                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

SONYA OWENS,
         Plaintiff,

         v.
                                               Civil Action No. 08-CV-2029 (AK)
DISTRICT OF COLUMBIA, et al.,
           Defendants.



                                  MEMORANDUM OPINION
        Defendant District of Columbia (“District” or “Defendant”) brought this Motion for
Reconsideration [91] of the Court’s July 13, 2012, Order [88]. Plaintiff Sonya Owens (“Ms.
Owens” or “Plaintiff”) opposed Defendant’s Motion and brought her own Motion for
Reconsideration [95]. This Memorandum Opinion corresponds with the Order [101] filed on
February 14, 2013. For the reasons set forth below, the Defendant’s Motion for Reconsideration
will be granted and the Plaintiff’s Motion for Reconsideration will be denied. As a result of
these rulings, Ms. Owens’s remaining claims will be dismissed and the Court will dismiss the
case with prejudice.


                                        BACKGROUND
   I.         Ms. Owens’s Employment with the Metropolitan Police Department
        The background of Plaintiff’s employment is set forth in detail with citations in the
Court’s Memorandum Opinion dated July 13, 2012 [88]. Thus this is a synopsis of that
background.
        Ms. Sonya Owens was a captain with the District of Columbia Metropolitan Police
Department (“MPD”). In June 2001, the Equal Employment Opportunity Commission
(“EEOC”) interviewed Ms. Owens as a witness while investigating discrimination complaints
from two other MPD officers. In July 2004, the two officers filed a federal discrimination
lawsuit. In November 2004, the MPD learned that Ms. Owens was scheduled as a witness for
the two complainants and she testified in February 2005. Thereafter Ms. Owens alleged that the

                                                -1-
MPD revoked her police official duties, restricted her access to the general public, removed her
duty assignments, and notified her of a proposed suspension for an “overdue correspondence,”
which became effective in February 2005.
         In early March 2005, the MPD Internal Affairs section received a complaint from the
Arlington County Animal Welfare League that involved Ms. Owens and one of her two dogs.
On March 16, 2005, Ms. Owens filed a Petition for Appeal of her suspension with the Office of
Employee Appeals (“OEA”). In April 2005, Ms. Owens was again suspended for twelve days
for being absent without leave for 80 hours during her earlier suspension. (Am. Compl. [12] ¶
58.) As a result, Ms. Owens supplemented her OEA appeal to include the second suspension. In
May 2005, the MPD gave Ms. Owens a notice of termination for her two absences without leave,
the Animal Welfare League complaint, and alleged “criminal activity.” In response, Ms. Owens
requested all documents and records pertaining to the MPD investigation.
   II.      Administrative and Judicial Review
         On August 15, 2005, Ms. Owens and her then counsel attended a scheduled
Administrative Hearing before the Police Trial Board about her termination. The MPD provided
her with two cassette tapes of interviews immediately before the Administrative Hearing and Ms.
Owens requested a continuance to review the contents of the tapes. (Am. Compl. App. 4 Tr. 4:5-
6; 5:6-10 [12].)
         Concurrent with her administrative proceedings, on August 31, 2005, Ms. Owens filed a
complaint in this court, alleging retaliation under 42 U.S.C. § 1981 and various claims under the
D.C. Human Rights Act, D.C. Code § 2-1402.11 and § 2-1402.61. (See Owens v. D.C. (“Owens
I”), No. 05-CV-1729, Compl. [1].) Shortly after Ms. Owens filed her lawsuit, the MPD resumed
the hearing on her suspensions. In October 2005, the MPD, following the Police Trial Board’s
unanimous decision against Ms. Owens, she was told that her employment would be terminated
effective November 2005. (OEA Matter No. 1601-005-06 at 13.) The decision to terminate her
was upheld by the Chief of Police, Charles Ramsey. (Id.) On November 28, 2005, Plaintiff filed
a Petition for Appeal with the OEA based on her termination. On July 14, 2006, an
Administrative Law Judge issued an Initial Decision on the appeal of her suspensions, dismissing
Ms. Owens’s claims. Ms. Owens filed a timely Petition for Review on August 22, 2006.
         In September 2006, the OEA ordered the MPD to provide Ms. Owens with the transcripts
of her suspension hearing. (Am. Compl. [12] ¶ 77.) In October 2006, the OEA conducted a


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hearing on Ms. Owens’s appeal of her termination in which Ms. Owens participated as a witness.
(OEA Initial Decision, Ex. 3 of Def.’s Mot. for Summ. J. [51-3] at 12.) On November 21, 2007,
the OEA Administrative Judge issued an Initial Decision about Ms. Owens’s termination and she
filed a timely Petition for Review on December 26, 2007. (App. 1 to Am. Compl. [12] at 3, 7.)
Thus, at the close of 2007, Ms. Owens had two initial decisions issued by OEA Administrative
Law Judges upholding her two suspensions and her termination. 1
        While the Petition for Review of her termination was pending before the OEA, on April
9, 2008, Ms. Owens filed a Petition for Review with the District of Columbia Court of Appeals
to seek review of the Administrative Law Judge’s decision upholding her termination. The
District of Columbia Court of Appeals dismissed the petition for lack of jurisdiction on May 7,
2008. The Court found that because Ms. Owens had pending petitions for review before the
OEA Board, an appealable final administrative order did not exist.
        On May 12, 2008, Ms. Owens filed a motion to withdraw both of her petitions for review
that were pending before the OEA Board. On July 24, 2008, the OEA granted Ms. Owens’s
motion and dismissed both appeals. In its dismissal, the OEA noted that the Initial Decisions of
the Administrative Law Judges would become final decisions within five days of the issuance of
the OEA’s Order and that Ms. Owens could appeal the OEA final decisions within thirty days in
the District of Columbia Superior Court. (Ex. 1 of Am. Compl. [12] at 25.) According to Ms.
Owens, also on July 24, 2008, the OEA issued its final order stating that its initial decision would
be its final decision. (Ex. 2 of Pl.’s Response Br. [74] at 47-48, 50.) On August 22, 2008, Ms.
Owens appealed to the District of Columbia Court of Appeals on both of the final decisions of
her suspensions and termination. The Court ordered that Ms. Owens had twenty days to show
why the appeal should not be dismissed for having been taken on a non-final and non-appealable
order. (Ex. 2 of Pl.’s Response Br. [74] at 46.) Additionally, the Court ordered Ms. Owens to
show how she was “aggrieved” by the OEA granting her motions to withdraw her petitions with
respect to her suspensions and termination. On September 22, 2008, Ms. Owens submitted a
Response to the Court’s Order explaining that she appealed the OEA’s final decisions. The
District of Columbia Court of Appeals found that Ms. Owens did not respond and dismissed her
cases on September 25, 2008. On October 1, 2008, Ms. Owens filed a motion with the District

1
  In January 2008, the undersigned conducted a jury trial on Ms. Owens’s suspension claims. On January 22, 2008,
the jury rendered a verdict for the Defendants District of Columbia and Mayor Adrian Fenty. (See Owens I,
Judgment on the Verdict for Def. [54], 24 Jan. 2008). No party appealed.

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of Columbia Court of Appeals to reinstate her appeal given that the OEA’s decisions on both
matters were final. (Ex. 2 of Pl.’s Response Br. [74] at 47-49.) The Court of Appeals denied
Ms. Owens’s Motion, finding that Ms. Owens suffered no legal injury after the OEA granted her
motion to dismiss the petitions. (Id. at 56.)
   III.      Present Suit
          On November 25, 2008, Ms. Owens initiated the pending lawsuit against the District and
Mayor Adrian Fenty (Compl. [1]) and filed an amended complaint on March 20, 2009. (Am.
Compl. [12].) The Amended Complaint contained seven counts: Count 1 Unlawful Deprivation
of Civil Rights in Violation of 42 U.S.C. § 1983; Count 2 Unlawful Deprivation and Retaliation
in Violation of the False Claims Act involving Whistleblower Employee Protections; Count 3
Deprivation of Employment Rights and Privileges as Protected under District of Columbia
Comprehensive Merit Personnel Act (CMPA); Count 4 Unlawful Retaliation in Violation of
U.S.C. 42 § 1981; Count 5 Defamation; Count 6 Violation of 18 U.S.C. § 241; and Count 7
Violation of 18 U.S.C. § 242.
          On July 6, 2009, U.S. District Court Judge Ellen Huvelle granted the Defendants’ Motion
to Dismiss as to Counts 2, 6, and 7: Whistleblower protection under the False Claims Act, 18
U.S.C. § 241, and 18 U.S.C. § 242. (Judge Huvelle’s Mem. Opinion, July 6, 2009 [24].) The
trial court found that res judicata based on the Owens I verdict barred Ms. Owens’s claims prior
to her termination, but permitted claims about Ms. Owens’s termination and administrative
appeal. (Id. at 11.)
          On August 13, 2009, the parties consented to the undersigned Magistrate Judge handling
the case for all purposes, including trial. (Consent [36].) On November 8, 2010, the Court
denied the Defendants’ Motion for Summary Judgment. (Judge Kay’s Mem. Order, Nov. 8,
2010 [55].) On June 26, 2012, the Court denied Ms. Owens’s Motion for Summary Judgment
and granted-in-part and denied-in-part the Defendants’ Motion for Summary Judgment. (Judge
Kay’s Mem. Order, June 26, 2012 [78].) In a July 13, 2012, memorandum opinion, the Court
granted the Defendants’ Motion for Summary Judgment as to the claims against Mayor Fenty
and Ms. Owens’s 42 U.S.C. § 1983 claims based on the First Amendment, substantive due
process of the Fifth Amendment, and the Fourteenth Amendment. (Judge Kay’s Mem. Op., July
13, 2012 [88].) The Court denied the Defendants’ Motion for Summary Judgment as to Ms.
Owens’s 42 U.S.C. § 1983 claims for procedural due process under the Fifth Amendment,


                                                -4-
defamation, retaliation under 42 U.S.C. § 1981, and the District of Columbia CMPA. (Id.) The
Court will consider the Motions for Reconsideration filed by both the District of Columbia [91]
and Ms. Owens [95].


                  MOTION TO RECONSIDER: STANDARD AND SCOPE
   I.       Standard of Review
         Courts review Motions for Reconsideration narrowly. Under Fed. R. Civ. P. 59(e), a
Motion for Reconsideration “is not a second opportunity to present argument upon which the
Court has already ruled, nor is it a means to bring before the Court theories or arguments that
could have been advanced earlier.” Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23,
28 (D.D.C. 2001) (internal citations omitted). A court has discretion to grant such a motion
which “need not be granted unless the district court finds that there is an intervening change of
controlling law, the availability of new evidence, or the need to correct clear error or prevent
manifest injustice.” Anyanwutaku v. Moore, 151 F.3d 1053, 1057-1058 (D.D.C. 1998) (internal
quotation marks and citations omitted).
   II.      Scope of Motion to Reconsider
         The Court will entertain Motions for Reconsideration in very limited circumstances. Ms.
Owens’s Motion for Reconsideration [95] included the dismissal of claims against former Mayor
Fenty, the dismissal of her 42 U.S.C. § 1983 claims, and the denial of her motion for summary
judgment. In her Motion for Reconsideration, Ms. Owens failed to advance any novel factual
evidence or changes in the law to support her claims. Rather, she simply reiterated the same
arguments she made in her Summary Judgment Motion. Therefore, the Court denies Ms.
Owens’s Motion for Reconsideration.
         In the District of Columbia’s Motion for Reconsideration [91], the District’s arguments
included the absence of municipal liability, the inapplicability of § 1981 to Ms. Owens’s claim,
the lack of jurisdiction under the CMPA, and the lack of evidence for Ms. Owens’s defamation
claim. While the majority of these arguments did not represent a significant change in
controlling law or the existence of new evidence, the issue of subject-matter jurisdiction can be
raised at any time. Fed. R. Civ. Pro. 12(h)(3). Therefore, the District’s argument as to the
CMPA and the applicability of § 1983 and § 1981 will be treated as valid jurisdictional
challenges that warrant reconsideration.


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        This Court, having reviewed the District’s Motion for Reconsideration, concurs with the
District’s jurisdictional arguments and further concludes that the Court does not have jurisdiction
over the remaining Counts 1, 3, 4, and 5.


                                            DISCUSSION
   I.       The CMPA serves as the exclusive remedy for employment-based conflicts in the
            District of Columbia
            a. Purpose of the CMPA and Coverage of Ms. Owens
        The CMPA provides a remedy for the majority of employment related conflicts that
occur between the District of Columbia and its employees. The CMPA “establish[es] impartial
and comprehensive administrative or negotiated procedures for resolving employee grievances.”
D.C. Code § 1-601.02 (2012). As the District noted in its motion, the CMPA was “plainly
intended…to create a mechanism for addressing virtually every conceivable personnel issue
among the District, its employees, and their unions – with a reviewing role for the courts as a last
resort, not a supplementary role for the courts as an alternative forum.” D.C. v. Thompson, 593
A.2d 621, 634 (D.C. 1991) (internal quotation marks omitted).
        Under the statute, the CMPA applied to Ms. Owens in her position as a MPD captain.
The CMPA applies to all District of Columbia employees unless specifically exempted. D.C.
Code § 1-602.01 (2012), see also Crockett v. D.C. Metro. Police Dep’t., 293 F. Supp. 2d 63
(D.D.C. 2003) (CMPA procedure covered former MPD employee plaintiff). Therefore, as the
District correctly noted, the CMPA created the contours of Ms. Owens’s employment
relationship with the District.
            b. Claims within the CMPA’s Jurisdiction
        The CMPA statutorily covers the majority of conflicts arising out of employment
relationships with the District. CMPA provisions address “(1) employee performance ratings,
including corrective actions when necessary; (2) employee discipline through adverse action
proceedings; and (3) prompt handling of employee grievances.” Stockard v. Moss, 706 A.2d
561, 564 (D.C. 1997) (internal quotation marks and citations omitted); see also Thompson, 593
A.2d at 629. These types of conflicts include disagreements about salary and compensation,
White v. D.C., 852 A.2d 922 (D.C. 2004); defamation, Stockard, 706 A.2d 561, Robinson v.
D.C., 748 A.2d 409 (D.C. 2000), Holman v. Williams, 436 F. Supp. 2d 68 (D.D.C. 2006); breach


                                                -6-
of employment contract, Bowers v. D.C., 2011 WL 2160945 (D.D.C. 2011); and unfair labor
practices, Osekre v. Gage, 698 F. Supp. 2d 209 (D.D.C. 2010). Additionally, 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. Washington v. D.C., 538 F. Supp. 2d 269, 280 n.5 (D.D.C. 2008) (“even though the
plaintiffs dress their defamation claims in constitutional garb, they are effectively
indistinguishable from common-law defamation claims in regards to their coverage under the
remedies of the CMPA for employment disputes.”) Simply presenting a constitutional claim is
insufficient to exempt plaintiffs from complying with the CMPA procedure; “[p]laintiffs
therefore cannot use a constitutional hook to reel their CMPA-precluded claims into this Court.”
McManus v. D.C., 530 F. Supp. 2d 46, 79 (D.D.C. 2007).
       Despite this expansive policy, several types of actions reach beyond the CMPA radius.
In the most egregious instance, the District of Columbia Court of Appeals found that sexual
harassment and retaliation claims extended beyond a personnel issue and provided the plaintiff
with a permissible tort suit. King v. Kidd, 640 A.2d 656, 663 (D.C. 1993). “Public employees
do not lose their common law right to sue for their injuries…[when] neither those injuries nor
their consequences trigger the exclusive provisions of the CMPA.” Id. at 664 (internal quotation
marks and citations omitted). Additionally, the federal court may have jurisdiction when the
plaintiff is entitled to remedies beyond what the administrative system can provide. Washington,
538 F. Supp. 2d at 278. The United States Court of Appeals for the District of Columbia held
that CMPA-covered employees may sue in federal court in circumstances where they raise
federal claims and seek relief “that are beyond the compass of the D.C. administrative/judicial
system,” such as punitive and compensatory damages under the Veterans Reemployment Act.
Bridges v. Kelly, 84 F.3d 470, 471 (D.C. Cir. 1996). Several United States District Court judges
of this circuit have similarly found that the CMPA does not preclude jurisdiction when plaintiffs
seek punitive damages and relief unavailable from the OEA and District of Columbia courts. See
Sharma v. D.C., 791 F. Supp. 2d 207 (D.D.C. 2011) (holding that CMPA does not preempt
claims under the D.C. Whistleblower Protection Act); Washington, 538 F. Supp. 2d at 276
(finding jurisdiction is permitted when administrative remedies are inadequate, meaning “the
agency has expressed a willingness to act, but the relief it will provide through its action will not
be sufficient to right the wrong,” citing Randolph-Sheppard Vendors of Am. v. Weinberger, 795


                                                  -7-
F.2d 90, 107 (D.C. Cir. 1986)); Crockett, 293 F. Supp. 2d 63 (noting that the U.S. District Court
had jurisdiction when the D.C. system could not grant the plaintiff full relief for his federal
claims, specifically, compensatory and punitive damages that the OEA did not have
authorization to award).
            c. Procedural Process under the CMPA
       The CMPA establishes clear procedures for aggrieved employees that include
administrative remedies and supplementary review by the District of Columbia Superior Court.
               1. Exhaustion of Administrative Remedies
       For claims governed by the CMPA, the CMPA procedure must be the first remedy for
District employees. If there is any question as to whether the CMPA applies, the plaintiff “[is]
still required in the first instance to invoke the CMPA’s…procedure because [t]he determination
whether the OEA has jurisdiction is quintessentially a decision for the OEA to make in the first
instance.” McManus, 530 F. Supp. 2d at 78 (internal quotation marks and citations omitted).
While the judicial process may provide more favorable recovery for an employee, the CMPA
must be the first line of relief. As the District of Columbia Court of Appeals stated, “[a]n
exclusive remedy does not lose its exclusivity upon a showing that an alternative remedy might
be more generous.” White, 852 A.2d at 927.
       Under the CMPA, plaintiffs must exhaust their administrative remedies before reaching
the District of Columbia Superior Court for review. “The plaintiffs…should not be allowed to
undermine the administrative process by availing themselves of initial review by the [Office of
Administrative Hearings] and then refusing to participate in subsequent stages of appeal.”
Washington, 538 F. Supp. 2d at 275 (internal citations omitted). Failing to fully exhaust the
complete administrative appeals process can serve as grounds to negate jurisdiction over an
entire case. The District of Columbia Superior Court found that once an employee filed a
lawsuit and “abandoned judicial review of the OEA decision to terminate him, [he] was
precluded from filing a separate legal action challenging his termination.” Lewis v. D.C. Dep’t
of Motor Vehicles, 987 A.2d 1134, 1137 (D.C. 2010). The Superior Court dismissed the
employee’s complaint, finding no jurisdiction because he had “improperly us[ed] the Superior
Court as an ‘alternate forum’ to challenge the agency’s adverse action.” Id. (internal citations
omitted).



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               2. Review by the District of Columbia Superior Court
       Judicial review by the District of Columbia Superior Court is available for all CMPA
claims. As the District of Columbia Court of Appeals stated in Thompson, “[a]n employee may
appeal any adverse action or decision on an employee-initiated grievance to the OEA, with the
right of judicial review in Superior Court.” 593 A.2d at 626.
               3. Federal Jurisdiction over CMPA claims
       The CMPA has presented a complex jurisdictional overlap among administrative
agencies, the District of Columbia Superior Court, and the United States District Court of the
District of Columbia. While the CMPA provides employees with a statutorily designed
grievance process, this process is not limited solely to administrative remedies. The United
States Court of Appeals noted that plaintiffs must do more than simply exhaust their
administrative remedies in order to file in federal court; they must also provide a clear basis for
federal subject matter jurisdiction. Lucas v. United States, 268 F.3d 1089, 1094-1095 (D.C. Cir.
2001). Within the past year, a United States District Court judge noted that “[t]he D.C. Circuit
has not yet resolv[ed] whether th[e] [CMPA] exhaustion requirement is better understood as
jurisdictional or nonjurisdictional in federal court.” Saint-Jean v. D.C., 846 F. Supp. 2d 247, 265
(D.D.C. 2012) (internal citations and quotation marks omitted). In a footnote, the District of
Columbia Court of Appeals stated that the CMPA’s “exclusivity and exhaustion requirements do
not, however, necessarily foreclose a subsequent suit in local or federal court challenging the
adequacy of the process itself.” Johnson v. D.C., 552 F.3d 806, 811 n.2 (D.C. Cir. 2008).
           d. Exhaustion of procedure under the CMPA satisfies constitutional due
               process requirements
       Given the layers of administrative and judicial review it provides, the CMPA satisfies
constitutional due process requirements. The Supreme Court established three factors in
Mathews v. Eldridge to determine if an administrative procedure satisfies due process
requirements. 424 U.S. 319 (1976). They are 1) “the private interest that will be affected,” 2)
“the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards,” and 3) “the
Government’s interest, including the function involved and the fiscal or administrative burdens
that the additional or substitute procedural requirement would entail.” Id. at 335. When


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considering the process granted by the CMPA under the Mathews v. Eldridge test, “[t]he CMPA
procedures satisfy these requirements.” McCormick v. D.C., 2012 WL 5194073, 8 (D.D.C.
2012). Even arguendo if the District did not meticulously follow the CMPA, it is still possible to
satisfy constitutional due process. Courts have found that “a breach of state procedural
requirements is not, in and of itself, a violation of the Due Process Clause.” Payne v. D.C., 808
F. Supp. 2d 164, 174 (D.D.C. 2011) (internal quotes and citations omitted).
   II.      The CMPA precluded federal court jurisdiction for Ms. Owens’s defamation
            claim
         The Comprehensive Merit Personnel Act precluded the Court from having jurisdiction
over Ms. Owens’s defamation claim. The CMPA’s jurisdiction wholly covered this tort claim
and Ms. Owens should have utilized her administrative remedies.
            a. CMPA Coverage
         Courts have repeatedly found defamation to be a claim that lands squarely within the
CMPA’s jurisdiction. Given that the CMPA provided expansive coverage of “virtually every
conceivable personnel issue,” the District of Columbia Court of Appeals found the plaintiff’s
defamation claim deserved CMPA grievance procedures rather than initial judicial review.
Stockard, 706 A.2d at 566. The District of Columbia Court of Appeals reiterated this finding in
Robinson, when Robinson sued because he faced unfounded allegations of sexual harassment
that included complaints and internal memoranda circulating through his workplace. 748 A.2d at
410. Unlike Ms. Owens, the Department of Corrections Operations commander and an
independent fact-finding committee found the allegations meritless and recommended the
plaintiff’s immediate return to his prior workplace, though his return took five months to
effectuate. Id. The court found that his tort claims, including defamation, originated from the
procedure he received during his employment dispute rather than the underlying sexual
harassment claim and dismissed the case for lack of jurisdiction. Id. at 412. See also Holman,
436 F. Supp. 2d 68 (dismissing defamation claim as an employment-related claim falling under
the CMPA’s definition of a grievance).
         Ms. Owens’s defamation claim must be remedied pursuant to the CMPA procedure
because it arose directly from the disciplinary action that resulted in her suspension from her
employment. Ms. Owens based her defamation claim, at least in part, on the publication of the
administrative opinion in her suspension claims. (Ex. 8 of Def.’s Mot. for Summ. J. [72-9].)


                                                -10-
The CMPA mandates OEA publication of administrative decisions, D.C. Code § 606.30(c)
(2012), so publication was in fact one of the procedural safeguards that the CMPA provided Ms.
Owens. The hearing and decision arose solely out of her employment-related claims and
therefore should be addressed under CMPA procedure. The Court must next consider whether
Ms. Owens properly attempted to remedy her defamation claim under the CMPA.
              b. Ms. Owens did not exhaust her CMPA remedies for her defamation claim
           Ms. Owens’s defamation claim did not arise until she filed her second federal lawsuit. 2
Therefore, she never attempted to remedy this claim through the CMPA-established procedure.
Given that defamation is a claim within the CMPA’s reach, Ms. Owens needed to first exhaust
her administrative remedies on the defamation claim for this Court to appropriately have
jurisdiction over the claim. Therefore, the Court will grant the Defendant’s Motion for
Reconsideration with regard to Ms. Owens’s defamation count and dismiss this claim for failure
to exhaust administrative remedies under the CMPA.
    III.      The CMPA precluded federal court jurisdiction for Ms. Owens’s § 1983 due
              process claim
           Ms. Owens’s § 1983 due process claim arose from an employment dispute under the
CMPA. Ms. Owens elected to withdraw her administrative appeals, thereby precluding the
Court’s jurisdiction. Although she did not fully exhaust her administrative remedies, the District
satisfactorily fulfilled her constitutional due process rights through the procedure she received.
              a. The CMPA covered Ms. Owens’s § 1983 due process claim
           Ms. Owens grounded her due process claim in the process she received during the
termination of her employment. Although she presented it as a constitutional claim, this claim
arose within the scope of an employment dispute given that it protested the treatment she
received, culminating in her termination and its appeal. Although the CMPA procedure did not
in fact grant the relief she sought, Ms. Owens failed to demonstrate that the District of Columbia
administrative or judicial systems were incapable of granting her sufficient relief nor did she
provide evidence of the absence of procedural due process. Additionally, she provided no
2
  Assuming arguendo that Ms. Owens had defamation claims arising from the administrative proceeding reviewing
her termination, the injury would have occurred during the administrative process, including the hearing in October
2006 and the OEA’s initial decision, issued on November 21, 2007. Ms. Owens filed this lawsuit pleading
defamation in this Court on November 25, 2008. Given that the District of Columbia statute of limitations for
defamation is one year, D.C. CODE § 12-301(4) (2001), Ms. Owens would have been statutorily barred from a
defamation claim. Additionally, defamation is a state law claim over which this Court would only have pendent
jurisdiction premised on the existence of other federal claims.

                                                       -11-
evidence that her claims were grounded in specific federal law outside of § 1983 and § 1981 in
order to exempt it from the CMPA procedure. Accordingly, she failed to exhaust her CMPA
remedies before seeking judicial review.
           b. Ms. Owens withdrew her claims from the CMPA administrative procedure,
               thereby precluding the Court’s jurisdiction
       Because Ms. Owens withdrew from the CMPA procedure, she waived the Court’s ability
to review her claim. As the District of Columbia Court of Appeals and United States District
Court have stated, abandoning the administrative procedure and seeking judicial review as an
alternative forum precludes the reviewing ability of the court. See Washington, 538 F. Supp. 2d
269; Lewis, 987 A.2d 1134. While the OEA took an inordinate amount of time to reach its
decisions in Ms. Owens’s case, she cannot elect to abandon the statutory procedure to seek relief
in a more favorable forum. Given her unilateral abandonment of the CMPA by her withdrawal
of her administrative appeal, this Court lacks subject matter jurisdiction to review Ms. Owens’s §
1983 claim.
           c. Although Ms. Owens did not exhaust her CMPA remedies of administrative
               process and review by the District of Columbia courts, the District fully
               satisfied the requirements of constitutional due process
       This Court finds as a matter of law that Ms. Owens did not fully exhaust her
administrative remedies as prescribed by the CMPA’s statutory procedures. Despite her failure
to exhaust all available CMPA remedies, the District still provided Ms. Owens with procedure
sufficient to fulfill constitutional due process requirements.
       As noted above, while pursuing her administrative remedies, Ms. Owens initiated several
appeals and received multiple final decisions on her suspensions and termination. Ms. Owens
initially attended a MPD Police Trial Board hearing with her counsel and received a subsequent
review of the Trial Board’s decision by the Chief of Police. She then appealed the decisions to
the OEA, where she received independent reviews of her suspensions and her termination by
Administrative Law Judges who upheld the suspensions and the termination. Plaintiff appealed
both ALJ decisions for review by the OEA Board, but on May 12, 2008, of her own volition, she
filed a motion to withdraw both of her pending appeals. The CMPA also afforded Ms. Owens
the opportunity to seek judicial review by the District of Columbia Superior Court with
subsequent appeal to the District of Columbia Court of Appeals. Instead of following the review


                                                 -12-
process of the CMPA, Plaintiff elected to ignore taking her case to the DC Superior Court. She
instead filed her claims directly in the DC Court of Appeals. The DC Court of Appeals denied
her claims because she had failed to exhaust her administrative remedies and suggested she
complete the exhaustion process. Plaintiff failed to respond to the Court’s show cause order and
her claims were dismissed. Ms. Owens could have sought further judicial review in the DC
Superior Court and then appeal that court’s decision to the DC Court of Appeals, but she again
elected not to pursue that remedy.
       Thus this Court must now review the administrative remedies she did pursue and
ascertain whether they met the standards of the constitutional due process factors of Mathews.
From the dates of her suspensions and her termination until the filing of this law suit, Ms. Owens
took advantage of multiple levels of procedural due process and would have received several
more had she not withdrawn from the appeals process by her own volition. She took advantage
of procedural due process at a) the MPD level, with the Police Trial Board and subsequent
review by the Chief of Police, b) the two OEA administrative judge reviews of her suspensions
and termination, and c) OEA Board review. However, instead of proceeding through the
administrative process, Ms. Owens elected to withdraw her appeal to the OEA Board and
declined to further appeal to the DC Superior Court. These elective actions by Ms. Owens
ultimately precluded the ability of the DC Court of Appeals to review her case on its full merits.
       Through the appeals that Ms. Owens did elect to take, however, the District satisfied the
requisite level of constitutional procedural due process under the Mathews v. Eldridge test. As to
the first factor, Ms. Owens faced deprivation of her property interest in her job. She accordingly
received several levels of administrative and judicial review to justify the termination, including
full decisions by the MPD Police Trial Board, the Chief of Police, and two ALJ determinations,
and partial review by the DC Court of Appeals. Second, the CMPA provided several levels of
procedural safeguards, including administrative and judicial review. In addition to
administrative review, “[a]lmost by definition, judicial review satisfies the second Matthew’s
[sic] factor.” McCormick, 2012 WL at 8. Ms. Owens received both agency and judicial review,
which supports the presumption that her constitutional due process was satisfied. Lastly, under
the third factor, it would be overly burdensome for the District to develop a scheme to provide
greater process than two levels of administrative review and two levels of judicial review in
addition to the two levels of review within the MPD. While a federal court could review this


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claim on a constitutional basis, it would burden the federal system to review decisions that have
already been adjudicated multiple times at the administrative and state court levels with
consistent outcomes. Therefore, based on the administrative and judicial remedies in which Ms.
Owens elected to partake, the CMPA satisfied constitutional due process requirements and Ms.
Owens cannot have a successful claim under § 1983 for procedural due process violations.
Accordingly, her § 1983 claim is dismissed.
    IV.      The CMPA and the lack of a private right to action under § 1981 precluded Ms.
             Owens’s retaliation claim under 42 U.S.C. § 1981
          Similar to Ms. Owens’s § 1983 claim, the Court lacks jurisdiction over Ms. Owens’s
§ 1981 retaliation claim because it arose out of her employment, she chose to withdraw her
administrative appeal, and the District provided her with sufficient due process. Alternatively,
even if Ms. Owens had a retaliation claim and did not receive adequate constitutional due
process, § 1981 does not provide a private right of action, therefore preventing the Court from
granting Ms. Owens relief.
             a. The CMPA precludes federal court jurisdiction over Ms. Owens’s § 1981
                 claim
          Parallel with the analysis for Ms. Owens’s § 1983 claim, the Court lacks jurisdiction over
Ms. Owens’s § 1981 claim. First, this claim arose solely out of her employment, given that Ms.
Owens based her § 1981 claim on the procedure she received during her termination hearing.
(Am. Compl. [12] ¶¶ 134-135.) In her Amended Complaint, she stated that the District did not
notify her about the administrative hearing and that the District “deliberately created false
charges.” 3 (Id.) Similar to her § 1983 claim, Ms. Owens’s § 1981 claim arose out of the
procedure, or lack thereof, she received during her termination, therefore making it an
employment dispute that must be remedied exclusively under the CMPA. Second, like her §
1983 claim, Ms. Owens’s withdrawal from the administrative process demonstrated that she
failed to exhaust her administrative remedies, thereby precluding the Court from having
jurisdiction. Finally, even though she did not exhaust all of her CMPA remedies, the levels of



3
  Ms. Owens faced a number of serious charges that were adjudicated in the OEA Administrative Judge’s Initial
Decision on November 21, 2007. These charges included: “fraud in securing appointment or falsification of official
reports and records,” “willfully and knowingly making an untruthful statement,” “willfully disobeying orders or
insubordination,” and “conduct unbecoming an officer.” Ex. 3 of Pls.’ Mot. for Summ. J. [51-3] at 4-6.

                                                       -14-
review that she did receive serve as evidence that the District satisfied constitutional due process
requirements. Therefore, Ms. Owens’s § 1981 claim will be dismissed.
            b. Ms. Owens lacks a claim under § 1981 because the statute does not provide
                for a private right of action
        Even if the CMPA did not prevent the Court from having jurisdiction over Ms. Owens’s
§ 1981 claim, Ms. Owens’s claim will still be dismissed. Given that 42 U.S.C. § 1981 created a
right without a remedy, Ms. Owens lacked a viable claim for retaliation under this statute. The
District argued that Ms. Owens’s claim should be dismissed based on Ms. Owens’s failure to
demonstrate municipal liability and that appointment rather than contract governed her position
with the MPD. (Memo. Supporting Def. Mot. for Reconsideration [91] at 3-6.) More basic than
either of these issues, however, is whether 42 U.S.C. § 1981 created a private right of action
enabling Ms. Owens to sue state actors.
        While 42 U.S.C. § 1981 does not explicitly create a remedy against state actors, the
District of Columbia Circuit has not decided whether the statute implies a remedy. See Sledge v.
D.C., 2012 U.S. Dist. Lexis 87812 (D.D.C. 2012); Moonblatt v. D.C., 572 F. Supp. 2d 15
(D.D.C. 2008). In 1989, the Supreme Court held that § 1981 does not, in itself, provide a
remedy against state actors. Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 735 (1989). Rather, 42
U.S.C. § 1983 provided the exclusive federal remedy for individuals to effectuate their civil
rights claims against state actors. Id. at 731. The Civil Rights Act of 1991 amended § 1981,
adding language about contracts and stating “[t]he rights protected by this section are protected
against impairment by nongovernmental discrimination and impairment under color of State
law.” Civil Rights Act of 1991, 102 P.L. 166, 105 Stat. 1071 (1991). It is unclear from the
statutory language whether the Civil Rights Act of 1991 abrogated Jett’s holding to create a
private cause of action under § 1981 or if it left Jett’s holding intact.
        Of the seven circuits that considered this question, six concluded that Congress did not
create an implied cause of action under § 1981. McGovern v. City of Phila., 554 F.3d 114, 120-
121 (3rd Cir. 2009) (finding no private right against a state actor under § 1981 because
“Congress neither explicitly created a remedy against state actors under § 1981(c), nor expressed
its intent to overrule Jett”); Arendale v. City of Memphis, 519 F.3d 587, 598 (6th Cir. 2008)
(“Having rejected Plaintiff's argument that § 1981(c) overrules Jett, this Court has no choice but
to follow Jett as binding authority”); Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir.


                                                  -15-
2006) (“We therefore conclude that even after the 1991 amendments to § 1981, damages claims
against state actors for § 1981 violations must be brought under § 1983”); Oden v. Oktibbeha
Cnty., 246 F.3d 458, 464 (5th Cir. 2001) (“Because Congress neither expressed its intent to
overrule Jett, nor explicitly created a remedy against state actors in addition to § 1983, we are
not willing to deviate from the Supreme Court's analysis of § 1981 in Jett”); Butts v. Cnty. of
Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (“Congress provided no indication that it
contemplated creating a cause of action against state actors outside of § 1983…Accordingly, we
conclude Jett still governs this case”); and Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 n.1 (4th
Cir. 1995) (“We do not believe that this aspect of Jett was affected by the Civil Rights Act of
1991”); contra Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th
Cir. 1996) (“[W]e conclude that the amended 42 U.S.C. § 1981 contains an implied cause of
action against state actors, thereby overturning Jett's holding that 42 U.S.C. § 1983 provides the
exclusive federal remedy against state actors for the violation of rights under 42 U.S.C. § 1981.”)
       Based on the number of circuits in agreement, the Court declines to find that the Civil
Rights Act of 1991 overturned the holding in Jett and created a private cause of action against
state actors under § 1981. Without a private right of action, § 1981 creates a right without a
remedy for Ms. Owens. Accordingly, the Court will dismiss Ms. Owens’s § 1981 claim.


                                         CONCLUSION
       The Court denies Ms. Owens’s Motion for Reconsidering given that she does not present
novel issues of law or fact. The Court grants the District’s Motion for Reconsideration and
accordingly dismisses the Plaintiff’s remaining claims under Counts 1, 3, 4, and 5 for
jurisdictional reasons. Therefore, with no claims remaining, the Court dismisses the case with
prejudice.




DATE:_2/14/2013___                                                   /s/
                                                       ALAN KAY
                                                       UNITED STATES MAGISTRATE JUDGE




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