The plaintiff, Timothy Toms, brings this action under the First and Fifth Amendments and the Privileges and Immunities Clause of Article IV of the United States Constitution, the Architect of the Capitol Human Resources Act, 2 U.S.C. § 1831 (2006), and 2 U.S.C. § 60-l(a) and (b) (2006) against defendants Alan Hantman, Richard McSeveney, Arthur Mclntye, Edgar Martinez, Gerald Walker and Rebecca Tiscione, named in their personal capacities, and against the Architect of the Capitol, Stephen Ayers, in his official capacity. Currently before the Court is the defendants’ Motion to Dismiss Complaint (“Defs.’ Mot.”) pursuant to Federal Rule of Civil Procedure 12(b)(6), which the plaintiff opposes, Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“PL’s Opp’n”). 1 For the reasons set forth below, the Court concludes that the defendants’ motion should be granted.
I. BACKGROUND
A. Factual Background
Viewing the evidence in the light most favorable to the plaintiff, the facts alleged in the complaint are as follows.
On November 1, 1999, the plaintiff was appointed to a GS-13 auditor position in the Office of the Inspector General of the Office of the Architect of the Capitol (“AOC”). Complaint (“Compl.”) ¶ 12. Defendant Mclntye, Inspector General of the AOC, was the plaintiffs first-line supervisor, id. ¶ 15, and defendant Hantman, then the Architect of the Capitol, was the plaintiffs second-line supervisor, id. In April 2003, the plaintiff “was [ ]assigned to [work out of] the ‘trailer’ located on the grounds of the West Front” of the United States Capitol (the “West Front Trailer”). Id. ¶ 41. Tap water was provided to the West Front Trailer, but the plaintiff was not advised “that [it] was not potable and was not to be drunk.” Id. ¶ 43. The plaintiff was not made aware that the tap water should not be consumed until July 2003, at which time he had already been drinking the non-potable water for approximately four months. Id. ¶ 46. To remedy this situation, the plaintiff requested approval of a “purchase order requisition for bottled water and a cooler for use of the occupants of [the] West Front Trailer.” Id. ¶ 48.
“After [a] long delay, on or about January/February 2004, bottled water and a water cooler w[ere] provided [to the plaintiff] and the other occupants of the West Front Trailer.” Id. ¶ 52. The bottled water and water cooler were placed in a kitchen area for general use. Id. ¶ 53. However, Serena Coleman, Director of the Workforce Planning and Management Section of the Human Resources Department, became “displeas[ed]” by the amount of water consumed by Capitol Police Officers and moved the bottled water and water cooler “into the outer office of the Workforce Planning and Management Section of the West Front Trailer.” Id. ¶ 54. This move “deprived] the police officers of [the] potable water and required] the [p]laintiff to enter the office of the Workplace Planning and Management Section to avail himself of the potable water.” Id. ¶ 54. On October 6, 2004, after learning that the Workplace Planning and Management Section would soon move out of the West Front Trailer, the plaintiff moved the bottled water and water cooler into his
By letter dated October 24, 2004, the plaintiffs first-line supervisor, defendant Mclntye, proposed that the plaintiff be terminated as a result of the incident involving Director Coleman. Id. ¶¶ 68-69. On October 26, 2004, the United States Attorney’s Office for the District of Columbia “ ‘no papered,’ ” i.e., declined to prosecute, the criminal charge for which the plaintiff had been arrested. Id. ¶ 72. Three days later, the plaintiff wrote to defendant McSeveney, the Chief Operating Officer of the AOC, informing him that the proposal to terminate the plaintiffs employment was based on erroneous facts and that the criminal charge against him would not be prosecuted. Id. ¶¶ 23, 73-74. Nevertheless, on November 5, 2004, defendant McSeveney agreed with defendant Melntye’s proposal to terminate the plaintiffs employment. Id. ¶ 75.
The plaintiff then requested an administrative hearing on his termination pursuant to Chapter 752 of the AOC Human Resource Manual, and the hearing was held on February 2, 2005. Id. ¶¶ 76, 82. The plaintiff was represented by counsel at the hearing, id. ¶¶ 83, 85, and the AOC was represented by defendant Martinez, an AOC attorney, and defendant Walker, the AOC Chief Employee Relations Specialist, id. ¶¶ 24-25. At the hearing, the plaintiff had the ability to present his own witnesses and to cross-examine the witnesses called by the AOC. Id. ¶¶ 93-94; Compl., Ex. 1 (“AOC Administrative Hearings: Proposed Terminations, A Guide for AOC Employees” (“AOC Guide”)) at 9. The plaintiffs counsel chose to call as his witness the Capitol Police Officer who had arrested the plaintiff, and his attorney cross-examined Director Coleman and defendant Mclntye, who were called as witnesses by the AOC. Compl. ¶¶ 93-97. The plaintiffs counsel also had the opportunity to present a “closing statement” in “response to the Office’s charges and the penalty proposed.” Compl., Ex. 1 (AOC Guide) at 9.
According to the plaintiff, “[statements were provided to USCP Police Officers and/or USCP Detectives by the alleged victim and witnesses[,] which [were not] provided [to the plaintiff) prior to the commencement of the administrative hearing on February 2, 2005.” Compl. ¶ 87. They were not provided even though “at the commencement of the hearing on February 2, 2005, [the plaintiffs counsel] requested a copy of [these] statements.”
2
Id.
¶ 88. The plaintiffs counsel also requested a copy of the tape recording of the
On February 24, 2005, defendant McSeveney, on behalf of the AOC, sent the plaintiff a letter indicating that his employment with the AOC was to be terminated. Id. ¶ 98. The plaintiff received this letter on March 1, 2005, and his termination became effective on March 4, 2005. Id. Subsequent to the administrative hearing, the plaintiff, “by [a] March 10, 2005 letter to [defendant Walker and two additional oral requests thereafter,” requested a copy of the tape recording of the administrative hearing and a copy of the Hearing Officer’s report. Id. ¶ 101. Defendant Walker advised the plaintiff at all times that the tape was unavailable and that he was not entitled to a copy of the report. Id. ¶ 102.
B. Toms I
Unsatisfied with the procedures and events leading up to and following his termination, the plaintiff filed a complaint in this Court on October 6, 2005, against then-Architect Hantman and defendant Mclntye, along with a number of other employees of the AOC in their personal capacities. See Toms v. Hantman (“Toms I”), No. 05-1981 (D.D.C. Feb. 15, 2007). 3 There, the plaintiff brought Bivens actions against the defendants, 4 alleging, inter alia, that he had been deprived of his Fifth Amendment right to procedural due process because “ ‘[tjhere is no appeal from the [AOC’s termination] process, and the hearing officer ... produced a report which [the plaintiff] has never seen.’ ” Id. at 9. Judge Friedman dismissed the plaintiffs complaint in its entirety on Feb. 15, 2007, ruling that “[the] plaintiff was afforded procedural due process in this matter.... Neither an appeals process nor a final report available to the employee are required for constitutionally adequate procedural due process — [the] plaintiff was entitled to, and received, notice and an opportunity to be heard.” Id. at 9. The plaintiff appealed the decision of the Court, but the appeal was dismissed for lack of prosecution. Defs.’ Mem. at 6.
C. Toms II
Unsatisfied still with his termination, the plaintiff filed the present action on February 7, 2008. The plaintiff alleges in his complaint that he was terminated from his auditor position with the AOC by the defendants “absent a preponderance of the evidence” in violation of his Fifth Amendment right to substantive due process and the AOC employee grievance procedures promulgated by Chapter 752 of the AOC’s Personnel Manual in accordance with 2 U.S.C. § 1831 (2006) and 2 U.S.C. § 60-1 (2006). Compl. ¶ 116. The plaintiff further alleges that the defendants, in violation of the plaintiffs First Amendment right of access to the courts, his Fifth Amendment right to procedural due process and equal protection, his rights under the Privileges and Immunities Clause of Article IV of the Constitution, and the procedures promulgated by Chapter 752 of the AOC Personnel Manual in accordance with 2 U.S.C. § 1831 and 2 U.S.C. § 60-1, refused to provide the plaintiff with the
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff properly has stated a claim” upon which relief can be granted.
Woodruff v. DiMario,
Finally, a court in this District, at least when the plaintiff is represented by counsel, may consider as conceded any arguments raised by a defendant’s Rule 12(b)(6) motion that are not addressed in a plaintiffs opposition.
See Tnaib v. Document Tech., Inc.,
III. LEGAL ANALYSIS
A. The Defendants’ Statute of Limitations Challenge
The defendant argues that because “the
only
allegedly unlawful conduct that took place within three years of February 27, 2008, was defendant Hantman’s decision to terminate [the] plaintiffs employmentf,]” the complaint is barred against the remaining defendants named in their personal capacities by the three-year statute of limitations applicable to
Bivens
claims of the type brought by the plaintiff. Defs.’ Mem. at 18-19;
see
D.C.Code § 12-301(4), (8) (2006) (creating one-year statute of limitations for “libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment,” and also a three-year limitations period for other claims “for which a limitation is not otherwise specially prescribed”);
Bame v. Clark,
Although a defendant may raise the affirmative defense of non-compliance with an applicable statute of limitations in a pre-answer motion to dismiss, the District of Columbia Circuit has “repeatedly held ... [that] courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.”
Firestone,
B. Defendants Hantman and Mclntye’s Res Judicata Challenge
Defendants Hantman and Mclntye argue that because “[the plaintiff has] already sued [these defendants] in their individual capacities [in
Toms I
] based on his termination and the administrative process underlying that decision,” res judicata (claim preclusion) bars the present suit against them with regards to all the plaintiffs claims. Defs.’ Mem. at 8-9. The doctrine of res judicata, which acts to “conserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and to prevent serial forum-shopping and piecemeal litigation,”
Hardison v. Alexander,
The defendants point out that “[a]t th[e] time [the plaintiff filed Toms I, he] was aware of all the facts underlying his claims in [the present action], and his claims in both lawsuits are based on the same nucleus of facts.” Defs.’ Mem. at 9. Thus, the defendants argue, not only is the plaintiff barred from “re-litigating his [procedural] due process claims against [defendants Hantman and Mclntye,]” but “[r]es judicata also prevents [the plaintiff] from raising [new substantive due process and statutory] claims against them because he plainly could have (and should have) done so in Toms I.” Id. In response, the “[p]laintiff does not dispute that the standards for [res judicata] have been met,” Pl.’s Opp’n at 8, but instead seeks to establish that a number of exceptions to res judicata relieve the judgment in Toms I of preclusive effect, id. at 1. Because the Court concludes that the plaintiffs claimed exceptions to res judicata have no application to the present action, it accordingly must dismiss the claims against defendants Hantman and Mclntye with prejudice.
The Supreme Court of the United States has “stressed that the doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, of public policy and of private peace, which should be cordially regarded and enforced by the courts.”
Moitie,
The plaintiff argues first that the existence of “materially changed circumstances that implicate controlling facts” and that “[have created] new legal conditions” compel the conclusion that he was prevented from “hav[ing] a full and fair opportunity to procedurally, substantively, and evidentially pursue his claims in Toms /[.]” See Pl.’s Opp’n at 1, 8, 10, 12-13. After Toms I — indeed, four months after the present action was filed — a previously confidential discovery ruling based on a supposed judicial admission against interest by counsel for the AOC in an unrelated administrative hearing involving the proposed termination of another AOC employee, see PL’s Opp’n, Ex. 2 (AOC Office of Compliance, Robert Solomon v. AOC transcript) at 7-9, came to light and establishes that the Hearing Officer’s report is not entitled to any privilege or confidentiality, contrary to the position taken in the plaintiffs termination proceedings, see PL’s Opp’n at 8-10, 12-13. The plaintiff argues that this “judicial admission against interest” by an AOC official constitutes “crucial evidence” that was “legally unavailable” to the plaintiff at the time of Toms I, id. at 10, thereby creating “materially changed factual and legal circumstances that ... implicate the necessity of providing an [AOC] employee with the [Hearing Officer’s report] to comply ... with the process due an [AOC] employee,” id. at 11-12.
The plaintiffs position is without merit. Only “on rare occasions” involving “paramount questions of constitutional law or exclusive jurisdiction” will subsequent judicial pronouncements on matters of law serve as a basis for overriding the bar of res judicata.
Hardison,
Finally, the plaintiff argues that “it was totally impracticable ... to bring a substantive due process claim in
Toms 1
absent the Hearing Officer’s [report, because the plaintiff] could not argue the merits of his termination without the evidence [in that report] upon which his termination was based.” Pl.’s Opp’n at 13. This argument fails as well. There is nothing to indicate, and the plaintiff has not alleged, that he could not have pled a substantive due process violation claim in
Toms I
and used the discovery process to obtain the report in that action.
See generally Compl.;
Pl’s Opp’n. Indeed, the Hearing Officer’s report appears well within the scope of initial disclosures required by the Federal Rules of Civil Procedure.
See
Fed.R.Civ.P. 26(a), (b). Even if the process to obtain the Hearing Officer’s-report would have been substantially more protracted in
Toms I
than it would be today, the difficulty posed to the plaintiff at that time was not “utter impracticability.”
Compare Apotex,
For the foregoing reasons, the plaintiff has failed to establish an exception to the application of res judicata. Given the plaintiffs concession that the elements of res judicata are otherwise satisfied, PL’s Opp’n at 8, the Court finds that the claims against defendants Hantman and Mclntye are barred, and must be dismissed with prejudice.
C. The Remaining Defendants’ Collateral Estoppel Challenge to the Plaintiffs Procedural Due Process Claims
The defendants argue that “[c]ollateral estoppel bars [the plaintiffs] Fifth Amendment [procedural] due process claims against all of the [defendants.” Defs.’ Mem. at 9. Under the doctrine of collateral estoppel, “a final judgment on the merits in a prior suit precludes subsequent relitigation of [legal and factual] issues actually litigated and determined in the prior suit, regardless of whether the subsequent suit is based on the same cause of action.”
NextWave Pers. Commc’ns, Inc. v. FCC,
The defendants contend that the decision in
Toms I
to dismiss with prejudice the plaintiffs procedural due process claim on the grounds that the plaintiff received constitutionally adequate process prior to his termination should preclude its relitigation in the instant action.
See
Defs.’ Mem. at 9-11;
Toms I,
No. 05-1981 at *4, 9 (finding that “[n]either an appeals process
nor a final report available to the employee
are required for constitutionally adequate procedural due process — [the] plaintiff was entitled to, and received, notice and an opportunity to be heard.” (emphasis added));
supra
Part I.B. The plaintiff “does not dispute” that the procedural due
D. Concessions of Defense Challenges
As discussed above, “[w]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded.”
Tnaib,
The only claims that now remain alive are the plaintiffs substantive due process claims against the defendant Ayers in his official capacity as the Architect of the Capitol seeking injunctive relief — reinstatement to his position as an auditor with the AOC. See Compl. ¶¶ 113, 117. As to these claims, the plaintiff alleges: (1) that the refusals by officers of the AOC to provide him with “alleged victim and witness statements provided by the United States Capitol Police Officers and/or Detectives,” a tape recording of the administrative hearing, and the Hearing Officer’s report constitute a denial of substantive due process, see id. ¶¶ 105, 109, 112; and (2) that he was terminated from his auditor position “absent a preponderance of the evidence,” also in violation of his Fifth Amendment right to substantive due process, id. ¶ 116.
“[Substantive due process constrains only egregious government misconduct,”
Decatur Liquors v. District of Columbia,
Finally, the plaintiff alleges a substantive due process violation arguing that
Accordingly, neither the plaintiffs perceived procedural deficiencies nor his insistence upon the applicability of the preponderance standard of proof raise a substantive due process violation, and therefore these claims must also be dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, the plaintiff has failed to allege any claim upon which relief may be granted, and accordingly his complaint must be dismissed in its entire
Notes
. The Court also considered the following documents that were filed in connection with this motion: (1) the plaintiff's Complaint ("Compl.''); (2) the defendants' Memorandum in Support of Defendants’ Motion to Dismiss (“Defs.' Mem.”); and (3) the defendants' Reply in Support of Defendants' Motion to Dismiss ("Defs.’ Reply”).
. The plaintiff does not identify who actually made these statements or what these individuals said; nor does the plaintiff allege that these statements were in the possession of the AOC or its counsel, or that these statements were used against him at the hearing or as a basis for terminating his employment. See Compl. ¶ 87-88.
.A copy of the Toms I complaint and the Court's decision in that case has been submitted with the Memorandum in Support of Defendants' Motion to Dismiss as Defendants' Exhibits 2 and 3, respectively.
.See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
. This list of exceptions to res judicata is not exhaustive and is confined to those asserted by the plaintiff.
. The plaintiff also argues by analogy to the Sixth Amendment to the United States Constitution that because he did not yet know of the judicial admission against interest during the litigation of
Toms I,
"there was a breakdown in the adversary process that rendered the result of [that] proceeding ... unreliable as it fell below an objective standard of reasonableness and that there is a reasonable probability that, [had the plaintiff known of that admission], the result of
[Toms
/] would be different." Pl.’s Opp'n at 18. The proceedings of
Solomon
belie this argument, as despite the judicial admission against interest, Judge Lamberth found, and the D.C. Circuit affirmed, that as a matter of constitutional law, the plaintiff was not entitled to a copy of the Hearing Officer’s report, and accordingly dismissed his complaint with prejudice for failure to state a claim upon which relief could be granted.
See Solomon,
. Tellingly, the "crucial evidence” the plaintiff relies on in attempting to establish an exception to res judicata surfaced four months after the filing of this action. PL’s Opp’n at 2. Accordingly, nothing at all had changed when the plaintiff filed the instant complaint.
. Although all the plaintiff's claims against defendants Hantman and Mclntye have been dismissed on res judicata grounds, see id. at 8-10, the dismissal of the plaintiff's procedural due process claim on collateral estoppel grounds applies equally to them as well.
. Regarding the defendant’s arguments for dismissal of the plaintiff's Bivens claims, the plaintiff notes in his Opposition only that "the [defendants ... are not entitled to qualified immunity from the Bivens claim of the [pjlaintiff." Pl.’s Opp'n at 24. This is not responsive to the defendants’ argument that the existence of a comprehensive remedial scheme for AOC employees to contest their proposed terminations, created in accordance with the requirements of 2 U.S.C. § 1831, forecloses the plaintiff’s attempt to assert Bivens claims against the individual defendants. See Defs.’ Mem. at 11-12.
.Because the plaintiff has conceded by failing to address in his opposition the defendants' arguments advocating dismissal
on the merits
of the plaintiff’s Human Resources Act claims, his
Bivens
claims against the defendants named in their individual capacities, and his claims for money damages against defendant Ayers in his official capacity as the
Accordingly, only the plaintiff's substantive due process claims for injunctive relief against defendant Ayers in his official capacity as the Architect of the Capitol remain, and each claim shall be addressed in the final section of this memorandum opinion.
. As a threshold matter, for a plaintiff to allege a substantive due process violation, he must allegedly have been arbitrarily deprived of a fundamental right or liberty or property interest that is based in the United States Constitution.
See Regents of the Univ. of Mich.
v.
Ewing,
. Indeed, the District of Columbia Circuit noted that "[t]he merits of the parties’ positions are so clear as to warrant summary action[,]” and accordingly affirmed the District Court's dismissal of the AOC employee’s substantive due process claim. Solomon, No. 08-5152 (D.C.Cir. Dec. 12, 2008).
. The plaintiff has submitted with his Opposition a copy of a Hearing Officer's report from an unrelated AOC termination hearing.
See
Pl.’s Opp’n, Ex. 3 (“Hearing, Summary, Findings and Recommendation by Hearing Officer Gloria Johnson, Nov. 29, 2003”). This report belies the plaintiff's position, noting as it does that "[o]ne of the primary substantive elements [of just cause for termination] is the production of
substantial evidence
that the employee actually engaged in the misconduct for which he is being discharged or disciplined.”
Id.
at 10 (emphasis added). As other members of this Court have noted, the "substantial evidence” standard is usually understood to "require[] more than a scintilla, but can be satisfied by something less than a preponderance of the evidence.”
Feinerman v. Bernardi,
. An Order consistent with the Court's ruling accompanies this Memorandum Opinion.