RICHARD W. ROBERTS, District Judge.
Plaintiff Betty Clayton brings suit against the District of Columbia ("District") and the District of Columbia National Guard ("DCNG"), alleging that the District violated the D.C. Whistleblower Protection Act ("DC-WPA"), D.C.Code § 1-615.51 et seq., the D.C. False Claims
Clayton's amended complaint makes the following factual assertions. In June 2008, Clayton was appointed as the Director of the D.C. Government Operations Division of the DCNG. Am. Compl. ¶ 5. The D.C. Government Operations Division is "simultaneously a Directorate within Joint Force [Headquarters], DC National Guard and an agency of the Government of the District of Columbia." Id. ¶ 9.
As the agency head, Clayton was "under an obligation and duty to investigate and discipline potential wrongdoing at the DCNG as well as report fraud, waste and abuse." Am. Compl. ¶ 11. In this capacity, from April 2010 through August 2010, Clayton reported several incidents of unlawful
Later, Clayton reported that Charlotte Clipper, the Human Resources Supervisor of the D.C. Government Operations Division, had "engaged in behavior that was inappropriate and against policy on numerous occasions." Id. ¶¶ 8, 22. For example, Clayton reported that Clipper had used a DCNG credit card to illegally pay for attorney's fees for a non-work-related matter for a former employee, and that Clipper had promoted herself, "wrote her own performance evaluation for an incentive award," and "inappropriately removed paychecks from the DCNG building[.]" Id. ¶¶ 24-29, 32. Again, JAG investigators tried to stop Clayton from reporting Clipper's violations, id. ¶¶ 36-37, but Clayton reported the violations, id. ¶ 38. Clayton also reassigned Clipper and attempted to have her terminated from the DCNG. Id. ¶ 40. Clayton reported these and other violations to General Schwartz. Id. ¶ 65.
In May 2010, "General Schwartz's staff solicited the advice of the D.C. Human Resources Department's General Counsel regarding General Schwartz's administrative authority over the employees of the Government Operations Division." Id. ¶ 70. On August 27, 2010, Attorney General Nickles responded to General Schwartz's inquiry stating that the Division is a "subordinate agency of the Mayor of the District of Columbia" and that the Director of the Government Operations Division is "a District employee" who is "subject to the personnel rules, regulations, laws and the policy of the District[.]" Def. D.C.'s Mot. to Dismiss the Am. Compl. ("District's Mot."), Ex. (Letter from Peter J. Nickles, Attorney General for the District of Columbia, to Major General Erroll [sic] R. Schwartz, Commanding General, District of Columbia National Guard (Aug. 27, 2010) at 1-2). The Director's "chief responsibility" is "[s]upervision of District personnel assigned to the DCNG." Id. at 2. Although the Division is a District agency, in light of the Division's mission "to facilitate the coordination of operational programs so that the National Guard can efficiently respond to natural and civil emergencies in the District," the Commanding General has "the opportunity to collaborate with District officials regarding the personnel matters of the Division[.]" Id. The Commanding General is also "free to confer with the Mayor" on personnel matters "if personnel problems rise to the level where it impacts the readiness of the National Guard[.]" Id.
In August 2010, Clayton also met with Attorney General Nickels to discuss "the interplay between the Government Operations Division of the DCNG and the DCNG." Am. Compl. ¶ 77. The Attorney General told Clayton that she should report to Neil Albert, the District of Columbia City Administrator and a close personal friend of General Schwartz. Id. After meeting with the Attorney General, Clayton contacted Albert numerous times but was told that Albert could meet with her no sooner than mid-November 2010. Id.
On October 26, 2011, Clayton filed suit against the District and the DCNG. In Clayton's five-count amended complaint, Clayton alleges in Counts One and Two that the District retaliated against her for making protected disclosures and engaging in protected conduct in violation of the DC-WPA and the DC-FCA respectively. Id. ¶¶ 86-97. Count Three alleges that the District wrongfully terminated Clayton in violation of District of Columbia common law. Id. ¶¶ 98-102. Count Four alleges that the District and the DCNG violated Clayton's constitutional due process rights by depriving Clayton of her protected property interest in her employment and right to seek review of any termination of her employment with the Office of Employee Appeals ("OEA") without due process, and seeks money damages for the constitutional violation. Id. ¶¶ 103-07. Count Five seeks a declaratory judgment that D.C.Code § 1-609.58(a) is unconstitutional on its face and as applied. Id. ¶ 117 & 18-19.
The DCNG moves to dismiss the counts against it under Rule 12(b)(1) because neither Congress nor the DCNG has waived sovereign immunity for Clayton's constitutional claims. D.C. Nat'l Guard's Mot. to Dismiss, D.C. Nat'l Guard's Mem. in Supp. of Mot. to Dismiss ("DCNG's Mem.") at 6-9. The District also moves to dismiss the amended complaint under Rule 12(b)(6). District's Mot. at 1. Clayton opposes.
Clayton's amended complaint seeks damages from the DCNG under the Fourteenth Amendment and a declaratory judgment that D.C.Code § 1-609.58(a) is unconstitutional. The DCNG argues that both counts must be dismissed because
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). "A waiver of sovereign immunity `must be unequivocally expressed in statutory text, and will not be implied.'" Kurtz v. United States, 798 F.Supp.2d 285, 289 (D.D.C. 2011) (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)). If sovereign immunity has not been waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Mullen v. Bureau of Prisons, 843 F.Supp.2d 112, 116 (D.D.C. 2012); see also Meyer, 510 U.S. at 475, 114 S.Ct. 996 (stating that "[s]overeign immunity is jurisdictional in nature"). "Plaintiff bears the burden of establishing that sovereign immunity has been abrogated." Stone v. Dep't of Hsg. & Urban Dev't, 859 F.Supp.2d 59, 63 (D.D.C.2012).
In considering a motion to dismiss for lack of subject matter jurisdiction, a court "treat[s] the complaint's factual allegations as true" and "grant[s] 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)). However, "[b]ecause subject matter jurisdiction focuses on the court's power to hear the claim, ... the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion[.]" Aref v. Holder, 774 F.Supp.2d 147, 159 (D.D.C. 2011).
Clayton does not dispute the DCNG's assertion that the DCNG is a federal entity. Even if she did, "`[i]t is apparent that the organized militia of the District of Columbia, which is organized, armed, and controlled by the President of the United States, is essentially a component of the federal government.'" Lilly v. Schwartz, 713 F.Supp.2d 15, 19 n. 2 (D.D.C.2010) (quoting Seegars v. Ashcroft, 297 F.Supp.2d 201, 241 (D.D.C.2004)). In light of the "degree of supervision and control exercised over the District Guard in peacetime by federal authorities[,]" the DCNG is a federal entity during times of peace and times of war. O'Toole v. United States, 206 F.2d 912, 917-18 (3d Cir.1953).
Despite the DCNG's status as a federal entity, Clayton argues that the court has subject matter jurisdiction over Clayton's claim for damages allegedly caused by the DCNG's constitutional violation because federal courts have jurisdiction to hear military personnel decisions where constitutional wrongs are alleged. Clayton primarily relies on two cases for her argument: Lilly and Larsen v. U.S. Navy, 486 F.Supp.2d 11 (D.D.C.2007). However, neither case provides support for Clayton's argument that the United States has waived sovereign immunity for claims for damages caused by constitutional violations. In Lilly, the plaintiff brought suit challenging his removal from the DCNG and alleging that "the procedures that led to his separation were inadequate." Lilly, 713 F.Supp.2d at 17. There, the plaintiff sought an equitable remedy in the form of reinstatement to full active duty. Id. at 16. Similarly, in Larsen, the plaintiff sought review of a military personnel decision, alleging a constitutional violation and seeking equitable remedies, and the court held that sovereign
The DCNG also argues that the court does not have subject matter jurisdiction over Clayton's claim against it for a declaratory judgment that D.C.Code § 1-609.58(a) is unconstitutional. Clayton asserts that this court has jurisdiction to hear her claims under 28 U.S.C. §§ 1332 and 1367. Am. Compl. ¶ 4. However, neither statute waives sovereign immunity. See Reading v. United States, 506 F.Supp.2d 13, 20-21 (D.D.C.2007). Similarly, the Declaratory Judgment Act, 28 U.S.C. § 2201, provides a remedy where the court already has jurisdiction, but the Act does not waive sovereign immunity. See Stone v. Holder, 859 F.Supp.2d 48, 52 (D.D.C.2012) (citing Walton v. Fed'l Bureau of Prisons, 533 F.Supp.2d 107, 114 (D.D.C.2008)). Because Clayton has not demonstrated that sovereign immunity has been abrogated for her claim seeking declaratory relief, Count V will be dismissed as to the DCNG.
The District alleges that Clayton's amended complaint should be dismissed because it fails to state a claim against it.
A district court can dismiss a complaint under Rule 12(b)(6) when the complaint "fail[s] to state a claim upon which relief can be granted[.]" Fed.R.Civ.P. 12(b)(6); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002) ("A Rule 12(b)(6) motion tests the legal sufficiency of a complaint[.]").
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955. However, "[w]here a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
When considering a Rule 12(b)(6) motion, a court construes the complaint in
The District argues that Clayton failed to allege sufficient facts in Counts One, Two, and Three to demonstrate that there was a causal connection between Clayton's protected activities and the adverse employment action. District's Mot. at 1.
Clayton must allege that there is a causal link between her supervisors' threats of termination and her ultimate termination on the one hand and her protected disclosures on the other hand to state a claim of retaliation under the DC-WPA
A plaintiff may show causation through direct evidence or circumstantial evidence, such as by showing that the employer had knowledge of the employee's protected conduct and a close temporal proximity between the employer's knowledge and the adverse actions. Rattigan v. Gonzales, 503 F.Supp.2d 56, 77 (D.D.C. 2007); see also Johnson, 935 A.2d at 1120-21. Clayton argues that her amended complaint alleges sufficient facts to create an inference that her reclassification and termination were in retaliation for her protected conduct.
The temporal proximity between Clayton's protected activities and her reclassification and termination also support Clayton's argument that the adverse employment actions were retaliatory. Clayton alleges that she engaged in protected conduct through August 2010. See id. ¶ 42. Clayton's position was reclassified the next month and she was notified of her termination in October 2010. Id. ¶¶ 74, 76. The passage of merely two months between Clayton's protected conduct and the reclassification and termination can be sufficient to establish a causal connection. See Booth v. District of Columbia, 701 F.Supp.2d 73, 79 (D.D.C. 2010). Clayton's retaliation and wrongful termination claims will not be dismissed for failure to state a claim.
Clayton claims that reclassifying the Director position as an MSS position violated the DC-WPA. The District argues this claim should be dismissed because it is time-barred. District's Mot. at 1. To bring a civil action against the District under DC-WPA, a complainant must file the action "within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first." D.C.Code § 1-615.54(a)(2). Clayton filed her original complaint on October 26, 2011. Courts presume that an employee becomes aware of the violation at the time that the adverse employment act occurs. See Sharma v. District of Columbia, 791 F.Supp.2d 207, 214 (D.D.C.2011); Stephenson v. Am. Dental Ass'n, 789 A.2d 1248, 1250 (D.C. 2002). However, an employee may argue that she did not learn that the action was retaliatory until some later date, and thus, the one-year statutory period began later. See Payne v. District of Columbia, 808 F.Supp.2d 164, 171 (D.D.C.2011) (explaining that the one-year statute of limitations for the employee's DC-WPA claim that his termination was retaliatory began when the employee received notice of his termination because the employee "never argued that he did not discover that his termination was retaliatory until some later date").
The parties implicitly agree that a one-year statute of limitations applies to Clayton's reclassification claim but they disagree to as to when the period began. The District argues that the one-year period began on September 27, 2010 when Clayton "received a letter `removing her from her protected career service position and reassigning her to an at-will MSS position[.]'" District's Mot., Mem. of P. &
The District also argues that Clayton's wrongful termination claim should be dismissed for failure to state a claim. District's Mem. at 15-17. Clayton counters that her wrongful termination claim falls under the "Adams exception" and is distinct from her DC-WPA claim because Clayton also claims that she was terminated for reporting Jones's sexual harassment complaint and "for taking action to stop [Clipper's] illegal activity[,]" not just for reporting it. Pl.'s Opp'n at 24.
Generally, an employer may terminate an "at-will" employee at any time for any reason. However, in Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 34 (D.C.1991), the District of Columbia Court of Appeals recognized a narrow public policy exception to the at-will doctrine when "the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation." Id. In Carl v. Children's Hospital, 702 A.2d 159 (D.C.1997), the court expanded the public policy exception to include any exception "firmly anchored either in the Constitution or in a statute or regulation which clearly reflects the particular `public policy' being relied upon." Id. at 162 (Terry, J., concurring); see also Stevens v. Sodexo, Inc., 846 F.Supp.2d 119, 126 (D.D.C.2012).
To state a claim for wrongful termination, the at-will employee must "clearly articulate the applicable public policy[.]" Stevens, 846 F.Supp.2d at 126. Even where there is a showing of a clearly identifiable policy, the D.C. Court of Appeals has refused to find new exceptions to the doctrine of at-will employment where the legislature has already "`creat[ed] a specific, statutory cause of action to enforce' the public policy at issue." See LeFande v. District of Columbia, 864 F.Supp.2d 44, 50 (D.D.C.2012) (quoting Carter v. District of Columbia, 980 A.2d 1217, 1225-26 (D.C. 2009)).
Here, Clayton's wrongful termination claim fails for two reasons. First, to the extent that Clayton claims that she was wrongfully terminated because she reported Jones's sexual harassment complaint and attempted to stop Clipper's allegedly illegal activity, Clayton does not clearly articulate the applicable public policy found in the Constitution, a statute, or a regulation. Her amended complaint alleges that as the Director of the D.C. Government Operations Division, Clayton was "under an obligation and duty to investigate and discipline potential wrongdoing at the DCNG[.]" Am. Compl. ¶ 11; see also id. ¶ 18. However, Clayton does not identify an actual statute or municipal regulation that articulates the public policy she
Second, to the extent that Clayton claims that she was wrongfully terminated because she reported fraud, waste, and abuse, her wrongful termination claim fails because this conduct also violates the DC-WPA and the DC-WPA provides a remedy for the illegal conduct.
Clayton claims that converting the Director position to an MSS position and terminating her violated the Due Process Clause of the Fifth Amendment. Clayton also brings a facial challenge to the constitutionality of D.C.Code § 1-609.58(a). The District argues that Clayton's facial challenge is contrary to settled law and does not state a claim for procedural due process.
To state a procedural due process claim, a plaintiff must show that she was deprived of life, liberty, or property without due process of law. See Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991). "Property interests are not created by the Constitution, `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law[.]'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).
The District argues that reclassifying the Director position from a Career Service position to an MSS position did not violate Clayton's due process rights as a matter of law because the position was reclassified to comply with D.C.Code § 1-609.58(a), a legislative action converting
Clayton was hired into a Career Service position that carried with it a property right.
"[The court] [h]aving determined that [Clayton] possessed a protected property interest in [her Career Service position], the next question is what process was due." Propert, 948 F.2d at 1331. Generally, a hearing is required before a party can be deprived of a property right. Where a party is deprived of a property right following enactment of a statute, though, "the legislative determination provides all the process that is due[.]" Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); see also Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 60 L.Ed. 372 (1915). The District reclassified the Director position as an MSS position to comply with D.C.Code § 1-609.58. Clayton does not argue that the legislative process to enact the statute was constitutionally deficient, but she notes that D.C.Code § 1-609.58 was enacted long before her appointment and was not what triggered the reclassification. Given that, it may be that her initial designation as a Career Service employee rather than an MSS employee was faulty. Nevertheless, the District argues that Clayton received all the process due under the statute when a Career Service management employee is converted to MSS status. Clayton neither disputes the legislative prerogative to abolish protected government jobs nor sets forth what process was due her in addition to the alternatives she was offered by law to accept the reclassification or pursue other Career Service opportunities, unpleasant as the alternatives may have been. Clayton's claim that reclassification of her position was unconstitutional will be dismissed.
The District argues that Clayton's termination did not violate the Due Process Clause because Clayton did not have a protected property interest in her job at the time she was terminated. District's Mem. at 18-19. Unlike a Career Service position, "an at-will [MSS] employee has no liberty or property interest in continued employment, and it is clear that D.C. law creates no such interest." O'Donnell v. Barry, 148 F.3d 1126, 1139 (D.C.Cir.1998). Because Clayton was an at-will, MSS employee at the time she was terminated, she did not have a property interest in her position and she was not entitled to an OEA appeal before she was terminated. See Leonard v. District of Columbia, 794 A.2d 618, 623-27 (D.C.2002).
Because Clayton did not establish that the DCNG waived sovereign immunity, the DCNG's motion to dismiss will be granted. Clayton alleged a causal connection between her protected disclosures and the adverse employment actions and demonstrated that her DC-WPA claim is not time-barred. Thus, Clayton's DC-WPA and DC-FCA claims will not be dismissed. Because Clayton failed to state a claim of wrongful termination, her common law claim will be dismissed. Clayton has not pled facts reflecting that she was denied due process when the Director position was reclassified as an MSS position, and Clayton did not have a property interest in her job at the time she was terminated. In addition, Clayton failed to state a claim making a facial challenge to D.C.Code § 1-609.58(a). Thus, her due process claim and claim for a declaratory judgment that D.C.Code § 1.609.58(a) is unconstitutional on its face will be dismissed. Accordingly, it is hereby
ORDERED that the DCNG's motion [27] to dismiss be, and hereby is, GRANTED. It is further
ORDERED that the District's motion [26] to dismiss be, and hereby is GRANTED IN PART and DENIED IN PART. The District's motion regarding Counts One and Two of Clayton's amended complaint is denied. Counts Three and Four and Clayton's facial challenge to D.C.Code
Plaintiff Betty Clayton brings suit against the District of Columbia ("District") alleging that the District reclassified her position and terminated her in violation of D.C. law and the United States Constitution. The District moves for reconsideration of a March 21, 2013 memorandum opinion and order that granted in part and denied in part the District's motion to dismiss. Because justice does not require reconsideration, the District's motion will be denied.
The background of this case is discussed more fully in Clayton v. District of Columbia, Civil Action No. 11-1889(RWR), 2013 WL 1154098 (D.D.C. Mar.21, 2013). Briefly, Clayton was the Director of the D.C. Government Operations Division of the District of Columbia National Guard ("DCNG"). Id. at *1. "During the events relevant to the complaint, Clayton reported to Major General Errol Schwartz, the Commanding General of the Joint Force Headquarters of the DCNG." Id. As the agency head, Clayton was "under an obligation and duty to investigate and discipline potential wrongdoing at the DCNG as well as report fraud, waste and abuse." Id. (internal quotation marks omitted). Clayton alleges that in this capacity, she reported several incidents of unlawful conduct within the DCNG despite pressure from the Judge Advocate General and federal Inspector General investigators "to not file or report the sexual harassment allegations[.]" Id. (internal quotation marks omitted).
When Clayton was appointed, the Director of the D.C. Government Operations Division was a Career Service position. Id.
Clayton, 2013 WL 1154098, at *2.
"On September 27, 2010, Clayton received a letter stating that the Director position was being reclassified from a Career
Clayton filed suit alleging, in Count Four, that the District violated Clayton's constitutional due process rights by depriving Clayton of her protected property interest in her employment and right to seek review with the Office of Employee Appeals of any termination of her employment without due process. Id. Count Five sought a declaratory judgment that D.C.Code § 1-609.58(a) is unconstitutional on its face and as applied to Clayton. Id.
The District moved to dismiss Clayton's amended complaint. A March 21, 2013 memorandum opinion and order granted in part and denied in part the District's motion and dismissed Count Four and Clayton's facial challenge to D.C.Code § 1-609.58(a) in Count Five. Id. However, the District did not challenge Clayton's as-applied constitutional challenge to D.C.Code § 1-609.58(a) in its motion to dismiss. Id. at *8 n. 12. Accordingly, the memorandum opinion and order did not consider the merits of Clayton's as-applied claim and that claim was not dismissed.
The District now moves for reconsideration of the March 21, 2013 memorandum opinion and order to the extent that it did not dismiss Clayton's as-applied challenge to D.C.Code § 1-609.58(a). The District contends that it "intended to contest all of the claims set forth" in Clayton's amended complaint. Def. D.C.'s Mot. for Recons. of Court's Mar. 21, 2013 Mem. Op. & Order ("Def.'s Mot."), Def.'s Mem. in Supp. of Def.'s Mot. for Recons. ("Def.'s Mem.") at 3. However, the District admits that it
Id. (quoting Am. Compl. ¶ 106). The District asserts that its "failure to make clear that the arguments sets forth in [its motion to dismiss] were intended to address
The District moves for reconsideration under Federal Rule of Civil Procedure 60(b). However, Rule 54(b), and not Rule 60(b), "governs reconsideration of orders that do not constitute final judgments in a case." Cobell v. Norton, 224 F.R.D. 266, 271 (D.D.C.2004); see also Fed. R.Civ.P. 54(b) (providing that Rule 54(b) governs "any order or other decision ... that adjudicates fewer than all the claims... of fewer than all the parties"). Here, the March 21, 2013 memorandum opinion and order granting in part and denying in part the District's motion to dismiss did not dispose of all of Clayton's claims. Thus, the District's motion will be analyzed under Rule 54(b).
Rule 54(b) provides that an interlocutory order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b). "Under Rule 54, a court may reconsider an interlocutory decision `as justice requires.' " United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F.Supp.2d 258, 268 (D.D.C.2012) (quoting Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C.Cir.2011)). The as justice requires standard "leave[s] a great deal of room for the court's discretion and, accordingly, ... amounts to determining `whether reconsideration is necessary under the relevant circumstances.' "Judicial Watch v. Dep't of the Army, 466 F.Supp.2d 112, 123 (D.D.C.2006) (quoting Cobell, 224 F.R.D. at 272). Justice may so require where the court has "`patently misunderstood the parties, made a decision beyond the adversarial issues presented, [or] made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred.'" Arias v. DynCorp, 856 F.Supp.2d 46, 51 (D.D.C.2012) (quoting Negley v. FBI, 825 F.Supp.2d 58, 60 (D.D.C.2011)). "`The moving party has the burden of showing that reconsideration is warranted, and that some harm or injustice would result if reconsideration were to be denied.' "Henok v. Chase Home Fin., LLC, Civil Action No. 12-336(RWR), 2013 WL 2352104, at *3 (D.D.C. May 30, 2013) (quoting Pueschel v. Nat'l Air Traffic Controllers' Ass'n, 606 F.Supp.2d 82, 85 (D.D.C.2009)).
The District does not assert that the parties were patently misunderstood or that the March 21, 2013 memorandum opinion and order made some other mistake warranting reconsideration under Rule 54(b). Instead, the District admits that Clayton's as-applied challenge was not considered because the District-not the court-misunderstood Count Five in Clayton's amended complaint and because the District failed to clearly argue that Clayton's as-applied challenge should be dismissed. See Def.'s Mot. at 1; see also Def.'s Reply in Further Supp. of Def.'s Mot. for Recons. at 2-3 (stating that the District's "failure [to address Clayton's as-applied challenge] was merely an inadvertent drafting error"). The District further asserts that it will "likely seek dismissal of and/or summary judgment on this claim again in the future, based at least in part on [the] same arguments" the District
The District has not shown that justice requires reconsideration of the March 21, 2013 memorandum opinion and order. Accordingly, it is hereby
ORDERED that the District's motion [35] for reconsideration be, and hereby is, DENIED.
D.C.Code § 1-609.58. This provision was added to the D.C. Government Comprehensive Merit Personnel Act in June 1998. Even though the language of the statute uses the modifier "currently," it appears that the District has previously used the process outlined in the statute to reappoint to an MSS position a management employee who was appointed to a Career Service position after 1998. See, e.g., Final Brief for Appellees, Geleta v. Gray, 645 F.3d 408 (D.C.Cir.2011) (No. 10-7026), 2010 WL 6368292, at *12, *23-24. A "management employee" is "any person whose functions include responsibility for project management and supervision of staff and the achievement of the project's overall goals and objectives." D.C.Code § 1-614.11 (emphasis added). Thus, the Director of D.C. Government Operations — as described in the Attorney General's letter — is a management employee subject to D.C.Code § 1-609.58.
D.C.Code § 1-615.52. "An employee aggrieved by a violation of the [DC-WPA] may bring a civil action against the District ... seeking relief and damages[.]" D.C.Code § 1-615.54(a)(1).
D.C.Code § 1-609.58. This provision was added to the D.C. Government Comprehensive Merit Personnel Act in June 1998. Even though the language of the statute uses the modifier "currently," it appears that the District has previously used the process outlined in the statute to reappoint to an MSS position a management employee who was appointed to a Career Service position after 1998. See, e.g., Final Brief for Appellees, Geleta v. Gray, 645 F.3d 408 (D.C.Cir.2011) (No. 10-7026), 2010 WL 6368292, at *12, *23-24. A "management employee" is "any person whose functions include responsibility for project management and supervision of staff and the achievement of the project's overall goals and objectives." D.C.Code § 1-614.11 (emphasis added). Thus, the Director of D.C. Government Operations — as described in the Attorney General's letter — is a management employee subject to D.C.Code § 1-609.58.
