Neal v. Reyna ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
INTERNATIONAL UNION, UNITED )
GOVERNMENT SECURITY OFFICERS )
OF AMERICA, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 02-1484 (GK)
)
JOHN CLARK, in his official )
capacity as Director of the )
United States Marshals )
Service, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiffs in these consolidated cases are Court Security
Officers (“CSOs”) who were medically disqualified and then
terminated from their positions. As described in great detail in
prior opinions, the case has a long and complex factual and legal
background. The present matter is before the Court on Defendant
John Clark’s Motion to Dismiss Plaintiffs’ Amended Complaint [Case
No. 05-07, Dkt. No. 21] pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6).
Upon consideration of the Motion, Opposition, Reply, and the
entire record herein, and for the reasons set forth below,
Defendant’s Motion to Partially Dismiss is granted in part and
denied in part.
I. BACKGROUND
This case was filed on January 4, 2005. The six plaintiffs
are CSOs who were terminated from their employment for failure to
meet certain medical requirements. The CSOs were employed by
private security firms, which in turn contracted with Defendant to
provide security services to federal courthouses. Another case
with similar facts, legal issues, and parties had been filed in
this Court on July 26, 2002. See Int’l Union, United Gov’t
Security Officers of America v. John Clark, No. 02-CV-1484. On
January 4, 2007, the Court granted Plaintiff International Union’s
Motion to Consolidate the 2002 case with this case. Minute Order
(Jan. 4, 2007).1
Before consolidation of the two cases, the six Plaintiffs in
this case filed an Amended Complaint [Case No. 05-07, Dkt. No. 3]
that contained allegations of discrimination against the United
States Marshals Service (“USMS”), and federal contractors MVM
Security Services, Inc. (“MVM”) and Ares Group Incorporated
(“Ares”). The contractors were direct employers of the CSOs. The
six CSOs alleged they were fired because of their disabilities, and
brought suit under the Fifth Amendment as well as the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. and the
1
That Order consolidated Case No. 05-07 into Case No. 02-
1484. After Defendant filed the Motion to Dismiss in this case,
the consolidation Order was entered. Parties then filed their
response briefs in Case No. 02-1484.
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Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Am. Compl.
¶¶ 34-46. Defendant Clark, Director of USMS, filed the present
Motion to Dismiss (“Def.’s Mot.”) the claims brought against the
Marshals Service.
II. STANDARD OF REVIEW
Defendant asks the Court to dismiss the CSOs’ claims under
Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the plaintiff
bears the burden of proving by a preponderance of the evidence that
the Court has subject matter jurisdiction to hear his case. See
Jones v. Exec. Office of President, 167 F. Supp. 2d 10, 13 (D.D.C.
2001). In reviewing a motion to dismiss for lack of subject matter
jurisdiction, the Court must accept as true all of the factual
allegations set forth in the Complaint; however, such allegations
“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.” Wilbur
v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003)(citations and
quotations omitted). The Court may rest its decision on the
Court’s own resolution of disputed facts. Id.To survive a motion to dismiss under Rule 12(b)(6),2 a
2
The Court is aware that parties have filed additional
declarations related to the issue of subject matter jurisdiction.
Because this issue is governed by Rule 12(b)(1), the Court need not
consider the presence of these additional declarations as “matters
outside the pleadings” that would, under Rule 12(b)(6), require the
Motion to Dismiss to be converted to one for summary judgment. See
Fed. R. Civ. Pro. 12(d). The declarations pertain only to subject
matter jurisdiction; the Federal Rules allow courts considering
(continued...)
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plaintiff need only plead “enough facts to state a claim to relief
that is plausible on its face” and to “nudge[ ] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563.
Under the Twombly standard, a “court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs success . . . must assume all the allegations in the
complaint are true (even if doubtful in fact) . . . [and] must give
the plaintiff the benefit of all reasonable inferences derived from
the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation
marks and citations omitted).
III. ANALYSIS
Defendant Clark seeks dismissal of the claims brought by five
of the six CSOs under Section 501 of the Rehabilitation Act,
arguing that these five Plaintiffs failed to exhaust their
2
(...continued)
dismissal for lack of subject matter jurisdiction to consider
matters outside the pleadings. See Herbert v. Nat’l Acad. of
Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); see also Harms v.
I.R.S., 146 F. Supp. 2d 1128 (D. Kan. 2001). Defendant’s
attachment of an opinion from another court that bears on a matter
covered by Rule 12(b)(6) does not, by itself, require the Court to
treat the Motion as one for summary judgment. See Nix v Fulton
Lodge Int’l Assoc. of Machinists & Aerospace Workers, 452 F.2d 794,
797-98 (5th Cir. 1972); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th
Cir. 1995).
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administrative remedies before filing this lawsuit, and therefore
the Court has no subject matter jurisdiction over the dispute.
Def.’s Mot. at 3. Second, Defendant takes the position that
Plaintiffs, as federal employees, do not enjoy protection under
Section 501 of the Rehabilitation Act and therefore the CSOs fail
to state a claim upon which relief can be granted. Defendant also
maintains that Plaintiffs’ Fifth Amendment challenge to their
termination is preempted by statute and, therefore, also fails to
state a claim. Id.A. Defendant Is Entitled to Judgment on the Pleadings on the
Section 501 Claims for the Five Plaintiffs Who Failed to
Exhaust Their Administrative Remedies.
Before proceeding to the analysis of the exhaustion issue, it
is useful to frame the question by reviewing the different
procedural backgrounds of the six Plaintiffs.
Parties agree that Plaintiff Calvert Harvey exhausted his
remedies; parties also agree that four of the remaining Plaintiffs-
-James Dolnack, Herman Edwards, Gary Erickson, and Wayne Mize--
failed to do so. See Def.’s Mot. at 6; Am. Compl. ¶¶ 44-46.
Plaintiffs suggest in their Amended Complaint that the sixth
Plaintiff, Byron Neal, failed to exhaust his administrative
remedies. See Am. Compl. at ¶ 44 (alleging that “Plaintiff Neal is
excused from exhausting any administrative remedies. . . .”); see
also Decl. of Joann W. Grady, Oct. 11, 2006 (“Grady Decl.”) (Ex. 1
to Def.’s Mot.), at ¶¶ 4-5 (noting that according to the USMS’s
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Office of Equal Employment Opportunity, only Harvey exhausted his
remedies).
Plaintiffs allege in their complaint that Neal’s failure to
exhaust should be excused under the futility exception because
Defendant interfered with his ability to meet the exhaustion
requirements. Am. Compl. at ¶ 44. In their Opposition, Plaintiffs
address Neal’s failure to exhaust only with respect to his
complaint against Defendant MVM. See Pls.’ Opp’n at 2-3. There is
no argument advanced that his administrative remedies were
exhausted with respect to USMS, other than the futility objection
mentioned in the Amended Complaint.
As to the four remaining CSOs who have failed to exhaust, the
survival of their claims turns on separate arguments. This group
of CSOs maintains that the exhaustion requirement is overcome by
either the doctrine of vicarious exhaustion or of equitable
estoppel. Pls.’ Opp’n at 12.
1. The Doctrine of Vicarious Exhaustion Does Not
Overcome the Statutory Jurisdictional Bar Against
Considering Rehabilitation Act Claims That Have Not
Been Exhausted.
Plaintiffs’ efforts to circumvent the exhaustion requirement
are not new; these arguments were considered and rejected in a 2006
decision issued by the Court. Int’l Union, United Gov’t Security
Officers of America v. John Clark, No. 02-CV-1484, 2006 WL 2598046,
at *8-12 (D.D.C. Sept. 11, 2006). In earlier briefing, Defendant
argued that Plaintiffs’ failure to exhaust their administrative
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remedies entitled him to judgment on the pleadings. Plaintiffs
responded by contending that (1) because some Plaintiffs did
exhaust their remedies, the claims of those who did not exhaust
should survive under the doctrine of vicarious exhaustion; and (2)
because Defendant’s affirmative misconduct prevented Plaintiffs
from exhausting their remedies, USMS should be equitably estopped
from asserting a failure-to-exhaust defense. See id. at *8; cf.
Lipscomb v. Winter, 577 F. Supp. 2d 258, 271 (D.D.C. 2008).
The Court approached the vicarious exhaustion issue in the
wake of the Court of Appeals’ decision in Spinelli v. Goss, 446
F.3d 159 (D.C. Cir. 2006). That decision held that district courts
in this Circuit are jurisdictionally barred from hearing
Rehabilitation Act claims if plaintiffs have not exhausted their
administrative remedies. Id. at 162. This Court held in its
earlier opinion that the jurisdictional bar cannot be overcome by
the doctrine of vicarious exhaustion, see Int’l Union, 2006 WL
2598046, at *8; 10 (“Plaintiffs provide no rationale for excluding
vicarious exhaustion from the category of ‘other exceptions’
precluded by Spinelli and the Court cannot conceive of one.”).
Nevertheless, a different group of CSOs now makes the same argument
in response to Defendant’s Motion. See Pls.’ Opp’n at 12
(“[P]laintiffs raise again the same arguments.”). For the reasons
discussed in its 2006 opinion, the arguments must again fail. The
Court does not have subject-matter jurisdiction over claims made by
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those Plaintiffs who failed to exhaust administrative remedies.3
Plaintiffs attempt to revive an equitable exception to this
jurisdictional bar by citing to a recent case that bears on the
issue. Relying on the Court of Appeals’ decision in Harris v.
Gonzales, 488 F.3d 442 (D.C. Cir. 2007), they seek to establish the
general proposition that “exhaustion in discrimination cases should
be subject to estoppel exceptions that are not strictly construed.
. . .” Pls.’ Opp’n at 13. The decision, they maintain, leaves
room for the Court to allow non-exhausted claims to survive
Spinelli based on equitable considerations. See id. (“[T]he
[Harris] [C]ourt indicated that the doctrine of equitable relief
from exhaustion of administrative remedies is still alive.”).
The Court disagrees that Harris provides an end-run around the
jurisdictional bar in this case. In Harris, the plaintiff was
granted relief at the summary judgment stage. The regulation
controlling the case required the federal agency or EEOC to extend
the 45-day time limit to contact an EEOC counselor to complain of
workplace discrimination where the Plaintiff had not received
sufficient notice of that time limit. 488 F.3d at 443-44. The Court
of Appeals ruled that whether or not that plaintiff had been
3
Insofar as the CSOs in this case are raising issues that
have already been decided by this Court, the claims are also barred
by the doctrine of res judicata. See, e.g., Walker v. Seldman, 471
F. Supp. 2d 106, 112 (D.D.C. 2007).
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provided with constructive notice of her EEOC obligations was a
material fact in dispute. Id. at 446 (reversing district court’s
grant of summary judgment for defendant). The issue involved
equitable tolling for a plaintiff who had filed an administrative
complaint and may or may not have had constructive notice of EEOC
time limits. Id.
The Harris decision says nothing about the limits of Spinelli,
nor does it even cite the case. Harris does not create any
exceptions to the jurisdictional requirement in that case. Cf.
Spinelli, 446 F.3d at 162 (“[A] court may ‘not read futility or
other exceptions into statutory exhaustion requirements where
Congress has provided otherwise.’”) (citations omitted). As a
result, this Court rejects Plaintiffs’ argument that Harris would
justify “applying principles of vicarious exhaustion and equitable
estoppel in this case.” Pls.’ Opp’n at 14.
2. Defendant Is Not Equitably Estopped From
Raising an Exhaustion Defense.
Plaintiffs argue that Defendant’s alleged misconduct equitably
estops USMS from raising a failure to exhaust defense. See Pls.’
Opp’n. at 25-30. They claim that USMS told this group of
Plaintiffs that they had “no right to appeal their removal,” and
failed to inform Plaintiffs that “they were protected from
disability discrimination . . . under Section 504” and Section 501
of the Rehabilitation Act. Id. at 28-29.
The issue of equitable estoppel was also addressed in the
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Court’s 2006 Memorandum Opinion. Int’l Union, 2006 WL 2598046, at
*10-12. There, Plaintiffs asserted that the Defendant told
medically-disqualified CSOs that their service contracts did not
include an appeals process, and that the USMS failed to follow the
law and notify CSOs about their internal EEOC process. Id. at *12.
They argued, as they do here, that such misconduct on the part of
the Defendant prevents him from invoking an exhaustion defense.
Id.; Pls.’ Mot. at 30-31. There is “a clear presumption in this
Circuit against invoking the doctrine against government actors in
any but the most extreme circumstances” Int’l Union, 2006 WL
2598046, at 12. In its 2006 opinion, the Court granted Defendant’s
Motion to Dismiss for failure to exhaust. See id. (finding
doctrine of equitable estoppel “inapplicable on these facts”).
As explained in the Court’s earlier decision, the Defendant’s
alleged negligence and provision of erroneous information are not
sufficiently “extreme” conduct to allow survival of Plaintiffs’
equitable estoppel claim. See id. at *12.
B. Because Plaintiffs Are Federal Employees Under the
Rehabilitation Act, They Are Not Permitted to Bring
Employment Discrimination Claims under Section 504.
Defendant argues that Plaintiffs are barred from bringing
employment discrimination claims under Section 504 because they are
federal employees. See Def.’s Mot. at 7-8; see also Taylor v.
Small, 350 F.3d 1286, 1289 (D.C. Cir. 2003) (holding that Section
504 does not provide relief for federal employees). In its 2006
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Memorandum Opinion, the Court determined that the USMS is a joint
employer of CSOs, see Int’l Union, 2006 WL 2598046, at *8;
Plaintiffs admit as much in their Amended Complaint, see ¶ 29
(“[D]efendant USMS was a co-employer of Plaintiffs along with the
federal contractors. . . .”). Therefore, as federal employees,
Plaintiffs may not seek relief under Section 504.
Further, Plaintiffs do not respond to Defendant’s argument on
this point. It is a long-established policy that when a party’s
opposition to a motion fails to respond to arguments raised by the
opposing party, a court may treat those unopposed arguments as
conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997),
cited with approval in Hopkins v. Women’s Div., Gen. Bd. of Global
Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002); see also Day v.
D.C. Dep’t of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154,
159 (D.D.C. 2002).
In this case, Defendant argues that USMS is a joint employer
of the CSOs “for purposes of this case,” Def.’s Mot. at 7-8, which
makes Plaintiffs federal employees, and prohibits them from seeking
relief under Section 504. See Small, 350 F.3d at 1289. Plaintiffs
failed to counter Defendant’s argument on this point. See Def.’s
Mot. At 7-8. As a result, Plaintiffs are deemed to have conceded
the argument, and Defendant’s Motion to Dismiss is granted with
respect to this claim.
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C. Plaintiffs’ Constitutional Claim Is Not Preempted By
Title VII.
1. Plaintiffs’ Constitutional Claim Is Not Preempted
by Title VII if It Is Not Directly Related to Their
Discrimination Claims.
Defendant argues that Plaintiffs’ Fifth Amendment claim is
preempted by the statutory remedies provided in Title VII. He
relies on the Supreme Court’s decision in Brown v. General Services
Administration, 425 U.S. 820 (1976), which considered carefully the
“balance, completeness, and structural integrity” of a provision of
the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-16, and
concluded that it “provides the exclusive judicial remedy for
claims of discrimination in federal employment,” Brown 425 U.S. at
832, 835. Plaintiffs bring their discrimination claims under the
Rehabilitation Act, which incorporates Title VII. See Shirey v.
Devine, 670 F.2d 1188, 1191 n.7 (D.C. Cir. 1982). “[T]his circuit
has repeatedly held that federal employees may not bring suit under
the Constitution for employment discrimination that is actionable
under Title VII.” Ethnic Employees of Library of Congress v.
Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985).
The Brown rule with respect to preemption, however, is not
without its exceptions. The Brown decision does not mean that all
non-Title VII claims are foreclosed in lawsuits that involve
employment discrimination. Courts have found that employees may
bring Constitutional or statutory claims for which “Title VII
provides no protection at all.” Boorstin, 751 F.2d at 1415. For
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example, in McKenna v. Weinberger, 729 F.2d 783, 791 (D.C. Cir.
1984), Plaintiffs brought claims of sex discrimination and
retaliation under Title VII, as well as a claim that the employer
failed to follow its own procedures in violation of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.
McKenna, 729 F.2d at 785. The Court of Appeals reasoned that her
APA claims raised an issue distinct from her discrimination claims.
Because she complained of “arbitrary treatment” under the APA, she
raised an issue “entirely independent of her discrimination claim,”
and for that reason the McKenna Court held that Title VII did not
preclude the APA claim. Id.Therefore, where the Constitutional or statutory claims raise
issues unrelated to discrimination, Brown has no pre-emptive
effect. See Rochon v. FBI, 691 F. Supp. 1548, 1555 (D.D.C. 1988)
(“Accordingly, Brown stands for the proposition that Title VII
preempts other remedies for discrimination in federal employment
only when the federal employee is challenging action directly and
singularly related to discrimination in the terms and conditions of
his or her employment.”) (emphasis in original). Therefore,
Plaintiffs in this case may bring due process claims under the
Fifth Amendment if those claims cannot be remedied under Title VII,
i.e., if they do not arise out of the “same discrimination.” See
Paegle v. Dep’t of Interior, 813 F. Supp. 61, 66 (D.D.C. 1993).
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2. The Plaintiffs’ Fifth Amendment Claim Is Not
Preempted by Their Rehabilitation Act Claims.
Plaintiffs argue that their due process claim does not arise
from the same discrimination alleged under their Rehabilitation Act
claims, and therefore cannot be remedied under Title VII.
Plaintiffs assert that their claims present different allegations,
and rely on distinct underlying facts; further, the CSOs maintain
that their due process claim entitles them to relief that Title VII
cannot provide. Pls.’ Opp’n at 10-11. Defendant counters that
Plaintiffs are merely re-stating the discrimination claim in
Constitutional terms, and that the due process challenge is
“parasitic on and inextricably entwined with the Rehabilitation Act
claim. . . .” Def. John Clark’s Reply Brief in Support of His Mot.
to Dismiss Brought by Neal Pls. (“Def.’s Reply”) at 5 [Dkt. No.
248]. In the view of USMS, Plaintiffs’ attempt to distinguish the
two based on the relief sought is unsuccessful. Id. at 6-7.
Defendant says that Plaintiff complains of the same basic
injury--the “loss of a job position”--under Boorstin, 751 F.2d at
1415. Def.’s Reply at 5. Defendant’s position sweeps too broadly.
It is possible, as McKenna demonstrates, to allege distinct
injuries even though the end result for the employee is “the loss
of a . . . job position.”
McKenna claimed that under Title VII, she was fired as
retaliation for bringing complaints of sex discrimination; she
argued in addition that her employer failed to follow its own
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procedures “in effecting her dismissal.” See McKenna, 729 F.2d at
791. In that case, the outcome for the plaintiff was the same
under her Title VII and APA claims: dismissal from her position.
See id. at 785 (describing claims). Despite the ultimate outcome
of the employer’s actions (i.e., loss of a job position), the Court
of Appeals held that the procedural claim under the APA was “not
one of discrimination.” Id. at 791 (emphasis in original). As a
result, the APA claim was not preempted by Title VII.4
Both McKenna and Thorne demonstrate that resolution of the
preemption issue turns on a careful examination of the claims.
Based on the Amended Complaint, it is difficult to determine in
this case, unlike McKenna, precisely what Plaintiffs are pleading.
As to their Fifth Amendment claim, the CSOs maintain that they
had a “constitutionally-protected property interest in their
employment,” and they cannot be deprived of “said employment
4
In a case with similar facts, the district court found that
the Constitutional claims were preempted. See Thorne v. Cavazos,
744 F. Supp. 348, 351-52 (D.D.C. 1990). After agreeing with the
rule set forth above--“[i]n determining whether the remedies
contained in the Rehabilitation Act and the ADEA preempt
plaintiff’s constitutional claims, the pertinent inquiry is whether
plaintiff is ‘seek[ing] to redress the violation of rights
guaranteed by the[se] statutes,’” id. (citation omitted)--the court
addressed the claims. It found that the Constitutional claims were
filed in connection with the retaliation claims; plaintiff was
alleging that the way in which his employer retaliated represented
a constitutional violation. In that case, the court reasoned, the
plaintiff was seeking two remedies for the same retaliatory
behavior, which was actionable under Title VII. Id. at 352. This
was not the case in McKenna, where the plaintiff’s procedural claim
was independent of the retaliation claim, and centered on whether
the employer followed its own regulations. See McKenna, 729 F.2d
at 791. Thorne is therefore distinguishable.
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without due process.” Am. Compl. ¶ 36. Plaintiffs detail the
changes made to the medical clearance policies and process. Id. at
¶¶ 13-17. The CSOs allege that USMS caused them to be terminated
for failing to pass the physical examination, and in doing so
“denied Plaintiffs their right to procedural due process as secured
to them by the Fifth Amendment.” Id. at ¶ 38. Deprived of due
process throughout this period, Plaintiffs “suffered damages due to
their resulting inability to protect themselves from the Defendant
USMS’ unlawful actions.” Id. at ¶¶ 37-38.
Plaintiffs argue that USMS violated the Rehabilitation Act by
“terminating them solely because of their disability or perceived
disability regardless of whether Plaintiffs could perform the
essential functions of their position.” Id. at ¶ 41. The
discrimination claim includes the charge that Defendant failed to
accommodate Plaintiffs’ disabilities or perceived disabilities.
Id. at ¶ 42.
Defendant portrays the due process claim as one that virtually
any federal employee could bring for termination in any context.
Def.’s Reply at 7. Based on the pleadings, it cannot be said
conclusively that Plaintiffs’ due process claim seeks a remedy for
the same basic injury as the Rehabilitation Act claim. As
discussed in this Court’s earlier opinion, see Int’l Union, United
Gov’t Security Officers of America, et al. v. Clark, 02-cv-1484,
Mem. Op. at 14-15 (D.D.C. 2003), given a relatively bare-bones
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pleading of a valid due process claim, “the question remains what
process is due.” Id. at 14 (citation omitted). Plaintiffs suggest
in their Amended Complaint that the USMS was somehow deficient in
providing them with procedural safeguards. (For instance, there
may be a factual dispute about the extent of the procedural
safeguards, and whether they were followed with respect to these
Plaintiffs.) Such a claim “is plausible on its face” and therefore
meets the Plaintiffs’ burden under Twombly. See 550 U.S. at 570.
At this juncture, it would be premature to rule that a due
process claim is preempted because it merely re-states a Title VII
claim. Defendant’s Motion is denied on this point.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss
[Case No. 05-07, Dkt. No. 21] is granted in part and denied in
part. The Section 501 claim brought by Plaintiffs Byron Neal,
James Dolnack, Herman Edwards, Gary Erickson, and Wayne Mize, is
dismissed for failure to exhaust administrative remedies. Each
Plaintiff’s employment discrimination claim under Section 504 of
the Rehabilitation Act is dismissed because they are federal
employees who are barred from bringing such claims--a point which
Plaintiffs concede by failing to respond to Defendant’s arguments.
Finally, Plaintiffs do state a valid claim for denial of due
process under the Fifth Amendment.
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An Order will accompany this Memorandum Opinion.
/s/
April 10, 2010 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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