                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA



JESSE PORTER, et al.,

         Plaintiffs,
                  v.                                                Civil Action No. 10-992 (JEB)
UNITED STATES CAPITOL
POLICE BOARD,

        Defendant.


                                       MEMORANDUM OPINION

        Plaintiffs are nine officers in the Library of Congress Police who were transferred to the

U.S. Capitol Police pursuant Congress’s merging of the two forces. 1 Under this merger, LOC

police who met certain requirements were transferred to the USCP as officers. All other LOC

police, including Plaintiffs, were transferred as civilians. Plaintiffs filed this suit against the U.S.

Capitol Police Board, alleging that the merger unlawfully stripped them of their police powers on

account of their age. In addition, Plaintiffs contend that the Act consolidating the LOC and

Capitol police forces violates their equal-protection rights because it has a disparate impact on

black officers.

        Defendant has now filed a Motion to Dismiss or, in the alternative, for Summary

Judgment. As Plaintiffs’ claims fail for both procedural and substantive reasons, the Court will

grant the Motion.




        1
         The Plaintiffs who filed suit in this case are Jesse Porter, Henry Trevathan, Vernell Morris, James Caul,
Dorsey Frazier, Carlton Perry, Anthony J. Rovillard, Lawrence Crawford, and Joy A. Myers.


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I.     Background

                   A. The “Merger Act”

       In 2008, Congress enacted the U.S. Capitol Police and Library of Congress Police Merger

Implementation Act (“Merger Act”), Pub. L. No. 110-178, 121 Stat. 2546 (2008). The Act

incorporated the LOC police into the USCP in order to enhance security in and around the U.S.

Capitol. Id. at §§ 2(a)(1)-(2); see also U.S. General Accounting Office, GAO-02-792R, U.S.

Capitol Police Merger Review (2002), at 4. According to the GAO analysis, merging the LOC

police with the USCP would improve security on the U.S. Capitol complex by facilitating better

coordination of police activities, providing centralized intelligence, developing consistent

responses to threats and emergencies, and allowing flexibility in staffing. See GAO Report at 4.

       In implementing the merger, Congress had to reconcile the different retirement systems

of the LOC police and the USCP. While there is no mandatory retirement age for LOC police,

USCP officers must retire when they “become[] 57 years of age or complete[] 20 years of service

if then over that age.” 5 U.S.C. § 8335(c). The USCP Board may exempt certain officers from

mandatory retirement until age 60 if “the public interest so requires.” Id. USCP officers who

have completed 20 years of eligible federal service by the mandatory retirement age are entitled

to retirement benefits comparable to other federal law-enforcement officers. See 5 U.S.C. §

8336(m); GAO Report at 3. By contrast, LOC police receive standard federal retirement benefits.

5 U.S.C. §§ 8336(b), 8412(b); GAO Report at 3.

       Congress chose to deal with the variation in the LOC police and USCP retirement

policies by transferring LOC police who met certain eligibility requirements to the USCP as

officers and transferring the remaining LOC police to the USCP as civilian employees. See

Merger Act, §§ 2(b)(1)(A)-(B). More specifically, members of the LOC police who were set to

complete 20 years of federal law-enforcement service by the age of 60 (and who met other

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eligibility requirements) would be transferred to the USCP as officers. Id. § 2(b)(1)(A). Upon

transfer, they would be subject to the USCP’s mandatory retirement provisions, but would accrue

law-enforcement retirement benefits, rather than the standard federal retirement benefits they had

accrued as LOC police. See id. § 2(b)(3)(B); 5 U.S.C. §§ 8336(b), 8336(m), 8412(b); see also

H.R. Rep. No. 110-470, pt. 1, at 2 (2007). On the other hand, members of the LOC police who

would not have 20 years of service by age 60, or who would otherwise not qualify to be a USCP

officer, would be transferred to the USCP as civilians. See Merger Act §§ 2(b)(1)(B). As such,

they would not be subject to a mandatory retirement age and would still be eligible for USCP

civilian retirement benefits. See 5 U.S.C. § 8336(b); Merger Act § 2(b)(2).

                   B. Plaintiffs’ Claims

       According to the Amended Complaint, which must be presumed true for purposes of this

Motion, Plaintiffs were formerly members of the LOC police who were transferred to the USCP

as civilians on October 11, 2009. Am. Compl., ¶ 41. Count I alleges that the U.S. Capitol Police

Board unlawfully discriminated against Plaintiffs based on their age by transferring them to the

USCP as civilians when younger members of the LOC police were transferred as officers. Id., ¶

44. In light of this, Plaintiffs assert that they were “stripped of their police powers” on account of

their age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633(a).

Id., ¶¶ 41-42.

       Plaintiffs further allege in Count II that the Merger Act is unconstitutional as applied

because it discriminates against black officers. As best the Court can discern from the somewhat

tangled Complaint, Plaintiffs claim that transferring LOC police, who are predominantly black,

to the USCP as civilians has a racially discriminatory impact. Id., ¶¶ 50, 52-54. Because

Plaintiffs’ transfer as civilians allegedly denied them “the opportunity for employment,

promotion, and advancement as sworn officers based on race,” they contend their transfer
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violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution by

virtue of the Fifth Amendment Due Process Clause. Id., ¶ 50, 56. In addition, they allege that

Defendant’s support for the Merger Act has a racially discriminatory impact in violation of the

Constitution. Id. at ¶ 54.

        Six of the Plaintiffs in this action — Perry, Rovillard, Myers, Morris, Frazier, and Caul

— previously filed lawsuits alleging that their transfer to the USCP as civilians constituted

unlawful age discrimination. See Caul v. Capitol Police Bd., No. 09-1250 (D.D.C. March 4,

2010); Frazier v. Capitol Police Bd., No. 09-1251 (D.D.C. March 4, 2010); Morris v. Capitol

Police Bd., No. 09-1252 (D.D.C. March 4, 2010); Myers v. Capitol Police Bd., No. 09-0666

(D.D.C. March 4, 2010); Perry v. Capitol Police Bd., No. 09-0683 (D.D.C. March 4, 2010);

Rovillard v. Capitol Police Bd., No. 09-0682 (D.D.C. March 4, 2010). In Rovillard and Perry

(related cases that were decided in the same opinion), another court in this District dismissed the

age-discrimination claims, holding that age limits for law-enforcement officers are exempt from

ADEA challenges. See Rovillard v. Capitol Police Bd., 691 F. Supp. 2d 9, 12 (D.D.C. 2010);

Perry v. Capitol Police Bd., 691 F. Supp. 2d 9, 12 (D.D.C. 2010). The court also found in favor

of the defendant in the other four cases, treating defendant’s motions for dismissal or summary

judgment as conceded when plaintiffs failed to timely file oppositions. See Mot., Exh. 1-4.

        Plaintiffs filed the Complaint in this case on June 14, 2010, and an Amended Complaint

on February 9, 2011. Defendant has now moved to dismiss Plaintiffs’ Complaint under Federal

Rule of Civil Procedure 12(b)(6) or, in the alternative, asked for summary judgment under Rule

56. 2 Because the Court grants the former, it need not reach the latter.


        2
         In considering Defendant’s Motion to Dismiss, the Court has reviewed Plaintiffs’ Amended Complaint,
Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss and for Summary
Judgment, Plaintiff’s Opposition, and Defendant’s Reply.


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II.     Legal Standard

        Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” When the sufficiency of a

complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be

presumed true and should be liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty.

Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). Although the notice pleading rules are

“not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put

forth “factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes,

416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a right to

relief above the speculative level.” Id. at 555.

III.    Analysis

        A.      Age-Discrimination Claims

        Although Plaintiffs label Count I of their Amended Complaint “Violation of the

Congressional Accountability Act of 1995; Age Discrimination in Employment Act of 1967, 29

U.S.C. § 633a(a) and Violation of Title VII of the Civil Rights Act of 1964,” all that is actually

alleged is an ADEA violation. Before even considering whether Plaintiffs have stated a claim




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under the ADEA, the Court must first address Defendant’s argument that the age-discrimination

claims of most of the Plaintiffs are procedurally barred under the doctrine of res judicata.

               1. Res Judicata

       The doctrine of res judicata, or claim preclusion, bars parties from relitigating claims

where a court has issued a final judgment on their merits in an earlier action. In order for res

judicata to apply, there must be “(1) an identity of parties in both suits; (2) a judgment rendered

by a court of competent jurisdiction; (3) a final judgment on the merits; and (4) the same cause of

action in both suits.” Polsby v. Thompson, 201 F .Supp. 2d 45, 48 (D.D.C. 2002). Furthermore,

if a claim could have been raised in an earlier action, but was not, that claim is also barred under

res judicata. See Appalachian Power Co. v. E.P.A., 251 F.3d 1026, 1033-34 (D.C. Cir. 2001).

       Six of the nine Plaintiffs in this case have previously brought precisely the same ADEA

claim against the USCP Board. In those suits, they also complained of age discrimination with

respect to their transfer to the USCP as civilians rather than officers. In each case, a court issued

a final judgment on the merits on their age-discrimination claims. In Rovillard and Perry, the

court dismissed those plaintiffs’ claims on the grounds that the ADEA does not apply to the

USCP’s mandatory retirement age. Rovillard v. Capitol Police Bd., 691 F. Supp. 2d 9, 12

(D.D.C. 2010); Perry v. Capitol Police Bd., 691 F. Supp. 2d 9, 12 (D.D.C. 2010). In the other

four cases, the court entered judgment in favor of the defendant upon finding that its motion for

partial dismissal and summary judgment had been conceded. See Mot., Exh. 1-4. Granting a

motion as conceded constitutes a final judgment on the merits for claim-preclusion purposes

because the parties had a full and fair opportunity to litigate the claim in the prior action. See

Poblete v. Indymac Bank, 657 F. Supp. 2d 86, 91 (D.D.C. 2009). As a result, those Plaintiffs’

ADEA claims are barred by res judicata and must be dismissed. Only the claims of the

remaining three – Porter, Trevathan, and Crawford – survive.
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               2. ADEA Exemption for Law Enforcement

       In their Amended Complaint, Plaintiffs allege that the USCP’s mandatory retirement

scheme violates the ADEA because age is not a “bona fide occupational qualification.” See id.,

¶¶ 34, 47 (citing ADEA, 29 U.S.C. § 633a(4)(f)(1)). The Court need not reach this question,

however, because, as Defendant correctly points out, the ADEA does not apply to the USCP’s

age limits. The Supreme Court has explicitly held that “mandatory age limits for law

enforcement officers … are exempted from the [ADEA’s] coverage.” Kimel v. Florida Bd. of

Regents, 528 U.S. 62, 69 (2000) (citing 5 U.S.C. §§ 3307(d)-(e)); see also Stewart v. Smith, 673

F.2d 485, 490-94 (D.C. Cir. 1982) (holding that 5 U.S.C. § 3307(d), which allows agency heads

to fix the minimum and maximum age limits for law enforcement officers, is an exception to the

ADEA). Since the Capitol Police are law-enforcement officers within the definition used in 5

U.S.C. § 3307(d), see Rovillard, 691 F. Supp. 2d at 12, the age-based retirement provisions for

USCP officers are exempt from the ADEA. The remaining three Plaintiffs’ ADEA claim must,

consequently, be dismissed for failure to state a claim.

           B. Equal-Protection Claim

       Plaintiffs have also alleged that the Merger Act is unconstitutional because it has a

racially discriminatory impact. See Am. Compl., ¶¶ 50. In doing so, they suggest that an act

violates the equal-protection component of the Fifth Amendment Due Process Clause merely

because it has a disproportionate impact on a particular racial group. Courts have squarely

rejected that view. Instead, a plaintiff must show purposeful discrimination to prevail on an

equal-protection claim. Since Plaintiffs do not even allege intentional discrimination, their equal-

protection claim must be dismissed.




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                1. Discriminatory Impact

        In asserting that the Merger Act resulted in discriminatory treatment of black officers,

Plaintiffs were presumably bringing their equal-protection claim under a “disparate impact”

theory. Plaintiffs appear to have confused the standards applicable to Title VII with those

applicable to equal-protection claims under the Constitution. See Washington v. Davis, 426 U.S.

229, 238-239 (1976). The Supreme Court has made clear that a showing of disparate impact

alone is not sufficient to prevail on an equal-protection challenge. Id. at 239 (1976); see also

2922 Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673, 679 (D.C. Cir. 2006)

(“the Supreme Court has barred constitutional disparate impact claims”) (citing Davis). Were it

otherwise, any statute that did not affect all racial groups equally could be rendered

unconstitutional, “‘however lacking in racial motivation or however otherwise rational the

treatment might be.’” Davis, 426 U.S. at 241 (quoting Jefferson v. Hackney, 406 U.S. 535, 548

(1972)).

        In order to show that a race-neutral statute is unconstitutional on equal-protection

grounds, a party must demonstrate that decisionmakers acted with a discriminatory purpose. See

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265

(1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the

Equal Protection Clause.”); see also U.S. v. Johnson, 40 F.3d 436, 439 (D.C. Cir. 1994).

Discriminatory purpose, moreover, requires more than mere awareness of consequences. See

Personnel Adm’r of Massachussets v. Feeney, 442 U.S. 256, 279 (1979). To find a statute

unconstitutional on equal-protection grounds, a court must find that the legislature “selected or

reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group.” Id. In this case, Plaintiffs have neither alleged that



                                                   8
Congress acted with a discriminatory purpose nor offered any evidence of that fact. As a result,

their equal-protection cause of action must be dismissed.

               2. Rational-Basis Review

       Under equal-protection jurisprudence, laws that do not intentionally discriminate against

a protected group are nonetheless subject to rational-basis review. Plaintiffs in this case,

however, fail to even allege that the relevant statutory provisions are not rationally related to a

legitimate government purpose. The Court thus agrees with Defendant that it can dispose of

Plaintiffs’ equal-protection claim without engaging in such review.

       Even if Plaintiffs’ Amended Complaint could be construed as seeking rational-basis

review, the result would be no different. Rational-basis review is a very deferential standard,

imposing a high burden on a plaintiff, so that the legislature may pursue legitimate government

purposes by any rational means. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,

314 (1976). Under the rational-basis standard, an act survives judicial scrutiny “if there is any

reasonably conceivable state of facts that could provide a rational basis” for the statutory

scheme. F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).

       Here, the Merger Act reflects Congress’s judgment that combining the LOC police and

the USCP into a single force would enhance security in and around the Capitol. See H.R. Rep.

No. 110-470, pt. 1, at 2 (2007). By requiring some members of the LOC police to transfer as

civilians, the Act seeks to resolve differences between the two forces’ retirement systems –

protecting the USCP’s interest in maintaining a “young and vigorous law enforcement

department,” while at the same time ensuring that no LOC officer would be forced to retire

without an annuity as a result of the transfer. See Mot. at 22; Merger Act § 2(d)(1). Since statutes

are “accorded a strong presumption of validity” under rational-basis review, Heller, 509 U.S. at

319, and there is clearly a “reasonably conceivable state of facts” that could support this
                                                  9
legislative scheme, the Merger Act would easily survive rational-basis scrutiny. See, e.g.,

Murgia, 427 U.S. at 314-15 (recognizing that maintaining a young and vigorous police force is

legitimate government purpose and that mandatory retirement ages are rational means of

pursuing that end); Fraternal Order of Police Library of Congress Labor Committee v. Library of

Congress, 692 F. Supp. 2d 9, 18-19 (D.D.C. 2010) (holding that age-discrimination challenge to

Merger Act on equal-protection grounds must fail); Rovillard, 691 F. Supp. 2d at 12-14 (holding

that Merger Act’s application of mandatory retirement ages to former LOC police is rationally

related to legitimate state interest).

IV.     Conclusion

        The Court will therefore issue a contemporaneous Order that grants the Motion and

dismisses the case.




                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: September 20, 2011




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