TANYA S. CHUTKAN, District Judge.
When the FBI terminated Plaintiff Timothy Alan Lamb ("Lamb"), it determined he had engaged in gross misconduct, rendering Lamb ineligible to elect to continue health insurance coverage. This lawsuit arises from that determination. Lamb's first cause of action seeks judicial review of the FBI's "gross misconduct" determination. His second cause of action asserts that he was deprived of the right to continued health insurance coverage without due process in violation of the Constitution. Before the Court is Defendant's Motion to Dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim for relief. For the reasons discussed below, the Court grants Defendant's motion.
Lamb was an FBI employee from October 1995 to August 2013. (Am. Compl. ¶ 6). On February 28, 2013 Lamb received a letter (the "Feb. 28 Letter") from the FBI's Office of Professional Responsibility ("OPR") proposing to dismiss Lamb based on allegations of a lack of candor, not under oath. (Id. ¶ 8; Def. Ex. A (filed under seal)). Separate from the matters raised in the Feb. 28 Letter, Lamb received notice on April 29, 2013 of another investigation into allegedly illegal conduct which took place at least 11 years earlier.
OPR issued a letter to Lamb on August 14, 2013
Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.") The law presumes that "a cause lies outside [the Court's] limited jurisdiction" unless the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When a defendant files a motion to dismiss a complaint for lack of subject matter jurisdiction, 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).
In evaluating a motion to dismiss under Rule 12(b)(1), the Court must "assume the truth of all material factual allegations in the complaint and `construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'" Am. Nat'l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C.Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.Cir.2005)). Nevertheless, "`the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged
Finally, when considering a motion to dismiss for lack of subject matter 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 [of] whether it has jurisdiction to hear 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 Scis., 974 F.2d 192, 197 (D.C.Cir.1992)).
A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where "recovery is very remote and unlikely[,]" the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action[.]" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C.2013). In deciding a 12(b)(6) motion, a court may "consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). However, when the parties present material outside the pleading and have "had a reasonable opportunity to contest the matters outside the pleadings such that they are not taken by surprise," the court may treat the motion as one for summary judgment. Cost v. Social Sec. Admin., 770 F.Supp.2d 45, 49 (D.D.C.2011).
Although Plaintiff styles his first cause of action as seeking judicial review of the FBI's gross misconduct determination, Plaintiff also contends that his underlying termination "did not afford him Constitutional,
The Civil Service Reform Act ("CSRA") "comprehensively overhauled the civil service system" and created an "elaborate new framework for evaluating adverse personnel actions against federal employees." United States v. Fausto, 484 U.S. 439, 443, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (internal citations and alterations omitted). Chapter 75 of the CSRA provides for the appeal of a termination decision to the Merit Systems Protections Board and subsequent review by the Court of Appeals for the Federal Circuit. Fausto, 484 U.S. at 446-47, 108 S.Ct. 668. Not every federal employee, however, is entitled to these protections.
The Supreme Court held that Fausto was unable to bring any claim under the Back Pay Act because the CSRA was the exclusive avenue of judicial review of federal personnel decisions, and the CSRA provided no form of review of the decisions Fausto challenged. Id. at 447, 108 S.Ct. 668. The Court found that Congress' decision to exclude non-preference members of the excepted service from the judicial review provisions of the CSRA was preclusive, barring any review not authorized by the CSRA. Id. at 447, 108 S.Ct. 668 (finding a "clear congressional intent to deny the excluded employees the protections of Chapter 75—including judicial review—for personnel action covered by that chapter"); see also Elgin v. Dep't of Treasury, ___ U.S. ___, 132 S.Ct. 2126, 2133, 183 L.Ed.2d 1 (2012) ("the CSRA's elaborate framework demonstrates Congress' intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review") (internal citations omitted, emphasis in original). The D.C. Circuit has summarized the exclusivity of the CSRA succinctly: "what you get under the CSRA is what you get." Fornaro v. James, 416 F.3d 63, 67 (D.C.Cir.2005).
Like Fausto, Lamb is excluded from the CSRA provisions regarding termination, and therefore his termination is not subject to judicial review. 5 U.S.C.
Plaintiff argues that a catch-all jurisdictional provision in the Administrative Procedures Act ("APA") confers jurisdiction on this Court to review the FBI's determination of gross misconduct. (Pl. Opp'n at 9.) The APA provides that "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. Although the Supreme Court has noted that the APA's review provisions are to be given a "hospitable interpretation," Bowen v. Massachusetts, 487 U.S. 879, 904, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)), the law is clear that the relief (or lack thereof) provided in the CSRA precludes review under § 704. Fornaro, 416 F.3d at 67 ("no remedy [is] available under the APA for an employment claim as to which the CSRA provide[s] no relief") (citing Carducci v. Regan, 714 F.2d 171, 174-75 (D.C.Cir.1983); Kursar v. Transp. Sec. Admin, 581 F.Supp.2d 7, 16 (D.D.C.2008); Roberts v. U.S. Dep't of Justice, 366 F.Supp.2d 13, 19-21 (D.D.C.2005).
Because the Court lacks the subject matter jurisdiction necessary for it to hear Lamb's claim for judicial review of the FBI's determinations, it will grant Defendant's motion to dismiss Plaintiff's first cause of action.
Plaintiff asserts, as a second cause of action, a violation of his constitutional rights. (Am. Compl. ¶ 20). Specifically, Plaintiff alleges that he did not receive due process before deprivation of his right to continued health insurance coverage. (Id. ¶ 20). In addition, although contained within his "First Cause of Action," Plaintiff appears to raise constitutional claims with regard to the underlying termination insofar as he contends that his summary dismissal did not "afford him Constitutional, statutory and regulatory due process." (Id. ¶ 16).
Defendant, relying on a recent Supreme Court decision, argues that the "exclusive avenue to judicial review" of Lamb's termination, whether raising statutory or constitutional claims, is through the CSRA. (Def. Mem. 12 (citing Elgin, 132 S.Ct. at 2134)). The Plaintiffs in Elgin were terminated for their failure to register for the Selective Service. Id. at 2131. They filed suit in District Court challenging the constitutionality of the statute barring anyone failing to register for the Service from employment in an Executive agency. Id. The District Court concluded it had jurisdiction to hear the constitutional claims, notwithstanding the CSRA, under the general federal-question jurisdiction statute, 28 U.S.C. § 1331. Id. The Supreme Court held otherwise, concluding that even employees bringing constitutional challenges to federal statutes must do so within the judicial review framework established by the CSRA, that is, through the MSPB and the Federal Circuit. Id. at 2139.
This case, however, is distinct from Elgin. In that case, the plaintiffs were entitled to review under the CSRA and the CSRA directed that review to a single court, the Federal Circuit. 132 S.Ct. at
It is true that the comprehensive nature of the CSRA has lead the D.C. Circuit to hold that "Bivens remedies [do not exist] for civil service employees and applicants who advance constitutional challenges to federal personnel decisions." Hunt v. Dep't of Agriculture, 740 F.Supp.2d 41, 48-49 (D.D.C.2010) (quoting Spagnola v. Mathis, 859 F.2d 223, 230 (D.C.Cir.1988) (alterations in original). However, the D.C. Circuit has consistently affirmed "the right of civil servants to seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights." Spagnola, 859 F.3d at 229-30. In Hubbard v. E.P.A., for example, the D.C. Circuit concluded that while a federal employee had no viable Bivens claim for money damages, a claim under the first amendment for equitable relief (in the form of reinstatement) was viable. 809 F.2d 1, 11-12 (D.C.Cir.1986). Defendant has not pointed to language in the CSRA so expressly preclusive of colorable constitutional claims as to overcome the presumption against such preclusion. Given the D.C. Circuit's expressed preference for keeping the courthouse doors open to federal employees raising constitutional claims, the Court finds it has subject matter jurisdiction to hear these constitutional due process claims under the grant of federal question jurisdiction in 28 U.S.C. § 1331. Davis v. Billington, No. 10-00036(RBW), 51 F.Supp.3d 97, 109, 2014 WL 2882679, at *6 (D.D.C. June 25, 2014) ("In keeping with the longstanding law of this Circuit that favors permitting plaintiffs the opportunity to bring constitutional claims for injunctive relief in the district court, the Court finds that the CSRA does not bar this Court's jurisdiction to address the plaintiff's constitutional claims"); see also Hardy v. Hamburg, No. 11-cv-1739 (RBW), 69 F.Supp.3d 1, 23, 2014 WL 5420037, at *17 (D.D.C. Sept. 23, 2014), Coleman v. Napolitano, No 13-cv-1307 (BAH), 65 F.Supp.3d 99, 104-06, 2014 WL 4185190, at *4-5 (D.D.C. Aug. 25, 2014); accord Semper v. Gomez, 747 F.3d 229, 242 (3d Cir.2014) ("a federal employee who could not pursue meaningful relief through a remedial plan that includes some measure of meaningful judicial review has the right to seek equitable and declaratory relief for alleged constitutional violations in
The only cause of action over which the Court has subject matter jurisdiction is a narrow one. The Court lacks jurisdiction to address the merits of either the termination or the finding of gross misconduct, but may entertain a claim under the Constitution that Lamb was deprived of property
In the context of public employment, government employees can demonstrate the requisite entitlement where governing law "provides that they may be discharged only for cause." Id.; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (state employee who by state statute could not be dismissed except for "misfeasance, malfeasance, or nonfeasance" had protected property right). Those employed for limited terms or at will have no such interest. Roth, 408 U.S. at 578, 92 S.Ct. 2701. Federal employees covered by the CSRA have a property interest in their continued employment. Humberson, 236 F.Supp.2d at 31. Those employees not covered by the termination provisions of the CSRA, like Lamb, have no such property right. Garrow, 856 F.2d at 205-06.
The statute and regulations governing the availability to federal employees of continuing health insurance coverage upon termination cannot be read to so constrain the Attorney General's discretion as to create a property interest. The option to elect to receive continued health insurance coverage is to be provided to federal employees when they leave employment. 5 U.S.C. § 8905a(a). However, the option to elect COBRA is not available to employees terminated for gross misconduct. 5 U.S.C. § 8905a(b)(1)(A). Although OPM regulations provide a working definition of gross misconduct, e.g. 5 C.F.R. § 890.1102 ("Gross misconduct means a flagrant and extreme transgression of law or established rule of action for which an employee is separated and concerning which a judicial or administrative finding of gross misconduct has been made"), that definition must be applied by the terminating agency. The agency's determination that an employee is terminated for gross misconduct is "not subject to reconsideration by OPM."
The Court grants Holder's motion to dismiss as to Lamb's first cause of action because the Court lacks subject matter jurisdiction under the Civil Service Reform Act to review the personnel actions at issue. The Court grants Holder's motion to dismiss Lamb's second cause of action because it fails to state a claim upon which relief can be granted, insofar as it fails to adequately allege that Lamb was deprived