am. Compl.] ¶ 70. On August 27, 2010, Attorney General Nickles responded to General Schwartz’s inquiry stating that the Division is a “subordinate agency of the Mayor of the District of Columbia” and that the Director of the Government Operations Division is “a District employee” who is “subject to the personnel rules, regulations, laws and the policy of the District[.]” Def. D.C.’s Mot. to Dismiss the Am. Compl. (“District’s Mot.”), Ex. (Letter from Peter J. Nickles, Attorney General for the District of Columbia, to Major General Erroll [sic] R. Schwartz, Commanding General, District of Columbia National Guard (Aug. 27, 2010) at 1–2). The Director’s “chief responsibility” is “[s]upervision of District personnel assigned to the DCNG.” Id. at 2. Although the Division is a District agency, in light of the Division’s mission “to facilitate the coordination of operational programs so that the National Guard can efficiently respond to natural and civil emergencies in the District, ” the Commanding General has “the opportunity to collaborate with District officials regarding the personnel matters of the Division[.]” Id. The Commanding General is also “free to confer with the Mayor” on personnel matters “if personnel problems rise to the level where it impacts the readiness of the National Guard[.]” Id.
Clayton, 2013 WL 1154098, at *2.
“On September 27, 2010, Clayton received a letter stating that the Director position was being reclassified from a Career Service position to an at-will, Management Supervisory Service (‘MSS’) position under D.C. Code § 1-609.58(a). . . . On October 26, 2010, Clayton received a notification . . . that she was being terminated without cause effective November 10, 2010.” Id. at *3 (internal citations omitted).
Clayton filed suit alleging, in Count Four, that the District violated Clayton’s constitutional due process rights by depriving Clayton of her protected property interest in her employment and right to seek review with the Office of Employee Appeals of any termination of her employment without due process. Id. Count Five sought a declaratory judgment that D.C. Code § 1-609.58(a) is unconstitutional on its face and as applied to Clayton. Id.
The District moved to dismiss Clayton’s amended complaint. A March 21, 2013 memorandum opinion and order granted in part and denied in part the District’s motion and dismissed Count Four and Clayton’s facial challenge to D.C. Code § 1-609.58(a) in Count Five. Id. However, the District did not challenge Clayton’s as-applied constitutional challenge to D.C. Code § 1-609.58(a) in its motion to dismiss. Id. at *8 n.12. Accordingly, the memorandum opinion and order did not consider the merits of Clayton’s as-applied claim and that claim was not dismissed.
The District now moves for reconsideration of the March 21, 2013 memorandum opinion and order to the extent that it did not dismiss Clayton’s as-applied challenge to D.C. Code § 1-609.58(a). The District contends that it “intended to contest all of the claims set forth” in Clayton’s amended complaint. Def. D.C.’s Mot. for Recons. of Court’s Mar. 21, 2013 Mem. Op. & Order (“Def.’s Mot.”), Def.’s Mem. in Supp. of Def.’s Mot. for Recons. (“Def.’s Mem.”) at 3. However, the District admits that it
did not understand Count V of the Amended Complaint to contain any as-applied constitutional challenge to D.C. Code § 1-609.58 that was meaningfully distinct from Clayton’s claim in Count IV that the reclassification of her position to MSS “was pretextual and intended to deprive her of her due process right to her employment and any OEA appeal.”
Id. (quoting Am. Compl. ¶ 106). The District asserts that its “failure to make clear that the arguments sets forth in [its motion to dismiss] were intended to address any as-applied challenge to the statute, as well as Plaintiff’s direct due process claims, was inadvertent.” Id. Clayton opposes, arguing that the motion for reconsideration is merely an attempt by the District to recover on a “deliberate strategic decision in drafting its motion and [that the District] believed that it had adequately addressed all of the claims set forth.” Pl.’s Opp’n to Def. ...