                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


   FRATERNAL ORDER OF POLICE
   LIBRARY OF CONGRESS LABOR
   COMMITTEE,

                            Plaintiff,                       Civil Action 08-01139 (HHK)
                       v.

   LIBRARY OF CONGRESS, et al.,

                            Defendants.


                            MEMORANDUM OPINION AND ORDER

       On its on behalf and on behalf of its members, the Fraternal Order of Police Library of

Congress Labor Committee (“FOP”) brings this action against the Library of Congress, James H.

Billington in his official capacity as Librarian of Congress, the United States Capitol Police, and

the United States Capitol Police Board (collectively “defendants”). The FOP alleges race

discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e, and the U.S. Constitution, age discrimination in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 633a(a), and the U.S. Constitution, and other claims

described below. This action arises from the merger of the Library of Congress Police Force

(“Library Police”) and the United States Capitol Police (“Capitol Police”). Pursuant to the

federal statute merging the two forces, officers of the Library Police over a certain age are

ineligible to become members, rather than civilian employees, of the Capitol Police.

       Before the Court are defendants’ “Motion to Dismiss and for a More Definite Statement”

[#24], which addresses several of the FOP’s claims, and motion for summary judgment [#37],

which seeks judgment as to the claims the motion to dismiss does not address. Upon
consideration of the motions, the opposition thereto, and the record of this case, the Court

concludes that the motion to dismiss should be granted in part and denied in part, the motion for

summary judgment should be granted, and the motion for a more definite statement should be

granted.

                                        I. BACKGROUND

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

Police Merger Implementation Act of 2007” (“Merger Act”). Pub. L. No. 110-178, 121 Stat.

2546 (2008). The Merger Act required transfer of all Library Police employees to the Capitol

Police. Id. § 2(a), 121 Stat. at 2546. Officers of the Library Police “shall become either a

member or civilian employee of the Capitol Police.” Id. § 2(a)(1). To be eligible to become a

Capitol Police officer rather than a civilian employee, a Library Police officer must be “entitled

to an annuity for immediate retirement” before turning sixty years old, id. § 2(b)(1)(A)(i); in

other words, the officer must be able to attain twenty years of service before reaching age sixty,

see id.; 5 U.S.C. §§ 8336(b), 8412(b). In addition, an officer must successfully complete training

and meet qualifications specified by the Chief of the Capitol Police (“Chief” or “Chief of

Police”). Merger Act § 2(b)(1)(A)(ii), (iii).

       The Library Police do not have a mandatory retirement age, but a longstanding statutory

provision mandates that all members of the Capitol Police “be separated from the service” upon

reaching age fifty-seven with a possibility of extension to age sixty. 5 U.S.C. § 8335(c); see also

Riggin v. Office of Senate Fair Employment Practices, 61 F.3d 1563 (Fed. Cir. 1995) (describing

the history of mandatory retirement for federal law enforcement officers and noting that the

current provision regarding Capitol Police officers was enacted in 1994 (citing Pub. L. No. 103-


                                                 2
283, § 307, 108 Stat. 1423, 1441-42 (1994))). A Library Police officer who becomes a civilian

employee, rather than an officer, of the Capitol Police may continue to serve past the mandatory

retirement age if he is not eligible for a retirement annuity upon reaching that age. Merger Act §

2(b)(2), 121 Stat. at 2547.

       On June 30, 2008, the FOP—the bargaining unit for the Library Police—filed this suit,

and on November 17, 2008, it filed an amended complaint. The amended complaint, which the

Court finds notably lacking in organization, contains a variety of allegations in support of claims

of discrimination. The Court attempts here to summarize its contents as coherently as possible.

       The FOP alleges that eighty-seven percent of Library Police officers are African-

American, and fifty-three percent of “the supervisory rank” of the Library Police are African-

American. Am. Compl. ¶ 4. Seventy-five percent of Library Police officers are over age 40. In

the Capitol Police force, twenty-nine percent of officers and sixteen percent of members of the

“supervisory rank” are African-American. Id. ¶ 7.

       The FOP alleges that over twenty of its members have been denied the opportunity to

attend training that is a prerequisite, pursuant to the Merger Act, of transfer to an officer position

with the Capitol Police.1 According to the FOP, Library Police officers over the age of fifty-

seven were not permitted to attend this training, and this denial was “based on race and age.” Id.

¶¶ 17-18.2


       1
              The amended complaint refers elsewhere to discriminatory impact on “over 20
African American FOP Officers and over 20 FOP Officers [over] the age of forty” without
making clear whether it means to indicate that forty officers total faced discrimination or whether
more than twenty officers were both African-American and over age forty. Compl. ¶ 20.
       2
              The FOP also alleges that the Merger Act has “discriminatory effects” on Library
Police because it prohibits them from working as law enforcement officers beyond retirement age

                                                  3
       The amended complaint also includes an allegation that defendants “have denied all

opportunity for promotion” to Library Police officers, which “preclude[s] those . . . officers

accepted into the ranks of [the Capitol Police] from outranking similarly situated [Capitol Police]

officers.” Id. ¶ 14.

       Although the amended complaint appears to allege only one claim under Title VII and

one under the ADEA, the Court adopts the parties’ understanding of the claims it intends to set

forth. Therefore, the Court assumes the FOP alleges that (1) the Merger Act discriminates on the

basis of race in violation of Title VII; (2) the Merger Act, on its face and as applied, is racially

discriminatory in violation of the U.S. Constitution; (3) the Merger Act discriminates on the basis

of age in violation of the ADEA; (4) the Merger Act discriminates on the basis of age in violation

of the U.S. Constitution; (5) the Merger Act’s provision giving the Chief of the Capitol Police

“unreviewable discretion” to determine whether a Library Police officer may become a Capitol

Police officer is “arbitrary and capricious”; and (6) the FOP has a cause of action based on the

denial of promotions to Library Police officers.

                                     II. LEGAL STANDARD

A.     Rule 12(b)(6) Dismissal

       Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a

complaint, or any portion of it, for failure to state a claim upon which relief may be granted. Fed.

R. Civ. P. 12(b)(6). Rule 8 of the Federal Rules of Civil Procedure requires that a complaint

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”



and thereby prevents officers who will retire as civilian employees from being permitted to carry
a firearm under District of Columbia law. Id. ¶ 11.

                                                   4
Fed. R. Civ. P. 8(a)(2). The United States Supreme Court has explained that “the pleading

standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

do.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)) (internal citation omitted). A court considering a motion to dismiss

pursuant to Rule 12(b)(6) must assume that all factual allegations in the complaint are true, even

if they are doubtful. Twombly, 550 U.S. at 555.

B.     Summary Judgment

       Summary judgment may be granted only where “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2); see also Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one

that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S.

242, 248 (1986). A genuine issue is one where the “evidence is such that a reasonable jury could

return a verdict for the nonmoving party,” as opposed to evidence that “is so one-sided that one

party must prevail as a matter of law.” Id. at 248, 252. A court considering a motion for

summary judgment must draw all “justifiable inferences” from the evidence in favor of the

nonmovant. Id. at 255. But the non-moving party’s opposition must consist of more than mere

unsupported allegations or denials and must be supported by affidavits or other competent

evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P.

56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).


                                                  5
                                          III. ANALYSIS

       Defendants have filed a motion to dismiss as well as a motion for summary judgment.

Together, these motions seek dismissal of every claim the parties identify as contained in the

FOP’s amended complaint except for a claim regarding the denial of promotions, as to which

defendants seek a more definite statement. The Court first considers defendants’ argument that

the FOP lacks standing to bring this suit, then addresses the viability of each claim in turn, and

finally turns to defendants’ motion for a more definite statement.

A.     The FOP Has Standing to Bring This Suit on Behalf of its Members.

       Defendants make three arguments in their motion to dismiss contesting the FOP’s

standing to bring several claims in this suit: (1) the FOP has not established associational

standing; (2) the injuries alleged are speculative; and (3) the FOP’s claims are not ripe. Each

argument has as its basic premise that the FOP has not sufficiently alleged injury to its members.

Each fails to persuade the Court that the FOP lacks standing.

       1.      The FOP has sufficiently alleged facts to support associational standing.

       Associational standing rules are well established. To bring claims on behalf of its

members, an association must show that “(1) at least one of its members would have standing to

sue in [her] own right, (2) the interests the association seeks to protect are germane to its

purpose, and (3) neither the claim asserted nor the relief requested requires that an individual

member of the association participate in the lawsuit.” Sierra Club v. E.P.A., 292 F.3d 895, 898

(D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 342-43

(1977)). To fulfill the first prong of this test, a member of the association must satisfy three

elements constituting the “irreducible constitutional minimum of standing” mandated by Article


                                                  6
III: “(1) injury-in-fact, (2) causation, and (3) redressability.” Id. (quoting and citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal quotation mark omitted).

       Defendants contest only the FOP’s ability to satisfy the injury-in-fact requirement in order

to fulfill the first prong of the associational standing test. They contend that because “the

amended complaint does not identify a single member who suffered [the] alleged injuries, or

include an affidavit or other specific statement corroborating those claims,” the FOP has failed to

demonstrate that it may bring claims on behalf of its members. Defs.’ Mot. to Dismiss at 11. In

response, the FOP asserts that “[a]lthough Defendant argues that Plaintiff has not identified any

specific members, Defendant has likewise cited no law requiring the identification of particular

members in order to establish associational standing.” Pl.’s Opp’n to Def.’s Mot to Dismiss

(“Pl.’s Opp’n”) at 12-13.

       Defendants’ argument fails. Their suggestion that the FOP is obligated to present

evidence in support of the allegations in its complaint in response to a motion to dismiss is not

supported by caselaw. As the D.C. Circuit has explained, the U.S. Supreme Court has made

clear that “the burden of production a plaintiff must bear in order to show it has standing to

invoke the jurisdiction of the district court varies with the procedural context of the case.” Sierra

Club, 292 F.3d at 898. “At the pleading stage”—in other words, when a plaintiff is opposing a

motion to dismiss—“general factual allegations of injury resulting from the defendant’s conduct

may suffice . . . [because] the court ‘presum[es] that general allegations embrace those specific

facts that are necessary to support the claim.’” Id. at 898-99 (quoting Defenders of Wildlife, 540

U.S. at 561) (second alteration in original). Only when a case has proceeded to the summary




                                                   7
judgment stage must a plaintiff cease to rely on allegations and “‘set forth’ by affidavit[s] or

other evidence ‘specific facts.’” Id. (quoting Defenders of Wildlife, 540 U.S. at 561).

       As to this issue, defendants seek dismissal rather than summary judgment. And although

the FOP’s amended complaint may be subject to other attacks, it alleges that some members of

the FOP will not be permitted to become officers of the Capitol Police. It states that more than

twenty Library officers over age fifty-seven have been disallowed from attending a Capitol Police

training program and will not be transferred to the Capitol Police as officers. Am. Compl. ¶¶ 17-

18.3 Therefore, the Court will not conclude on this ground that the FOP lacks associational

standing.

       2.      The injury alleged is not too speculative to support standing.

       Next, defendants argue that any injury the FOP’s members have alleged is speculative

and therefore insufficient to satisfy the “injury-in-fact” requirement for standing to bring most of

the FOP’s claims. Defendants contend that because transfer of Library Police officers to the

Capitol Police was incomplete at the time the FOP filed its case and the parties submitted their

briefing on the motion to dismiss to the Court, “no officer had suffered an injury.” Defs.’ Mot. to

Dismiss at 12-13. The FOP responds that its “members 57 and over have been denied the

opportunity to participate in the [Capitol Police]’s Training Academy.” Pl.’s Opp’n at 14.

       The Court cannot agree with defendants. It is well established that, for standing purposes,

the alleged injury must be “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Defenders of

Wildlife, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). But these



       3
               Defendants do not suggest that loss of a position as a law enforcement officer
does not constitute injury.

                                                  8
requirements do not mean, as defendants suggest, that the injury must have already occurred. By

statute, certain Library Police officers will be denied positions as Capitol Police officers.

According to the FOP’s amended complaint, some older officers had already been alerted by the

time of filing that they would not receive training necessary for transfer, indicating that the Chief

of Police intends to comply with the relevant provision of the Merger Act.4 This situation is not

analogous to those in which the Supreme Court has indicated that an alleged injury is so

speculative that it might not occur at all. See, e.g., Defenders of Wildlife, 504 U.S. at 564

(concluding that the stated intentions of individuals to visit a particular location that is home to

endangered wildlife, without concrete plans for such a trip, “do not support a finding of the

‘actual or imminent’ injury that our cases require”); Whitmore, 495 U.S. at 156-57 (concluding

that injury that would not arise unless the petitioner was granted habeas relief, retried for a crime

of which he had been convicted, and sentenced to death was “too speculative to invoke the

jurisdiction of an Art. III court”). Because the injury of being disallowed to become a Capitol

Police officer is “actual or imminent,” the Court will not dismiss any of the FOP’s claims on this

ground.


       4
                Defendants’ argument seems to rest in part on their assumption that the alleged
injury is discrimination that will occur when the Chief of Police makes decisions as to who may
become a Capitol Police officer. The Court believes defendants have misread the FOP’s
amended complaint. The FOP alleges that the Merger Act itself, not the Chief’s decisions, is the
source of the injury. See Am. Compl. ¶ 17 (alleging that “race and/or age discrimination has
already influenced” the decisions left to the Chief). Insofar as defendants’ understanding of the
amended complaint is also accurate, the Court agrees that injury arising from discriminatory
decisions the FOP predicts the Chief will make are the type of conjectural injury that does not
suffice to support standing. See Worth v. Jackson, 451 F.3d 854, 860 (D.C. Cir. 2006) (holding
that where a plaintiff “challenge[d] no statute, regulation, or written policy” regarding allegedly
discriminatory employment decisions but instead was guessing how an agency would make
hiring decisions in the future, the possibility of injury was “too remote and attenuated to
establish” standing (quoting Branton v. FCC, 993 F.2d 906, 909 (D.C. Cir. 1993))). Therefore,
only claims challenging the Merger Act itself may go forward.

                                                  9
       3.      The FOP’s claims are ripe.

       Third, defendants make the related argument that the FOP’s claims are not ripe. They

contend that because those claims “hinge upon future events,” they are “not yet fit for judicial

review.” Defs.’ Mot. to Dismiss at 17. Defendants rely extensively on Worth v. Jackson, 451

F.3d 854 (D.C. Cir. 2006). The FOP does not reply directly to this argument, but because it is so

closely connected to the issue of speculative injury, the Court assumes the FOP’s assertions as to

that question apply here.

       As stated in Worth, the Supreme Court “has repeatedly held that ‘[a] claim is not ripe for

adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed

may not occur at all.’” Worth, 451 F.3d at 861 (quoting Texas v. United States, 523 U.S. 296,

300 (1998)) (alteration in original). As explained above, there is essentially no question that, as

mandated by the Merger Act’s terms, Library Police officers above a certain age and without

requisite years of service will not become Capitol Police officers. The motivations behind the

statute as well as its effect on Library Police officers can already be known. This is not an

“abstract disagreement” unsuitable for judicial review. Id. (quoting Abbott Labs. v. Gardner, 387

U.S. 136, 148-49 (1967)). Therefore, the Court will not dismiss any of FOP’s claims on ripeness

grounds.

B.     The FOP’s Title VII Claim Fails as to Defendants the Capitol Police and Capitol
       Police Board but Survives as to Defendants the Library of Congress and Librarian
       of Congress.

       Defendants make two arguments for dismissal of the FOP’s statutory claims. Because, as

explained below, the Court dismisses the FOP’s ADEA claim on other grounds, the Court

resolves these issues only as they relate to the FOP’s Title VII claim.




                                                 10
       1.      Library of Congress employees may not bring Title VII claims against the
               Capitol Police or Capitol Police Board.

       Defendants argue that, based on sovereign immunity, the Court lacks subject matter

jurisdiction over Title VII claims brought by employees of the Library of Congress against the

Capitol Police and the Police Board. Specifically, defendants assert that the Congressional

Accountability Act (“CAA”), 2 U.S.C. § 1301 et seq., waives sovereign immunity for purposes

of certain Title VII claims against the Capitol Police only for “covered employees,” a category

that does not include Library employees. Defs.’ Mot. to Dismiss at 20 (citing 2 U.S.C. §

1301(3)). The FOP does not contest this argument and has therefore conceded the point. See

Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“It is understood in this Circuit that

when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments

raised by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997); Stephenson v. Cox,

223 F. Supp. 2d 119, 121 (D.D.C. 2002))). Furthermore, defendants are correct that the CAA

creates jurisdiction in federal court for claims brought pursuant to, inter alia, Title VII by “a

covered employee,” 2 U.S.C. §§ 1302, 1408, and the definition of “covered employee” does not

include employees of the Library of Congress, id. § 1301(3). Therefore, the Court shall dismiss

the Title VII claim against the Capitol Police and Capitol Police Board.

       2.      The Title VII claim against the Library and Librarian of Congress is not
               barred for failure to exhaust administrative remedies.

       Defendants argue that the FOP’s Title VII claim against the Library and Librarian of

Congress must also fail because, although Library Police may bring such claims in federal court,

the FOP has failed to properly exhaust administrative remedies as required before doing so.

Defendants note that the FOP filed its complaint in this Court on June 30, 2008 and its amended

                                                  11
complaint on November 17, 2008. They argue the FOP therefore failed to comply with the

statutory provision permitting plaintiffs to file Title VII claims in federal court only after 180

days have passed following the filing of a charge with the Equal Employment Opportunity

Commission (“EEOC”), which in this case occurred on May 30, 2008, or within ninety days of

receiving a decision from the EEOC, which in this case occurred on August 5, 2008.

       The FOP responds that the time limitations in Title VII regarding the exhaustion of

administrative remedies are not jurisdictional and so are subject to equitable considerations, such

as equitable tolling. The FOP further argues that the cases defendants cite in support of their

position “involve parties that filed suit after the ninety[-]day time line,” whereas here, the FOP

filed this action before the ninety-day deadline had passed. Pl.’s Opp’n at 17.

       Although defendants are correct that the FOP did not comply precisely with Title VII’s

requirements, the defect has been cured and the claim can go forward. The basic rules are not in

dispute: Title VII permits an employee of the Library of Congress to file an action in federal

court either “[w]ithin 90 days of receipt of notice of final action” resulting from the

administrative process or “after one hundred and eighty days from the filing of the initial charge

with the . . . [EEOC].” 42 U.S.C. § 2000e-16(a), (c). The underlying facts are also uncontested:

the FOP filed a charge with the appropriate EEOC office on May 30, 2008; the FOP filed a

complaint in this Court on June 30, 2008; and the EEOC office dismissed the charge before it on

August 5, 2008. It is clear, therefore, that the FOP’s June 30 complaint, filed in this Court, was

premature because on that date there had been no final administrative action and fewer than 180

days had passed since the FOP filed with the EEOC office. See id. § 2000e-16(c); see also Jones

v. Ashcroft, 321 F. Supp. 2d 1, 11-12 (D.D.C. 2004) (dismissing Title VII claim of federal

employee for failure to wait 180 days from the date of filing an administrative complaint where

                                                  12
the EEOC had not issued a final decision). But the D.C. Circuit has held that “[r]eciept of a

right-to-sue notice during the pendency of the Title VII action cures the defect caused by the

failure to receive a right-to-sue notice before filing a Title VII claim in federal court.” Williams

v. Wash. Metro. Area Transit Auth., 721 F.2d 1412, 1418 n.12 (1983) (citations omitted). This

case was still pending when the EEOC issued a decision on August 5, 2008, which sustained the

FOP’s right to sue in federal court. See Defs.’ Mot. to Dismiss, Ex. 1 (EEOC Decision) at 11

(explaining the right to sue within ninety days of receipt of the opinion). Therefore, the Court

will not dismiss the FOP’s Title VII claims against the Library and Librarian of Congress on this

ground.

C.     The FOP’s Constitutional Challenge to the Merger Act as Racially Discriminatory
       on its Face Must Fail, but its As-Applied Challenge May Proceed.

       In their motion for summary judgment, defendants argue that the Merger Act “simply

does not discriminate against African Americans ‘on its face’” because it “contains no language

that conditions transfer [to the Capitol Police] or any other benefit upon an officer’s race.”

Defs.’ Mot. for Summ. J. at 7. The FOP has filed no opposition to the summary judgment

motion,5 thereby allowing the Court to treat the arguments therein as conceded. LCvR 7(b);

Steinhorst Assocs. v. Preston, 572 F. Supp. 2d 112, 125 n.14 (D.D.C. 2008) (citing Buggs v.

Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003)). Furthermore, the Supreme Court has

instructed that facial challenges to statutes on constitutional grounds “are disfavored.” Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (U.S. 2008). For these




       5
               The deadline for filing such opposition, which, pursuant to the eleven-day time
limit set in LCvR 7, fell in August 2009, has long passed. The FOP has neither submitted an
opposition nor requested an extension of the time to do so.

                                                 13
reasons, the Court concludes that defendants are entitled to summary judgment as to the FOP’s

facial challenge to the Merger Act as racially discriminatory.

       As to FOP’s apparent claim that, as applied, the Merger Act discriminates on the basis of

race in violation of the U.S. Constitution, defendants’ only arguments for dismissal are that the

FOP lack standing. As explained above, those arguments fail. Accordingly, the FOP may

pursue, against all defendants, its as-applied challenge to the Merger Act as racially

discriminatory in violation of the Constitution.

D.     The FOP’s ADEA Claim Must Fail Because the Provision of the Merger Act at Issue
       is Exempt from the ADEA.

       Defendants argue in their motion for summary judgment that the Merger Act’s

application of the mandatory retirement age of Capitol Police to officers of the Library Police is

not subject to a challenge under the ADEA because age limits for law enforcement officers “are

exempted from the statute’s coverage.” Defs.’ Mot. for Summ. J. at 12-13 (quoting Kimel v. Fl.

Bd. of Regents, 528 U.S. 62, 69 (2000)). As noted, the FOP has not filed an opposition to the

motion for summary judgment, so the Court may treat the arguments defendants assert in that

motion as conceded. LCvR 7(b); Steinhorst Assocs., 572 F. Supp. 2d at 125 n.14 (citing Buggs,

293 F. Supp. 2d at 141). Furthermore, the Court concludes in a joint opinion issued in two cases

related to this action—Rovillard v. U.S. Capitol Police Bd., Civil Action No. 09-682; Perry v.

U.S. Capitol Police Bd., Civil Action No. 09-683—that defendants’ position is correct.6


       6
                As explained in those opinions, the D.C. Circuit and United States Supreme Court
agree that Congress has exempted age requirements for federal law enforcement officers from the
provisions of the ADEA. See 5 U.S.C. § 3307(d) (“The head of any agency may determine and
fix the minimum and maximum limits of age within which an original appointment may be made
to a position as a law enforcement officer.”); Kimel, 528 U.S. at 68-69 (noting in dicta that
“[u]nder the current ADEA, mandatory age limits for law enforcement officers and
firefighters—at federal, state, and local levels—are exempted from the statute’s coverage” (citing

                                                   14
E.      The FOP’s Constitutional Challenge to the Merger Act Based on Age
        Discrimination Must Fail Because the Statute is Rationally Related to a Legitimate
        Government Purpose.

        Defendants’ unopposed motion for summary judgment further argues that an equal

protection challenge7 to the Merger Act on the ground that it is discriminatory on the basis of age

must fail because the statute survives rational-basis review. This argument too is conceded, and

it is also correct. As explained in more detail in the Rovillard and Perry opinion, a statute does

not violate the Equal Protection Clause by “discriminat[ing] on the basis of age . . . if the age

classification . . . is rationally related to a legitimate state interest,” Kimel, 528 U.S. at 83

(citations omitted), and mandatory retirement for law enforcement officers is rationally related to

the government’s interest in having a physically fit police force, cf. Mass. Bd. of Retirement v.

Murgia, 427 U.S. 307, 313-14 (1976).

F.      The FOP’s “Arbitrary and Capricious” Claim Must Be Dismissed.

        Defendants assert that “[u]nlike final agency decisions or regulations, federal statutes

cannot be invalidated simply because a court finds them ‘arbitrary and capricious.’” Defs.’ Mot.

to Dismiss at 26. Therefore, defendants seek dismissal of the FOP’s claim alleging that the

provision of the Merger Act giving the Chief of Police the authority to determine which Library




5 U.S.C. § 3307(d), (e); 29 U.S.C. § 623(j))); Stewart v. Smith, 673 F.2d 485, 490-94 (1982)
(holding that “section 3307(d) is an exception to the ADEA” because to apply the ADEA “would
require us to adopt a strained reading of section 3307(d) and to ignore Congress’ clear intent to
employ maximum entry ages as a means towards securing a ‘young and vigorous’ work force of
law enforcement officers”).
        7
               The federal government must adhere to the Equal Protection Clause of the
Fourteenth Amendment by virtue of the Due Process Clause of the Fifth Amendment. See
Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954).

                                                   15
Police officers will become Capitol Police officers is arbitrary and capricious. The FOP has not

responded to this argument.

       The Court agrees with defendants that it has no power to overturn a statute based on a

conclusion that its provisions are “arbitrary and capricious.”8 See 5 U.S.C. § 706(2) (mandating

that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and

conclusions”—not legislative acts—“found to be,” inter alia, “arbitrary” or “capricious”). This

claim is dismissed.

G.     Defendants’ Motion for a More Definite Statement Regarding the Denial of
       Promotions Claim is Granted.

       As to an apparent claim in the FOP’s amended complaint regarding the denial of

promotions to Library Police officers, defendants have moved, pursuant to Federal Rule of Civil

Procedure 12(e), “for a more definite statement before interposing a responsive pleading.” Fed.

R. Civ. P. 12(e). Specifically, defendants assert that without knowing which officers requested

and were denied promotions, when these denials occurred, and by whom the decisions were

made, they cannot respond to this claim. The FOP responds that it “has filed a short and plain

statement of its claims such that Defendant is given fair notice of Plaintiff’s claims and the facts

upon which they rest,” and therefore defendants’ motion should be denied. Pl.’s Opp’n at 40.

       The defendants’ position has merit. Under Rule 12(e), “[a] party may move for a more

definite statement of a pleading . . . which is so vague or ambiguous that the party cannot

reasonably prepare a response.” Fed. R. Civ. P. 12(e). Although “courts are reluctant to compel



       8
               The Court will not assume that the FOP intended instead to assert this claim
against the Chief for misusing the discretion the Merger Act provides because the amended
complaint describes no discretionary agency decisions to which the FOP might object.

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a more definite statement pursuant to Rule 12(e)” out of fear such action will become a substitute

for discovery, Hilska v. Jones, 27 F.R.D. 16, 21 (D.D.C. 2003) (citations omitted), it is

appropriate to do so here. The FOP’s amended complaint mentions promotions twice. It alleges

that “[s]ince Defendants first contemplated subsuming the [Library] Police into the [Capitol

Police], Defendants have denied all opportunity for promotion to members of the [Library]

Police,” and “[t]he consequence of this policy is to preclude those [Library] officers accepted into

the ranks of [the Capitol Police] from outranking similarly situated [Capitol Police] officers.”

Am. Compl. ¶ 14. It later states that “[t]he [Merger] Act and the conduct of Defendants has

denied Plaintiff’s members the opportunity for promotion and advancement as [] sworn officers

based on race and age.” Am. Compl. ¶ 18. These allegations are not only devoid of factual

details but also fail to explain on what source of law any claim related to the denial of

promotions is based. Because the Court cannot ascertain what the FOP’s promotion-related

claim is, it cannot find that defendants are able to respond to it. Therefore, the Court concludes

that the motion for a more definite statement should be granted.

                                       IV. CONCLUSION

       For the foregoing reasons, it is this 4th day of March 2010, hereby

       ORDERED that defendants’ motion to dismiss [#24] is GRANTED in part and

DENIED in part; and it is further ORDERED that defendants’ motion for summary judgment

[#37] is GRANTED. The FOP’s claim that the Merger Act is discriminatory on the basis of race

in violation of Title VII survives as to defendants the Library of Congress and the Librarian of

Congress, and its claim that the Merger Act has racially discriminatory effect in violation of the

U.S. Constitution proceeds as to all defendants.


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        It is further ORDERED that defendants’ motion for a more definite statement [#24] is

GRANTED. The FOP shall provide a revised pleading adequately describing any claim it seeks

to assert based on the denial of promotions to Library Police officers by no later than March 27,

2010.


                                                     Henry H. Kennedy, Jr.
                                                     United States District Judge




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