UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) GERALD WALPIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1343 (RWR) ) CORPORATION FOR NATIONAL, ) AND COMMUNITY SERVICE et al., ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION

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 -2-

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 -3-

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, -4-

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. -5-

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,

(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,

(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,

(2009)

(citing Bell Atlantic Corp. v. Twombly,

(2007)). “[A] court ‘must treat the complaint’s factual -6-

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,

(D.C. Cir. 2003) (quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)). However, a court need not

accept legal conclusions cast as factual assertions. Peavey v.

Holder,

(D.D.C. 2009) (citing Iqbal,

).

“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,

(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),

(D.D.C. May 11,

2010) (quoting Hinton v. Corr. Corp. of Am.,

(D.D.C. 2009) (quoting Parrino v. FHP, Inc.,

(9th Cir. 1998))).

1 For example, the defendants produced in their motion the President’s letter to Vice President Biden and Speaker Pelosi and the Eisen letter to Senators Lieberman and Collins to which the amended complaint referred. (Am. Compl. ¶¶ 30, 35, 36.) -7-

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

. 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,

(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,

, (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,

(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 -8-

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 National Resources Defense Council

v. Hodel,

(D.C. Cir. 1988), the defendants

also argue that where Congress has requested an explanation from

the Executive Branch, unless Congress has set forth specific

standards for compliance that are judicially determinable, the

determination of whether the Executive’s explanation is

sufficient should be left to Congress. (Id. at 11-12.) The

defendants argue that, in any event, the undisputed facts

demonstrate that the President complied with the IGRA’s 30-day

notice and explanation requirement and that Walpin was not

removed on June 10, 2009 as he claims.

Walpin argues that the IGRA did in fact create an

individually enforceable right to continued employment because

the purpose of the IGRA was to further increase the independence

of the Inspectors General. He adds that his being placed on

administrative leave with pay and being denied access to his

office and staff for what the President explained simply as a

lack of confidence in Walpin was indeed a removal without reason

and with no 30-day prior notice in violation of the IGRA.

A. Clear right to relief

The Inspector General Act of 1978, as amended by the IGRA,

provides for an OIG to be attached to each entity listed in -9-

5 U.S.C. app. 3 § 12(2), one of which is CNCS. 5 U.S.C. app. 3

§§ 1-13. “An Inspector General may be removed from office by the

President.” Id. § 3(b). Before 2008, the Act stated that “[t]he

President shall communicate the reasons for any such removal to

both Houses of Congress.” Inspector General Act of 1978,

(b),

(1978). In 2008, Congress

passed the IGRA, by amending the Inspector General Act to state

that:

If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.

5 U.S.C. app. 3 § 3(b).

Walpin has not identified any text in the IGRA which

explicitly creates a cause of action for an aggrieved Inspector

General, nor has he presented any authority demonstrating that

Congress drafted the IGRA with the intent to give individual

Inspectors General an enforceable right to continued employment.

In its report regarding the IGRA, the Senate Committee on

Homeland Security and Governmental Affairs described the purpose

of the IGRA:

The bill includes a requirement that the President or appropriate agency head notify Congress 30 days before transferring or removing an Inspector General. This would allow for an appropriate dialogue with Congress in the event that the planned transfer or removal is -10-

viewed as an inappropriate or politically motivated attempt to terminate an effective Inspector General. As part of this advance notice, the Administration would be required to supply written reasons for the planned transfer or termination. This advance notice provision was widely endorsed by the IG community as a useful deterrent against improper intimidation or dismissal. By contrast, the Inspectors General were divided over proposals to create fixed terms for IGs with dismissal only “for cause.” . . . While we hope that this advance notice will encourage useful communication between Congress and the Executive Branch on IG performance and serve as an effective deterrent against improper terminations, we note that the provision does not alter the President’s ultimate authorities with respect to Executive Branch employees.

S. Rep. No. 110-262, at 5-6 (2008) (emphasis added). In other

words, the IGRA enhances the independence of Inspectors General

by giving Congress a mechanism by which it receives advance

notice that the President would be removing an Inspector General,

allowing Congress, not the Inspector General himself, to act by

communicating with the President.

The June 11, 2009 letter notified Congress that Walpin would

be removed in 30 days. It afforded the Congress its opportunity

to communicate with the President if Congress felt as though the

independence of the Inspectors General altogether, or even the

independence of the Inspector General of CNCS individually, was

threatened by Walpin’s removal. Indeed, the notice requirement

created by the IGRA generated here the very Congressional

involvement and inter-branch discussion the law was intended to

facilitate, with communications between Craig and Senator

Grassley, between Eisen and Senators Lieberman and Collins (see -11-

Am. Compl. ¶¶ 32-33; Defs.’ Mem. Ex. D, Ex. E), and even among

Senators themselves. (See Am. Compl. ¶ 39.) As for the

President’s reasons for his action, the Senate report on the IGRA

emphasized that Congress expressly did not include in the IGRA a

requirement that the President could remove Inspectors General

only for cause. While Walpin complains that the President’s

rationale was insufficient, Walpin fails to show how the IGRA

provides any sort of criteria that would allow a court to make

that determination. See College Sports Council v. Gov’t

Accountability Office,

(D.D.C. 2006)

(granting the defendant’s motion to dismiss a claim that an

agency’s report was insufficient, where the statute was devoid of

a provision creating a private cause of action).

B. No duty to act

The defendants argue that even if Walpin could show that the

IGRA creates an individually enforceable right to continued

employment, Walpin has not demonstrated that they have a

ministerial, non-discretionary duty to reinstate him,

particularly where he has not shown that the President failed to

comply with the IGRA’s notice requirement. Walpin argues that

the President removed Walpin on June 10, 2009 when Walpin was

placed on administrative leave with no prior 30-day notice to

Congress (Pl.’s Opp’n at 18-19), creating a clear duty for -12-

defendants to disregard the President’s notice and re-instate

Walpin.

To establish a clear and certain duty to act, a plaintiff

must show a duty so plainly prescribed as to be free from doubt.

Lozado Colon v. U.S. Department of State,

(D.C.

Cir. 1999). Where a duty depends on a statute or statutes the

construction or application of which is not free from doubt, it

involves “the character of judgment or discretion which cannot be

controlled by mandamus.” Wilbur v. United States,

(1929).

Walpin does not show that there is no doubt that his

placement on administrative leave with pay was a transfer or

removal from office. The IGRA states specifically that

“[n]othing in this subsection shall prohibit a personnel action

otherwise authorized by law, other than transfer or removal.”

5 U.S.C. app. 3 § 3(b). Walpin’s construction of “transfer or

removal” as encompassing his being placed on administrative leave

with pay is not an obvious reading of the terms. The Office of

Personnel Management’s regulations pertaining to Civil Service

employment define “removal” as “the involuntary separation of an

employee from employment with an agency.”

.

At least one court has held that placing an employee on

administrative leave with pay did not constitute a “removal.”

Oliver v. United States Postal Service,

(5th -13-

Cir. 1983), held that civil service regulations issued by the

Office of Personnel Management that precluded “removal or

suspension” without 30 days notice were not violated when the

plaintiff was placed on administrative leave with pay without

notice. Similarly, Ghaly v. United States Dep’t of Agric.,

(S.D.N.Y. 2002) held that placing the

plaintiff on administrative leave with pay did not constitute an

“adverse action” or a “suspension.” While those cases did not

involve Inspectors General, they demonstrate at minimum that

Walpin’s construction of “removal or transfer” was not certain or

free from doubt when Walpin was placed on administrative leave

with pay on June 10, 2009. Accepting Walpin’s amended complaint

as true, Walpin has not shown that he was removed or transferred

that day such that the defendants had a clear, unmistakable duty

to reinstate him as Inspector General based upon the President’s

purported failure to comply with the IGRA.

II. DECLARATORY JUDGMENT

Walpin also seeks a declaratory judgment under the

Declaratory Judgment Act,

(a). “The Declaratory

Judgment Act states that ‘[i]n a case of actual controversy

within its jurisdiction . . . any court of the United States

. . . may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further

relief is or could be sought.’” Boone v. MountainMade Found., -14-

(D.D.C. 2010) (quoting

(a)). In general, a count for a declaratory judgment “is

not cognizable as a separate cause of action, but is more

properly included in the[] prayer for relief.” Bridges v. Blue

Cross & Blue Shield Ass’n,

(D.D.C. 1996); see also

United States v. Instruments, S.A.,

(D.D.C.

1992). “Declaratory Judgment Act remedies are available only if

‘a judicially remediable right’ already exists.” Seized Prop.

Recovery, Corp. v. United States Customs & Border Prot.,

(D.D.C. 2007) (quoting Gallucci v. Chao,

(D.D.C. 2005)). “Accordingly, courts have

broad discretion to decline to enter declaratory judgments.”

Boone,

.

The defendants have moved to dismiss Count II of the amended

complaint. They argue that the Declaratory Judgment Act does not

provide an independent cause of action, and because Walpin has no

right to mandamus relief, his derivative count seeking a

declaratory judgment should be dismissed.

A court may dismiss as moot a claim for declaratory relief

where the claim duplicates or is wholly subsumed by another claim

that is dismissed. Boone,

(dismissing the

plaintiffs’ claim seeking a declaratory judgment that their

actions constituted protected activity under the False Claims

Act, where the plaintiffs’ False Claims Act claims were -15-

dismissed). Here, Walpin’s claim for a declaratory judgment is

wholly subsumed by his claim for mandamus relief. In addition,

Walpin makes no attempt to rebut or address the defendants’

motion on this issue, and thus has waived or conceded the issue.

See Bonaccorsy v. D.C.,

(D.D.C. 2010)

(citing CSX Transp., Inc. v. Commercial Union Ins., Co.,

(D.C. Cir. 1986)). Therefore, Count II of Walpin’s

amended complaint also will be dismissed.

CONCLUSION

Walpin has not pled facts meeting the steep showing

necessary for mandamus, rendering his claim seeking a declaratory

judgment moot. Therefore, the defendants’ motion to dismiss

Walpin’s amended complaint will be granted. An appropriate order

accompanies this memorandum opinion.

SIGNED this 17th day of June, 2010.

/s/ RICHARD W. ROBERTS United States District Judge