United States District Court, District of Columbia
BERMAN JACKSON United States District Judge.
Samson Lawrence has brought this action against defendants
District of Columbia and Chief of Police Peter Newsham,
alleging that the District, acting through the Metropolitan
Police Department (“MPD”), exceeded the statutory
90-day time limit to commence an adverse action to terminate
him, in violation of D.C. Code § 5-1031 and the Fifth
Amendment to the Constitution. Am. Compl. [Dkt. # 3] ¶
17. Plaintiff also alleges that the MPD discriminated against
him on the basis of race, in violation of Title VII of the
Civil Rights Act of 1944, as amended (“Title
VII”), 42 U.S.C. § 2000e et seq. Id.
District of Columbia has moved to dismiss plaintiff's
claims under 42 U.S.C. § 1983 and D.C. Code §
5-1031 for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1), on the grounds that
they are preempted by the Comprehensive Merit Personnel Act
(“CMPA”), D.C. Code § 1-601, et.
seq. Def.'s Mot. to Dismiss [Dkt. # 10]
(“Def.'s Mot.”). The District has also moved
to dismiss plaintiff's Title VII complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), on the grounds that
plaintiff failed to state a claim on which relief can be
granted. Id. For the reasons stated below, the Court
will grant defendant's motion to dismiss as to plaintiffs
D.C. Code § 5-1031 and constitutional due process claims
but will deny the motion to dismiss as to the Title VII
was formerly employed as an officer with the MPD. Am. Compl.
¶ 3. On November 25, 2013, he was arrested in Maryland
in connection with a domestic dispute with his wife. Id.
¶ 5. After plaintiffs arrest, MPD placed him on
“non-contact status.” Id. ¶ 7. He
was indicted in Maryland state court on December 19, 2013 for
attempted first-degree murder, attempted second-degree
murder, first-degree assault, second-degree assault, and two
counts of carrying a weapon with intent to injure.
Id. ¶ 9.
April 4, 2014, before the trial, MPD served plaintiff with a
Notice of Proposed Adverse Action seeking to terminate his
employment. Am. Compl. ¶ 10. Plaintiff requested an
evidentiary hearing on the Notice. Id. The trial on
the criminal charges took place in July, and on July 25,
2014, the court declared a mistrial because the jury was
unable to reach a unanimous verdict. Id. ¶ 11.
Plaintiff was re-tried, and on May 7, 2015, the jury found
him not guilty on all charges in the indictment. Id.
one week of the not guilty verdicts, MPD fully restored
plaintiff to his position as an MPD officer. Am. Compl.
¶ 13. However, on January 16, 2016, MPD presented
plaintiff with an Amended Notice of Proposed Adverse Action
for Removal based upon the conduct underlying the Maryland
indictment. Id. MPD held evidentiary hearings on
April 7 and April 20, 2016, and on June 10, 2016, a
three-member review board issued a recommendation to
terminate plaintiffs employment. Id. ¶ 15. On
June 24, 2016, plaintiff appealed the recommendation to the
Chief of Police. Id. ¶ 16. On July 18, 2016,
the Chief of Police confirmed the review board's
decision, and plaintiff was terminated from the MPD in August
filed its amended complaint on April 19, 2018. See
Am. Compl. On July 6, 2018, the District of Columbia moved to
dismiss the amended complaint pursuant to Rule 12(b)(1) for
Counts I and II and 12(b)(6) for Count III. Def.'s Mot.;
see Def.'s Mem. of P. & A. in Supp. of
Def.'s Mot. [Dkt. # 10-1] (“Def.'s Mem.”)
at 4-6. Plaintiff opposed the motion on August 17, 2018,
see Pl.'s Statement in Opp. to Def.'s Mot.
[Dkt. # 12] (“Pl.'s Opp.”), and the District
of Columbia filed its reply on August 24, 2018. Def.'s
Reply to Pl.'s Opp. [Dkt. # 13] (“Def.'s
evaluating a motion to dismiss under either Rule 12(b)(1) or
12(b)(6), the Court must “treat the complaint's
factual allegations as true and must grant plaintiff
‘the benefit of all inferences that can be derived from
the facts alleged.'” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal citation omitted), quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also
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). Nevertheless, the Court need
not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint,
nor must the Court accept plaintiff's legal conclusions.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
Subject Matter Jurisdiction
Rule 12(b)(1), the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d
59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that “a cause lies
outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C. Cir. 2004) (“As a court of limited jurisdiction,
we begin, and end, with an examination of our
jurisdiction.”). “[B]ecause subject-matter
jurisdiction is ‘an Art[icle] III as well as a
statutory requirement . . . no action of the parties can
confer subject-matter jurisdiction upon a federal
court.'” Akinseye v. District of Columbia,
339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of
Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982).
considering a motion to dismiss for lack of jurisdiction,
unlike when deciding a motion to dismiss under Rule 12(b)(6),
the court “is not limited to the allegations of the
complaint.” Hohri v. United States, 782 F.2d
227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). 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. District of Columbia Bd. of
Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.
2000), citing Herbert v. Nat'l Acad. of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome
Stevens Pharms., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005).
Failure to State a Claim
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In Iqbal, the Supreme Court
reiterated the two principles underlying its decision in
Twombly: “First, the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions, ” and
“[s]econd, only a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id. at 678-79, citing Twombly, 550 U.S. at
is facially plausible when the pleaded factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678, citingTwombly, 550 U.S. at
556. “The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id., quoting Twombly,
550 U.S. at 556. A pleading must offer more than
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action, ”
id., quoting Twombly, 550 U.S. at 555, and