United States District Court, D. Columbia.
For JOHN COLEMAN, Plaintiff: Lawrence A. Berger , MAHON & BERGER, ESQS., Glen Cove, NY.
For JANET NAPOLITANO, DEPARTMENT OF HOMELAND SECURITY, Defendants: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
BERYL A. HOWELL, United States District Judge.
The plaintiff, John Coleman, an employee within the Department of Homeland Security (" DHS" ), filed this action against defendant Janet Napolitano, in her official capacity as Secretary of the DHS, to challenge, as violative of his constitutional due process rights, his reassignment between components of DHS, even though the reassignment did not result in any reduction in his grade or pay. Pending before the Court is the defendant's Motion to Dismiss, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, respectively. Def.'s Mot. to Dismiss at 1, ECF No. 9. For the reasons set out below, the defendant's motion to dismiss is granted.
The undisputed facts in this case, as set forth in the Complaint, may be briefly summarized as follows: In 2007, the plaintiff was a GS-118-13 Criminal Investigator within Homeland Security Investigations (" HSI" ), which is the largest investigative branch of DHS. Compl. ¶ ¶ 1, 2. Effective February 18, 2007, the plaintiff received a temporary promotion to a GS-1811-14 position within another DHS department called the Office of Professional Responsibility (" OPR" ), " which is tasked with investigating allegations of employee misconduct;
overseeing detention functions; reviewing HSI programs and offices; and personnel security, including background investigations and security clearance adjudications." Id. ¶ ¶ 1, 4, 5. The advertisement made clear that the position was " a TEMPORARY ASSIGNMENT" and may be accompanied by " a TEMPORARY PROMOTION not to exceed three (3) years." Id. ¶ 3 (capitalization in original). The advertisement further stated that the temporary " assignment may be terminated any time depending on the needs of the service" and that " [u]pon completion of assignment, selectee(s) will be returned to position held prior to selection." Id.
The following year, on August 5, 2008, the plaintiff received a memorandum (" 2008 Memorandum" ) from OPR's deputy director, informing him that his permanent position of record as GS-1811-13 Criminal Investigator in HIS " will be reassigned from [HSI] to [OPR]." See Pl.'s Opp'n Def.'s Mot. Dismiss (" Pl.'s Opp'n" ), Exhibit A (" 2008 Memorandum" ), at 1, ECF No. 12-1. The 2008 Memorandum also indicated that: " [t]he effective date of this reassignment action will coincide with the effective date of your current temporary assignment with OPR, so that your temporary promotion will not be impacted and to avoid pay interruptions." Id. The document explicitly stated that the plaintiff was " still subject to the conditions of employment as stated in the vacancy announcement [LAG-OPR-126852-RT-321] from which you were selected for your current temporary assignment." Id.; see Compl. ¶ ¶ 3-4
When the plaintiff's position with OPR at a GS-14 level was set to expire, the DHS extended the position for an additional year twice--once in 2010 and then again in 2011. Compl. ¶ ¶ 7-8. On February 12, 2012, the plaintiff's temporary position at a GS-14 level expired, and was again temporarily extended from November 2012 until March 2013, when he was scheduled to return to his GS-1811-13 position. Id. ¶ 10. Before the expiration of his temporary GS-14 position in OPR expired, the plaintiff's GS-1811-13 position was reassigned from OPR back to HSI on January13, 2013. Id. ¶ ¶ 9, 11.
Shortly thereafter, the plaintiff filed this action claiming that his transfer or reassignment from OPR back to his original position in HSI was an " arbitrary and capricious" action that violated his due process rights. Id. ¶ 12-13. The plaintiff seeks equitable relief directing DHS to reassign his permanent position from HSI to OPR. See id., Prayer of Relief. The defendant's motion for dismissal is now ripe for consideration.
II. LEGAL STANDARD
A. Subject Matter Jurisdiction Under Rule 12(b)(1)
" 'Federal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute.'" Gunn v. Minton, __ U.S. __, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Indeed, federal courts are " forbidden . . . from acting beyond our authority," NetworkIP, LLC v. FCC, 548 F.3d 116, 120, 383 U.S.App.D.C. 310 (D.C. Cir. 2008),
and, therefore, have " an affirmative obligation 'to consider whether the constitutional and statutory authority exist for us to hear each dispute.'" James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092, 317 U.S.App.D.C. 281 (D.C. Cir. 1996) (quoting Herbert v. National Academy of Sciences, 974 F.2d 192, 196, 297 U.S.App.D.C. 406 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, ...