Lewis v. Mauskopf ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEISHA D. LEWIS,
Plaintiff
v. Civil Action No. 22-0189 (CKK)
ROSLYNN R. MAUSKOPF,
Defendant.
MEMORANDUM OPINION
(November 7, 2022)
Plaintiff Keisha D. Lewis brought this case against Defendant Roslynn R. Mauskopf,
Director, Administrative Office of the U.S. Courts, alleging employment discrimination in
violation of Title VII. Presently before the Court is Defendant’s [7] Motion to Dismiss all of
Plaintiff’s claims. Upon consideration of the pleadings,1 the relevant legal authorities, and the
record for purposes of this motion, the Court GRANTS Defendant’s Motion.
I. BACKGROUND
On January 18, 2022, Plaintiff Keisha D. Lewis, a Black woman, brought this action
against Defendant Roslynn R. Mauskopf, the Director of the Administrative Office of the U.S.
Courts (A.O.). See Compl. Ms. Lewis was formerly employed by the A.O. as a “Data Programs
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The Court’s consideration has focused on the following documents and their attachments and/or
exhibits:
• Plaintiff’s Complaint for Employment Discrimination, ECF No. 1 (“Compl.”);
• Plaintiff’s Discrimination Complaint Incident Outline, ECF No. 1 (“Pl.’s Out.”)
• Tab A, ECF No. 1 (“Tab A”);
• Defendant’s Motion to Dismiss, ECF No. 7 (“Def.’s Mot.”);
• Declaration of Tiffany Blakey, ECF No. 7-2, (“Blakey Decl.”);
• Plaintiff’s Response in Opposition to the Motion to Dismiss, ECF No. 9 (“Pl.’s Resp.”);
• Reply in Further Support of Defendant’s Motion to Dismiss, ECF No. 10 (“Def.’s
Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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and Policy Branch Analyst.” Tab A. She alleges that during her employment, she was subject to
a pattern of discriminatory conduct by her supervisors in violation of Title VII. Compl. at 4.
Among a list of numerous allegedly discriminatory practices, Ms. Lewis mentions an
“inflammatory performance assessment write-up” that she claims was the product of her
manager’s “discrimination and retaliatory actions.” Pl.’s Out. at 2.
Before bringing this action, Ms. Lewis sought redress through the A.O.’s internal
complaint process. Blakey Decl. ¶ 7. In July 2018, she contacted a counselor of the A.O.’s Fair
Employment Practices Office and eventually filed a Formal Complaint of Discrimination with
that office in December 2018. Id. ¶¶ 7, 8. The Office accepted her complaint in February 2019
and generated a lengthy “Report of Investigation” in June 2019. Id. ¶ 9. Finally, in February
2020, the A.O.’s Director dismissed Ms. Lewis’s charges upon the recommendation of a Hearing
Officer. Id. ¶ 10. Ms. Lewis did not appeal this decision to an Appellate Judicial Officer, id. ¶
12, as permitted by A.O.’s complaint policy, Def.’s Ex. 1 at 15–17. Instead, Ms. Lewis filed a
Title VII claim with the EEOC, which was dismissed in December 2021 “due to a lack of
jurisdiction.” Compl. at 5.
Proceeding pro se, Ms. Lewis filed a Complaint before this Court in January 2022
alleging a Title VII violation due to “[u]nequal terms and conditions of [her] employment,”
retaliation, and constructive discharge. Id. at 6. In response, Defendant filed the instant motion
to dismiss for lack of subject matter jurisdiction. Def.’s Mot. at 7. In Ms. Lewis’s response to
Defendant’s motion, she articulated––for the first time––violations of the Fifth, Seventh, and
Ninth Amendments. Pl.’s Resp. at 2–4. Defendant considers Plaintiff’s response to be amending
Plaintiff’s Complaint by adding new causes of action. See Def.’s Reply at 2–3. Ms. Lewis’s
response additionally challenged the integrity of the A.O.’s investigation and complaint process,
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claiming that it was fraudulent. Pl.’s Resp. at 5–9. Defendant filed their reply in further support
of their motion to dismiss. The Court now addresses the motion to dismiss Plaintiff’s claims.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). To determine whether there is jurisdiction, courts may
“consider the complaint supplemented by undisputed facts evidenced in the record, or the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal.
for Underground Expansion v. Mineta, 333 F. 3d 193, 198 (D.C. Cir. 2003) (citations omitted);
see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir.
2005) (“[T]he district court may consider materials outside the pleadings in deciding whether to
grant a motion to dismiss for lack of jurisdiction.”).
In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all
factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the
benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole
Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). Despite the favorable inferences afforded to a
plaintiff on a motion to dismiss, it remains the plaintiff’s burden to prove subject matter
jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. U.S. Env’t Prot. Agency,
121 F. Supp. 2d 84, 90 (D.D.C. 2000) (ESH). “Although a court must accept as true all factual
allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule
12(b)(1), [a] plaintiff[’s] factual allegations in the complaint ... will bear closer scrutiny in
resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”
Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (JDB) (internal
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citations and quotation marks omitted) (quoting Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001), aff’d per curiam, No. 07-5328, 2008 WL
4068606 (D.C. Cir. Mar. 17, 2008)). A court need not accept as true “a legal conclusion couched
as a factual allegation” or an inference “unsupported by the facts set out in the complaint.”
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal citation and
quotation marks omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
Defendant filed their motion to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). However, after Plaintiff’s response articulated new claims, Defendant
transitioned to, in part, functionally arguing for dismissal for failure to state a claim under Fed.
R. Civ. P. 12(b)(6). See, e.g., Def.’s Reply at 6 (“Plaintiff has no viable… claim”). Therefore,
this Court will apply the 12(b)(6) standard where appropriate.
Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if
accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. A court does “not accept as true, however, the plaintiff’s legal conclusions or
inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).
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III. DISCUSSION
A. Scope of Plaintiff’s Pleadings
As a threshold matter, Defendant argues that the Court should not consider the
constitutional claims that Plaintiff articulates for the first time in her response to Defendant’s
motion to dismiss. Def.’s Reply at 2–3. The Court rejects this argument.
To begin, the Court accepts as true the well-pleaded allegations in Plaintiff’s Complaint.
A pro se complaint must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Where some
legitimate claim for relief lies, a court should not grant a motion to dismiss a pro se litigant’s
complaint for failure to state a claim. See Anyanwutaku v. Moore, 151 F.3d 1053, 1059 (D.C.
Cir. 1998) (“Even if [a plaintiff] might lose on the merits,… the district court should… permit[ ]
[a] claim, drafted pro se and based on legitimate factual allegations, to proceed.”); Williams v.
Bank of N.Y. Mellon, 169 F. Supp. 3d 119, 124 (D.D.C. 2016) (RBW).
Furthermore, the Court of Appeals has ruled that a court must consider not only the
allegations in a pro se plaintiff’s complaint, but also those in response to a motion to dismiss.
See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court
errs in failing to consider a pro se litigant's complaint ‘in light of’ all filings, including filings
responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999)); Fillmore v. AT & T Mobility Servs. LLC, 140 F. Supp. 3d 1, 2 (D.D.C. 2015)
(JEB) (“the Court, as it must in a case brought by a pro se plaintiff, considers the facts as alleged
in both the Complaint and Plaintiff's Opposition to Defendant's Motion to Dismiss.”).
Accordingly, the Court is willing to consider Plaintiff’s Fifth, Seventh, and Ninth
Amendment claims as recontextualizing the allegations included in her Complaint. See Pl.’s
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Resp. at 2 (“It is Ms. Lewis’ belief that her complaint not only covers the provisions outlined in
Title VII, but also the guarantees of personal freedoms and rights outlined in the U.S.
Constitution”).
B. Title VII Claim
Defendant asserts that this Court lacks subject matter jurisdiction over Plaintiff’s Title
VII claims because Plaintiff’s employment position was not covered by Title VII. Def.’s Mot. at
4–5. Defendant is correct that Plaintiff’s position was not covered by Title VII, and Plaintiff
concedes this point. Pl.’s Resp. at 2. Title VII applies to units of the judicial branch of the
federal government having positions in the competitive service. 42 U.S.C. § 2000e-16(a).
Employees of the judicial branch whose positions are not part of the competitive service may not
bring claims under Title VII. See Davis v. Passman, 442 U.S. 228, 247 (1979) (concluding that
Title VII does not apply to congressional employees who are exempt from competitive service);
Lawrence v. Staats, 640 F.2d 427, 431 (D.C. Cir. 1981); Bethel v. Jefferson, 589 F.2d 631, 637 n.
29 (D.C. Cir. 1978). Plaintiff’s position was admittedly not in the competitive service. Pl.’s
Resp. at 2. Therefore, the Court grants Defendant’s motion to dismiss Plaintiff’s Title VII
claims. However, the Court notes that Defendant’s argument would be better characterized as a
motion to dismiss for failure to state claim under 12(b)(6).
C. A.O. Adjudication Process
In their motion to dismiss, Defendant argues that because Plaintiff’s discrimination and
retaliation claims were fully adjudicated pursuant to the A.O. complaint process, the Court does
not have subject matter jurisdiction under the Administrative Procedure Act (APA) to review
them. Def.’s Mot. at 6–7. In response, Plaintiff admits that “[t]he AO did adjudicate Ms. Lewis’
claims.” Pl.’s Resp. at 5. However, she argues that “the AO process was not fair, just, or
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impartial. Moreover, [Ms. Lewis]… believes that she is entitled for her claims to be heard and
adjudicated by an impartial court and/or jury pursuant to… 60(b)(3)” because the process was
fraudulent. Id. at 5–7. The Court now addresses whether Plaintiff’s claims are reviewable under
either the APA or Rule 60(b)(3).
1. Administrative Procedure Act
The APA grants the federal judiciary the power to review adjudications made by
“agencies.” 5 U.S.C. § 554. The APA specifically exempts “the courts of the United States”
from the definition of “agency.” 5 U.S.C. § 551(1)(B). Courts in this Circuit have understood
this language to exclude the entire judicial branch, including the A.O., from APA review. See
Novell, Inc. v. U.S., 109 F. Supp. 2d 22, 26–27 (D.D.C. 2000) (EGS) (citing Washington Legal
Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1449 (D.C. Cir. 1994).
Plaintiff’s claims were adjudicated to a final decision pursuant to the A.O.’s complaint
process, which Plaintiff admits. See Pl.’s Resp. at 5; Blakey Decl. ¶¶ 9–12. As the A.O. is
excluded from APA review, the Court does not have subject matter jurisdiction to review the
A.O.’s adjudication of Plaintiff’s claims.
2. Federal Rule of Civil Procedure 60(b)(3)
Rule 60(b)(3) states that “[o]n motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons: fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b)(3). A 60(b)(3) motion is filed by a party seeking to
overturn a final judgment entered by a court of the federal judiciary. See, e.g., Murray v. D.C.,
52 F.3d 353, 354 (D.C. Cir. 1995) (ruling on appeal brought by plaintiffs whose 60(b)(3) motion
for relief from the judgment of a district court was denied by the district court); Summers v.
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Howard Univ., 374 F.3d 1188, 1192 (D.C. Cir. 2004) (considering appeal brought by plaintiffs
whose 60(b)(3) motion for relief from judgment of a magistrate judge was denied by the judge);
Lindsey v. U.S., 532 F. Supp. 2d 144, 146 (D.D.C. 2008) (RBW) (considering plaintiff’s 60(b)(3)
motion to reconsider the court’s prior dismissal with prejudice). This Court has been unable to
identify any legal authority for the proposition that the rule may also grant a district court
jurisdiction to hear claims it would otherwise lack the subject matter jurisdiction to entertain,
including review of the A.O.’s adjudication decision. Plaintiff misunderstands Rule 60(b)(3).
* * *
The Court grants Defendant’s motion to dismiss Plaintiff’s claims regarding the A.O.’s
adjudication process.
D. Fifth Amendment Due Process Claim
Plaintiff posits that a decision dismissing her claim would violate her Fifth Amendment
right to have her claim heard. Pl.’s Resp. at 2–3. Specifically, Plaintiff states that “if her civil
complaint is dismissed solely based on the fact that her allegations are against employees of the
Judicial Branch, this would constitute a violation” of her right to “due process of the law.” Id. at
3. Insofar as this language can be construed as a claim to a protected property interest in having
her claim heard, Plaintiff’s argument fails.
A due process claim requires a plaintiff to demonstrate “deprivation of a protected liberty
or property interest… by the government… without the process that is ‘due’ under the Fifth
Amendment.” NB ex rel. Peacock v. D.C., 794 F.3d 31, 41 (D.C. Cir. 2015). A protected
property interest is one upon which a person may have legitimate reliance. See Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972).
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Plaintiff fails to establish that she has a protected property interest in having her case
heard by this Court. When Congress establishes a right through statute, it may limit the
judiciary’s adjudication of that right without violating the Fifth Amendment. Davis, 442 U.S. at241–42. Congress established the rights under Title VII and clearly circumscribed the ability of
the judiciary to review claims brought under it by employees not in the competitive service. Id.
at 247. Therefore, as an employee not in the competitive service, Plaintiff fails to establish a due
process claim because she could not have legitimately relied upon her Title VII claims being
heard by this Court. The Court grants Defendant’s motion to dismiss Plaintiff’s Fifth
Amendment due process claim.
E. Fifth Amendment Discrimination and Retaliation Claims
Plaintiff also argues that “past, current, and future Judiciary employees are entitled to the
Constitutional guarantee of the right to work in an environment free from discrimination and
retaliation under the U.S. Constitution Bill of Rights, specifically the Fifth… Amendment[].”
Pl.’s Resp. at 1. To the extent this statement may be construed as a Bivens action for
discrimination and retaliation, it too fails.
In Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court recognized what
has become known as a “Bivens action” in which a court identifies an implied civil cause of
action within a Constitutional amendment. Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 397 (1971). Courts considering proposed Bivens actions must address whether the
case “presents ‘a new Bivens context’” and, if so, “if there are ‘special factors’ indicating that the
judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of
allowing a damages action to proceed.’” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting
Ziglar v. Abbasi, 137 S. Ct. 1843, 1859–60, 1880 (2017)). When conducting this analysis, courts
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should note the Supreme Court’s extreme reticence towards judicially created causes of action
arising under the Constitution. See Egbert, 142 S. Ct. at 1802.
Plaintiff’s case fails this two-step inquiry. First, a new context is one that is
“meaningful[ly]” different from those in which the Court has found an implied damages action,
which it has done only three times. Ziglar, 137 S. Ct at 1859–60. A new context is present
whenever a plaintiff seeks damages from a “new category of defendant,” id. at 1857, and, as
relevant here, a separate branch of government is a new category of defendant, see Meshal v.
Higgenbotham, 804 F.3d 417, 424 (D.C. Cir. 2015) (collecting cases), cert. denied, 137 S. Ct.
2325 (2017). The Supreme Court recognized a Bivens action in Davis v. Passman that bears
most similarity to the case now before this Court. There, the Supreme Court identified a civil
cause of action under the Fifth Amendment for discrimination where the Plaintiff was a non-
competitive service employee of Congress and therefore exempt from Title VII protections.
Davis, 442 U.S. at 248. But while the defendant in Davis was a member of Congress, Davis, 442
U.S. at 230, here the Defendant is part of the judicial branch––a new category of defendant.
Therefore, this case presents a new Bivens context.
Second, the Court must determine whether there are “special factors” present that counsel
against inferring a new Bivens action. The existence of an alternative remedial scheme
established by Congress may alone be sufficient to prevent the judiciary’s recognition of a new
Bivens action. Ziglar, 137 S. Ct. at 1858; see also Schweiker v. Chilicky, 487 U.S. 412, 425
(1988); Bush v. Lucas, 462 U.S. 367, 388 (1983) (refusing to imply a Bivens action where
plaintiffs had access to “an elaborate remedial system”). Here, Plaintiff had access to the A.O.’s
complaint process, which was established pursuant to the Administrative Office of the United
States Courts Personnel Act of 1990. 28 U.S.C. § 602 Note, Act § 3(f). In fact, that process’s
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final step, which Plaintiff elected to skip, involves review of the complainant’s claim by an
Appellate Judicial Officer, who must be a judge appointed under Article III of the U.S.
Constitution. A.O. Man. § 330.70(f)(1). The Court finds this thorough remedial scheme
established by Congress to constitute a special factor sufficient to preclude recognizing
Plaintiff’s discrimination and retaliation claims as Bivens actions under the Fifth Amendment.
Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s discrimination
and retaliation claims under the Fifth Amendment.
F. Seventh Amendment Claim
Plaintiff asserts that granting Defendant’s motion to dismiss would violate her Seventh
Amendment rights, which she describes as “provid[ing] the constitutional guarantee of having
civil claims tried before a jury, unless this right is waived by the parties involved.” Pl.’s Resp. at
3. However, Plaintiff has already waived her right to a jury trial by checking the “no” box in the
section of the complaint form entitled “Jury Trial.” Compl. at 1. Therefore, dismissal of
Plaintiff’s claims does not violate her right to a jury trial. The Court grants Defendant’s motion
to dismiss Plaintiff’s Seventh Amendment claim.
G. Plaintiff’s Right to a Chosen Trade or Profession
Plaintiff next argues that one of the unenumerated rights under the Ninth Amendment is
her “right to choose and follow a profession.” Pl.’s Resp. at 4. She asserts that this right was
infringed upon because the “discrimination and retaliation she endured forced her from enjoying
and continuing in her chosen position and profession.” Id.
The right to follow a chosen trade or profession is grounded in the due process clause of
the Fifth Amendment, see generally Kartseva v. Dep’t of State, 37 F.3d 1524 (D.C. Cir. 1994),
rather than the Ninth Amendment. Due process may be implicated when government “action
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formally or automatically excludes [a plaintiff] from work” in their chosen field, or if it “has the
broad effect of largely precluding [a plaintiff] from pursuing [their] chosen career.” Kartseva v.
Dep’t of State, 37 F.3d at 1528–29.
Plaintiff presents no evidence that the government has formally or automatically
excluded her from working in her chosen field. Instead, Plaintiff’s claim seems to largely hinge
on an allegation regarding the performance assessment received while at the A.O.; she states that
having certain negative “language in my written assessment has prohibited me from being able to
apply and be considered to other government positions.” Pl.’s Out. at 2. Accordingly, Plaintiff
must rely on the second argument as described in Kartseva––that the government’s actions have
had the broad effect of largely precluding her from pursuing her chosen career. Kartseva, 37
F.3d at 1528–29; see, e.g., Greene v. McElroy, 360 U.S. 474, 492, 508 (1959) (finding due
process possibly implicated where government revocation of security clearance “seriously
affected, if not destroyed, [plaintiff’s] ability to obtain employment in the aeronautics field”);
Kartseva, 37 F.3d at 1528–30 (recognizing potential due process violation where government
terminated plaintiff after a background check based on unknown “counterintelligence concerns,”
which may “implicate[] [plaintiff’s] general employability in her field”). If a plaintiff has
“merely lost one position in her profession but is not foreclosed from reentering the field, she has
not carried her burden.” Kartseva, 37 F.3d at 1529. A showing of stigmatic or reputational harm
alone cannot suffice to demonstrate a claim of interference with the right to follow a chosen trade
or profession. O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir. 1998) (citing Siegert v.
Gilley, 500 U.S. 226 (1991)). Such a “claim cannot survive a motion to dismiss on the theory
that a government action led to mere difficulty finding a job. The [c]omplaint must allege that
the plaintiff has been effectively ‘foreclosed’ from some category of work.” Lea v. D.C., No. 22-
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cv-1396, 2022 WL 315828, at *6 (D.D.C. Aug. 8, 2022) (JEB) (citing Campbell v. D.C., 894
F.3d 281, 288–89 (D.C. Cir. 2018)).
Plaintiff has not alleged sufficient facts to suggest that the A.O.’s actions have had the
broad effect of largely precluding her from pursuing her chosen career. Taking Plaintiff’s
allegations as true, discrimination from individuals within the government (i.e., her managers)
forced her to leave her position at the A.O. Pl.’s Resp. at 4. However, that Ms. Lewis “merely
lost one position” does not mean that she has been precluded from working in her chosen field.
Kartseva, 37 F.3d at 1529. Her chosen field appears to have been both the data and policy
analysis fields, or, alternatively, the field of government work. See Tab A (showing title of
“Data Programs and Policy Branch Analyst”). Plaintiff has pled no facts to support the claim
that she has been unable to find work in the fields of data and policy analysis due to the actions
of A.O. employees. She does claim that the negative performance assessment “has prohibited
[her] from being able to apply and be considered to other government positions.” Pl.’s Out. at 2.
However, defeating a motion to dismiss for failure to state a claim requires more than a “bare
assertion that the agency’s actions ‘have prevented [plaintiff] from obtaining employment in his
chosen profession.’” deLeon v. Wilkie, No. 19-1250, 2020 WL 210089 at *6 (D.D.C. Jan. 14,
2020) (JEB). Plaintiff does not plead any additional facts expounding upon her inability to apply
for and be considered for government positions; in fact, her claim is virtually identical to the
conclusory statements found to be insufficient to survive a motion to dismiss in deLeon. Cf. Lea,
2022 WL 315828, at *6 (denying a motion to dismiss where the plaintiff stated in her complaint
that “she was ‘completely foreclosed’ from ‘any real prospect of pursuing employment with the
District of Columbia government,’” and that “she applied to numerous jobs in the government
but was offered no interviews”). Moreover, even were Plaintiff to have pled facts that the
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performance assessment caused her reputational harm or led to difficulty in securing government
employment, such arguments would fail. See O’Donnell, 148 F.3d at 1141; Campbell, 894 F.3d
at 288–89.
Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s claim regarding
the right to a chosen trade or profession.
H. Ninth Amendment Claim
Finally, Plaintiff argues that dismissal of her claims will violate her rights to “receive
equal protection… from the federal government” and “to use the federal courts and other
government institutions” under the Ninth Amendment. Pl.’s Resp. at 4. As previously
discussed, federal courts may grant a motion to dismiss where no legally viable claim exists or
where they lack subject matter jurisdiction without violating a plaintiff’s constitutional rights.
Therefore, these arguments are unavailing. The Court grants Defendant’s motion to dismiss
Plaintiff’s Ninth Amendment claim.
IV. CONCLUSION
For the foregoing reasons, Defendant’s [7] Motion to Dismiss all of Plaintiff’s claims is
GRANTED. This case is DISMISSED WITHOUT PREJUDICE. An Order accompanies this
Memorandum Opinion.
Dated: November 7, 2022
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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