Durand v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GARY DURAND,

Plaintiff,

v. Civil Action No. 13-1346 (CKK)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION
(May 1, 2014)

Plaintiff Gary Durand has filed suit against Defendants the District of Columbia, Cathy

Lanier, Michael Anzallo, Christopher Lojacono, Samuel Golway, Leon Epps, Christopher

Cummings, Michael Eldridge, Brad Wagner, and Diana Haines-Walton, alleging violations of

the District of Columbia Whistleblower Protection Act and the First Amendment in relation to

disciplinary proceedings against Plaintiff as a member of the Metropolitan Police Department.

Presently before the Court are Plaintiff’s [6] Motion Under 28 U.S.C. § 1447(c) to Remand Case

Back to the Superior Court of the District of Columbia and Defendants’ [9] Motion to Dismiss.

Upon consideration of the pleadings 1, the relevant legal authorities, and the record as a whole,

the Court dismisses Plaintiff’s First Amendment claims pursuant to Federal Rule of Civil

Procedure 12(b)(6). Accordingly, Defendants’ [9] Motion to Dismiss is GRANTED IN PART.

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Joint Notice of Removal, ECF No. [1]; Compl., ECF No. [1-1]; Pl.’s Mot. Under 28
U.S.C. § 1447(c) to Remand Case Back to the Superior Court of the District of Columbia, ECF
No. [6] (“Pl.’s Mot.”); Defs.’ Opp’n to Pl.’s Mot. to Remand, ECF No. [8] (“Defs.’ Opp’n”);
Defs.’ Mot. to Dismiss, ECF No. [9] (“Defs.’ MTD”); Pl.’s Opp’n to Defs.’ Mot. to Dismiss,
ECF No. [11]; Mem. of P. & A. in Supp. of Pl.’s Opp’n to Mot. to Dismiss, ECF No. [11-1]
(“Pl.’s Opp’n Mem.”); Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. to Dismiss, ECF No. [14]
(“Defs.’ Reply”). In an exercise of its discretion, the Court finds that holding oral argument on
the instant motions would not be of assistance in rendering a decision. See LCvR 7(f).

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Given the Court dismissal of Plaintiff’s First Amendment claims, there is no longer a federal

question in this case. Plaintiff’s [6] Motion to Remand is therefore GRANTED, and this case is

remanded to the Superior Court of the District of Columbia.

I. BACKGROUND

A. Factual Background

The following facts are taken from the Plaintiff’s Complaint and must be accepted as true

for purposes of a motion to dismiss. See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681

(D.C. Cir. 2009). Plaintiff is a Lieutenant in the Metropolitan Police Department (“MPD”).

Compl. ¶ 3. Plaintiff has been a member of MPD since 1990 and at the time of the relevant

events in this action was assigned to MPD’s Fifth District. Id. In early February 2012, the

manager of a hotel in the Fifth District sent an e-mail to the District’s Commander complaining

that during the early morning hours of January 30, 2012, five on-duty MPD officers were

observed in a hotel conference room playing cards without the knowledge or permission of the

hotel. Id. ¶ 16-18. MPD opened a formal investigation of the incident which was assigned to

Lieutenant Edward Bernat. Id. ¶ 17.

On March 14, 2014, Lt. Bernat submitted a report to Captain Marvin Lyons of the Fifth

District, sustaining the allegations of neglect of duty against the five officers. Id. ¶ 19. Capt.

Lyons, believing the officers should be charged with gambling in addition to neglect of duty,

directed Lt. Bernat to take a statement from the hotel employee who discovered the officers in

the conference room, an individual identified in the Complaint as Ms. Jimenez. Id. ¶¶ 19-20. Lt.

Bernat asked Plaintiff to take this statement from Jimenez. Id. ¶ 20. Along with Lieutenants

Timothy Haselden and Patricia Janifer, Plaintiff interviewed Jimenez in the hotel conference

room and asked her to provide a written statement. Id. ¶ 22. In this statement Jimenez wrote, “I

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am come into the Fremont Board Room. Saw officers standing around, eating/drinking at the

table. Asked them to leave. They left.” Id.

On March 21, 2014, Capt. Lyons went to the hotel with Sergeant Randy Griffin. Id. ¶ 24.

Upon returning to the Fifth District, Capt. Lyons accused Plaintiff and the lieutenants

accompanying him of intimidating Jimenez such that she would not mention any gambling by

the officers in the hotel. Id. Capt. Lyons told Plaintiff that Sgt. Griffin had spoken with Jimenez

and that Jimenez had told Sgt. Griffin that she felt intimidated during her interview with the three

lieutenants. Id. Plaintiff denied intimidating Jimenez. Id.

The following day, March 22, 2012, Capt. Lyons and Sgt. Griffin returned to the hotel

with Sgt. Brad Wagner, an officer in the Internal Affairs Division (“IAD”) of MPD. Id. ¶ 25.

Wagner interviewed Jimenez who stated that when she entered the room she saw cards, food and

money on the table, although she did not actually see any officers playing cards or exchanging

money. Id. Jimenez told Wagner that she believed the three MPD officers who previously

interviewed her did not want her to mention gambling in her statement because she did not

actually see anyone playing cards or exchanging money. Id. Jimenez further told Wagner that

during her interview with Plaintiff and the two other officers, an African-American male did

most of the talking. Id. Plaintiff and Lt. Haselden are both Caucasian males and Lt. Janifer is an

African-American female. Id. ¶ 26.

Based on his interview with Jimenez and a subsequent interview of Lt. Janifer, Sgt.

Wagner prepared an IAD Report of Investigation. Id. ¶¶ 27-28. In this report, Sgt. Wagner

accused Plaintiff, Lt. Haselden, and Lt. Janifer of attempting to intimidate Jimenez. Id. ¶ 28.

Sgt. Wagner did not interview Plaintiff, Lt. Haselden, or Lt. Bernat before issuing this report,

and Plaintiff alleges that Wagner knew some of the information provided to him by Jimenez to

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be incorrect. Id. On March 24, 2012, Sgt. Wagner sent his report to Capt. Lyons. Id. ¶ 29.

Plaintiff alleges that such disclosure to a member of MPD outside of IAD was improper because,

pursuant to MPD regulations, policy, and practice, documents prepared by IAD officials during

the course of an open investigation are confidential and not to be disseminated outside of IAD.

Id.

Capt. Lyons left a copy of the report in a folder on Lt. Bernat’s chair, along with a note

instructing Lt. Bernat to charge the card-playing officers with making false statements, as they

denied they had been gambling. Id. ¶ 30. Seeing the unsealed folder on Lt. Bernat’s chair and

thinking it might be a matter requiring his attention, Plaintiff looked at the folder and saw the

report prepared by Sgt. Wagner. Id. Plaintiff then called Lt. Bernat at home to inform him of the

report and forwarded copies of the report and Capt. Lyons’ note to Lt. Bernat and Lt. Haselden.

Id. ¶ 31.

On March 26, 2012, Plaintiff sent two e-mails to the following individuals: Chief of

Police Cathy Lanier, Assistant Chief of Police and Head of the Internal Affairs Bureau Michael

Anzallo, Cmdr. Christopher Lojacono, Capt. Christopher Cummings, Capt. Lyons, and Sgt.

Wagner. Id. ¶ 33. In these e-mails, Plaintiff stated that the release of the confidential IAD report

to Capt. Lyons along with the allegation of misconduct against the three lieutenants based on the

incomplete hearsay contained in the report constituted misconduct by IAD. Id.

The following day, March 27, 2012, Capt. Cummings and Lieutenant Samuel Golway,

another Internal Affairs officer, questioned Plaintiff about the emails he had sent. Id. ¶ 34.

Plaintiff again met with Capt. Cummings on May 8, 2012. Id. ¶ 35. On July 25, 2012, Plaintiff

received two Notices of Proposed Adverse Action. Id. ¶ 36. First, Plaintiff was charged with

“prejudicial conduct” for opening the folder on Lt. Bernat’s chair, forwarding the IAD report to

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other members of MPD, and sending his complaints to the Chief of Police. Id. ¶ 37. Second,

Plaintiff was charged with “conduct unbecoming” an officer for allegedly improperly

intimidating Jimenez, as well as “Inefficiency.” Id. ¶ 40. Plaintiff was subsequently found not

guilty of both charges. 2 Id. ¶ 45.

On October 29, 2012, Plaintiff was served with a third Notice of Proposed Adverse

Action. Id. ¶ 46. Plaintiff alleges that in June 2012, he sent three e-mail comments to a

newspaper article website regarding matters of public interest between MPD and the Police

Union. Id. Plaintiff’s Complaint does not provide any additional information regarding the

subject matter of these articles or these comments. Plaintiff alleges that the head of the Police

Union investigated the e-mail comments, determined that they were sent by Plaintiff, and

complained to MPD and IAD. Id. Although IAD determined that Plaintiff had not violated any

laws, rules or regulations, and that his comments were in the public domain and not actionable,

IAD charged Plaintiff with posting comments while on duty. Id. The allegations of “prejudicial

conduct” against Plaintiff were sustained and Plaintiff’s appeal to the Chief of Police was denied.

Id. ¶¶ 48-49. However, the Chief of Police did reduce Plaintiff’s punishment from a 15-day

suspension to a letter of prejudice. Id. ¶ 49.

B. Procedural History

Plaintiff initially filed suit in the Superior Court of the District of Columbia against the

District of Columbia and various MPD members involved in the investigation and disciplinary

proceedings against him. Specifically, Plaintiff sued MPD Chief of Police Lanier, Assistant

Chief of Police and Head of the Internal Affairs Bureau Anzallo, Cmdr. Lojacono, Capt.

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The first charge was initially sustained by Defendant Diana Haines-Walton, an MPD
Human Resources Officer, but was overturned on appeal when it was determined that Haines-
Walton had intended to find Plaintiff not guilty and that her finding of guilt was a typographical
error. Id. ¶ 45.

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Christopher Cummings, Capt. Lyons, Sgt. Wagner, Lt. Golway, Agent Leon Epps, Inspector

Michael Eldridge, and Human Resources Director Diana Haines-Walton. Plaintiff’s Complaint

alleges violations of the District of Columbia Whistleblower Protection Act (“WPA”), D.C.

Code §§ 1-615.51 et seq., and the First Amendment. First, Plaintiff argues that Defendants

violated the WPA and the First Amendment by issuing disciplinary charges against him for

reporting the disclosure of the Internal Affairs report to individuals outside of IAD, as well as for

reporting the perceived inaccuracies and procedural errors in this report. Second, Plaintiff

contends that Defendants violated his First Amendment rights by disciplining him for comments

made on a newspaper website.

Defendants District of Columbia, Lanier, Anzallo, Lojacono, Golway, Epps, and Haines-

Walton subsequently removed this action to this Court, pursuant to 28 U.S.C. § 1441, based on

Plaintiff’s federal law claims under the First Amendment. See Joint Notice of Removal, ECF

No. [1]. In response, Plaintiff filed a Motion to Remand, arguing that removal was improper

because (1) not all Defendants had consented to removal, and (2) the federal question raised by

Plaintiff’s First Amendment claims is not, in Plaintiff’s words, “an essential or even substantial

element of [P]laintiff’s cause of action.” Pl.’s Mot. at 2-4. In their Opposition to Plaintiff’s

Motion, Defendants indicated that they did not have the consent of all Defendants at the time of

removal because not all Defendants had been served at this point. Defs.’ Opp’n at 1. They

further indicated that upon receiving service, all Defendants had consented to the removal,

mooting Plaintiff’s first argument for remand. Id.

Defendants subsequently filed their [9] Motion to Dismiss, arguing that all of Plaintiff’s

claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has

6
since filed an Opposition and Defendants have filed a reply. Accordingly, both motions are ripe

for review.

II. LEGAL STANDARD

Fed. R. Civ. P. 12(b)(6) requires that a complaint contain “ ‘a short and plain statement of

the claim showing that the pleader is entitled to relief,’ 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)); accord Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual allegations” are not

necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of

“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Id. at 555. “[A] complaint [does not]

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must

contain sufficient factual matter, accepted as true, to “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, 556 U.S. at 678.

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must

construe the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994). Further, the

Court is limited to considering the facts alleged in the complaint, any documents attached to or

incorporated in the complaint, matters of which the court may take judicial notice, and matters of

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public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997). “This includes documents . . . that are referred to in the complaint and [] central to the

plaintiff’s claim.” Long v. Safeway, Inc., 842 F.Supp.2d 141, 144 (D.D.C. 2012) (internal

alteration and citation omitted)

III. DISCUSSION

A. Plaintiff’s First Amendment Claims

Plaintiff raises two claims under the First Amendment. First, he argues that his First

Amendment rights were violated when he was disciplined for his e-mails to the Chief of Police

and other members of the MPD hierarchy. Second, Plaintiff contends that Defendants infringed

his First Amendment rights by sanctioning him in response to his comments on a newspaper

website. The Court addresses each of these claims below.

1. E-mails to MPD Officials

The District of Columbia Circuit uses a four-part test to assess whether retaliation against

a government employee for his or her speech violates the First Amendment:

First, the public employee must have spoken as a citizen on a matter of public
concern. Second, the court must consider whether the governmental interest in
promoting the efficiency of the public services it performs through its employees
outweighs the employee’s interest, as a citizen, in commenting upon matters of
public concern. Third, the employee must show that her speech was a substantial
or motivating factor in prompting the retaliatory or punitive act. Finally, the
employee must refute the government employer’s showing, if made, that it would
have reached the same decision in the absence of the protected speech.

Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007) (internal quotations, citations, and

alterations omitted). Defendants raise two arguments as to why Plaintiff’s e-mails complaining

about the IAD report do not meet the first prong of this test. First, Defendants argue that

Plaintiff’s speech cannot be “fairly characterized as constituting speech on a matter of public

concern.” Rankin v. McPherson, 483 U.S. 378, 384 (1987) (internal citation omitted). Second,

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Defendants argue that Plaintiff did not speak as a citizen because the speech at issue was made

pursuant to his official duties, and “the First Amendment places no restrictions on the

government’s right to punish employees for speech made ‘pursuant to their official duties.’”

Thompson v. Dist. of Columbia, 530 F.3d 914, 916 (D.C. Cir. 2008) (quoting Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006)). The Court finds Defendants’ first argument persuasive and

thus has no occasion to address Defendants’ second argument for dismissal of this claim.

“Whether speech involves a matter of public concern is a question of law . . . .” LeFande

v. Dist. of Columbia, 613 F.3d 1155, 1159 (D.C. Cir. 2010). The Court’s “analysis must take

into account ‘the content, form, and context’ of the employee’s speech, ‘as revealed by the whole

record.’” Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). The D.C. Circuit has

summarized the boundaries of “public concern” as follows:

Speech by public employees may be characterized as not of “public concern”
when it is clear that such speech deals with individual personnel disputes and
grievances and that the information would be of no relevance to the public’s
evaluation of the performance of governmental agencies. On the other hand,
speech that concerns “issues about which information is needed or appropriate to
enable members of society” to make informed decisions about the operation of
their government merits the highest degree of first amendment protection.

Hall v. Ford, 856 F.2d 255, 259 (D.C. Cir. 1988) (quoting McKinley v. City of Eloy, 705 F.2d

1110, 1114 (9th Cir. 1983)). “In other words, ‘speech relates to a matter of public concern’ if it

is ‘of political, social, or other concern to the community.’” LeFande, 613 F.3d at 1159 (quoting

Hall, 856 F.2d at 259).

In past cases, both the Supreme Court and the D.C. Circuit have made clear that speech

regarding individualized personnel disputes and grievances does not rise to the level of speech on

a matter of public concern. For example, in Murray v. Gardner, 741 F.2d 434, 438 (D.C. Cir.

1984), the D.C. Circuit concluded that the FBI’s practice of furloughing agents by lottery was

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not a matter of public concern. Rather, the employee’s speech consisted of “the quintessential

employee beef: management has acted incompetently.” Id. Similarly, in Barnes v. Small, 840

F.2d 972, 982-83 (D.C. Cir. 1988), the court concluded that alleged assaults and false statements

within the Army’s Military Traffic Management Command were not matters of public concern.

Instead, the plaintiff employee’s speech “addressed only the misbehavior of other employees in

his office, and not matters relating to any broader public interest.” Id. at 982. In addition, in

Connick, 461 U.S. at 148, the Supreme Court held that the “confidence and trust” employees of a

district attorney’s office had in their supervisors, “the level of office morale” and “the need for a

grievance committee” were not matters of public concern. See also Coleman v. Dist. of

Columbia, 893 F.Supp.2d 84, 97 (D.D.C. 2012) (“plaintiff’s internal memoranda protesting the

imposition of the fitness for duty evaluation . . . is a purely internal FEMS dispute, not of public

concern but is merely the ‘quintessential employee beef,’ that her manager has acted

incompetently or unfairly in her case.”) (quoting Murray, 741 F.2d at 438).

By contrast, speech that does address a matter of public concern rises above individual

personnel disputes and grievances and is relevant to the public’s evaluation of the performance

of governmental agencies. See Pickering v. Bd. of Educ., 391 U.S. 563, 569, 571 (1968)

(holding that a “difference of opinion” concerning “the preferable manner of operating the

school system” is a matter of public concern, as it related to the school board’s allocation of

funds between education and athletic programs and the “methods of informing, or preventing the

informing of, the district’s taxpayers” about the reasons additional funds were needed); Connick,

461 U.S. at 149 (concluding that whether assistant district attorneys “feel pressured to work in

political campaigns on behalf of office supported candidates” is a matter of public concern);

Hall, 856 F.2d at 259 (holding that whether a public university’s “administration [wa]s

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mismanaging the athletic program” and the “structure of academic and athletic programs”

generally were matters of public concern); O’Donnell v. Barry, 148 F.3d 1126, 1133-34 (D.C.

Cir. 1998) (recognizing as a public concern “important issues of Police Department policy,”

including “how to rank the Department’s law-enforcement priorities,” “how to reform the

operations of the Property Division,” “what priority to give an investigation of over a hundred

unsolved murders,” the impairment of “the effectiveness of the Homicide Branch” and the Chief

of Police’s “fitness for office”).

Analyzing the factual circumstances of the speech at issue, the Court finds that Plaintiff’s

e-mails to the Chief of Police and various members of the MPD chain-of-command do not

constitute speech on a matter of public concern. Plaintiff objected to the procedures of the IAD

investigation of his alleged intimidation of a witness, specifically the disclosure of the IAD

report to individuals outside of IAD and the lack of evidence for the report’s findings. Plaintiff’s

speech appears to represent a specific personnel grievance, objecting to the manner in which

disciplinary proceedings against him were conducted. His e-mails, at least as described in the

Complaint, represent “the kind of grievance that, while significant to [his] own career and future

in the department, ‘would be of no relevance to the public’s evaluation of the performance of

governmental agencies.’” Coleman, 893 F.Supp.2d at 97 (quoting LeFande, 613 F.3d at 1159).

Indeed, objecting to errors and perceived overreaching by Capt. Lyons and Sgt. Wagner in

preparing and disclosing the report, Plaintiff’s complaints in the e-mails would appear to

represent “the ‘quintessential employee beef,’ that [his] manager[s] ha[ve] acted incompetently

or unfairly in [his] case.” Id. (quoting Murray, 741 F.2d at 438). “[C]omplaints about inferior or

superior officer[s’] incompetence . . . ‘address only the misbehavior of other employees in the

office,’ not any matter of public concern.” Id. (quoting Barnes, 840 F.2d at 982) (internal

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alterations omitted). Moreover, even viewed generously, Plaintiff’s allegations pale in

comparison to the speech recognized in previous cases as addressing a matter of public concern,

which clearly extended beyond personal employment disputes to issues of “political, social, or

other concern to the community.” Hall, 856 F.2d at 259.

To be sure, the mere fact that Plaintiff’s e-mails concern a personnel issue does not doom

his First Amendment claim, as employee speech on personnel issues is not per se unprotected by

the First Amendment. In LeFande, the D.C. Circuit “reject[ed] the proposition that a personnel

matter per se cannot be a matter of public concern, even if it may seriously affect the public

welfare.” 613 F.3d at 1161. Yet the facts of this case are readily distinguishable from LeFande.

There, the plaintiff criticized a General Order and emergency rulemaking issued by the Chief of

the MPD which, among other things, empowered the Chief of Police to fire any member of

MPD’s Reserve Corps without process. Id. at 1160. Lefande objected, arguing that by asserting

the power to fire Reserve Corps members without cause, and by restricting other aspects of the

Corps’ authority and access to training, the Chief of Police substantially altered the rights and the

role of the entire Reserve Corps. Id. The D.C. Circuit concluded that “LeFande’s speech was

more than a personal grievance; it was a challenge to the implementation, without notice, of the

framework by which the Reserve Corps was to be governed.” Id. at 1162. “It exceeds

‘individual personnel disputes and grievances’ and involves ‘issues about which information is

needed or appropriate to enable the members of society to make informed decisions about the

operation of their government.’” Id. at 1161 (quoting Hall, 856 F.2d at 259). LeFande thus

affirmed the principle that an individualized personnel dispute or grievance is not a matter of

public concern. Here, unlike LeFande, Plaintiff was not speaking out against a generally

applicable MPD personnel policy, but rather was objecting to what he perceived as the

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mishandling of his own disciplinary proceedings. Based on the well-established case law of the

Supreme Court and the D.C. Circuit, speech regarding a specific personnel dispute does not

generally merit First Amendment protection.

Plaintiff does not respond in substance to Defendants’ argument that his e-mails to

members of the MPD hierarchy do not address a matter of public concern. Indeed, the closest

Plaintiff comes to rebutting Defendants’ contention is in arguing that he has met the second

prong of the Wilburn test, which requires a balancing of the governmental interest in promoting

the efficiency of the public services it performs against the employee’s interest, as a citizen, in

commenting upon matters of public concern. Pl.’s Opp’n Mem. at 32. In this section of his

Opposition, Plaintiff argues that his speech related to a matter of public concern because “[t]o

allow IAD, through its investigative and disciplinary authority, the ability to strike out at MPD

members who report misconduct by IAD would have a chilling effect on the Department as a

whole.” Id. Plaintiff contends that this is “an issue which effects [sic] the public and the

perception of whether the Chief and other senior MPD officials competently and honestly

manage the Department.” Id. Yet Plaintiff mischaracterizes the nature of his speech. As

described in his Complaint, his e-mails nowhere address retribution by IAD for reporting

misconduct. Such retribution was an alleged consequence of Plaintiff’s speech, not the content

of his speech. Rather, Plaintiff’s Complaint describes the content of the e-mails as “alleg[ing]

that the release of the confidential IAD [report] to Capt. Lyons as well as the allegation of

misconduct against the three lieutenants solely based upon the incomplete hearsay information in

the [report], constituted misconduct by IAD.” Compl. ¶ 33. Plaintiff’s e-mails were not

challenging a practice of retribution by IAD officials. Nor was he even challenging a general

pattern of misconduct by MPD officials in conducting IAD investigations, akin to the larger

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departmental policy changes challenged in LeFande. Rather, as his Complaint makes clear,

Plaintiff was expressing a grievance regarding the mishandling of his own disciplinary

proceedings. Even reading Plaintiff’s argument generously, and understanding him to say that

these errors could affect the public’s perception of MPD and its internal disciplinary procedures,

the Court still would not find for Plaintiff. Such a conclusion would set an extremely low bar for

speech on a matter of public concern, contrary to Supreme Court and D.C. Circuit precedent.

“To presume that all matters which transpire within a government office are of public concern

would mean that virtually every remark – and certainly every criticism directed at a public

official – would plant the seed of a constitutional case.” Connick, 461 U.S. at 149.

Moreover, in making the arguments discussed here, Plaintiff provides no citation to case

law, and does not respond to, much less refute, Defendants’ citations suggesting that this case fits

comfortably within the line of precedent distinguishing between individualized personnel

grievances and matters of public concern. See Defs.’ MTD at 12. Indeed, aside from the red

herring discussed above – that his speech addressed retribution by IAD – Plaintiff never explains

how his e-mail objections rise above the level of a “‘quintessential employee beef,’ that [his]

manager[s] ha[ve] acted incompetently or unfairly in h[is] case.” Coleman, 89 F.Supp.2d at 97

(quoting Murray, 741 F.2d at 438). Accordingly, the Court does not find that Plaintiff’s

allegations of procedural missteps in a single IAD investigation constitute information which “is

needed or appropriate to enable members of society to make informed decisions about the

operation of their government.” Hall, 856 F.2d at 259. Plaintiff’s First Amendment claim

relating to his e-mails to various members of the MPD hierarchy is therefore dismissed.

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 2. Comments on Newspaper Website

Plaintiff also challenges Defendants’ disciplinary action in response to Plaintiff’s

“sen[ding] three email comments to a newspaper article website regarding matters of public

interest between MPD and the Police Union.” Compl. ¶ 46. See also id. ¶ 58 (alleging that “the

disciplinary actions taken by the defendants in response to plaintiff’s communications . . . to the

newspaper website regarding the Police Union and MPD constituted a violation of plaintiff’s

First Amendment right to freedom of speech.”). As discussed, in order for speech by a public

employee to enjoy the protection of the First Amendment, it must be “fairly characterized as

constituting speech on a matter of public concern.” Rankin, 483 U.S. at 384 (internal citation

omitted). Defendants argue, and the Court agrees, that Plaintiff’s Complaint fails to include

sufficient detail to meet this requirement. Plaintiff’s Complaint provides almost no explanation

of the comments made by Plaintiff other than to offer the legal conclusion that they were

“regarding matters of public interest.” See Iqbal, 556 U.S. at 679 (“While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.”). Further,

Plaintiff’s description of the matter as being between “MPD and the Police Union” provides no

context for the Court to determine if the comments related to a matter of public concern. The

two sentences quoted above constitute the entirety of the Complaint’s description of the content

of the allegedly protected disclosure. By simply stating that the statements at issue related to

matters of “public interest”, the Complaint consists of conclusory allegations that merely recite

elements of the applicable test. Such allegations are plainly insufficient to survive Defendants’

motion pursuant to Rule 12(b)(6). Iqbal, 556 U.S. at 681 (finding that “bare assertions”

“amount[ing] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional

15
discrimination claim” were insufficient to survive motion to dismiss) (quoting Twombly, 550

U.S. at 555).

Perhaps recognizing the insufficiency of his Complaint, Plaintiff uses his Opposition to

provide additional allegations to support his claim, presenting additional detail about the

comments and the articles they were associated with. Among other things, Plaintiff’s Opposition

informs the Court that one article was published on the Washington City Paper website and

focused on a double standard in overpayment policy to MPD employees. Pl.’s Opp’n Mem. at

28. The other article appeared on the Washington Examiner website and discussed the

discrepancy in salaries between the Chief of Police and MPD rank-and-file officers. Id. Yet

such factual allegations, included for the first time in an opposition to a motion to dismiss,

cannot save Plaintiff’s Complaint. See Jefferies v. District of Columbia, 917 F.Supp.2d 10, 56

(D.D.C. 2013) (“the Court looks at what the Complaint alleges District officials actually did –

apart from the gloss the plaintiff puts on those acts.”). “[P]laintiff failed to include these

allegations in [his] complaint, and plaintiff may not amend [his] complaint by the briefs in

opposition to a motion to dismiss.” Middlebrooks v. Godwin Corp., 722 F.Supp.2d 82, 87 n. 4

(D.D.C. 2010). See also Perkins v. Vance-Cooks, 886 F.Supp.2d 22, 29 n. 5 (D.D.C. 2012) (“It

is settled law in this circuit that a plaintiff may not raise new allegations in this manner.”);

Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F.Supp.2d 165, 170 (D.D.C.

2003) (“It is axiomatic that a complaint may not be amended by the briefs in opposition to a

motion to dismiss.”) (quotation marks omitted).

However, since dismissal of Plaintiff’s First Amendment claim is due to inadequate

pleading rather than a substantive defect in his claim, dismissal with prejudice would be

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inappropriate here. Accordingly, Plaintiff’s First Amendment claim relating to his comments on

a newspaper website is dismissed without prejudice.

B. Plaintiff’s Motion to Remand

In light of the dismissal of Plaintiff’s First Amendment claims, the only remaining count

in this action is Plaintiff’s WPA claim. Defendants premised their removal of this action, and

their Opposition to Plaintiff’s Motion to Remand, on the presence of Plaintiff’s First Amendment

claims, which raised a federal question. See Defs.’ Opp’n at 2-3. In the absence of these claims,

there is no longer a federal claim, as Plaintiff’s WPA claim arises under District of Columbia

law. Because Plaintiff has not pled diversity jurisdiction under 28 U.S.C. § 1332, see Dist. of

Columbia ex rel. Amer. Combustion, Inc. v. Transamerica Ins. Co., 797 F.2d 1041, 1043-44

(D.C. Cir. 1986) (noting that the plaintiff bears burden of pleading jurisdiction), the only

available basis for federal subject matter jurisdiction over Plaintiff’s remaining claim is

supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

However, the Court concludes that remand to the Superior Court of the District of

Columbia, rather than the exercise of supplemental jurisdiction, is appropriate. First, and most

importantly, Plaintiff explicitly seeks the remand of this action to the Superior Court of the

District of Columbia. Second, “in the usual case in which all federal-law claims are dismissed

before trial, the balance of factors to be considered under the pendant jurisdiction doctrine –

judicial economy, convenience, fairness, and comity – will point toward declining to exercise

jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 350 n. 7 (1988). Accordingly, the Court grants Plaintiff’s Motion to Remand and remands

this matter to the Superior Court of the District of Columbia.

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 In reaching this conclusion, the Court is mindful that Plaintiff’s First Amendment claim

based on his comments on a newspaper website is only dismissed without prejudice. Should

Plaintiff amend his Complaint and restore this claim with additional allegations lacking in his

present Complaint, there would again be a federal question in this case, and Defendants would

again have the option of removal. However, the Court will not presume to make this decision for

Plaintiff. Plaintiff’s Motion to Remand appears to indicate that he views his First Amendment

claims as a secondary portion of his case. Arguing for remand despite the presence of the First

Amendment claims in his Complaint, Plaintiff states “the federal question raised is not an

essential or even substantial element of [P]laintiff’s cause of action.” Pl.’s Mot. at 3. Plaintiff

suggests that he views the First Amendment claims as ancillary to his WPA claim, noting

“Plaintiff’s alleged deprivation of his First Amendment rights is not the basis of [P]laintiff’s

claim. The basis of his claim is a violation of the District of Columbia WPA.” Id. See also id.

at 4 (“Plaintiff’s cause of action arises under D.C. law and the collateral First Amendment issue

is not a necessary element of the D.C. WPA claims.”); id. (“[T]he Superior Court of the District

of Columbia has a much greater interest in determining the merits of this case under the D.C.

WPA and is wholly capable of deciding the collateral First Amendment violation.”). While

Plaintiff’s arguments for remand are legally incorrect, see City of Chicago v. Int’l College of

Surgeons, 522 U.S, 156, 164 (1997) (“By raising several claims that arise under federal law,

[plaintiff] subjected itself to the possibility that the City would remove the case to the federal

courts”), they do reveal a strong preference for litigating this action – and specifically Plaintiff’s

WPA claim – in the Superior Court of the District of Columbia. Accordingly, the Court will

leave to Plaintiff a decision about whether to reassert his First Amendment claim and provide a

basis for removal to this Court, or leave this claim dismissed and remain in the Superior Court of

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the District of Columbia. 3 See Caterpillar, Inc. v. Williams, 482 U.S. 386, 399 (1990) (“the

plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal

is at the defendant’s option.”).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiff’s First Amendment claims

should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), and Defendants’ [9]

Motion to Dismiss is GRANTED IN PART. Plaintiff’s First Amendment claim premised on his

e-mails to various members of the MPD chain-of-command is DISMISSED WITH PREJUDICE

as these e-mails do not address a matter of public concern. Plaintiff’s First Amendment claim

premised on his comments on a newspaper website are DISMISSED WITHOUT PREJUDICE as

Plaintiff’s present Complaint, devoid of the gloss provided by Plaintiff’s Opposition to Motion to

Dismiss, is insufficient to withstand Defendants’ Motion to Dismiss. Given these rulings, there

is no longer a federal question in this case. Accordingly, in light of Plaintiff’s stated desire to

return to the Superior Court of the District of Columbia, this Court GRANTS Plaintiff’s [6]

Motion Under 28 U.S.C. § 1447(c) to Remand Case Back to the Superior Court of the District of

Columbia. This case is remanded to the Superior Court of the District of Columbia pursuant to

28 U.S.C. § 1447(c). The Court leaves the portion of Defendants’ [9] Motion to Dismiss

addressing Plaintiff’s WPA claim to be decided by the Superior Court Judge to whom this case is

assigned. An appropriate Order accompanies this Memorandum Opinion.

____/s/________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
3
In light of its decision to remand the remainder of Plaintiff’s case to the Superior Court
of the District of Columbia, the Court takes no position on the merits of Plaintiff’s WPA claim,
leaving a decision on this issue to the Superior Court Judge to whom this case is assigned.

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