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Ahuruonye v. United States Department of Interior

United States District Court, District of Columbia

May 1, 2018



          REGGIE B. WALTON, United States District Judge

         Barry Ahuruonye, the pro se plaintiff, brings this civil action against the defendants, the United States Department of Interior (“Department of Interior”), the Merit Systems Protection Board (“MSPB”), the United States Department of Justice, and multiple employees of the Department of Interior, asserting violations of various employment and criminal laws, the Privacy Act, the First and Fifth Amendments to the United States Constitution, the Declaratory Judgment Act, the All Writs Act, and the Administrative Procedure Act (the “APA”). See generally Consolidated Complaints: Case No. 16-cv-1767; Case No. 16-cv-2028; Case No. 17-cv-284 (“Compl.”), ECF No. 30. Currently pending before the Court are the Defendants' Motion to Dismiss the Consolidated Complaint for Lack of Subject[-]Matter Jurisdiction and for Failure to State a Claim (“Defs.' Mot.”), ECF No. 36, the plaintiff's Motion for Preliminary Injunction Relief (“Pl.'s Mot.”), ECF No. 35, the Plaintiff['s] Motion for Sanctions Under Federal Rule 11 for Patricia K. McBride['] Fraud (“Pl.'s Sanctions Mot.”), ECF No. 44, and the Plaintiff[']s Response Motion for Sanctions and Striking Out a Fraudulent ECF [Nos.] 36 & 41 (“Pl.'s Sanctions Reply”), ECF No. 49. Upon consideration of the parties' submissions, [1] the Court concludes for the following reasons that it must grant in part and deny in part the defendants' motion to dismiss and deny the plaintiff's motion for preliminary injunctive relief, motion for sanctions, and motion to strike.

         I. BACKGROUND[2]

         In December 2011, the plaintiff “was appointed to a GS-12 Grants Management Specialist position” with the United States Fish and Wildlife Service, an agency within the Department of Interior. Defs.' Mot., Exhibit (“Ex.”) 1 (Initial Decision (Feb. 5, 2016)) at 2. “In November[] 2012, the [plaintiff] filed a complaint with the Department of Interior Office of Inspector General [ ], alleging that his supervisor, Penny Bartnicki[, ] engaged in illegal grant awards . . . .” Id. “Shortly after the [plaintiff] filed [that] complaint, [ ] Bartnicki proposed the [plaintiff's] termination as a probationary employee.” Id. On April 15, 2013, the plaintiff and the Department of Interior “settled the [plaintiff's] appeal of [his] removal [ ], and the [plaintiff] was reinstated.” Id. After his reinstatement, the plaintiff “raised numerous claims against the [Department of Interior] and [ ] Bartnicki, alleging whistleblowing retaliation and discrimination.” Id.; see also id. at 3-4 (listing various adverse employment actions that the plaintiff appealed to the MSPB, including the issuance of a letter of reprimand, poor performance reviews, and wage-increase denials). On March 26, 2015, the plaintiff was issued a notice of proposed removal, see id. at 4, and his employment was terminated thereafter.

         Prior to and in conjunction with the filing of his cases in this district, the plaintiff has filed various actions with the MSPB, the Equal Employment Opportunity Commission, and the Federal Circuit seeking review of allegedly adverse employment actions. See Defs.' Mot. at 4- 12. The plaintiff now seeks judicial review of the MSPB's decisions on his adverse employment action appeals, along with asserting additional claims for alleged constitutional and statutory violations. See generally Compl.


         A. Motion to Dismiss Under Rule 12(b)(1)

         “Federal [district] courts are courts of limited jurisdiction, ” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the court's jurisdiction . . ., '” Morrow v. United States, 723 F.Supp.2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it “lack[s] . . . subject-matter jurisdiction[.]” Fed.R.Civ.P. 12(b)(1). Because “it is . . . presumed that a cause lies outside [a federal court's] limited jurisdiction, ” Kokkonen, 511 U.S. at 377, the plaintiff bears the burden of establishing by a preponderance of the evidence that a district court has subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

         In deciding a motion to dismiss based upon lack of subject-matter jurisdiction, a district “court need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.D.C. 2001). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, a district court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.'” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F.Supp.2d at 13-14 (citation and internal quotation marks omitted).

         B. Motion for Preliminary Injunction

         A preliminary injunction “is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation marks and citation omitted). Therefore, “[t]he power to issue a preliminary injunction, especially a mandatory one, should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (internal quotation marks omitted). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Sherely v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (alterations in original) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

         C. Motion for Sanctions

         “[Federal Civil Procedure] Rule 11 sanctions may be imposed where a party files a pleading, motion[, ] or other paper with the court for an improper purpose, that is unwarranted by existing law, [ ] that is lacking evidentiary support, ” Henok v. Chase Home Fin., LLC, 926 F.Supp.2d 100, 104 (D.D.C. 2013) (citing Fed.R.Civ.P. 11(b)(1)-(3)), or that is not “reasonably based on belief or a lack of information, ” Fed.R.Civ.P. 11(b)(4). “Rule 11 sanctions are an extreme punishment for filing pleadings that frustrate judicial proceedings.” Brown v. FBI, 873 F.Supp.2d 388, 408 (D.D.C. 2012) (quoting Wasserman v. Rodacker, No. 06-cv-1005 (RWR), 2007 WL 2071649, at *7 (D.D.C. July 18, 2007)). Although “‘the district court is accorded wide discretion' in determining whether sanctions are appropriate, ” Gomez v. Aragon, 705 F.Supp.2d 21, 23 n.2 (D.D.C. 2010) (quoting Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C. Cir. 1985)), the test “under Rule 11 is an objective one: that is, whether a reasonable inquiry would have revealed that there was no basis in law or fact for the asserted claim, ” Sharp v. Rosa Mexicano, D.C., LLC, 496 F.Supp.2d 93, 100 (D.D.C. 2007) (quoting Reynolds v. U.S. Capitol Police Bd., 357 F.Supp.2d 19, 23 (D.D.C. 2004)).

         D. Motion to Strike

         “Motions to strike are ‘drastic remed[ies] that courts disfavor, ' and the ‘decision to grant or deny a motion to strike is vested in the trial judge's sound discretion.'” Riddick v. Holland, 134 F.Supp.3d 281, 285 (D.D.C. 2015) (quoting U.S. ex rel. Landis v. Tailwind Sports Corp., 308 F.R.D. 1 (D.D.C. 2015)). A court, either on its own volition or by a moving party, “may strike from a pleading an[y] insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Rule 12(f) itself does not require the striking of prejudicial matters, and although courts disfavor motions to strike, courts have granted such motions, but only upon a showing that parts of a pleading “are prejudicial or scandalous.” Nwachukwu v. Rooney, 362 F.Supp.2d 183, 190 (D.D.C. 2005). However, “absent a ‘strong reason for so doing, ' courts will generally ‘not tamper with pleadings.'” Id. (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)).

         III. ANALYSIS

         A. The Plaintiff's Motion to Strike

         In his reply in support of his motion for sanctions, the plaintiff requests that this Court strike from the record both the defendants' motion to dismiss his Consolidated Complaint and their opposition to his motion for preliminary injunctive relief. See Pl.'s Sanctions Reply at 1, 3. The plaintiff argues that such relief is warranted because the defendants' motion to dismiss is “grounded and anchored on fraud, ” see id. at 1, and because the defendants purportedly refused to serve him with a copy of their opposition to his motion for preliminary injunctive relief, see id. at 3. For the following reasons, the Court denies the plaintiff's motion to strike.

         Initially, the Court notes that “motions to strike only apply to pleadings.” Nwachukwu, 362 F.Supp.2d at 190; see also Fed.R.Civ.P. 12(f) (providing that a court “may strike from a pleading” certain matters (emphasis added)). “‘Pleadings' are defined in Federal Rule of Civil Procedure 7(a) as various iterations of complaints, answers[, ] and replies to answers[, and t]he definitions contained in Rule 7 do not admit motions to dismiss [or replies in support of motions] as ‘pleadings.'” Burford v. Yellen, 246 F.Supp.3d 161, 182 (D.D.C. 2017); see also Henok v. Chase Home Fin., LLC, 925 F.Supp.2d 46, 52-53 (D.D.C. 2013) (holding that “motions, affidavits, briefs, and other documents [are] outside of the pleadings and are not subject to being stricken” (alteration in original) (citation and internal quotation marks omitted)). Thus, the plaintiff's motion to strike is not directed at pleadings that are subject to being stricken under Rule 12(f). See Pl.'s Sanctions Reply at 1, 3 (seeking to strike the defendants' motion to dismiss and their opposition to his motion for preliminary injunctive relief).

         Nonetheless, even if the defendants' motion to dismiss or their opposition to the plaintiff's motion for preliminary injunctive relief were subject to Rule 12(f), the plaintiff's motion to strike would still provide no independent basis for striking these submissions. See Burford, 246 F.Supp.3d at 182. Regarding the defendants' motion to dismiss, the plaintiff's motion to strike is largely duplicative of his opposition to the defendants' motion to dismiss, wherein the plaintiff claims that counsel for the defendants made fraudulent representations in their motion to dismiss. Compare Pl.'s Sanctions Reply, with Pl.'s Opp'n. However, these purportedly fraudulent representations, see, e.g., Pl.'s Sanctions Reply at 16 (claiming that counsel for the defendants misrepresented the facts when she argued that this Court does not have jurisdiction over MSPB final decisions regarding non-mixed case appeals), are simply legal arguments that this Court finds relevant to its evaluation of the plaintiff's claims and are not false or fictitious, see Fed.R.Civ.P. 12(f) (permitting a court to strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”). Additionally, with respect to the plaintiff's request to strike from the record the defendants' opposition to his motion for preliminary injunctive relief because the defendants did not serve him a copy of that submission, see Pl.'s Sanctions Reply, Ex. B (E-mail from Barry Ahuruonye to Patricia McBride) (Sept. 22, 2017) (stating that counsel for the defendants failed to send him a copy of the opposition), the Court is perplexed as to how the plaintiff filed a response to the defendants' opposition on September 13, 2017, see generally Pl.'s Reply, if he never received a copy as he alleges in his e-mail on September 22, 2017. Accordingly, the Court denies the plaintiff's motion to strike.

         B. The Defendants' Motion to Dismiss the Plaintiff's Consolidated Complaint for Lack of Subject-Matter Jurisdiction

         Based on its review of the plaintiff's Consolidated Complaint, as well as the plaintiff's other submissions regarding the pending motions, including his opposition to the defendants' motion to dismiss, the Court concludes that the plaintiff is primarily seeking judicial review of the MSPB's final decisions on his appeals of several allegedly adverse personnel actions. See, e.g., Pl.'s Opp'n at 27 (asserting that he “is entitled to relief under Rule 60(b)(3)”); Compl. at 24 (arguing that the “evidence [ ] in these complaints that the defendants acted with reckless disregard for the veracity of their allegations and adverse actions and falsified government records w[ere] provided to [the] MSPB”). Specifically, the plaintiff seeks review of the following MSPB's final decisions: (1) the MSPB's Initial Decision on November 17, 2016, that addressed his individual right of action appeals with the MSPB concerning the Department's allegedly improper garnishments of his wages in 2013 and 2015, the classification of his time and attendance records in 2015, charge of $91.03 to recover a medical benefit overpayment, and his proposed five-day suspension in 2014, see Defs.' Mot., Ex. 2 (Initial Decision (Nov. 17, 2016)), which became a final decision on December 22, 2016, see id., Ex. 5 (Federal Circuit Opinion (June 8, 2017)) at 6; (2) the MSPB's Final Order of December 8, 2016, that addressed the plaintiff's MSPB appeals of the Department's denial of a within-grade increase in November 2014, an absence without leave charge, the issuance of a letter of reprimand, an unsatisfactory performance rating, a leave restriction letter, a notice of proposed removal, and the allegedly unlawful termination of his medical and employment benefits, see id., Ex. 3 (Final Order (Dec. 8, 2016)); see also id., Ex. 1 (Initial Decision (Feb. 5, 2016)); and (3) the MSPB's Final Order of December 7, 2016, that addressed the plaintiff's MSPB appeal concerning the Department's termination of the plaintiff's employment, see id., Ex. 6 (Final Order (Dec. 7, 2016)), ECF No. 37-1.

         Moreover, the plaintiff alleges that these adverse personnel actions are also violations of criminal and constitutional laws and several statutory schemes, including the Privacy Act, the APA, the Declaratory Judgment Act, and the All Writs Act. See, e.g., Compl. at 1-3. Additionally, the plaintiff asserts causes of actions related to fraudulent conduct allegedly committed by the defendants during the MSPB process. See, e.g., id. at 1-2, 20-21, 23-24.[3]

         The defendants contend that all of the plaintiff's claims should be dismissed based on the Court's lack of subject-matter jurisdiction. See Defs.' Mot. at 3-4. The Court will address each of the defendants' arguments in turn.

         1. The Plaintiff's Criminal Claims

         As to the criminal claims asserted by the plaintiff against the defendants, see generally Compl.; see also Pl.'s Opp'n at 53-56 (discussing the various criminal violations purportedly committed by the defendants), the defendants argue that these claims should be dismissed due to the Court's lack of subject-matter jurisdiction because “private citizens lack Article III standing to bring claims under criminal statutes, ” Defs.' Mot. at 19. The Court agrees.

         It is well-settled that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution, ” and “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). And contrary to the plaintiff's contention, see Pl.'s Opp'n at 53 (asserting that the “prosecution of the defendants for their criminal actions [is] at the discretion of the [C]ourt, ” and that he “is entitled to the requisite economic and financial damage as a victim of [their] criminal conduct”), “[t]he power to decide when to investigate, and when to prosecute, lies at the core of the Executive's duty to see to the faithful execution of the laws, ” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). Accordingly, the plaintiff cannot pursue criminal claims against the defendants, and the Court must therefore grant this aspect of the defendants' motion and dismiss these claims for lack of subject-matter jurisdiction.

         2. The Plaintiff's Constitutional Claims

         In his consolidated Complaint, the plaintiff asserts that the defendants' actions violated the rights granted to him by the First and Fifth Amendments of the United States Constitution. See e.g., Compl. at 3, 5, 7 (alleging constitutional violations based on the employment actions taken against him). The defendants contend that the “[p]laintiff's constitutional claims should be dismissed[] because . . . federal employees do not have any constitutional private right of action to challenge issues arising from their employment.” Defs.' Mot. at 15. The Court agrees, because “[t]he Title VII remedy declared exclusive for federal employees” alleging claims of discrimination in their federal employment by the Supreme Court “in Brown v. GSA precludes actions against federal officials for alleged constitutional violations as well as actions under other federal legislation.” Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir. 1983); see also King v. Holder, 941 F.Supp.2d 83, 92 (D.D.C. 2013) (holding that Title VII preempts “both constitutional claims and common law tort claims arising out of the same conduct that forms the basis for a plaintiff's Title VII claim”). Furthermore, “the [Civil Service Reform Act (‘CSRA')] ‘is the exclusive remedy' for government employees who have suffered adverse personnel actions, ‘even if it affords incomplete ...

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