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Jefferson v. Harris

United States District Court, District of Columbia

January 4, 2018

SETH D. HARRIS, et al., Defendants.



         Nearly 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.

         Counts 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.

         I. Background

         The 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.

         In his 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.

         Following 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.

         The 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.

         After 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.

         II. Legal Standard

         A 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).

         It is 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).

         III. Analysis

         In 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.

         A. APA and Bivens (Counts II & III)

         The 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) ...

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