Moran v. United States Capitol Police Bd.

Decision Date27 October 2011
Docket NumberCivil Action No. 09–1819 (ABJ).
Citation820 F.Supp.2d 48
PartiesLuanne Lynn MORAN, Plaintiff, v. UNITED STATES CAPITOL POLICE BOARD, Defendant.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

John Patrick Mahoney, Tully Rinckey PLLC, Washington, DC, for Plaintiff.

Carl Ezekiel Ross, U.S. Attorney's Office, Frederick Michael Herrera, Robin Jaye Matthew, United States Capitol Police, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff Luanne Lynn Moran brings this action against the United States Capitol Police Board for violating section 1317(a) of the Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq. (“CAA”), by initiating a series of disciplinary actions in reprisal for exercising her legal rights under CAA section 1302(a)(2). Defendant has moved to dismiss Count IV for lack of subject matter jurisdiction and Counts I, II, V, and VI for failure to state a claim. For the reasons stated below, the Court will grant defendant's motion in full. The Court concludes that plaintiff has failed to meet her burden to establish subject matter jurisdiction with respect to Count IV and that with respect to Counts I, II, V, and VI, she has not identified the necessary predicate for a CAA claim: a materially adverse action.

I. BackgroundA. Disciplinary actions 1

Plaintiff is a Special Agent for the United States Capitol Police (USCP). Am. Compl. ¶ 1. In early 2005, she filed an internal complaint with the USCP about alleged discrimination in the way that special agents were assigned to Representative Nancy Pelosi's protective detail. Id. ¶ 26. She was later assigned to that detail and alleges that she instantly felt resentment from her superiors. Id. ¶ 27. In August 2008, she verbally complained to her supervisor about sexually inappropriate comments made by another supervisor, Supervisory Special Agent (“SSA”) Dorman Simmons. Id. ¶ 28. On her supervisor's request, she filed a written internal complaint. Id. ¶¶ 29, 31. Not long after, she began to be the subject of internal investigations and disciplinary measures, which she claims were taken in reprisal for her complaints. Id. ¶¶ 33, 153–59.

The disciplinary actions at issue began on September 4, 2008, when another USCP supervisor, SSA Stonestreet, began investigating an altercation between plaintiff and a coworker. Id. ¶ 38. On September 6, SSAs Stonestreet and Simmons issued plaintiff a CP–550—a personnel performance note for inappropriate conduct—for an incident during which she allegedly made unprofessional and inappropriate remarks about a delay in the detail's motorcade. Id. ¶¶ 23, 40. The next month, she was issued a second CP–550, alleging that she failed to report for duty and failed to monitor communications equipment. Id. ¶ 42. This led plaintiff to file her third internal complaint, alleging that these disciplinary measure were retaliatory. Id. ¶ 50.

On November 12, 2008, SSA Stonestreet charged plaintiff with lying during an interview he had conducted with her while investigating her misconduct. Id. ¶ 74. This charge eventually went up to USCP's Office of Professional Responsibility, which completed its own investigation, id. ¶ 76, held a hearing, id. ¶ 79, and recommended that a penalty of termination be forwarded to the Chief of Police, id. ¶ 80. The Chief of Police's decision is still pending. Id. ¶ 81.

Meanwhile, on December 9, 2008, SSA Stonestreet issued plaintiff two more disciplinary citations—this time CP–534s, a more severe type of citation than she had previously received. Id. ¶¶ 22, 53, 60. The first citation charged her with “conduct unbecoming of an officer” for her behavior in two prior incidents. Id. ¶ 53. The second charged her with violating the “rules of conduct concerning courtesy,” alleging that plaintiff used profanity and was not polite, courteous, or respectful to a co- worker. Id. ¶¶ 53, 60. Plaintiff was docked sixteen hours of time and pay as a result of the first citation, and eight hours of time and pay for the second citation. Id. Plaintiff administratively appealed both CP–534s to the Chief of the USCP, challenging their factual bases and contending that SSA Stonestreet had singled her out among her co-workers. Id. ¶¶ 67–73. This appeal was eventually denied, id. ¶ 90, and on March 16, 2009, plaintiff was suspended with pay for alleged untruthfulness in her appeal documents.2 Id. ¶ ¶ 87, 90.

On July 1, 2009, the USCP issued a Request for Disciplinary Action, which recommended plaintiff's termination for her alleged untruthfulness. Id. ¶ 93. It is unclear from the complaint whether this recommendation stemmed from the November 12 disciplinary allegations that she was untruthful in the investigatory interview or from the March 16 allegations that she was untruthful in her appeal documents.

B. Counseling and Mediation 3

During these events, plaintiff initiated counseling and mediation, a mandated precursor to filing suit in U.S. District Court under the CAA, 2 U.S.C. § 1402. Id. ¶¶ 84–85. On the request form for her first counseling session, plaintiff described the conduct for which she was seeking counseling as: “I received a series of CP–550's [sic] and other criticism from my sergeants,” and [a]fter I complained ... about the retaliatory CP–550s, I received a CP–534 comand [sic] discipline report and was docked 16 hours.” Ex. 2 to Def.'s Mot. to Dismiss (“Def.'s MTD”).

On March 23, 2009, she filed a second Request for Counseling Form to address the March 16 paid suspension. Am. Compl. ¶¶ 87, 89. On the form, she described the conduct for which she was seeking counseling as: “On March 16, 2009 I was suspended with pay and told I was the subject of an IAD investigation based on concerns about my ‘truthfulness.’ These concerns are based on my statements in the appeal I filed of the CP–534 Command Discipline Report issued to me in December 2008....” Ex. 6 to Def.'s MTD. There is no dispute that she completed the counseling and mediation for both of these requests.

On August 14, 2009, plaintiff filed a third Request for Counseling in response to the July 1, 2009 Request for Disciplinary Action recommending termination. Id. ¶ 95. There is no dispute that she completed the counseling and mediation for this request.

Then, on January 11, 2010, plaintiff filed this action. In each of her six claims, plaintiff alleges reprisal for her internal complaints, which are protected activities under the CAA. Counts I and II claim that she was issued the September 6, 2008 and October 14, 2008 CP–550s, respectively, in reprisal for the two internal complaints filed in January 2005 and August 2008. Id. ¶ 104, 113. Counts III, IV, V, and VI claim that the two December 9, 2008 CP–534s charging her with “conduct unbecoming,” the March 16, 2009 suspension with pay, and the July 1, 2009 Request for Disciplinary Action recommending termination, respectively, were also retaliatory. Id. ¶¶ 123, 133, 145, 158.

II. Standard of Review

In 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), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (internal citation omitted). 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.2002).

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

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) ( “As a court of limited jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “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, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, 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, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court “may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Sciences, 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).

B. 12(b)(6) Motion to Dismiss

[A]s the standards for review are the same under either Fed.R.Civ.P. 12(b) or 12(c), courts routinely treat motions to dismiss that are filed after a responsive pleading has been made as a motion for judgment on the pleadings.” Langley v. Napolitano, 677 F.Supp.2d 261, 263 (D.D.C.2010). Here, defendant's motion to dismiss Counts I, II, V, and VI under Rule 12(b)(6) is more appropriately construed as a motion for judgment on the pleadings under Rule 12(c) because defendant has already filed an Answer to Plaintiff's First Amended Complaint....

To continue reading

Request your trial
54 cases
  • Equal Rights Ctr. v. Uber Techs., Inc.
    • United States
    • U.S. District Court — District of Columbia
    • March 15, 2021
    ...plaintiff bears the burden of establishing [the court's] jurisdiction by a preponderance of the evidence." Moran v. U.S. Capitol Police Bd. , 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). In deciding wh......
  • Green v. U.S. Dep't of Justice
    • United States
    • U.S. District Court — District of Columbia
    • June 27, 2019
    ...dismiss, "the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence." Moran v. U.S. Capitol Police Bd. , 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Because Ru......
  • Maniar v. Mayorkas
    • United States
    • U.S. District Court — District of Columbia
    • March 30, 2023
    ... ... , in his official capacity as Secretary of the United States Department of Homeland Security, et al., Defendants ... evidence. Moran v. U.S. Capitol Police Bd. , 820 ... F.Supp.2d 48, 53 ... ...
  • Pub. Citizen Health Research Grp. v. Acosta
    • United States
    • U.S. District Court — District of Columbia
    • December 12, 2018
    ...12(b)(1), "the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence." Moran v. U.S. Capitol Police Bd. , 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). In reviewin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT