COLEMAN v. NAPOLITANO et al

Filing 14

MEMORANDUM OPINION regarding defendant's 9 Motion to Dismiss. Signed by Judge Beryl A. Howell on August 25, 2014. (lcbah3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN COLEMAN,
Plaintiff,
Civil Action No. 13-cv-1307 (BAH)
v.
Judge Beryl A. Howell
JANET NAPOLITANO, in her official
capacity as Secretary of the Department of
Homeland Security,
Defendant.

MEMORANDUM OPINION
The plaintiff, John Coleman, an employee within the Department of Homeland Security
(“DHS”), filed this action against defendant Janet Napolitano, in her official capacity as
Secretary of the DHS, to challenge, as violative of his constitutional due process rights, his
reassignment between components of DHS, even though the reassignment did not result in any
reduction in his grade or pay. Pending before the Court is the defendant’s Motion to Dismiss,
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter
jurisdiction and failure to state a claim upon which relief can be granted, respectively. Def.’s
Mot. to Dismiss at 1, ECF No. 9. For the reasons set out below, the defendant’s motion to
dismiss is granted.
I.

BACKGROUND
The undisputed facts in this case, as set forth in the Complaint, may be briefly

summarized as follows: In 2007, the plaintiff was a GS-118-13 Criminal Investigator within
Homeland Security Investigations (“HSI”), which is the largest investigative branch of DHS.
Compl. ¶¶ 1, 2. Effective February 18, 2007, the plaintiff received a temporary promotion to a
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GS-1811-14 position within another DHS department called the Office of Professional
Responsibility (“OPR”), “which is tasked with investigating allegations of employee
misconduct; overseeing detention functions; reviewing HSI programs and offices; and personnel
security, including background investigations and security clearance adjudications.” Id. ¶¶ 1, 4,
5. The advertisement made clear that the position was “a TEMPORARY ASSIGNMENT” and
may be accompanied by “a TEMPORARY PROMOTION not to exceed three (3) years.” Id. ¶ 3
(capitalization in original). The advertisement further stated that the temporary “assignment
may be terminated any time depending on the needs of the service” and that “[u]pon completion
of assignment, selectee(s) will be returned to position held prior to selection.” Id.
The following year, on August 5, 2008, the plaintiff received a memorandum (“2008
Memorandum”) from OPR’s deputy director, informing him that his permanent position of
record as GS-1811-13 Criminal Investigator in HIS “will be reassigned from [HSI] to [OPR].”
See Pl.’s Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”), Exhibit A (“2008 Memorandum”), at 1,
ECF No. 12-1. The 2008 Memorandum also indicated that: “[t]he effective date of this
reassignment action will coincide with the effective date of your current temporary assignment
with OPR, so that your temporary promotion will not be impacted and to avoid pay
interruptions.” Id. The document explicitly stated that the plaintiff was “still subject to the
conditions of employment as stated in the vacancy announcement [LAG-OPR-126852-RT-321]
from which you were selected for your current temporary assignment.” Id.; see Compl. ¶¶ 3-4
When the plaintiff’s position with OPR at a GS-14 level was set to expire, the DHS
extended the position for an additional year twice—once in 2010 and then again in 2011.
Compl. ¶¶ 7-8. On February 12, 2012, the plaintiff’s temporary position at a GS-14 level
expired, and was again temporarily extended from November 2012 until March 2013, when he

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was scheduled to return to his GS-1811-13 position. Id. ¶ 10. Before the expiration of his
temporary GS-14 position in OPR expired, the plaintiff’s GS-1811-13 position was reassigned
from OPR back to HSI on January13, 2013. Id. ¶¶ 9, 11.1
Shortly thereafter, the plaintiff filed this action claiming that his transfer or reassignment
from OPR back to his original position in HSI was an “arbitrary and capricious” action that
violated his due process rights. Id. ¶ 12-13. The plaintiff seeks equitable relief directing DHS to
reassign his permanent position from HSI to OPR. See id., Prayer of Relief. The defendant’s
motion for dismissal is now ripe for consideration.
II.

LEGAL STANDARD
A.

Subject Matter Jurisdiction Under Rule 12(b)(1)

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, –––U.S. ––––, 133 S. Ct. 1059 (2013)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal
courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d
116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether
the constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd.
by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy
of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case,
the court must dismiss it. McManus v. District of Columbia, 530 F. Supp. 2d 46, 62 (D.D.C.
2007).

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The plaintiff makes clear that only the 2013 reassignment of his position to HSI, not the change in job
grade that occurred when the plaintiff moved from his temporary promotion to his permanent position of record, is
at issue in this case, explaining that the “temporary promotion to a GS-1811-14 position is not an issue in this case.
The narrow issue is the propriety of his reassignment from the OPR position back to the HSI Office of Investigations
position.” See Pl.’s Opp’n at 2 n. 1.

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When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
all uncontroverted material factual allegations contained in the complaint and “construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
facts alleged and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal citations and quotation marks omitted).
The court need not accept inferences drawn by the plaintiff, however, if those inferences are
unsupported by facts alleged in the complaint or amount merely to legal conclusions. See
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject matter
jurisdiction, the court, when necessary, may look beyond the complaint to “undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Herbert, 974 F.2d at 197; see also Alliance for Democracy v. FEC,
362 F. Supp. 2d 138, 142 (D.D.C. 2005).
B.

Failure to State a Claim Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A
motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of success on the merits; rather it
tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6)
motion, a complaint must offer “more than labels and conclusions” to provide “grounds” of
“entitle[ment] to relief.” Twombly, 550 U.S. at 555 (alteration in original). “Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

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Aschcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557) (alteration in
original). The Supreme Court has stated “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
III.

DISCUSSION
The defendant contends that the Complaint must be dismissed on two separate bases:

First, the defendant argues that the Court lacks subject matter jurisdiction to hear this matter
because the Civil Service Reform Act (“CSRA”) authorizes the plaintiff to challenge an adverse
personnel action only through a hearing before the Merit Systems Protection Board (“MSPB”)
and subsequent appeal to the Federal Circuit. See Def.’s Mem. Supp. of Mot. to Dismiss
(“Def.’s Mem.”) at 3, ECF 9. Second, the defendant posits that the Complaint must be dismissed
for failure to state a claim upon which relief may be granted. See id. at 6-10. Each of these
arguments is addressed below.
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
According to the defendant, this Court lacks subject matter jurisdiction to hear the
plaintiff’s constitutional due process claim because “[t]he CSRA ‘established a comprehensive
system for reviewing personnel action taken against federal employees.’” Def.’s Mem. at 3
(quoting United States v. Fausto, 484 U.S. 439, 455 (1988)).2 Under the CSRA, the plaintiff

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The defendant also correctly argues that any claim asserted by the plaintiff under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), is precluded by the CSRA. Def.’s Mem. at 3-4; see Grosdidier v.,
Broad Chairman. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009) (“As our Court has emphasized, the CSRA
is comprehensive and exclusive. Federal employees may not circumvent the [CSRA] requirements and limitations
by resorting to the catchall APA to challenge agency employment actions.”); see also Lacson v. U.S. Dep’t of
Homeland Sec., 726 F.3d 170, 175 (D.C. Cir. 2013). The plaintiff does not contest this point and clarifies in his

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“has the right to a hearing before the [MSPB], and if dissatisfied by the MSPB’s decision, the
employee is entitled to judicial review in the Federal Circuit.” Def.’s Mem. at 3. Both parties
agree that “[o]nly certain personnel actions, described as adverse actions, are subject to review
under CSRA,” id., and that “a reassignment, such as the reassignment at issue here, without loss
of rank or pay is not an adverse action” entitled to administrative review. Pl.’s Opp’n at 5; see
Def.;s Mem. at 3.3 Nevertheless, the defendant insists that the Court lacks jurisdiction to
determine whether the plaintiff’s reassignment from OPR to HSI “violated Plaintiff’s due
process rights,” Compl. ¶12, because the CSRA is the “exclusive” system for challenging
personnel actions taken against federal employees and “applies to constitutional challenges to
federal personnel decisions just as much as to non-constitutional challenges.” Def.’s Mem. at 5.
If the defendant’s position is correct, and this Court lacks subject matter jurisdiction, then no
forum exists for review of the plaintiff’s constitutional claim.
The Supreme Court recently recognized that such a case could arise, where a finding of
lack of subject matter jurisdiction, based on the CSRA’s comprehensive system, could entirely
preclude review of a constitutional claim. In Elgin, the Supreme Court concluded that the
district court lacked subject matter jurisdiction to hear a constitutional challenge to a federal
statute because the “CSRA grant[ed] the MSPB and the Federal Circuit jurisdiction over
petitioners’ appeal because they [were] covered employees challenging a covered adverse
employment action.” See Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2139 (2012). The fact
that the “petitioners’ constitutional claims [could] receive meaningful review within the CSRA

opposition that he is only asserting a constitutional due process claim. See Pl.’s Mem. at 5 (“[i]n the absence of just
cause for the reassignment, the arbitrary and capricious adverse action violates Plaintiff’s due process rights.”).
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“Under the Civil Service Reform Act of 1987 (CSRA), 5 U.S.C. § 1101 et seq., certain federal employees
may obtain administrative and judicial review of specified adverse employment actions.” Elgin v. Dep’t of
Treasury, 132 S. Ct. 2126, 2130 (2012). The parties do not contest that the plaintiff’s reassignment is not one of the
specified adverse employment actions subject to administrative or judicial review.

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scheme” was essential to the Court’s holding. Id. Indeed, the Court explicitly stated that if a
finding of lack of jurisdiction would entirely foreclose review of the petitioners’ constitutional
claim, then under the precedent, in Webster v. Doe, 486 U.S. 592, 603 (1988), a “heightened
showing” of Congressional intent to preclude review would be required. See id. at 2132 (“where
Congress intends to preclude judicial review of constitutional claims[,] its intent to do so must be
clear”). The Court in Elgin did not consider whether the CSRA met this “heightened showing”
because the CSRA did “not foreclose all judicial review of petitioners’ . . . constitutional
challenges to federal statutes.” Elgin, 132 S.Ct. 2132-33; see Def.’s Mem. at 3.
The defendant argues that Elgin precludes the plaintiff’s claim from being brought in this
Court. As explained above, however, the holding in Elgin is inapposite because if this Court
lacks jurisdiction, then the plaintiff’s due process claim will not be “channeled” to another
judicial forum but entirely foreclosed. Pl.’s Opp’n at 5-7. Rather, in order to comply with Elgin,
a heightened showing of Congressional intent to foreclose review must be found in the CSRA
before the court may dismiss for want of subject matter jurisdiction. This analysis is required “to
avoid the serious constitutional question that would arise if a federal statute were construed to
deny any judicial forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. at 603
(citations and quotations omitted).4 Recently, in Davis v. Billington, CV 10-00036 (RBW), 2014
WL 2882679, at *5 (D.D.C. June 25, 2014), another Judge on this Court engaged in this

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The defendant also argues that United States v. Fausto, 484 U.S. 439 (1988) and Manning v. MSPB, 742
F.2d 1424 (Fed. Cir. 1984), foreclose the plaintiff’s claim but both of these cases are inapposite. In Fausto, 484
U.S. at 455, the Supreme Court found that the CSRA’s exclusion of a class of employees from Chapter 75 of the
CSRA, precluded the respondent from bringing a statutory, not, as here, a constitutional, challenge. In Manning, the
Federal Circuit considered whether the CSRA authorized the MSPB to hear a constitutional and improper transfer
claim, which is a wholly separate question from the one presented here whether the CSRA precludes a federal
district court from hearing a constitutional claim. See Manning v. Merit Sys. Prot. Bd., 742 F.2d 1424, 1427 (Fed.
Cir. 1984) (finding the plaintiff failed to establish jurisdiction because he “failed to point to any statute or regulation
granting the MSPB jurisdiction of an improperly motivated assignment[,]” which was not an adverse action under
the CSRA). Indeed, the holding in Manning that the CSRA avenues for administrative and judicial review are not
available for constitutional claims such as the plaintiff’s militates in favor of the exercise of jurisdiction here.

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necessary analysis, in accordance with Webster and Elgin, and found that the CSRA does not
meet the heightened showing and allowed judicial review of the plaintiff’s constitutional claim.
Davis v. Billington presented the “quandary” of whether “CSRA’s complex remedial
scheme completely deprive [sic] individuals in the plaintiff’s position” from bringing a
constitutional claim that could not be brought under the CSRA. Davis, 2014 WL 2882679, at *5.
Finding no “language in the CSRA definitively barring the plaintiff’s constitutional claims from
review by a district court” the Court concluded that subject matter jurisdiction could properly be
exercised over the plaintiff’s constitutional claim. Id. at *6. The holding in Davis is consistent
with D.C. Circuit’s precedent “that the district courts are open to challenges seeking equitable
relief on constitutional grounds . . . when the CSRA does not provide an adequate alternative
route to judicial review.” Suzal v. Dir., U.S. Info. Agency, 32 F.3d 574, 586 (D.C. Cir. 1994); see
also Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 967 (D.C. Cir.
1990) (“Only in the unusual case in which the constitutional claim raises issues totally unrelated
to the CSRA procedures can a party come directly to district court.”); Spagnola v. Mathis, 859
F.2d 223, 229–30 (D.C. Cir. 1988) (“[W]e do not suggest that the CSRA precludes the exercise
of federal jurisdiction over the constitutional claims of federal employees and job applicants
altogether . . . time and again this [Circuit] has affirmed the right of civil servants to seek
equitable relief against their supervisors, and the agency itself, in vindication of their
constitutional rights”) (citations omitted) (collecting cases); see also Davis v. Billington, 681
F.3d 377, 388, n.1 (D.C. Cir. 2012) (holding the CSRA precluded Bivens remedy but remanding
case for district court to consider validity of constitutional claim since plaintiff “can and has filed
a claim for injunctive relief for the alleged constitutional violations.”).

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Accordingly, this Court has subject matter jurisdiction to hear the plaintiff’s
constitutional due process claim, which cannot be reviewed under the CSRA by the MSBP nor
subsequently appealed to the Federal Circuit. See, e.g., Humberson v. U.S. Attorney’s Office for
D.C., 236 F. Supp. 2d 28, 34 (D.D.C. 2003) aff’d, 03-5073, 2003 WL 21768064 (D.C. Cir. July
16, 2003) (finding jurisdiction to hear plaintiff’s constitutional due process claim); Peter B. v.
C.I.A., 620 F. Supp. 2d 58, 70 (D.D.C. 2009) (same).
B. Motion to Dismiss for Failure to State a Claim
Even if the Court has subject matter jurisdiction, the defendant asserts that dismissal of
the plaintiff’s claim for failure to state a claim is warranted because the Complaint
“unequivocally fails” to meet the requisite pleading standard, under Federal Rule of Civil
Procedure 8, as articulated by the Supreme Court in Iqbal and Twombly. See Def.’s Mem. at 9.
Specifically, the defendant avers that the plaintiff has not been deprived of a property interest to
support a legally cognizable due process claim. See Def.’s Mem. at 9-10; Def.’s Reply at 2-4.
The Court agrees.
The Fifth Amendment’s Due Process Clause requires that the government provide
sufficient procedural protections whenever it deprives an individual of property. See Bd. of
Regents v. Roth, 408 U.S. 564, 576 (1972). “The first step in assessing any due process claim,
therefore, is to ensure that the claimant actually has a cognizable property interest that has been
jeopardized by governmental action.” Humberson, 236 F. Supp. 2d at 30. “To have a property
interest in a benefit, a person clearly must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.” Roth, 408 U.S. at 577. Such entitlements emerge from “existing rules or
understandings that stem from an independent source such as state law.” Id.; see also Cleveland

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Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). “In the realm of federal employment,
protected property interests can arise not only through operation of statute and regulation, but
also through agency-fostered policies or understandings and the implicit overall workings [] of a
particular government employer.” Kizas v. Webster, 707 F.2d 524, 539 (D.C. Cir. 1983)
(internal quotations and footnotes omitted).
The gravamen of the plaintiff’s complaint is that the 2008 Memorandum informing him
that his permanent position of record would be moved from HSI to OPR “reflects a mutual
understanding between [the plaintiff] and [the defendant] which is an independent source of
entitlement creating a protected property entitlement, that is, his interest to be permanently
reassigned to the OPR unit.” Pl.’s Opp’n at 4. The plaintiff has an uphill struggle to support this
claim, conceding, as he must, that “the general rule is that ‘no protected property interest is
implicated when an employer reassigns or transfers an employee absent a specific statutory
provision or contract term to the contrary.’” Id. at 3 (quoting Anglemeyer v. Hamilton Ctyn.
Hosp. 58 F.3d 533, 536 (10th Cir. 1995). Indeed, as the defendant aptly points out, the
“[p]laintiff cites no specific statutory authority provision that grants him tenure as a permanent
employee at the Office of Responsibility such that he cannot be reassigned to another permanent
position at HSI without a due process hearing.” Def.’s Reply at 2. The plaintiff’s reliance on the
placement of the word “permanent” in the Memorandum falls far short of a binding contract for
him to prevail on a claim that his transfer to his original assignment in HIS violated a legally
enforceable promise made to him. On the contrary, a fair reading of the 2008 Memorandum
does not support the plaintiff’s belief that the reassignment of his position to OPR was meant to
be permanent. The circumstances of the plaintiff’s assignment to OPR, the terms of the 2008
Memorandum itself and strong policy reasons clearly cut against the plaintiff’s position.

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First, the plaintiff was only assigned to OPR on a temporary basis. The advertisement
regarding the OPR position to which the plaintiff responded, as well as the notification to the
plaintiff advising him that he had been selected, expressly stated that the assignment to OPR at a
higher position level of GS-14 was temporary and could be “terminated any time depending on
the needs of the service.” Compl. ¶ 3. Moreover, after the temporary assignment to OPR, the
plaintiff would “be returned to position held prior to selection.” Id. Notwithstanding the
multiple extensions granted to the plaintiff to remain in OPR, the temporary nature of the
assignment to OPR was clear from the outset of his tenure in that DHS component.
Second, the 2008 Memorandum, on which the plaintiff places his primary reliance, states
that the plaintiff’s “permanent position of record as Criminal Investigator, GS-1811-13, will be
reassigned from the Office of Investigations to the Office of Professional Responsibility (OPR).”
See Pl.’s Opp’n, Ex. A. (emphasis added). The plaintiff may have “understood” the
reassignment of his “permanent position of record” to be a permanent reassignment from HSI to
OPR, see Pl.’s Opp’n at 5, but that reading misconstrues the language of the Memorandum. The
only use of the word “permanent” in the one-page document, as stated above, refers to the
plaintiff’s position of record as a criminal investigator at a pay grade of GS-13, and the 2008
Memorandum reflects that this permanent position was summarily transferred to OPR, not that
the transfer itself was permanent.
Third, the plaintiff appears to rely on the reference in the 2008 Memorandum to the
effective date of the reassignment of his G-13 position from HSI to OPR as a basis for his
erroneous belief that the assignment to OPR would be permanent. In relevant part, the
Memorandum states that “[t]he effective date of this reassignment action will coincide with the
effective date of your current temporary assignment with OPR, so that your temporary promotion

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will not be impacted and to avoid pay interruptions.” See Pl.’s Opp’n at 2, Ex. A. Again,
regardless of the plaintiff’s subjective interpretation, the statement does nothing to suggest that
DHS would need “just cause” before reassigning the plaintiff’s “permanent position” again in the
future. In fact, the ability of DHS summarily to reassign the plaintiff’s permanent position, as
well as control the effective date of such reassignment, indicates that the plaintiff has no right to
control such transfers. As the plaintiff has failed to point to a specific statute or contract term to
the contrary granting him a property interest in a permanent assignment to OPR, the
reassignment of his position from one department of DHS to another cannot be violative of his
due process rights.
While the plaintiff may have his own reasons for wanting to remain in OPR as opposed to
working in HSI, those reasons do not render “the unilateral reassignment” of the plaintiff’s
position an “arbitrary and capricious adverse action [that] violates [the plaintiff’s] due process
rights.” Pl.’s Opp’n at 5. As the defendant correctly points out, “[i]f it did, then every federal
employee who holds a ‘permanent’ position could not be involuntarily reassigned, even though
there is no loss of grade or pay, to a different permanent position unless a due process hearing
was provided.” Def.’s Reply at 3. Indeed, this Court has recently articulated the important
policy reasons for rejecting the plaintiff’s view:
To hold that plaintiff has a property interest in all aspects of his job, and therefore that
due process must be extended whenever any of his specific duties or responsibilities are
changed, would essentially convert any personnel decision made by a public employer
into a constitutional case. This would deprive employers of the flexibility they need to
make staffing decisions and to assign particular tasks to particular employees. It would
allow courts to usurp the role of employers in deciding how employees are to be allocated
and when workers with particular assets, or particular liabilities, should perform one set
of tasks and not others.
Humberson, 236 F. Supp. 2d at 33.

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In accordance with these policy concerns, courts have routinely rejected claims that a
mere reassignment or change of duties, without a corresponding reduction in rank or pay,
amounts to a divestment of a property interest. See id. at 32-33 (“federal courts have uniformly
concluded that a change in a public employee’s duties (or, similarly, a lateral transfer)
unaccompanied by a reduction in salary is not a sufficient deprivation to trigger due process
obligations”) (collecting cases) (alteration in original); see, e.g., Anglemyer, 58 F.3d at 539 (10th
Cir. 1995) (“[T]he overwhelming weight of authority holds that no protected property interest is
implicated when an employer reassigns or transfers an employee absent a specific statutory
provision or contract term to the contrary.”); Ferraro v. City of Long Branch, 23 F.3d 803, 807
(3d Cir. 1994) (finding that change in work assignments did not result in deprivation of
constitutionally-protected property interest); Fields v. Durham, 909 F.2d 94, 98 (4th Cir. 1990)
(“constitutionally protected property interest in employment does not extend to the right to
possess and retain a particular job or to perform particular services.”); Maples v. Martin, 858
F.2d 1546, 1550 (11th Cir. 1988) (“Transfers and reassignments have generally not been held to
implicate a property interest.”); see also McDonald v. Salazar, 831 F. Supp. 2d 313, 321 (D.D.C.
2011) aff’d in relevant part, 12-5023, 2012 WL 3068440 (D.C. Cir. July 20, 2012) (“Because a
mere change in duties does not violate the CSRA, McDonald has not established that the
defendants deprived him of a property interest by reassigning him to the Brentwood Auto
Shop.”). Cf. Thompson v. District of Columbia, 530 F.3d 914, 919 (D.C. Cir. 2008) (holding that
the plaintiff’s transfer triggered a due process violation where the position of reassignment was
scheduled for imminent elimination). As the transfer of the plaintiff’s permanent position back
to HSI implicated no property interest, he was entitled to no additional process, such as a

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hearing, before the transfer was made. Accordingly, the plaintiff has failed to state any due
process violation that would entitle him to relief.
IV.

CONCLUSION
For the foregoing reasons, although this Court has subject matter jurisdiction over the

plaintiff’s constitutional challenge to his reassignment within different components of DHS, at
the same grade and pay, the plaintiff has failed to establish any legally cognizable property
interest that would support his due process claim. Accordingly, the defendant’s motion to
dismiss for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6), is granted.
An Order consistent with this Memorandum Opinion will be contemporaneously entered.

Date: August 25, 2014

Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
District Court for the District of
Columbia, ou=United States District
Court Judge,
email=[e-mail]
ts.gov, c=US
Date: 2014.08.25 19:54:22 -04'00'

__________________________
BERYL A. HOWELL
United States District Judge

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