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McKoy v. Spencer

United States District Court, District of Columbia

September 21, 2017

MURIEL MCKOY, Plaintiff
v.
HONORABLE RICHARD V. SPENCER, [1] Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This suit arises from Plaintiff Muriel McKoy's discharge from her employment as a dentist with the Navy. Plaintiff claims that the Navy violated her constitutional rights to free speech and due process under the First and Fifth Amendments to the United States Constitution, as well as the Privacy Act. Before the Court is Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. Defendant argues that Plaintiff's complaint must be dismissed for lack of jurisdiction or for failure to state a claim. In the alternative, Defendant moves for summary judgment. Defendant also asks the Court to transfer this case to the United States Court of Federal Claims.

         Upon consideration of the pleadings, [2] the relevant legal authorities, and the applicable record, the Court GRANTS-IN-PART and DENIES-IN-PART Defendant's Motion. As explained in greater detail below, the Court rejects most of Defendant's arguments for dismissal on the pleadings. The Court finds that sovereign immunity has been waived under the Administrative Procedure Act (“APA”) for most of Plaintiff's lawsuit, but will dismiss Plaintiff's claim for money damages pursuant to the First and Fifth Amendments. The Court further finds that transfer is inappropriate, that the Court has jurisdiction over Plaintiff's First Amendment claim, and that Plaintiff's due process and Privacy Act claims are adequately pled. Moreover, the Court will not grant summary judgment for Defendant at this time because it is not convinced that the record before it is complete.

         I. BACKGROUND

         Plaintiff Muriel McKoy is an African American female who was previously employed by the Navy as a dentist. Compl. ¶¶ 4, 7. In 2013, Plaintiff's superior, Captain Sangsoo J. Grzesik, initiated a review of Plaintiff's work. Id. ¶ 12. Based on the results of a subsequent evaluation supervised by Captain Grzesik, Plaintiff's clinical dentistry privileges were held in abeyance and then suspended. Id. ¶¶ 14-15. Further proceedings and appeals led to Plaintiff being prohibited from practicing dentistry in the Navy. Id. ¶ 17. She was eventually separated and discharged. Id. ¶ 25. Plaintiff argues that these actions were taken not because of her alleged incompetence, but instead because she had previously complained about her supervisor, Captain Grzesik. Id. ¶ 14. Specifically, Plaintiff alleges that she had previously complained that Captain Grzesik told another individual that Plaintiff “did not trust white men.” Id. ¶ 10.

         As a result of these proceedings, Plaintiff's official Navy record was updated to indicate that she had performed substandard dentistry, and the Navy reported its adverse actions against her to the National Practitioner Data Bank and New York licensing authorities. Id. ¶¶ 18-19, 39. The Navy also reported that Plaintiff had received a less than honorable discharge to the university at which she enrolled after her separation. Id. ¶ 26. Finally, the Navy reported that Plaintiff was indebted to the Navy to the Defense Finance Accounting Agency, which in turn reported that information to national credit reporting agencies. Id. ¶ 27.

         Plaintiff filed this lawsuit on June 24, 2016. Plaintiff alleges that the manner in which the Navy suspended and then discharged her violated her rights under the First and Fifth Amendments to the United States Constitution, as well as the Privacy Act. Plaintiff seeks an injunction, declaratory judgment, reinstatement with removal of adverse personnel actions, rescission of Defendant's statements to the National Practitioner Data Bank and New York licensing authorities, cessation of Defendant's efforts to recoup the incentive pay and bonus pay Plaintiff had received while employed by the Navy, a reporting to national credit agencies that Plaintiff is not in fact indebted to the Navy, as well as damages, fees, costs and expenses.

         In lieu of filing an answer to Plaintiff's complaint, Defendant has filed a motion to dismiss or, in the alternative, for summary judgment. To support his “alternative” motion for summary judgment, Defendant has attached to his motion hundreds of pages of “Administrative Record Excerpts.”

         II. LEGAL STANDARDS

         A. Subject Matter Jurisdiction under Rule 12(b)(1)

         A court must dismiss a case pursuant to Federal Rule 12(b)(1) when it lacks subject matter jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).

         B. Failure to State a Claim under Rule 12(b)(6)

         Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Nat'l Postal Prof'l Nurses v. U.S. Postal Serv., 461 F.Supp.2d 24, 27 (D.D.C. 2006).

         C. Summary Judgment under Rule 56

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court's task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

         III. DISCUSSION

         Defendant's motion contains two types of arguments: (A) those that can be resolved at the pleading stage of this case, and (B) those that cannot. As explained below, most of the arguments in the first category-those appropriately raised pursuant to Federal Rule 12-are unpersuasive and will be rejected. The arguments in the latter category-those raised as part of Defendant's “alternative” motion for summary judgment-are premature and will have to wait to be resolved at a later date when the Court is confident that the record before it is complete.

         A. Defendant's Rule 12 Motion to Dismiss and Transfer Request

         The Court first resolves those arguments in Defendant's motion that have properly been raised under Rule 12 and can be resolved at the threshold of this case. The Court finds that sovereign immunity has been waived for Plaintiff's constitutional claims except to the extent they request money damages, that the Court has jurisdiction over Plaintiff's First Amendment claim, that this case cannot be transferred to the Court of Federal Claims, and that Plaintiffs' Fifth Amendment due process and Privacy Act claims are adequately pled.

         1. Sovereign Immunity

         The Court must first take up Defendant's argument that “Plaintiff's First and Fifth Amendment claims should be dismissed because she has failed to plead a waiver of sovereign immunity regarding these claims.” Def.'s Mot. at 1.[3] “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Because “[s]overeign immunity is jurisdictional in nature, ” before addressing the merits of Plaintiff's claims, the Court “must first decide whether [Defendant's] immunity has been waived.” Id. “Where a plaintiff has brought suit against the federal government (or a government official sued as such), a federal court is without jurisdiction to consider ...


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