                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                     )
THEODORE E. POWELL,                  )
                                     )
                  Plaintiff,         )
                                     )Civil Action No. 11-493(EGS)
             v.                      )
                                     )
AMERICAN FEDERATION OF               )
TEACHERS, et al.,                    )
                                     )
                  Defendants.        )
                                     )


                          MEMORANDUM OPINION

     Plaintiff Theodore Powell, proceeding pro se, brings this

case against Defendants American Federation of Teachers (“AFT”),

Washington Teachers Union (“WTU”), and several individual

Defendants alleging a failure to represent and support Plaintiff

while he was employed at the District of Columbia Public Schools

(“DCPS”).    Pending before the Court are several motions filed by

Plaintiff.    Because Plaintiff is proceeding pro se, the Court

will treat these motions as objections to the Report and

Recommendation of Magistrate Judge John M. Facciola.   In that

Report and Recommendation, Magistrate Judge Facciola recommended

that Defendant WTU’s Motion to Dismiss be granted because this

Court does not have jurisdiction over Plaintiff’s claims.   Based
upon a de novo review of the parties’ papers,1 the relevant law,

and the entire record in this case, the Court concludes that it

lacks jurisdiction over this case.                                  Therefore, the Court will

ADOPT Magistrate Judge Facciola’s recommendation and will GRANT

WTU’s Motion to Dismiss for lack of jurisdiction.                                 The Court

will also GRANT Defendant AFT’s Motion to Dismiss as conceded

and alternatively for lack of jurisdiction.                                 Finally, the Court

will DENY Plaintiff’s Motion to Take Judicial Notice, Motion to

Stay, and Motion to Strike.

I.            BACKGROUND

              Plaintiff Theodore Powell is a former physical education

teacher at Woodson High School.                                 See Complaint (“Compl.”),

included in Original File from Superior Court [Docket No. 6-1],




                                                            
              1
       The papers reviewed in connection with the pending motions
include: Defendant AFT’s Motion to Dismiss, filed in the
District of Columbia Superior Court prior to the removal of this
action [Docket No. 6]; Defendants WTU, Charles Moore, Candi
Peterson, Nathan Saunders, and Clay White’s Motion to Dismiss
for Lack of Jurisdiction [Docket No. 8] (hereinafter, “WTU Mot.
to Dismiss”); Plaintiff’s Memorandum in Opposition to WTU’s
Motion to Dismiss [Docket No. 10]; WTU’s Reply in Support of its
Motion to Dismiss [Docket No. 14]; Plaintiff’s Motion to Take
Judicial Notice [Docket No. 18]; Plaintiff’s Motion to Stay
[Docket No. 20]; Defendant WTU’s Opposition to Plaintiff’s
Motion to Stay [Docket No. 21]; Plaintiff’s Replies in Support
of his Motion to Stay [Docket Nos. 22 & 26]; Plaintiff’s Motion
to Strike all Reply Memorandums of the Defendants [Docket No.
27]; AFT’s Response to Plaintiff’s Motion to Strike [Docket No.
28]; and WTU’s Memorandum in Opposition to Plaintiff’s Motion to
Strike [Docket No. 29].


                                                               2 
 
at 12.2                  Plaintiff’s complaint includes a number of claims, all

of which amount to a failure by the Defendant unions and their

agents to properly support and represent Plaintiff.                                        First,

Plaintiff alleges that he was injured when he was assaulted by

students at the school.                                        See id. at 8-9, 12.   The dates of the

alleged assaults are not clear from the record.                                        Plaintiff

states that he is suffering from nerve damage in his feet and

Post Traumatic Stress Disorder as a result of the assaults.                                          Id.

at 9, 12.                       According to Plaintiff, WTU failed to support and

represent him in resolving this matter and “was negligent in its

efforts to get involved and implement a strong safe plan for

success, as a part of the Collective Bargaining Agreement.”                                          Id.

at 8.

              Secondly, Plaintiff alleges that WTU did not provide him

with adequate legal representation in his criminal case.3                                          See

id. at 8-9.                           Plaintiff claims that the WTU lawyer who was

assigned to represent him was deceitful, attempted to coerce


                                                            
              2
       Because Plaintiff’s Complaint does not contain page
numbers, all citations to the Complaint are citations to the
page of the entire Original File included at Docket No. 6.
              3
       It is not clear from the record whether Plaintiff’s
criminal case is connected to any of the other allegations in
the Complaint. The parties do not dispute that Plaintiff was
charged with a misdemeanor for threats to do bodily harm on
January 4, 2010 in the District of Columbia Superior Court, Case
No. 2010 CMD 000144. The parties also do not dispute that
Plaintiff was found not guilty on September 29, 2010. See WTU
Mot. to Dismiss at 3 n.2; Compl. at 8.
                                                                      3 
 
Plaintiff into accepting a guilty plea, and provided poor

representation, in violation of Plaintiff’s rights to due

process and a speedy trial under the 5th, 6th, and 14th

Amendments of the United States Constitution.      See id.

Plaintiff alleges that he asked WTU for a new lawyer, but WTU

refused to help him.    Id. at 9.

     Plaintiff was placed on paid leave on December 10, 2009.

Id. at 10.   Plaintiff alleges that he asked WTU for support and

representation at a Fitness-for-Duty exam, but WTU refused to

represent him.   Id.   Plaintiff challenges the doctor who

performed the Fitness-for-Duty exam and states that the doctor

“provide[d] false information” about Plaintiff to WTU, causing

Plaintiff to be terminated under false pretenses.      See id.

According to Plaintiff, WTU should have recommended another

doctor to perform the exam, and Plaintiff was damaged by WTU’s

lack of support and representation.      See id. at 10-11.

Plaintiff also alleges that he contacted AFT for support and

representation, but they refused to help him.      Id. at 11.

Plaintiff seeks reinstatement to his position at Woodson High

School or another high school with full benefits, back pay,

compensatory damages, punitive damages, 100 percent retirement

benefits, and “8 million dollars in cash.”      Id. at 12-14.

     Plaintiff filed his Complaint in the Superior Court of the

District of Columbia on February 9, 2011.     On March 1, 2011,

                                    4 
 
Defendant AFT filed a Motion to Dismiss in the Superior Court.

On March 8, 2011, Defendant WTU removed this case to this Court.

Defendant WTU filed a Motion to Dismiss on March 21, 2011.     On

March 22, 2011, this Court entered an order advising Plaintiff

to respond to both Motions to Dismiss by no later than April 19,

2011 and May 10, 2011, respectively.   The Court cautioned

Plaintiff that if he did not respond, the Court may treat the

motions as conceded and dismiss the case.    See Order, March 22,

2011 [Docket No. 9] at 2.   Plaintiff filed an opposition to

WTU’s Motion to Dismiss only, and the Court referred that motion

to Magistrate Judge Facciola for a Report and Recommendation

pursuant to Local Civil Rule 72.3(a)(3).    On January 30, 2012,

Plaintiff filed a Motion to Take Judicial Notice.   Magistrate

Judge Facciola issued his Report and Recommendation on February

16, 2012, and Plaintiff filed a Motion to Stay within 14 days of

that Report and Recommendation.    The Court will treat

Plaintiff’s Motion to Stay as an objection to Magistrate Judge

Facciola’s entire Report and Recommendation.   Plaintiff also

filed, on April 27, 2012, a Motion to Strike all Reply

Memorandums of the Defendants.    All motions are now ripe for

determination by the Court.




                                  5 
 
II.   LEGAL STANDARD

      A.   Rule 72

      Rule 72(b) of the Federal Rules of Civil Procedure and Rule

72.3 of the Local Rules of the United States District Court for

the District of Columbia authorize the referral of dispositive

motions to a magistrate judge for a report and recommendation.

When a party files written objections to any part of the

magistrate judge’s recommendation, the Court considers de novo

those portions of the recommendation to which objections have

been made, and “may accept, reject, or modify the recommended

decision; receive further evidence; or return the matter to the

magistrate judge with instructions.”   Fed. R. Civ. P. 72(b)(3);

see also Local Civil Rule 72.3(c).

      B.   Rule 12(b)(1)

      Federal district courts are courts of limited jurisdiction,

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994), and a Rule 12(b)(1) motion for dismissal presents a

threshold challenge to a court’s jurisdiction, Haase v.

Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).   On a motion to

dismiss for lack of subject matter jurisdiction, the plaintiff

bears the burden of establishing that the Court has

jurisdiction.   See Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992).   In evaluating such a motion, the Court must “accept

as true all of the factual allegations contained in the

                                 6 
 
complaint,” Wilson v. Dist. of Columbia, 269 F.R.D. 8, 11

(D.D.C. 2010) (citing Leatherman v. Tarrant Cnty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)), and

should review the complaint liberally while accepting all

inferences favorable to the plaintiff, see Barr v. Clinton, 370

F.3d 1196, 1199 (D.C. Cir. 2004).     Because subject matter

jurisdiction focuses on the Court’s power to hear the claim,

however, the Court must give the plaintiff’s factual allegations

closer scrutiny when resolving a Rule 12(b)(1) motion than would

be required for a Rule 12(b)(6) motion.     Macharia v. United

States, 334 F.3d 61, 67 (D.C. Cir. 2003).     Thus, to determine

whether it has jurisdiction over a claim, the Court may consider

materials outside the pleadings where necessary to resolve

disputed jurisdictional facts.   Herbert v. Nat’l Acad. of Scis.,

974 F.2d 192, 197 (D.C. Cir. 1992).    Although complaints filed

by pro se plaintiffs are to be liberally construed, see Erickson

v. Pardus, 551 U.S. 89, 94 (2007), pro se plaintiffs “are not

freed from the requirement to plead an adequate jurisdictional

basis for their claims,” Kurtz v. United States, 779 F. Supp. 2d

50, 51 (D.D.C. 2011) (internal quotation omitted).

III. ANALYSIS

     A.   WTU’s Motion to Dismiss

     Defendant WTU and its agents argue that this Court lacks

jurisdiction over this action because the District of Columbia’s

                                 7 
 
Comprehensive Merit Personnel Act, D.C. Code § 1-601 et seq.

(“CMPA”), provides the sole statutory form and remedy for

Plaintiff’s claims.   WTU Mot. to Dismiss at 1.   Alternatively,

Defendants argue that the Complaint fails to state a claim for

which relief can be granted and should be dismissed pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure.     See id.

The Court must determine first whether it has jurisdiction over

Plaintiff’s claims because, once a court determines that it

lacks subject matter jurisdiction, it can proceed no further.

See Simpkins v. Dist. of Columbia, 108 F.3d 366, 371 (D.C. Cir.

1997).

     The CMPA was enacted to provide employees of the District

of Columbia an impartial and comprehensive administrative scheme

for resolving employee grievances.    Holman v. Williams, 436 F.

Supp. 2d 68, 74 (D.D.C. 2006) (citing D.C. Code § 1–

601.02(a)(5)).   As this Court has previously recognized, “the

CMPA is the exclusive avenue for aggrieved employees of the

District of Columbia to pursue work-related complaints.”

Jackson v. Dist. of Columbia Dep’t of Health, No. 06-cv-1347

(EGS), 2007 WL 1307891, at *2 (D.D.C. May 3, 2007) (citing

Holman, 436 F. Supp. 2d at 74; Baker v. Dist. of Columbia, 785

A.2d 696, 697-98 (D.C. 2001)).   Under the CMPA, an employee must

first bring a grievance to the District of Columbia Public

Employee Relations Board (“PERB”).    See Lightfoot v. Dist. of

                                 8 
 
Columbia, No. 04-cv-1280 (RBW), 2006 WL 54430, at *8 (D.D.C.

Jan. 10, 2006).   Only after a final order of the PERB has been

issued can the plaintiff seek judicial review, which must

commence in the Superior Court of the District of Columbia.       Id.

(citing D.C. Code § 1–617.13(c)).

      The CMPA defines a “grievance,” in relevant part, as “any

matter under the control of the District government which

impairs or adversely affects the interest, concern, or welfare

of employees . . . .”    Holman, 436 F. Supp. 2d at 74 (quoting

D.C. Code § 1-603.01(10)).   In particular, this Court has held

that the PERB has exclusive jurisdiction over a union member’s

complaints against his union concerning the union’s duty of fair

representation.    See McManus v. Dist. of Columbia, 530 F. Supp.

2d 46, 78 (D.D.C. 2007) (citing D.C. Code §§ 1-605.02(3), 1-

617.04(b)(1)).    Even construed as liberally as possible,

Plaintiff’s Complaint alleges a series of grievances against WTU

concerning WTU’s purported failure to support and represent him.

Such claims are governed by the CMPA and are under the exclusive

jurisdiction of the PERB.    This Court therefore lacks

jurisdiction over Plaintiff’s claims.

     Apparently realizing this defect, Plaintiff filed an unfair

labor practice complaint before the PERB on April 10, 2011.    In

his Motion to Stay, Plaintiff attached the PERB’s dismissal of

his complaint as time-barred, and he argued that the PERB had

                                  9 
 
erred.    Mot. to Stay [Docket No. 20] at 1-2, Ex. 1.    Plaintiff

further alleged that he had filed an appeal with the PERB for

reconsideration.    See id. Ex. 2.     In his Motion to Strike,

Plaintiff attached the PERB’s denial of that appeal and stated

that he disagrees with the PERB’s decision.       See Mot. to Strike

[Docket No. 27] at 1-2, Ex. 1.   However, Plaintiff cannot appeal

the PERB’s decisions to this Court in the first instance.         D.C.

Code § 1-617.13(c) provides that “[a]ny person aggrieved by a

final order of the Board granting or denying in whole or in part

the relief sought may obtain review of such order in the

Superior Court of the District of Columbia by filing a request

within 30 days after the final order has been issued.”

Accordingly, Plaintiff’s motions must be denied, and the

Complaint must be dismissed for lack of jurisdiction.

     B.     AFT’s Motion to Dismiss

     Defendant AFT argues that Plaintiff’s Complaint should be

dismissed for failure to state a claim and for failure to allege

facts under which AFT, in particular, can be found liable.

Specifically, AFT asserts that Plaintiff’s claims arise out of

the collective bargaining agreement between WTU and DCPS, to

which AFT is not a party.   AFT’s Mem. in Support of Mot. to

Dismiss at 4-6.    In addition, AFT argues that Plaintiff’s

Complaint should be dismissed because the PERB has exclusive



                                 10 
 
jurisdiction over Plaintiff’s claims.     Id. at 6-7.   Plaintiff

has not responded to AFT’s Motion to Dismiss.

     When a plaintiff fails to respond to a motion to dismiss,

the Court may grant it as conceded.     See Local Civil Rule 7(b);

see also Hoffman v. Dist. of Columbia, 681 F. Supp. 2d 86, 94

(D.D.C. 2010); Chandler v. Dist. of Columbia, 578 F. Supp. 2d

73, 76-77 (D.D.C. 2008).   Here, Plaintiff was specifically

instructed that his failure to respond to AFT’s Motion to

Dismiss may risk dismissal.    See Order, March 22, 2011 [Docket

No. 9] at 2.   The Court may therefore grant AFT’s Motion to

Dismiss as conceded.    In addition, for the reasons stated above

in Part III.A., the Court will grant AFT’s Motion to Dismiss for

lack of jurisdiction.

     C.   Plaintiff’s Motions to Take Judicial Notice and to
          Strike all Memorandums of Defendants

     In his Motion for Judicial Notice, Plaintiff merely

reasserts his arguments that WTU has committed unfair labor

practices and that he is owed back payment.    Mot. for Judicial

Notice at 1-2.   For the reasons stated above in Part III.A.,

these allegations are under the exclusive jurisdiction of the

PERB in the first instance, and the Court thus does not have

jurisdiction over Plaintiff’s claims.    The Court will therefore

DENY Plaintiff’s Motion for Judicial Notice.




                                 11 
 
       Finally, Plaintiff filed a Motion to Strike All Reply

Memorandums of the Defendants.    In that motion, however,

Plaintiff did not argue that any particular filing by Defendants

should be stricken, nor did he offer any basis to strike any

filings.   Rather, Plaintiff argued that he disagreed with the

PERB’s decision to dismiss his complaint.     See Mot. to Strike at

2.    As the Court has noted above, in Part III.A., pursuant to

D.C. Code § 1-617.13(c), Plaintiff must file any appeal of the

PERB’s ruling in the D.C. Superior Court.    Accordingly, the

Court will DENY Plaintiff’s Motion to Strike.

IV.    CONCLUSION

       For the foregoing reasons, the Court will GRANT Defendants’

Motions to Dismiss.    The Court will DENY Plaintiff’s Motion to

Take Judicial Notice, Motion to Stay, and Motion to Strike.

Accordingly, the Court will DISMISS Plaintiff’s Complaint with

prejudice.    A separate Order accompanies this Memorandum

Opinion.

SIGNED:      Emmet G. Sullivan
             United States District Court Judge
             August 13, 2012




                                  12 
 
