Goode v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JESSE GOODE,
Plaintiff,
V.

Civil Case No. 20-01332 (RJL)

DISTRICT OF COLUMBIA, et al.,

Neue! Nee” Nee Ne Ne ee ee” eee” eee”

Defendants.

ft

MEMORANDUM OPINION
(March 22, 2021) [Dkt. #25]

~ Plaintiff Jesse Goode (“plaintiff”) brings this action under 42 U.S.C. § 1983
against the District of Columbia (“District”) and five members of the Commission on
Selection and Tenure of Administrative Law Judges of the Office of Administrative
Hearings (“COST”) in their official and personal capacities (collectively “defendants”).
Am. Compl. [Dkt. #22] 4.1. Plaintiff alleges that defendants denied him reappointment
to a third term as an Administrative Law Judge (“ALJ”) in retaliation for his union-
related activities in violation of his First and Fifth Amendment rights. Jd. Plaintiff seeks
money damages for these alleged constitutional deprivations as well as injunctive relief in
the form of an order reinstating him as an ALJ. Jd. at 32. Presently before the Court is
defendants’ Motion to Dismiss the Amended Complaint (“Defs.’ Mot.”) [Dkt. #25].
Upon consideration of the parties’ pleadings, relevant law, the entire record herein, and

for the reasons state below, I GRANT defendants’ motion and DISMISS this action in its
entirety.

BACKGROUND

In 2002, the Council of the District of Columbia (“D.C. Council”) established the
Office of Administrative Hearings (“OAH”) through the Office of Administrative
Hearings Establishment Act (“Establishment Act”). See D.C. Code § 2—1831.01 et seq.
OAH is comprised of a panel of ALJs who decide cases arising from more than forty
separate agencies, boards, and commissions within the District. See id. To manage OAH
personnel, the Establishment Act created COST, empowered with “final authority to

appoint, reappoint, discipline, and remove [ALJs].” Jd. § 2-1831.06(b).

COST is comprised of five members, three of whom have voting power. Of the
three voting members, one is appointed by the Mayor, one by the Chairman of the D.C.
Council, and one by the Chief Judge of the Superior Court of the District of Columbia.
Id. § 2-1831.07(a).! During the relevant period, defendant Robert Hawkins served as the
mayoral voting member, defendant Joseph Onek served as the D.C. Council voting
member, and defendant Yvonne Williams served as the Superior Court voting member.
Am. Compl. ff 9-11. Plaintiff alleges defendant Onek’s appointment was deficient at
the time plaintiff was being considered for reappointment because his term expired on
April 30, 2017 and he was not properly reappointed until September 22, 2017. Am.
Compl. 710. Plaintiff also alleges defects in defendant Williams’s appointment,

asserting it either was never valid because it was not confirmed by a mayoral order or that

' These COST members serve 3-year staggered terms. D.C. Code § 2-1831.07(c).
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it had lapsed as of April 30, 2015. Am. Compl. 4 11, 132.

The remaining two non-voting COST members are “the Attorney General, or his
or her designee from within the ranks of the Senior Executive Attorney Service” and the
Chief Administrative Law Judge (““CALJ’”) in the OAH. D.C. Code § 2—1831.07(a). At
the time of plaintiff's reappointment decision, these positions were filled by defendant
Nadine Wilburn and defendant Eugene Adams respectively. Am Compl. 77-8.

COST appoints ALJs by majority vote after engaging in an application and
interview process with prospective candidates. D.C. Code § 2-1831.08(b); D.C. Mun.
Regs. tit. 6B § 3701.1 et seq. Initial terms last for two years, after which an ALJ may be
reappointed to a ten-year term, and then a subsequent six-year term. See D.C. Code § 2—
1831.08(c)(1). An ALJ seeking reappointment must file a statement with COST and the
CALJ requesting reappointment within the last nine months of the ALJ’s term. D.C.
Mun. Regs. tit. 6B § 3705.1. As soon as practical thereafter, COST must publish a
statement in the District Register that the ALJ is seeking appointment, “soliciting views
of litigants, attorneys and members of the public” on reappointment. Jd. § 3705.7.
Within 120 days of the ALJ’s reappointment request, the CALJ is required to prepare a
record for COST’s review, which must include the ALJ’s performance evaluations,
decisions made by the ALJ, data on how the ALJ met “objective performance standards,”
anda “recommendation, with a statement of reasons, as to whether the [ALJ] should be
reappointed.” Jd. §§ 3705.4, 3705.5.

An ALJ up for reappointment is entitled to receive both the record submitted by

the CALJ and any comments COST received. Jd. §§ 3705.6, 3705.9. After receipt of

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these materials, the ALJ is entitled to supplement the record before COST and appear
before it “to be heard in person concerning his or her reappointment.” Jd. § 3705.10.

Prior to denying reappointment, COST must first serve a “notice of grounds for
possible denial of reappointment” on the ALJ in question, specifying “the reasons why
[COST] is considering” not reappointing him or her. Jd. § 3705.17. The ALJ may then
file a written response and has the opportunity “to appear and be heard” at the COST
meeting in which it takes final action on the reappointment request. Jd. § 3705.19.

COST maintains discretion to “permit other persons to testify at the meeting, either in
support of, or in opposition to, the request for reappointment.” Jd.

In making the final reappointment decision, COST must “consider all the
information” it received regarding the reappointment and give “significant weight” to the
CALJ’s recommendation, unless COST determines the recommendation is not founded
on substantial evidence. Jd. § 3705.21. Although COST retains discretion in making
reappointment decisions, see D.C. Code § 2—1831.06(b), District regulations state that
“TCOST] shall reappointment the [ALJ] if [COST] finds that the [ALJ] has satisfactorily
performed the responsibilities of his or her office and is likely to continue to do so.” D.C.
Mun. Regs. tit. 6B § 3705.21.

A. Plaintiff’s Tenure as an ALJ

Plaintiff was first appointed to serve as an ALJ on OAH in 2005. Am. Compl. 4 5.
His initial term expired in 2007, and he was reappointed to a ten-year term set to expire
on June 20, 2017. Id. 37. During his second term, plaintiff was involved in several

controversies at OAH, which he alleges contributed to defendants’ improper motivation

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for denying him reappointment. Am. Compl. {4 59, 179-83.

First, in 2012, plaintiff joined fifteen other ALJs in signing a letter asking a D.C.
Council member and the Mayor to investigate then-CALJ Mary Walker for unethical
behavior.” Id. | 46. According to the Amended Complaint, this “created a rift within
OAH” between those who signed the ALJ letter, including plaintiff, and those who did
not. Jd. 450. Plaintiff alleges he drew special ire from those aligned with Walker

because of his perceived leadership in her ouster. Id.

Next, also in 2012, plaintiff became ensnared in a controversy regarding ALJ
unionization. Jd. 451. Plaintiff alleges he led ALJ efforts to unionize, which Walker and
her supporters opposed. Jd. Ultimately, plaintiff's cohort prevailed, and the D.C. Public
Employee Relations Board (“PERB”) recognized the OAH ALJs as a local union
bargaining unit—the Federation of Administrative Law Judges (“FALJ” or “Union”). Jd.
451, 60. Plaintiff took over as president of the Union, id. 460, and alleges that this
“union leadership intensified the animus against him from Walker supporters.” Id. { 52.

Finally, in 2014, plaintiff was involved in a workplace dispute involving ALJ
Yahner—a Walker supporter and anti-Union ALJ. Jd. 953-54. The Amended
Complaint alleges Yahner “physically confronted” then-CALJ Tucker, who subsequently
issued Yahner a nine-day suspension. Jd. 950. The suspension was ultimately
overturned by defendant Williams in her role as COST Chair. Jd. 56. Yahner

circulated the decision overturning the suspension to all ALJs, including plaintiff, and

? Walker eventually admitted ethical violations, was fined $20,000 for these infractions, and was fired for
cause. Am. Compl. § 49.
plaintiff responded to all ALJs stating that defendant Williams’s decision did not
vindicate Yahner and that Yahner’s “behavior, and the COST’s validation of it, is another
example of the coarsening of American civil society.” Jd. 457.

B. Plaintiff's Reappointment Application

In December 2016, plaintiff sought reappointment to a third term. Jd. 460. He
submitted documents to COST “that evidenced his good performance, including
significant decisions, positive evaluations, efficient docket management, committee
work, and many other contributions to agency operations and the community.” Jd. § 61.

Around the same time, defendant Adams announced the creation of a new
Principal ALJ (“PALJ’”) position and stated that ALJ Yahner would be appointed to the
role. Jd. This decision violated the Union’s collective bargaining agreement (“CBA”)
with OAH because under the CBA, the creation of a new PAL] position required prior
notice and consultation with the Union. Plaintiff, as FALJ president, advised defendant
Adams of the infraction and met with defendant Adams and OAH General Counsel
Vanessa Natale? to discuss Yahner’s premature appointment. Jd. J] 63-64. The
following day, defendant Adams announced over email that he was “gently and
professionally” reminded of the terms of the CBA and admitted he had not complied with
them. Jd. § 65. Union—agency discussions over the propriety of the new PALJ position
continued for the next few months, overlapping with plaintiff's consideration for

reappointment.

3 Natale is not a defendant in this action.
In January 2017, plaintiff alleges defendants began attacking his candidacy for
reappointment. Jd. 466. He claims that written reminders about the public comment
period for his reappointment were “left on the office chairs of only those who resented
[plaintiff] for his role in Walker’s ouster and his union efforts.” Jd. According to
plaintiff, defendants and Natale “encouraged these disaffected employees to submit
anonymous letters” opposing his reappointment. Jd. § 67. Ultimately, COST received 18
letters in support of plaintiff and 6 letters opposing his reappointment, 5 of which were
submitted anonymously. Jd. ¥§ 71-73.

According to the Amended Complaint, Natale walked unannounced into
plaintiff's office on or around March 22, 2017 to discuss his reappointment, which she
said was “in peril.” Jd. § 75. Natale reported that “she had regular conversations with
defendant Williams and that she could use these back channels to support [plaintiff s]
reappointment.” Jd. 76. She also said she could “use her considerable sway with
[defendant] Adams to keep [plaintiff's] reappointment ‘out of peril.’” Jd. But this offer
“was subject to a quid pro quo” —plaintiff had to “back off of FALJ’s objection to the
new PALJ position for ALJ Yahner.” Jd. § 77-78 (alleging that Natale “pressed that, if
[plaintiff] wanted his job, ‘it was best’ if FALJ ‘fell in line’”).

On April 5, 2017, Natale sent an email to plaintiff requesting his views as FALJ
president on the new PALJ position. Jd. 4 80. Plaintiff alleges that he declined the quid
pro quo offer and refused to back down in his Union-related opposition to the new PALJ

position. Id.
C. The Investigation

A week later, on April 12, defendant Adams, as CALJ, was required to submit a
recommendation to COST regarding plaintiff's reappointment. See D.C. Mun. Regs. tit.
6B § 3705.5. Instead, defendant Adams sent a letter to COST stating that he was
“postpon[ing] a formal recommendation,” in order to complete an “ongoing inquiry” into
“matters (of which [plaintiff] is fully aware).”” Am. Compl. { 86. Plaintiff alleges no
such inquiry was ongoing, and that “[a]fter [plaintiff] refused to back off [his position on
the new PALJ], Defendant Adams invoked the [anonymous] letters to launch an
investigation.” Jd. J 88.

The investigation ran from May 3 to June 5, 2017, encompassing interviews with
three named witnesses and eleven anonymous individuals. See id. J 92-93. Plaintiff
alleges numerous shortcomings in the investigation, including that the investigator was
not neutral, that it was controlled by defendant Adams, that the investigation “disregarded
all favorable information” and witnesses, that the investigator failed to generate an
impartial report, and that the investigation wrongly relied and credited anonymous
sources. Id. | 89-91.

After the investigation concluded, defendant Adams notified plaintiff that he
opposed his reappointment. Jd. 4 96. On June 20, defendant Adams issued his formal
negative reappointment recommendation—a 38-page letter with 44 supporting exhibits.
Id. 497. The Amended Complaint alleges that in this letter, defendant Adams never
challenges plaintiff's performance as an ALJ nor argues that plaintiff failed to satisfy the

requirements of his office or that he was otherwise unsuitable for reappointment under

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the Establishment Act. Jd. 4 102. However, defendant Adams’s letter discusses
numerous instances of “hostile,” “abrasive,” and “harassing” conduct and concludes that
plaintiff's “continued tenure as an ALJ will seriously affect the office’s ability to advance
and move beyond the discord, antagonism and division that hold it back today.”* Ex. 2
to Defs.’ Mot. at 38.
D. COST’s Reappointment Decision

On June 27, defendant Williams served plaintiff a notice of possible grounds for
denial of reappointment, which referenced the issues raised in defendant Adams’s letter
and set a hearing for July 15, 2017. Am. Compl. 9§ 107, 110. On June 29, plaintiff
alleges COST convened a “secret” meeting outside of his presence, without his
knowledge, and before he had a chance to oppose defendant Adams’s negative
recommendation. Jd. {J 121-22. Plaintiff alleges that he was excluded even though all
COST members as well as Natale and another attorney in OAH General Counsel’s office
attended. Jd. 4120. According to the Amended Complaint, COST deliberated and
decided to terminate plaintiff in this meeting. Jd. {§ 121-22. Among other things,
plaintiff claims that in this meeting (i) defendant Williams relayed negative views
regarding plaintiff she had received from her ALJ acquaintances; (ii) defendant Onek

suggested that, regardless of [plaintiff's] evidence, “[COST] could simply say that we

* The letter recounts in detail how plaintiffs “efforts and actions” at OAH were “misguided, harmful and
problematic for the agency.” Ex. 2 to Defs.’ Mot. at 5. Among other things, it describes allegations that
plaintiff engaged in intimidating and harassing behavior towards an OAH attorney-advisor, discriminated
amongst individuals in making recommendations for promotion and advancement, and wrote demeaning
correspondence to colleagues and subordinates. See id. at 7-25. Defendant Adams concludes these
“repeated patterns” of behavior were “too disruptive, too problematic and too enduring to be
meaningfully addressed with [plaintiffs] continued presence” at OAH. Jd. at 28.

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find no substantial evidence to counter . . . [defendant Adam’s] recommendation;” (iii)
Natale stated that she procured a “legal opinion” stating that plaintiff's behavior
constituted a hostile work environment; and (iv) defendant Williams stated that “there
really is no standard [for reappointment] . .. we review the documents and then we can
make the decision.” Jd. J 123.

On July 19, COST then held the first formal meeting on plaintiff's reappointment
application. Id.4 127. At this meeting, plaintiff was represented by counsel, presented
testimony, and argued on his own behalf. Jd. ¢ 140. He was not permitted, however, to
call witnesses or cross-examine those presented by COST. Jd. ¢ 137. At some point
during the hearing, plaintiff and his counsel were ordered to exit the room, while COST
met in private. Jd. J 133. Plaintiff alleges that defendant Hawkins was not present for
part of this meeting as he “took phone calls in another room.” Jd. J 138. Plaintiff also
alleges COST allowed Natale and other “OAH prosecutors” to engage in its deliberations
at or after this meeting. Jd. | 142.

On September 29, 2017, COST held a final formal meeting, hearing further
argument on plaintiff's reappointment. Jd. JJ 153-55. Shortly after the meeting
concluded, COST announced plaintiff's non-reappointment and sent plaintiff a two-page
letter explaining the decision. Jd. | 157—59.° The letter states that “having reviewed the
entire record, including supplemental submissions by [plaintiff], the CALJ and others, as

well as information relayed by all parties, directly or indirectly, at the July 19, 2017

> Plaintiff alleges this letter was a post-dated version of a letter already signed by defendant on July 21,
2017. Id. JJ 143-46, 159.

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COST meeting,” COST agreed with defendant Adams’s recommendation not to
reappoint plaintiff. Ex. 8 to Defs.’ Mot. at 1. COST concluded that plaintiff “engaged in
behaviors that are inconsistent with [his] responsibilities as an ALJ,” including “act[ing]
inappropriately, unfairly, and, possibly, illegally in [his] interactions with [his] colleagues
and other staff’ on multiple occasions, which created “fear, tension and a feeling of
intimidation in OAH.” Jd. at 1-2.

E. The PERB Administrative Action

On July 6, 2017, in the midst of plaintiff's consideration for reappointment, the
ALJ union—F ALJ—filed an administrative complaint against OAH making two claims
closely related to the allegations in this suit. First, FALJ asserted that Natale’s conduct
during the March 22 meeting constituted an “unfair labor practice[]” on behalf of OAH.
Ex. 3 to Defs.’ Mot. at 3. On this claim, the hearing officer found in favor of the Union,
concluding that Natale’s statements “directly interfered with and coerced [plaintiff] in the
exercise of [his] rights.” /d. at 3-4.

Second, FALJ claimed that OAH “discriminated regarding tenure or terms and
conditions of employment against [plaintiff] to discourage membership in a labor
organization.” Jd. at 3. This claim was based on the theory that defendant Adams
refused to support plaintiff's reappointment “because the Union refused to withdraw its
opposition to the creation of the new PALJ position and the appointment of Judge
Yahner.” Jd. at 4. The hearing officer rejected this theory and found no discrimination
occurred. Jd. Specifically, the hearing officer “found that the Union did not meet its

burden of establishing that antiunion sentiment was a substantial or motivating factor in

1]
[defendant] Adams’ decision not to recommend [plaintiff's] reappointment.” Jd. Critical
to this finding was the fact that “Adams was not aware of the March 22, 2017
conversation,” as both plaintiff and Natale testified that “neither one of them mentioned
this meeting to [defendant] Adams.” Jd. at 3, 5. PERB affirmed the hearing officer on
both claims. Jd. at 6.

F. Procedural History

After an unsuccessful attempt to reopen the PERB proceeding in 2019, see id.,
plaintiff filed this action on May 19, 2020. Compl. [Dkt. #1]. He then filed an Amended
Complaint on June 30, 2020. Am. Compl. On August 3, 2020, defendants moved to
dismiss for failure to state a claim under Rule 12(b)(6). Defs.’ Mot. at 1—2.

STANDARD OF REVIEW

Dismissal under Rule 12(b)(6) is appropriate where a party has failed to set forth
“a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive, a
complaint must contain sufficient factual allegations that, if accepted as true, state a claim
to relief that “is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 552
(2007). In analyzing a motion to dismiss under Rule 12(b)(6), the Court accepts the
factual allegations in the complaint as true and draws all reasonable inferences in
plaintiff's favor. Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27
(D.D.C. 2006). But plaintiff must offer “more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.
The Court is not bound to adopt “inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint.” Kowal v. MCI Comms. Corp., Inc., 16

12
F.3d 1271, 1276 (D.C. Cir. 1994).

In determining whether a complaint sufficiently alleges a claim, the Court may
consider “the facts alleged in the complaint, any documents either attached to or
incorporated in the complaint[,] and matters of which [the Court] may take judicial
notice.” EEOC vy. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Among those documents of which the Court may take judicial notice are public records
from other proceedings. See Abhe & Svoboda, Inc., 508 F.3d at 1059 (citing Covad

Commce’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005).

ANALYSIS

Plaintiff brings this suit under 42 U.S.C. § 1983. Am. Compl. § 1. Because this
statute “is not itself a source of substantive rights,” Albright v. Oliver, 510 U.S. 266, 271
(1994), to state a claim, plaintiff must identify other specific rights that were allegedly
infringed. Jd. Here, he identifies his right to procedural due process under the Fifth
Amendment and his right to freedom of association under the First Amendment. Am.
Compl. { 1.

A. Fifth Amendment Due Process Claim

The Fifth Amendment guarantees that “no person shall be deprived of life, liberty,
or property, without due process of law.” U.S. Const. amend. V. The first step in any
due process analysis is assessing whether the plaintiff has identified a constitutionally
protected interest. See Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315

(D.C. Cir. 2014). Ifa plaintiff can show a valid protected interest, the Court must then

13
asses “whether the procedures used by the Government in effecting the deprivation
comport with due process.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).

Plaintiff contends he possessed a constitutionally protected property interest in
reappointment as an ALJ. Pl.’s Opp. to Def.’s Mot. to Dismiss (“Pl.’s Opp.”) [Dkt. #28]
at 7. I agree. ‘Constitutionally protected property interests “stem from an independent
source such as state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). To have
such an interest, an individual “must have more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to it.” Jd.

Under D.C. law, COST’s discretion to deny an ALJ reappointment is cabined by
regulations stating that “[t]he [COST] shall reappoint the [ALJ] if it finds that the [ALJ]
has satisfactorily performed the responsibilities of his or her office and is likely to
continue to do so.” D.C. Mun. Regs. tit. 6B § 3705.21 (emphasis added). The mandatory
language in this provision establishes a sufficient expectation of continued employment
to require some process prior to the denial of reappointment. See Pearson v. District of
Columbia, 644 F. Supp. 2d 23, 47 (D.D.C. 2009), aff'd 377 Fed. App’x 34 (D.C. Cir.
2010); Halleck v. Berliner, 427 F. Supp. 1225, 1235 (D.D.C. 1977).

The question then becomes whether plaintiff received the process he was due. The
Fifth Amendment’s due process requirement “is flexible and calls for such procedural
protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334
(1976). The guideposts for this inquiry are generally whether the Government provided
“notice and opportunity for hearing appropriate to the nature of the case.” Jones v.

Flowers, 547 U.S. 220, 223 (2006). When a public employee is deprived of a property

14
interest in further employment, the Supreme Court has held that they are “entitled to oral
or written notice of the charges against him, an explanation of the employer’s evidence,
and an opportunity to present his side of the story” prior to his termination. Cleveland
Bad. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). In the context of ALJ
reappointment, other courts in this district have found that ALJs are not entitled to the
“full panoply of due process” but have the right to a “thorough and fair evaluation of
[their] candidacy by an impartial [COST] ... and such process as would insure that the
[COST’s] evaluation of [their] candidacy for reappointment was thorough and fair.”
Pearson, 644 F. Supp. 2d at 47.

Plaintiff argues the process he received was inadequate, citing (1) shortcomings in
the notice provided; (2) the lack of an opportunity to confront and cross-examine
witnesses; (3) the bias of COST members; (4) the fact that COST allegedly relied on
“evidence not adduced at the hearing, including ex parte contacts;” (5) defects in COST
members’ appointments; (6) COST’s failure to follow D.C. regulations; and (7) the fact
that “the tribunal . . . had already sealed his fate” by the time he had an opportunity to be
heard. See Pl.’s Opp. at 15-30. Defendants counter that plaintiff received
constitutionally adequate process because he “had ample opportunity to affirmatively
present his case after being notified of the possible grounds for non-reappointment.”
Defs.’ Mot. at 21. Unfortunately for plaintiff, I agree with defendants that the process
afforded him comports with constitutional requirements. How so?

First, plaintiff was adequately put on notice of COST’s concerns with sufficient

time to address them. Not only was plaintiff aware of the letters opposing his

15
reappointment and the investigation regarding his conduct as of April 12, see Ex. 3 to
Def.’s Mot. at 3, but on June 21—almost a full month before the first formal hearing on
his reappointment—plaintiff received defendant Adams’s detailed letter outlining the
agency’s concerns.® Am. Compl. § 106. By June 26, at the latest, plaintiff had engaged
counsel. Id. § 112. And COST confirmed on June 27 that the allegations in defendant
Adams’s letter served as the basis for plaintiff's possible non-reappointment. Ex. 5 to
Defs.’ Mot. at 1. This gave plaintiff ample opportunity to understand the allegations
against him and prepare a case with the assistance of counsel before the first formal
hearing on his reappointment. See Vanover v. Hantman, 77 F. Supp. 2d 91,104—05
(D.D.C. 1999).

Next, plaintiff had an adequate opportunity to be heard and air his case. From
December 2016 through September 2017, plaintiff made an initial submission in support
of his reappointment, met with defendant Adams regarding concerns raised about his
conduct, supplemented the record before COST with additional documents supporting his
case,’ and communicated numerous times with defendants through counsel regarding his

reappointment. See Am. Compl. {ff 61, 112—14; Ex. 3 to Def.’s Mot. at 3; Ex. 5 to Defs.’

® Indeed, plaintiff was already on notice of defendant Adams’s intention to oppose reappointment as of
June 5, 2017. Am. Compl. { 96.

7 Plaintiff alleges that COST’s notice of possible grounds for denial of reappointment was deficient under
D.C. Mun. Regs. tit. 6B § 3705.15 in part because, he argues, it “came before [plaintiff] had the right to
supplement the record.” Pl.’s Opp. at 4; see also Am. Compl. § 107-09. But plaintiff does not directly
deny the fact he had the opportunity to, and did, supplement the record on May 15, 2017. See generally
Pl.’s Opp. In any event, the Court concludes that plaintiff was afforded due process everi to the extent he
did not have an opportunity to supplement the record before receiving the COST’s notice because that
document makes it clear that plaintiff had the opportunity to supplement the record before the hearing on
his reappointment. See Ex. 5 to Defs.’ Mot. at 1-2 (permitting plaintiff to submit a “written response”
prior to the hearing on his reappointment).

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Mot. at 1. He also appeared before COST two times, presented argument in his defense,
and was permitted to have others—including his counsel and a sitting D.C. Council
member—advocate on his behalf. Am. Compl. § 140, 156. This “evaluation process
adequately safeguarded plaintiff from arbitrary governmental action.” Halleck, 427 F.
Supp. at 1237; see also Pearson, 644 F. Supp. 2d at 48 (holding no due process violation
occurred where ALJ “was afforded multiple opportunities to submit evidence on his
behalf, to call witnesses, to respond to the [COST’s] inquiries and concerns, to present
argument supporting his candidacy for reappointment, and to meet with the [COST]
regarding his reappointment”), aff'd 377 Fed. App’x 34 (D.C. Cir. 2010) (“Pearson’s
procedural due process claim fails because he was afforded adequate process.”’).

None of plaintiff's specific grievances undermines this conclusion. Plaintiff relies
heavily on the fact that he was denied the ability to cross-examine witnesses. Pl.’s Opp.
at 19-20 (claiming that due process “necessitated the ability to cross-examine
witnesses”). But in the context of ALJ reappointment decisions, due process does not
require the confrontation of adverse witnesses. Pearson, 644 F. Supp. 2d at 47-48
(“{T]he [COST’s] decision not to allow plaintiff to confront witnesses cannot serve as the
basis for plaintiff's due process claim.”). Nor does COST’s alleged failure to strictly
abide by local regulations constitute a constitutional deprivation. AFGE, AFL-CIO,
Local 446 v. Nicholson, 475 F.3d 341, 353 (D.C. Cir. 2007) (holding a “mere violation of
law does not give rise to a due process claim”); Brandon v. D.C. Bd. of Parole, 823 F.2d
644, 648-49 (D.C. Cir. 1987) (holding no due process occurred as a result of agency’s

failure to comply with D.C. regulations). Nor are plaintiff's conclusory allegations of

17
bias and reliance on “ex parte contacts,” Am. Compl. {J 123, 128-29, 169, sufficient to
render the process deficient. See Pearson, 644 F. Supp. 2d at 49 (rejecting conclusory
allegations as insufficient to state a due process claim). Nothing in the record suggests
COST was impartial or based its decision on any inappropriate considerations. Kowal,
16 F.3d at 1276 (“[T]he court need not accept inferences drawn by plaintiff]] if such
inferences are unsupported by the facts set out in the complaint.”).

Plaintiff also attacks the validity of COST members’ appointments. See Am.
Compl. Ff 10, 132. Focusing on defendants Williams and Onek, plaintiff argues that
alleged deficiencies in their appointments render COST’s decision invalid. Pl.’s Opp. at
22. But this collateral attack fails under the de facto officer doctrine, which “applies in
the context of technical defects and confers validity upon acts performed by a person
acting under color of official title, even if it is later determined that the title is deficient.”
Wrenn v. District of Columbia, 808 F.3d 81, 84 (D.C. Cir. 2015); see also Grooms v.
LaVale Zoning Bd., 27 Md. App. 266, 274 (Md. App. Ct. 1975) (holding de facto officers
may include those that hold “color of official title” due to holding over in office after
their official term has ended).

' The de facto officer doctrine has “seen substantial contraction over time.” L.M.-
M. v. Cuccinelli, 442 F. Supp. 3d 1, 35 (D.D.C. 2020). But the parties agree that under
“governing D.C. Circuit law,” collateral attacks on an official’s authority are only
permitted where (1) the plaintiff brings his action “at or about the time that the
challenged government action is taken” and (2) the plaintiff shows that the agency has

had reasonable notice of the claimed defects in the officials’ titles. Jd. (quoting Andrade

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v. Lauer, 729 F.2d 1475, 1499 (D.C. Cir. 1984)); see also Pl.’s Opp. at 23. Here, plaintiff
did not file suit until May 19, 2020—almost three years after COST considered his
reappointment. Accordingly, he fails to meet the first prong of the test and cannot avoid
the preclusive effect of the de facto officer doctrine. Andrade, 729 F.2d at 1499
(“Prohibiting attacks on government actions taken long before suit was filed protects
those who have relied on those actions and avoids the chaos that might ensure if all the
actions taken by an official improperly in office for years were subject to invalidation.”).

Finally, plaintiff contends that his hearings on July 19 and September 29 were
sham hearings designed to legitimize COST’s decision, which, he alleges, was finalized
by the “secret ultra vires group” involved in the June 29 meeting. Am. Compl. f¥ 118—
26. But plaintiff offers nothing more than conclusory statements in support of this
theory, which are insufficient to survive a motion to dismiss. Twombly, 550 U.S. at 556
(holding the standard under Rule 12(b)(6) “calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of a valid claim). Despite quoting with
specificity what was said during the June 29 meeting, see Am. Compl. { 123, the
Amended Complaint presents no factual allegations supporting the conclusion that COST
prematurely decided to not reappoint plaintiff at this time. See JSC Transmasholding v.
Miller, 70 Supp. 3d 516, 520 (D.D.C. 2014) (“[R]aising a ‘sheer possibility that a
defendant has acted unlawfully’ fails to satisfy the facial plausibility requirement.’”
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To the contrary, the allegations in
the Amended Complaint permit only the inference that COST deliberated regarding

plaintiff's reappointment in the June 29 meeting and considered the possibility of not

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reappointing him—neither of which runs afoul of due process.* See Pearson, 644 F.
Supp. 2d at 46-48. Accordingly, plaintiff fails to adequately state a Fifth Amendment
procedural due process claim.

B. First Amendment Retaliation Claim

To state a First Amendment retaliation claim, plaintiff must (1) show that his
protected activity related to a matter of public concern;? (2) show that his interest in
engaging in protected activity outweighs the state’s interest as an employer; (3) show that
his activity was a substantial or motivating factor in his discharge; and (4) rebut the
Government’s showing, if any, that it would not have reached the same decision absent
the protected conduct. See Hall v. Ford, 856 F.2d 255, 258 (D.C. Cir. 1988). The first
two elements are questions of law for the court to resolve, while the latter two are
questions of fact “ordinarily left to the jury.” Jd.

Plaintiff asserts that he engaged in protected activity through his Union
membership and “by taking action in support of union interests.” Am. Compl. 4179; Pl.’s
Opp. at 36-37. In his view, this activity “served as a substantial factor in the [COST’s]
non-reappointment decision.” Pl.’s Opp. at 37. Defendants reject this conclusion,

asserting that plaintiff does not “allege any facts showing that his union membership or

8 Plaintiff also alleges that the September 29, 2017 letter was “a post-dated version” of the
non-reappointment letter defendant Williams had already signed on July 21, 2017. Am. Compl. § 159.
Even to the extent this is true and COST had already decided, as of July 21, 2017, to not reappoint
plaintiff, the Court finds that COST provided constitutionally adequate due process. Under this theory,
plaintiff would still have been afforded adequate notice and an opportunity to be heard at the July 19
meeting. See Mathews, 424 U.S. at 333 (requiring only notice and an opportunity to be heard “at a
meaningful time and in a meaningful manner”).

° Our Circuit has yet to decide whether the first element regarding public concern applies where, as here,
claims are premised on associational rights as opposed to speech.

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union organization activity was a substantial or motivating factor in his non-
reappointment.” Def.’s Mot. at 39. In any event, defendants argue, plaintiff “is
collaterally estopped from relitigating this issue, having already lost after a full and fair
hearing before PERB.” J/d.n.11. I agree with defendants that issue preclusion prevents
plaintiff from asserting that his union activities were a substantial and motivating factor
in COST’s decision, and therefore precludes him from stating a valid First Amendment
retaliation claim. How so?

Issue preclusion occurs where “(1) the issue was actually litigated; (2) was
determined by a valid, final judgment on the merits; (3) after a full and fair opportunity
for litigation by the party; and (4) under circumstances where the determination was
essential to the judgment.” DeWitt v. District of Columbia, 43 A.3d 291, 300 (D.C.
2012); see also Brewer v. District of Columbia, 105 F. Supp. 3d 74 (D.D.C. 2015).
Administrative proceedings may give rise to issue preclusion just as cases litigated in the
courts. See B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 148 (2015)
(“[W]hen an administrative agency is acting in a judicial capacity and resolves disputed
issues of fact properly before it which the parties have had an adequate opportunity to
litigate, the courts have not hesitated to apply res judicata.”).

Here, the PERB proceeding prevents relitigating the issue of whether “antiunion
sentiment was a substantial or motivating factor in [defendant] Adams’s decision not to
recommend [plaintiffs] reappointment.” Ex. 3 to Defs.’ Mot. at 4. That issue was
squarely before the administrative hearing officer and the PERB and was conclusively

decided in defendants’ favor. Jd. at 7.

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Plaintiff does not argue the PERB proceeding was inadequate in any way that
would undermine the application of issue preclusion. See Pl.’s Opp. at 39-40. Instead,
he asserts the third element of issue preclusion is not met because the Union was the
party before PERB, not plaintiff, and therefore its determination cannot bind him, a
nonparty. Jd. Many courts, however, have found litigation conducted by unions as
binding on their members for preclusion purposes. See, e.g., Brewer, 105 F. Supp. 3d at
90 (collecting cases).

Plaintiff also asserts, without any support, that issue preclusion is inappropriate
because “the controlling law differs” between the PERB litigation and the present case.
Pl.’s Opp. at 40. But this argument fares no better. It is not the precise pleading of legal
claims that matters for purposes of issue preclusion, but “whether the parties in the
subsequent case have posed a significant issue of fact that was already asked, considered,
and answered by a court of competent jurisdiction in a previous lawsuit.” Brewer, 105 F.
Supp. 3d at 89. Accordingly, I will apply issue preclusion to prevent plaintiff from
challenging the fact that anti-union sentiment was not a substantial or motivating factor in
defendant Adams’s decision not to recommend plaintiff for reappointment.

The question remains, however, whether plaintiff has nonetheless stated a valid
First Amendment retaliation claim against Adams or any other defendant. I find he has
not. Excluding the allegations relating to defendant Adams’s investigation and the
resulting negative recommendation, the Amended Complaint contains only threadbare
allegations relating to any of the other defendants’ motivations. Indeed, it is evident from

the Amended Complaint that defendant Adams’s alleged anti-union motivations are the

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lynchpin of plaintiff's First Amendment claim. Am. Compl. J 183 (“Many of the claims
in Adams’s [negative recommendation] letter have their basis in [plaintiff's] union
activities, including activities in which [plaintiff] engaged in as part of his duties as union
chapter president. Defendants would not and could not have come to the same decision
not to reappoint without [plaintiffs] union activities having played such a large role in
Adams’s justifications.”). Thus, without the allegations relating to defendant Adams’s
recommendation, plaintiff fails to plausibly allege that anti-union sentiment was a
substantial or motivating factor with respect to any defendant’s conduct.!? Accordingly,
plaintiff fails to adequately state a First Amendment retaliation claim.
C. Municipal Liability

Plaintiff also fails to allege any basis for municipal liability. To state a claim
against the District, plaintiff must show that a constitutional violation resulted from: (1)
“the explicit setting of a policy by the government that violates the Constitution;” (2) “the
action of a policy maker with the government;” (3) “the adoption through a knowing
failure to act by a policy maker of actions by his subordinates that are so consistent that
they have become custom;” or (4) “the failure of the government to respond to a need (for
example, training of employees) in such a manner as to show deliberate indifference.”
Baker vy. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).

Plaintiff argues that the Amended Complaint supports a theory of liability based

on custom, deliberate indifference, or the actions of a policy maker. See Pl.’s Opp. at 43-

10 This conclusion is reinforced by the fact that COST was required to give “significant weight” to
defendant Adams’s negative recommendation unless COST determined the recommendation was not
founded on substantial evidence. D.C. Mun. Regs. tit. 6B § 3705.21.

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44. I disagree.

Plaintiff alleges no policy, or custom, of denying reappointment to union-affiliated
ALJs or depriving those ALJs of due process. See Page v. Mancuso, 999 F. Supp. 2d
269, 284 (D.D.C. 2013) (noting the “high hurdle” required to plead a custom-based
theory of municipal liability). Indeed, the Amended Complaint does not reference any
other reappointment decisions, except in the most ancillary terms. See Compl. 128
(alleging ex parte communications occurred in “another ALJ reappointment”). As such,
plaintiff fails to state a custom-based claim against the District.

Nor can plaintiff's Amended Complaint support a policy-maker or deliberate
indifference theory. COST is not a policy maker, see Singletary v. District of Columbia,
766 F.3d 66, 74 (D.C. Cir. 2014) (holding the Parole Board was not a policy maker for
purposes of establishing parole policy), and the Amended Complaint fails to articulate an
alleged need, or the District’s failure to respond appropriately, as is required to establish
deliberate indifference. Accordingly, the Court dismisses plaintiff's claims against the
District for the independent reason that the Amended Complaint fails to adequately state
a municipal liability claim.

D. Qualified Immunity

Finally, the individual defendants are entitled to qualified immunity to the extent
plaintiff sues them in their individual capacities. “[W]hen a plaintiff sues a government
agent in his/her individual capacity and the defenses of absolute and qualified immunity
are raised, that plaintiff must overcome those defenses in order to survive a Rule 12(b)(6)

motion to dismiss.” Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006). Under

24
the doctrine of qualified immunity, officials performing discretionary functions!!
“generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson, 644 F. Supp. 2d at 36 (quoting Hawlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).

For the reasons stated above, the Court has already found that plaintiff fails to
state a constitutional violation. But even assuming plaintiff adequately pleaded a Fifth or
First Amendment violation, the Court finds that the same reasons support granting the
individual defendants qualified immunity. Simply put, plaintiffs allegedly infringed
rights were not “clearly established” at the time COST made its decision. Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (201 1) (instructing courts “not to define clearly established law
at a high level of generality’). To the contrary, based on the relevant available caselaw, a
reasonable official in defendants’ situation could have believed that his or her conduct
did not violate plaintiff's constitutional rights. See Pearson, 644 F. Supp. 2d at 36
(holding COST members entitled to qualified immunity on allegations of First and Fifth
Amendment violations). Accordingly, the individual defendants are entitled to qualified

immunity and the claims against them are dismissed for this independent reason.

'! COST members are undeniably performing a discretionary function in deciding whether to reappoint an
ALJ. Pearson, 644 F. Supp. 2d at 35.

2 The Court also recognizes that COST members receive no salary for their service. D.C. Code § 2—
1831.07(e). Were the Court not to apply the principles of qualified immunity at this early stage in the
proceedings, the specter of personal liability may significantly reduce the Government’s ability to fill
those positions with qualified individuals. See Mitchell v. Forsyth, 472 U.S. 511 (1985) (noting officials
entitled to qualified immunity enjoy “immunity from suit rather than a mere defense to liability,” which
will be “effectively lost if a case is erroneously permitted to go to trial’’).

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CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendants’ motion to

dismiss and DISMISSES the action in its entirety. An Order consistent with this decision

accompanies this Memorandum Opinion. im Ser]
’ #

RICHARD J. LEON
United States District Judge

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