- 1

- UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 08

- CV

- 2029 (AK)

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”) oppose d Defendant’s Motion and brought her own Motion for Reconsideration [95]. This Memorandum Opinion corresponds with the Order [101 ] filed on February 14 , 201 3 . 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 Dep artment The background of Plaintiff’s employment is set forth in detail with citations in the
Court’s Memorandu m Opinion dated July 13, 201 2 [ 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 . I n November 2004, the M P D learned that Ms. Owens was scheduled as a witness for the two complainants and s he testified in February 2005. Thereafter Ms. Owens allege d that the

SONYA OWENS, Plaintiff,

v.

DISTRICT OF COLUMBIA, et al., Defendants.- 2

- M PD 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 f or twelve days
for bein g 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 sec ond 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 i nvestigation.
II. Administrative and Judicial Review On August 15, 2005, Ms. Owens and her then counsel att ended 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 H earing 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 admini strative 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 law suit, the MPD resumed
the hearing on her suspension s

. 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.) Th e 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 A dministrative Law J udge issued an Initial D ecision on the appeal of her s uspension s, dismissing
Ms. Owen s ’s claims

. Ms. Owens filed a timely Petition for Review on Aug ust 22, 2006.
I n September 2006, the OEA ordered the MPD to provide Ms. Owens with the transcripts
of her suspe nsion hearing . (Am. Compl. [12] ¶ 77 .) I n October 2006, the OEA conduct ed a- 3

- hearing on Ms. Owen s ’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 Nov ember 21, 2007 , the OEA Administrative Judge issued an Initial Decision about Ms. Owens ’s t ermination and s he 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 Judge s upholding her two suspensions and her termination. 1 While the Petition for Review of her termination was pending before the OEA , o n April 9, 2008, Ms. Owens filed a P etition for R eview with the Distri ct of Columbia Court of Appeals
to seek review of the Administrative Law Jud ge’s decision upholding her termination

. The District of Columbia Court of Appeals dismissed the petition for lack of jurisdiction on Ma y 7,
2008. The C ourt 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 file d 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. Owen s ’s
motion and dismissed both appeals

. In its dismissal, the OEA noted that the Initial Decisions of
the Administrative Law Judges would become final de cisions w ithin five days of the issuance of
the OEA ’s Order and that Ms. Owens could appeal the OEA final decision s within thirty days in the District of Columbia Superior Court. (Ex. 1 of Am

. Comp l. [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 s uspension s and termination

. The C ourt 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 C ourt ordered Ms. Owens to show how she was “aggrieved” by the OEA granting her motions to withdraw her petitions with respect to her s uspension s and t ermination

. On September 22, 2008, Ms. Owens submitted a Response to the C ourt’s O rder explain ing that she appealed the OEA’s final decision s

. 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.- 4

- of Columbia Court of Appeals to r einstate her a ppeal given that the OEA’s decision s 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 a fter the OEA granted her motion to dismiss the petitions. ( Id. at 56.)
III. Present Suit On November 25, 2008, Ms. Owens initiated the p ending law suit against the District and Mayor Adrian Fenty (Compl. [1]) and filed an amended complaint on March 2 0, 2009. (Am. Compl. [12].) The Amended Complaint contained seven counts: Count 1 Unlawful Depri vation of Civil Rights in Violation of 42 U.S.C. § 1983; Count 2 Unlawful Deprivation and Retaliation
in V iolation of the False Claims Act involving Whistleblower Employee Protections; Count 3 Deprivation of Employment Rights and Privileges as Protec ted under District of Columbia
C omprehensive Merit Personnel Act (CMPA); Count 4 Unlawful Retaliation in V iolation 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 Defen dants’ Motion
to Dismiss as to C ounts 2, 6, and 7 : W histleblower 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 c ourt 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 Defendan t s ’ Motion for Summary Judgment. ( Judge Kay’s Mem. Order, Nov. 8, 2010 [55]. ) On June 26, 2012, the Court denied Ms. Owen s ’s Motion for Summary Judgment and granted

- in

- part and denied

- in

- part the Defendants’ Motion for Summary Ju d gment. ( 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 claim s for pro cedural due process under the Fifth Amendment,- 5

- defamation, retaliation under 42 U.S.C. § 1981, and the District of Columbia CMPA

. ( Id. ) T he
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
C ourt s review Motions for Reconsideration narrow ly . 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 c ourt 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

. ” Anyanwuta k u 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 C ourt will entertain Motions for Reconsideration in very limited circumstances

. Ms.
Owens’s Motion for Recons ideration [95] include d the dismissal of claims against former Mayor Fenty, the dismissal of her 42 U.S.C. § 19 8 3 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 sa me arguments she made in her Summary Judgment Motion

. Therefore, the Court denies Ms.
Owens’s Motion for Reconsideration.
In the Dis trict of Columbia’s Motion for Reconsideration [91] , the District ’s arguments
include d the absence of municipal liability, the in applicability 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 d id not re present 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 challenge s that warrant reconsideration

.- 6

- This C ourt, having reviewed the District’s M otion for R econsideration, concurs with the District’s jurisdictional arguments and further concludes that the C ourt d oes not have jurisdiction

over the remaining C ounts 1, 3, 4, and 5

.

DISCUSSION
I. The CMPA serves as the exclusive remedy for employment

- based conflict s 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 co mprehensive 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 Col umbia 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 advers e 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 ab out 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- 7

- 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, fal l 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. , 5 38 F. Supp. 2d 269
, 280 n.5 ( D.D.C. 2008) (“even though the plaintiffs dress their defamation claims in constitutional garb, they are ef fectively 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 provi ded 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 provisi ons 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. T he 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. adm inistrative/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 ). Se ver al 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- 8

- F.2d 90, 107 (D.C. Cir. 1986)); Crockett , 293 F. Supp. 2d 63 ( not ing 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 no t have authorization to award).

c. Procedural Process unde r 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 ha s 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 r emedy might be more generous.” White , 852 A.2d at 927

. Under the CMPA, plaintiffs must exhaust their administrativ e remedies before reaching the District of Columbia Superior Court for review. “T he plaintiffs...should not be allowed to undermine the administrative process by availing themselves of initial review by the [ O ffice of Administrative Hearings] and then refusing to participate in subsequent stages of appeal.” Washington , 538 F. Supp. 2d a t 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).- 9

- 2. Review by the Dist rict 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 e mployee

- 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 pr ovide 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 proc edure under the CMPA satisfies c onstitutional due process requirements Given the layers of administrative and judicial review it provides , the CMPA satisfies

c onstitutional d ue p ro cess 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 adm inistrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335

. When- 10

- considering the process granted by the CMPA under the Mathews v. Eldridge test, “[t]he CMPA procedures satisfy these requirements.” M cCormick 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 poss ible to satisfy c onstitutional d ue p rocess. 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 preclude d federal court jurisdiction for Ms. Owens’s defamation
claim The Comprehensi ve Merit Personnel Act precluded the Court from having jurisdiction
over Ms. Owens’s defamation claim. The C MPA’s jurisdiction wholly covered this tort claim
and Ms. Owens shoul d have utilize d 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 th e CMPA provided expansive coverage of “virtually every conceivable personn el 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 month s to effectuate. Id. The court found that his tort claims, including defamation, originated from the procedure he received during his employment dispute rather than t he 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 ar o s e directly from the disciplinary action that resulted in her suspension from her employment. Ms. Owens b ased her defamation claim
, at least in part
, on the publication of the administrative opinion in her s uspension claims

. (Ex. 8 of D e f. ’s Mot. for S umm

. J. [72

- 9].)- 11

- 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 attempt ed 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 C ourt 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 th is claim for failure
to exhaust administrative remedies under the CMPA.
III. The CMPA precluded federal court jurisdiction for Ms. Owens’s § 1983 d ue process claim
Ms. Owens ’s § 1983 due process claim aro se from an employment dispute under the
CMPA . Ms. Owens elected to withdraw her administrative appeal s, thereby precluding the
C our t ’s jurisdiction. Although she did not fully exhaust her administrative remedies, the District satisfactorily fulfilled her c onstitutional due process rights through the procedure she receive d

.
a. The CMPA covered Ms. Owens’s § 1983 due process claim Ms. Owens grounded her due process claim i n the process she received during the termination of her employment. Although she presented it as a c onstitutional claim, t his claim

arose within the scope of an employment dispute given that it protested the treatment she
received , culminating in her ter mination and its appeal . Although the CMPA procedure did not
in fact grant the relief she sought , Ms. Owens fail ed to demonstrate that the District of Columbia
administrative or judicial system s were incapable of granting her sufficient relief nor d id she provide evidence of the absence of procedural due process

. Additionally, she provided no

2 Assuming arguendo that Ms. Owens had defamation claim s 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 2 1 , 2007. Ms. Owens filed this law suit pleading defamation in this C ourt on November 25, 2008. Given that the District of Columbia statute of limitations for defamation is one year, D

. C

. C ODE § 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.- 12

- evidence that her claim s 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 c ourt. 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 statutor y procedure to seek relief
in a more favorable forum. G iven her unilatera l abandonment of the CMPA by her withdrawal

o f 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 c ourts, the District fully
satisfied the requirements of c onstitutional d ue p rocess This Court finds as a matter of law that Ms. Owens did not fully exhaust her administrative remedies as p rescribed by the CMPA’s statutory procedures. Despite her failure to exhaust all available CMPA remedies, the District still provided Ms. Owens with p rocedure
sufficient to fulfill c onstitutional due process requirements. As noted above, while pursuing he r 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 terminati on 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 C MPA also afforded Ms. Owens the opportunity to seek judicial review by the D istrict of Columbia Superior Court with subsequent appeal to the D istrict of C olumbia Court of Appeals. Instead of following the review- 13

- process of the CMPA, Plaintiff elected to i gnore 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 exhau stion 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 s he 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 c onstitutional due process factors of Ma thews

. 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 withdra w n 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 review s of her suspensions and termination, and c) OEA Board review . However, instead of proceeding t hrough 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 act ion s 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, t he District satisfied the requisite level of c onstitutional 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 sup ports the presumption that her c onstitutional due process was satisfied. Lastly, under the third factor, it would be ove rly 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 cour t could review this- 14

- claim on a c onstitutional basis, it would burden the federal system to review decisions that have already b een adjudicated multiple times at the administrative and state court level s with
consistent outcomes. Therefore, based on the administrative and judicial remedies in which Ms.
Owens elect ed to partake , the CMPA satisfied c onstitutional d ue p rocess requirements and Ms.
Owens can not 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 priv ate right to action under § 1981 preclude d Ms. Owens’s retaliation claim under 42 U.S.C. § 1981 Similar to Ms. Owens’s § 1983 claim, the Court lacks jurisdiction over Ms. Owen s ’s § 1981 reta liation 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 c onstit utional 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, t h is 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 withdr awal 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.- 15

- review that s he did receive serve as evidence that the Dis trict satisfied c onstitutional d ue p rocess 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

. Giv en that 42 U.S.C. § 1981 created a right without a reme dy, Ms. Owens lacked a viable claim for retalia tion under th is 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 create d a private right of action enabling Ms. Owens to sue state actors. While 42 U.S.C. § 1981 does not explicitly create a remedy again st 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 th at § 1981 does not, in itself, provide a remedy against state actors. Jett v. Dall. Indep. Sch. Dist. , 491 U.S. 701, 735 (1989). R ather, 42 U.S.C. § 1983 provided the exclusive federal remedy for individuals to effectuate their civil rights claims agains t 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 holdi ng 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 st ate 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 arg ument 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.- 16

- 2006) (“We therefore conclude that even after the 1991 amendments to § 1981, damages claims

ag ainst 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 ad dition 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 pr ovides 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 C ounts 1, 3, 4, and 5 for jurisd ictional reasons

. Therefore, with no claims remaining, the Court dismisses the case with prejudice

.

DATE:_ 2/14/2013

___ /s/
ALAN KAY
UNITED STATES MAGISTRATE JUDGE