UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ INTERNATIONAL UNION, UNITED ) GOVERNMENT SECURITY OFFICERS ) OF AMERICA, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 02-1484 (GK) ) JOHN CLARK, in his official ) capacity as Director of the ) United States Marshals ) Service, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs in these consolidated cases are Court Security

Officers (“CSOs”) who were medically disqualified and then

terminated from their positions. As described in great detail in

prior opinions, the case has a long and complex factual and legal

background. The present matter is before the Court on Defendant

John Clark’s Motion to Dismiss Plaintiffs’ Amended Complaint [Case

No. 05-07, Dkt. No. 21] pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b)(6).

Upon consideration of the Motion, Opposition, Reply, and the

entire record herein, and for the reasons set forth below,

Defendant’s Motion to Partially Dismiss is granted in part and

denied in part. I. BACKGROUND

This case was filed on January 4, 2005. The six plaintiffs

are CSOs who were terminated from their employment for failure to

meet certain medical requirements. The CSOs were employed by

private security firms, which in turn contracted with Defendant to

provide security services to federal courthouses. Another case

with similar facts, legal issues, and parties had been filed in

this Court on July 26, 2002. See Int’l Union, United Gov’t

Security Officers of America v. John Clark, No. 02-CV-1484. On

January 4, 2007, the Court granted Plaintiff International Union’s

Motion to Consolidate the 2002 case with this case. Minute Order

(Jan. 4, 2007).1

Before consolidation of the two cases, the six Plaintiffs in

this case filed an Amended Complaint [Case No. 05-07, Dkt. No. 3]

that contained allegations of discrimination against the United

States Marshals Service (“USMS”), and federal contractors MVM

Security Services, Inc. (“MVM”) and Ares Group Incorporated

(“Ares”). The contractors were direct employers of the CSOs. The

six CSOs alleged they were fired because of their disabilities, and

brought suit under the Fifth Amendment as well as the Americans

with Disabilities Act,

et seq. and the

1 That Order consolidated Case No. 05-07 into Case No. 02- 1484. After Defendant filed the Motion to Dismiss in this case, the consolidation Order was entered. Parties then filed their response briefs in Case No. 02-1484.

-2- Rehabilitation Act of 1973,

et seq. See Am. Compl.

¶¶ 34-46. Defendant Clark, Director of USMS, filed the present

Motion to Dismiss (“Def.’s Mot.”) the claims brought against the

Marshals Service.

II. STANDARD OF REVIEW

Defendant asks the Court to dismiss the CSOs’ claims under

Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the plaintiff

bears the burden of proving by a preponderance of the evidence that

the Court has subject matter jurisdiction to hear his case. See

Jones v. Exec. Office of President,

(D.D.C.

2001). In reviewing a motion to dismiss for lack of subject matter

jurisdiction, the Court must accept as true all of the factual

allegations set forth in the Complaint; however, such allegations

“will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wilbur

v. CIA,

(D.D.C. 2003)(citations and

quotations omitted). The Court may rest its decision on the

Court’s own resolution of disputed facts.

To survive a motion to dismiss under Rule 12(b)(6),2 a

2 The Court is aware that parties have filed additional declarations related to the issue of subject matter jurisdiction. Because this issue is governed by Rule 12(b)(1), the Court need not consider the presence of these additional declarations as “matters outside the pleadings” that would, under Rule 12(b)(6), require the Motion to Dismiss to be converted to one for summary judgment. See Fed. R. Civ. Pro. 12(d). The declarations pertain only to subject matter jurisdiction; the Federal Rules allow courts considering (continued...)

-3- plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[ ] [his or her] claims

across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly,

(2007). “[O]nce a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.”

.

Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give

the plaintiff the benefit of all reasonable inferences derived from

the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame

Jeans Inc.,

(D.C. Cir. 2008) (internal quotation

marks and citations omitted).

III. ANALYSIS

Defendant Clark seeks dismissal of the claims brought by five

of the six CSOs under Section 501 of the Rehabilitation Act,

arguing that these five Plaintiffs failed to exhaust their

2 (...continued) dismissal for lack of subject matter jurisdiction to consider matters outside the pleadings. See Herbert v. Nat’l Acad. of Sciences,

(D.C. Cir. 1992); see also Harms v. I.R.S.,

(D. Kan. 2001). Defendant’s attachment of an opinion from another court that bears on a matter covered by Rule 12(b)(6) does not, by itself, require the Court to treat the Motion as one for summary judgment. See Nix v Fulton Lodge Int’l Assoc. of Machinists & Aerospace Workers,

(5th Cir. 1972); Shaw v. Hahn,

, 1129 n.1 (9th Cir. 1995).

-4- administrative remedies before filing this lawsuit, and therefore

the Court has no subject matter jurisdiction over the dispute.

Def.’s Mot. at 3. Second, Defendant takes the position that

Plaintiffs, as federal employees, do not enjoy protection under

Section 501 of the Rehabilitation Act and therefore the CSOs fail

to state a claim upon which relief can be granted. Defendant also

maintains that Plaintiffs’ Fifth Amendment challenge to their

termination is preempted by statute and, therefore, also fails to

state a claim.

A. Defendant Is Entitled to Judgment on the Pleadings on the Section 501 Claims for the Five Plaintiffs Who Failed to Exhaust Their Administrative Remedies.

Before proceeding to the analysis of the exhaustion issue, it

is useful to frame the question by reviewing the different

procedural backgrounds of the six Plaintiffs.

Parties agree that Plaintiff Calvert Harvey exhausted his

remedies; parties also agree that four of the remaining Plaintiffs-

-James Dolnack, Herman Edwards, Gary Erickson, and Wayne Mize--

failed to do so. See Def.’s Mot. at 6; Am. Compl. ¶¶ 44-46.

Plaintiffs suggest in their Amended Complaint that the sixth

Plaintiff, Byron Neal, failed to exhaust his administrative

remedies. See Am. Compl. at ¶ 44 (alleging that “Plaintiff Neal is

excused from exhausting any administrative remedies. . . .”); see

also Decl. of Joann W. Grady, Oct. 11, 2006 (“Grady Decl.”) (Ex. 1

to Def.’s Mot.), at ¶¶ 4-5 (noting that according to the USMS’s

-5- Office of Equal Employment Opportunity, only Harvey exhausted his

remedies).

Plaintiffs allege in their complaint that Neal’s failure to

exhaust should be excused under the futility exception because

Defendant interfered with his ability to meet the exhaustion

requirements. Am. Compl. at ¶ 44. In their Opposition, Plaintiffs

address Neal’s failure to exhaust only with respect to his

complaint against Defendant MVM. See Pls.’ Opp’n at 2-3. There is

no argument advanced that his administrative remedies were

exhausted with respect to USMS, other than the futility objection

mentioned in the Amended Complaint.

As to the four remaining CSOs who have failed to exhaust, the

survival of their claims turns on separate arguments. This group

of CSOs maintains that the exhaustion requirement is overcome by

either the doctrine of vicarious exhaustion or of equitable

estoppel. Pls.’ Opp’n at 12.

1. The Doctrine of Vicarious Exhaustion Does Not Overcome the Statutory Jurisdictional Bar Against Considering Rehabilitation Act Claims That Have Not Been Exhausted.

Plaintiffs’ efforts to circumvent the exhaustion requirement

are not new; these arguments were considered and rejected in a 2006

decision issued by the Court. Int’l Union, United Gov’t Security

Officers of America v. John Clark, No. 02-CV-1484,

,

at *8-12 (D.D.C. Sept. 11, 2006). In earlier briefing, Defendant

argued that Plaintiffs’ failure to exhaust their administrative

-6- remedies entitled him to judgment on the pleadings. Plaintiffs

responded by contending that (1) because some Plaintiffs did

exhaust their remedies, the claims of those who did not exhaust

should survive under the doctrine of vicarious exhaustion; and (2)

because Defendant’s affirmative misconduct prevented Plaintiffs

from exhausting their remedies, USMS should be equitably estopped

from asserting a failure-to-exhaust defense. See

; cf.

Lipscomb v. Winter,

(D.D.C. 2008).

The Court approached the vicarious exhaustion issue in the

wake of the Court of Appeals’ decision in Spinelli v. Goss,

(D.C. Cir. 2006). That decision held that district courts

in this Circuit are jurisdictionally barred from hearing

Rehabilitation Act claims if plaintiffs have not exhausted their

administrative remedies.

. This Court held in its

earlier opinion that the jurisdictional bar cannot be overcome by

the doctrine of vicarious exhaustion, see Int’l Union,

, at *8; 10 (“Plaintiffs provide no rationale for excluding

vicarious exhaustion from the category of ‘other exceptions’

precluded by Spinelli and the Court cannot conceive of one.”).

Nevertheless, a different group of CSOs now makes the same argument

in response to Defendant’s Motion. See Pls.’ Opp’n at 12

(“[P]laintiffs raise again the same arguments.”). For the reasons

discussed in its 2006 opinion, the arguments must again fail. The

Court does not have subject-matter jurisdiction over claims made by

-7- those Plaintiffs who failed to exhaust administrative remedies.3

Plaintiffs attempt to revive an equitable exception to this

jurisdictional bar by citing to a recent case that bears on the

issue. Relying on the Court of Appeals’ decision in Harris v.

Gonzales,

(D.C. Cir. 2007), they seek to establish the

general proposition that “exhaustion in discrimination cases should

be subject to estoppel exceptions that are not strictly construed.

. . .” Pls.’ Opp’n at 13. The decision, they maintain, leaves

room for the Court to allow non-exhausted claims to survive

Spinelli based on equitable considerations. See

(“[T]he

[Harris] [C]ourt indicated that the doctrine of equitable relief

from exhaustion of administrative remedies is still alive.”).

The Court disagrees that Harris provides an end-run around the

jurisdictional bar in this case. In Harris, the plaintiff was

granted relief at the summary judgment stage. The regulation

controlling the case required the federal agency or EEOC to extend

the 45-day time limit to contact an EEOC counselor to complain of

workplace discrimination where the Plaintiff had not received

sufficient notice of that time limit.

. The Court

of Appeals ruled that whether or not that plaintiff had been

3 Insofar as the CSOs in this case are raising issues that have already been decided by this Court, the claims are also barred by the doctrine of res judicata. See, e.g., Walker v. Seldman,

(D.D.C. 2007).

-8- provided with constructive notice of her EEOC obligations was a

material fact in dispute. Id. at 446 (reversing district court’s

grant of summary judgment for defendant). The issue involved

equitable tolling for a plaintiff who had filed an administrative

complaint and may or may not have had constructive notice of EEOC

time limits. Id.

The Harris decision says nothing about the limits of Spinelli,

nor does it even cite the case. Harris does not create any

exceptions to the jurisdictional requirement in that case. Cf.

Spinelli,

(“[A] court may ‘not read futility or

other exceptions into statutory exhaustion requirements where

Congress has provided otherwise.’”) (citations omitted). As a

result, this Court rejects Plaintiffs’ argument that Harris would

justify “applying principles of vicarious exhaustion and equitable

estoppel in this case.” Pls.’ Opp’n at 14.

2. Defendant Is Not Equitably Estopped From Raising an Exhaustion Defense.

Plaintiffs argue that Defendant’s alleged misconduct equitably

estops USMS from raising a failure to exhaust defense. See Pls.’

Opp’n. at 25-30. They claim that USMS told this group of

Plaintiffs that they had “no right to appeal their removal,” and

failed to inform Plaintiffs that “they were protected from

disability discrimination . . . under Section 504” and Section 501

of the Rehabilitation Act. Id. at 28-29.

The issue of equitable estoppel was also addressed in the

-9- Court’s 2006 Memorandum Opinion. Int’l Union,

, at

*10-12. There, Plaintiffs asserted that the Defendant told

medically-disqualified CSOs that their service contracts did not

include an appeals process, and that the USMS failed to follow the

law and notify CSOs about their internal EEOC process.

.

They argued, as they do here, that such misconduct on the part of

the Defendant prevents him from invoking an exhaustion defense.

Id.; Pls.’ Mot. at 30-31. There is “a clear presumption in this

Circuit against invoking the doctrine against government actors in

any but the most extreme circumstances” Int’l Union,

, at 12. In its 2006 opinion, the Court granted Defendant’s

Motion to Dismiss for failure to exhaust. See

(finding

doctrine of equitable estoppel “inapplicable on these facts”).

As explained in the Court’s earlier decision, the Defendant’s

alleged negligence and provision of erroneous information are not

sufficiently “extreme” conduct to allow survival of Plaintiffs’

equitable estoppel claim. See

.

B. Because Plaintiffs Are Federal Employees Under the Rehabilitation Act, They Are Not Permitted to Bring Employment Discrimination Claims under Section 504.

Defendant argues that Plaintiffs are barred from bringing

employment discrimination claims under Section 504 because they are

federal employees. See Def.’s Mot. at 7-8; see also Taylor v.

Small,

(D.C. Cir. 2003) (holding that Section

504 does not provide relief for federal employees). In its 2006

-10- Memorandum Opinion, the Court determined that the USMS is a joint

employer of CSOs, see Int’l Union,

, at *8;

Plaintiffs admit as much in their Amended Complaint, see ¶ 29

(“[D]efendant USMS was a co-employer of Plaintiffs along with the

federal contractors. . . .”). Therefore, as federal employees,

Plaintiffs may not seek relief under Section 504.

Further, Plaintiffs do not respond to Defendant’s argument on

this point. It is a long-established policy that when a party’s

opposition to a motion fails to respond to arguments raised by the

opposing party, a court may treat those unopposed arguments as

conceded. FDIC v. Bender,

(D.C. Cir. 1997),

cited with approval in Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries,

(D.D.C. 2002); see also Day v.

D.C. Dep’t of Consumer & Regulatory Affairs,

(D.D.C. 2002).

In this case, Defendant argues that USMS is a joint employer

of the CSOs “for purposes of this case,” Def.’s Mot. at 7-8, which

makes Plaintiffs federal employees, and prohibits them from seeking

relief under Section 504. See Small,

. Plaintiffs

failed to counter Defendant’s argument on this point. See Def.’s

Mot. At 7-8. As a result, Plaintiffs are deemed to have conceded

the argument, and Defendant’s Motion to Dismiss is granted with

respect to this claim.

-11- C. Plaintiffs’ Constitutional Claim Is Not Preempted By Title VII.

1. Plaintiffs’ Constitutional Claim Is Not Preempted by Title VII if It Is Not Directly Related to Their Discrimination Claims.

Defendant argues that Plaintiffs’ Fifth Amendment claim is

preempted by the statutory remedies provided in Title VII. He

relies on the Supreme Court’s decision in Brown v. General Services

Administration,

(1976), which considered carefully the

“balance, completeness, and structural integrity” of a provision of

the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-16, and

concluded that it “provides the exclusive judicial remedy for

claims of discrimination in federal employment,” Brown

. Plaintiffs bring their discrimination claims under the

Rehabilitation Act, which incorporates Title VII. See Shirey v.

Devine,

, 1191 n.7 (D.C. Cir. 1982). “[T]his circuit

has repeatedly held that federal employees may not bring suit under

the Constitution for employment discrimination that is actionable

under Title VII.” Ethnic Employees of Library of Congress v.

Boorstin,

, 1415 (D.C. Cir. 1985).

The Brown rule with respect to preemption, however, is not

without its exceptions. The Brown decision does not mean that all

non-Title VII claims are foreclosed in lawsuits that involve

employment discrimination. Courts have found that employees may

bring Constitutional or statutory claims for which “Title VII

provides no protection at all.” Boorstin, 751 F.2d at 1415. For

-12- example, in McKenna v. Weinberger,

(D.C. Cir.

1984), Plaintiffs brought claims of sex discrimination and

retaliation under Title VII, as well as a claim that the employer

failed to follow its own procedures in violation of the

Administrative Procedure Act (“APA”),

, et seq.

McKenna,

. The Court of Appeals reasoned that her

APA claims raised an issue distinct from her discrimination claims.

Because she complained of “arbitrary treatment” under the APA, she

raised an issue “entirely independent of her discrimination claim,”

and for that reason the McKenna Court held that Title VII did not

preclude the APA claim.

Therefore, where the Constitutional or statutory claims raise

issues unrelated to discrimination, Brown has no pre-emptive

effect. See Rochon v. FBI,

(D.D.C. 1988)

(“Accordingly, Brown stands for the proposition that Title VII

preempts other remedies for discrimination in federal employment

only when the federal employee is challenging action directly and

singularly related to discrimination in the terms and conditions of

his or her employment.”) (emphasis in original). Therefore,

Plaintiffs in this case may bring due process claims under the

Fifth Amendment if those claims cannot be remedied under Title VII,

i.e., if they do not arise out of the “same discrimination.” See

Paegle v. Dep’t of Interior,

(D.D.C. 1993).

-13- 2. The Plaintiffs’ Fifth Amendment Claim Is Not Preempted by Their Rehabilitation Act Claims.

Plaintiffs argue that their due process claim does not arise

from the same discrimination alleged under their Rehabilitation Act

claims, and therefore cannot be remedied under Title VII.

Plaintiffs assert that their claims present different allegations,

and rely on distinct underlying facts; further, the CSOs maintain

that their due process claim entitles them to relief that Title VII

cannot provide. Pls.’ Opp’n at 10-11. Defendant counters that

Plaintiffs are merely re-stating the discrimination claim in

Constitutional terms, and that the due process challenge is

“parasitic on and inextricably entwined with the Rehabilitation Act

claim. . . .” Def. John Clark’s Reply Brief in Support of His Mot.

to Dismiss Brought by Neal Pls. (“Def.’s Reply”) at 5 [Dkt. No.

248]. In the view of USMS, Plaintiffs’ attempt to distinguish the

two based on the relief sought is unsuccessful. Id. at 6-7.

Defendant says that Plaintiff complains of the same basic

injury--the “loss of a job position”--under Boorstin, 751 F.2d at

1415. Def.’s Reply at 5. Defendant’s position sweeps too broadly.

It is possible, as McKenna demonstrates, to allege distinct

injuries even though the end result for the employee is “the loss

of a . . . job position.”

McKenna claimed that under Title VII, she was fired as

retaliation for bringing complaints of sex discrimination; she

argued in addition that her employer failed to follow its own

-14- procedures “in effecting her dismissal.” See McKenna,

. In that case, the outcome for the plaintiff was the same

under her Title VII and APA claims: dismissal from her position.

See

(describing claims). Despite the ultimate outcome

of the employer’s actions (i.e., loss of a job position), the Court

of Appeals held that the procedural claim under the APA was “not

one of discrimination.”

(emphasis in original). As a

result, the APA claim was not preempted by Title VII.4

Both McKenna and Thorne demonstrate that resolution of the

preemption issue turns on a careful examination of the claims.

Based on the Amended Complaint, it is difficult to determine in

this case, unlike McKenna, precisely what Plaintiffs are pleading.

As to their Fifth Amendment claim, the CSOs maintain that they

had a “constitutionally-protected property interest in their

employment,” and they cannot be deprived of “said employment

4 In a case with similar facts, the district court found that the Constitutional claims were preempted. See Thorne v. Cavazos,

(D.D.C. 1990). After agreeing with the rule set forth above--“[i]n determining whether the remedies contained in the Rehabilitation Act and the ADEA preempt plaintiff’s constitutional claims, the pertinent inquiry is whether plaintiff is ‘seek[ing] to redress the violation of rights guaranteed by the[se] statutes,’”

(citation omitted)--the court addressed the claims. It found that the Constitutional claims were filed in connection with the retaliation claims; plaintiff was alleging that the way in which his employer retaliated represented a constitutional violation. In that case, the court reasoned, the plaintiff was seeking two remedies for the same retaliatory behavior, which was actionable under Title VII.

. This was not the case in McKenna, where the plaintiff’s procedural claim was independent of the retaliation claim, and centered on whether the employer followed its own regulations. See McKenna,

. Thorne is therefore distinguishable.

-15- without due process.” Am. Compl. ¶ 36. Plaintiffs detail the

changes made to the medical clearance policies and process. Id. at

¶¶ 13-17. The CSOs allege that USMS caused them to be terminated

for failing to pass the physical examination, and in doing so

“denied Plaintiffs their right to procedural due process as secured

to them by the Fifth Amendment.” Id. at ¶ 38. Deprived of due

process throughout this period, Plaintiffs “suffered damages due to

their resulting inability to protect themselves from the Defendant

USMS’ unlawful actions.” Id. at ¶¶ 37-38.

Plaintiffs argue that USMS violated the Rehabilitation Act by

“terminating them solely because of their disability or perceived

disability regardless of whether Plaintiffs could perform the

essential functions of their position.” Id. at ¶ 41. The

discrimination claim includes the charge that Defendant failed to

accommodate Plaintiffs’ disabilities or perceived disabilities.

Id. at ¶ 42.

Defendant portrays the due process claim as one that virtually

any federal employee could bring for termination in any context.

Def.’s Reply at 7. Based on the pleadings, it cannot be said

conclusively that Plaintiffs’ due process claim seeks a remedy for

the same basic injury as the Rehabilitation Act claim. As

discussed in this Court’s earlier opinion, see Int’l Union, United

Gov’t Security Officers of America, et al. v. Clark, 02-cv-1484,

Mem. Op. at 14-15 (D.D.C. 2003), given a relatively bare-bones

-16- pleading of a valid due process claim, “the question remains what

process is due.” Id. at 14 (citation omitted). Plaintiffs suggest

in their Amended Complaint that the USMS was somehow deficient in

providing them with procedural safeguards. (For instance, there

may be a factual dispute about the extent of the procedural

safeguards, and whether they were followed with respect to these

Plaintiffs.) Such a claim “is plausible on its face” and therefore

meets the Plaintiffs’ burden under Twombly. See

.

At this juncture, it would be premature to rule that a due

process claim is preempted because it merely re-states a Title VII

claim. Defendant’s Motion is denied on this point.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss

[Case No. 05-07, Dkt. No. 21] is granted in part and denied in

part. The Section 501 claim brought by Plaintiffs Byron Neal,

James Dolnack, Herman Edwards, Gary Erickson, and Wayne Mize, is

dismissed for failure to exhaust administrative remedies. Each

Plaintiff’s employment discrimination claim under Section 504 of

the Rehabilitation Act is dismissed because they are federal

employees who are barred from bringing such claims--a point which

Plaintiffs concede by failing to respond to Defendant’s arguments.

Finally, Plaintiffs do state a valid claim for denial of due

process under the Fifth Amendment.

-17- An Order will accompany this Memorandum Opinion.

/s/ April 10, 2010 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

-18-