IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF GOVERNMENT :
EMPLOYEES, AFL-CIO, et al., :
v. : Civ. Action No. 1:03-CV-00043 (RMC)
JAMES M. LOY, :
MOTION FOR LEAVE TO SUPPLEMENT THE COMPLAINT
Pursuant to Fed.R.Civ.Proc. 15(d), Plaintiffs move for leave to supplement the original
complaint in this case. Leave to file a supplemental complaint should be freely given where, as
here, the supplemental facts relate to the original pleading, undue prejudice to the Defendant will
not result, and it will serve the interest of justice. Accordingly, the Plaintiffs respectfully request
that this Court grant leave to file the attached FIRST SUPPLEMENTAL COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF and add facts that occurred subsequent to the
filing of the original complaint as it will promote a complete adjudication of the dispute between
STATEMENT OF FACTS
Since the Defendant issued the directive at issue in the original complaint, Defendant and
its agents have applied the directive to encroach on TSA security screeners’ First Amendment
right to speech and association and Fifth Amendment right of due process. Specifically, TSA
managers throughout the country have threatened employees with discipline and/or termination
for conducting union organizing activities while not on duty.
Additionally, the day after the Federal Labor Relations Authority (FLRA) Boston
Regional Director issued a decision ruling that the Authority did not have jurisdiction over
AFGE’s petitions to represent TSA screeners, Defendant summarily discharged Plaintiff Ferace
from employment as a federal screener. Defendant alleges it discharged Plaintiff Ferace for
viewing a document left in a public location and in plain view and then disclosing the
information to fellow screeners on or about May 20, 2003, nearly two months prior to the date of
discharge. Between May 20th and the date of discharge, Plaintiff Ferace was never informed that
Defendant had concerns regarding the events of May 20th nor was he informed that he had
violated policy by viewing this discarded document. Furthermore, Defendant never informed
Plaintiff Ferace that they were investigating the events of May 20th, or that they were interested in
his side of the story. As a TSA employee, Plaintiff Ferace was actively and openly engaged in
the effort to organize TSA employees.
Counsel for Defendant has been contacted and sent a copy of this Motion for Leave to
Supplement and the 1st Supplemental Complaint but is unable to represent at this time whether
the Defendant would oppose this motion.
The instant motion should be granted as it would advance the purpose of Rule 15(d) to
promote complete adjudication of the dispute between parties and because the defendants will
not be prejudiced by the supplemental pleading.
Rule 15(d) permits a party upon leave of court to supplement a complaint to set forth
“transactions or occurrences or events which have happened since the date of the pleading sought
to be supplemented.” Rule 15(d); see also U.S. v. Hicks, 283 F.3d 380 (D.C. Cir. 2002).
Although the decision to grant or deny such a request is within the discretion of the district court,
“it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as
’undue delay, bad faith or dilatory motive. . .repeated failure to cure deficiencies by [previous]
amendments . . .[or] futility of amendment.’” Id., citing Foman v. Davis, 371 U.S. 178, 182
(1962). Similarly, courts should allow parties to supplement their pleadings under Rule 15(d)
when doing so will “promote as complete an adjudication of the dispute between the parties as is
possible.” LaSalvia v. United Dairymen of Arizona, 804 F.2d 1113, 1119 (9th Cir.1986)
(quotation omitted), cert. denied, 482 U.S. 928 (1987).
In the instant case, justice requires that Plaintiffs be allowed to supplement their
complaint to include an “as applied” challenge. In the original complaint, the Plaintiffs asserted
that the Defendant’s directive was unconstitutional on its face. Since the directive was
implemented, the Defendant has threatened TSA employees who are also union activists with
disciplinary measures. Furthermore, Defendant has fired lead union activist Plaintiff Ferace.
This information supports a claim that assuming arguendo that Loy could have lawfully enacted
the directive, it has not been constitutionally applied.
Defendant will not be prejudiced by the supplemental complaint. The evidence that
Defendant would likely need to oppose such an “as applied” challenge is either already in his
possession or easily obtainable by him. See LaSalvia, at 1119. Absent prejudice to Defendant
arising from the proposed additional legal basis for Plaintiffs’ cause of action, the Court should
grant the request for leave to supplement the complaint to add an as applied challenge. Consistent
with this as applied challenge, Plaintiffs also seek to supplement the requested relief so as to
include an order reinstating Plaintiff Ferace with back pay and his beneficial entitlements.
WHEREFORE, plaintiffs respectfully request that the Court grant them leave to file
their first amended and supplementary complaint.
/s/ Mark D. Roth .
Mark D. Roth (D.C. Bar No. 235473)
/s/ Anne M. Wagner
Anne M. Wagner (D.C. Bar No. 435728)
Assistant General Counsel-Litigation
/s/ Gony Frieder
Gony Frieder (D.C. Bar No. 457706)
Staff Counsel-TSA Local 1
American Federation of Government
80 F Street, NW
Washington, D.C. 20001
Tel: (202) 639-6424
Fax: (202) 639-6441
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing PLAINTIFFS’ MOTION FOR LEAVE TO
SUPPLEMENT THE COMPLAINT, FIRST SUPPLEMENTAL COMPLAINT, and
PROPOSED ORDER were served this 21st day of July, 2003 by first class mail, postage
prepaid, upon the following:
Robert D. McCallum, Jr., Esq.
Roscoe C. Howard, Jr. , Esq.
Shannen Coffin, Esq.
Jennifer Rivera, Esq.
Susan K. Rudy, Esq.
Brian G. Kennedy, Esq.
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Benjamin Franklin Station
Washington, D.C. 20044
/s/ Sheila Jones
Sheila Jones, Legal Secretary
Office of General Counsel
American Federation of
Government Employees, AFL-CIO
80 F Street, N.W.
Washington, D.C. 20001