UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRUNO K. MPOY, ) ) Plaintiff, ) ) v. ) Civil Action No. 23-cv-03027 (BAH) ) JOHN BURST, et al., ) ) Defendants. ) )
MEMORANDUM OPINION
Plaintiff Bruno K. Mpoy, proceeding pro se and in forma pauperis, sued defendants John
Burst and Donielle Powe, both D.C. Public Schools (“DCPS”) officials, and the Mayor of the
District of Columbia, Muriel Bowser, seeking damages and a declaratory judgment. See Compl.
¶¶ 28–32; ad damnum clause, ECF No. 1. Pending before the Court are four motions: (1)
defendants’ motion to dismiss this case, pursuant to Federal Rule of Civil Procedure 12(b)(6),
Defs.’ Mot. to Dismiss (“Defs.’ MTD”), at 1, 3, ECF No. 4; (2) plaintiff’s motion for leave to
amend his complaint, Pl.’s Mot. to Amend (“Pl.’s MTA”), ECF No. 10, attaching the proposed
amended complaint, First Amended Compl. (“Am. Compl.”), ECF No. 10-1; and (3) plaintiff’s
motion to appoint counsel, Pl.’s Mot. to App’t Counsel (“Pl’s MTAC”), ECF No. 20, with an
accompanying sealed motion for leave to file a medical record under seal, Pl.’s Sealed Mot. for
Leave to File Under Seal (“Pl.’s MTS [SEALED]”), ECF No. 21.
For the reasons discussed below, defendants’ motion to dismiss is granted, plaintiff’s
motion for leave to amend is denied, plaintiff’s motion to appoint counsel is denied as moot, and
plaintiff’s sealed motion to file under seal is granted.
1 I. BACKGROUND
Plaintiff, a former special education teacher with DCPS, alleges that during the 2020-21
academic year, he was asked, but refused, “to participate in conduct that harmed special
education children,” Compl. ¶¶ 10–11, namely, the “falsification of special education students’
academic achievement and performance [reports], denial of Individualized Education Program
(IEP) mandated accommodations, and the failure to provide IEP [Individualized Education
Program] required hours of specialized instruction and modified lessons[,]” id. ¶ 11. He
contends that “various staff and faculty members under the supervision of John Burst directed”
him to commit these acts, id. ¶ 9, in violation of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400 et seq., see id. ¶¶ 1–4, 11–12, 35. According to plaintiff, he sent
Burst, his direct supervisor, several emails highlighting “a great number of violations of IDEA he
witnessed by various staff and faculty members,” see id. ¶¶ 13, 28, and Burst then forwarded
these “protected disclosures” to the staff at the central office of DCPS, where Donielle Powe
serves as the “deputy chief for the labor and management division of the DCPS Office of Human
Resources[,]” see id. ¶¶ 15, 30.
On August 26, 2021, plaintiff, through the Washington Teachers Union, filed a formal
grievance with DCPS Office of Human Resources (“OHR”). See id. ¶¶ 30, 84. The next day,
plaintiff received an indefinite suspension without pay, see id. ¶¶ 7–8, 142, “initiated by Burst
and processed by Powe[,]” id. ¶ 31, “without any procedural due process[,]” thus allegedly
depriving him of his right to property, see id. ¶¶ 7–8, 16, 22, 41, 77, 83, 93, 98, 136, 173. More
specifically, plaintiff asserts that neither Burst nor Powe provided him with prior notice of, or the
basis for, his suspension, see id. ¶¶ 52, 56, 95, nor did they permit him to be “heard on the
merits[,]” see Pl.’s Opp’n at 8. He contends that these pre-suspension omissions contravened his 2 constitutional rights and the requirements of the District of Columbia Comprehensive Merit
Protection Act (“CMPA”), D.C. Code 1–601.01 et seq., and the D.C. Municipal Regulations,
subtitle 6-B, §§ 1612.3, 1612.4, 1612.6, 1618.2, 1620.2, 1621.1, among others. See Compl. ¶¶
16–22, 34–36, 38–52, 57–60, 69; Compl. App’x A; Pl.’s Opp’n at 3–8. Plaintiff also alleges that
Mayor Bowser, as “the head of DCPS,” is ultimately responsible for the alleged unlawful “final
decision” to suspend him indefinitely without notice or an opportunity to be heard. See Compl.
¶¶ 29–32, 55.
Plaintiff asserts the following six claims: deprivation of his procedural due process rights
under 42 U.S.C. § 1983, as guaranteed by the Fifth Amendment and the CMPA, see id. ¶¶ 20,
36, 66, 79, 94, 139, 161–65 (Claim 1); violations of the D.C. Whistleblower Protection Act
(“DCWPA”), D.C. Code § 1–615.51 et seq., see Compl. ¶¶ 70–73, 166–77 (Claims 2 and 3);
violations of the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2–1401.01 et seq., see
Compl. ¶¶ 66–68, 176–181 (Claim 4); and common law defamation and “intentional and willful
negligence[,]” see id. ¶¶ 182–95 (Claims 5 and 6).
Notably, plaintiff, proceeding pro se, had already filed a nearly identical case in this Court,
see Mpoy v. Dist. of Columbia, et al., No. 22-cv-02501 (BAH) (filed Aug. 22, 2022) (“Mpoy I”),
against the same defendants, save for swapping the District of Columbia with its Mayor, compare
generally Mpoy I, at Complaint, ECF No. 1, with Compl. Mpoy I was dismissed without prejudice
for failure to state a claim. See Mpoy v. Dist. of Columbia, 2023 WL 5846679, at *1–4 (D.D.C.
Sept. 11, 2023) (granting defendants’ motion to dismiss pursuant to Rule 12(b)(6)). Plaintiff’s
federal claims were dismissed largely due to his failure to exhaust administrative remedies,
including those available under the CMPA, see id. at *3–4, and the Court then declined to exercise
supplemental jurisdiction over his remaining state law claims, see id. at *4. Just two months later, 3 plaintiff, again, proceeding pro se, filed the instant case as a new matter, without noting any related
case in Section VIII on the civil cover sheet completed by plaintiff. See Civil Cover Sheet, ECF
No. 1-1.
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, “the complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v.
Moss, 572 U.S. 744, 757–58 (2014) (citation omitted). A claim is facially plausible when the
plaintiff pleads factual content that is more than “ ‘merely consistent with’ a defendant’s
liability” and “allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)); see also Banneker Ventures, LLC v. Graham, 798 F.3d
1119, 1129 (D.C. Cir. 2015) (“Plausibility requires more than a sheer possibility that a defendant
has acted unlawfully.”) (citation omitted).
In deciding a motion under Rule 12(b)(6), the plaintiff bears the burden of showing that
the complaint “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face,” Zukerman v. U.S. Postal Serv., 961 F.3d 431, 441 (D.C. Cir. 2020)
(quoting Iqbal, 556 U.S. at 678), and a court is required to construe all reasonable inferences in
the plaintiff’s favor, Twombly, 550 U.S. at 555. A court, however, does not “accept inferences
drawn by a plaintiff if such inferences are unsupported by the facts set out in the complaint.”
Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016) (per curiam) (alterations in original
accepted and citation omitted), cert. denied, 581 U.S. 994 (2017); see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.”). In determining whether a complaint fails to state a claim, a court may 4 consider only the facts alleged in the complaint and “any documents either attached to or
incorporated in the complaint and matters of which the court may take judicial notice.” N. Am.
Butterfly Ass'n v. Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020) (alterations in original accepted
and citation omitted).
III. DISCUSSION
Defendants argue that plaintiff’s due process claims (Claim 1) are barred by res judicata,
requiring dismissal for failure to state a claim, see Defs.’ MTD at 5–6, including plaintiff’s
official capacity claims, which are equivalent to plaintiff’s prior suit against the District and
likewise barred, see id. at 4. In addition, defendants argue that no supplemental jurisdiction over
plaintiff’s state law claims should be asserted here, as this Court previously decided in Mpoy I.
See id. at 6–7. 1 For the reasons explained below, plaintiff’s due process claims are, again,
dismissed for failure to exhaust administrative remedies under the CMPA and the Court, again,
declines to exercise supplemental jurisdiction over his remaining state law claims.
A. Plaintiff’s Federal Due Process Claims are Precluded by the CMPA
Defendants argue that res judicata bars plaintiff’s due process claims, based on the
Court’s decision in Mpoy I. See id. at 5–6. Yet, the complaint in Mpoy I was dismissed without
prejudice pursuant to Rule 12(b)(6), Mpoy, 2023 WL 5846679, at *4, due to the insufficiency of
plaintiff’s pleading and no judgment on the merits was issued. See id.; see also Ciralsky v.
C.I.A., 355 F.3d 661 (D.C. Cir. 2004) (“[C]ourts often regard the dismissal without prejudice of a
complaint [pursuant to Rule 12(b)(6)] as not final, and thus not appealable under 28 U.S.C. §
1 Defendants’ alternative arguments predicated on local statutes of limitations, see Defs.’ MTD at 7, and failure to state a claim under District law, see id. at 8, need not be addressed given that dismissal is based on other grounds. 5 1291[.]”) (emphasis in original) (citations and internal citation marks omitted); Osborn v. Visa
Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015) (“The principle guiding a dismissal without prejudice
is that absent futility or special circumstances (such as undue delay, bad faith, or dilatory
motive), a plaintiff should have the opportunity to replead so that claims will be decided on
merits rather than technicalities.”). Consequently, res judicata is inapplicable. See Perez v. Kipp
DC Supporting Corp., 70 F.4th 570, 572 (D.C. Cir. 2023) (“To sum up, a “ ‘[d]ismissal . . .
without prejudice’ is a dismissal that does not ‘operate as an adjudication upon the merits’ . . .
and thus does not have a res judicata effect.”) (quoting Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 396 (1990) (citation omitted) (quoting Fed. R. Civ. P. 41(a)(1))); Smalls v. United
States, 471 F.3d 186, 192 (D.C. Cir. 2006) (finding that claim preclusion applies only if there is,
inter alia, a final, valid judgment on the merits); see also Allen v. McCurry, 449 U.S. 90, 95
(1980) (holding that issue preclusion is also inapplicable unless the plaintiff had “a ‘full and fair
opportunity’ to litigate [the] issue in the earlier case.”) (quoting Montana v. United States, 440
U.S. 147, 153 (1979)). Nevertheless, while plaintiff’s due process claims are not yet forever
precluded, they must be dismissed because plaintiff has still failed to exhaust his remedies under
the CMPA, thus failing to correct the defects identified in Mpoy I. 2
As previously explained, in Mpoy I, although “due process requires the government to
provide adequate notice and a meaningful opportunity to be heard[,]” Mpoy, 2023 WL 5846679,
at *3 (citing Matthews v. Eldridge, 424 U.S. 319, 348–49 (1976)), the Supreme Court has
2 Plaintiff is forewarned that future repeated filings of this lawsuit may result in dismissal with prejudice. See Caldwell v. Kagan, 865 F. Supp. 2d 35, 44–45 (D.D.C. 2012) (holding that, where a plaintiff elects “to simply recycle his previous claims” into a slightly altered version of his previous complaint, the claims become frivolous and may be dismissed with prejudice), aff’d, No. 12–5298, 2013 WL 1733710 (D.C. Cir. Mar. 22, 2013) (per curiam). 6 advised that “due process ‘is flexible and calls for such procedural protections as the particular
situation demands[,]’ ” id. (quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)). The Supreme
Court’s holding in Gilbert makes clear that “that the right to a “a pre-suspension hearing is not
absolute,” and a prompt post-suspension hearing generally satisfies constitutional due process.
Id. (quoting Gilbert, 520 U.S. at 932). Plaintiff failed to allege sufficiently any due process
violation because his grievance remained pending with OHR and he would “be heard on his
suspension under the [CMPA] which ‘statutorily covers the majority of conflicts arising out of
employment relationships with the District[.]’ ” Id. (quoting Owens v. Dist. of Columbia, 923 F.
Supp. 2d 241, 248 (D.D.C. 2013), aff’d, 606 Fed. Appx. 585 (D.C. Cir. 2015) (per curiam);
citing D.C. Code §§ 1–616.51; 1–616.52; 1–616.53; 1–623.01 et seq.). In other words, plaintiff
could not circumvent the CMPA by raising related federal claims in this Court. See id. (quoting
McManus v. Dist. of Columbia, 530 F. Supp. 2d 46, 79 (D.D.C. 2007) (“Plaintiffs cannot dress
their CMPA claims up in federal garb to secure federal court jurisdiction.”)).
Indeed, as discussed, see id., the CMPA is “intended to provide District employees with
their exclusive remedies for claims arising out of employer conduct in handling personnel
ratings, employee grievances, and adverse actions[,]” Johnson v. Dist. of Columbia, 552 F.3d
806, 810 (D.C. Cir. 2008) (emphasis in original) (citations and internal quotation marks omitted),
including “[a]llegations that District officials failed to comply with the procedural requirements
for adverse actions against employees, such as the requirement of timely notice[,]” Washington
v. Dist. of Columbia, 538 F. Supp. 2d 269, 278 (D.D.C. 2008) (dismissing, pursuant to Rule
12(b)(6), the plaintiffs’ constitutional due process claims against their superiors for allegedly
failing to provide sufficient and timely written notice before the plaintiffs were summarily
terminated). 7 That rationale still applies here. Plaintiff’s grievance remains pending. See Compl. ¶ 68;
Pl.’s Opp’n at 11; Pl.’s Mot. for Ord. to Show Cause, at 8–9, ECF No. 8. 3 His due process claims
are, consequently, statutorily preempted by the CMPA and shall be dismissed. See Mpoy, 2023
WL 5846679, at *3; see also Payne v. Dist. of Columbia, 592 F. Supp. 2d 29, 35 (D.D.C. 2008)
(finding that “courts in this district have repeatedly dismissed claims that have not been . . .
pursued under the CMPA[.]”).
Merely targeting a slightly different combination of defendants, as plaintiff attempts in
the instant suit, does not alter the conclusions reached in Mpoy I. See Owens, 923 F. Supp. 2d at
248 (“Simply presenting a constitutional claim is insufficient to exempt plaintiffs from
complying with the CMPA procedure.”); McManus, 530 F. Supp. 2d at 79 (“Plaintiffs . . . cannot
use a constitutional hook to reel their CMPA-precluded claims into this Court.”). Where, as
here, an alleged constitutional violation is intertwined with an alleged statutory violation, the
local legislature’s preferred scheme for resolution is entitled to deference. See Nat'l Treasury
Employees Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992) (“when the statutory and
constitutional claims are premised on the same facts and the administrative process [is] fully
capable of granting full relief, exhaustion is required.”) (internal quotations and citations
3 Even if plaintiff’s grievance was resolved by OHR, he would still be foreclosed from relief in this Court. Under the CMPA, aggrieved employees may appeal a final adverse agency decision to the Office of Employee Appeals––or, where applicable under a union contract, to either the Public Employee Relations Board or by and through any exclusive procedures set forth in a collective bargaining agreement. See Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 311 F. Supp. 3d 242, 249 (D.D.C. 2018) (quoting D.C. v. Thompson, 593 A.2d 621, 633 (D.C. 1991), cert. denied sub. nom. Thompson v. Dist. of Columbia, 502 U.S. 942 (1991)); see also D.C. Code §§ 1–605.02(6); 1–616.52. Thereafter, an employee may seek judicial review, first with the D.C. Superior Court, and then with the D.C. Court of Appeals––not in federal court. See Sharma v. Dist. of Columbia, 791 F. Supp. 2d 207, 215 (D.D.C. 2011); McManus, 530 F. Supp. 2d at 77–78 (same); see also D.C. Code §§ 1–606.03(d), 17–303. 8 omitted); see also Lawrence v. District of Columbia, Civil Action No. 18-00595 (ABJ), 2019
U.S. Dist. LEXIS 37501, at *14 (D.D.C. Mar. 8, 2019) (dismissing due process claim as
preempted by the CMPA, explaining that “plaintiff cannot allege a constitutional violation to
establish jurisdiction”); Owens, 923 F. Supp. 2d at 248 (“constitutional claims, despite their
federal nature, fall within the CMPA jurisdiction when they are essentially state law claims that
the plaintiffs construed in a constitutional light so as to seek federal court jurisdiction.”); Hoey v.
Dist. of Columbia, 540 F. Supp. 2d 218, 227–29 (D.D.C. 2008) (dismissing § 1983 claim,
pursuant to Rule 12(b)(6), because the CMPA provided remedy for the plaintiff’s claim that he
was deprived of his constitutionally-protected property interest in his employment without due
process); McManus, 530 F. Supp. 2d at 79 (finding that plaintiff cannot use a constitutional hook
to “reel [his] CMPA-precluded claims into this Court”).
Plaintiff suggests that substituting the District with its Mayor in her official capacity
somehow rescues his federal claims, but he fails to provide a single persuasive reason why this
distinction without difference matters. See Compl. at caption; id. ¶¶ 32, 65–74; Pl.’s Opp’n at 8–
9. As noted by defendants, see Defs.’ MTD at 4, “a suit for damages against municipal officials
in their official capacities is thus equivalent to a suit against the municipality itself[,]” Atchison
v. Dist. of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996). In response, plaintiff argues that he
sued “‘Muriel Bowser for the District of Columbia’ instead of the naked District of Columbia . . .
to avoid any frivolous argument that the District of Columbia is sued pursuant to 42 U.S. Code §
1983.” See Pl.’s Opp’n at 9. He clarifies that he does not allege “that Muriel Bowser acted or
failed to act . . . [because] Muriel Bowser is not a defendant and [ ] no allegation of any kind is
made against her in her official or personal capacity.” Id. Thus, even if plaintiff could
overcome the hurdles of the CMPA, he has admitted that he does not allege any wrongful act or 9 omission by the Mayor, undercutting his argument that adding the Mayor as a defendant should
result in a different outcome than Mpoy I.
Plaintiff’s citation to D.C. Code § 2–1403.03, see Compl. ¶¶ 32, 67–68, 183, is also
unpersuasive. The cited section provides that “a person claiming to be aggrieved by an unlawful
discriminatory practice on the part of District government agencies, officials, or employees may
elect to file an administrative complaint under the rules of procedure established by the Mayor
under this section or a civil action in a court of competent jurisdiction under § 2-1403.16[,]” D.C.
Code § 2–1403.03(b). Plaintiff does not explain his reliance on § 2-1403.03, and this statute is
of no help to him. Nothing in that statute allows him to sidestep the CMPA’s requirements
precluding his due process claims.
Without a viable due process claim, the Court again declines to exercise supplemental
jurisdiction over any of plaintiff’s other assorted common law tort and local statutory claims, for
the reasons previously expressed. See Mpoy, 2023 WL 5846679, at *4 (declining to exercise
supplemental jurisdiction over plaintiff’s state and common-law claims because (1) they had yet
to be considered in this District, (2) “parsing claims under the CMPA and tort claim procedures
is a task with which the local courts are more familiar[,]” (3) the convenience of the forums was
equal, and (4) “principles of comity and fairness point in favor of allowing the non-federal
claims to be pursued, if the plaintiff chooses, in the local court system on a factually developed
record.”) (citing Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 (D.C. Cir. 2005), cert. denied, 546
U.S. 1173)). 4
4 Notably, many of plaintiff’s common law tort claims are also redressable, and therefore precluded, under the CMPA and thus exercising supplemental jurisdiction over these unexhausted claims would likewise be precluded. See, e.g., Evans v. Dist. of Columbia, 391 F. Supp. 2d 160, 170 n.5 (D.D.C. 2005) (citing cases and noting that “work-related complaints 10 Therefore, defendants’ motion to dismiss is granted and the complaint is again dismissed
without prejudice.
B. Plaintiff’s Motion for Leave to Amend Complaint
Plaintiff sought to amend the complaint 34 days after defendants filed the pending motion
to dismiss, see generally Pl.’s MTA, and thus leave is required for this proposed amendment, see
Fed. R. Civ. P. (a)(1)(B), (a)(2). Federal Rule 15 instructs courts to “freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see Belizan v. Hershon, 434 F.3d
579, 582 (D.C. Cir. 2006) (explaining that Rule 15 “is to be construed liberally”). Such leave to
amend, however, should not be granted when, as here, amendment would be futile. See
Richardson v. U.S., 193 F.3d 545, 548–49 (D.C. Cir. 1999) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
Plaintiff’s proposed amended complaint contains three primary alterations to the original
complaint. See Pl.’s MTA at 1–2. First, plaintiff seeks to clarify his basis for naming the Mayor
as a defendant. See id.; Am. Compl. ¶ 31. In addition to his existing arguments, see Pl.’s Opp’n
at 9, he emphasizes that he has hypothetically stated a claim against the Mayor because, under
D.C. Code § 38–171(a), she is vested with authority over DCPS and its “personnel,” see Pl.’s
generally are held to include common-law tort claims against the employee’s supervisors” under the CMPA and that “the only exception is for torts based on a claim of sexual harassment, which initially may be filed in the Superior Court”); Lucas v. Dist. of Columbia, 133 F. Supp. 3d 176, 184 (D.D.C. 2015) (finding that work-related negligence claims “generally fall within the gamut of the CMPA”); Cohen, 311 F. Supp. 3d at 249 (finding that “negligence, and intentional infliction of emotional distress are preempted” by the CMPA); Hoey, 540 F. Supp. 2d at 229 (finding that CMPA precludes litigation of emotional distress and defamation claims) (collecting cases); Lewis v. Gov’t of the Dist. of Columbia, 161 F. Supp. 3d 15, 35–36 (D.D.C. 2015) (same); Johnson v. Dist. of Columbia, 368 F. Supp. 2d 30, 46–48 (D.D.C. 2005) (same), aff’d, 552 F.3d 806 (D.C. Cir. 2008); Holman v. Williams, 436 F. Supp. 2d 68, 74 (D.D.C. 2006) (finding that “the plaintiff’s claims of false light, defamation, and intentional infliction of emotional distress [were] preempted” by the CMPA). 11 MTA at 1–2; Am. Compl. ¶ 31. The D.C. Code provision cited does not hold the Mayor
responsible for all personnel determinations, see under D.C. Code § 38–171(a), and, in any
event, the reasoning cannot be squared with plaintiff’s disclaimers of any intent to sue the Mayor
in any capacity, despite having named her. See Am. Compl. at caption.
Plaintiff also cites D.C. Code § 2–401, requiring the Mayor to be served with process in
lawsuits filed against the District, see id. ¶ 31; Pl.’s MTA at 1. This service requirement simply
does not require plaintiff to name the Mayor as a defendant to this lawsuit, however. Moreover,
plaintiff disclaims his interest in suing the District. See Am. Compl. ¶ 31. At any rate, these
arguments are circular and fail to resolve any of the defects giving rise to dismissal.
Second, plaintiff seeks to add a “substantive due process” claim. See Am. Compl. ¶¶ 6–
7, 15, 17–21, 33–35, 37–39, 65, 67, 74–78, 82–89, 91–92, 94–95, 96, 98, 155, 160–62, 171, 182.
No new factual allegations are presented to support this new claim, which instead consists of
adding the phrase “substantive due process” to his existing procedural due process allegations.
See id. A complaint’s “allegations must be enough to raise a right to relief above the speculative
level,” Twombly, 550 U.S. at 555 (citations omitted), and the Court cannot accept “‘legal
conclusions cast in the form of factual allegations’ because a complaint needs some information
about the circumstances giving rise to the claims[,]”Aktieselskabet AF 21. Nov.2001 v. Fame
Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (quoting Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994)). Here, the allegations supporting the intended substantive due
process claims are less than boilerplate.
Even if plaintiff’s proposed substantive due process claims were cognizable, and to the
extent that the CMPA fails to address them, they would still fail to survive. To state a due
process claim, a plaintiff must invoke a fundamental right “objectively, deeply rooted in this 12 Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.” Abigail All. for Better Access to Develp.
Drugs v. von Eschenbach, 495 F.3d 695, 702 (D.C. Cir. 2007) (citing Washington v. Glucksberg,
521 U.S. 702, 720 (1997)), cert. denied sub. nom. Abigail Alliance for Better Access to
Developmental Drugs v. Eschenbach, 552 U.S. 1159 (2008). Significant here, “[c]ourts have
consistently held that ‘there is no fundamental right to government employment[.]’ ” McManus,
530 F. Supp. 2d at 71 (quoting United Bldg. & Constr. Trades Council v. Mayor & Council of
City of Camden, 465 U.S. 208, 219 (1984); citing Am. Federation of Gov’t Employees, AFL–CIO
v. United States, 330 F.3d 513, 523 (D.C. Cir. 2003), cert. denied, 540 U.S. 1088 (2003)). As a
result, plaintiff’s indefinite suspension cannot form the basis of a substantive due process claim.
See id.; Kelley v. Dist. of Columbia, 893 F. Supp. 2d 115, 122–23 (D.D.C. 2012) (same); Sanders
v. Dist. of Columbia, 522 F. Supp. 2d 83, 91–92 (D.D.C. 2007) (same).
Additionally, the D.C. Circuit has further explained that “the concept of substantive due
process, itself oxymoronic, [applies] to actions that in their totality are genuinely drastic . . .
[U]nless the victim of government imposition has pushed its local remedies to the hilt, it
ordinarily will not be able to show the necessary substantiality.” Tri Cnty. Indus., Inc. v. Dist. of
Columbia, 104 F.3d 455, 459 (D.C. Cir. 1997) (internal citation omitted). As already discussed,
plaintiff has not exhausted his local remedies.
Third, plaintiff proposes removing “intentional and willful” from his negligence claim.
See Pl.’s MTA at 2; Am. Compl. at 40–41. This proposed amendment does not alter the basis for
dismissing plaintiff’s federal claims, and because the Court declines to exercise supplemental
jurisdiction over his state law claims, this proposed amendment is irrelevant.
13 For all of these reasons, plaintiff’s proposed amendments are futile; therefore, plaintiff’s
motion for leave to amend the complaint is denied. See Richardson, 193 F.3d at 548–49.
C. Plaintiff’s Motion to Appoint Counsel & Sealed Motion for Leave to File Record Under Seal Given the dismissal of this case, plaintiff’s motion to appoint counsel is denied as moot.
In support of that motion, plaintiff also filed a sealed motion to file under seal, see Pl.’s MTS
[SEALED] at 1, an attached record, ECF No. 21-2 [SEALED], containing a medical diagnosis
and referral, see id. Defendants oppose the sealed motion to file under seal because plaintiff
failed to comply with D.C. Local Rule 7(m), and failed to serve them with a copy of the medical
record at issue, also currently restricted to defendants’ review on the docket. See Defs.’
Opposition to Pl.’s MTS [SEALED], ECF No. 23, at 1. 5 Despite plaintiff’s procedural failures,
and the denial of his related motion to appoint counsel, the medical record will nonetheless be
sealed.
In assessing plaintiff’s sealed motion to file under seal, the Court considers six primary
factors, identified by the D.C. Circuit in United States v. Hubbard, 650 F.2d 293, 317–22 (D.C.
Cir. 1980), including: “(1) the need for public access to the documents at issue; (2) the extent of
previous public access to the documents; (3) the fact that someone has objected to disclosure,
5 Indeed, plaintiff failed to comply with D.C. LCvR 7(m) before filing any of the pending non-dispositive motions. See generally Pl.’s MTA; Pl’s MTAC; Pl.’s MTS [SEALED]. Despite warning, plaintiff has now repeatedly failed to comply with D.C. LCvR 7(m), see Minute Order (dated 2/20/2024), and other Court rules and orders, see id.; see also Order, at 3–4, 7–8, ECF No. 9. Although a pro se plaintiff is afforded some latitude in prosecuting his case, “such leeway does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of Civil Procedure,” a court’s local rules, or a court’s orders. See Moore v. Robbins, 24 F. Supp. 3d 88, 97 (D.D.C. 2014) (internal quotation marks omitted) (citing Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987)). Additional failures to comply with local rules may result in sanctions, should plaintiff proceed in this Court in the future. See id. 14 and the identity of that person; (4) the strength of any property and privacy interests asserted; (5)
the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the
documents were introduced during the judicial proceedings.” EEOC v. Nat'l Children's Ctr., Inc.,
98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650 F.2d at 317–22).
Relevant here, “individuals generally have a strong interest in keeping their medical
treatments and diagnoses private[,]” Abdelhady v. GW Univ., 89 F.4th 955, 957 (D.C. Cir. 2024)
(collecting cases), constituting a “value of ‘high order[,]’ ” see id. (quoting Mohawk Indus., Inc.
v. Carpenter, 558 U.S. 100, 107 (2009)). Here, the public has little to no interest in plaintiff’s
private medical record, submitted for the limited purpose of supporting his request for
appointment of counsel, not in an operative pleading or dispositive motion. See Hardaway v.
Dist. of Columbia Hous. Auth., 843 F.3d 973, 980–81 (D.C. Cir. 2016) (reversing the district
court’s denial of a motion to seal the plaintiff’s medical records because the public had no need
interest in the non-dispositive documents describing his medical diagnoses).
Plaintiff has articulated no reason why his sealed motion to file under seal and his
medical record must be maintained ex parte. See United States ex rel. Kammarayil v. Sterling
Ops., Inc., No. 15-1699, 2018 WL 6839747, at *5–7 (D.D.C. Dec. 31, 2018) (applying the
Hubbard framework to evaluate whether documents should be sealed from other parties to the
litigation). Without a compelling reason, restricting defendants’ access to these submissions
would contravene the effective functioning of the adversarial system. See Lykins v. U.S. Dep’t of
Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984). Therefore, although the sealed motion to file
under seal and the accompanying record will remain sealed from the public, defendants will be
afforded access to those documents.
15 IV. CONCLUSION
For all the reasons discussed above, it is defendants’ motion to dismiss is GRANTED and
the complaint is DISMISSED without prejudice. Plaintiff’s motion for leave to amend is
DENIED, plaintiff’s sealed motion for leave to file under seal is GRANTED, and plaintiff’s
motion to appoint counsel is DENIED as moot. A separate order accompanies this memorandum
opinion.
/s/_______________________ BERYL A. HOWELL Date: July 16, 2024 United States District Judge