                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
CHRISTOPHER SANDERS,                      )
                                          )
            Plaintiff,                    )
                                          )
      v.                                  )                 Civil Action No. 06-1411
                                          )
DISTRICT OF COLUMBIA, et al.,             )
                                          )
            Defendants.                   )
__________________________________________)


                                  MEMORANDUM OPINION

               This matter is before the Court on plaintiff’s motion to amend his complaint and

defendants’ motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of

Civil Procedure. Upon careful consideration of the parties’ papers and the entire record in the

case, the Court will grant plaintiff’s motion to amend and will deny defendants’ motion for

judgment on the pleadings.1


                                       I. BACKGROUND

               The Court’s Opinion of November 8, 2007, Sanders v. District of Columbia, 522

F. Supp. 2d 83 (D.D.C. 2007), describes the factual and procedural background in this case in

some detail. Briefly, plaintiff Christopher Sanders was a Sergeant in the District of Columbia

Metropolitan Police Department (“MPD”). Plaintiff had resigned from the MPD, but shortly



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               The Court considered Plaintiff’s Motion to Amend the Complaint; Defendants’
Opposition to Plaintiff’s Motion to Amend the Complaint; Reply on Plaintiff’s Motion to Amend
the Complaint; Defendants’ Motion for Judgment on the Pleadings (“Mot. for Judg.”); and
Plaintiff’s Opposition to Defendants’ Motion for Judgment on the Pleadings.
thereafter sought to rescind his resignation. Plaintiff alleged that the MPD’s denial of his request

to rescind his resignation was retaliation for earlier whistleblower activity in violation of his First

Amendment rights and his procedural and substantive due process rights. See Sanders v. District

of Columbia, 522 F. Supp. 2d at 86-87. He brought suit against the District of Columbia, former

Chief of Police Charles H. Ramsey in his individual and official capacities, and Captain Jeffrey

Herrold and a “John Doe” in their individual capacities.

               In its November 8, 2007 Opinion, the Court granted defendants’ motion to

dismiss plaintiff’s municipal liability claims against the District of Columbia, including the

claims against Chief Ramsey in his official capacity, as well as plaintiff’s substantive due process

claims. See Sanders v. District of Columbia, 522 F. Supp. 2d at 88, 91-92. The Court denied

defendants’ motion to dismiss as to plaintiff’s First Amendment and procedural due process

claims against the individual defendants. See id. at 88-91.


                                          II. DISCUSSION

                       A. Plaintiff’s Motion for Leave Amend the Complaint

               Plaintiff initially named as defendants the District of Columbia, then Chief of

Police Ramsey, and plaintiff’s former superior Lieutenant Jeffrey Harold, as well as a “John

Doe”. Plaintiff now seeks to replace the John Doe with Chief of Police Cathy Lanier and

Assistant Chief Alfred Broadbent, in their individual capacities, on the grounds that only

recently, during the course of discovery in this case, did plaintiff learn of their alleged

unconstitutional actions toward him. Defendant objects to the amendment on the grounds of

futility, arguing that both Chief (then Commanding Officer) Lanier and Assistant Chief (then



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Special Services Officer) Broadbent have qualified immunity, and that the claims against both

are barred by the statute of limitations.

               Rule 15(a) of the Federal Rules of Civil Procedure allows for liberal amendment

of pleadings, “when justice so requires.” FED . R. CIV . P. 15(a); see, e.g., Howard v. Gutierrez,

237 F.R.D. 310, 312 (D.D.C. 2006) (quoting Davis v. Liberty Mutual Insurace Co., 871 F.2d

1134, 1136-37 (D.C. Cir. 1989) (“It is common ground that Rule 15 embodies a generally

favorable policy toward amendments.”) (citations omitted)). The presumption runs in the

plaintiff’s favor that he may amend his complaint “[i]n the absence of any apparent or declared

reason — such as undue delay, bad faith or dilatory motive on the part of the [plaintiff], repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis,

371 U.S. 178, 182 (1962).

               The Court finds that permitting the amendment of the complaint to add Chief

Lanier and Assistant Chief Broadbent as additional defendants is not futile and that the

defendants have not articulated any prejudice from doing so. Defendants’ argument as to futility

on the qualified immunity question is doubtful in light of the Court’s earlier denial of defendants’

motion to dismiss on the grounds of qualified immunity. See Sanders v. District of Columbia,

522 F. Supp. 2d at 89-91. Defendants’ statute of limitations argument depends on disputed

factual questions of when plaintiff knew, or should have known, of the alleged unconstitutional

acts by Chief Lanier and Assistant Chief Broadbent. Both of these arguments are more

appropriately addressed in a motion to dismiss or, more likely, a motion for summary judgment,

than on a motion to amend a complaint. Plaintiff’s complaint will be amended to include Chief


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Lanier and Assistant Chief Broadbent as defendants in their individual capacities for the still

pending First Amendment and procedural due process claims.


                      B. Defendants’ Motion for Judgment on the Pleadings

                                           1. Legal Standard

                Rule 12(c) of the Federal Rules of Civil Procedure states that “[a]fter the

pleadings are closed — but early enough not to delay trial — a party may move for judgment on

the pleadings.” FED . R. CIV . P. 12(c). The standard of review for motions for judgment on the

pleadings under Rule 12(c) of the Federal Rules is essentially the same as that for motions to

dismiss under Rule 12(b)(6). See Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35

(D.C. Cir. 2004); Ramirez v. Dep’t of Corrections, 222 F.3d 1238, 1240-41 (10th Cir. 2000);

Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987); Does I through III v. District of

Columbia, 238 F. Supp. 2d 212, 216 (D.D.C. 2002) (citations omitted). On either motion, the

Court may not rely on facts outside the pleadings and must construe the complaint in the light

most favorable to the non-moving party. See Kowal v. MCI Communications Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). As with a motion to dismiss under Rule 12(b)(6), a court may grant

judgment on the pleadings only if the facts alleged in the complaint do not “raise a right to relief

above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), or fail

to “state a claim to relief that is plausible on its face.” Id. at 570; see also Nat’l Shopmen

Pension Fund v. Disa, 583 F. Supp. 2d 95, 99 (dismissal is appropriate under Rule 12(c) “if the

plaintiff fails to plead ‘enough facts to state a claim [to] relief that is plausible on its face.’”

(citing Bell Atlantic Corp v. Twombly, 550 U.S. at 570)).



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               Plaintiff filed his motion to amend the complaint before defendants filed their

motion for judgment on the pleadings. As discussed above, the Court is granting plaintiff’s

motion to amend his complaint. The Court therefore has treated the motion for judgment on the

pleadings as one addressed to the amended complaint.


                                    2. First Amendment Claim

                The Court considered in detail whether plaintiff’s allegations as to First

Amendment violations stated a claim under the Federal Rules of Civil Procedure in its earlier

Opinion, finding that it had. See Sanders v. District of Columbia, 522 F. Supp. 2d at 88-90.

Defendants now argue that the Court should grant judgment in their favor on plaintiff’s First

Amendment claim on the theory that plaintiff’s speech was made pursuant to his official duties,

and thus is unprotected speech under Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Plaintiff

points out, accurately, that this argument is a direct reversal from the position defendants took in

their motion to dismiss. As the Court then noted:

               In Garcetti, the Supreme Court distinguished expressions made at
               work pursuant to official duties from those that are not, and held
               that “when public employees make statements pursuant to their
               official duties, the employees are not speaking as citizens for First
               Amendment purposes, and the Constitution does not insulate their
               communications from employer discipline.” Garcetti v. Ceballos,
               [547 U.S. at 421]. The Court notes that it does not appear that
               Sanders made these statements at issue in this case “pursuant to his
               official duties,” nor have defendants argued that he did.

Sanders v. District of Columbia, 522 F. Supp. 2d at 89, n. 3. Plaintiff argues that defendants

have waived the Garcetti argument by not raising it earlier. Whether this theory of liability, or

lack thereof, is an affirmative defense that must be raised or be forever waived, defendants have



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not given the Court sufficient basis to adopt their new reasoning and to grant judgment against

plaintiff.

               Defendants point to “a public record revelation” of plaintiff’s testimony before the

Council of the District of Columbia as the basis for their argument that plaintiff spoke pursuant

to his official duties, and thus is not protected by the First Amendment. See Mot. for Judg. at 2.

They argue that a recent decision by Judge Kollar-Kotelly makes judgment on the pleadings

appropriate because her decision established that statements made by a public employee to the

Council of the District of Columbia were not protected speech because they were made pursuant

to the plaintiff’s official duties. See Williams v. Johnson, 537 F. Supp. 2d 141, 151-52 (D.D.C.

2008). In Williams, however, the plaintiff’s job description “required her to provide her findings

to senior executive personnel in District government,” and she attended the Council meeting with

her supervisor to assist him in answering questions as a part of her job. Id. at 151. The

allegations in the complaint before the Court in this case do not lead to a similar conclusion.

While there may be a factual dispute between the parties, plaintiff asserts in his amended

complaint that he “did not make this speech pursuant to his official duties.” See Amended

Complaint ¶ 11. At this stage in the case, the Court cannot determine as a matter of law that

plaintiff’s speech was made pursuant to his official duties, and the defendants are no more

entitled to judgment on the pleadings than they were to a dismissal for failure to state a claim.

See Sanders v. District of Columbia, 522 F. Supp. 2d at 88-90. The Court finds no other reason

to reconsider its earlier determination that plaintiff had stated a claim as to Count One, and thus

will not grant judgment against plaintiff on this Count.




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                                  3. Procedural Due Process Claim

                In its earlier Opinion, the Court denied defendants’ motion to dismiss plaintiff’s

procedural due process claims, concluding that plaintiff had stated a claim, in that he had alleged

a property interest and deprivation of notice and the opportunity for a hearing, and further

concluding that defendants were not entitled to qualified immunity. See Sanders v. District of

Columbia, 522 F. Supp. 2d at 90-91. Defendants’ motion is essentially a motion for

reconsideration of this decision. Defendants have given the Court no basis on which to conclude

that its earlier decision was incorrect.

                With respect to the question whether plaintiff had a property interest in his

reinstatement, defendants cite to D.C. Municipal Regulation 6-807.1(e), which uses permissive

rather than mandatory language with regard to the MPD’s obligation to reinstate former

members. This regulation is irrelevant to the issue before the Court. Section 6-807.1 addresses

only the age requirements for various career service positions. Furthermore, defendants’ reading

of the language of the regulation does not affect the Court’s previous determination that plaintiff

had stated a claim for violation of procedural due process rights under the Comprehensive Merit

Protection Act (“CMPA”). See Sanders v. District of Columbia, 522 F. Supp. 2d at 90-91.

                Nor does defendants’ argument that plaintiff’s resignation was voluntary give the

Court a basis to reconsider its prior determination. The fact of plaintiff’s resignation was before

the Court when it considered plaintiff’s motion to dismiss. See Sanders v. District of Columbia,

522 F. Supp. 2d at 86. Furthermore, plaintiff disputes defendants’ assertion that he voluntarily

gave up his property rights through his resignation — he alleges that he was advised that even if

he resigned, he would be free to return to the MPD within one year. See Amended Complaint


                                                  7
¶ 19. This is a factual question that cannot be resolved on a motion for judgment on the

pleadings. The Court finds that defendants have raised no argument that would justify altering

its original decision not to dismiss the procedural due process claims.


                                       III. CONCLUSION

               For the foregoing reasons, the Court will grant plaintiff’s motion to amend and

will deny defendants’ motion for judgment on the pleadings. An Order consistent with this

Opinion will issue this same day.

               SO ORDERED.

                                                     _/s/________________________
                                                     PAUL L. FRIEDMAN
                                                     United States District Judge
DATE: February 27, 2009




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