UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KRISTOPHER BAUMANN, Chairman of
The Fraternal Order of Police, Metropolitan
Police Labor Committee,
Plaintiff, Civil Action No. 09-1189 (CKK)
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
(April 8, 2011)
Plaintiff Kristopher Baumann (“Plaintiff” or “Baumann”), Chairman of the District of
Columbia Fraternal Order of Police and an Officer of the Metropolitan Police Department
(“MPD”), brings this action alleging that his employer unlawfully retaliated against him for
engaging in protected activity in violation of his rights under the First Amendment, the District
of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. (“DCWPA”), and the
District of Columbia Police Investigations Concerning First Amendment Activities Act of 2004,
D.C. Code §§ 5-333.01 to 5-333.13. On September 30, 2010, the Court granted-in-part and
denied-in-part Defendants’ motion for judgment on the pleadings. See Baumann v. District of
Columbia, 744 F. Supp. 2d 216 (D.D.C. 2010). On November 15, 2010, Baumann filed his
Second Amended Complaint, which adds four MPD officials as defendants in both their official
and individual capacities and also names Defendant Cathy L. Lanier, Chief of MPD, as a
defendant in her individual capacity. Presently pending before the Court are Defendants’ [59]
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Motion to Partially Dismiss Plaintiff’s Second Amended Complaint and [60] Motion to Stay
Discovery pending resolution of their motion to dismiss. For the foregoing reasons, the Court
shall GRANT-IN-PART and DENY-IN-PART Defendants’ Motion to Partially Dismiss
Plaintiff’s Second Amended Complaint and DENY Defendants’ Motion to Stay Discovery as
moot.
I. BACKGROUND
The facts alleged by Baumann in the First Amended Complaint were discussed at length
in the Court’s prior Memorandum Opinion, and the Court assumes familiarity with that opinion
here. To summarize, this action arises out of a “barricade” incident that occurred on or about
May 30, 2009. Following that incident, Baumann directed the Fraternal Order of Police (“FOP”)
Safety Committee to investigate actions that MPD officials had allegedly taken during the
incident. The investigation uncovered a taped copy of the radio communications that occurred
during the incident, and Baumann provided a portion of these recordings to two newspaper
reporters. MPD Chief of Police Cathy Lanier (“Chief Lanier”) ordered Lieutenant Dean Welch
(“Lt. Welch”) to conduct an Internal Affairs investigation into the unauthorized release of the
recordings. Baumann alleges that the Internal Affairs investigation headed by Lt. Welch violated
the terms of a collective bargaining agreement between MPD and FOP regarding the manner in
which MPD may investigate union activities. Baumann was ultimately compelled to reveal
during the Internal Affairs investigation that he had ordered the FOP Safety Committee to
investigate the barricade incident and that he had given the audio recordings to the press.
Baumann was threatened with termination and was temporarily relieved of his police duties,
purportedly due to a missed training session. Baumann also claims that MPD sent a uniformed
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officer to “monitor” a speech he gave to a political group.
In his Second Amended Complaint, Baumann adds only a few new factual allegations
pertaining to the four individuals who are added as defendants in their official and individual
capacities: Assistant Chief of Police Patrick Burke (“Asst. Chief Burke”), Assistant Chief of
Police Michael Anzallo (“Asst. Chief Anzallo”), Commander Christopher Lojacono (“Cmdr.
Lojacono”), and Lt. Welch. Specifically, Baumann alleges that Asst. Chief Burke initiated the
Internal Affairs investigation and provided false information knowing that it would contribute to
the discipline imposed on Baumann. See Second Am. Compl. ¶ 42. Baumann alleges that Asst.
Chief Anzallo, Cmdr. Lojacono, and Lt. Welch were aware of Baumann’s protected disclosures
and knowingly participated in an unjustified investigation that led to disciplinary actions against
Baumann. See id. ¶ 43. Baumann also incorporates by reference factual allegations set forth in a
post-hearing brief written by FOP in support of its unfair labor practice complaints pending
before the Public Employee Review Board (“PERB”). See Second Am. Compl. ¶¶ 41-43. That
post-hearing brief was attached as an exhibit to Plaintiff’s Motion for Leave to File Second
Amended Complaint, which the Court granted.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than
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labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. “Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
557). Rather, a complaint must contain sufficient factual allegations that, if accepted as true,
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct.
1949 (citing Twombly, 550 U.S. at 556).
When considering a motion to dismiss for failure to state a claim, the court “must accept
as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). “The complaint must be liberally construed in favor of the plaintiff,
who must be granted the benefit of all inferences that can be derived from the facts alleged.”
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted).
However, a plaintiff must provide more than just “a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 129 S.Ct. at 1950. When a complaint’s well-pleaded facts do not enable a
court, “draw[ing] on its judicial experience and common sense,” “to infer more than the mere
possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief. Id.
III. DISCUSSION
Defendants move to dismiss the new claims asserted in the Second Amended Complaint,
i.e., the claims Baumann asserts against Chief Lanier in her individual capacity and the claims
asserted against Asst. Chief Burke, Asst. Chief Anzallo, Cmdr. Lojacono, and Lt. Welch.
Defendants argue that these claims against individuals should be dismissed because: (1) at the
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time of the alleged violations, the DCWPA did not provide a cause of action against individual
supervisors; (2) any claims under the DCWPA are time barred; (3) Baumann has not alleged that
any of these individual defendants were personally involved in the alleged deprivation of
Baumann’s constitutional rights; and (4) Baumann has failed to provide a “short and plain
statement” of his claims as required by Rule 8. The Court shall address each of these arguments
below.
A. Liability for Individual Supervisors Under the DCWPA
Defendants argue that any claims against individual supervisors under the DCWPA must
be dismissed because the DCWPA did not provide a cause of action against individuals at the
time of the alleged violations. This Court has previously addressed the scope of liability under
the DCWPA prior to 2010, when the statute was amended to explicitly allow for suits against
individual defendants. In Payne v. District of Columbia, 741 F. Supp. 2d 196 (D.D.C. 2010), this
Court held that the DCWPA as originally enacted provided a cause of action only against the
District of Columbia. See id. at 210-11. In doing so, the Court agreed with opinions issued by
several other judges in this District that the DCWPA did not provide a cause of action against
individual supervisors. See Tabb v. District of Columbia, 477 F. Supp. 2d 185, 189 (D.D.C.
2007) (Friedman, J.); Winder v. Erste, Civil Action No. 03-2623, 2005 WL 736639, at *9
(D.D.C. Mar. 31, 2005) (Bates, J.). The Court’s decision was based in part on the plain language
of the statute:
An employee aggrieved by a violation of § 1-615.53 may bring a civil action before
a court or a jury in the Superior Court of the District of Columbia seeking relief and
damages, including but not limited to injunction, reinstatement to the same position
held before the prohibited personnel action or to an equivalent position, and
reinstatement of the employee’s seniority rights, restoration of lost benefits, back pay
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and interest on back pay, compensatory damages, and reasonable costs and attorney
fees. . . . A civil action brought pursuant to this section shall comply with the notice
requirements of § 12-309.
D.C. Code § 1-615.54(a) (2001). The Court concluded that overall, based on the description of
available remedies, the requirement that aggrieved employees provide notice of their claims to
the District of Columbia under § 12-309, and the language elsewhere in the statute placing the
burden of proof on “the employing District agency,” see id. § 1-615.54(b) (2001), there was no
implied right of action against individual supervisors under the DCWPA. Payne, 741 F. Supp.
2d at 196.
The D.C. Council subsequently amended the DCWPA effective March 11, 2010. See
Whistleblower Protection Amendment Act of 2009, D.C. Code § 1-615.54(a)(1) (2010).1 The
statute now provides that “[a]n employee aggrieved by a violation of § 1-615.53 may bring a civil
action against the District, and, in his or her personal capacity, any District employee, supervisor,
or official having personal involvement in the prohibited personnel action . . . .” D.C. Code § 1-
615.54(a)(1). Baumann argues that this Court should apply the amended DCWPA retroactively
or, alternatively, that the Court should construe the amendments as merely clarifying the scope of
the statute prior to the amendments. The Court finds these arguments to be unpersuasive.
As this Court noted in Payne, the general rule is that statutes are presumed to operate only
prospectively absent a clear indication to the contrary. See 741 F. Supp. 2d at 211 (citing Wolf v.
D.C. Rental Accommodations Comm’n, 414 A.2d 878, 880 n.8 (D.C. 1980)); accord Redman v.
Potomac Place Assocs., LLC, 972 A.2d 316, 319 n.4 (D.C. 2009) (“[It is a] well-settled principle
1
The D.C. Council passed the Act in December 2009, it was approved by the Mayor on
January 11, 2010, and it became effective on March 11, 2010.
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that retroactive applications of legislation are not to be presumed absent express legislative
language or other clear implication that such retroactivity was intended.”). The amendments to
the DCWPA do not purport to be retroactive in application. In determining whether a statute
operates retroactively, “the court must ask whether the new provision attaches new legal
consequences to events completed before its enactment.” Landgraf v. USI Film Prods., 511 U.S.
244, 269-70 (1994). “[T]here is a presumption that legislation that affects substantive rights will
operate only prospectively.” Lacek v. Washington Hosp. Ctr. Corp., 978 A.2d 1194, 1197 (D.C.
2009) (citing Landgraf, 511 U.S. at 269 n.23). There is no question in this case that the acts for
which Baumann seeks to hold the individual defendants liable occurred prior to the time the
DCWPA was amended, and applying the statute retroactively would impose civil liability where
there once was none. “Elementary considerations of fairness dictate that individuals should have
an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf,
511 U.S. at 265. Accordingly, the Court declines to apply the amended DCWPA retroactively
against the individual defendants in this case.2
Baumann alternatively argues that the amendments to the DCWPA merely clarified rights
that existed in the prior version of the statute. Baumann relies on a bench ruling by Superior
Court Judge John Mott in which he concluded that the amendments merely clarified the D.C.
Council’s original intent to provide a cause of action against individual supervisors. See Burton
v. District of Columbia, No. CA-9215-09 (D.C. Super. Ct. Apr. 22, 2010), Hr’g Tr. at 8 (attached
2
The Court has no occasion to address whether other amendments to the DCWPA that
are purely procedural in nature may be applied retroactively. See Duvall v. United States, 676
A.2d 448, 450 (D.C. 1996) (“Generally, laws which provide for changes in procedure may
properly be applied to conduct which predated their enactment.”).
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as Pl.’s Ex. 4). Baumann also relies in part on language contained in the D.C. Council’s
committee report on the bill, which explained that “decisions of local courts have diminished the
[DCWPA’s] efficacy” and that “[t]his bill aims to clarify and reinforce the protections offered
under the [DCWPA].” See Pl.’s Ex. 3 (D.C. Council Comm. on Gov’t Operations & the Env’t
Report on Bill 18-233, the “Whistleblower Protection Amendment Act of 2009”) at 3-4.
However, that same report describes the provision for individual liability as an “expansion of
potential liability,” see id. at 7, which appears to acknowledge that the statute did not originally
provide for individual liability. Ultimately, the manner in which the DCWPA was subsequently
amended does not persuade the Court that its original analysis of the DCWPA in Payne was
erroneous. Therefore, the Court shall dismiss the DCWPA claims asserted against individual
defendants in Baumann’s Second Amended Complaint.
Because the Court finds that Baumann has no claim against the individual defendants
under the DCWPA, the Court need not address Defendants’ alternative argument that Baumann’s
claims are time barred.
B. Claims Against Individuals Under Section 1983
Defendants also move to dismiss any claims asserted against individual defendants under
42 U.S.C. § 1983 based on Baumann’s purported failure to plead facts showing that the
individual defendants were personally involved in the alleged deprivation of his constitutional
rights. “A § 1983 action cannot be maintained against an official in his personal capacity if the
official was not personally involved in the decisions affecting the plaintiff’s constitutional
rights.” Elkins v. District of Columbia, 636 F. Supp. 2d 29, 33 (D.D.C. 2009) (citing Brown v.
District of Columbia, 514 F.3d 1279, 1285 (D.C. Cir. 2008)). In its prior Memorandum Opinion,
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the Court ruled that Baumann had adequately pled a violation of his First Amendment rights
based on the allegedly retaliatory actions taken against him. In his Second Amended Complaint,
Baumann alleges that Chief Lanier ordered Lt. Welch to conduct the Internal Affairs
investigation, that Asst. Chief Burke initiated the Internal Affairs investigation with knowledge
of Baumann’s protected disclosures, and that Asst. Chief Anzallo, Cmdr. Lojacono, and Lt.
Welch all participated in the investigation with intent to impose discipline against Baumann in
retaliation for his protected disclosures. “It seems beyond peradventure that a complaint averring
knowing participation by the defendant in an actionable constitutional deprivation sets forth a
colorable claim.” Haynesworth v. Miller, 820 F.2d 1245, 1258 (D.C. Cir. 1987), abrogated on
other grounds by Hartman v. Moore, 547 U.S. 250 (2006).
Baumann also incorporates by reference additional allegations detailing these individual
defendants’ involvement in the alleged retaliatory actions. Defendants argue that Baumann’s
reference to a post-hearing brief is improper, but this practice is permitted by the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 10(c) (“A statement in a pleading may be adopted by
reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Defendants
argue that the allegations adopted by reference do not provide a “short and plain statement” of
the claims asserted against the individual defendants as required by Federal Rule of Civil
Procedure 8(a)(2). However, the Court finds that Baumann has satisfied the pleading
requirements of Rule 8 even without reference to the additional allegations in the post-hearing
brief. Therefore, Baumann has adequately stated a claim for relief against the individual
defendants in their personal capacities under § 1983. Accordingly, the Court shall deny
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Defendants’ motion to dismiss the § 1983 claims asserted against the individual defendants in the
Second Amended Complaint.3
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT-IN-PART Defendants’ [59] Motion to
Partially Dismiss Plaintiff’s Second Amended Complaint with respect to claims asserted against
the individual defendants (Chief Lanier, Asst. Chief Burke, Asst. Chief Anzallo, Cmdr.
Lojacono, and Lt. Welch) under the DCWPA and DENY-IN-PART Defendants’ motion with
respect to claims asserted against these defendants under § 1983. Because the Court has ruled on
Defendants’ motion for partial dismissal, the Court shall DENY Defendants’ [60] Motion to Stay
Discovery as moot. An appropriate order accompanies this Memorandum Opinion.
Date: April 8, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
3
To the extent that Baumann is asserting claims against the individual defendants in their
official capacities, Baumann is actually suing the District of the Columbia rather than the
individuals. See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (“A
section 1983 suit for damages against municipal officials in their official capacities is . . .
equivalent to a suit against the municipality itself.”) (citation omitted).
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