UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) GERALD WALPIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1343 (RWR) ) CORPORATION FOR NATIONAL, ) AND COMMUNITY SERVICE et al., ) ) Defendants. ) _____________________________ )
MEMORANDUM OPINION
Plaintiff Gerald Walpin brought this action against the
Corporation for National and Community Service (“CNCS”) and three
of its officers, seeking an order directing the defendants to
restore Walpin to his previous position as the Inspector General
of the CNCS, and a declaratory judgment that the procedure used
to remove Walpin from office violated the Inspector General
Reform Act (“IGRA”), 5 U.S.C. app. 3, §§ 1-13. The defendants
have moved under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) to dismiss Walpin’s amended complaint, arguing that the
court lacks subject matter jurisdiction to hear Walpin’s claim,
and that Walpin fails to state a claim for which relief can be
granted. Walpin has cross-moved for summary judgment, arguing
that there are no material facts in dispute, and that he is
entitled as a matter of law to a writ of mandamus reinstating him
to his position as Inspector General. Because Walpin fails to -2-
state a claim for which relief can be granted, his amended
complaint will be dismissed.
BACKGROUND
In 2007, Walpin was appointed as the Inspector General of
CNCS, a position he would hold until 2009. (Am. Compl. ¶¶ 2-3.)
The CNCS Office of Inspector General (“OIG”) conducts and
supervises audits and investigations of CNCS’s programs and
operations, and uses the results to recommend policies. (Am.
Compl. ¶ 7.) In May 2009, Walpin made a presentation to the CNCS
board of directors informing them that after the departure of the
previous CNCS chief executive officer, there had been a change in
the culture, enforcement of rules, and attitude at CNCS toward
the OIG, and that the General Counsel of CNCS had become
adversarial to the OIG. (Id. ¶ 26.)
According to the amended complaint, on June 10, 2009, Walpin
received a telephone call from Norman Eisen, President Obama’s
special counsel, who informed Walpin that if he did not tender
his resignation in one hour, he would be fired. Walpin asked for
more time to consider the request, but Eisen responded that
Walpin would be removed as Inspector General anyway. (Am. Compl.
¶ 29.) On the same night, Walpin alleges, CNCS terminated his
access to his staff, his office, and his OIG electronic mail
account, and placed him on administrative leave with pay. (Id.
¶¶ 5, 7, 33, 41.) On June 11, 2009, President Obama sent a -3-
letter to both Houses of Congress, addressed to Vice President
Biden and to Speaker Pelosi, informing them that he was
“exercising [his] power as President to remove [Mr. Walpin] from
office . . . effective 30 days from today” because he “no longer”
had “the fullest confidence in” Mr. Walpin. (Am. Compl. ¶ 30;
Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) Exs. A,
B.)
Senator Chuck Grassley wrote a letter to the President that
same day stating that he was “deeply troubled” about the
“ultimatum” given to Walpin, and urging the President to review
the IGRA before removing any Inspector General. Gregory Craig,
the Counsel to the President, wrote a letter responding to
Senator Grassley’s concerns informing him that Walpin had been
suspended with pay, that Congress was notified earlier that day
of the intent to remove Walpin from his post, and that the
rationale for Walpin’s suspension and imminent removal was that
“the President does not have full confidence in [Walpin.]” (Am.
Compl. ¶¶ 32-33; Defs.’ Mem. Ex. D.) In the following days,
Senator Claire McCaskill called for the White House to provide a
more substantive rationale for its action, and Senators Joseph
Lieberman and Susan Collins inquired about the propriety of
removing Walpin. (Am. Compl. ¶¶ 34, 35.) Eisen responded by
letter stating that the CNCS’ Board of Directors requested a
review of Walpin following a meeting where Walpin was “confused, -4-
disoriented, unable to answer questions and exhibited other
behavior that led the Board to question his capacity to serve” as
Inspector General. (Am. Compl. ¶¶ 35, 36; Defs.’ Mem. at 15, Ex.
E.) Senators Orrin Hatch and Michael Enzi called for a Senate
hearing about the removal. (Am. Compl. ¶ 39.)
Walpin filed his amended complaint in July 2009, seeking a
writ of mandamus ordering the defendants to reinstate Walpin as
the Inspector General of the CNCS, and a declaratory judgment
stating that the procedure used to terminate his employment as
the Inspector General violated the notice requirements of the
IGRA. (Am. Compl. ¶¶ 42-49.) Walpin alleges that he was removed
on June 10, 2009, and that the President had violated IGRA’s
requirement that both Houses of Congress be notified of the
reasons for the removal no later than 30 days before the removal.
(Id. ¶¶ 4, 36, 41.) The defendants have moved under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss
Walpin’s amended complaint for lack of subject matter
jurisdiction and failure to state a claim, on the grounds that
the amended complaint fails to meet the standard necessary for
mandamus, and that the President complied with the notice
requirement set forth in the IGRA. (Defs.’ Mem. at 1-4.) Walpin
opposes and cross-moves for summary judgment. -5-
DISCUSSION
Walpin seeks, in part, mandamus.
In resolving a motion to dismiss an action for relief in the nature of mandamus, courts have characterized the issue as involving both a jurisdictional and a merits inquiry because, in determining whether the court has jurisdiction to compel an agency or official to act, the court must consider the merits question of whether a legal duty is owed to the plaintiff under the relevant statute.
Auburn Regional Medical Center v. Sebelius, 686 F. Supp. 2d 55,
62 (D.D.C. 2010) (treating a defendant’s motion to dismiss a
mandamus action for lack of jurisdiction as one for failure to
state a claim) (citing In re Cheney, 406 F.3d 723, 729 (D.C. Cir.
2005) (noting that “mandamus jurisdiction . . . merges with the
merits”)). Therefore, the defendants’ motion will be treated as
one to dismiss for failure to state a claim.
A party may move under Federal Rule of Civil Procedure
12(b)(6) to dismiss a complaint for failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss, a complaint must contain sufficient
factual matter, acceptable as true, to ‘state a claim to relief
that is plausible on its face.’ . . . [A plaintiff must plead]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “[A] court ‘must treat the complaint’s factual -6-
allegations as true . . . and must grant plaintiff the benefit of
all inferences that can be derived from the facts alleged.’”
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165
(D.C. Cir. 2003) (quoting Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000)). However, a court need not
accept legal conclusions cast as factual assertions. Peavey v.
Holder, 657 F. Supp. 2d 180, 185 (D.D.C. 2009) (citing Iqbal, 129
S. Ct. at 1950).
“In deciding a motion brought under Rule 12(b)(6), a court
does not consider matters outside the pleadings, but a court may
consider on a motion to dismiss ‘the facts alleged in the
complaint, documents attached as exhibits or incorporated by
reference in the complaint,’ Gustave-Schmidt v. Chao, 226 F.
Supp. 2d 191, 196 (D.D.C. 2002), or ‘documents upon which the
plaintiff’s complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the
defendant in a motion to dismiss[.]’”1 Winston v. Clough, Civil
Action No. 07-1411 (RWR), 2010 WL 1875626, at *4 (D.D.C. May 11,
2010) (quoting Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45,
46 (D.D.C. 2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706
(9th Cir. 1998))).
1 For example, the defendants produced in their motion the President’s letter to Vice President Biden and Speaker Pelosi and the Eisen letter to Senators Lieberman and Collins to which the amended complaint referred. (Am. Compl. ¶¶ 30, 35, 36.) -7-
I. MANDAMUS
A mandamus action is available to compel an “officer or
employee of the United States or any agency thereof to perform a
duty owed to plaintiff.” See 28 U.S.C. § 1361. Mandamus relief
should be granted only if “(1) the plaintiff has a clear right to
relief; (2) the defendant has a clear duty to act; and (3) there
is no other adequate remedy available to plaintiff.” Council of
and for the Blind of Delaware County Valley v. Regan, 709 F.2d
1521, 1533 (D.C. Cir. 1983) (en banc). “[T]hose invoking the
court’s mandamus jurisdiction must have a ‘clear and
indisputable’ right to relief; and even if the plaintiff
overcomes all these hurdles, whether mandamus relief should issue
is discretionary.” In re Cheney, 406 F.3d 723, 729, (D.C. Cir.
2005). Where the action a plaintiff seeks to compel is
discretionary, he has no clear right to relief and mandamus is
not an appropriate remedy. See, e.g., Heckler v. Ringer, 466
U.S. 602, 616 (1984).
The defendants advance several arguments as to why Walpin
has failed to state a claim for mandamus relief. They assert
that the IGRA does not guarantee Inspectors General an individual
right to continued employment when the notice of separation that
is given to Congress is inadequate. (Defs.’ Mem. at 9, 12.)
According to the defendants, Congress intended for the IGRA to
facilitate dialogue between the President and Congress before the -8-
removal of Inspectors General, not to grant standing to a removed
Inspector General to bring a legal action alleging violations of
IGRA’s requirements. Citing National Resources Defense Council
v. Hodel, 865 F.2d 288, 318-19 (D.C. Cir. 1988), the defendants
also argue that where Congress has requested an explanation from
the Executive Branch, unless Congress has set forth specific
standards for compliance that are judicially determinable, the
determination of whether the Executive’s explanation is
sufficient should be left to Congress. (Id. at 11-12.) The
defendants argue that, in any event, the undisputed facts
demonstrate that the President complied with the IGRA’s 30-day
notice and explanation requirement and that Walpin was not
removed on June 10, 2009 as he claims.
Walpin argues that the IGRA did in fact create an
individually enforceable right to continued employment because
the purpose of the IGRA was to further increase the independence
of the Inspectors General. He adds that his being placed on
administrative leave with pay and being denied access to his
office and staff for what the President explained simply as a
lack of confidence in Walpin was indeed a removal without reason
and with no 30-day prior notice in violation of the IGRA.
A. Clear right to relief
The Inspector General Act of 1978, as amended by the IGRA,
provides for an OIG to be attached to each entity listed in -9-
5 U.S.C. app. 3 § 12(2), one of which is CNCS. 5 U.S.C. app. 3
§§ 1-13. “An Inspector General may be removed from office by the
President.” Id. § 3(b). Before 2008, the Act stated that “[t]he
President shall communicate the reasons for any such removal to
both Houses of Congress.” Inspector General Act of 1978, Pub. L.
No. 95-452, § 3(b), 92 Stat. 1101 (1978). In 2008, Congress
passed the IGRA, by amending the Inspector General Act to state
that:
If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.
5 U.S.C. app. 3 § 3(b).
Walpin has not identified any text in the IGRA which
explicitly creates a cause of action for an aggrieved Inspector
General, nor has he presented any authority demonstrating that
Congress drafted the IGRA with the intent to give individual
Inspectors General an enforceable right to continued employment.
In its report regarding the IGRA, the Senate Committee on
Homeland Security and Governmental Affairs described the purpose
of the IGRA:
The bill includes a requirement that the President or appropriate agency head notify Congress 30 days before transferring or removing an Inspector General. This would allow for an appropriate dialogue with Congress in the event that the planned transfer or removal is -10-
viewed as an inappropriate or politically motivated attempt to terminate an effective Inspector General. As part of this advance notice, the Administration would be required to supply written reasons for the planned transfer or termination. This advance notice provision was widely endorsed by the IG community as a useful deterrent against improper intimidation or dismissal. By contrast, the Inspectors General were divided over proposals to create fixed terms for IGs with dismissal only “for cause.” . . . While we hope that this advance notice will encourage useful communication between Congress and the Executive Branch on IG performance and serve as an effective deterrent against improper terminations, we note that the provision does not alter the President’s ultimate authorities with respect to Executive Branch employees.
S. Rep. No. 110-262, at 5-6 (2008) (emphasis added). In other
words, the IGRA enhances the independence of Inspectors General
by giving Congress a mechanism by which it receives advance
notice that the President would be removing an Inspector General,
allowing Congress, not the Inspector General himself, to act by
communicating with the President.
The June 11, 2009 letter notified Congress that Walpin would
be removed in 30 days. It afforded the Congress its opportunity
to communicate with the President if Congress felt as though the
independence of the Inspectors General altogether, or even the
independence of the Inspector General of CNCS individually, was
threatened by Walpin’s removal. Indeed, the notice requirement
created by the IGRA generated here the very Congressional
involvement and inter-branch discussion the law was intended to
facilitate, with communications between Craig and Senator
Grassley, between Eisen and Senators Lieberman and Collins (see -11-
Am. Compl. ¶¶ 32-33; Defs.’ Mem. Ex. D, Ex. E), and even among
Senators themselves. (See Am. Compl. ¶ 39.) As for the
President’s reasons for his action, the Senate report on the IGRA
emphasized that Congress expressly did not include in the IGRA a
requirement that the President could remove Inspectors General
only for cause. While Walpin complains that the President’s
rationale was insufficient, Walpin fails to show how the IGRA
provides any sort of criteria that would allow a court to make
that determination. See College Sports Council v. Gov’t
Accountability Office, 421 F. Supp. 2d 59, 67-68 (D.D.C. 2006)
(granting the defendant’s motion to dismiss a claim that an
agency’s report was insufficient, where the statute was devoid of
a provision creating a private cause of action).
B. No duty to act
The defendants argue that even if Walpin could show that the
IGRA creates an individually enforceable right to continued
employment, Walpin has not demonstrated that they have a
ministerial, non-discretionary duty to reinstate him,
particularly where he has not shown that the President failed to
comply with the IGRA’s notice requirement. Walpin argues that
the President removed Walpin on June 10, 2009 when Walpin was
placed on administrative leave with no prior 30-day notice to
Congress (Pl.’s Opp’n at 18-19), creating a clear duty for -12-
defendants to disregard the President’s notice and re-instate
Walpin.
To establish a clear and certain duty to act, a plaintiff
must show a duty so plainly prescribed as to be free from doubt.
Lozado Colon v. U.S. Department of State, 170 F.3d 191, 194 (D.C.
Cir. 1999). Where a duty depends on a statute or statutes the
construction or application of which is not free from doubt, it
involves “the character of judgment or discretion which cannot be
controlled by mandamus.” Wilbur v. United States, 281 U.S. 206,
219 (1929).
Walpin does not show that there is no doubt that his
placement on administrative leave with pay was a transfer or
removal from office. The IGRA states specifically that
“[n]othing in this subsection shall prohibit a personnel action
otherwise authorized by law, other than transfer or removal.”
5 U.S.C. app. 3 § 3(b). Walpin’s construction of “transfer or
removal” as encompassing his being placed on administrative leave
with pay is not an obvious reading of the terms. The Office of
Personnel Management’s regulations pertaining to Civil Service
employment define “removal” as “the involuntary separation of an
employee from employment with an agency.” 5 C.F.R. § 432.103.
At least one court has held that placing an employee on
administrative leave with pay did not constitute a “removal.”
Oliver v. United States Postal Service, 696 F.2d 1129, 1131 (5th -13-
Cir. 1983), held that civil service regulations issued by the
Office of Personnel Management that precluded “removal or
suspension” without 30 days notice were not violated when the
plaintiff was placed on administrative leave with pay without
notice. Similarly, Ghaly v. United States Dep’t of Agric., 228
F. Supp. 2d 283, 289 (S.D.N.Y. 2002) held that placing the
plaintiff on administrative leave with pay did not constitute an
“adverse action” or a “suspension.” While those cases did not
involve Inspectors General, they demonstrate at minimum that
Walpin’s construction of “removal or transfer” was not certain or
free from doubt when Walpin was placed on administrative leave
with pay on June 10, 2009. Accepting Walpin’s amended complaint
as true, Walpin has not shown that he was removed or transferred
that day such that the defendants had a clear, unmistakable duty
to reinstate him as Inspector General based upon the President’s
purported failure to comply with the IGRA.
II. DECLARATORY JUDGMENT
Walpin also seeks a declaratory judgment under the
Declaratory Judgment Act, 28 U.S.C. § 2201(a). “The Declaratory
Judgment Act states that ‘[i]n a case of actual controversy
within its jurisdiction . . . any court of the United States
. . . may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further
relief is or could be sought.’” Boone v. MountainMade Found., -14-
684 F. Supp. 2d 1, 12 (D.D.C. 2010) (quoting 28 U.S.C.
§ 2201(a)). In general, a count for a declaratory judgment “is
not cognizable as a separate cause of action, but is more
properly included in the[] prayer for relief.” Bridges v. Blue
Cross & Blue Shield Ass’n, 935 F. Supp. 37, 45 (D.D.C. 1996); see also
United States v. Instruments, S.A., 807 F. Supp. 811, 814 (D.D.C.
1992). “Declaratory Judgment Act remedies are available only if
‘a judicially remediable right’ already exists.” Seized Prop.
Recovery, Corp. v. United States Customs & Border Prot., 502 F.
Supp. 2d 50, 64 (D.D.C. 2007) (quoting Gallucci v. Chao, 374 F.
Supp. 2d 121, 128 (D.D.C. 2005)). “Accordingly, courts have
broad discretion to decline to enter declaratory judgments.”
Boone, 684 F. Supp. 2d at 12.
The defendants have moved to dismiss Count II of the amended
complaint. They argue that the Declaratory Judgment Act does not
provide an independent cause of action, and because Walpin has no
right to mandamus relief, his derivative count seeking a
declaratory judgment should be dismissed.
A court may dismiss as moot a claim for declaratory relief
where the claim duplicates or is wholly subsumed by another claim
that is dismissed. Boone, 684 F. Supp. 2d at 12 (dismissing the
plaintiffs’ claim seeking a declaratory judgment that their
actions constituted protected activity under the False Claims
Act, where the plaintiffs’ False Claims Act claims were -15-
dismissed). Here, Walpin’s claim for a declaratory judgment is
wholly subsumed by his claim for mandamus relief. In addition,
Walpin makes no attempt to rebut or address the defendants’
motion on this issue, and thus has waived or conceded the issue.
See Bonaccorsy v. D.C., 685 F. Supp. 2d 18, 24 (D.D.C. 2010)
(citing CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d
478, 482-83 (D.C. Cir. 1986)). Therefore, Count II of Walpin’s
amended complaint also will be dismissed.
CONCLUSION
Walpin has not pled facts meeting the steep showing
necessary for mandamus, rendering his claim seeking a declaratory
judgment moot. Therefore, the defendants’ motion to dismiss
Walpin’s amended complaint will be granted. An appropriate order
accompanies this memorandum opinion.
SIGNED this 17th day of June, 2010.
/s/ RICHARD W. ROBERTS United States District Judge