Opinion
Civil Action No. 04-0168 (RBW).
April 20, 2005
MEMORANDUM OPINION
This case was initiated by the filing of the plaintiff's complaint pursuant to the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. § 1371(a), to recover damages from the defendant, the United States Capitol Guide Board ("Guide Board"), for its alleged unlawful actions related to the termination of his employment. Amended Civil Complaint for Equitable and Monetary Relief ("Compl.") at ¶¶ 1-2. Currently before the Court is the plaintiff's Motion for Leave to File a Second Amended Complaint ("Pl.'s Mot.") pursuant to Federal Rule of Civil Procedure 15(a), and his Memorandum in Support of his Rule 15(a) Motion for Leave to File a Second Amended Complaint ("Pl.'s Mem."). Also before the Court are the Defendant's Opposition to Rule 15(a) Motion for Leave to File Second Amended Complaint ("Def.'s Opp'n") and the Plaintiff's Reply to Defendant's Opposition to Plaintiff's Rule 15(a) Motion for Leave to File Second Amended Complaint ("Pl.'s Reply"). For the following reasons, the Court denies the plaintiff's motion.
The plaintiff originally brought this action against both the Guide Board and the United States Capitol Guide Service ("Guide Service"). On October 12, 2004, the plaintiff filed a notice of voluntary dismissal of the Guide Service pursuant to Rule 41(a)(1)(I), thereby leaving the Guide Board as the sole defendant in this case.
I. Background
The Court will only briefly review the facts of this case to the extent necessary to resolve the pending motion. Congress created the United States Capitol Guide Service ("Guide Service") to provide guided tours of the "United States Capitol Building for the education and enlightenment of the general public." 2 U.S.C. § 2166(b). The Guide Service is subject "to the direction, supervision, and control of the Guide Board, which consists of the Architect of the Capitol, the Sergeant at Arms of the Senate, and the Sergeant at Arms of the House of Representatives." Id. The plaintiff, who is deaf, and, as such, is alleged to be a qualified individual with a disability as defined by the Rehabilitation Act of 1973, 29 U.S.C. § 791, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111(8), began his employment with the Guide Service on January 1, 1994, as a guide. Compl. ¶¶ 9, 10. According to the plaintiff, as an employee of the Guide Service and the Guide Board, which are considered "employing offices" under the CAA, his employment is governed by the CAA. Compl. ¶¶ 5, 7; see 2 U.S.C. § 1301(3)(C), (9)(D).
A "covered employee" means an employee of the Guide Service. 2 U.S.C. § 1301(3)(C).
An "employing office" means the Guide Board. 2 U.S.C. § 1301(9)(D).
In 1996, the plaintiff applied for the position of Chief Guide with the Guide Service but was not selected. Id. ¶¶ 12, 13. Rather, another employee, who is not disabled, and according to the plaintiff, less qualified than him, was selected. Id. ¶ 13. The plaintiff opines that his nonselection was due solely to his disability and need for sign language interpreter services. Id. ¶ 15. On March 4, 1996, the plaintiff requested counseling with the Office of Compliance regarding his failure to receive the promotion and subsequently participated in two mediation meetings. During the second meeting, counsel for the Guide Service asserted that the plaintiff's nonselection was not the result of discrimination.
In June, 1996, the plaintiff received a "Memorandum of Serious Misconduct," which alleged that he had engaged in sexual harassment and that the allegations had arisen during the investigation of the his failure to promote complaint. Id. ¶¶ 17, 18. This memorandum was placed in the plaintiff's personnel file. Id. ¶ 21. In March, 1997, the plaintiff filed a formal complaint alleging promotion discrimination and that the charges of sexual harassment without an opportunity to rebut the charges constituted retaliation because of his non-promotion complaint.Id. ¶¶ 24-27. Following the filing of this complaint, an investigation ensued and all adverse references to the "Memorandum of Serious Misconduct" were removed from the plaintiff's personnel records. Id. ¶ 28.
Over the next 6 years, the plaintiff alleges that his supervisor "bore a grudge" against him, which resulted in the creation of a difficult work environment. For example, information on policy changes and tour information were allegedly withheld from the plaintiff. Id. ¶ 42-44. Moreover, the plaintiff opines that he was treated in a disparate manner from his similarly situated co-workers when he asked for vacation and bereavement leave. Id. ¶¶ 50-54.
On July 15, 2003, the plaintiff's employment with the Guide Service was terminated following an investigation into alleged inappropriate conduct as evidenced by purported ethnic and sexual comments made by the plaintiff during conversations with a coworker. Id. ¶¶ 56-66. The plaintiff argues that his conversations with his coworker were innocuous and hence, his termination allegedly based on them was truly in retaliation for the complaints he filed in 1996 and 1997. Id. ¶ 69. Accordingly, the plaintiff commenced this action on February 5, 2004, alleging that the Guide Board retaliated against him in violation of the CAA, when it terminated his employment in July, 2003. Id. ¶¶ 1, 2.
II. The Parties' Arguments
In the current motion that is the subject of this opinion, the plaintiff seeks to amend his complaint to include causes of action under the Fifth Amendment's Due Process clause and the Equal Protection rights derived from the Fifth Amendment's due process clause. Pl.'s Mem. ¶ 4. The plaintiff asserts that the defendant terminated him without first affording him a hearing consistent with the Fifth Amendment's procedural due process protections, which would have provided him an opportunity to refute the charges leveled against him. Second Amended Civil Complaint for Equitable and Monetary Relief ("Second Amend. Compl.") at ¶ 2. Moreover, the plaintiff avers that the defendant's decision to terminate him was in retaliation for the plaintiff engaging in protected activity. Id.
The defendant opposes the plaintiff's motion arguing that the motion should be denied because the amendment would be futile. Def.'s Opp'n at 5. Specifically, the defendant maintains that this Court lacks subject matter jurisdiction over the plaintiff's proposed Fifth Amendment claims. Id. According to the defendant, the CAA provides the exclusive remedy for employment discrimination lawsuits brought against congressional offices.Id. at 4, 6. The defendant emphasizes that allowing the plaintiff to amend his complaint to include Fifth Amendment claims would be futile because the CAA precludes such claims.Id. at 6, 8.
In his reply, the plaintiff alleges that the "power of [d]efendant has been brought to bear upon him merely because a powerful official harbored a malignant animosity toward him," which is the essence of his equal protection violation claim. Pl.'s Reply at 3. The plaintiff contends that where similarly situated individuals are treated in a disparate manner, the disadvantaged person can pursue an equal protection claim. Id. The plaintiff also maintains that federal employees have protectible property and liberty interests that warrant due process protection and, therefore, a dismissed employee should have an opportunity to refute disparaging allegations made against him, which the plaintiff did not receive. Id. at 5.
III. Standard of Review
Under Rule 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or . . . only by leave of court or by written consent of the adverse party. . . ." Fed.R.Civ.P. 15(a). Rule 15(a) states that "leave [to amend a complaint] shall be freely given when justice so requires." Id. Under this liberal standard of Rule 15(a), leave to amend should be freely given under most circumstances. See Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, "[l]eave to amend a complaint should be freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility." Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Foman, 371 U.S. at 182).
Courts have routinely applied this standard to deny amendments under Rule 15(a) when the proposed amended pleading could be defeated by a motion for summary judgment or a motion to dismiss.See, e.g., Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n. 21 (D.C. Cir. 1983) (holding that a court is under no obligation under Rule 15 to permit filing of second amended complaint when the amendments "constitute futile gestures");Collyard v. Washington Capitals, 477 F. Supp. 1247, 1249 (D. Minn. 1979) (denying proposed amended claims as they would be subject to dismissal under Rule 12(b)(6)); In re Ampicillin Antitrust Litig., 82 F.R.D. 647, 650 (D.D.C. 1979) (finding that the court need not allow addition of claims which are unlikely to succeed on the merits). Thus, a district court is justified in denying a proposed amendment if it cannot withstand a motion to dismiss. Glick v. Koenig, 766 F.2d 265, 268 (7th Cir. 1985) (quoting Holloway v. Dobbs, 715 F.2d 390, 392-93 (8th Cir. 1983)).
IV. Legal Analysis
The plaintiff is seeking to amend his complaint for a second time to revise the facts and counts in the Amended Complaint and to include his Fifth Amendment claims. Here, the Court concludes that it is without jurisdiction over the plaintiff's Fifth Amendment claims and therefore these new claims could not withstand a dismissal motion. In order to survive a dismissal motion under Rule 12(b)(1) "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Accordingly, for the reasons set forth below, permitting the plaintiff to amend his complaint would be futile. See Holloway, 715 F.2d at 393.
As already noted, pursuant to Rule 15(a), parties are permitted to amend a pleading once before a responsive pleading is served without leave of the court or consent by the other party. Here, because the plaintiff has already filed an amended complaint and the defendant does not consent to this amendment, this Court must grant leave for the plaintiff to file a second amended complaint.
The CAA, which governs employment discrimination disputes between congressional offices and their employees, states that "no person may commence an administrative or judicial proceeding to seek a remedy for the rights and protections afforded by this chapter except as provided in this chapter." 2 U.S.C. § 1361(d)(1). "The CAA . . . makes 11 employment laws applicable to the legislative branch, and establishes administrative and judicial procedures for the resolution of disputes arising under the Act." Payne v. Meeks, 200 F. Supp. 2d 200, 203 (E.D.N.Y. 2002); see 2 U.S.C. §§ 1301- 1438. Congress, through the CAA, intended to give congressional employees certain employment benefits and remedies while withholding other benefits and remedies. See Payne, 200 F. Supp. 2d. at 205-6. Thus, the CAA has been construed to be the sole means for congressional employers to allege either statutory or constitutional causes for actions based on employment disputes. Blackmon-Malloy v. United States Capitol Police Bd., 338 F. Supp. 2d 97, 100 (D.D.C. 2004); Payne, 200 F. Supp. 2d. at 206. In fact, courts have held that "the CAA does not provide any remedy for the violation of a congressional employee's constitutional rights." Payne, 200 F. Supp 2d. at 203; cf. Bush v. Lucas, 462 U.S. 367, 368 (1983) ("[S]uch claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, . . . it would be inappropriate for [the court] to supplement that regulatory scheme with a new judicial remedy.").
See, e.g., 2 U.S.C. § 1302(a) (providing in part that "[t]he following laws shall apply, as prescribed by this Act, to the legislative branch of the Federal Government: (2) Title VII of the Civil Rights Act of 1964; (3) the American with Disabilities Act of 1990; (10) the Rehabilitation Act of 1973 . . .").
In Payne, the plaintiff filed an action alleging that the defendants had violated the CAA and then subsequently amended her complaint to include a constitutional claim alleging that the defendants violated her First Amendment rights. Payne, 200 F. Supp. 2d at 202. The plaintiff based her constitutional claim onBivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which held that federal officers acting under the color of law were liable for damages caused by their violation of the plaintiff's constitutional rights. Payne, 200 F. Supp. 2d at 202. The court in Payne, however, relying on Bush, 462 U.S. at 368, Schweiker v. Chilicky, 487 U.S. 412 (1988) and United States v. Fausto, 484 U.S. 439 (1988), noted that courts should "decline to create a remedy for constitutional violations where there is an `explicit congressional declaration' that injured parties should be `remitted to another remedy, equally effective in the view of Congress. . . .'" Payne, 200 F. Supp. 2d at 202-04. The court further recognized that "the comprehensive statutory scheme [of the CAA] established by Congress to govern the rights of congressional employees clearly [precluded the plaintiff's]Bivens claim for unconstitutional discharge." Id. at 205. This Court agrees with the Payne analysis.
Accordingly, this Court concludes that here it may only exercise its power and "make the kind of remedial determination that is appropriate for a common-law tribunal," in the absence of a clear statutory intent, by statutory language, legislative history or by the statutory remedy itself, precluding relief for constitutional violations. Bush, 462 U.S. at 378. "Congress is in a far better position than a court" to balance governmental efficiency and the rights of government employees. Id. at 389. Therefore, this Court cannot "`create a new substantive legal liability without legislative aid and as at the common law,'" especially when Congress has decided whether or not the public interest would be served by creating such liability. Id. at 390 (quoting United States v. Standard Oil Co., 332 U.S. 301, 302 (1947); see also Fausto, 484 U.S. at 443-46 (examining the purpose of and the entire text of the Civil Service Reform Act and holding that the Act precluded the plaintiff's adverse personnel action claim brought under a separate statute).
Prior to the enactment of the CAA, the Civil Service Reform Act of 1978 ("CSRA") governed civil service employees and created a "`framework for evaluating adverse personnel actions against [federal employees],'" Fausto, 484 U.S. at 443 (quotingLindahl v. OPM, 470 U.S. 768, 774 (1985)). The CSRA grants congressional employees certain employment benefits and the CAA, enacted in 1995, extends additional benefits and protections to such employees. Payne, 200 F. Supp. 2d at 205. Congress "enacted the CAA against the background of the CSRA" and purposely withheld from congressional employees any remedy for constitutional violations. Id. at 206.
Here, Congress has spoken directly and created a comprehensive statutory scheme under which the plaintiff can challenge an employment decision. 2 U.S.C. §§ 1301- 1438. This remedy has been found to be sufficient to provide relief for purported First Amendment violations and this Court can fathom no reason, and the plaintiff offers none, why the CAA does not also provide a sufficient remedy for the purported Fifth Amendment violations. Thus, the plaintiff, as a "covered" congressional employee, is precluded from bringing a constitutional claim against the Guide Board, a "covered" employer, under the CAA. This result is mandated because the plaintiff's claim arises out of his employment relationship with the Guide Board, which is governed by the comprehensive provisions of the CAA. Therefore, the plaintiff is precluded from asserting any Fifth Amendment claims, as those claims cannot be pursued under the CAA. See 2 U.S.C. §§ 1301- 1438; see, e.g., Payne, 200 F. Supp. 2d at 206 (recognizing that Congress' enactment of the CAA precludes federal employees from bringing Bivens actions for workrelated grievances). Morever, this Court must decline to allow the plaintiff to pursue a new judicial remedy, Bush, 462 U.S. at 368, which "would . . . turn [the structure of the statutory scheme] upside down" by providing "employees lacking a remedy under the scheme . . . [freedom] to pursue other avenues of relief." Payne, 200 F. Supp. at 206 (citing Fausto, 484 U.S. at 439).
Based on the foregoing, it is clear that the CAA precludes this Court from asserting subject matter jurisdiction over the plaintiff's Fifth Amendment claims. Accordingly, this Court cannot exercise subject matter jurisdiction over the new allegations of the second amended complaint and therefore permitting the amendment would be futile. Caribbean Broad. Sys. v. Cable Wireless PLC, 148 F.3d 1080, 1084 (D.D.C. 1998). Although Rule 15(a) must be constructed to permit liberal amendments of the pleadings, the Rule does not require this Court to indulge futile attempts to do so. DeLoach v. Woodley, 405 F.2d 496, 497 (5th Cir. 1968). Therefore, because the plaintiff's amended complaint would not survive a motion to dismiss, this Court must deny the plaintiff's motion to further amend his complaint. See Holloway, 715 F.2d at 392 ("The decision as to whether to grant leave to amend is entrusted to the sound discretion of the district court, . . . ."); see also Foman, 371 U.S. at 182.
V. Conclusion
For the reasons set fourth above, the Court concludes that the plaintiff has failed to satisfy his burden of establishing that this Court has subject matter jurisdiction over his Fifth Amendment claims. Therefore, it would be futile for this Court to allow the plaintiff to amend his complaint under Rule 15(a). Consequently, this Court must deny the plaintiff's motion.
An Order consistent with this Court's ruling accompanies this Memorandum Opinion.