                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 GERALD L. FERREYRA,                                   )
                                                       )
                           Plaintiff,                  )
                                                       )
                    v.                                 )   Civil Case No. 09-1606 (RJL)
                                                       )
 FRATERNAL ORDER OF POLICE                             )
 LEGAL PLAN, INC. et al.,                              )
                                                       )
                           Defendants.                 )

                                   MEMO~UM OPINION
                                   (July l' , 20lO) [#6, #12, #13]

       Plaintiff, Gerald L. Ferreyra ("Ferreyra"), brings this action against Fraternal Order

of Police Legal Plan, Inc. (the "FOP Legal Plan") and Keenan & Associates, Inc.

("Keenan & Associates," and together with the FOP Legal Plan, the "defendants"),

seeking a declaratory judgment, permanent injunction, and reimbursement for defense

costs pursuant to Employment Retirement Income Security Act of 1974 § 1132(a)(l)(B).

Before the Court are the defendants' Motions to Dismiss Counts I and II. For the

following reasons, the defendants' motions are GRANTED.

                                             BACKGROUND

       Plaintiff is a law enforcement officer with the U.S. Park Police in Washington,

D.C. 1st Am. CompI. ("CompI.")          ~    3. On May 29,2009, Ferreyra was involved in an

altercation with a taxi driver. Id.     ~~   lO-l1. Plaintiff was arrested at the scene for simple

assault. Id.   ~   12. On June 12,2009, the U.S. Attorney's Office initiated a criminal
misdemeanor case against Ferreyra in D.C. Superior Court. See id.; United States v.

Ferreyra, No. 2009 CMD 012897 (D.C. Super. ct. filed June 12,2009).1 The criminal

case was dismissed on December 14,2009, for want of prosecution but was reopened on

January 26,2010. On June 1,2010, Ferreyra pled not guilty and asserted his right to trial.

        Ferreyra is a participant of the FOP Legal Defense Plan (the "Plan"), an employee

plan offered by FOP Legal Plan to members of the Fraternal Order of Police that provides

"legal defense of a criminal action or proceeding brought against a Participant, arising

directly out of the Participant's activities in the scope of law enforcement employment."

Compl. ,-r 8 (quoting Plan Brochure, Mar. 6, 2008, at 1-2). Keenan & Associates is the

benefits administrator for the Plan and is responsible for reviewing and approving claims

for benefits. Id. ,-r 5. On July 8, 2009, Ferreyra submitted a claim to Kennan &

Associates for the cost of the legal defense of his criminal case. Id.,-r 13. His claim was

denied. Id. On July 15,2009, Ferreyra appealed the denial of coverage to FOP Legal

Plan, and his claim was denied again on July 21,2009. Id. ,-r 14. This civil action

followed on August 24, 2009.

                                          ANALYSIS

       Defendants move to dismiss Counts I and II pursuant to Fed. R. Civ. P. 12(b)(6).

A 12(b)( 6) motion to dismiss shall be granted if a plaintiff fails "to state a claim upon


       A court may consider documents incorporated into the complaint by reference and
matters of which a court may take judicial notice without converting a motion to dismiss into one
for summary judgment. See Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).

                                               2
which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a

plaintiffs "[fJactual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even

if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

omitted); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (stating that if a court

has determined that a plaintiff has asserted "well-pleaded factual allegations," the court

"should assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief'). Unfortunately for Ferreyra, even taking as true all of the

allegations in his amended complaint, Counts I and II must both be dismissed. How so?

       In Count I, plaintiff asks this Court to issue a determination "that Officer

Ferreyra's actions were authorized and required by his employment, and therefore under

the express terms of the Legal Defense Plan, Officer Ferreyra acted within the scope of

his employment and is entitled to coverage under the Legal Defense Plan." Compl.        ~   18.

Both defendants argue that Ferreyra's request for such a declaratory judgment should be

dismissed because it would interfere with an ongoing state criminal prosecution. I agree.

       "The strictures against federal court interference with state criminal investigations

and prosecutions are well-established." Rockwell Int'l Corp. v. United States, 723 F.

Supp. 176,178 (D.D.C. 1989) (citing Younger v. Harris, 401 U.S. 37,49 (1971)). "[A]

federal court should not enjoin a state criminal prosecution begun prior to the institution

of the federal suit except in very unusual situations, where necessary to prevent


                                              3
immediate irreparable injury." Samuels v. Mackel!, 401 U.S. 66, 69 (1971); see also

Perez v. Ledesma, 401 U.S. 82, 86 n.2 (1971) (citing Samuels for the proposition that

"interference with pending state criminal prosecutions by declaratory judgments is subject

to the same restrictions curbing federal interference by injunction"). In this case, by

asking for a declaratory judgment that his actions during the confrontation with the taxi

driver were authorized and within the scope of his employment, plaintiff is seeking to

have this Court validate and enforce what is likely to be his primary defense in the

ongoing criminal case. The plaintiff has not made a showing of irreparable harm that

would justify federal interference with the state criminal process. Thus, because such a

declaration would constitute prohibited interference with the prior-filed state prosecution,

the Court cannot grant plaintiff the relief that he seeks. Count I, therefore, must be

dismissed.

       In Count II, plaintiff seeks a permanent injunction against the defendants, to enjoin

them from denying him coverage for his legal defense in his criminal case. CompI.,-r 20.

Both defendants respond by pointing out that plaintiff has already acknowledged that he

has obtained defense counsel, rendering his claim for a permanent injunction moot.

Defendants also argue that they are not law firms and, therefore, they cannot, by

definition, deny a plan participant a legal defense. The Court agrees with the defendants.

As plaintiff has acknowledged that he has obtained defense counsel, see CompI. ,-r,-r 14,

22, any remedy that he seeks by injunction is already accomplished. Thus, absent any


                                             4
claim upon which relief may be granted, Count II must also be dismissed.

                                    CONCLUSION

      For all of the foregoing reasons, the Court GRANTS the defendants' Motions To

Dismiss and DISMISSES Counts I and II of the Complaint. Furthermore, the Court

DENIES AS MOOT Keenan & Associates's Motion to Strike Paragraph 15 of the

Plaintiffs Complaint. An order consistent with this decision accompanies this

Memorandum Opinion.




                                               United States District Judge




                                           5
