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Having unwanted fat in different locations of your body can have a considerable impact on your health and self-confidence. While conventional weight reduction through exercise and diet plan is an excellent method to lose weight overall, even the very best exercises cannot target issue locations like the belly, inner thighs, arms, and butts. Liposuction is a time checked treatment that is utilized to eliminate excess fat from particular areas of the body, enabling a specific to shape and contour their body to their taste. Is liposuction right for you? Find out now.
Pros of Liposuction
There are lots of advantages to this cosmetic treatment, including:
• Right away visible modifications. Unlike conventional weight-loss, liposuction develops modifications that are instantly visible in the body. Some difference is noticeable right away, and the desired outcomes are normally accomplished in simply a couple of days.
• Proven and safe. This cosmetic procedure has actually been performed by skilled cosmetic surgeons all over the world for several years and the strategy has actually been refined over and again to be safe and effective.
• Healing time is normally quickly. The downtime needed after having this type of treatment is usually much less than exactly what is needed for other kinds of cosmetic procedures, including tummy tucks, breast reduction, and more. Individuals who have had the procedure can often return to work a lot more quickly than they expected and can return to living a healthy, active lifestyle.
• Weight-loss can be irreversible. With the right maintenance techniques, the fat that was removed throughout the liposuction treatment will not return.
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While there countless benefits to liposuction, there are of course a couple of cautions that must be considered before making the final decision to progress with the procedure.
Cons of Liposuction
Before having liposuction done, it's important to analyze the prospective downsides of the procedure and identify if the advantages exceed the dangers in your specific case. Your surgeon can help you find out more about the threats associated with the procedure and can help you choose if moving on is the ideal thing for you.
• Issues with basic anesthesia. Because liposuction is performed under basic anesthesia, the treatment carries the very same dangers as other type of surgery where basic anesthesia is utilized. Hidden medical conditions may enhance these risks.
• Unfavorable responses. Bruising, bleeding, and pain are all to be anticipated, nevertheless, in unusual cases can trigger more significant problems.
• The potential to gain the weight back. After having actually liposuction done, it is important to keep a healthy diet plan and workout effectively as advised by your physician. Failure to do so might cause acquiring back the weight that was lost or perhaps even more.
Although there are risks related to liposuction, for many people, the benefits far exceed them. Educate yourself about the treatment by having thorough conversations with your surgeon and consider how liposuction has the possible to impact you as a special person. Only you and your cosmetic surgeon can figure out if liposuction will offer you with the outcomes you are searching for within your expectations.
Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in Hunt Valley MD
Laser liposuction is a more recent, minimally intrusive treatment that includes heating the fat cells to melting point and removing the melted fat through a small cannula. The treatment is generally done right in your doctor's workplace and is an excellent choice for individuals who have less than 500 ml of fat to remove from any one area. Laser liposuction can be a safe, complementary procedure to weight reduction in order to sculpt the body you've constantly desired.
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If you're considering liposuction as a weight reduction solution, it is essential that you discuss your desires with a certified cosmetic surgeon in your area. Your surgeon will carry out a complete examination and health history questionnaire to identify if liposuction can benefit you and help you reach your physical and psychological goals. Call today for a consultation and find out more about how liposuction can help you achieve the body of your dreams.


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Film, Photography, and Appearances
Batman Darkness
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subset: commoncrawl


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Joseph Reich is an associate in the Tax practice in Firm's New York office. Mr. Reich is part of the teams advising Firm clients in connection with the tax aspects of a wide range of corporate transactions.
Mr. Reich received his J.D. from Columbia Law School in 2012, where he was a Harlan Fiske Stone Scholar, and his B.A. from Yeshiva University in 2008.
Firm News & Announcements
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- Weil Advises Vonage in Acquisition of Nexmo Deal Brief — May 05, 2016
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Monetary Overhang and Reforms in the 1940s
Rudiger Dornbusch, Holger Wolf
NBER Working Paper No. 3456
Post-1945 Europe had many of the traits observed today in Eastern Europe and the Soviet Union: price controls, shortages, black markets and a monetary overhang. The policy response in most countries was monetary reform - - the deliberate immobilization of liquid assets and in many instances an outright write-off of deposits. The paper reviews the historical experience, notably the German reform of 1948, identifies the policy issues involved and draws lessons for today.
Machine-readable bibliographic record - MARC, RIS, BibTeX
Document Object Identifier (DOI): 10.3386/w3456
Contact Us


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86 Foggs Ridge Ossipee, NH 03864
Listed by Edward Tobin of Exit Realty Leaders
Call Four Seasons Sotheby's International Realty Real Estate for more information.
Lot Size: 0.58 acres
Price/Acre: $44,827
Property Description
Nice wooded level lot ready for your ideas. Come build your second home or make this your permanent spot.
- Property Type: Land
- Zoning: Residential
- Acreage: 0.58
- Lot description: Wooded
- State: NH
- Street: Foggs Ridge
- Building Number:
- Development/Subdivision: 0
- Zip Code: 03864
- County: NH-Carroll
- Town: Ossipee
- Area Description: Rural
- Elementary School: Ossipee Central Elementary Sch
- Junior High: Kingswood Regional Middle
- High School: Kingswood Regional High School
- Water: None
- Sewer: None
- Electric: At Street
- Services:
- Land Restrictions:
- Taxes: $595
The New England Real Estate Network provides Multiple Listing Services (MLS) in the States of New Hampshire, Vermont, Massachusetts and Maine.
Copyright© 2016 The New England Real Estate Network. All rights reserved. This information is deemed reliable but not guaranteed. The data relating to real estate displayed on this Site comes in part from the IDX Program of NEREN. The information being provided is for consumers personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. Data last updated on 12/09/2016.


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Instrument : Microwave Radiometer, 3 Channel (MWR3C)
Instrument Categories
Cloud Properties, Radiometric
General Overview
The microwave radiometer 3-channel (MWR3C) provides time-series measurements of brightness temperatures from three channels centered at 23.834, 30, and 89 GHz. These three channels are sensitive to the presence of liquid water and precipitable water vapor.
This instrument was installed with Recovery Act funding support in FY2010. Please contact the instrument mentor, if you have any questions or read this Facility Update.
Output Datastreams
- mwr3c : Microwave Radiometer, 3 Channel
- mwr3ctip : Microwave Radiometer, 3 Channel: airmasses, brightness temperatures (TIP mode)
Primary Measurements
The following measurements are those considered scientifically relevant.
Maria Cadeddu


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Home is offered on a 6 month lease, and also for sale MLS#6953221. In Westlake Gated St. Tropez on Lake Austin. This 3 Bedroom, 2.5 bath with a 2 car garage lives like a single family home. Beautifully Renovated. Open floor plan with designer touches throughout with game room & large patio. There is a place for elevator per builder. Community pool and spa, playscape, fire pit. Great Lock & Leave! Eanes ISD
Common Grounds, Lake Privileges, Pool-Community
Built-In Oven(s), Dishwasher, Disposal, Microwave Oven, Self Cleaning Oven
Property Listed by: The Caldwell Company
The information being provided is for consumers' personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.
Based on information from the Austin Board of REALTORS® (alternatively, from ACTRIS) from December 3rd, 2016 at 9:30am CST. Neither the Board nor ACTRIS guarantees or is in any way responsible for its accuracy. The Austin Board of REALTORS®, ACTRIS and their affiliates provide the MLS and all content therein "AS IS" and without any warranty, express or implied. Data maintained by the Board or ACTRIS may not reflect all real estate activity in the market.
All information provided is deemed reliable but is not guaranteed and should be independently verified.


text: The food here is fabulous, but do not go if you want to be in and out in less than two hours. If you want a place where you can relax and are not rushed, you will be fine, but don't go when you're starving either since the food takes a long time to come to your table. It's worth... More


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Rights groups ask US spy court for justification of Verizon order
Civil rights groups have asked the Foreign Intelligence Surveillance Court (FISC) for the legal justification of the U.S. government's surveillance of Verizon's customer records.
Civil rights groups have asked the Foreign Intelligence Surveillance Court (FISC) for the legal justification of the U.S. government's surveillance of Verizon's customer records.
Recent news reports alleging broad surveillance efforts by the U.S. National Security Agency seem to have left more questions than answers. Whistleblower Edward Snowden has accused the NSA of collecting massive amounts of data from U.S. residents, bu...
The person responsible for disclosing details on the growth of U.S. government surveillance programs that exploded into public view last week has identified himself as 29-year-old Edward Snowden, a technology contractor working at the U.S. National S...
The U.S. Department of Justice said Friday it has no objection to Softbank acquiring Sprint Nextel, a decision that clears the way for the Federal Communications Commission to rule on the deal.
A conservative activist has filed a lawsuit against U.S. President Barack Obama, the U.S. Department of Justice and the U.S. National Security Agency after news reports that the NSA has been collecting the phone records of a large number of Verizon C...
Amsterdam authorities have conceded that people may rent out their rooms and houses on Airbnb as long as they don't do it all the time and abide by certain rules, the city government said on Friday.
Privacy groups and some lawmakers are in an uproar after news reports this week that the U.S. National Security Agency is conducting broad surveillance of the nation's residents.
The U.S. government said late Thursday that it is authorized to collect intelligence information of non-U.S. persons located outside the country, in the wake of news reports on the government's surveillance programs.
The U.S. National Security Agency and Federal Bureau of Investigation have access to servers at Google, Facebook and other major Internet services, collecting audio, video, e-mail and other content for surveillance, the Washington Post reported on Th...
U.S. President Barack Obama wants the nation's students to have access to faster broadband in their schools and libraries.
Three U.S. lawmakers have introduced legislation that would allow President Barack Obama's administration to deny U.S. travel visas to cyberattackers sponsored by foreign governments and to freeze their U.S.-based assets.
The U.S. National Security Agency has been allowed by a court order to collect phone records of a large number of customers of Verizon, according to a report in the Guardian on Thursday.
The US-based Digital Advertising Alliance, a coalition of online advertising networks and companies, will soon release guidelines for the use of targeted advertising on mobile devices, although it's been difficult to come up with standards in the div...
Amazon.com has set up a website with its brand in India, but will not be selling on the site.
Apple infringed a Samsung Electronics patent, the U.S. International Trade Commission said in a final judgment released Tuesday that bans import into the U.S. of certain AT&T iPhone and iPad models.
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First impression on unpacking the Q702 test unit was the solid feel and clean, minimalist styling.
For work use, Microsoft Word and Excel programs pre-installed on the device are adequate for preparing short documents.
The Fujitsu LifeBook UH574 allowed for great mobility without being obnoxiously heavy or clunky. Its twelve hours of battery life did not disappoint.
The screen was particularly good. It is bright and visible from most angles, however heat is an issue, particularly around the Windows button on the front, and on the back where the battery housing is located.
My first impression after unboxing the Q702 is that it is a nice looking unit. Styling is somewhat minimalist but very effective. The tablet part, once detached, has a nice weight, and no buttons or switches are located in awkward or intrusive positions.


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The 2017 calendar for the newly rebranded American Flat Track racing series has been released. The 18-round schedule traverses the USA, with four different race track varieties: (6) mile-long tracks, (7) half-mile track, (2) short-track courses, and (3) TT type courses.
2017 also sees American Flat Track using a new class structure, with the premier class is the AFT Twins class, comprised of two-cylinder motorcycles with displacements ranging from 650cc to 999cc. There will also be an AFT Singles class for upcoming riders, which will be based on 450cc single-cylinder bikes.
With plenty of opportunities through the year, and through out the country, we supremely suggest you attend an American Flat Track round this coming season. We think you will find it highly satisfying to your two-wheeled inclinations.


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Helpline 0844 332 0932
Medical Negligence Solicitors
If you have been injured in the UK by a healthcare professional including a doctor, dentist, nurse or technician in a surgery, hospital or clinic and would like to speak to a specialist medical negligence solicitor about Ovarian Surgery without further obligation, just use the helpline. A medical negligence lawyer who deals exclusively in personal injury claims involving clinical negligence will speak to you, giving free advice and information on how best to preserve your legal right to receive compensation as a result of injuries caused by medical negligence. We operate using the no win no fee* scheme and you will not have to fund or finance your claim in any respect. In the event that the claim is successful the other side will pay our legal charges and if we are not successful you pay nothing at all. You have nothing to lose in taking up our offer of free advice and there is no further obligation should you decide not to pursue a claim further. We offer a true professional risk free service and you will only ever deal with a qualified, specialist medical negligence solicitor who answers to the Solicitors Regulation Authority. Do yourself justice and call our offices today.
Helpline 0844 332 0932
Ovarian surgery involves various kinds of procedures including surgery to remove ovarian cancer, ovarian cyst removal or removal of the ovaries for polycystic ovarian disease or endometriosis. Whenever there is an ovarian cyst or solid growth on the ovary, it needs to be looked at.
The surgeon can perform the surgery using a laparoscope, which involves several small incisions in the lower abdomen. One incision has a tube with a lighted camera inserted into it that shows the ovaries on a screen for the doctor to see. Other incisions are used to insert small tools into the pelvic cavity. In other situations, an open incision called a laparotomy is performed. Either surgery can be used to check out the ovaries and diagnose what is going on but the laparoscopy is considered a safer and more aesthetically pleasing type of surgery.
Both surgeries are good for basic ovarian problems such as cysts and endometriosis but if there is concern for cancer, a laparotomy is the preferred procedure to do. It allows for the ability to see better inside the pelvis to look for metastases and remove the entire cancerous lesion. Metastatic lesions can be removed at the same time if they are large enough and if it makes sense to remove them. If a non-cancerous cyst is found, it can be removed during the laparoscopy and the rest of the ovary can remain intact without damage. If cancer is found, both ovaries are removed during the same surgery.
General anaesthesia is done during the surgery, which carries risks of its own. If you are having a laparoscopy, you can generally go back to doing regular activities within one day. You should not do any strenuous activity or physical exercise for at least a week. If you have a laparotomy, you will likely stay in the hospital for 2 to 4 days with the ability to return to your regular activities in 4 to 6 weeks.
Surgery is done for several reasons. These include diagnosis of a cyst on the ovary or removal of a cyst that is causing symptoms. It is also used to check for ovarian cancer.The following situations warrant ovarian surgery:
An ovarian cyst can be successfully removed from the ovary in a procedure called a cystectomy with the ovary preserved and your fertility remaining intact. If it is likely that there will be an ovary on the same side or the opposite side of the pelvis, then the entire ovary or both ovaries are removed in a procedure called an oophorectomy.
There are risks to having ovarian surgery. These include the following:
Helpline 0844 332 0932


text:
Our customisable coffee tables are produced upon order. Please contact your store for more details.
Diamond table, the product is available in different designs. As shown, rose/mirror. H42xW35xL35cm. [Diamond]
Article no.: 104011029150
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All prices are recommended retail prices in MYR (RM) and exclude GST.


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Hypnotic Santoor - EP
Pandit Shivkumar Sharma
Open iTunes to preview, buy, and download music.
|Raga Gorakh Kalyan: Jod and Jhala (Unaccompanied Improvisation)
|Pandit Shivkumar Sharma
|View in iTunes
|Raga Gorakh Kalyan: Composition In Medium and Fast Teen Taal (16 Beat Rhythmic Cycle)
|Pandit Shivkumar Sharma
|View in iTunes
|Dogri Folk Tune (Light Classical Melody)
|Pandit Shivkumar Sharma
|View in iTunes
|3 Songs
Album Review
An unusual repertoire item, "Raga Gorakh Kalyan," opens this album and, acting as an acknowledgment of Shivkumar Sharma's cultural and folk roots, the album closes with "Dogri Folklore." (Dogri is his first language.) It is a semiclassical piece set in a folk "Raga Mishra Pahadi" to a six-beat metrical cycle. Shafaat Ahmed Khan accompanies on tabla.
Customer Reviews
Santoor really hypnotizes you in this album
Gorakh Kalyan is one of the most melodious and romantic ragas and it is simply magical on the santoor. Shivkumar Sharma is at his usual best and Shafaat Ahmed Khan's tabla sounds very good. The lilting "Dogri Folk Tune" is another signature track of the maestro. If you love melodious music, definitely check this out.
A brilliant, magical compilation
Shivkumar Sharma shows his sublime, mesmerizing ability on santoor. Whether stargazing the night sky through a telescope on your back porch, putting a small one down to sleep to some low volume music, or just your own silent meditation, the master does not let down! I am not a "new-ager", but one needs not to be to appreciate the technical mastery Shivkumar Sharma displays!
Original inlay notes
Raga Gorakh Kalyan is an uncommon but beautiful Raga. Only six notes are used. The third and fifth notes are omitted, the seventh note is flat, and the rest of the notes are major. Some musicians occasionally use the fifth note also but in this version the fifth note is not used at all. That gives this Raga a distinct character of its own. The basic mood of this Raga is romantic. Details of playing: Alap, Jod and Jhala in part one is followed in part two by two compositions in Jhap Taal, a ten beat rhythmic cycle, and in Teen Taal, a sixteen beat rhythmic cycle. (However, this EP omits the Alap in the first track and the Jhap Taal Gat in the second track.) The concluding piece is based on a Dogri folklore from Jammu, Kashmir which is in Raga Mishra Pahadi and in Taal Dadra, a six beat rhythmic cycle. Shivkumar Sharma Born in Jammu, Shivkumar Sharma was brought up in an atmosphere rich in compositions and rhythm. His father, Pandit Uma Dutt Sharma, was an exponent of the Benares tradition of vocal music and a famous percussionist. He first initiated Shivkumar Sharma into vocal music and percussion instruments, and later coaxed him to take to Santoor. Shivkumar started to study and exploit Santoor's possibilities after he had overcome his initial lack of interest for this instrument. At the beginning of his career as Santoor player, Shivkumar fought an intense and lonely battle against the rigid and orthodox world of classical Indian music which declared that Santoor was totally unsuited to the demands of it. It ended in his rising to the position of a musician commanding respect in the most scholarly circles for the depth of his musicianship. In his approach to music Shivkumar takes no liberties with the Ragas and follows the correct traditional Dhrupad style of Alaap, Jod, and Jhala. He maintains a perfect balance between Sur (melody) and Laya (rhythm). Shivkumar is one of the few Indian musicians to enjoy a global reputation. Shafaat Ahmed Khan is one of the most brilliant and popular young Tabla players of India. He belongs to Delhi School of Tabla Playing and had his training under his father Ustad Chhamma Khan. He is a versatile Tabla player, equally at ease while playing solo, or accompanying an instrumentalist, a vocalist, or a dancer. He has accompanied almost all the leading musicians of India. He plays regularly with Pandit Shivkumar Sharma and has made many albums. (Sadly, Shafaat passed away in July 2005). -Nikhil Chatterjee
Born: January, 1938 in Jammu, Kashmir
Genre: World
Years Active: '70s, '80s, '90s, '00s
Top Albums and Songs by Pandit Shivkumar Sharma
Listeners Also Bought
- $2.97
- Genres: Indian Classical, Music, Indian, World, Asia
- Released: Jan 01, 1988
- ℗ 1988 Chhanda Dhara


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Quick Look
Property brokered by
Get more listing details on brokerage site
Presented By:
Sister Hood
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Sister Hood
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Property DetailsBROOKFIELD PLANTATION c.1875 is a beautiful vernacular bracketed Italianate style two story four over four home with 10ft+ ceilings, wide center halls, heart of pine floors, original staircase and 5 fireplaces. The home has been totally renovated and updated with modern amenities Thermador, Sub Zero, Bosch, granite counter tops, beautiful spacious master bath w/claw foot tub & steam shower, the grounds are gorgeous w/ gardens, brick walk ways, 150 yr old pecan trees, two charming Historic Guest cottages w/ fireplaces and full kitchens, 2 stall barn, fenced pastures.
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Additional Property InformationThis listing located at 1590 Carver Road, Griffin, GA boasts four bedrooms, two bathrooms and one partial bathroom. The property is currently offered for $699,000.
This property is presented by Sister Hood of Harry Norman, Realtors® headquartered in Georgia.


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July 23, 2009
ROY L. PEARSON, JR., PETITIONER,v.DISTRICT OF COLUMBIA, ET AL., RESPONDENTS.
Proceeding pro se, plaintiff Roy L. Pearson, Jr., brings this lawsuit against the District of Columbia ("the District"), Hon. Tyrone T. Butler, Chief Administrative Law Judge of the Office of Administrative Hearings ("Chief ALJ Butler"), and four members of the Commission on Selection and Tenure of Administrative Law Judges of the Office of Administrative Hearings (the "Commission") -- Peter M. Willner; Hon. Robert R. Rigsby, Associate Judge for the D.C. Superior Court; Hon. Anita Josey-Herring, Associate Judge for the D.C. Superior Court; and George C. Valentine, Deputy Attorney General for the District (collectively, "the Commission Members").
Before the Court are defendants' renewed motion to dismiss, or alternatively, for summary judgment (Dkt. No. 16) and plaintiff's opposition thereto (Dkt. No. 23); plaintiff's motion for expedited ruling, motion for partial summary judgment on Count III of the amended complaint, and motion for preliminary injunction (Dkt. No. 26) and defendants' opposition thereto (Dkt. No. 29). For the reasons stated below, the Court will grant the motion to dismiss Counts I, II, and III and will decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims (Counts IV and V).
A case must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir.1995).
However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "Something stated as fact does not make it fact." Herbage v. Meese, 747 F. Supp. 60, 65 (D.D.C. 1990), aff'd without op., 946 F.2d 1564 (D.C. Cir. 1991). "Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276; see also Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (explaining that courts need not consider wholly conclusory statements for which no supporting evidence is offered); Herbage, 747 F. Supp. at 65 ("A plaintiff's bare conclusions of law, or sweeping and unwarranted averments of fact, will not be deemed admitted for purposes of a motion to dismiss.") (internal quotation marks omitted).
On a motion to dismiss, the Court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), or documents "upon which the plaintiff's complaint necessarily relies" even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss. Hinton v. Corrections Corp. of Am., __ F. Supp.2d __, 2009 WL 1636100, at *1 (D.D.C. 2009) (internal quotation omitted); see also Marshall v. Honeywell Technology Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C.2008) ("[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion [to dismiss] to one for summary judgment.") (internal quotation and citation omitted).*fn1
In this case although plaintiff is proceeding pro se, he is a lawyer with a law degree from Northwestern University Law School and nearly thirty years of legal experience, including twenty-five years of litigation experience for the D.C. Neighborhood Legal Services Program and two years of service as an administrative law judge. He therefore cannot be heard to complain that he should receive the same treatment as a pro se litigant. Moreover, even a "pro se complaint, like any other, must present a claim upon which relief can be granted by the court." Henthorn v. Dept. of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994).
Plaintiff filed this action against the District, Chief ALJ Butler, and the Commission Members for damages and declaratory and injunctive relief, claiming, inter alia, that the Commission's decision not to reappoint him to a ten-year term of service as an Administrative Law Judge ("ALJ") violated his constitutional and statutory rights to report his supervisors' misconduct and to file private lawsuits without fear of retaliation.
I. Laws Governing the Selection and Tenure of ALJs
The Office of Administrative Hearings Establishment Act ("OAH Act"), D.C. Law. 14-76, 48 D.C. Reg. 11442 (effective March 6, 2002), codified as amended at D.C. CODE § 2- 1831.01 et seq., established the Commission on Selection and Tenure of Administrative Law Judges of the Office of Administrative Hearings.*fn2 See D.C. CODE § 2-1831.06. The Commission has "final authority to appoint, reappoint, discipline, and remove Administrative Law Judges." Id. at § 2-1831.06(b). The Commission is also empowered to "amend or repeal, in whole or in part, or may add to" the rules "govern[ing] the process of selecting Administrative Law Judges." Id. at §§ 2-1831.11(b), (d).
Eligible and qualified ALJs are appointed, after an application and interview process, by an affirmative vote by a majority of the voting members of the Commission. D.C. CODE § 2- 1831.08(b); 6 D.C. CODE MUN. REGS. § 3701. The Commission is also charged with determining whether an ALJ seeking reappointment "has satisfactorily performed the responsibilities of his or her office and is likely to continue to do so." 6 D.C. CODE MUN. REGS. § 3705.21. In doing so, the Commission "may seek any information concerning an applicant that will assist it in determining whether the applicant satisfies any of the standards of this Chapter." Id. at § 3703.7; see also D.C. CODE § 3703.8 ("No person may be appointed or re-appointed to any term as an Administrative Law Judge who fails to provide any necessary release or fails to cooperate in any other way with the efforts of the Commission or any of its designees to obtain any of the information described in section 3703.7.").
Under the applicable regulations, the Commission must provide the ALJ seeking reappointment an opportunity to "appear and be heard at the meeting" provided that he or she makes a timely request. 6 D.C. CODE MUN. REGS. § 3705.19. "In its discretion, the Commission may permit other persons to testify at the meeting, either in support of, or in opposition to, the request for reappointment." Id. "The Commission's decision on whether to reappoint the Administrative Law Judge shall be final, and a decision not to reappoint an Administrative Law Judge shall not be deemed to be disciplinary action." Id. at § 3705.23.
II. Plaintiff's Initial Term at OAH
On March 29, 2005, plaintiff was appointed to an initial term of office as an ALJ at the Office of Administrative Hearings ("OAH"). His initial term began on May 2, 2005, and was set to expire two years later, on May 2, 2007.
Within his first few weeks in office, plaintiff began expressing discontent with OAH's operating procedures.*fn3 On June 20, 2005, plaintiff wrote and distributed to Chief ALJ Butler and his fellow ALJs a nineteen-page memorandum questioning OAH's use of a "peer review" system. (Amd. Compl. ¶ 95; Defs.' Ex. 2.) According to plaintiff, the peer review system, whereby senior ALJs review and comment upon other ALJs' opinions, "appeared to violate the OAH Act, the D.C. Administrative Procedures Act and the OAH Code of Judicial Ethics." (Amd. Compl. ¶ 95.)*fn4
On July 18, 2005, after becoming "increasingly frustrated in [his] efforts to settle in and to begin making a meaningful contribution towards achieving OAH's mission," plaintiff sent a lengthy e-mail to the Commission, requesting that it provide an advisory ethical opinion on the peer review process. (Id. ¶¶ 98-99; Defs.' Ex. 3.) He also sent the Commission a copy of his nineteen-page June 2005 memorandum challenging the peer review system. (Amd. Compl. ¶ 99.) The Commission ultimately declined to take any action. (Id. ¶ 100.)
On July 21, 2005, plaintiff sent a letter to the Mayor regarding defendant Chief ALJ Butler. (Amd. Compl. ¶ 113;Defs.' Ex. 4.) In the letter, plaintiff asserted that Chief ALJ Butler had engaged in "unprofessional, unethical and threatening conduct" and had violated the D.C. Whistleblower Act.*fn5 Plaintiff requested an inquiry into whether good cause existed for Chief ALJ Butler's removal. The Mayor's office ultimately declined to take action against Chief ALJ Butler.*fn6 (See Defs.' Ex. 5.)
On February 13, 2006, plaintiff, still displeased with internal operations at OAH, provided oral and written testimony to the Judiciary Committee of the D.C. Council on "Proposed Amendments to Clarify and Strengthen Decisional Independence for Administrative Law Judges in 'the Office of Administrative Hearings Establishment Act of 2001.'" (Amd. Compl. ¶ 101; Defs.' Ex. 6 at 1.) Plaintiff testified that a "secret and misnamed 'peer review' system" existed at OAH that, in his opinion, violated the law. (Amd. Compl. ¶ 102.)
III. Plaintiff's Reappointment Proceedings
On November 1, 2006, plaintiff submitted a statement to the Commission requesting reappointment to a ten-year term as an ALJ to begin on May 2, 2007. (Id. ¶ 142; Defs.' Ex. 7; see also 6 D.C. CODE MUN. REGS. § 3705.) The Commission published notice of plaintiff's statement in the D.C. Register and sought comments on plaintiff's reappointment. See 53 D.C. REG. 9265 (Nov. 10, 2006).
On March 2, 2007, as required by law, Chief ALJ Butler submitted materials to the Commission regarding plaintiff's suitability for reappointment. (Amd. Compl. ¶¶ 146, 149; Defs.' Ex. 8; see also D.C. CODE § 2-1831.10(b); 6 D.C. CODE MUN. REGS. § 3705.4.) At that time, Chief ALJ Butler indicated that he did "not oppose" the reappointment of plaintiff, but he noted some areas of concern. (Defs.' Ex. 8A at 1-2 (noting "recent complaints from litigants concerning [plaintiff's] judicial demeanor during hearings, and of inconsistencies in legal analyses," stating plaintiff had "some significant challenges transitioning to the environment . . particularly with regard to the tonality of his communications and his relationships with certain of his OAH colleagues," and stating plaintiff's performance evaluation revealed needed improvement in "judicial temperament" and "teamwork").
On March 8, 2007, after the Commission asked Chief ALJ Butler to clarify whether he affirmatively supported plaintiff's reappointment, Chief ALJ Butler stated that he would recommend plaintiff for reappointment "[b]ecause I believe that [plaintiff] has demonstrated a willingness to attempt to address [my] concerns going forward." (Defs.' Ex. 9 at 1; Amd. Compl. ¶ 149.)
The following day, on March 9, 2007, plaintiff sent a global e-mail to all ALJs at OAH encouraging them to "speak[] truth to power" while "compil[ing] a record" that will "make it difficult for CJ Butler to knife [them]."*fn7 (Amd. Compl. ¶¶ 151-52; Defs.' Ex. 12 at 2.)
The Commission requested supplemental information from Chief ALJ Butler regarding his initial concerns about plaintiff's reappointment. In response, on March 21, 2007, Chief ALJ Butler submitted additional materials. (Amd. Compl. ¶ 158;Defs.' Ex. 10.)
In April and May 2007, a private lawsuit filed by plaintiff two years earlier in D.C. Superior Court began to attract national attention and criticism. (Amd. Compl. ¶ 171.) In that case, plaintiff sought approximately $65 million dollars in damages relating to a pair of pants that had been allegedly misplaced by a small dry cleaners establishment in Washington, DC. See Pearson v. Chung et al., Dkt. No. 05 CA 4302.
On or about April 19, 2007, plaintiff submitted a fifteen-page written response to the Commission, addressing Chief ALJ Butler's March 21 submission. (Amd. Compl. ¶ 159; Defs.' Ex. 11.)
Members of the Commission met with plaintiff on April 24, 27, and 30, 2007, to discuss his possible reappointment. (Amd. Compl. ¶¶ 160-170.) At the April 27 meeting, plaintiff stated that he would apologize to the ALJs for sending the March 9, 2007 e-mail, which he said "lapsed back into 'unnecessary and derogatory references to the Chief Judge'" and evidenced "poor judgment and a lack of civility." (Id. at ¶ 168.) At the April 30 meeting, plaintiff acknowledged that he "could have made . . . other choices in his communications with his colleagues and in his letter to the Mayor about CJ Butler." (Id. at ¶ 167.)*fn8 Plaintiff agreed to extend a public apology to Chief ALJ "for the tone of certain communications in 2005 and an email [he] sent in 2007." (Defs.' Ex. at 14 at 3.)
On May 2, 2007, plaintiff's initial two-year term expired. On that day, he was notified that the Commission had not yet reached its decision, and that pursuant to 6 D.C. CODE MUN. REGS. § 3705.26, he would remain at OAH at his same salary grade and step but would receive non-judicial assignments as determined by the Chief Judge's office. (Amd. Compl. ¶¶ 173-74.)
On May 22, 2007, Chief ALJ Butler made an additional submission to the Commission and recommended that plaintiff not be reappointed. (Id. at ¶¶ 178-180; Defs.' Ex. 12.).
Commissioner Lavine's term then expired, and the Mayor requested that the Commission not act on plaintiff's reappointment application until a new Commissioner was selected to fill the vacancy. (Amd. Compl. ¶ 190.) On June 27, 2007, a superior court judge, Anita Josey-Herring, was appointed to fill the vacancy. (Id. at ¶ 191.)
On August 7, 2007, the Commission provided written notice to plaintiff, pursuant to D.C. CODE § 2-1831.01 and 6 D.C. CODE MUN. REGS. § 3705.17, of the "grounds for possible denial of your reappointment." (Defs.' Ex. 13 at 1; Amd. Compl. ¶ 199-200.) The letter provided plaintiff with specific concerns the Commission had regarding his performance during his initial two-year term as an ALJ. (Defs.' Ex. 13 at 2-4.) The notice also informed plaintiff of his right to appear before the Commission, to have individuals appear before the Commission on his behalf, and to submit documents in support of his reappointment. (Id. at 4.)
On August 22, 2007, plaintiff responded to the Commission's notice with a twenty-two page written response and requested an opportunity to appear before the Commission. (Defs.' Ex. 14.) He was subsequently advised of the hearing and allotted three hours in which the Commission would hear from him and any individuals whom he wanted to present to the Commission. (Defs.' Ex. 16 at 1.) Plaintiff was also informed that he would not be allowed to be present while statements were being made to the Commission and that the meeting was not open to the public. (Id. at 2.)The Commission further informed plaintiff that the following individuals were expected to appear before the Commission: Christine Davis, General Counsel, Department of Public Works (DPW), Office of the Attorney General (OAG); Deputy Chief ALJ Mark Poindexter (OAH); Principal ALJ Janet Mahon (OAH); Principal Administrative Law Judge Ann Yahner (OAH); Principal ALJ Jennifer Long (OAH); Principal ALJ John Dean; and ALJ Savannah Little (OAH). (Id.)
Starting October 4, 2007, the Commission held a series of meetings regarding plaintiff's reappointment, hearing from a number of persons.*fn9 (Amd. Compl. ¶ 207; Defs.' Ex. 15 at 3.) Plaintiff's written request to attend the October 4 meeting was denied. (Amd. Compl. ¶ 207.)
Plaintiff submitted additional materials to the Commission on October 1, 11, and 15, 2007. (See Defs.' Ex. 15 at 2; see also Defs.' Ex. 17.)
On October 11 and 15, 2007, plaintiff appeared again before the Commission. (Amd. Compl. ¶ 210.) Combined, those meetings lasted more than seven hours. (Id. at ¶ 176.) Plaintiff was offered the opportunity to present witnesses on his behalf but declined to do so. (Defs.' Ex. 16.)
The Commission ultimately determined not to reappoint plaintiff, and, on October 30, 2007, "issued an eight page decision denying plaintiff's application for reappointment." (Amd. Compl. ¶ 215; Defs.' Ex. 15 at 8.) The Commission cited, inter alia, "a pattern of conduct on [his] part that indicates a lack of judicial temperament and judgment in the conduct of [his] judicial duties which are quintessential requirements of [plaintiff's] position." (Defs.' Ex. 15 at 8 (citing D.C. CODE § 2-1831.08(d)(5); 6 D.C. CODE MUN. REGS. § 3703.5).)
On May 1, 2008, plaintiff filed suit, alleging that defendants, in declining to reappoint him to a ten-year term as an ALJ, violated his First Amendment rights by retaliating against him for testifying before the D.C. Council in February 2006 and making a private disclosure to the Council's staff in February 2007. (Amd. Compl. ¶¶ 221-233 (Count I).) Plaintiff also alleges that defendants violated his First Amendment and Equal Protection rights "to file and prosecute a lawsuit." (Id. at ¶¶ 234-246 (Count II).) Plaintiff further alleges that defendants violated his rights to Equal Protection and substantive and procedural due process. (Id. at ¶¶ 247-256 (Count III).) Finally, plaintiff alleges that defendants violated the D.C. Whistleblower Protection Act ("WPA"), D.C. CODE §§ 1-615.51 et seq., (Amd. Compl. ¶¶ 257-273 (Count IV)), and committed the tort of intentional infliction of emotional distress and wrongful retaliation in violation of public policy. (Id. at ¶¶ 274-288 (Count V).)*fn10
Plaintiff seeks to have this Court: (1) declare that defendants violated plaintiff's constitutional rights; (2) enjoin defendants from retaliating against plaintiff for past and future protected disclosures and activities; (3) reinstate plaintiff at OAH for a ten-year term as an Administrative Law Judge, or, order defendants' to pay damages for a ten-year term and a subsequent six-year term of office; (4) reinstate plaintiff's seniority rights; (5) order record correction and expunction; (6) order retroactive payment of lost wages and benefits, including back pay and interest on back pay; (7) award compensatory damages in excess of $1,000,0000.00 for each defendant; (8) award pre-judgment and post-judgment interest; (9) award punitive damages no less than ten times the amount of compensatory damages; (10) award attorneys' fees and costs, and (11) take disciplinary action against defendants and order a civil fine of up to $1,000 against each defendant that violated the D.C. Whistleblower Act. (Id. at 58-60.) In his motion for preliminary injunction, plaintiff also seeks the Court order that OAH adopt new regulations and rescind its existing regulations. (Pl.'s Mot. at 43-44.)
When a plaintiff sues a government agent in his or her official capacity, and the defense of qualified immunity is raised, that plaintiff must overcome that defense in order to survive a Rule 12(b)(6) motion to dismiss. See Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006).*fn12 In this case, the individual defendants argue that they are entitled to qualified immunity because their actions did not violate clearly established law. (Defs.' Renewed Mot. to Dismiss at 8-10 (citing Pearson v. Callahan, 129 S.Ct. 808, 822 (2009)).)*fn13
Claims of qualified immunity are matters of law for the Court to decide "at the earliest possible stage in litigation." Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quotation marks and citation omitted). An official protected by qualified immunity enjoys "immunity from suit rather than a mere defense to liability," which is "effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
In selecting, reappointing, and disciplining ALJs, the Commission Members perform discretionary functions. Under D.C. law, the Commission Members "shall have protection from liability as provided in § 2-415(b-1)." D.C. CODE § 2-1831.06(d); see also D.C. CODE § 2-415(b-1) ("The District of Columbia shall defend and indemnify members of the [Commission], established by § 2-1831.06, from claims and suits in law or equity arising from acts or omissions in the course and scope of their official duties, other than willful or bad faith misconduct."). The Commission Members receive no salary for their service, D.C. CODE § 2-1831.07(e), and the risk of personal liability would hinder the government's ability to fill positions like those on the Commission, as few qualified persons would be willing to assume this responsibility with the accompanying risk of personal liability. Simons v. Bellinger, 643 F.2d 774, 782 (D.C. Cir. 1980) ("Perhaps, without this immunity, membership on the [Commission] would be transformed from a distinguished achievement in public service into an invitation to become a defendant in costly, time-consuming litigation."); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (discussing "the general costs of subjecting [government officials] to the risks of trial -- distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service") (citing Harlow v. Fitzgerald, 457 U.S. 809, 816 (1982)).
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006). To determine whether qualified immunity applies, the Court looks to (1) whether plaintiff's allegations, if taken as true, show that the official's conduct violated a constitutional or statutory right, and (2) whether that right was "clearly established" at the time of the defendant's alleged misconduct.*fn14 Saucier, 533 U.S. at 201. Qualified immunity applies unless the official's conduct violated such a right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
If "no constitutional right would have been violated were the allegations established," the court must grant the motion to dismiss. Saucier, 533 U.S. at 201. However, if the alleged facts do state a violation, the court then examines whether that right was "clearly established" at the time of the violation. Id.
For the reasons stated below, the Court finds that the facts alleged, taken in the light most favorable to plaintiff, fail to state a claim of constitutional wrongdoing by any of the defendants, including the District. Having concluded that plaintiff's allegations do not show a violation of any constitutional right, the Court need not determine whether the right infringed was "clearly established" such that qualified immunity applies. Id. ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.").
But even assuming that plaintiff had alleged a cognizable constitutional violation, the Court concludes that the individual defendants would nonetheless be shielded by qualified immunity because, based on the facts alleged in the complaint and for the reasons discussed more fully below, a reasonable official in defendants' situation could have believed that his or her conduct did not violate plaintiff's constitutional rights. See Johnson v. District of Columbia, 445 F. Supp. 2d 1, 10 (D.D.C. 2006).
The Court first addresses plaintiff's First Amendment claims, brought under 18 U.S.C. § 1983. Count I alleges that defendants violated plaintiff's First Amendment right to free speech by retaliating against him for disclosing to the D.C. Council and its staff the existence of "a secret and misnamed 'peer review' system that delayed and coerced decisions at OAH." (Amd. Compl. ¶¶ 221-233.) Count II alleges that defendants violated plaintiff's First Amendment right to petition the government for regress of his grievances as a private citizen by failing to reappoint him in retaliation for his prosecution of "a public interest lawsuit . . . for fraud and unfair trade practices that an interstate, dry cleaning chain in plaintiff's neighborhood persisted in for seven years." (Id. at ¶¶ 234-246.) The Court finds plaintiff's speech is not protected and will therefore dismiss Counts I and II for failure to state a claim.
Government employees do not relinquish all of their First Amendment rights by reason of their public employment. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).However, the government has legitimate interests in regulating its employees' speech, and its employees "by necessity must accept certain limitations on [their] freedom." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Without "a significant degree of control over their employees' words and actions," government employers would have "little chance for the efficient provision of public services." Id.
To establish that his speech is protected under the First Amendment, plaintiff must prove: (1) he spoke as citizen on a matter of public concern; (2) his interest in expressing himself on that matter is outweighed by the injury that speech could cause to the employer's operations; (3) his speech was a substantial or motivating factor in prompting the retaliatory or punitive act; and (4) plaintiff must rebut the employer's showing, if made, that it would have reached the same decision in the absence of the protected speech. Pickering, 391 U.S. at 568; Garcetti, 547 U.S. at 418 . The first two prongs of this test are matters of law for the court to resolve, and the latter two are questions of fact ordinarily left to the jury. Hall v. Ford, 856 F.2d 255, 258 (D.C. Cir. 1988).*fn15
Count I is based on plaintiff's claim that he was not reappointed as an ALJ on account of his February 2006 public testimony before the D.C. Council and his February 2007 private disclosure to the D.C. Council staff. (Amd. Compl. ¶ 222.) The Court concludes that the communications at issue, which focus on plaintiff's critique of the peer review system,*fn16 are not, as a matter of law, protected by the First Amendment, since plaintiff was not speaking as a private citizen on matters of public concern. See Pickering, 391 U.S. 563.
The threshold question for a public employee's First Amendment claim is "whether the employee spoke as a citizen on a matter of public concern." Garcetti, 547 U.S. at 418. If so, the speech is protected unless the government can justify treating its employees differently from other citizens. But if the employee spoke "pursuant to [his] official duties," he cannot claim constitutional protection. Id. at 421 (finding that a district attorney did not speak as a private citizen when he wrote a memo that was "part of what he, as a calendar deputy, was employed to do").
"Whether employees spoke pursuant to their official duties, and thus receive no First Amendment protection, is a 'practical' inquiry -- focusing not on formal job descriptions, but on the employees' actual responsibilities." Thompson v. Dist. of Columbia, 530 F.3d 914, 916 (D.C. Cir. 2008) (quoting Garcetti, 547 U.S. at 424); see also Garcetti, 547 U.S. at 424-25 ("Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties."); Williams v. Johnson, 537 F. Supp. 2d 141, 151-52 (D.D.C. 2008) (finding that plaintiff "did not speak as a citizen" when she testified before the Council, even though her job description did not require her to report to or testify before the Council).
This case is a classic example of a plaintiff pleading himself out of court by alleging a host of facts that only serve to totally undercut his claims. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (noting that it "is possible for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible") (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C.Cir.2000)). Based on plaintiff's undisputed facts as pled in his papers, he has affirmatively shown that he was not speaking as a private citizen when he testified before the D.C. Council, but he was speaking pursuant to his job duties.
First, plaintiff repeatedly identified himself in his professional capacity rather than his personal capacity. The cover sheet of plaintiff's written testimony explicitly identified him as "Roy L. Pearson, Jr., Administrative Law Judge, D.C. Office of Administrative Hearings." (Defs. Ex. 6 at 1.) Plaintiff also identified himself in his written and oral testimony as "an Administrative Law Judge (or 'ALJ') with the D.C. Office of Administrative Hearings" (id. at 2), and his title on the televised program reads, "Administrative Law Judge, OAH." http://www.octt.dc.gov/services/on_demand_video/channel13/February2006/02_13_06)JUDICI_ 1.asx; see also id. ("My name is Roy Pearson. I am an administrative law judge, or ALJ, with the D.C. office of Administrative Hearings.").
Second, plaintiff's testimony before the D.C. Council concerned only the subject matter of his employment. During the testimony, plaintiff spoke about his personal experiences working inside OAH and expressed his subjective beliefs as to how OAH should be run. As such, his testimony represented an employee's specific recommendations regarding internal office policy that directly related to his job. See Thompson, 530 F.3d at 916 ("Ordinarily, employees who make recommendations to their supervisors on subjects directly related to their jobs are carrying out their official duties and thus receive no First Amendment protection."); Davis v. McKinney, 518 F.3d 304, 313 n.3 (5th Cir. 2008) ("[T]he caselaw is unanimous in holding that employee's communications that relate to his own job function up the chain of command, at least within his own department or division, fall within his official duties and are not entitled to First Amendment protection.").
Most significantly, however, the pleadings show that plaintiff's testimony arose from his job duties, as an ALJ, to comment upon and shape OAH policy. See D.C. CODE § 2-1831.09(a) (stating ALJ is required to "[f]ully participate in . . . management activities to set and steer policies relating to Office operations"). By his own description, plaintiff's job responsibilities included commenting upon policies related to OAH operations. (See, e.g., Amd. Compl. ¶ 106 ("The OAH Code of Ethics requires that 'An Administrative Law Judge shall participate in establishing, maintaining and enforcing high standards of conduct and shall personally observe those standards of conduct . . .") (quoting Chpt. I(B)); Id. ¶ 107 ("[T]the OAH Code of Ethics requires that ALJs 'take appropriate action or initiate appropriate disciplinary measures against an Administrative Law Judge . . . for unprofessional conduct of which he may become aware.'").) Plaintiff thus concedes that his job "require[d]" him to speak out about what he perceived was unprofessional or unethical conduct." (Id. at ¶ 61.)
Plaintiff further alleges that he was acting in furtherance of those duties by exposing the existence of the peer review system, critiquing the use of that system, and complaining about other related issues. (See, e.g., Pl.'s Mot. for Expedited Ruling at 20 ("As a District of Columbia employee plaintiff was required to make the Whistleblower disclosures he made.") (emphasis in original)*fn17 ; Amd. Compl. ¶ 95; Defs.' Ex. 2 (characterizing his research regarding the peer review system as "a valuable service" to OAH); Amd. Compl. ¶ 112 (asserting that "the OAH Code of Ethics obligated plaintiff to report the Chief Judge's unprofessional conduct"); Defs.' Ex. 4 at 1 (explaining that his letter to the Mayor was driven by his job responsibilities: "I am required, by statute, to comply with the requirements of the Code of Ethics for OAH Administrative Law Judges . . . Our Code of Ethics requires that I 'take appropriate action or initiate appropriate disciplinary measures against an Administrative Law Judge . . . for unprofessional conduct of which [I] may become aware' . . . . I am obligated, therefore, to advise you that I am aware that the Chief Judge has engaged in unprofessional conduct by violating multiple provisions of the Code of Ethics.") (emphasis in original); id. ("The conduct that requires that I prepare and send this letter . . .") (emphasis added). See Thompson, 530 F.3d at 917-18 (holding that Chief of Security for D.C. Lottery Board spoke pursuant to duty to maintain Board's financial integrity when he reported Board members' financial misconduct); Wilburn v. Robinson, 480 F.3d 1140, 1151 (D.C. Cir. 2007) (holding that an employee hired "to root out discrimination in the District government" did not speak as citizen when reporting discriminatory hiring practices).
Plaintiff does not dispute that his initial complaints (i.e., those made prior to his February 2006 testimony before the City Council) regarding the operating procedures at OAH were a direct part of his job duties and thus unprotected by the First Amendment. Plaintiff does not claim that he acted as a private citizen when he went about "prepar[ing] and deliver[ing] an extensively researched 19 page memorandum to Chief Judge Butler on how the Peer Review process required that [plaintiff] violate the [law]" (Defs.' Ex. 7 at 3), which he wrote on official OAH letterhead, signed "Roy L. Pearson, Jr., Administrative Law 'Judge,'" and distributed in the workplace to his superiors and co-workers. (See Defs.' Ex. 2 (characterizing his legal analysis in the June 2005 memorandum as "a valuable service" to OAH); see also Defs.' Ex. 3 at 2 (referring again to the June 2005 memorandum as "a valuable service"). In the same way, plaintiff does not claim that he spoke as a citizen by writing a July 2005 letter to the Commission to address the peer review system, which was also written on official OAH letterhead and signed "Roy L. Pearson, Jr., Administrative Law Judge." (See Defs.' Ex. 3; see also Defs.' Ex. 7 at 4 (listing the letter as part of a "major contribution [he] made to realizing OAH's legislative goals"); Defs. Ex. 7 at 3 (detailing his "constructive efforts to change [the peer review] system, and mindset" as a "contribution to judicial independence and integrity at OAH").) When plaintiff went to work and performed the tasks he was paid to perform, plaintiff acted as a government employee. Plaintiff does not, and cannot, dispute this.
After being unsuccessful in petitioning his supervisors, his co-workers, and the Commission, plaintiff believed, apparently based on a misreading of the law, that he could immunize his criticism of the peer review system by petitioning the D.C. Council. Such an analysis was not correct, for it is clear that his supervisors retained the ability to regulate his official speech. Garcetti, 547 U.S. at 422 (The First Amendment "does not invest [public employees] with a right to perform their jobs however they see fit."). "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Id. at 421-22.
Indeed, the "'internal memorandum' prepared by [plaintiff] never lost its character as speech pursuant to his official duties simply by virtue of the wider dissemination he elected to give it after his recommendations were ignored by [his supervisors]." Andrew v. Clark, 472 F. Supp. 2d 659, 662 n.4 (D. Md. 2007).
As the D.C. Circuit has recognized, "it would be incongruous to interpret Garcetti, a case concerned with allowing the government to control its employees within their jobs, as giving broader protections to disobedient employees who decide they know better than their bosses how to perform their duties." Thompson, 530 F.3d at 918. This Court "fails to see how the broader dissemination of precisely the same speech alters the fundamental nature of the underlying communication, such that what was once a part of the employee's official duties becomes the speech of a private citizen." Omokehinde v. Detroit Bd. of Educ., 563 F. Supp. 2d 717, 728 (E.D. Mich. 2008) (finding "[p]laintiff's complaints to her supervisor about questionable Title I expenditures flowed directly from her duties and responsibilities as an employee of the Defendant School District. When her protests through the chain of command proved unavailing, she repeated precisely the same complaints to an outside audience.").
Plaintiff maintains, however, that his subsequent communication with the D.C. Council was outside of his job duties, largely because he used his annual leave, went outside his chain of command, and was identified by the Council Chairman at the outset of his testimony as a "citizen." (Amd. Comp. ¶¶ 101-02; Pl.'s Opp'n at 55 n.29.) Yet, plaintiff admits that, throughout the entire period in question, including February 2006 and February 2007, his job required him to maintain the integrity of OAH's operations and to take action when he perceived misconduct within the OAH. Moreover, plaintiff's application for reappointment discusses his testimony before the D.C. Council as an activity that plaintiff believed would "be helpful to the Commission in the evaluation of [his] candidacy for reappointment" as an ALJ. (See Defs. Ex. 7 at 1.) In his statement, plaintiff lists his testimony as part of a "long running struggle" and "a major contribution [he] made to realizing OAH's legislative goals." (See Defs. Ex. 7 at 4; see also id. at 11 (citing his "campaign to secure greater judicial independence for ALJs at OAH" through the "revamp[ing of] the Peer Review process" as his "proudest contribution to OAH").
The Court finds that, in light of plaintiff's own admissions regarding his job duties and actual job performance, the speech at issue here "owe[d] its existence to [his] professional responsibilities." Garcetti, 547 U.S. at 421; see also Meggison v. Charlevoix County, __ F. Supp. 2d __, 2008 WL 5411896, at *7 (W.D. Mich. Dec. 23, 2008) ("The entire subject matter of [plaintiff's] speech owes its existence to her role as Jail Administrator. Her knowledge of the issue and her obligation to help remedy the problem arose solely as a consequence of her employment.").
Although testimony before a legislative body might otherwise be just the sort of citizen speech protected by the First Amendment, plaintiff's repeated identification of himself in his professional capacity, his previous advocacy on the same issue while acting in his official capacity, and his assertions that such activism was required by and in furtherance of his job duties deprieve plaintiff of any claim of protection under the First Amendment. Plaintiff's complaints were made pursuant to his official job duties and thus defendants did not violate plaintiff's First Amendment rights. See Thompson, 530 F.3d at 916 ("[T]he First Amendment places no restrictions on the government's right to punish employees for speech made 'pursuant to their official duties.'") (quoting Garcetti, 547 U.S. at 421).
Where an employee is simply performing his or her job duties, as the Court has concluded is the case here, the Court need not -- and should not -- proceed to balance the competing interests. The Pickering balancing test applies only if the employee spoke as a citizen on a matter of public concern. See Garcetti, 547 U.S. at 418.
The Court does, however, conclude that even if plaintiff had properly alleged that he was speaking as a citizen on a matter of public concern, he could not satisfy the second prong of the Pickering test, which requires that plaintiff's interest, "as a citizen, in commenting upon matters of public concern," outweighs the employer's interest, "as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568. In performing this balancing test, courts must take "the content, manner, time and place of the speech . . . into account in weighing the governmental interest in regulating the speech." O'Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998).
Government employers are afforded sufficient discretion to manage their operations. "A government entity has broader discretion to restrict speech when it acts in its role as employer" so long as the restrictions are "directed at speech that has some potential to affect the entity's operations." Garcetti, 547 U.S. at 418. "Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission." Id. at 423. To that end, government employers have a "strong state interest" in avoiding "interference with work, personnel relationships, or the speaker's job performance [which can] detract from the public employer's function" that may outweigh the speaker's desire to express himself. Rankin v. McPherson, 483 U.S. 378, 388 (1987).
Courts look to whether the speech "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Id. at 388 (citing Pickering, 391 U.S. at 570-73).
Plaintiff argues his disclosures to the D.C. Council "furthered the government's efficiency interests -- by exposing the defendants' efforts to frustrate the mission of the D.C. Office of Administrative Hearings" and thus the balancing test is "inapplicable." (Pl.'s Opp'n at 5 n.1 (emphasis in original).) He contends that, regarding the government interests, "there is no trade off; no countervailing interests, that have to be weighed and balanced." (Pl.'s Opp'n at 13.) This is not, as plaintiff would like to believe, a fact, but rather is nothing more than a legal conclusion, and a faulty one at that.
Here, plaintiff's public testimony and private remarks to the D.C. Council "discredited the office by [being heard] . . . in public." AFGE v. Loy, 332 F. Supp. 2d 218, 222-29 (D.D.C. 2004) (quoting Am. Postal Workers Union, AFL-CIO v. United States Postal Serv., 830 F.2d 294, 301 (D.C. Cir. 1987). There are stronger governmental interests in regulating the speech of certain public employees because of the degree of trust and discipline required for the job. "Public employees . . . often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions." Garcetti, 547 U.S. at 419. As observed by the D.C. Circuit, "[h]igh-level officials must be permitted to accomplish their organizational objective through key deputies who are loyal, cooperative, willing to carry out their superiors' policies, and perceived by the public as sharing their superiors' aims." Hall, 856 F.2d at 263 (upholding dismissal of athletic director after he repeatedly and publicly disagreed with superiors regarding proper response to violations of university rules). An employee may be dismissed who "express[es] views on matters within the core of his responsibilities that reflect[] a policy disagreement with his superiors such that they could not expect him to carry out their policy choices vigorously." Id. at 265.
Moreover, because plaintiff's speech "emerged after a persistent dispute between [him and his supervisors] over office . . . policy," Connick, 461 U.S. at 154, his speech had the capacity to exacerbate prior conflict over the same issue and to threaten his supervisors' authority. Plaintiff's campaign against the peer review system "interfered with the efficient functioning" of OAH by "disturb[ing] or interrupt[ing] other employees," at whom plaintiff directed his complaints.*fn18 Rankin, 483 U.S. at 389; see also Connick, 461 U.S. at 152, n.11 (plaintiff "disrupt[ed] the routine of the office" by preparing and distributing at her workplace a questionnaire with critical questions regarding her supervisor). Because the speech at issue "concern[ed] office policy" and "ar[ose] from an employment dispute concerning the very application of that policy to the speaker," the Court gives "additional weight" to the supervisor's view that the speech threatened his authority. Connick, 461 U.S. at 153. As the Supreme Court has recognized, "[p]rolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency." Arnett v. Kennedy, 416 U.S. 134, 168 (1974); see also Baloch v. Kempthorne, 550 F.3d 1191, 1200 (D.C. Cir. 2008). Plaintiff's testimony to the D.C. Council criticized Chief ALJ Butler and other ALJs with whom plaintiff would normally be in contact in the course of his daily work and thus jeopardized the harmony of the office. Cf. Pickering, 391 U.S. at 569-70 (there, the speech was "in no way directed towards any person with whom [plaintiff] would normally be in contact in the course of his daily work").
Defendants need not wait for "events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Connick, 461 U.S. at 152. Instead, they were free to act in response to plaintiff's harmful speech, particularly here where his speech is "most accurately characterized as an employee grievance concerning internal office policy," and thus "touch[es] upon matters of public concern in only a most limited sense," if at all. Id. at 152-54.
The Court therefore concludes that the governmental interests far outweighs any conceivable countervailing interests, and for this reason as well, plaintiff's communications with the D.C. Council were not protected speech.
In Count II, plaintiff alleges that he was retaliated against because he filed and prosecuted a public interest lawsuit. (Amd. Compl. ¶¶ 4, 19-39, 64-90, 127-31; Pl.'s Opp'n at 6.) Plaintiff filed the lawsuit in the District of Columbia Superior Court, seeking approximately $65 million dollars in damages relating to one pair of pants allegedly misplaced by a small dry cleaners establishment in Washington, DC.
To constitute protected speech, plaintiff's lawsuit must address a matter of public concern, i.e., "of political, social, or other concern to the community." Connick, 461 U.S. at 146; see Pickering, 391 U.S. 572; see also Rendish v. City of Tacoma, 123 F.3d 1216, 1221 (9th Cir. 1997) (holding that public employee's suit "must involve a matter of public concern" to be protected under the First Amendment); Zorzi v. County of Putnam, 30 F.3d 885, 896 (7th Cir. 1994) ("If a public employee is retaliated against for filing a lawsuit, the public employee has no First Amendment claim unless the lawsuit involves a matter of public concern."); see also Berndt v. Jacobi, 978 F.2d 1261 (7th Cir. 1992) ("This court has considered the question, and determined that not every lawsuit, just by virtue of its existence, presents a matter of public concern.").
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. The employee's "personal motivation" for his speech, although not dispositive, is "certainly a factor in the public-concern analysis." O'Donnell, 148 F.3d at 1134.
A review of the nature of, and motivation behind, plaintiff's lawsuit demonstrates that plaintiff was not on a mission to protect the public welfare. "[A]ll the claims in [plaintiff's] Amended Complaint relate[d] only to him" and he sought "relief solely on his own behalf." See Pearson v. Chung et al., Dkt. No. 05 CA 4302 B, Findings of Fact and Conclusions of Law, 4 (June 25, 2007) (Bartnoff, J.).*fn19 His lawsuit was, in the words of the superior court judge, "a one-victim case involving a single pair of lost suit pants." See Pearson v. Chung et al., Dkt. No. 05 CA 4302, Order Denying Plaintiff's "Motion to Amend and Supplement Complaint," 3 (Nov. 20, 2006) (Kravitz, J.) (noting that "the first amended complaint contains no factual allegations concerning any injuries suffered by other customers as a result of the defendants' alleged CPPA violations and seeks no money damages, in its prayer for relief or elsewhere, for anything other than the injuries allegedly suffered by the plaintiff").
The mere fact that plaintiff characterizes his status as that of a private attorney general does not alter the general nature of his lawsuit, which more properly should be characterized as a personal vendetta against a dry cleaners over a pair of pants. See Pearson v. Chung et al., Dkt. No. 05 CA 4302, Order Granting in Part and Denying in Part (1) Plaintiff's Motion Addressing Trial-Related Issues and (2) Defendants' Motion in Limine (Mar. 23, 2007) (barring evidence relating to unclaimed or other clothing on defendants' premises because "the only claim in this case relates to one pair of pants belonging to the plaintiff"). In fact, plaintiff's request to "amend and supplement the Complaint to assert claims as a private attorney general on behalf of potentially thousands of other consumers" was denied. Id. (noting the "claims in this case involve [plaintiff] alone"); see also Pearson v. Chung et al., Dkt. No. 05 CA 4302, Order Denying Plaintiff's "Motion to Amend and Supplement Complaint," 3 (Nov. 20, 2006) (Kravitz, J.) (noting that "plaintiff has not identified by name a single other victim of the defendants' alleged unfair trade practices or described, in an affidavit or otherwise, a single occurrence in which the defendants' unlawful conduct has injured another customer").
Because plaintiff's lawsuit did not involve a matter of public concern, his prosecution of the private lawsuit cannot constitute protected activity under the First Amendment as a matter of law.*fn20 Plaintiff has other avenues for relief, including the powerful network of legislative enactments -- such as whistleblower protection laws and labor codes -- that are available to those who seek to expose wrongdoing. The Court rejects, however, the notion that the First Amendment shields plaintiff from unfavorable employment action in this instance.
Count III alleges that defendants violated plaintiff's Fifth Amendment rights by denying plaintiff procedural and substantive due process when deciding whether to reappoint him as an administrative law judge.*fn21
The due process clause provides that "no person shall be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. v. "The procedural due process guarantee imposes procedural requirements on the government before it deprives individuals of protected interests." Richard Milburn Pub. Charter Alternative High Sch. v. Cafritz, 798 A.2d 531, 541 (D.C. 2002) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). "When protected interests are implicated, the Constitution requires notice and opportunity for hearing appropriate to the nature of the case." Id. (citation and internal quotation marks omitted).
Plaintiff's procedural due process claims must fail as a matter of law. Generally, procedural due process requires only that the government provide "notice and opportunity for hearing." See, e.g., Jones v. Flowers, 547 U.S. 220, 223 (2006).
Plaintiff maintains that he had an expectation of continuation in office as an ALJ which amounted to a property interest entitling him to the full panoply of due process protections during the evaluation by the Commission of his candidacy for reappointment, and that he was denied those protections. He argues that he was provided "virtually none" of the process due him (Pl.'s Opp'n at 22), and that the Commission Members failed "to provide even the bare minimum of due process." (Id. at 44.)
Contrary to plaintiff's argument, this Court concludes that plaintiff did not have a property interest which entitled him to the full panoply of due process. See Halleck v. Berliner, 427 F. Supp. 1225, 1235 (D.D.C. 1977) ("The process which must be afforded by the Commission in connection with the evaluation of a candidate for reappointment as a judge is less than the full panoply of protections accorded in a criminal trial."). He did, however, have an interest in possible reappointment which entitled him to a thorough and fair evaluation of his candidacy by an impartial Commission, and plaintiff was entitled to such process as would insure that the Commission's evaluation of his candidacy for reappointment was thorough and fair. Id.
In Halleck, the court found that the plaintiff, a superior court judge who was denied reappointment, had been accorded due process, because the Commission had notified him of the areas of its concern, advising him of the specific incidents that gave rise to such concern, and had afforded him a day-long hearing and an opportunity to respond to the Commission's inquiries through documents and testimony. Id. at 1236.
Similarly, plaintiff in this case was afforded adequate process. The allegations, and the supporting documents, show that the Commission gave plaintiff advance notice of all the bases for the possible non-renewal of his appointment, advised him of the specific communications giving rise to such concern, referred plaintiff to the specific laws upon which it relied, and provided plaintiff with copies of every document upon which it relied. (Amd. Compl. ¶ 165; Defs.' Ex. 13.) Plaintiff was afforded multiple opportunities to submit evidence on his behalf, to call witnesses, to respond to the Commission's inquiries and concerns, to present argument supporting his candidacy for reappointment, and to meet with the Commission regarding his reappointment application. (Amd. Compl. ¶¶ 159-60, 203, 206, 210, 212; Pl.'s Statement of Material Facts ¶¶ 13, 17-18, 21, 23.)*fn22
Plaintiff asserts that due process required an opportunity to confront the witnesses against him and "prior disclosure of all witnesses." (Pl.'s Opp'n at 21-22.) Plaintiff does not have a right to confront witnesses against him, as the Confrontation Clause does not apply here. See Dutton v. Evans, 400 U.S. 74, 97 n.4 (1970) (Harlan, J., concurring) (explaining that the Confrontation Clause applies only to criminal prosecutions); BMW of North Am., Inc. v. Gore, 517 U.S. 559, 574 n.22 (1996) ("The strict constitutional safeguards afforded to criminal defendants are not applicable to civil cases . . ."). Contrary to plaintiff's claim, "a candidate for reappointment need not be given the right to examine or cross-examine every person who gave any information, favorable or unfavorable, to the Commission or any of its members with respect to the candidate's performance in office or fitness for reappointment." Halleck, 427 F. Supp. at 1236. Accordingly, the Commission's decision not to allow plaintiff to confront witnesses cannot serve as the basis for plaintiff's due process claim.
Moreover, there is no statutory basis for plaintiff's claim that the OAH Act "prohibits the Chief ALJ from using subjective evaluation standards as measures of an ALJ's performance." (Pl.'s Mem. 8 n.2.)*fn23 Nor is there any support in the case law for this novel proposition. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) ("[E]mployers may of course take subjective considerations into account in their employment decisions . . . ) (en banc); Vasilevsky v. Reno, 31 F. Supp. 2d 143, 151 (D.D.C. 1998) ("An employer is entitled to rely on his perception of an employee's work performance.").
Nor may plaintiff rest his due process claim on the Commission's failure to meet a statutory deadline for a vote on plaintiff's reappointment.*fn24 A "mere violation of law does not give rise to a due process claim." AFGE, AFL-CIO, Local 446 v. Nicholson, 475 F.3d 341, 353 (D.C. Cir. 2007); see Duckett v. Quick, 282 F.3d 844, 848 (D.C. Cir. 2002) (holding due process was not violated by agency's failure to comply with D.C. regulations); Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 648-49 (D.C. Cir. 1987) (holding that a state does not violate an individual's due process rights by deviating from its own procedures). The rules clearly contemplate that the timelines for review and reappointment may indeed go past an ALJ's initial period of appointment. See 6 D.C. CODE MUN. REGS. § 3705.23. Under those regulations, if a timely vote cannot occur, the ALJ applying for reappointment may "be retained as a non-judicial employee of the [OAH], without reduction in grade or step, until the Commission votes on his or her reappointment." 6 D.C. CODE MUN. REGS. § 3705.26. That is precisely what occurred here. Plaintiff "remained with OAH in the capacity of an Attorney-Advisor pending the Commission's decision with regard to his reappointment pursuant to the Commission's rules." (Defs.' Ex. 12 at 2 n.1; see also 6 D.C. CODE MUN. REGS. § 3705.26.) He received the same salary and was not substantially prejudiced by the delay.*fn25 See Gallothom, Inc. v. D.C. Alcoholic Beverage Control Bd., 820 A.2d 530, 535 (D.C. 2003) ("Statutory provisions concerning the performance of duties by public officers generally are considered directory so that the interests of private parties and the public might not suffer due to the official's failure to act promptly.") (quoting Vahn v. Dist. of Columbia Bd. of Funeral Directors & Embalmers, 441 A.2d 246, 248 (D.C. Cir. 1982)).
Plaintiff also alleges that he was not afforded a hearing before an impartial tribunal (see Pl.'s Mot. at 35-37), but provides no evidence of bias. Nothing in the record indicates that plaintiff moved to have any member of the Commission recused. Kowal, 16 F.3d at 1276 ("[T]he court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.").
Here, as in Halleck, "the evaluation process adequately safeguarded plaintiff from arbitrary governmental action." 427 F. Supp. at 1237; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982) (finding that notice and "some form of hearing" are all that due process requires). No further process was constitutionally required.
Likewise, plaintiff's substantive due process claim is meritless. Even assuming plaintiff had a property or liberty interest, the threshold for a substantive due process violation has not been met. The doctrine of substantive due process contains only egregious government misconduct. The "threshold question is whether the behavior . . . [was] so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). The conduct at issue here simply does not come anywhere near the extreme level necessary to violate substantive due process.
Count III must therefore be dismissed as a matter of law.*fn26
When the federal-law claims on which a court's original jurisdiction is based have been dismissed, the court has discretion in deciding whether to exercise supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C. § 1367(c)(3); Edmondson & Gallagher v. Alban Towers Tenant Ass'n, 48 F.3d 1260, 1265-66 (D.C. Cir. 1995).
In making this determination, the court balances the traditional "values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). However, "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Id. at 350 n.7; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.").
In light of the dismissal of plaintiff's federal claims, the Court sees no reason to retain jurisdiction over the remaining claims under the D.C. Whistleblower Act and under the common law (Counts IV and V).
For the foregoing reasons, the Court concludes that plaintiff's speech was not protected because he spoke pursuant to his official duties when he complained to the D.C. Council and because his private lawsuit was not a matter of public concern. The Court therefore grants defendants' motion to dismiss Counts I and II. The Court also concludes that plaintiff was afforded adequate process and therefore dismisses Count III. For these same reasons, the Court concludes that Chief ALJ Butler and the Commission Members are shielded from liability by the doctrine of qualified immunity. The Court declines to exercise supplemental jurisdiction and dismisses the Counts IV and V without prejudice.
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Pay-TV services continue to dominate the US home entertainment industry, with 86% of homes paying a regular fee to receive linear TV channel broadcasts, and revenues rising 4.3% in 2011 to reach US$94bn, according to a new industry report from Futuresource Consulting.
Breaking down the nation's home entertainment industry into video-on-demand, electronic sell-through, pay-TV, and sell-through and rental of packaged media such as DVDs, pay-TV is estimated to account for a whopping 40% of total revenues.
"Although the Netflix OTT (over-the-top) TV service has been a major disruptive force, driven by high profile tie-ins with connected CE device manufacturers and streaming deals with studios, its direct impact on the pay TV industry has been minimal," said Carl Hibbert, Head of Broadcast, Content & Services at Futuresource Consulting.
"The spectre of cord cutting predicted by many in the industry has not revealed itself in any great way and Futuresource forecasts indicate that it will not do so in the foreseeable future either, with less than 5% of subscribers exiting in the next two to three years."
Hibbert adds that whilst it is true that cable operators have seen some decline in subscriber figures, the majority have come from lower-end packages, which are more associated with small average revenues per user (ARPUs) and higher tendencies to churn out.
"Many of those subscribers leaving cable have actually moved across to IPTV and satellite as opposed to leaving pay TV altogether. The most significant impact from online video services has been on the packaged media segment, which fell by US$2.3bn in 2011."
Responding to the internet threat, pay TV is now "vigorously exploiting" multiplatform and second-screen opportunities with 'TV everywhere' services, while tentatively exploring OTT distribution into connected CE devices, says the report.
Over-the-top (OTT) video will however continue to grow, despite rights issues and higher prices imposed by studios and premium aggregators.
Growth in both paid-for and ad-funded OTT segments is expected to culminate in the US online video market generating more than US$12bn by 2016.


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I am currently majoring in Biomedical Engineering at Boston University, under the Presidential Scholars Distinction Program. My hobbies include playing sports such as Soccer, Basketball, Football, Tennis and Track and Field. I also love playing the guitar in my spare time and love spending time with my family and friends. Further, I love learning about new cultures and languages; I am able to speak three languages fluently.
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A wave of regulatory reform is forcing banks to revisit the technology used to measure and manage risk. This presents an opportunity to develop IT capabilities that provide a more nuanced view of how and where banks utilize their financial resources. This paper, written jointly by SAS and Boston Consulting Group, examines this issue in the context of a framework and process designed to help banks improve their risk-IT architectures.
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