UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) STEPHEN IFEANYI AMOBI, et al., ) ) Plaintiffs, ) ) v. ) No. 08-cv-1501 (KBJ) ) DEVON BROWN, et al., ) ) Defendants. ) )
MEMORANDUM OPINION
In 2006, the D.C. Department of Corrections (“DOC”) summarily removed
Plaintiff Stephen Ifeanyi Amobi from his position as a correctional officer. (See 2d
Am. Compl., ECF No. 188, ¶¶ 12, 14.) Amobi successfully contested his removal
through administrative proceedings, and was reinstated to his position. (See id. ¶ 19.)
He then initiated the instant legal action against the District of Columbia and multiple
DOC officials (see id. ¶ 2), seeking damages for various alleged violations of federal
and D.C. law with respect to his removal (see id. ¶¶ 30–40, 46–56). Amobi’s federal
claims were ultimately dismissed, but the majority of his D.C. law claims proceeded to
trial (see Ct. Summ. of Remaining Counts for Trial, ECF No. 270), where a jury
determined that one of the individual defendants, Devon Brown, had engaged in
malicious prosecution of Amobi’s removal (see Verdict Form, ECF No. 301, at 1). 1
Following the jury’s verdict, the Clerk of Court entered judgment in Amobi’s favor on
his malicious prosecution of administrative removal claim and in favor of Brown and
1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns. the other defendants on all remaining claims. (See J. on the Verdict, ECF No. 304, at
1.)
Before this Court at present is Brown’s Renewed Motion for Judgment as a
Matter of Law, or, in the Alternative, to Alter or Amend the Judgment. (See Def.’s
Renewed Mot. for J. as a Matter of Law or, Alternatively, Mot. to Alter or Amend J.
(“Def.’s Mot.”), ECF No. 321.) In his motion, Brown contends that the D.C.
Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01 et seq., preempts
Amobi’s malicious prosecution of administrative removal claim, because the CMPA
provides the exclusive remedy for virtually all workplace grievances that are brought by
employees of the District of Columbia. (See Def.’s Mot. at 11–14; Def.’s Suppl. Mem.
in Supp. of Mot. (“Def.’s Suppl. Mem.”), ECF No. 327, at 7–8.) Brown argues further
that, because Amobi failed to exhaust his administrative remedies under the CMPA, the
Court must dismiss Amobi’s claim either for lack of subject-matter jurisdiction or for
failure to state a claim upon which relief can be granted. (See Def.’s Suppl. Mem. at 7–
8, 14.) In the alternative, Brown insists that the jury lacked a “legally sufficient
evidentiary basis for [its] finding of liability” on Amobi’s malicious prosecution of
administrative removal claim, and he therefore asks the Court to reverse the judgment
against him. (Def.’s Mot. at 14.) Amobi opposes Brown’s motion on both grounds,
arguing that the CMPA does not bar his claim, and that the evidence presented at trial
supports the jury’s verdict. (See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No.
324, at 6–7, 8–14; Pl.’s Resp. to Def.’s Suppl. Mem. (“Pl.’s Suppl. Mem.”), ECF No.
329, at 4–5.)
2 This Court has carefully considered the parties’ submissions in this case, and for
the reasons discussed fully below, it concludes that Amobi’s malicious prosecution of
administrative removal claim must be dismissed under Rule 12(b)(6) for failure to
exhaust his administrative remedies under the CMPA’s exclusive remedial framework.
Consequently, Brown’s motion will be GRANTED insofar as it seeks dismissal of the
malicious prosecution of administrative removal claim under Rule 12(b)(6), and the
judgment against Brown with respect to that claim will be VACATED. A separate
Order consistent with this Memorandum Opinion will follow.
I. BACKGROUND
A. Amobi’s Removal And The Administrative Proceedings Below
Amobi was working as a correctional officer at the D.C. Jail on June 4, 2006,
when he was ordered to escort an agitated inmate from one section of the jail to
another. (See 2d Am. Compl. ¶¶ 5–6; Arbitration Op., Ex. 9 to Def.’s Suppl. Mem.,
ECF No. 327-9, at 12.) A verbal altercation ensued between Amobi and the inmate, and
when the inmate escalated the fight by punching Amobi in the forearm, Amobi
restrained the inmate by pinning him up against the wall. (See 2d Am. Compl. ¶¶ 6–7;
Arbitration Op. at 12–14.) A DOC official who witnessed Amobi’s use of force called
the police (see 2d Am. Compl. ¶¶ 8–9), and an officer subsequently arrived at the scene
and arrested Amobi for assault (see id. ¶¶ 9–10; Arbitration Op. at 14). Following this
sequence of events, Brown—who was serving as the Director of DOC at the time—
summarily removed Amobi from his position. (See 2d Am. Compl. ¶ 12; Summ.
Removal Decision, Ex. 3 to Def.’s Suppl. Mem., ECF No. 327-3, at 1; Arbitration Op.
at 14.)
3 Brown’s removal decision was then reviewed by a DOC hearing officer. (2d
Am. Compl. ¶ 12; Arbitration Op. at 16.) In conjunction with this administrative
review, the officer held a hearing and considered the available evidence, and she
eventually and ultimately determined that Amobi had acted in self-defense, such that
his termination was unwarranted. (See 2d Am. Compl. ¶ 12; Hr’g Officer Report, Ex. 5
to Def.’s Suppl. Mem., ECF No. 327-5, at 2.) Brown disagreed with the hearing
officer’s analysis of the evidence, however. Therefore, acting in his capacity as agency
head, Brown remanded the matter to the hearing officer for further consideration. (See
2d Am. Compl. ¶ 13; Remand Order, Ex. 6 to Def.’s Suppl. Mem., ECF No. 327-6, at 2–
4.) On remand, the hearing officer changed her recommendation and concurred with
Brown’s removal decision. (See 2d Am. Compl. ¶ 14; Hr’g Officer Report on Remand,
Ex. 7 to Def.’s Suppl. Mem., ECF No. 327-7, at 2.)
Brown issued a final decision confirming Amobi’s removal on August 29, 2006,
which Amobi and his union subsequently challenged pursuant to the terms of his
Collective Bargaining Agreement. (See 2d Am. Compl. ¶¶ 14, 16; Arbitration Op. at
17.) Meanwhile, the District moved forward with a criminal assault case against
Amobi, and the case proceeded to trial in D.C. Superior Court, where a judge eventually
found that Amobi was not guilty of assault. (See 2d Am. Compl. ¶ 16; Arbitration Op.
at 12, 14.) In light of his acquittal, Amobi requested immediate reinstatement in lieu of
contesting his removal through arbitration (see 2d Am. Compl. ¶ 17), and an attorney
representing the District also wrote a memorandum directed to Brown that
recommended reinstating Amobi instead of pursuing arbitration (see id.; Ex. X to Pls.’
Sealed Mot. for Determination of Privilege, ECF No. 70-54, at 1, 4). At Brown’s
4 apparent insistence (see Trial Tr., ECF No. 315, at 1082:1–10), the parties nevertheless
went forward with arbitration proceedings, and on December 21, 2007, the arbitrator
also ruled in Amobi’s favor, ordering that he “be reinstated with full back pay and
benefits” (Arbitration Op. at 24).
B. Procedural History
Amobi filed the instant legal action against the District of Columbia, DOC,
Brown, and five other DOC officials in D.C. Superior Court on June 4, 2008. (See Ex.
1 to Notice of Removal, ECF No. 1-1, at 13–14.) The case was removed to the U.S.
District Court for the District of Columbia shortly thereafter (see Notice of Removal,
ECF No. 1, at 2–3), and on November 10, 2016, Amobi filed his second amended
complaint—the operative complaint in this case, which dropped DOC and one of the
individual officials as defendants (see 2d Am. Compl. ¶ 2)—and raised a number of
federal and D.C. law claims relating to Amobi’s arrest and removal (id. ¶¶ 23–56). 2
The parties subsequently engaged in extensive briefing, and this Court issued a series of
rulings on various disputed issues (see, e.g., Order Granting in Part and Den. in Part
Defs.’ Partial Mot. for Summ. J., ECF No. 201, at 1–2; Order Granting Summ. J. to
Defs. on Count I, ECF No. 257, at 1), such that, by June of 2018, only four common law
tort claims remained: malicious prosecution of criminal proceeding, malicious
prosecution of administrative removal, aiding and abetting malicious prosecution of
administrative removal, and intentional infliction of emotional distress (see Ct. Summ.
of Remaining Counts for Trial at 1).
2 The second amended complaint named Amobi’s wife as a plaintiff in the litigation (see 2d Am. Compl. ¶¶ 1, 53–54), but the parties later agreed to dismiss the sole claim for relief that she had asserted (see Joint Praecipe of Dismissal, ECF No. 261, at 1).
5 The case proceeded to a jury trial on June 22, 2018. (See Min. Entry of June 22,
2018.) After Amobi presented his case-in-chief to the jury, the defendants moved for
judgment as a matter of law on all claims. (See Trial Tr. at 1036:6–7, 1045:9–14.) In
the context of this motion, the defendants argued not only that Amobi had failed to
offer sufficient evidence for each claim (see id. at 1036:9–1037:4, 1045:9–12), but also
that the CMPA deprived the Court of subject-matter jurisdiction over Amobi’s claims
for malicious prosecution of administrative removal, aiding and abetting malicious
prosecution of administrative removal, and intentional inflection of emotional distress
(see id. at 1049:3–9). The Court denied the motion without prejudice, explaining that
the defendants could reassert their contentions regarding the sufficiency of the evidence
at the close of the case. (See id. at 1045:13–19, 1048:14–23.) And the Court further
declined to entertain the defendants’ CMPA-preemption argument during the trial, but it
expressly posited that, if necessary, the defendants could raise the issue again in a post-
trial motion. (See id. at 1088:1–10.)
The defendants renewed their motion for judgment as a matter of law after the
close of evidence (see Trial Tr., ECF No. 317, at 1232:23–24), and the Court granted
the motion with respect to Amobi’s intentional infliction of emotional distress claim,
finding that the evidence presented at trial was insufficient to support a verdict in
Amobi’s favor (see id. at 1292:8–14). The Court denied the rest of the motion, and
submitted the three remaining claims to the jury. (See Trial Tr., ECF No. 318, at
1392:22–1393:4.)
The jury rendered its verdict on July 2, 2018. (See Verdict Form at 3.) It found
that Brown had engaged in malicious prosecution of Amobi’s administrative removal,
6 but that Amobi was not entitled to an award of compensatory or punitive damages with
respect to this established claim. (See id. at 1–2.) The jury otherwise returned a verdict
in favor of the defendants. (See id.) In light of the jury’s verdict, the Clerk of Court
entered judgment against Brown on Amobi’s malicious prosecution of administrative
removal claim, and in favor of Brown and the other defendants on all remaining counts.
(See J. on the Verdict at 1.)
C. The Instant Motion
On July 30, 2018, Brown filed a renewed motion for judgment as a matter of law
under Federal Rule of Civil Procedure 50, or, in the alternative, a motion to alter or
amend the judgment under Federal Rules of Civil Procedure 59(e) and 60. (See Def.’s
Mot. at 1.) In his motion, Brown reasserts the argument that the CMPA precludes
Amobi’s successful malicious prosecution of administrative removal claim (see id. at
11), and contends that the jury lacked sufficient evidence to support its finding of
liability in any case (see id. at 14; see also Def.’s Reply to Pl.’s Opp’n, ECF No. 325, at
11–16). As most relevant here, Brown explains in his motion—and in a supplemental
brief on the matter—that the CMPA is a comprehensive personnel system that creates
an exclusive remedy for almost all workplace disputes (see Def.’s Mot. at 11; Def.’s
Suppl. Mem. at 14), and that its scheme includes the potential to grieve Amobi’s
challenge to Brown’s handling of his administrative removal (see Def.’s Mot. at 13;
Def.’s Suppl. Mem. at 23–24). 3 And, according to Brown, the “exclusivity of the
CMPA’s remedial scheme” imposes a jurisdictional bar to suit in the D.C. courts
3 Brown submitted this supplemental brief pursuant to an order of this Court requesting additional briefing on the scope and jurisdictional implications of his CMPA preemption argument. (See Order for Suppl. Briefing, ECF No. 326, at 3–5 (directing Brown to submit a supplemental brief and ordering Amobi to file a response).)
7 (Def.’s Suppl. Mem. at 9), meaning that D.C. employees cannot litigate a
workplace-related claim in the local courts without first exhausting the administrative
procedures that the CMPA prescribes (see id. at 29–30)—and, even then, the CMPA
limits the role of a court to reviewing the administrative decision that was issued during
the proceedings below, rather than reviewing the claim de novo (see id. at 30).
As Brown acknowledges in his supplemental brief, however, whether a
“state-created remedial scheme [like the CMPA] can ever deprive an Article III court of
jurisdiction” is an unsettled question in the D.C. Circuit (see id. at 9 (emphasis added)),
and federal circuit courts across the country have treated the issue in differing ways
(see id. at 10–13). Brown argues nevertheless that, regardless of whether an “exclusive
remedy provision of a state statute” is considered jurisdictional or non-jurisdictional in
federal court (id. at 11 (internal quotation marks and citation omitted)), federal courts
routinely dismiss state-law claims that are preempted by such provisions, either for lack
of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)—if the
court treats the state-law rule as a jurisdictional bar to suit—or for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6)—if the court treats the state-law
rule as non-jurisdictional (see id. at 10–13). Thus, Brown urges this Court to dismiss
the claim in any event, on the grounds that the CMPA provides the exclusive remedy
for Amobi’s work-related dispute and that Amobi failed to pursue his claim through the
CMPA’s established framework. (See id. at 23–27, 29–30.)
For his part, Amobi’s responses to Brown’s motion and supplemental brief do
not address the jurisdictional implications of the CMPA. Instead, Amobi insists that the
CMPA does not pertain to his claim for malicious prosecution of administrative
8 removal. (See Pl.’s Suppl. Mem. at 4–7.) For example, Amobi asserts that he could not
have pursued his claim under the CMPA, because “[t]he CMPA does not permit an
employee to challenge an adverse action through the grievance process, win at
arbitration, and then file another grievance regarding his employer’s handling of the
prior successful grievance.” (Id. at 5.) Amobi further maintains that, even if he could
have brought his claim under the CMPA, “the arbitrator’s decision returning him to
work and awarding him back pay was inadequate to render [him] whole as a result of
the malicious behavior of Defendant Brown.” (Id. at 6.) Indeed, according to Amobi,
because “‘government employees only lose common law rights of recovery if the statute
provides redress for the wrongs they assert’” (id. at 6–7 (quoting Robinson v. District of
Columbia, 748 A.2d 409, 411 (D.C. 2000))), and the CMPA does not authorize an
award of non-economic or punitive damages, “the only way for [him] to seek redress for
all the damages caused by Defendant Brown’s conduct was for him to” file the instant
lawsuit and “seek judicial relief” (id. at 7). Finally, as for Brown’s argument that the
jury lacked sufficient evidence to find him liable for malicious prosecution of
administrative removal, Amobi contends that the jury heard ample evidence to support
its finding, and that the Court should not disturb the jury’s verdict as a result. (See
Pl.’s Opp’n at 8, 14.)
The parties’ arguments concerning Amobi’s malicious prosecution of
administrative removal claim are now ripe for this Court’s review.
II. LEGAL STANDARDS
A. Core Principles Of The CMPA
In 1978, the D.C. Council enacted the CMPA to create a “uniform system of
9 merit personnel administration” that would “replace a disjointed, decentralized[,]” and
“inefficient” federal framework. District of Columbia v. Thompson, 593 A.2d 621, 632
(D.C. 1991) (internal quotation marks and citations omitted). To that end, the CMPA
provides, “[w]ith few exceptions, . . . the exclusive remedy for a District of Columbia
public employee who has a work-related complaint of any kind[,]” Robinson, 748 A.2d
at 411, including “any complaint arising out of employer conduct in handling personnel
ratings, employee grievances, and adverse actions[,]” Lattisaw v. District of Columbia,
905 A.2d 790, 793 (D.C. 2006) (internal quotation marks and citation omitted). 4 Under
the CMPA, employees can challenge “any matter under the control of the District
government which impairs or adversely affects the interest, concern, or welfare of
employees” by filing a grievance, D.C. Code § 1-603.01(10); see also id. § 1-616.53, or
they can contest an adverse action involving “removal, a reduction in grade, or
suspension of 10 days or more[,]” by filing an appeal with the D.C. Office of Employee
Appeals, id. § 1-616.52(b). Moreover, an employee can choose to have his grievance or
appeal “resolved either under detailed CMPA procedures or under a CMPA-sanctioned
collective bargaining agreement . . . but not both.” Thompson, 593 A.2d at 625; see
also D.C. Code § 1-616.52(d), (e).
Depending on the type of claim that an employee asserts, and also the particular
method through which the employee pursues his claim under the CMPA, an employee is
statutorily authorized to ask the D.C. Superior Court to review an administrative
decision or arbitration award. See D.C. Code §§ 1-605.02(6), 1-606.03(d), 1-617.13(c);
4 The exceptions to the CMPA’s exclusive remedial scheme, which are not relevant here, involve discrimination claims that are subject to the D.C. Human Rights Act, and “common-law claims that [are] premised on, and fundamentally related to a sexual harassment claim[.]” Robinson, 748 A.2d at 411 (internal quotation marks and citation omitted).
10 see also Thompson, 593 A.2d at 634 (noting that the CMPA contemplates a “reviewing
role for the courts as a last resort, not a supplementary role for the courts as an
alternative forum”). And, notably, under D.C. law, such an employee may not bring his
claim under the CMPA to D.C. Superior Court until he has exhausted the applicable
administrative grievance procedures, see, e.g., Thompson, 593 A.2d at 635; Johnson v.
District of Columbia, 552 F.3d 806, 810–11 (D.C. Cir. 2008); indeed, even if “a
substantial question exists as to whether the CMPA applies,” the employee must first
follow the CMPA’s procedures and present the claim to the “appropriate District
agency” before filing a legal action in court, White v. District of Columbia, 852 A.2d
922, 925 (D.C. 2004) (internal quotation marks and citation omitted).
B. Exhaustion Requirements In Federal Court
Where, as here, a question arises regarding the plaintiff’s exhaustion of
administrative remedies under a particular statutory scheme, courts in this circuit
distinguish between two types of exhaustion requirements. The first type, which is
called “non-jurisdictional exhaustion,” is a “judicially created doctrine requiring parties
who seek to challenge agency action to exhaust available administrative remedies
before bringing their case to court.” Avocados Plus Inc. v. Veneman, 370 F.3d 1243,
1247 (D.C. Cir. 2004). This prudential rule exists to “giv[e] agencies the opportunity to
correct their own errors, afford[] parties and courts the benefits of agencies’ expertise,
compil[e] a record adequate for judicial review, [and] promot[e] judicial efficiency[.]”
Marine Mammal Conservancy, Inc. v. Dep’t of Agric., 134 F.3d 409, 414 (D.C. Cir.
1998). However, because this type of exhaustion is non-jurisdictional in nature, courts
may also excuse a plaintiff’s failure to exhaust administrative remedies, and they can do
so if they find that “the litigant’s interests in immediate judicial review outweigh the
11 government’s interests in the efficiency or administrative autonomy that the exhaustion
doctrine is designed to further.” McCarthy v. Madigan, 503 U.S. 140, 146 (1992)
(internal quotation marks and citation omitted).
The second type of exhaustion, referred to as “jurisdictional exhaustion,” is a
mandatory requirement that is “rooted[] not in prudential principles, but in Congress’
power to control the jurisdiction of the federal courts.” Avocados Plus, 370 F.3d at
1247. An exhaustion requirement is considered jurisdictional if the statute that
mandates exhaustion “contain[s] [s]weeping and direct statutory language indicating
that there is no federal jurisdiction prior to exhaustion[.]” Id. at 1248 (second alteration
in original) (internal quotation marks and citation omitted). And in the absence of such
“clear” and “unequivocal” language, courts must “presume exhaustion is non-
jurisdictional[.]” Id. (internal quotation marks and citation omitted). If an exhaustion
requirement is deemed to be jurisdictional, however, it operates as an unequivocal
requirement: courts may not excuse a plaintiff’s failure to exhaust his administrative
remedies. See id. at 1247.
C. Motions To Dismiss On Exhaustion Grounds
When it appears that a plaintiff has failed to follow a jurisdictional exhaustion
requirement, the defendant may file a motion to dismiss the claim under Federal Rule of
Civil Procedure 12(b)(1). See, e.g., Fernandez v. Donovan, 760 F. Supp. 2d 31, 34–35
(D.D.C. 2011). A Rule 12(b)(1) motion may be made at any time, see, e.g., Rattigan v.
Holder, 636 F. Supp. 2d 89, 90 (D.D.C. 2009), and the plaintiff bears the burden of
establishing that the Court has subject-matter jurisdiction over the claim, see
Fernandez, 760 F. Supp. 2d at 35. Moreover, in reviewing a motion to dismiss under
Rule 12(b)(1), a court may “consider such materials outside the pleadings as it deems
12 appropriate to resolve the question whether it has jurisdiction to hear the case.”
Holman v. Williams, 436 F. Supp. 2d 68, 73 (D.D.C. 2006) (internal quotation marks
and citation omitted).
Alternatively, if the exhaustion requirement at issue is non-jurisdictional, “the
exhaustion requirement is treated as an element of the underlying claim[,]” and the
defendant may file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted. Fernandez, 760 F. Supp.
2d at 34–35 (internal quotation marks and citation omitted). As most relevant here, a
defendant can move to dismiss a claim under Rule 12(b)(6) in its pleadings or “at
trial[,]” Fed. R. Civ. P. 12(h)(2), and to grant such a motion, the court must find that
“the purposes of exhaustion and the particular administrative scheme support” dismissal
of the unexhausted claim, Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003)
(internal quotation marks and citation omitted). Additionally, as always, when
evaluating a Rule 12(b)(6) motion brought on exhaustion grounds, the court must accept
the plaintiff’s allegations as true and draw all reasonable inferences in the plaintiff’s
favor. See Washington v. District of Columbia, 538 F. Supp. 2d 269, 274 (D.D.C.
2008). The court must also limit its review to “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 v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997).
D. Post-Trial Motions Relating To The Judgment
Finally, because the Court permitted Brown to raise his CMPA-related arguments
in the context of a post-trial motion, and because Brown has dutifully filed such a
motion under Federal Rules of Civil Procedure 50, 59(e), and 60 (see Def.’s Mot. at 10–
13 11), the Court will briefly explain the legal standards that govern motions brought
pursuant to those Rules. First, under Rule 50, if a party moved for judgment as a matter
of law during a jury trial and the court declined to grant the motion, the party may file a
renewed motion after trial reasserting his request for an entry of judgment in his favor.
See Fed. R. Civ. P. 50(b). In order to prevail on such a post-trial motion for judgment
as a matter of law, the party must prove that “the evidence and all reasonable inferences
that can be drawn therefrom are so one-sided that reasonable men and women could not
have reached a verdict in [the non-moving party’s] favor.” Muldrow ex rel. Estate of
Muldrow v. Re-Direct, Inc., 493 F.3d 160, 165 (D.C. Cir. 2007) (internal quotation
marks and citation omitted).
Rule 59(e), meanwhile, permits a party to move for an altered or amended
judgment after a trial, and the court may grant such a motion if it “finds that there [has
been] an intervening change of controlling law”; that new evidence is available; or that
there is a “need to correct a clear error or prevent manifest injustice.” Anyanwutaku v.
Moore, 151 F.3d 1053, 1057–58 (D.C. Cir. 1998) (internal quotation marks and citation
omitted). A party can also file a motion under Rule 60 for relief from a final judgment
on various grounds, including that “the judgment is void[,]” Fed. R. Civ. P. 60(4), or
for “any other reason that justifies relief[,]” Fed. R. Civ. P. 60(b)(6)—as long as that
reason presents “extraordinary circumstances justifying the reopening of a final
judgment[,]” United States v. Philip Morris USA Inc., 840 F.3d 844, 852 (D.C. Cir.
2016) (internal quotation marks and citation omitted).
14 III. DISCUSSION
As explained, the parties in this case dispute the relevance and implications of
the CMPA with respect to Amobi’s malicious prosecution of administrative removal
claim. According to Brown, malicious prosecution of administrative removal claims
must be exhausted under the CMPA’s exclusive remedial scheme, either as a
jurisdictional or as a prudential matter, while Amobi insists that the CMPA’s
exhaustion requirement simply does not apply to his claim. For the reasons explained
fully below, this Court concludes that the CMPA’s exhaustion requirement is non-
jurisdictional in federal court, the statute’s administrative scheme does extend to
malicious prosecution of administrative removal claims, and because Amobi did not
exhaust his administrative remedies with respect to that claim, his claim must be
dismissed for failure to state a claim upon which relief can be granted.
A. The CMPA’s Exhaustion Requirement Is Non-Jurisdictional In Federal Court, And Brown’s Motion Must Be Construed As A Motion To Dismiss Under Rule 12(b)(6)
The CMPA requires “an employee of the District of Columbia [to] bring to an
administrative tribunal, not the Superior Court, any complaint arising out of employer
conduct in handling personnel ratings, employee grievances, and adverse actions.”
Lattisaw, 905 A.2d at 793 (quoting Thompson, 593 A.2d at 636). It is by now well
established that the CMPA’s exhaustion requirement imposes a jurisdictional bar to
filing suit in D.C. courts. That is, under D.C. law, employees are “preclude[d]” from
litigating work-related tort claims in D.C. courts “in the first instance,” and must
instead raise their claims through the CMPA’s administrative framework. Thompson,
593 A.2d at 635. However, there is currently a lack of consensus regarding whether the
CMPA’s exhaustion requirement is likewise jurisdictional in federal court. Compare
15 Dickerson v. District of Columbia, 70 F. Supp. 3d 311, 320 (D.D.C. 2014) (collecting
cases treating the CMPA’s exhaustion requirement as jurisdictional in federal court),
with Hoey v. District of Columbia, 540 F. Supp. 2d 218, 226–27 (D.D.C. 2008) (citing
cases finding that the CMPA’s exhaustion requirement is non-jurisdictional in federal
court); see also Johnson, 552 F.3d at 810 n.2 (acknowledging that the issue is an open
question in the D.C. Circuit but declining to resolve it). (See also Def.’s Suppl. Mem.
at 10–13 (noting the existence of a circuit split on whether state-law rules that deprive
state courts of jurisdiction also deprive federal courts of jurisdiction).) In this Court’s
view, the CMPA’s exhaustion requirement must be applied as a non-jurisdictional rule
with respect to potentially covered claims that are brought in federal court.
To start, the Court observes that the CMPA is a law that was enacted by a local
legislature, and it is a bedrock principle of federal-court jurisdiction that, “[w]ithin
constitutional bounds, Congress decides what cases the federal courts have jurisdiction
to consider . . . and under what conditions[] federal courts can hear them.” Bowles v.
Russell, 551 U.S. 205, 212–13 (2007) (emphasis added); see also Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (stating that federal courts
“have only the power that is authorized by Article III of the Constitution and the
statutes enacted by Congress pursuant thereto”). Indeed, it is precisely because
“‘jurisdictional exhaustion’ is rooted[] . . . in Congress’ power to control the
jurisdiction of the federal courts[,]” Avocados Plus, 370 F.3d at 1247, that courts look
for clear expressions of Congress’s intent when determining whether they have
jurisdiction to review an unexhausted claim.
It is also apparent that Congress has not precluded federal courts from hearing
16 common law tort claims that have not been exhausted under the CMPA—an omission
that is especially striking given that Congress has authorized courts to exercise
jurisdiction over common law tort claims like the one at issue here, see 28 U.S.C.
§ 1367 (permitting courts to exercise supplemental jurisdiction over state-law claims
under appropriate circumstances). And the fact that the CMPA creates a jurisdictional
barrier to suit in the D.C. courts has “no bearing on whether [a federal] district court
has jurisdiction to adjudicate” a D.C. employee’s common law tort claim, because,
again, “[o]nly Congress may determine a lower federal court’s subject matter
jurisdiction.” Workagegnehu v. Wash. Metro. Area Transit Auth., 980 F.3d 874, 877–78
(D.C. Cir. 2020) (second alteration in original) (internal quotation marks and citation
omitted).
Thus, in the absence of any “sweeping and direct [congressional] language” to
the contrary, this Court must conclude that the CMPA’s exhaustion requirement is
non-jurisdictional as it pertains to the federal courts, Avocados Plus, 370 F.3d at 1248
(internal quotation marks omitted), and, as a result, it will treat Brown’s motion under
Rules 50, 59(e), and 60 as if it is a motion to dismiss that argues that Amobi has failed
to state a claim upon which relief can be granted under Rule 12(b)(6). See, e.g., Hoey,
540 F. Supp. 2d at 226–27 (explaining that non-jurisdictional exhaustion requirements
are typically treated as elements of the underlying claim); see also Fernandez, 760 F.
Supp. 2d at 35 (same). 5
5 It is true that, far from analyzing Brown’s Rule 12 motion in the early stages of the case, as typically happens, this Court has already held a trial on the claim at issue, and a jury has rendered a verdict in Amobi’s favor. But the Federal Rules of Civil Procedure permit a defendant to raise a Rule 12(b)(6) defense “at trial[,]” see Fed. R. Civ. P. 12(h)(2)(C), and, in this case, that is precisely when Brown first argued that the CMPA barred Amobi’s malicious prosecution of administrative removal claim (see Trial Tr. at 1049:3–9). Furthermore, although Brown initially presented his argument as a jurisdictional issue under Rule 12(b)(1) instead of a non-jurisdictional matter under Rule 12(b)(6), this Court finds
17 B. The CMPA Applies To Malicious Prosecution Of Administrative Removal Claims, And Amobi Failed To Exhaust His Administrative Remedies With Respect To That Claim
Having determined that Brown’s motion to dismiss does not identify a
jurisdictional defect, and instead requires the Court to assess whether Amobi has failed
to state a claim with respect to his malicious prosecution of administrative removal
contention (insofar as Amobi has purportedly neither alleged nor established that he
exhausted the administrative remedies that the CMPA provides), the Court must now
pivot to determine whether Amobi’s malicious prosecution of administrative removal
claim is even subject to the CMPA’s exhaustion requirement, and if so, whether Amobi
failed to exhaust the CMPA’s administrative process, and a failure to do so under the
circumstances presented cannot be excused, such that dismissal of his claim is
warranted. For the reasons that follow, the Court concludes that malicious prosecution
of administrative removal claims are subject to the CMPA’s administrative process; that
Amobi failed to exhaust those administrative remedies; and that his failure to exhaust
under the circumstances presented here requires dismissal of his malicious prosecution
of administrative removal claim. 6
It is clear beyond cavil that the CMPA “create[s] a mechanism for addressing
virtually every conceivable personnel issue among the District, its employees, and their
that Brown has not waived his Rule 12(b)(6) defense, given the ambiguity in the existing case law regarding the nature of the CMPA’s exhaustion requirement in federal court. See supra p. 15–16. The Court also declines to convert Brown’s motion to “one for summary judgment under Rule 56[,]” Fed. R. Civ. P. 12(d), despite Brown’s presentation of supportive materials outside the pleadings. The issues presented in the instant motion do not require the Court to consider any materials beyond the pleadings or the documents incorporated by reference therein, so the Court will apply the standards set forth in Rule 12(b)(6) to assess Brown’s motion. 6 To be precise, given the current posture of the case, “dismissal” of Amobi’s claim as Brown requests will have to be effected through vacatur of the Court’s existing judgment in Amobi’s favor on that claim.
18 unions[,]” Thompson, 593 A.2d at 634, and, thus, it also unquestionably covers “claims
arising out of employer conduct in handling personnel ratings, employee grievances,
and adverse actions[,]” id. at 635. Accordingly, courts have routinely held that the
CMPA preempts common law tort claims regarding the manner in which an employee is
disciplined or terminated. See Hoey, 540 F. Supp. 2d at 229–31 (collecting cases). For
example, rulings have established that the CMPA governs defamation claims involving
a supervisor’s “handling of [a plaintiff’s] discipline following an internal
investigation[,]” Washington, 538 F. Supp. 2d at 279, and also emotional distress and
defamation claims based on the allegedly “disrespectful, groundless, and public manner
in which [an employee’s] demotion was carried out[,]” Hoey, 540 F. Supp. 2d at 230
(internal quotation marks and citation omitted). Similarly, claims for “defamation,
publication of private facts, false light, negligence, and intentional infliction of
emotional distress” stemming from an employer’s “handling of . . . sexual harassment
allegations [against an employee] and the publicity given to them[,]” Robinson, 748
A.2d at 411–12, are subject to the CMPA’s framework.
Although it appears that there are no cases that have directly addressed a
malicious prosecution of administrative removal claim in relation to the CMPA, this
Court has little doubt that the CMPA covers such claims as well. In order to state a
claim for malicious prosecution of administrative removal in the employment context,
an employee must prove that (1) the employer initiated or continued an administrative
proceeding against the employee, (2) the proceeding was resolved in the employee’s
favor, (3) the employer lacked good cause for the proceeding, and (4) the employer
pursued the proceeding with malice or a primary purpose “other than bringing the
19 offender to justice.” (Final Jury Instrs., ECF No. 303, at 9.) By definition, then, a
malicious prosecution of administrative removal claim concerns an employer’s
“handling” of an employee grievance or adverse action, Thompson, 593 A.2d at 635,
and this Court sees no reason to treat such a claim differently for CMPA purposes than
the various other covered common law tort claims that assail the manner in which an
employee is terminated or disciplined, see, e.g., Hoey, 540 F. Supp. 2d at 230–31;
Washington, 538 F. Supp. 2d at 279–80; Robinson, 748 A.2d at 412.
The Court also easily concludes that Amobi did not exhaust the CMPA’s
administrative remedies with respect to his malicious prosecution of administrative
removal claim. Prior to filing the instant legal action, the only claim that Amobi
pursued through the administrative process was his challenge to the termination itself—
he did not seek to challenge Brown’s initiation or unflagging continuation of the
administrative removal proceedings. (See 2d Am. Compl. ¶¶ 12, 16, 19 (describing
Amobi’s administrative challenges to his removal); Arbitration Op. at 1–3.) In other
words, Amobi plainly waited to raise his malicious prosecution of administrative
removal claim until he filed his first amended complaint in this action (see 1st Am.
Compl., ECF No. 170-1, at 3), and as a result, there can be no serious dispute that he
failed to exhaust administrative remedies with respect to that claim. 7
7 Notably, Amobi has not argued that the facts developed in a manner that prevented him from challenging Brown’s actions through the CMPA’s framework, either because he was unaware of any facts giving rise to his claim before he filed suit in this court, or otherwise. He does point to the memorandum from the District’s attorney recommending reinstatement—which he claims he did not discover until litigating this case (see Pl.’s Suppl. Mem. at 6)—but the record suggests, for instance, that during the administrative removal process, Amobi learned that Brown had remanded the hearing officer’s decision, and that Brown refused to reinstate him after his acquittal (see Final Removal Decision, Ex. 8 to Def.’s Suppl. Mem., ECF No. 327-8, at 1–2; 2d Am. Compl. ¶ 17). Amobi has not provided any reason that such knowledge was insufficient to support a CMPA grievance in this regard.
20 Amobi presents three main arguments in an attempt to resist this conclusion,
none of which has merit. First, Amobi proclaims that the CMPA does not apply to
malicious prosecution of administrative removal claims at all, because the statute “does
not permit an employee to challenge an adverse action through the grievance process,
win at arbitration, and then file another grievance regarding his employer’s handling of
the prior successful grievance.” (Pl.’s Suppl. Mem. at 5.) But Amobi has not offered a
shred of legal support for that proposition, nor has he provided any reason to conclude
that an employee’s successful challenge to his termination prevents him from
subsequently raising a separate administrative claim about the manner in which his
employer pursued his termination in the context of the administrative review process.
In fact, existing case law strongly suggests otherwise; in cases where a plaintiff
challenges his removal and his employer’s handling of the removal, courts have held
that the CMPA applies to both claims, and that plaintiffs are required to pursue all of
their administrative remedies before litigating either issue in court. See, e.g., Johnson
v. District of Columbia, 368 F. Supp. 2d 30, 45–48 (D.D.C. 2005) (holding that a
plaintiff’s wrongful termination, defamation, and emotional distress claims must be
dismissed for failure to exhaust administrative remedies under the CMPA, where the
defamation claim was also based on alleged statements “made in the process of [the
employer’s] handling of disciplinary action” against the plaintiff, and the emotional
distress claim challenged the manner in which the employer pursued the plaintiff’s
termination), aff’d, 552 F.3d 806 (D.C. Cir. 2008).
Second, Amobi argues that he could not have pursued his malicious prosecution
of administrative removal claim under the CMPA as an unfair labor practice—another
21 type of challenge under the CMPA—given that the statute of limitations for bringing
such a claim had already expired by the time he discovered the “full nature of how
Defendant Brown maliciously continued the administrative proceeding against him[.]”
(Pl.’s Suppl. Mem. at 6.) But the fact that such a claim may have been time-barred does
not mean that the CMPA did not apply. To the contrary, under the CMPA, plaintiffs
must pursue their claims through the appropriate administrative channels—and permit
the administrative body to determine whether it can hear the claim—before filing the
claim in court. See White, 852 A.2d at 925; Hawkins v. Hall, 537 A.2d 571, 573 (D.C.
1988).
Third, and finally, although Amobi does not contend that he actually brought a
malicious prosecution of administrative removal claim in any administrative
proceeding, he nevertheless maintains that he should be deemed to have exhausted his
administrative remedies for that claim because he “receive[d] a favorable decision at
arbitration.” (Pl.’s Suppl. Mem. at 6; see also Pl.’s Opp’n at 6–7.) In this regard,
Amobi appears to suggest that once he completed the administrative process with
respect to the underlying claim—i.e., his challenge to the summary removal—there
were no further administrative remedies for him to exhaust. (See Pl.’s Suppl. Mem. at
5–6.) Yet, it is well established that when an employee files a grievance under the
CMPA and seeks relief under the statute’s established procedures, he has exhausted his
administrative remedies only with respect to that particular grievance. If he has an
additional and distinct problem that he wishes to raise, and another claim for relief
concerning that issue, he must file a separate grievance and pursue his administrative
remedies with respect to that claim as well. See, e.g., Lattisaw, 905 A.2d at 795
22 (explaining that a plaintiff’s exhaustion of administrative remedies under the CMPA for
one claim had “no bearing” on his duty to exhaust his administrative remedies for
another claim); see also Washington, 538 F. Supp. 2d at 278–80 (requiring plaintiffs to
exhaust their administrative remedies under the CMPA for separate claims that arose
from a single set of facts).
So it is here. Amobi’s challenge to DOC’s decision to remove him was a distinct
claim from his challenge to the manner in which Brown handled his removal—and,
apparently, Amobi acknowledges this, hence his subsequent efforts to litigate a claim
for malicious prosecution of administrative removal. Thus, Amobi’s exhaustion of
administrative remedies with respect to the former in no way relieved him of his
exhaustion obligations with respect to the latter. Moreover, and in any event, if
“substantial question[s] existed” as to whether the CMPA’s exhaustion requirement
applied to Amobi’s malicious prosecution of administrative removal claim, the proper
course was to present that claim to the “appropriate District agency” for resolution of
such questions in the first instance, not to bypass the CMPA’s procedures altogether
and file a legal action in court. White, 852 A.2d at 925 (internal quotation marks and
citation omitted).
For all these reasons, the Court finds that the CMPA’s exhaustion requirement
applied to Amobi’s malicious prosecution of administrative removal claim, and that
Amobi failed to comply with that requirement.
C. Amobi’s Failure To Exhaust His Administrative Remedies Warrants Dismissal In This Case
As explained earlier, on the one hand, a non-jurisdictional exhaustion
requirement can sometimes be excusable; however, on the other, the plaintiff’s failure
23 to comply with a non-jurisdictional exhaustion requirement might well “preclude[]
judicial review[.]” Hidalgo, 344 F.3d at 1258–59. One circumstance in which a
non-jurisdictional exhaustion requirement can result in the dismissal of a claim is if the
“particular administrative scheme” and “the purposes of exhaustion . . . support such a
bar.” Id. at 1259 (internal quotation marks and citation omitted). The D.C. Circuit has
long held that a court should dismiss the unexhausted claim under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted when the relevant statutory
provisions make clear that exhaustion of administrative remedies is a “condition
precedent to filing suit[,]” id. (internal quotation marks and citation omitted), and if the
court finds that allowing the plaintiff to bypass the administrative review process would
“frustrate the policies underlying the exhaustion requirement[,]” id. at 1260. In the
instant case, both the nature of the CMPA’s administrative scheme and the purposes of
exhaustion counsel in favor of dismissing Amobi’s claim.
For one thing, there is no question that exhaustion of administrative remedies
under the CMPA is a necessary precondition to filing suit. As noted, the CMPA is
consistently heralded as the “exclusive” remedy for work-related complaints among
public employees of the District of Columbia, Thompson, 593 A.2d at 635, and by its
terms, that statute provides courts with “only a reviewing role” and “as a last resort,”
Lattisaw, 905 A.2d at 793 (internal quotation marks and citation omitted); see also
Thompson, 593 A.2d at 634. Of course, there is nothing for a court to review in a case
in which the employee has failed to exhaust his administrative remedies, and because
the CMPA preempts common law tort claims that fall within its purview, a court cannot
assess the plaintiff’s claim as an independent tort action. See Thompson, 593 A.2d at
24 624. Thus, exhaustion of administrative remedies is an integral—and indispensable—
feature of the CMPA’s scheme.
What is more, it is clear to this Court that permitting Amobi to circumvent the
CMPA’s administrative framework would undermine the purposes of exhaustion.
Indeed, Amobi’s failure to comply with the CMPA’s administrative process plainly
frustrates the general goals of exhaustion by depriving the relevant District agencies
and administrative tribunals of the opportunity to exercise their “expertise and
discretion” to address the manner in which Amobi’s removal was handled. Johnson,
368 F. Supp. 2d at 38 (internal quotation marks and citation omitted); see also id.
(explaining that exhaustion is intended to “forestall the premature interruption of the
administrative process”; “preserv[e] the autonomy” of administrative bodies; and
promote “effective” judicial review by allowing courts to benefit from “the agency’s
exercise of discretion or application of expertise” (internal quotation marks and
citations omitted)). The failure to exhaust also vitiates fundamental principles of
“federalism and comity[,]” Washington, 538 F. Supp. 2d at 275, by “trampl[ing] on the
clearly expressed will” of the D.C. Council to require employees to seek relief for
work-related claims through the CMPA’s administrative scheme, Johnson, 368 F. Supp.
2d at 43 (strictly enforcing the CMPA’s exhaustion requirement to respect the D.C.
Council’s “express intention . . . regarding the proper application of its enactments”);
see also Council of D.C., Comm. Rep. on Bill No. 2-10 (D.C. 1978), as reprinted in H.
Comm. on D.C., 96th Cong., 1st Sess. 144 (Comm. Print 1979) (explaining that the
CMPA was meant to replace an “inefficient hodge-podge system” which “ha[d] made
essential the creation of a truly uniform system of merit personnel administration”);
25 D.C. Code § 1-601.02(a) (stating that the purposes of the CMPA include “[c]reat[ing]
uniform systems for personnel administration among” employees of the District of
Columbia, and “[e]stablish[ing] impartial and comprehensive administrative or
negotiated procedures for resolving employee grievances”).
Consequently, even if this Court might otherwise be persuaded to allow Amobi’s
claim to proceed based on broader prudential concerns—such as the fact that the Court
has already compiled a full record in this case, and a jury has already rendered a verdict
with respect to the claim at issue—such prudential considerations are outweighed by the
significance of the CMPA’s exhaustion requirement, and as other courts have observed
under such circumstances, exhaustion is much more than “a mere judge-made rule[.]”
Johnson, 368 F. Supp. 2d at 43. Indeed, if this Court were to ignore the CMPA’s
exhaustion requirement and excuse Amobi’s failure to comply under the circumstances
presented here, the uniformity and exclusivity of the entire remedial scheme would be
subverted, as Amobi would be able to pursue his common law tort claim in federal
court, while similarly-situated employees who try to pursue the exact same common law
tort claim in Superior Court would have their claims immediately dismissed for failure
to exhaust administrative remedies. And Amobi provides no reason why the law should
countenance that inequitable result.
Amobi’s final effort to thwart the dismissal of his claim is the argument that the
Court should not enforce the CMPA’s exhaustion requirement in this case because the
remedies available under the CMPA were inadequate to redress the harm caused by
Brown’s alleged misconduct. (See Pl.’s Suppl. Mem. at 6.) This contention fares no
better. Amobi insists that “[w]ithout the opportunity to bring this action” in federal
26 court, he “[c]ould not be made whole” for his alleged injuries, because the CMPA does
not authorize the specific relief that he sought in his complaint—namely, punitive and
non-economic damages. (Id. at 7.) But this Court is not aware of any legal principle
that allows plaintiffs to bypass an exclusive remedial framework simply because the
administrative scheme does not provide the precise form of relief that the plaintiff
seeks—and Amobi offers none. It is certainly true that “‘government employees only
lose common law rights of recovery if the statute provides redress for the wrongs they
assert’” (id. at 6–7 (quoting Robinson, 748 A.2d at 411)), but the CMPA offers
“substantial” remedies for work-related grievances, and those remedies “may, in some
respects, afford more complete relief than the damage remedies available at common
law[,]” Thompson, 593 A.2d at 635. Moreover, “[a]n exclusive remedy does not lose its
exclusivity upon a showing that an alternative remedy might be more generous[,]”
White, 852 A.2d at 927, and, in any event, it simply cannot be the case that a plaintiff
can prevent the exhaustion-related dismissal of a claim just by requesting types of relief
that the administrative scheme does not offer, see Hoey, 540 F. Supp. 2d at 228 n.5.
And that is especially true where, as here, the plaintiff has not provided the Court with
any reason to believe that the relief that his complaint requests is the only type of
remedy that could possibly redress his alleged injuries. (See Pl.’s Suppl. Mem. at 6–7.)
Thus, this Court finds that excusing the applicable CMPA exhaustion
requirement would undermine that requirement’s purposes in the manner explained
above, and it rejects Amobi’s efforts to evade the CMPA’s exhaustion requirement
under the circumstances presented here.
27 IV. CONCLUSION
Amobi’s malicious prosecution of administrative removal claim must be
dismissed under Rule 12(b)(6) for failure to exhaust the CMPA’s administrative
remedies, for the reasons explained above. Consequently, as set forth in the
accompanying Order, Brown’s renewed motion for judgment as a matter of law (ECF
No. 321) will be GRANTED insofar as it seeks dismissal of Amobi’s claim under Rule
12(b)(6), and the portion of the judgment (ECF No. 304) that pertains to Amobi’s
malicious prosecution of administrative removal claim will be VACATED.
DATE: August 23, 2021 Ketanji Brown Jackson KETANJI BROWN JACKSON United States Circuit Judge Sitting by Designation