Walpin v. Corp.. For Nat'l, Civil Action No. 09-1343 (RWR).

• Decision Date: 17 June 2010
• Docket Number: Civil Action No. 09-1343 (RWR).
• Parties: Gerald WALPIN, Plaintiff, v. CORPORATION FOR NATIONAL, AND COMMUNITY SERVICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

718 F.Supp.2d 18

Gerald WALPIN, Plaintiff,

v.CORPORATION FOR NATIONAL, AND COMMUNITY SERVICE et al., Defendants.

Civil Action No. 09-1343 (RWR).

United States District Court,District of Columbia.

June 17, 2010.

Sanford M. Saunders, Jr., Joe D. Whitley, Michael J. Quartarone, Greenberg Traurig LLP, Washington, DC, for Plaintiff.

Kathryn L. Wyer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Plaintiff Gerald Walpin brought this action against the Corporation for National and Community Service (“CNCS”) and three of its officers, seeking an order directing the defendants to restore Walpin to his previous position as the Inspector General of the CNCS, and a declaratory judgment that the procedure used to remove Walpin from office violated the Inspector General Reform Act (“IGRA”), 5 U.S.C. app. 3, §§ 1-13. The defendants have moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Walpin's amended complaint, arguing that the court lacks subject matter jurisdiction to hear Walpin's claim, and that Walpin fails to state a claim for which relief can be granted. Walpin has cross-moved for summary judgment, arguing that there are no material facts in dispute, and that he is entitled as a matter of law to a writ of mandamus reinstating him to his position as Inspector General. Because Walpin fails to state a claim for which relief can be granted, his amended complaint will be dismissed.

BACKGROUND

In 2007, Walpin was appointed as the Inspector General of CNCS, a position he would hold until 2009. (Am. Compl. ¶¶ 2-3.) The CNCS Office of Inspector General (“OIG”) conducts and supervises audits and investigations of CNCS's programs and operations, and uses the results to recommend policies. (Am. Compl. ¶ 7.) In May 2009, Walpin made a presentation to the CNCS board of directors informing them that after the departure of the previous CNCS chief executive officer, there had been a change in the culture, enforcement of rules, and attitude at CNCS toward the OIG, and that the General Counsel of CNCS had become adversarial to the OIG. ( Id. ¶ 26.)

According to the amended complaint, on June 10, 2009, Walpin received a telephone call from Norman Eisen, President Obama's special counsel, who informed Walpin that if he did not tender his resignation in one hour, he would be fired. Walpin asked for more time to consider the request, but Eisen responded that Walpin would be removed as Inspector General anyway. (Am. Compl. ¶ 29.) On the same night, Walpin alleges, CNCS terminated his access to his staff, his office, and his OIG electronic mail account, and placed him on administrative leave with pay. ( Id. ¶¶ 5, 7, 33, 41.) On June 11, 2009, President Obama sent a letter to both Houses of Congress, addressed to Vice President Biden and to Speaker Pelosi, informing them that he was “exercising [his] power as President to remove [Mr. Walpin] from office ... effective 30 days from today” because he “no longer” had “the fullest confidence in” Mr. Walpin. (Am. Compl. ¶ 30; Defs.' Mem. in Supp. of Mot. to Dismiss (“Defs.' Mem.”) Exs. A, B.)

Senator Chuck Grassley wrote a letter to the President that same day stating that he was “deeply troubled” about the “ultimatum” given to Walpin, and urging the President to review the IGRA before removing any Inspector General. Gregory Craig, the Counsel to the President, wrote a letter responding to Senator Grassley's concerns informing him that Walpin had been suspended with pay, that Congress was notified earlier that day of the intent to remove Walpin from his post, and that the rationale for Walpin's suspension and imminent removal was that “the President does not have full confidence in [Walpin.]” (Am. Compl. ¶¶ 32-33; Defs.' Mem. Ex. D.) In the following days, Senator Claire McCaskill called for the White House to provide a more substantive rationale for its action, and Senators Joseph Lieberman and Susan Collins inquired about the propriety of removing Walpin. (Am. Compl. ¶¶ 34, 35.) Eisen responded by letter stating that the CNCS' Board of Directors requested a review of Walpin following a meeting where Walpin was “confused, disoriented, unable to answer questions and exhibited other behavior that led the Board to question his capacity to serve” as Inspector General. (Am. Compl. ¶¶ 35, 36; Defs.' Mem. at 15, Ex. E.) Senators Orrin Hatch and Michael Enzi called for a Senate hearing about the removal. (Am. Compl. ¶ 39.)

Walpin filed his amended complaint in July 2009, seeking a writ of mandamus ordering the defendants to reinstate Walpin as the Inspector General of the CNCS, and a declaratory judgment stating that the procedure used to terminate his employment as the Inspector General violated the notice requirements of the IGRA. (Am. Compl. ¶¶ 42-49.) Walpin alleges that he was removed on June 10, 2009, and that the President had violated IGRA's requirement that both Houses of Congress be notified of the reasons for the removal no later than 30 days before the removal. ( Id. ¶¶ 4, 36, 41.) The defendants have moved under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Walpin's amended complaint for lack of subject matter jurisdiction and failure to state a claim, on the grounds that the amended complaint fails to meet the standard necessary for mandamus, and that the President complied with the notice requirement set forth in the IGRA. (Defs.' Mem. at 1-4.) Walpin opposes and cross-moves for summary judgment.

DISCUSSION

Walpin seeks, in part, mandamus.

In resolving a motion to dismiss an action for relief in the nature of mandamus, courts have characterized the issue as involving both a jurisdictional and a merits inquiry because, in determining whether the court has jurisdiction to compel an agency or official to act, the court must consider the merits question of whether a legal duty is owed to the plaintiff under the relevant statute.

Auburn Regional Medical Center v. Sebelius, 686 F.Supp.2d 55, 62 (D.D.C.2010) (treating a defendant's motion to dismiss a mandamus action for lack of jurisdiction as one for failure to state a claim) (citing In re Cheney, 406 F.3d 723, 729 (D.C.Cir.2005) (noting that “mandamus jurisdiction ... merges with the merits”)). Therefore, the defendants' motion will be treated as one to dismiss for failure to state a claim.

A party may move under Federal Rule of Civil Procedure 12(b)(6) to dismiss a complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to ‘state a claim to relief that is plausible on its face.’ ... [A plaintiff must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[A] 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.’ ” Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000)). However, a court need not accept legal conclusions cast as factual assertions. Peavey v. Holder, 657 F.Supp.2d 180, 185 (D.D.C.2009) (citing Iqbal, 129 S.Ct. at 1950).

“In deciding a motion brought under Rule 12(b)(6), a court does not consider matters outside the pleadings, but a court may consider on a motion to dismiss ‘the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,’ Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002), or ‘documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss [.]’ ” ¹ Winston v. Clough, Civil Action No. 07-1411(RWR), 2010 WL 1875626, at *4 (D.D.C. May 11, 2010) (quoting Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998))).

I. MANDAMUS

A mandamus action is available to compel an “officer or employee of the United States or any agency thereof to perform a duty owed to plaintiff.” See 28 U.S.C. § 1361. Mandamus relief should be granted only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521, 1533 (D.C.Cir.1983) (en banc). “[T]hose invoking the court's mandamus jurisdiction must have a ‘clear and indisputable’ right to relief; and even if the plaintiff overcomes all these hurdles, whether mandamus relief should issue is discretionary.” In re Cheney, 406 F.3d 723, 729 (D.C.Cir.2005). Where the action a plaintiff seeks to compel is discretionary, he has no clear right to relief and mandamus is not an appropriate remedy. See, e.g., Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984).

The defendants advance several arguments as to why Walpin has failed to state a claim for mandamus relief. They assert that the IGRA does not guarantee Inspectors General an individual right to continued employment when the notice of separation that is given to Congress is inadequate. (Defs.' Mem. at 9, 12.) According to the defendants, Congress intended for the IGRA to facilitate dialogue between the President and Congress before the removal of Inspectors General, not to grant standing to a removed Inspector General to bring a legal action alleging violations of IGRA's requirements. Citing Natural Resources Defense Council v. Hodel, 865 F.2d 288,...