UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
FRANK A. ROSE, )
)
Plaintiff, )
)
v. ) Civil Action No. 25-0912 (PLF)
)
NATIONAL NUCLEAR SECURITY )
ADMINISTRATION, et al., )
)
Defendants. )
__________________________________________)
OPINION
Plaintiff, Frank Rose, is the former Principal Deputy Administrator of the
National Nuclear Security Administration (“NNSA”). In February 2024, after 30 years of
service in the national defense and security sector, Mr. Rose was informed of complaints against
him alleging misconduct relating to sexual harassment and the creation of a hostile work
environment. An investigation into the allegations was opened by the Department of Energy’s
(“DOE”) Office of Hearings and Appeals (“OHA”), but Mr. Rose asserts that he was never given
specific details regarding the charges against him and was never interviewed. After being told in
mid-March that the investigation was complete and a high-ranking official from DOE no longer
wanted Mr. Rose to remain in his position at NNSA, Mr. Rose accepted early retirement. Later
communications by DOE informed NNSA and DOE employees of the charges and subsequent
investigation but stated that the investigation was never completed because of Mr. Rose’s
retirement.
Mr. Rose brought this action against NNSA and DOE seeking declaratory relief
for violations of his procedural and substantive due process rights. The defendants moved to dismiss the complaint, and the Court heard argument on the defendants’ motion on January 21,
2026. It denied defendants’ motion with respect to plaintiff’s procedural due process claim
(Count I) and took under advisement the portion of the motion regarding his substantive due
process claim (Count II). Upon careful consideration of the parties’ written submissions, oral
arguments and the relevant authorities, for the reasons set forth on the record in open court and
those that follow, the Court will grant the motion in part and deny it in part. 1
I. BACKGROUND
A. Factual Background
Mr. Rose, in his position as the Principal Deputy Administrator of the NNSA between
August 2021 and April 2024, served as a Senate-confirmed presidential appointee, nominated by
President Biden. Am. Compl. ¶¶ 9-10. On February 24, 2024, NNSA Administrator Jill Hruby
(“Ms. Hruby”) called to inform Mr. Rose of complaints regarding workplace behavior, providing
no specific details about the complaints and offering only vague statements regarding “hostile
work environment” and “harassment.” Id. ¶¶ 15-16. Mr. Rose denies these allegations. Id. ¶ 17.
Ms. Hruby informed Mr. Rose during the phone call and later in an official email that the DOE’s
Office of Hearings and Appeals (“OHA”) would conduct a “fair” “fact-finding” investigation,
including an interview. Id. ¶¶ 18, 20-21. Mr. Rose repeatedly reiterated his willingness to fully
cooperate in the investigation and communicated his availability for an interview. Id. ¶¶ 19, 22,
24-27. Mr. Rose was never interviewed. Id. ¶ 31.
1
The Court has reviewed the following papers in connection with this matter: Amended Complaint (“Am. Compl.”) [Dkt. No. 17]; Defendants' Motion to Dismiss (“Defs’ Mot.) [Dkt. No. 21]; Plaintiff’s Response in Opposition (“Opp.”) [Dkt. No. 24]; and Defendant’s Reply (“Def’s Reply”) [Dkt. No. 25].
2
On March 12, 2024, still without providing specific details of the accusations
against him, Ms. Hruby informed Mr. Rose that the investigation had been completed and he
would not be interviewed. Am. Compl. ¶¶ 28-30. She further advised that the Chief of Staff at
DOE “no longer wanted Rose to remain in his position at NNSA” and wanted him “‘out’ . . . by
the end of April 2024.” Id. ¶¶ 33-34. This directive from a high-ranking DOE official “made
clear” to Mr. Rose that he “would never be given an opportunity to refute the undefined charges
against him” and that his continued employment at NNSA was “no longer tenable.” Id. ¶ 35. In
response to this communication and the pressure of an “impending and involuntary separation,”
Mr. Rose believed he was left with “no reasonable alternative” other than to accept that he would
be “constructively discharged under the guise of an early ‘retirement.’” Id. ¶ 36. Mr. Rose’s
decision to accept early retirement “was made under duress…not the result of a voluntary or
planned retirement process.” Id. ¶ 37.
On March 28, 2024, Ms. Hruby sent an agency-wide email announcing Mr.
Rose’s retirement as of April 2024, “constructively discharging Rose.” Am. Compl. ¶ 38. In an
April 10, 2024 email, Jocelyn Richards, Deputy General Counsel for DOE stated:
In mid-February of 2024, NNSA received several complaints
outlining allegations of harassment or hostile work environment by
Frank Rose, the Principal Deputy Administrator of NNSA. NNSA
management promptly requested that DOE’s Office of Hearings and
Appeals (OHA) conduct an independent internal fact-finding review
into allegations regarding potential inappropriate workplace
conduct by Mr. Rose. The fact-finding commenced in early March
2024. The fact-finding has not been completed, as Mr. Rose is
expected to leave the Department in late April 2024.
Id. ¶ 39. Mr. Rose requested more information about the complaints, but never received a
response. Id. ¶ 42.
3
On May 29, 2024, Richards advised that “[a]ny further pursuit of the inquiry [of
the undefined allegations against Rose] was rendered moot by Mr. Rose’s retirement,”
confirming that defendants “had no intention of providing Rose with the process he was due
prior to his constructive discharge.” Am. Compl. ¶¶ 67, 70. Contrary to the April 10 email and
May 29 statement, “DOE officials” had previously “made it clear” to Mr. Rose that “the
investigation was deemed ‘complete’ and that there was no intention of interviewing him.” Id.
¶¶ 42, 69; see id. ¶¶ 28-30, 39-40. Thus, Mr. Rose asserts, “Richards either knowingly
misrepresented the status of the investigation or was provided with false information by
employees within DOE.” Id. ¶ 42. Ultimately, defendants “forced” Mr. Rose to resign on April
30, 2024, having never provided him with notice of the charges against him or any opportunity to
defend himself. Id. ¶¶ 43, 44. In September 2024, Mr. Rose filed a complaint with DOE and the
Department of Defense’s Inspector General concerning the “sham” investigation, but to date he
has received no response to his complaint. Id. ¶¶ 73-74.
Mr. Rose asserts that his reputation was “stigmatized” by defendants’ charging
him with misconduct, “namely creating a hostile work environment and subjecting female
employees to harassment.” Am. Compl. ¶ 45. He further asserts that these charges were
disseminated to employees within DOE and NNSA, who were also aware that “at the
culmination of DOE’s sham investigation,” he left NNSA. Id. ¶¶ 47-48. In addition, Mr. Rose
asserts that defendants disseminated “the existence of the charges against [him] and the
subsequent deficient investigation” to private sector employers.” Id. ¶ 50. According to Mr.
Rose, defendants’ dissemination, “coupled with the timing of Rose’s unexpected and forced
departure from NNSA,” led both private sector employers and DOE and NNSA employees to
4
“false[ly]” believe that “[he] had engaged in sexual harassment in the workplace and created a
hostile work environment.” Id. ¶¶ 46, 51.
Mr. Rose asserts that defendants’ actions and the “improper charges” against him
have attached a “continuing stigma” to him, significantly “hampered” his employment prospects,
“foreclosed [his] freedom” to take advantage of “other” employment opportunities, and
“seriously affected, if not destroyed,” his “ability to pursue his chosen career.” Am. Compl.
¶¶ 52-56. Since his “constructive discharge” from NNSA, Mr. Rose has been unable to obtain
work despite applying to “more than 20” positions for which he was “highly qualified,” and has
lost “other lucrative professional opportunities.” Id. ¶ 53.
B. Procedural History
Mr. Rose originally filed suit on March 27, 2025. See Complaint [Dkt. No. 1].
After defendants filed a motion to dismiss on July 28, 2025, see Motion to Dismiss [Dkt.
No. 15], Mr. Rose filed an amended complaint on August 25, 2025. See Am. Compl. [Dkt.
No. 17]. He brings two counts against both defendants: a Fifth Amendment violation of
procedural due process, and a Fifth Amendment violation of substantive due process. See id.
¶¶ 75-93. Mr. Rose seeks declaratory relief and “relief related to the loss or impairment of [his]
retirement benefits and eligibility resulting from the adverse employment action.” Id. at 13-14.
On December 1, 2025, defendants filed this motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Defs’ Mot. [Dkt. No. 21].
On January 21, 2026, the Court heard argument on defendants’ motion to dismiss.
In an oral opinion, the Court held that Mr. Rose has plausibly alleged that defendants deprived
him of his protected liberty interest in his reputation in violation of his Fifth Amendment right to
5
procedural due process. The Court therefore denied defendants’ motion to dismiss as to Count I
of Mr. Rose’s amended complaint. The Court now turns to Count II of Mr. Rose’s amended
complaint: substantive due process.
II. LEGAL STANDARD
To withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
plaintiff must plead facts that “give the defendant fair notice of what the claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, ‘to
state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570); see Spence v. U.S. Dep’t of Veterans
Affs., 109 F.4th 531, 539 (D.C. Cir. 2024). And “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” In re Interbank Funding Corp. Sec. Litig., 629
F.3d 213, 218 (D.C. Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. at 678). A plaintiff may
survive a Rule 12(b)(6) motion even if “recovery is very remote and unlikely,” so long as the
facts alleged in the complaint are “enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56.
In deciding a motion to dismiss under Rule 12(b)(6), the Court “must accept the
plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor.”
Sanchez v. Off. of State Superintendent of Educ., 45 F.4th 388, 395 (D.C. Cir. 2022); see
Ashcroft v. Iqbal, 556 U.S. at 678. The Court considers the complaint in its entirety, see Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and construes it liberally, granting
6
plaintiffs “the benefit of all inferences that can [reasonably] be derived from the facts alleged.”
See Sickle v. Torres Advanced Enter. Sols., LLC., 884 F.3d 338, 345 (D.C. Cir. 2018) (alteration
in original). The Court, however, need not accept all inferences drawn by the plaintiff “if such
inferences are unsupported by the facts set out in the complaint.” Nurriddin v. Bolden, 818 F.3d
751, 756 (D.C. Cir. 2016); see Ashcroft v. Iqbal, 556 U.S. at 679 (“While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”). Nor is
the Court “bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft
v. Iqbal, 556 U.S. at 678; see also Kaempa v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004).
III. DISCUSSION
Count II: Substantive Due Process
“The due process guarantee has both procedural and substantive components.”
Jacinto-Castanon de Nolasco v. U.S. Immigration & Customs Enf’t, 319 F. Supp. 3d 491, 499
(D.D.C. 2018). “Under either theory, a plaintiff must allege [he or] she ‘has been deprived of a
fundamental right or liberty or property interest.’” Akrayi v. United States Dep’t of State, Civil
Action No. 22-1289 (CRC), 2023 WL 2424600, at *6 (D.D.C. Mar. 9, 2023) (quoting Meyou v.
U.S. Dep’t of State, Civil Action No. 21-2806 (JDB), 2022 WL 1556344, at *5 (D.D.C. May 17,
2022)). Mr. Rose’s substantive due process claim, like his procedural due process claim, rests on
his assertion that defendants’ actions “unlawfully deprived [him] of his liberty interests in his
reputation and the right to pursue his chosen profession.” See Am. Compl. ¶ 85.
In determining whether a plaintiff states a substantive due process claim, the
Supreme Court has “always been reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this unchartered area are scarce and open7
ended.” Est. of Phillips v. D.C., 455 F.3d 397, 403 (D.C. Cir. 2006) (quoting Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992)). Accordingly, in its analysis the Court must “focus
on the allegations in the complaint to determine how petitioner describes the constitutional right
at stake and what the [defendants] allegedly did to deprive [him] . . . of that right.” Collins v.
City of Harker Heights, 503 U.S. at 125. To constitute a substantive due process violation, the
government’s behavior must be “so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.” See County. of Sacramento v. Lewis, 523 U.S. 833, 847-48 n. 8
(1998) (noting that this is a “threshold question”); see also Collins v. City of Harker Heights, 503
U.S. at 128 (emphasizing that only the most egregious official conduct can be “arbitrary in a
constitutional sense”); Butera v. D.C., 235 F.3d 637, 651 (D.C. Cir. 2001) (“This stringent
requirement” that the state’s conduct be sufficiently egregious to shock the conscience “exists to
differentiate substantive due process, which is intended only to protect against arbitrary
government action, from local tort law”).
Thus, even if the Court accepts, as it has, that Mr. Rose has sufficiently alleged a
cognizable deprivation of a liberty interest, “a question would remain: do his pleadings state
plausible allegations of conduct that may fairly be said to shock the contemporary conscience?”
see Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 541 (D.C. Cir. 2015) (internal
quotations and citations omitted). Defendants maintain that “[t]here is not a single allegation in
the amended complaint that the Defendants engaged in any conduct that could remotely be
considered egregious, outrageous, or so shocking that it offends the contemporary conscious.”
Defs’ Mot. at 12-13. The Court agrees.
In support of his substantive due process claim, Mr. Rose asserts that defendants’
actions reveal a deliberate “plan to summarily drum Rose out of public service,” as evidenced by
8
defendants’ “shocking refusal to provide Rose with notice of the allegations against him and their
outrageous refusal to speak with Rose so that he could defend himself before closing the
investigation.” See Am. Compl. ¶ 63. He further asserts that this conduct — “including a
fundamentally flawed and biased investigation, denial of due process safeguards, and the
arbitrary acceptance of false allegations — constitutes conscience-shocking, arbitrary, and
capricious government action in violation of substantive due process.” See Am. Compl. ¶ 88;
see also Am. Compl. ¶ 59 (“These failures further reflect an arbitrary and capricious process that
defies basic principles of justice.”).
Unfortunately for Mr. Rose, “[m]erely labeling a governmental action as arbitrary
and capricious, in the absence of a deprivation of life, liberty, or property, will not support a
substantive due process claim.” Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d at 541
(quoting Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.1999) (en banc)). Defendants’
investigation into the allegations against Mr. Rose — including their alleged failure to interview
him and misrepresentations about the progress of the investigation — while no doubt frustrating
and distressing, “in no way approach the cognizable level of executive abuse of power as that
which shocks the conscience.” See Fraternal Ord. of Police Dep't of Corr. Lab. Comm. v.
Williams, 375 F.3d 1141, 1145 (D.C. Cir. 2004) (internal quotations and citations omitted);
Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d at 542 (“Accepting the facts as true,
Abdelfattah has gone through an ordeal that surely has been frustrating, distressing, and, at
intervals, infuriating, but the exasperation engendered by bureaucratic obduracy is probably not
enough [to plausibly allege a substantive due process violation].”)
Although what rises to the cognizable level of conscience shocking cannot be
measured by a “calibrated yard stick,” County of Sacramento v. Lewis, 523 U.S. at 847 (quoting
9
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)), it is “conduct intended to injure in some
way unjustifiable by any government interest”— and not such everyday employment disputes —
that “is the sort of official action most likely to rise to the conscience-shocking level.” Id., 523
U.S. at 849 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986) (“Historically, this guarantee of
due process has been applied to deliberate decisions of government officials to deprive a person
of life, liberty, or property.”) (emphasis in original))); see also Fraternal Ord. of Police Dep't of
Corr. Lab. Comm. v. Williams, 375 F.3d at 1145. The Due Process Clause “is not a guarantee
against incorrect or ill-advised personnel decisions.” See Bishop v. Wood, 426 U.S. 341, 350
(1976); id. (“The United States Constitution cannot feasibly be construed to require federal
judicial review for every . . . error” involving “the multitude of personnel decisions that are made
daily by public agencies.”).
These cases seem to the Court to defeat Mr. Rose’s substantive due process claim.
In response to this line of cases, Mr. Rose argues that his allegations that defendants’ “deliberate
conduct” was “meant to injure [him]” are “sufficient to allege a violation of substantive due
process.” See Opp. at 37 (citing Am. Compl. ¶¶ 19-20, 28-35, 58-70, 88-92) (detailing
defendants’ alleged deliberate decisions)). He further argues, “surely railroading an individual
with a decades-long unblemished career in public and private service while withholding the
substance of the allegations pending against him and refusing to permit him an opportunity to
defend himself” amounts to the type of unjustifiable government conduct that implicates the
substantive due process clause. See Opp. at 37-38. In view of unequivocal Supreme Court
precedent, the Court must disagree. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are insufficient to withstand a motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. at 678. Mr. Rose’s amended complaint fails to plead sufficient facts
10
to state a plausible claim that defendants’ alleged conduct—even if deliberate and injurious—
was “so egregious, so outrageous” that it can fairly be said to be arbitrary, or conscience
shocking, in a constitutional sense. See County of Sacramento v. Lewis, 523 U.S. at 847-48 n. 8.
These allegations are simply insufficient. Accordingly, Mr. Rose’s substantive due process claim
must be dismissed.
IV. CONCLUSION
For the reason set forth in this opinion and those set forth on the record in open
court on January 21, 2026, the defendants’ Motion to Dismiss [Dkt. 21] is hereby granted in part
and denied in part.
An Order consistent with this Opinion will issue this same day.
SO ORDERED.
Date:
2026.01.28
12:44:02 -05'00'
PAUL L. FRIEDMAN
United States District Judge
DATE: January 28, 2026
11