United States District Court, District of Columbia
RAYMOND M. JEFFERSON, Plaintiff,
SETH D. HARRIS, et al., Defendants.
E. BOASBERG, UNITED STATES DISTRICT JUDGE.
one year after this Court dismissed the majority of the
counts in his First Amended Complaint, Plaintiff Raymond
Jefferson is back for another round. In his Motion for Leave
to File a Second Amended Complaint, Jefferson renews his
effort to clear his name of the accusations leveled against
him in a 2011 investigation and report by the Department of
Labor's Office of Inspector General. Defendants - the
U.S. Department of Labor, the Department's Office of
Inspector General, the Council of the Inspector General on
Integrity and Efficiency, and five individuals - oppose this
third bite at the apple. After toiling through
Jefferson's prolix pleading, the Court ultimately
concludes that one additional claim may proceed.
II and III, Plaintiff's Administrative Procedure Act and
Bivens claims, were already dismissed in this
Court's prior Opinion and are re-pled here largely to
preserve them for appeal. Count IV, Jefferson's new cause
of action under the Appointments Clause, cannot survive, both
because he lacks standing and because it is facially
deficient. It is only Count I, which alleges procedural and
substantive due-process violations, that the Court concludes
states a plausible basis for relief. The lack of prejudice to
Defendants and the liberal standard for amending complaints
counsel in favor of allowing Jefferson to move forward with
this augmented count. The Court will therefore grant leave to
amend in this limited respect.
lengthy factual history of this case is set forth in full in
this Court's prior Opinion and need not be repeated here.
See Jefferson v. Harris, 170 F.Supp.3d 194 (D.D.C.
2016). Suffice it to say that Jefferson, a former high-level
appointee in the Department of Labor, believes himself the
victim of an Inspector General's defamatory campaign
relating to his procurement efforts. Appointed in 2009 to
serve as the Assistant Secretary of Labor for Veterans'
Employment and Training Services (VETS), Jefferson's
central grievance revolves around a 2011 investigation and
resulting Report by DOL's Office of Inspector General
(DOL-OIG). Id. at 198. This Report and an
accompanying Cover Memorandum described an alleged
“pattern of conduct” by Jefferson that
“reflect[ed] a consistent disregard of federal
procurement rules and regulations, federal ethics principles,
and the proper stewardship of appropriated dollars.”
ECF No. 19, Exh. B (Cover Memorandum) at 1.
First Amended Complaint, Plaintiff alleged that these
criticisms were false, and that the investigation and Report
were motivated by personal animus and riddled with factual
and legal errors. See ECF No. 16 (First Amended
Complaint), ¶¶ 29-50. According to Jefferson, the
day after the Report was issued to his boss, Deputy Secretary
Seth Harris, he was placed on administrative leave. Four days
later, Harris informed him that he had “four hours in
which to resign or be fired, ” id., ¶ 58,
and Jefferson submitted his resignation to the Secretary of
Labor that afternoon. Id., ¶ 61. Yet
Plaintiff's alleged mistreatment did not end with his
departure. Instead, the next day DOL and DOL-OIG held a joint
press conference at which they publicly discussed the Report
and Memorandum and thereby repeated the “false charges,
errors of fact, and mistakes of law.” Id.,
¶ 62. The accusations against Jefferson were
subsequently reported in The Washington Post and
other publications, and were the subject of a press
conference held by Senator Claire McCaskill, then-Chair of
the Homeland Security Subcommittee on Contracting Oversight.
Id., ¶¶ 63-65.
his resignation, Jefferson embarked upon what is now a
six-year journey to find redemption. In 2014, he filed a
complaint with the Council of the Inspectors General on
Integrity and Efficiency (CIGIE) against DOL-OIG and the
relevant investigators, alleging violations of “OIG
regulations, the [Inspector General Act], the APA, and [his]
due process rights.” Id., ¶ 78. Three
months later, CIGIE's Integrity Committee informed
Plaintiff that it would not be taking action on the matter.
Id., ¶ 80.
same month that Jefferson filed his CIGIE complaint, he also
filed suit in this Court. See ECF No. 1 (Complaint).
After amending his Complaint in March 2015, Plaintiff set
forth four discrete counts against Defendants. See
Jefferson, 170 F.Supp.3d at 202 Count I accused DOL-OIG
and the individual officers involved in the investigation of
violating the APA. Id. Count II asserted that DOL,
DOL-OIG, Harris, and four individuals involved in the
investigation - Daniel Petrole, Asa Cunningham, David Russ,
and James Powell - violated Plaintiff's due-process
rights by injuring his reputation. Id. Count III
sought damages against all individual Defendants under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and Count IV consisted
of claims against CIGIE under the Inspector General Act, the
APA, and the Due Process Clause. Id. at 203.
Defendants moved to dismiss Jefferson's Complaint in its
entirety, see ECF No. 19 (Motion to Dismiss), and on
March 21, 2016, this Court issued a Memorandum Opinion and
Order granting that request as to the majority of
Plaintiff's counts. See Jefferson, 170 F.Supp.3d
at 222. Specifically, the Court dismissed Counts I, III, and
IV, and allowed only Count II, which alleged a procedural
due-process violation, to proceed. Id.
receiving a series of extensions, Jefferson now moves for
leave to file a 94-page Second Amended Complaint alleging
four counts (ordered in a different fashion from the First
Amended Complaint). The first count has two subparts,
offering both procedural and substantive due-process claims.
The second reiterates the earlier Bivens claims, and
the third again invokes the APA. The last sets out a new
claim under the Appointments Clause. See ECF No.
44-1 (Second Amended Complaint). As Defendants have opposed
Plaintiff's Motion, see ECF No. 52, the Court
must now determine whether to grant him the requested leave
to amend and, if so, on which counts.
plaintiff may amend his complaint once as a matter of course
within 21 days of serving it or within 21 days of the filing
of a responsive pleading. See Fed.R.Civ.P. 15(a)(1).
Otherwise, he must seek consent from the defendant or leave
from the court. The latter “should [be] freely give[n]
. . . when justice so requires.” Fed.R.Civ.P. 15(a)(2).
In deciding whether to grant leave to file an amended
complaint, courts may consider “undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment,
etc.” Foman v. Davis, 371 U.S. 178, 182
(1962). In this Circuit, “it is an abuse of discretion
to deny leave to amend unless there is sufficient
reason.” Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996). Furthermore, under Rule 15, “the
non-movant generally carries the burden in persuading the
court to deny leave to amend.” Nwachukwu v.
Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).
clear, however, that amendment should not be permitted if it
would be futile. In other words, if the new causes of action
would still be deficient notwithstanding the proposed
amendment, courts need not grant leave. See In re
Interbank Funding Corp. Securities Litigation, 629 F.3d
213, 218 (D.C. Cir. 2010) (“[A] district court may
properly deny a motion to amend if the amended pleading would
not survive a motion to dismiss.”) (citing
Foman, 371 U.S. at 182, for proposition that
“‘futility of amendment' is permissible
justification for denying Rule 15(a) motion”);
James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099
(D.C. Cir. 1996) (“Courts may deny a motion to amend a
complaint as futile . . . if the proposed claim would not
survive a motion to dismiss.”) (citations omitted).
conducting its analysis, the Court first briefly considers
the reasserted APA and Bivens counts, which are
re-pled essentially for appellate purposes. It next looks at
both the procedural and substantive due-process claims,
before concluding with the new Appointments Clause count.
APA and Bivens (Counts II & III)
Court begins by clearing away Jefferson's APA and
Bivens claims, both of which were dismissed in the
prior Opinion. Plaintiff maintains that he “re-pleads
claims that this Court has already dismissed in order to
preserve them for appeal.” ECF No. 41 (Motion for Leave
to File) at 2-3. Yet, as Defendants point out, see
Opp. at 8-9 and Jefferson acknowledges in his Reply,
“he need not have re-alleged . . . his dismissed claims
in order to preserve them for appeal under D.C. Circuit
precedent.” Reply at 9 n.6. The Court agrees and
therefore will not grant leave to amend with respect to the
previously dismissed counts. See BEG Investments, LLC v.
Alberti, 85 F.Supp.3d 13, 50 (D.D.C. 2015) ...