Johnson v. Panetta

Decision Date17 July 2013
Docket NumberCivil Action No. 12–cv–868 (BJR).
Citation953 F.Supp.2d 244
PartiesMichael JOHNSON, Plaintiff, v. Leon E. PANETTA, Defendant.
CourtU.S. District Court — District of Columbia


Alan Mitchell, The O'Neal Firm, LLP, Temple Hills, MD, Ardra M. O'Neal, The O'Neal Firm, LLO, Washington, DC, for Plaintiff.

Peter Rolf Maier, U.S. Attorney's Office, Washington, DC, for Defendant.




Plaintiff Michael Johnson, a former employee of the Department of Defense, seeks injunctive and declaratory relief against Defendant Leon E. Panetta in his official capacity as the Secretary of Defense, related to the Department's allegations that Plaintiff was overpaid by the Department for approximately six years. Presently pending before the Court are four motions: (1) Defendant's Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim upon which Relief May Be Granted (Dkt. No. 12); (2) Plaintiff's Motion for Leave to Amend the Complaint (Dkt. No. 13); (3) Plaintiff's Motion for Enlargement of Time within which discovery in this case must be completed (Dkt. No. 19); and (4) Defendant's Motion for a Protective Order barring Plaintiff from seeking discovery until this Court has resolved Defendant's Motion to Dismiss (Dkt. No. 26).

Upon consideration of the motions, the memoranda in support thereof, the entire record, and the applicable law, the Court will GRANT Plaintiff's Motion for Leave to Amend the Complaint, GRANT Plaintiff's Motion for Enlargement of Time, STRIKE Defendant's Motion to Dismiss, and Strike Defendant's Motion for a Protective Order. The Court's reasoning is set forth below.


Plaintiff Michael Johnson is a retired civilian federal employee of the Department of Defense (the “Department”). Dkt. No. 1 “Comp.” at ¶ 4. Johnson began his career with the Department in 1998 when he was hired as a police officer. Id. at ¶ 6. In 2005, he was transferred to the Communications Office within the Department, where he continued to work as a police officer. Id. at ¶ 8. He claims that in October 2011, the Department informed him that he had been mistakenly overpaid since his transfer to the Communications Office. Id. at ¶ 9. Johnson claims that the Department told him that he was overpaid by “varying ... amounts—some as high as $107,857.46.” Id.

Johnson alleges that he was unaware that he had been overpaid. Id. at ¶ 10. He further alleges that the Department told him that he can seek a “waiver” of the overpayment from the Department's accounting office, but he must do so by June 1, 2012, and if he does submit a waiver request, he must accept responsibility for the debt.” Id. at ¶ 11. He claims that the Department told him that if the accounting office denied his waiver request, he would be required to repay the entire debt to the Department. Id. To date, Johnson has not submitted a waiver request.

Johnson filed the present action on May 31, 2012. The Complaint sets forth the above factual allegations, but fails to state a specific cause of action. It does request, however, that this Court: (1) “Issue a Rule Nisi” and “conduct an evidentiary hearing on the issues” outlined in his complaint; (2) Stay the Department imposed June 1, 2012 deadline for Plaintiff to seek waiver of the alleged overpayment until this Court can determine “if the debit [ sic ] is valid against Plaintiff,” (3) “Enter Declaratory Judgment against [the Department] in favor of Plaintiff finding Plaintiff does not owe the debt to the United States Government”, and (4) Award him attorney fees and costs. Id. at ¶ 12. The Complaint also states that this Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331 and 1343. Id. at ¶ 2.

Defendant answered the Complaint on October 15, 2012. Dkt. No. 5. In the Answer, Defendant raised multiple affirmative defenses, including lack of subject matter jurisdiction, failure to state a claim, and sovereign immunity. Id. at 1–2. Thereafter, on November 30, 2012, the parties attended a scheduling conference with Judge Richard W. Roberts, the judge then assigned to this case. Defendant claims that at the conference, Defendant “identified defects in jurisdiction and on the merits of the Complaint in response to questions from the Court and Plaintiff indicated that he intended to amend the Complaint. Dkt. No. 14, “Def.'s Opp.” at 1. Judge Roberts issued an order establishing the procedural deadlines in this matter, including a deadline of January 29, 2013 by which to amend the Complaint. Dkt. No. 8.

On January 25, 2013, Defendant filed the instant Motion to Dismiss; Plaintiff filed the instant Motion for Leave to Amend the Complaint on January 29, 2013. On March 8, 2013, Plaintiff requested that Judge Roberts extend the deadline by which the parties were to complete discovery. Dkt. No. 19. The matter was reassigned to this federal district court judge on May 30, 2013. Dkt. No. 24. Thereafter, on June 4, 2013, Defendant requested that this Court enter a protective order prohibiting Plaintiff from seeking discovery until the Court has resolved the outstanding Motion to Dismiss. Dkt. No. 25. The motions are now ripe for review.


Defendant moves to dismiss the original Complaint, asserting that this Court lacks subject matter jurisdiction and that Plaintiff fails to state a claim on which relief may be granted. Plaintiff seeks to amend the Complaint in order to clarify the basis for this Court's jurisdiction, and to clarify the cause of action under which he seeks relief.

Generally, a court must ascertain whether it has jurisdiction before it is empowered to take any action in a matter. See Saxon Fibers, LLC v. Wood, 118 Fed.Appx. 750, 752 (4th Cir.2005) (noting that if a court does not have subject matter jurisdiction, it is not empowered to entertain a motion to amend a complaint). However, where, such as here, a plaintiff seeks to amend the complaint in order to correct defective allegations of jurisdiction, the plaintiff is entitled to do so pursuant to 28 U.S.C. § 1653. See Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 831, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (stating that the law operates in such a way that if jurisdiction “in fact exists at the time the suit was brought ..., though defectively alleged,” the defective allegations may be amended any time prior to resolution of the suit, even in the appellate courts); see also, District of Columbia ex rel. American Combustion, Inc. v. Transamerica Ins. Co., 797 F.2d 1041, 1044 (D.C.Cir.1986) (Section 1653' s liberal amendment rule permits a party who had not proved, or even alleged, that diversity exists, to amend his pleadings even as late as on appeal.”) Thus, Plaintiff is authorized to amend the Complaint to correct defective jurisdiction allegations, if jurisdiction actually existed at the time he filed the complaint. This Court is authorized to review the motion to amend in order to ascertain whether jurisdiction exists. Sun Printing and Publishing Ass'n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 48 L.Ed. 1027 (1904) ([t]he whole record ... may be looked to, for the purpose of curing a defective averment of ... diversity of citizenship, and if the requisite citizenship, is anywhere expressly averred in the record, or facts are therein stated which in legal intendment constitute such an allegation, that is sufficient.”).

Furthermore, from the standpoint of judicial efficiency, the Court concludes that the most pragmatic approach to resolving the instant motions, is to first address Plaintiff's Motion for Leave Amend the Complaint. See, e.g., Adams v. FedEx Ground Package System, Inc., 2013 WL 61448, *1 (D.Colo. January 4, 2013) (noting that defendants' arguments asserted in their pending motion to dismiss also applied to plaintiff's motion to amend, and therefore, addressed motion to amend first); In re K–Dur Antitrust Litigation, 338 F.Supp.2d 517, 528 (D.N.J.2004) (noting efficiencies of disposing of a motion to amend along with a motion to dismiss); Leach v. Northern Telecom, Inc., 790 F.Supp. 572, 573–74 (E.D.N.C.1992) (reasoning that a pragmatic approach to plaintiff's motion to amend assured the best use of judicial time and resources). Therefore, this Court will initially address Plaintiff's Motion for Leave to Amend the Complaint.

A. Standard of Review

Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend his pleading once as a matter of course at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a); James v. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282–83 (D.C.Cir.2000). Once a responsive pleading is served, however, a plaintiff may amend the complaint only by leave of the court or by written consent of the adverse party. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The grant or denial of leave lies in the sound discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam). The court must, however, heed Rule 15's mandate that leave is to be “freely given when justice so requires.” Id. Indeed, [i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182, 83 S.Ct. 227.

The non-movant generally carries the burden in persuading the court to deny leave to amend. Williams v. Savage, 569 F.Supp.2d 99 (D.D.C.2008) (citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 n. 2 (5th Cir.1981)); see also Gudavich v. District of Columbia, 22 Fed.Appx. 17, 18 (D.C.Cir.2001) (noting that the non-movant “failed to show...

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