Jefferson v. Harris , 170 F. Supp. 3d 194 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RAYMOND M. JEFFERSON,
Plaintiff,
v. Civil Action No. 14-1247 (JEB)
SETH D. HARRIS, et al.,
Defendants.
MEMORANDUM OPINION
“[F]or the citizen-critic of government[, i]t is as much his duty to criticize as it is the
official’s duty to administer.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 282 (1964). But what
obtains when the roles are mixed and it is the official’s duty to play critic? For Plaintiff
Raymond Jefferson, a former high-level appointee in the Department of Labor who believes
himself the victim of an Inspector General’s defamatory campaign, the governmental critic must
be held to account. This is particularly so when, as alleged here, the critic’s accusations were
false and misleading, and were widely repeated in the national press.
Because Plaintiff knows he cannot sue the government directly in tort for libel – as such a
claim would be statutorily barred – he has concocted a number of other causes of action
grounded in the Constitution, the Administrative Procedure Act, and the Inspector General Act,
all of which he now brings against the government and several officials. While he may have
reason to feel knocked down and mistreated, he has, for the most part, failed to identify a
colorable legal theory to support his suit. The Court will thus grant the bulk of Defendants’
Motion to Dismiss, leaving only Plaintiff’s due-process claim against the government to proceed.
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I. Background
All facts are taken from Plaintiff’s Amended Complaint – which the Court must presume
to be true at this stage of the litigation – as well as documents referenced therein, such as official
government reports and matters of public record. The facts of this case chiefly cover a period of
time in which Plaintiff served as Assistant Secretary of Labor for Veterans’ Employment and
Training Services (VETS), a “senior political” position he was appointed to fill by President
Obama in 2009. See Am. Compl., ¶¶ 6, 17, 25; Pres. Nomination No. 527, 111th Congress
(2009-2010) (confirming Jefferson by voice vote on Aug. 7, 2009).
His central grievance concerns an investigation and resulting Report by the Department
of Labor’s Office of Inspector General (DOL-OIG), which “accused Jefferson . . . of legal and
ethical violations” for allegedly pressuring a subordinate to steer contracts to three individuals
“in violation of federal procurement rules,” such as competitive-bidding requirements. See Am.
Compl., ¶¶ 24, 51. Diving immediately into the details of that investigation and the Report,
however, would be to start in medias res; a few background facts are important to give context to
the dispute. The Court has arranged them in chronological order as best it can – no small feat
given the Amended Complaint’s Faulknerian sense of time and consistent failure to assign even
approximate dates to critical facts.
A. Jefferson’s Work as Assistant Secretary
As Jefferson sees it, when he joined DOL in mid-2009, he inherited an office rife with
“operational and management problems,” which extended throughout VETS’ organizational
chart, including its nerve center for contract and procurement actions – the Office of Agency
Management and Budget (OAMB). Id., ¶ 17. At the time, VETS’ OAMB was led by Director
Paul Briggs and Deputy Director Angela Freeman. Id. “In order to improve performance at
VETS,” Plaintiff believed it would be prudent to hire a handful of “renowned management
2
consultants and experts in leadership” from outside the government – namely, Stewart Liff, Ron
Kaufman, and Mark Tribus. Id., ¶ 18. His objective was to have them carry out “organizational
and program assessments, management reviews, and comprehensive training for all staff in order
to increase performance, efficiency, and effectiveness.” Id.
To accomplish this, he directed two of his subordinates – Deputy Assistant Secretary for
VETS John McWilliam and Chief of Staff Amit Magdieli – to arrange for their hiring. Id. He
told them to “act ‘legally, ethically, but also quickly.’” Id., ¶ 19. Those two then turned to
Freeman and Briggs in OAMB for help with “all contracting methods and decisions regarding
hiring Liff and Kaufman.” Id. According to Plaintiff, his involvement in the hiring process for
the most part ended there; the bulk of the critical hiring actions were executed by others. See id.,
¶ 25. In particular, he alleges that McWilliam and Magdieli oversaw the implementation of
Jefferson’s simple directive, and that Freeman and Briggs – in consultation with procurement
officials in Labor’s centralized procurement office, the Office of the Assistant Secretary for
Administration and Management (OASAM) – took responsibility for the nuts and bolts of
getting the consultants hired. See id., ¶¶ 20-21, 25-27.
Having thus set the stage, one would expect Plaintiff to turn next to the actual contracts
that were the focus of the OIG’s investigation. Unfortunately, he never clearly articulates how
these three individuals came to be hired, despite titling a section of his Amended Complaint “The
Three Contracts At Issue.” Am. Compl. at 8. Notwithstanding the stream-of-consciousness
narrative that ensues, the Court has attempted to piece together what happened by looking at the
Complaint alongside the DOL-OIG Report and its Cover Memorandum.
As far as the Court can tell, the three consultants were “hired” in several different ways.
Liff appears to have principally been hired via subcontracts with companies that had existing
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contracts with either DOL or the Office of Personnel Management. See Mot., Exh. A (DOL-
OIG Report No. 14-1301-0002 IA) (“DOL-OIG Report”) at 25-26; id. at 5-10; Am. Compl.,
¶ 25. Tribus appears to have been hired directly by DOL, although it does not seem that he was
ever given a “contract” as that term is normally understood. See Am. Compl, ¶ 27 (“Jefferson
obtained written, pre-approval from DOL’s legal counsel . . . for hiring and paying Tribus . . . .”).
Instead, DOL arranged for him to be paid via credit card. See DOL-OIG Rep. at 40-50
(describing paying Tribus by credit card on two occasions). Finally, Kauffman was not ever
“hired” at all. On the contrary, according to the Report, the problem with Kaufman was that
DOL received his services for free, even though DOL’s prime contractor ended up having to
improperly foot the bill. See DOL-OIG Rep. at 38 (arguing that DOL “improper[ly] accept[ed]”
services from Kaufman for free).
Whatever form they ultimately took, these personnel actions formed the basis of what
came next – viz., DOL-OIG’s investigation and Report. See Am. Compl., ¶¶ 24, 29-51
(complaining of the “Report’s False Legal And Factual Conclusions”).
B. The DOL-OIG Investigation
According to Jefferson, the investigation was poisoned from the get go, since he believes
it originated with two of his disgruntled charges in VETS’ procurement and budget office
(OAMB): Freeman and Briggs. See id., ¶ 29. The bad blood started, apparently, “after Jefferson
and McWilliam disciplined Briggs and Freeman for poor performance and for making false
statements.” Id., ¶ 28. Thereafter, Freeman resigned from the agency, “[b]ut she did not go
quietly.” Id. She “filed three bogus Equal Employment Opportunity . . . claims against them
that were quickly dismissed,” and then proceeded to file “the OIG complaint at issue here.” Id.,
¶ 29; see DOL-OIG Rep. at 4-5 (“Freeman said that she sent the anonymous complaint dated
August 3, 2010, to the OIG hotline and added that she no longer wished to remain anonymous.”).
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Briggs also “alleged contractual improprieties” after being disciplined by Jefferson. See Am.
Compl., ¶ 29; see DOL-OIG Rep. at 1 (“A separate complaint submitted by Fergus Paul
Briggs . . . , which referenced the same allegations [as Freeman’s complaint] was received by the
OIG on September 21, 2010.”).
The investigation began shortly thereafter under the auspices of Acting Inspector General
Daniel Petrole. See DOL-OIG Rep. at 4. About a year later, and after having interviewed 22
individuals, Petrole issued the final investigative Report, which addressed five distinct
allegations of misconduct. Id. at 1-4. (The Report indicates that there are only four allegations,
despite rendering five different conclusions. Id.) The investigation substantiated three of the
allegations, partially substantiated one, and concluded that one was unsubstantiated:
Number Allegation Conclusion
A/S [Assistant Secretary] Jefferson and DAS [Deputy Assistant Substantiated
Secretary] McWilliam abused their authority by giving Stewart Liff an
1 advisory and assistance contract and coercing VETS employees into
manipulating existing federal contracts in order to hire contractor Liff
without the benefit of competition.
A/S Jefferson and DAS McWilliam accepted a gift from Ron Kaufman Unsubstantiated
2
that exceeded $25 in value, in violation of 5 C.F.R. § 2635.202.
A/S Jefferson and DAS McWilliam improperly directed VETS Substantiated
[number
employees to have DOL contractors hire Ron Kaufman without
omitted]
competition, and endorsed his products on the VETS intranet website.
A/S Jefferson’s actions to obtain training services from an associate, Substantiated
3
Mark Tribus, led to the circumvention of procurement rules.
A/S Jefferson allowed . . . Liff to become involved in decisions Partially
4 affecting federal personnel including promotions, hiring, and Substantiated
terminations.
Id. at 1-2.
Petrole attached to the Report a Cover Memorandum directed to Seth Harris, then-Deputy
Secretary of Labor, that summarized the findings. See Mot., Exh. B (Cover Memorandum). The
memo stated that “[t]he report describes a pattern of conduct by Assistant Secretary Jefferson,
and consequently by other senior VETS officials, which reflects a consistent disregard of federal
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procurement rules and regulations, federal ethics principles, and the proper stewardship of
appropriated dollars.” Id. at 1. The Memorandum clarified that although Jefferson himself did
not necessarily violate procurement rules directly, it was his “insistence upon retaining the
services of these [three] individuals [that] resulted in procurement violations by officials in both
OASAM and VETS.” Id. at 2.
Plaintiff maintains that the entire investigation – and thus the resulting Report – was
riddled with flaws. See Am. Compl., ¶¶ 29-50. Among his grievances are that:
• OIG investigators failed to acknowledge that DOL procurement personnel were the ones
responsible for “suggest[ing] and execut[ing]” many of the problematic contracting
decisions, id., ¶ 30;
• The Report cites no “objective evidence” that he or his subordinate appointees
(McWilliam and Magdieli) “pressur[ed] Freeman or anyone else to do anything”
improper vis-à-vis the contracts at issue, id.;
• It was not Jefferson’s legal responsibility, but rather OASAM’s, to “ensur[e] that
procurement rules [were] followed,” id., ¶ 31;
• Freeman is responsible for any procurement misconduct regarding Kaufman because she
“unlawfully approved the work on her own initiative and without authority,” id., ¶ 32;
• Any procurement violation resulting from the payment of Tribus is not Plaintiff’s fault
because he received advance approval to pay Tribus from the Department’s Deputy
Solicitor, who also “twice informed [DOL-OIG] investigators . . . that Jefferson’s actions
were ‘both legal and ethical,’” id., ¶ 33;
• The Report falsely states that “Liff and Kaufman were former colleagues of Jefferson at a
consulting firm,” thus suggesting Jefferson had nepotistic motives, when “Jefferson had
never been a colleague of” either, id., ¶¶ 34-35;
• The investigators never notified Jefferson that he was the subject of the investigation or
what the allegations were, id., ¶¶ 36, 39;
• The authors of the Report failed to disclose any impeachment evidence regarding
Freeman’s and Briggs’s initial complaints, in violation of “the Giglio Policy,” id., ¶¶ 40,
43, 46; 1
• The authors offered no “objective basis for finding[]” that Jefferson violated various
policies but “relied almost exclusively on Freeman’s statements of feeling pressured by
Jefferson to violate procurement rules without any corroborating testimonial or
1
The Court presumes the “Giglio Policy” refers to the Department of Justice’s policy regarding compliance with the
Supreme Court’s decision in Giglio v. United States, 405 U.S. 150 (1972), which concluded that the Due Process
Clause requires prosecutors in a criminal case to disclose certain impeaching information about cooperating
witnesses. See Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information (Dec. 9,
1996), available at: http://www.justice.gov/ag/policy-regarding-disclosure-prosecutors-potential-impeachment-
information-concerning-law.
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documentary evidence,” id., ¶ 41;
• The authors distorted witness testimony to make it seem like Plaintiff “ignored
Magdieli’s advice not to proceed” with certain contracts, id., ¶ 42;
• The authors committed legal errors by claiming various procurement actions were
unlawful when, according to Jefferson, they were not, id., ¶¶ 44-45, 47;
• The Report provided no citations to legal authority to support its claims of unlawfulness
and unethical behavior, id., ¶¶ 48-49, 51; and
• The authors invented a “knew or should have known” standard of fault to blame Jefferson
for the contracting mishaps because they lacked direct evidence that he had pressured
anyone to violate procurement rules or ethical policy restrictions. Id., ¶ 50.
C. Jefferson’s Resignation and Publication of the Accusations
As the Court already noted, the DOL-OIG Report and Cover Memorandum were issued
directly to Jefferson’s boss, Deputy Secretary Harris, on July 21, 2011. Id., ¶ 52. The next day,
Harris called Jefferson into his office and placed him on administrative leave without giving him
a chance to read either document. Id., ¶¶ 53-54. Harris also prevented Jefferson from “accessing
information and evidence with which he could refute the Memorandum’s false charges” – for
instance, by denying Jefferson access to his personnel records and banning him from contacting
VETS staff. Id., ¶¶ 53, 55 (“You . . . are not to use or access DOL-issued equipment; you are not
to have any contact with VETS staff; and you are not to contact any of the parties who were
involved in this matter.”). About a week later, however, Harris “gave Jefferson a redacted
version of the Report,” albeit without any of the exhibits. Id., ¶ 56.
On July 26, 2011, Jefferson’s attorney reached out to Harris to request the full,
unredacted Report, informing him that “Jefferson had a right to review the entire record and be
heard in order to refute the allegations.” Id., ¶ 57. Harris responded that same day, “telling
Jefferson that he had four hours in which to resign or be fired.” Id., ¶ 58. He stated that if
Plaintiff resigned, he would receive one month’s severance, but that if he refused or failed to
resign by close of business, he would be fired “immediately and without any severance pay.” Id.
Although Jefferson’s counsel asked for an additional day to review the redacted Report, Harris
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declined. Id., ¶ 59 (“Harris told Jefferson: ‘You have no due process right!’”). Jefferson
submitted his resignation to the Secretary of Labor that afternoon. Id., ¶ 61.
According to the Complaint, his ill treatment did not end there. The very next day, DOL
and DOL-OIG held a joint press conference at which they “publicly disseminat[ed] the Report’s
and Memorandum’s false charges, errors of fact, and mistakes of law.” Id., ¶ 62. The story was
picked up and reported by The Washington Post and other publications. Id., ¶ 63. The
government also sent the Report to Senator Claire McCaskill, then-Chair of the Homeland
Security Subcommittee on Contracting Oversight, who also held a press conference about the
investigation. Id., ¶¶ 64-65. Adding more salt to the wound, the media again picked up that
story and published the purportedly false charges. Id., ¶ 65.
D. Post-Resignation Name-Clearing Efforts
Right around the same time as the joint press conference, Jefferson and his lawyer
contacted DOL’s lawyers in an effort to challenge the Report’s conclusions. Id., ¶ 66. In a
meeting with the Solicitor of Labor, Plaintiff identified various deficiencies in the Report and
sought access to all materials necessary to exonerate himself, including an unredacted version of
the Report and its exhibits. Id. He was told by memorandum that he was still prohibited from
contacting VETS staff and accessing his files until September 1, 2011, and that the government
would treat his request for the full Report under the Freedom of Information Act. See id., ¶¶ 67,
53. He ultimately received the full Report, although not a full set of unredacted exhibits. Id.,
¶ 67.
On August 31, 2011 – “the day before Jefferson could begin contacting his former DOL
colleagues and start the process of clearing his name” – Harris posted on DOL’s website another
memorandum that “ratified many of the Report’s and [Cover] Memorandum’s legal and factual
errors.” Id., ¶¶ 68-69. Jefferson claims he was given no notice that such a document was going
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to be published and no opportunity to rebut it. Id.
Several years later, Jefferson sought to clear his name by another avenue. On July 20,
2014, he filed a complaint with the Council of the Inspectors General on Integrity and Efficiency
(CIGIE) against DOL-OIG and the relevant investigators for “violating OIG regulations, the
[Inspector General Act], the APA, and Jefferson’s due process rights by failing to conduct a full
and fair investigation” and issuing a “legally and factually false” Report. Id., ¶ 78. Three
months later, CIGIE’s Integrity Committee issued a letter to Plaintiff indicating that it would
take no action on the matter. Id., ¶ 80.
After his resignation, Jefferson “found it very difficult to obtain a job.” Id., ¶ 72. In one
instance, a company “terminated negotiations” with him for a senior leadership role when it
learned of “the Report’s findings of ethical and legal violations.” Id. In another case, a large
executive search and training firm rescinded an offer for him to serve in a senior position after a
member of the firm’s board read about the Report on the internet. Id. He also “lost opportunities
for lucrative public speaking engagements” and had a “lucrative contract” rescinded for the same
reason, id., ¶¶ 72, 77, and alleges he has suffered “humiliation, anger, and shame from having his
name and reputation ruined.” Id., ¶ 73.
E. Procedural History
Plaintiff filed suit in July 2014 and amended his Complaint in March 2015, setting forth
four distinct counts. Count I accuses DOL-OIG and the individual officers involved in the
investigation – i.e., acting Inspector General Petrole and three subordinates, Asa Cunningham,
David Russ, and James Powell – of violating the APA by disregarding various rules and
regulations governing how OIG investigations are to be conducted. Count II asserts that DOL,
DOL-OIG, Harris, and the four individuals named in Count I violated his due-process rights by
injuring his reputation, which could have been prevented had he been given a chance to fairly
9
rebut the Report’s allegedly false conclusions. Count III, which he brings against all individual
defendants (Harris, Petrole, Cunningham, Russ, and Powell), is a claim for damages flowing
from a Fifth Amendment tort violation under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Last, Count IV consists of three different legal claims
– under the Inspector General Act, the APA, and the Fifth Amendment’s Due Process Clause –
against CIGIE for various alleged shortcomings.
In the early stages of this suit, Plaintiff also filed notice of a related case in this Court
brought by Stewart Liff against many of the same Defendants. See ECF No. 3; Liff v. Office of
the Inspector Gen., U.S. Dep’t of Labor, No. 14-1162 (filed July 10, 2014). In January 2016, the
Court granted in part and denied in part the government’s motion to dismiss in that case,
permitting Liff’s due-process claims to proceed and declining to decide whether a Bivens
remedy was appropriate under the circumstances presented there. See Liff, 2016 WL 107914, at
*9, 12 (D.D.C. Jan. 8, 2016). Some of the same issues raised there also appear in this Opinion.
One final note: the Court’s Local Rules impose page limits for a reason, and the parties’
footnote-heavy briefs (particularly Plaintiff’s Opposition) appear plainly calculated to
circumvent such limits. Future pleadings in this format will be stricken.
II. Legal Standard
In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint’s
factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal
citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005). This standard governs the Court’s considerations of Defendants’ contentions under both
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Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]n
passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject
matter or for failure to state a cause of action, the allegations of the complaint should be
construed favorably to the pleader.”); Walker v. Jones, 733 F.2d 923, 925–26 (D.C. Cir. 1984)
(same). The Court need not accept as true, however, “‘a legal conclusion couched as a factual
allegation,’” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of
proving that the Court has subject-matter jurisdiction to hear his claims. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015). A court has an “affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d
9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for
failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss
under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding
whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., 402 F.3d
at 1253.
III. Analysis
Defendants move to dismiss Jefferson’s Complaint in its entirety. Finding it more logical
to address the counts somewhat out of order, the Court will first tackle Plaintiff’s primary due-
11
process claim (Count II), move next to the Bivens question (Count III), proceed to the APA
claim brought against DOL, DOL-OIG, and the individual Defendants (Count I), and conclude
with the claims brought against CIGIE (Count IV). The Court ultimately concludes that all but
Count II must be dismissed.
A. Due-Process Violation (Count II)
Although all of Plaintiff’s Amended Complaint is saturated with language redolent of a
due-process claim, it is in Count II where he most plausibly alleges that his constitutional rights
were violated. In brief: he complains that the government falsely accused him of legal and
ethical lapses, dragged his name through the mud, and failed to give him the chance to contest
the charges against him or adequately present a defense. Those wrongs, in concert with the
added stigma brought on by his forced resignation, deprived him of a liberty interest in his
reputation, which he asserts is protected by the Fifth Amendment.
Before proceeding to the analysis, the Court notes that to the extent this count names
individuals, it presumes they are being sued in their official capacity, particularly since
Plaintiff’s Bivens action in Count III is asserted against the same individuals and relies on the
same legal theory. It will, accordingly, treat Count II as if it were brought only against the
agencies and entities themselves. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n
official-capacity suit is, in all respects other than name, to be treated as a suit against the
entity.”).
In addition, although Plaintiff in his Opposition insists that Count II alleges both
substantive and procedural due-process violations, see Opp. at 26, the Amended Complaint
contains not a single suggestion that Jefferson intended to advance the former. See Am. Compl.,
¶¶ 85-95. Because he failed to plead such a theory there, the Court will not address it here. See
Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C.
12
2003) (“It is axiomatic that a complaint may not be amended by the briefs in opposition to a
motion to dismiss.”) (citation and internal quotation marks omitted).
Reputation Plus vs. Stigma Plus
“To state a claim for the denial of procedural due process, a plaintiff must allege that (1)
the government deprived [him] of a ‘“liberty or property interest” to which [he] had a “legitimate
claim of entitlement,” and (2) that “the procedures attendant upon that deprivation were
constitutionally [in]sufficient.”’” New Vision Photography Program, Inc. v. Dist. of Columbia,
54 F. Supp. 3d 12, 28 (D.D.C. 2014) (quoting Roberts v. United States, 741 F.3d 152, 161 (D.C.
Cir. 2014)).
Plaintiff argues that under longstanding Supreme Court precedent, he has a
constitutionally protected liberty interest in his reputation, which was damaged when the
government falsely accused him of procurement misconduct and forced him to resign. See Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972) (“[W]here a person’s good name,
reputation, honor, or integrity is at stake because of what the government is doing to him,” that
person’s liberty interest is on the line, meaning that “notice and an opportunity to be heard are
essential.”) (quotations and citation omitted).
In this circuit, a plaintiff may avail himself of two different legal theories to establish a
reputation-based due-process violation. See Hutchinson v. CIA, 393 F.3d 226, 231 (D.C. Cir.
2005). The first, commonly called a “reputation plus” claim, requires “the conjunction of
official defamation and [an] adverse employment action.” O’Donnell v. Barry, 148 F.3d 1126,
1140 (D.C. Cir. 1998). To plead such a claim, the plaintiff must meet three requirements. First,
he must allege “that the government’s defamation resulted in a harm to some interest beyond
reputation,” such as a “loss of present . . . government employment,” Doe v. U.S. Dep’t of
13
Justice, 753 F.2d 1092, 1111 (D.C. Cir. 1985), or a demotion in rank and pay. See O’Donnell,
148 F.3d at 1140. Second, he must “allege that the government has actually stigmatized his or
her reputation by, for example, charging [him] with dishonesty” or “unprofessional conduct.”
Doe, 753 F.2d at 1111. Third, he must plead facts indicating “that the stigma has hampered
future employment prospects.” Id.His second option is to pursue what is known as a “stigma plus” theory. This theory
“differs from the [reputation-plus theory] in that it does not depend on official speech, but on a
continuing stigma or disability arising from official action.” O’Donnell, 148 F.3d at 1140(emphases added). In other words, where a “reputation plus” theory requires some form of
defamatory or stigmatizing speech by the government, the latter depends only on governmental
imposition of “a continuing stigma or other disability arising from official action” that
“foreclosed the plaintiff’s freedom to take advantage of other employment opportunities.” Id.(internal quotation marks and brackets omitted).
Although Plaintiff advances both theories, he has adequately pled only the former – that
is, (1) an adverse employment action, such as involuntary loss of government employment, (2) a
stigmatizing or defamatory act by the government closely connected with that adverse action,
and (3) a “hamper[ing]” of his subsequent employment prospects. See Doe, 753 F.2d at 1111-12(denying government’s motion to dismiss where plaintiff alleged she “was discharged on the
basis of allegations of unprofessional conduct and dishonesty, and the charges were allegedly
disseminated to prospective employers, public and private”).
Jefferson has not, conversely, made out a claim under a stigma-plus theory. “Under this
line of cases, a government action that potentially constrains future employment opportunities
must involve a tangible change in status.” Kartseva v. Dep’t of State, 37 F.3d 1524, 1527 (D.C.
14
Cir. 1994). Such a change may be shown in one of two ways. The first is if the government’s
actions “formally or automatically exclude[d]” Plaintiff from future government employment
opportunities – e.g., by making “a binding determination to disqualify” him from further
employment. Id. at 1528-29. Plaintiff’s Complaint contains no such claim, so he must rely on
the second path: alleging that even if the government did not make a formal disqualification, its
actions nevertheless had the “broad effect of largely precluding [him] from pursuing [his] chosen
career,” id. at 1528 – meaning that “his ability to pursue his chosen profession has been
‘seriously affected, if not destroyed.’” O’Donnell, 148 F.3d at 1141-42 (quoting Kartseva, 37
F.3d at 1529).
Here, too, Jefferson’s Complaint falls short. He proclaims that he has “found it very
difficult to obtain a job,” Am. Compl., ¶ 72, but he does not allege that he has been broadly
precluded from working in his field. Even though his allegations suffice to show some
“hampering” of his employment prospects, his episodic anecdotes of having had one job offer
revoked, having final negotiations terminated in another, and losing a handful of public-speaking
opportunities are insufficient to show broad preclusion from continuing his career. See Kartseva,
37 F.3d at 1529 (“[I]f [the plaintiff] has merely lost one position in her profession but is not
foreclosed from reentering the field, she has not carried her burden . . . .”); Taylor v. Resolution
Trust Corp., 56 F.3d 1497, 1506 (D.C. Cir. 1995) (“[P]laintiff may demonstrate that the
government’s action precludes him . . . from such a broad range of opportunities that it interferes
with [his] constitutionally protected right to follow a chosen trade or profession.”) (internal
quotations and citation omitted).
Although the reputation-plus claim, unlike the stigma-plus one, may be facially
sufficient, the government nonetheless offers a series of arguments challenging its validity. The
15
Court now takes those up.
FTCA Defense
Just as it argued in Liff, 2016 WL 107914, at *5, the government first insists that Count II
must be dismissed because it is really just a defamation claim masquerading as a constitutional
one. See Mot. at 10. The argument goes like this: because Count II involves allegations of
defamation, it must in fact be a defamation claim, and therefore it may only properly be pled
under the Federal Tort Claims Act, the statute governing all tort claims lodged against the federal
government. See 28 U.S.C. § 2671 et seq. But because the FTCA specifically precludes the
bringing of defamation claims against the government, see id. § 2680(h), Plaintiff’s count cannot
survive.
Tidy as it is, this syllogism is built on a shaky foundation, for it presumes that just
because Plaintiff’s claim possesses some of the same characteristics of a defamation claim, it
must by necessity be a defamation claim. As the Court observed in Liff, this argument might
hold water if Jefferson had “limited [his] Complaint to seeking damages resulting from
‘defamation by the government . . . alone,’ . . . . But the allegations in the Complaint allege more
than just defamation . . . . [a]nd [Plaintiff] seek[s] more than just monetary relief for past harms –
namely, a wide range of injunctive remedies.” Liff, 2016 WL 107914, at *5 (quoting Paul v.
Davis, 424 U.S. 693, 701 (1976)). In attacking not only the defamatory statements themselves,
but also his loss of employment and the inadequacy of the procedural protections available for
challenging the accusations levied against him, Plaintiff makes clear that he is not simply relying
on artful pleading to constitutionalize a simple tort claim. Just as the Court concluded in Liff,
this defense falls flat.
16
Failure to State a Claim
The government next argues that because Jefferson was not fired, but rather resigned, it
owed him no procedural protections. Specifically, it insists that any resignation, even an
involuntary one, does not count as an “adverse action” for the first element of a reputation-plus
due-process claim. In the alternative, it argues that even if an involuntary termination (or
“constructive discharge”) satisfies the adverse-action requirements, Jefferson’s resignation was
voluntary. The Court considers both contentions below.
a. Constructive Discharge as Adverse Action
The government’s first argument is that a resignation – even if involuntary – is not an
“adverse action” under the Roth line of due-process cases. See Mot. at 14. In support of this
position, the government relies almost exclusively on Evans v. Dist. of Columbia, 391 F. Supp.
2d 160 (D.D.C. 2005), a reputation-plus case in which an employee’s resignation, obtained under
threat of termination, was deemed to have vitiated any liberty interest he may have had in his
reputation. Id. at 168. The court there reasoned that “a forced resignation is not enough to make
out a liberty interest claim” because, as a matter of law, the stigma stemming from “resignation
from one’s position, even under the threat of termination . . . does not have so negative an effect
on future employment opportunities as to raise due process concerns.” Id. at 167-68.
This Court is not inclined to follow Evans. As an initial matter, Evans correctly
acknowledged that “[the D.C.] [C]ircuit appears never to have held squarely that a constructive
discharge or forced resignation is an insufficient basis” for such a claim. Id. at 168. Indeed, the
three D.C. Circuit cases Evans cited as supporting its conclusion all dealt with direct
terminations or demotions, and thus none had occasion to decide whether there might be
circumstances under which a constructive discharge might also suffice. See O’Donnell, 148 F.3d
17at 1140 (demotion); Orange v. Dist. of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995)
(termination); U.S. Info. Agency v. Krc, 905 F.2d 389, 397 (D.C. Cir. 1990) (termination).
More important, however, is that the facts alleged here illustrate that a constructive
discharge may, in some circumstances, be as stigmatizing as an actual, “official” termination. As
a reminder, DOL-OIG issued the Report to Harris on July 21, 2011. See Am. Compl., ¶ 52.
Harris placed Jefferson on administrative the next day and then asked for his resignation on July
26. Id., ¶¶ 53, 57-58. On July 27, DOL and DOL-OIG held their joint press conference at which
they “publicly disseminat[ed] the Report’s and Memorandum’s false charges, errors of fact, and
mistakes of law.” Id., ¶ 62. Senator McCaskill held another press conference on the matter the
following day. Id., ¶ 65. About a month later, Harris publicly posted a memorandum
“ratif[ying]” the Report’s conclusions and confirming that Jefferson had violated government
ethics standards and procurement rules. Id., ¶¶ 68-69. In sum, the government’s sharp
accusations, issued both shortly before and after Jefferson’s swift exit, leave the distinct
impression that he was pushed out because of the alleged misconduct. While there may be
circumstances in which a resigning official may plausibly imply, “‘I wasn’t fired; I quit to return
to my career in private life,’” Graehling v. Vill. of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.
1995), this does not appear to be one of them. The Court thus cannot conclude, as a matter of
law, that the stain of governmental opprobrium is always lifted where a plaintiff has a hand in his
own removal.
The notion that involuntary resignation cannot constitute an adverse action for due-
process purposes also stands in tension with this circuit’s doctrine of constructive discharge,
which permits an employee who “cannot show that she was actually terminated” – for purposes
of constitutional or federal statutory violations – to demonstrate that because her “resignation . . .
18
was involuntary, [it] was effectively a termination.” Keyes v. Dist. of Columbia, 372 F.3d 434,
438 (D.C. Cir. 2004); accord Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010) (“[T]he doctrine
of constructive discharge enables an employee to overcome the presumption of voluntariness [of
a resignation] and demonstrate she suffered an adverse employment action by showing the
resignation or retirement was, in fact, not voluntary.”) (emphasis added). Particularly important
is that, in Keyes, establishing an “adverse action” was essential to plaintiff’s statutory and
constitutional claims, including a deprivation of a liberty interest under the Due Process Clause.
See 372 F.3d at 437. Although the court ultimately agreed with the district court that, on the
summary-judgment record before it, Keyes had failed to adduce evidence of involuntary
separation, it nevertheless pointed out that, as a general matter, proof of involuntariness would
permit the liability question to be put to a jury. See id. at 438.
Finally, the Court notes that the only circuit court to have squarely addressed the issue
held that an involuntary termination would count as an adverse action, provided the plaintiff
could prove the requisite elements of a constructive discharge. See Hill v. Borough of Kutztown,
455 F.3d 225, 233 n.10 (3d Cir. 2006) (“[A] resignation will be deemed involuntary (i.e., deemed
a constructive discharge) and will thus trigger the protections of the due process clause . . . under
only two circumstances: (1) when the employer forces the employee’s resignation or retirement
by coercion or duress, or (2) when the employer obtains the resignation or retirement by
deceiving or misrepresenting a material fact to the employee.”).
This Court thus concludes that the mere fact that Jefferson resigned does not preclude his
bringing a due-process claim. Because “resignations . . . are presumed to be voluntary,”
however, Aliotta, 614 F.3d at 566, he must also allege facts sufficient to establish that his
resignation was, in fact, involuntary, and thus “effectively a termination.” Keyes, 372 F.3d at
19
438. It is this question that the Court now addresses.
b. Involuntary Resignation
The government next argues that notwithstanding the four-hour timeframe that Jefferson
was given to make his decision, he still had a choice: resign or be fired. He chose the former,
and given that he admits he conferred with counsel, Defendants maintain that his choice to resign
was knowing and voluntary. See Mot. at 14.
A federal plaintiff generally has two options for establishing an involuntary resignation:
“(1) that the resignation . . . was the product of misinformation or deception by the agency; [or]
(2) that the resignation . . . was the product of coercion by the agency.” Staats v. U.S. Postal
Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996); see Aliotta, 614 F.3d at 567 (stating in less clear
language that a plaintiff may prove involuntariness by both avenues). Only the latter is plausibly
alleged by Jefferson, and so the Court will limit its focus accordingly.
A plaintiff seeking to establish an involuntary resignation on the basis of coercion must
allege that: “[1] [the] agency impose[d] the terms of an employee’s resignation, [2] the
employee’s circumstances permit[ted] no alternative but to accept, and [3] those circumstances
were the result of improper acts of the agency.” Keyes, 372 F.3d at 439; see also Stone v. Univ.
of Maryland Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988) (adding as relevant factor
“whether [the employee] was permitted to select the effective date of resignation”). It is true that
“‘[w]here an employee is faced merely with the unpleasant alternatives of resigning or being
subject to removal for cause, such limited choices do not make the resulting resignation an
involuntary act.’” Keyes, 372 F.3d at 439 (quoting Schultz v. U.S. Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987)). “On the other hand, inherent in that proposition is that the agency has
reasonable grounds for threatening to take an adverse action. If an employee can show that the
20
agency knew that the reason for the threatened removal could not be substantiated, the threatened
action by the agency is purely coercive.” Schultz, 810 F.2d at 1136.
The Court concludes that Jefferson’s allegations suffice at this stage to state a claim for
coercive, involuntary termination. Several essential facts from the Complaint illustrate that the
circumstances surrounding his departure permitted only one reasonable option, and that Jefferson
maintains that the Agency had no legitimate basis for demanding his resignation.
First is that, in contrast with the vast majority of other scenarios involving a claimed
involuntary discharge, Jefferson’s “choice” between resignation and discharge was effectively no
choice at all. Specifically, his status as a political appointee meant that he was not entitled to any
of the pre- or post-termination procedural protections enjoyed by the bulk of civil servants under
Chapter 75 of the Civil Service Reform Act. See United States v. Fausto, 484 U.S. 439, 447
(1988). For example, CSRA-covered employees faced with a proposed for-cause termination
receive notice and may challenge such an action before an impartial tribunal. See 5 U.S.C.
§ 7513(b) (before being terminated, covered employee entitled to 30-days notice, a minimum of
7 days in which to provide evidence and argument contesting the termination, and a written
decision, among other protections). With those individuals, the choice between resignation and
the prospect of for-cause removal is undeniably an unpleasant one, but there is a meaningful
choice nonetheless.
Jefferson, conversely, had no recourse to such statutory protections. As the government
itself vehemently argues, “Because the plaintiff was a member of the excepted service under the
[CSRA],” and thus not entitled to Chapter 75’s procedural guarantees, “he could be dismissed
without cause, without prior notice, without a termination hearing, and without an opportunity to
appeal the decision.” Mot. at 18. As a result, he could not simply “stand pat and fight” the
21
agency’s proposed termination, Christie v. United States, 518 F.2d 584, 588 (Ct. Cl. 1975), for
he was not entitled to contest it at all. In other words, there was no upside to his choosing
termination over resignation. Furthermore, even if he had had the ability to complain, post-
termination, to the Merit Systems Protection Board’s Office of Special Counsel – a remedy that
will be discussed in greater detail infra at Section III.B.2 – he would have had that option
whether he resigned or was fired.
To make matters worse, Jefferson was only given four hours to pick his poison. See
Perlman v. United States, 490 F.2d 928, 932-33 (Ct. Cl. 1974) (pre-CSRA case finding
retirement involuntary when plaintiff given several hours to choose between retirement and
being subject to reduction in force). He also lacked a complete picture of the allegations against
him. Upon his suspension, he was denied all access to the Report and then, shortly before his
resignation, he was given a redacted version without a complete set of its accompanying exhibits.
See Am. Compl., ¶ 67. He was also denied the ability to develop and present any evidence to the
agency, both during his pre-resignation suspension and in the short window he was given to
decide whether to resign. See id., ¶ 54. Harris even prohibited him from speaking to employees
who might corroborate his account of events until the day after his resignation. See id., ¶¶ 53,
67.
Finally, Jefferson has alleged that the government knew or should have known that the
reasons underlying his termination were unsubstantiated. See Schultz, 810 F.2d at 1136 (“If an
employee can show that the agency knew that the reason for the threatened removal could not be
substantiated, the threatened action by the agency is purely coercive”). He alleges, for instance,
that the investigators deliberately withheld impeachment evidence about biased witnesses who
spoke out against him and that they “distorted” certain witness testimony in the Report to make it
22
appear more damning. See Am. Compl., ¶¶ 40, 42. In addition, his allegations that Harris
deliberately prevented him from accessing exculpatory information, including access to
government witnesses, also suggests that the Agency was willing to proceed in its chosen course
regardless of whether Jefferson might be able to clear his name. Plaintiff has thus set forth
sufficient facts that, if proven, could plausibly establish that he stepped down against his will.
Political Question
Defendants next argue that even if Jefferson’s resignation does not doom his claim, the
count must be dismissed as a non-justiciable political question. See Mot. at 15-18. This
objection requires only slight attention. Were Jefferson simply complaining of his separation in
the form of a wrongful-termination suit and seeking reinstatement as a remedy, Defendants’
position would merit greater analysis, as it would be plain that he desired judicial review of
DOL’s political decision to remove a Presidential appointee. See Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 509 (2010) (“Under the traditional default rule,
removal is incident to the power of appointment.”). That is not the case here, where Plaintiff
instead demands an opportunity to clear his name. See Codd v. Velger, 429 U.S. 624, 627
(1977) (“Assuming all of the other elements necessary to make out a claim of stigmatization . . . ,
the remedy mandated by the Due Process Clause . . . is ‘an opportunity to refute the charge.’”)
(quoting Roth, 408 U.S. at 573).
More problematic for Defendants is that the D.C. Circuit addressed this issue in Doe v.
U.S. Dep’t of Justice, 753 F.2d 1092 (D.C. Cir. 1985), and declined to find the question
nonjusticiable over the objections of a dissent. The plaintiff in Doe was an excepted-service
attorney for the Justice Department who claimed the government had harmed her reputation by
accusing her of dishonesty and unprofessional conduct and then discharging her. See 753 F.2d at
23
1097-98. In concluding that the plaintiff had adequately pled a “reputation plus” due-process
claim, the court decoupled the question of the plaintiff’s liberty interest in her reputation from
whether she enjoyed (or lacked) any protected property right in her appointment. “The liberty
clause,” it explained, in contrast to the property clause, “protects reputation, not job tenure, in the
government employment context.” Id. at 1108 n.15.
On account of those distinctions, even though the plaintiff “enjoyed no statutory
entitlement to her position with the Department,” and the government was under no obligation to
give her procedural protections “in its actual decision to terminate” her, id. at 1100 (emphasis
added), she was still entitled to “an opportunity . . . to refute the charges [against her] and clear
her name.” Id. at 1112; see id. at 1106 (“[T]he combination of government defamation
plus . . . the discharge of a government employee states a liberty interest claim even if the
discharge itself deprives the employee of no property interest protected by the fifth or fourteenth
amendments.”). To argue, as the Government does here, that “Plaintiff had no due process rights
vis-à-vis his presidentially-appointed position,” Mot. at 27, is to answer only the property-
interest question. Because Plaintiff does not to undo his discharge, this objection carries no
weight here.
Relevant, too, is that the dissent in Doe expressly argued that forcing the government to
undertake a name-clearing hearing in such circumstances would require courts to interfere with
sensitive political questions better addressed by Congress and the Executive. See id. at 1127(MacKinnon, J., dissenting in part) (“[T]he court should defer here to Congress’ judgment that
liberty interests—which do require some statutory support—should not be deemed to vest in
certain jobs in the Executive.”). The majority nevertheless rejected this line of argument,
concluding that even though some government employees may be dismissed for no reason at all,
24
there is “nothing paradoxical in the [parallel] conclusion that the government should afford
discharged employees a bare opportunity to be heard when it slanders their professional
reputation and effectively forecloses future employment opportunities.” Doe, 753 F.2d at 1112
n.21; see also id. at 1114 (“[T]he administrative burdens involved in a post-termination [name-
clearing] hearing do not in any way interfere with the Department’s employment decisions.”).
Adequate Process
Defendants also maintain that even if Plaintiff’s liberty interest were at stake, he received
all the process he was owed under the Constitution because he was given the opportunity to
explain himself during the DOL-OIG investigation. See Mot. at 15; Reply at 5-6. The fact that
some process was afforded him during the initial stages of the investigation does not obviate the
need for additional process further down the line. If, as Jefferson insists, the Report’s legal
conclusions were incorrect, see Am. Compl., ¶ 45 (insisting that behavior described in Report
was “not unlawful”), it would seem obvious that additional protections were required – viz., an
opportunity to clear his name – if the government did, in fact, constructively discharge him and
impose a stigma on his reputation. See McCormick v. Dist. of Columbia, 899 F. Supp. 2d 59, 68
(D.D.C. 2012) (adequate process in context of plaintiff’s liberty interest requires determining
“only whether [the plaintiff] received adequate process before the [defamatory] allegations
became indelibly attached to his record”).
Jefferson alleges, moreover, that the investigators did not inform him that he was in any
way the subject of the investigation, which he contends affected his motivation and ability “to
provide a full and accurate account of how all of the contracts took place, who was responsible
for various actions and decisions, and what their precise role was in the three contracts.” Am.
Compl., ¶ 37. He also asserts that in certain instances, DOL-OIG relied on a single witness for
25
conclusions – such as Freeman’s “feeling pressured by Jefferson to violate procurement rules” –
but without providing “any corroborating testimonial or documentary evidence,” and without
disclosing information that might have undermined the credibility of that witness. See id., ¶ 41.
In essence, the Complaint makes clear that it was only when Jefferson was able to review
the Report itself that he could understand and respond to what he believes are its significant
flaws and misleading presentations of evidence. The Court thus cannot say at this early stage of
litigation that because he was given the chance to tell his own story during the DOL-OIG
interview, he was, as a matter of law, given all the process that was due. See, e.g., Old
Dominion Dairy Products, Inc. v. Sec’y of Def., 631 F.2d 953, 968 (D.C. Cir. 1980) (adequate
process for protecting liberty interest “includes the right to be notified of the specific charges
concerning the [plaintiff] contractor’s alleged lack of integrity, so as to afford the contractor the
opportunity to respond to and attempt to persuade the contracting officer, in whatever time is
available, that the allegations are without merit”).
No Money Damages
Last, Defendants argue that because Plaintiff seeks money damages in his prayer for
relief, and because sovereign immunity bars such relief against the federal government, Count II
must be dismissed. See Mot. at 19. But this position ignores that Plaintiff also seeks prospective
relief to ameliorate the harm done to his reputation. See Am. Compl. at 44-46. That he
improperly seeks money damages in addition to injunctive relief does not bar his claim.
B. Bivens Action Against Individuals (Count III)
Incorporating the same theory underlying his due-process claim against the government,
Jefferson also seeks damages from the individual officers who caused him harm. Count III is
tethered to the Supreme Court’s 1971 Bivens case, in which the “Court recognized an implied
private action, directly under the Constitution, for damages against federal officials alleged to
26
have violated a citizen’s Fourth Amendment rights.” Meshal v. Higgenbotham, 804 F.3d 417,
420 (D.C. Cir. 2015).
Defendants raise three challenges to such a cause of action. First, they contend that
because Bivens claims “borrow” the statute of limitations from the most closely related state-tort
law – here, a one-year limitations period for defamation under D.C. law – Jefferson’s action is
untimely. Second, they maintain that a Bivens remedy should not be recognized when a
comprehensive remedial scheme – namely, the CSRA – exists as the exclusive remedy for
disputes arising from employee-employer relationships. Third, they argue that the individual
Defendants are entitled to qualified immunity. Because the Court agrees with Defendants’ first
two arguments, it need not reach the last.
Statute of Limitations
In supporting their limitations position, Defendants reason as follows: The claim accrued
at the latest on August 31, 2011 (when Harris issued his follow-up memorandum), but Plaintiff
did not file suit until July 21, 2014; because the District of Columbia’s one-year bar on
defamation actions governs this claim, see Doe 753 F.2d at 1114 (applying District’s one-year
limitations period for defamation to plaintiff’s Bivens claim), it is time barred. See Mot. at 20-
21 (citing D.C. Code § 12-301(4)). Plaintiff does not dispute that if the one-year limitations
period applies, Count III is untimely. See Opp. at 35 n.21. Instead, he counters that Doe relied
on the wrong limitations period – it should have used the generic (or “residual”) three-year
limitations period for tort actions – and, in any event, a more recent Supreme Court case
implicitly overruled the holding in Doe. See id. at 35-36. Although this Court was presented
with this question in Liff, it found no need to grapple with Doe’s precise holding; this was
because Doe’s limitations ruling was specific to “reputation plus” claims, whereas Liff presented
27
only “stigma plus” claims, which do not require proof of governmental defamation. See Liff,
2016 WL 107914, at *7-9; O’Donnell, 148 F.3d at 1140 (stigma-plus theory “differs from the
[reputation-plus theory] in that it does not depend on official speech”). As a result, where the
Court found no need to resolve the question in Liff, it cannot elude it here.
Where “there is no federal statute of limitations expressly applicable to” a given federal
claim, courts generally “‘borrow’ the most suitable statute or other rule of timeliness from some
other source,” which typically is “the most closely analogous” state-law timeliness rule.
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 158 (1983). Such “borrowing” is
appropriate whether the civil remedy was crafted by the legislature or, as in a Bivens action,
implied directly from the Constitution. See Doe, 753 F.2d at 1114.
In Doe – a “reputation plus” case like this one – the D.C. Circuit “borrowed” the District
of Columbia’s one-year limitations period for defamation actions, reasoning that where
defamatory statements were central to that plaintiff’s constitutional damages claim, there was
little difference between it and a regular defamation claim under state tort law. See id. (“We can
discern no difference in the practicalities of [litigating] or the [substantive] policies behind a
Bivens action for the deprivation of a liberty interest in reputation and an ordinary defamation
claim.”).
Four years later, the Supreme Court in Owens v. Okure, 488 U.S. 235 (1989), addressed
an inconsistency problem that had arisen in lower courts’ application of the “borrowing” rule in a
nearly identical context: actions under 42 U.S.C. § 1983 for deprivations of constitutional rights
by state actors. In Owens, the Court noted:
Some courts found analogies in common-law tort, others in contract
law, and still others in statutory law. Often the result had less to do
with the general nature of § 1983 relief than with counsel’s artful
pleading . . . . Consequently, plaintiffs and defendants often had no
28
idea whether a federal civil rights claim was barred until a court
ruled on their case. Predictability, a primary goal of statutes of
limitations, was thereby frustrated.
Id. at 240 (footnote omitted). Part of the confusion, the Court noted, was that constitutional tort
claims “have no precise state-law analog.” Id. at 249. As a result, certain state-law causes of
action, like intentional torts, were “particularly inapposite” given the “wide spectrum of claims
which § 1983 has come to span.” Id. To remedy pervasive inconsistencies in the courts’
application of the “borrowing” rule, the Court held that “where state law provides multiple
statutes of limitations for personal injury actions, courts considering § 1983 claims should
borrow the general or residual statute for personal injury actions.” Id. at 249-50.
Pointing to Owens, Plaintiff argues that Doe’s reliance on the one-year limitations period
for a due-process Bivens claim “has been sub silentio overruled.” Opp. at 35. As this Court
observed in Liff, this “argument has some appeal.” 2016 WL 107914, at *11. This is because
Owens offers nothing to suggest that the “[f]ederal interests in uniformity, certainty, and the
minimization of unnecessary litigation” attending § 1983 actions are in any way distinct from the
federal interests underpinning Bivens claims. Both the Supreme Court’s and the D.C. Circuit’s
near-parallel treatment of § 1983 and Bivens actions, furthermore, suggest that Owens will carry
over into the Bivens context. See, e.g., Butz v. Economou, 438 U.S. 478, 498-504 (1978) (“[I]n
the absence of congressional direction to the contrary, there is no basis for according to federal
officials a higher degree of immunity from liability when sued for a constitutional infringement
as authorized by Bivens than is accorded state officials when sued for the identical violation
under § 1983.”); Doe v. Dist. of Columbia, 697 F.2d 1115, 1123 (D.C. Cir. 1983) (concluding
that “the bodies of law relating to the two forms of litigation [e.g., § 1983 and Bivens] have been
assimilated in most other respects”). This is reinforced by other circuits’ decisions to follow
Owens in applying states’ residual limitations periods to reputation-based due-process Bivens
29
claims. See, e.g., Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999); Kelly v. Serna, 87 F.3d
1235, 1238 (11th Cir. 1996); Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991).
All the same, while Owens may have cast a pall over the continued validity of Doe’s
statute-of-limitations holding, the D.C. Circuit has nevertheless expressly declined to consider
whether it perforce controls the outcome in an analogous federal Bivens action. See Earle v.
Dist. of Columbia, 707 F.3d 299, 303 n.3 & 305 (D.C. Cir. 2012) (holding that under Owens a
§ 1983 claim is governed by D.C.’s three-year limitations period, but noting that “[t]he federal
defendants are not before us and so we treat only [the] section 1983 claim”). With no direct
precedent on this point from the D.C. Circuit, and with Plaintiff having failed to factually or
legally distinguish this case from Doe, this Court is bound to follow it under the principles of
stare decisis. See, e.g., Brewster v. Comm’r of Internal Revenue, 607 F.2d 1369, 1373 (D.C.
Cir. 1979) (“Stare decisis compels adherence to a prior factually indistinguishable decision of a
controlling court.”); accord Brooks v. Grundmann, 748 F.3d 1273, 1279 (D.C. Cir. 2014); but
see McDonald v. Salazar, 831 F. Supp. 2d 313, 320 (D.D.C. 2011) (applying District’s three-year
limitations period to “reputation plus” due-process claim, but ultimately dismissing claim on
merits), aff’d in part, No. 12-5023, 2012 WL 3068440 (D.C. Cir. July 20, 2012) (summarily
affirming dismissal of due-process claim); Lederman v. United States, 131 F. Supp. 2d 46, 61-62
(D.D.C. 2001) (relying on Owens to determine appropriate statute of limitations for Bivens
claim). If Doe remains valid, the District’s one-year limitations period plainly bars Plaintiff’s
claim here, given that Jefferson filed suit nearly three years after July 26, 2011 – the date he
insists the claim accrued. See Opp. at 35 n.21.
Comprehensive Remedial Scheme
Even if the D.C. Circuit were to overrule Doe, Jefferson’s Bivens claim still founders
30
because Congress’s comprehensive statutory and regulatory regime governing disputes arising
from the federal employer-employee relationship – e.g., the CSRA and accompanying
regulations – implicitly precludes recourse to a Bivens remedy here.
Although the Supreme Court in Bivens indicated that courts have the power to fashion
damages remedies for constitutional torts under certain circumstances, see 403 U.S. at 396, in
later cases it explained that such a remedy “is not an automatic entitlement no matter what other
means there may be to vindicate a protected interest . . . .” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). Courts thus “tread carefully before recognizing Bivens causes of action when plaintiffs
have invoked them in new contexts.” Meshal, 804 F.3d at 421.
There are two situations in which a damages remedy not previously recognized may be
inapt: “The first is when defendants demonstrate special factors counselling hesitation in the
absence of affirmative action by Congress[,] [and t]he second is when defendants show that
Congress has provided an alternative remedy which it explicitly declared to be a substitute for
recovery directly under the Constitution and viewed as equally effective.” Carlson v. Green, 446
U.S. 14, 18-19 (1980) (citation, quotation marks, and emphasis omitted).
Germane here is that the Supreme Court has already concluded in a similar context that
the federal employer-employee relationship – governed as it is by a variety of statutes (including
the CSRA), regulations, and executive orders – is precisely the type of “special factor[]
counselling hesitation” in creating a Bivens remedy. See Bush v. Lucas, 462 U.S. 367, 372, 385-
88 (1983) (declining to craft Bivens remedy for federal employee who alleged retaliatory
demotion in violation of First Amendment, where “[f]ederal civil servants are . . . protected by an
elaborate, comprehensive scheme,” even if “civil service remedies [might not be] as effective as
an individual damages remedy”).
31
Suggesting that Bush does not control the outcome here, Plaintiff argues that a “special
factors” analysis is superfluous because courts in this district have “already recognized Bivens
claims for adverse employment actions and for stigma-plus cases.” Opp. at 37. In other words,
this Court would not be doing anything “new” by implying a damages remedy under the Fifth
Amendment for a deprivation of the liberty interest in one’s reputation. See id. (citing Campbell
v. Dist. of Columbia, 972 F. Supp. 2d 38, 44-45 (D.D.C. 2013), and Salazar, 831 F. Supp. 2d at
320). But even leaving aside the fact that both are district-court cases – and thus not binding on
this Court, see Johnson v. Dist. of Columbia, 850 F. Supp. 2d 74, 79 (D.D.C. 2012) – neither
concluded that a Bivens remedy existed for a due-process violation at all. In fact, Campbell does
not even involve a Bivens claim. See 972 F. Supp. 2d at 44-45 (claim brought under § 1983).
And in Salazar, the Court found that the plaintiff had failed to state a claim for any predicate
due-process violation, making it unnecessary to even address the related Bivens issue. See 831
F. Supp. 2d at 320.
As an alternative, Jefferson argues that even if the CSRA in some circumstances might
counsel against a damages remedy, that is not the case here, where the statute gives no protection
to him, making Bivens his only route to complete relief. The government does not dispute that
the CSRA’s primary remedial provisions were well out of reach for Jefferson; after all, he was a
political appointee who could be fired at will. See Pub L. 99-619, 100 Stat. 3491 (Nov. 6, 1986)
(Assistant Secretary of VETS “serve[s] . . . at the pleasure of the President”). As a member of
the “excepted service,” see 5 U.S.C. § 2103 (defining “excepted service” to consist “of those
civil service positions which are not in the competitive service or the Senior Executive Service”),
Jefferson had few, if any, means of seeking recourse for wrongs inflicted by his employer. Most
critically, he was barred from accessing the CSRA’s “Chapter 75” remedies made available to
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many other civil servants, which include the right to appeal an adverse action, and an
accompanying “right to notice, representation by counsel, an opportunity to respond, and a
written, reasoned decision from the agency.” Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2130
(2012) (citing 5 U.S.C. § 7513); accord Fausto, 484 U.S. at 448 (exclusion of “excepted service”
employees from CSRA’s remedial provisions reflects “a congressional judgment that those
employees should not be able to demand judicial review for the type of personnel action covered
by that chapter”). Bereft of other protections, he argues, the CSRA cannot preclude access to a
Bivens remedy.
There is one critical defect in this argument, however – “it is the comprehensiveness of
the statutory scheme involved, not the ‘adequacy’ of specific remedies extended thereunder, that
counsels judicial abstention.” Spagnola v. Mathis, 859 F.2d 223, 227 (D.C. Cir. 1988) (en banc)
(citing Schweiker v. Chilicky, 487 U.S. 412, 422-23 (1988)). It is for this reason that the D.C.
Circuit in Spagnola rejected the creation of a Bivens remedy for two federal-employee plaintiffs
whose constitutional rights were violated but who had no recourse to a significant remedy under
the CSRA. See Spagnola, 859 F.2d at 225. Undeniably, Spagnola is not dispositive of the
Bivens question here, as the plaintiffs in that case still had access to a remedy – albeit a rather
limited one – via a petition with the Merit Systems Protection Board’s Office of Special Counsel.
See id. & n.3. Jefferson, in contrast, is likely foreclosed from even that limited relief. See 5
U.S.C. § 2302(a)(1)(B) (employees in positions “excepted from the competitive service because
of its confidential, policy-determining, policy-making, or policy-advocating character” lack
recourse to petition the OSC).
A case of more recent vintage, however – Davis v. Billington, 681 F.3d 377 (D.C. Cir.
2012) – firmly established that a Bivens remedy will not lie even where the CSRA forecloses
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“any review for [a plaintiff’s] alleged constitutional violations.” Id. at 379, 387 (emphasis
added). In that case, an excepted-service employee of the Library of Congress claiming
retaliatory demotion in violation of the First Amendment had no route under the CSRA to seek
review of his demotion. Id. at 384. The Court reasoned that where “Congress’s choice to omit
damages remedies for claimants in [plaintiff’s] posture was a deliberate one,” no Bivens remedy
should be implied. Id. So, too, here; by specifically exempting positions like Jefferson’s from
the CSRA, Congress has “spoken” to the issue, and a Bivens remedy should not be created. See
id. at 387 (noting that a plaintiff’s “complete lack of available remedies under the CSRA” does
not “prevent [the statute] from being a ‘comprehensive remedial scheme’ that precludes . . . a
Bivens remedy.”).
Other circuits have reached the same conclusion. In Zimbelman v. Savage, 228 F.3d 367(4th Cir. 2000), the Fourth Circuit concluded that two employees of a federal entity known as a
“non-appropriated fund instrumentality,” or NAFI, were barred from pursuing a Bivens remedy
for a reputation-based due-process violation. Id. at 370-71. This was so even though the CSRA
specifically states that an “employee paid from nonappropriated funds . . . is deemed not an
employee” under the CSRA (except in a small set of circumstances not relevant here), see 5
U.S.C. § 2105(c), and even though they lacked any recourse under the CSRA. See Zimbelman,
228 F.3d at 371 (“Congress explicitly addressed the status of NAFI employees when it removed
them from the CSRA’s coverage.”). Similarly, the Ninth Circuit in Blankenship v. McDonald,
176 F.3d 1192 (9th Cir. 1999), denied an excepted-service federal court reporter recourse to a
Bivens remedy even though the CSRA provided her with no remedy at all. See id. at 1194-95;
accord Lee v. Hughes, 145 F.3d 1272, 1274 (11th Cir. 1998) (declining to create Bivens remedy
for excepted-service employee with no “right to file a petition with the Office of Special
34
Counsel” for adverse personnel action). Jefferson’s Bivens claim will consequently be
dismissed.
C. APA Violation (Count I)
Plaintiff also sues DOL-OIG and four of its officers under the Administrative Procedure
Act, which provides “a limited cause of action for parties adversely affected by agency action.”
Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 185 (D.C. Cir. 2006). Although the Complaint
does not clearly articulate what he believes DOL-OIG did wrong, Jefferson’s Opposition
enumerates “five” actions that he views as unlawful. See Opp. at 8 n.5. On closer inspection,
however, one of those pertains to Count IV because it is asserted against CIGIE, and the
remaining four objections comprise only two discrete “actions.” The first “action” he challenges
is DOL-OIG’s investigation and resulting Report and Cover Memorandum. He contends this
“action” was unlawful because, among other things, the investigation failed to follow unnamed
OIG rules and regulations, and the Report and Cover Memorandum were filled with factual and
legal errors. See id. The second action he challenges is DOL-OIG’s “fail[ure] to promulgate”
unspecified “rules and regulations governing investigations and reporting pursuant to notice and
comment” procedures. Id. As Jefferson sees it, due to this critical omission, everything that
DOL-OIG did was illegal from the start. See Am. Compl., ¶ 84.
In response, the government argues that neither the investigation nor the resulting Report
and Cover Memorandum constitute “final agency action” within the meaning of the APA, and
that Jefferson thus lacks a cause of action under that statute. See Mot. at 6-7. As to the notice-
and-comment violation, Defendants believe that Plaintiff’s claim is so vague and ill defined as to
warrant summary dismissal. See Reply at 20-21.
The Court will consider each of Jefferson’s two allegations below, concluding that
neither suffices to state a claim for relief. It notes that, as with Count I, even though this count
35
was brought against individual and agency Defendants, the Court will treat it as brought only
against the government, since “[t]he APA does not provide for individual-capacity claims[] or
money damages,” Duhring Res. Co. v. U.S. Forest Serv., No. 07-314, 2009 WL 586429, at *6
(W.D. Pa. Mar. 6, 2009), and since “[a]n official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity.” Kentucky, 473 U.S. at 166.
Investigation, Final Report, and Cover Memorandum
As the Court previously explained, the crux of Plaintiff’s gripe with the government is
that the investigation and ensuing Report were fatally flawed, and that the latter’s false and
misleading statements ruined his reputation. It is this set of “actions” that he asks this Court to
review under the judicial-review provisions of the APA. To survive a motion to dismiss, a
plaintiff invoking the APA must meet two requirements relevant here: first, the action must be
“agency action” as defined by 5 U.S.C. § 551(13); and second, it must be “final,” id. § 704,
meaning it “imposes an obligation, denies a right, or fixes some legal relationship.” Reliable
Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir.
2003). The Court addresses these requirements in reverse order.
a. Finality
To start, there is little question that Jefferson’s challenge to the conduct of the
investigation itself attacks an action that lacks finality under the APA. See id. (“merely
investigatory” actions of a federal commission fall short of “final agency action” where “[n]o
legal consequences flow from the agency’s conduct”). That is not to say that all non-final
actions are always insulated from review, as the APA provides that even “[a] preliminary,
procedural, or intermediate agency action or ruling not directly reviewable is subject to review
on the review of the final agency action.” 5 U.S.C. § 704. But the investigation alone cannot
36
satisfy the APA’s threshold requirement of finality.
Whether the Report and Cover Memorandum count as “final agency action” is a slightly
more involved question. Because the Inspector General Act makes clear that the OIGs’ mandate
is to conduct investigations, draft reports, and issue recommendations – suggesting that final
action is left to the agency within which each OIG is housed – this Court concludes that mere
issuance of the Report and Cover Memorandum is not sufficiently final for purposes of the APA.
“In 1978, Congress, out of concern over governmental inefficiency, created offices of
Inspector General in a number of departments and agencies,” United States v. Aero Mayflower
Transit Co., 831 F.2d 1142, 1144-45 (D.C. Cir. 1987), including in the Department of Labor.
See 5 U.S.C. App. 3 §§ 2(A) & 12(2). The OIG’s duties include programs carried out by the
agency (or “establishment,” which is the generic term used in the IGA), making
recommendations, and issuing reports of its findings and conclusions to both the agency and
Congress. See id. §§ 4(a) & 5. While the IGA grants the OIGs extensive powers to carry out
their investigatory functions, see id. § 6, the statute does not authorize them to take any follow-
up action against federal employees on behalf of the agency. See NASA v. Fed. Labor Relations
Auth., 527 U.S. 229, 253 (1999) (Thomas, J., dissenting) (“OIG has no authority over persons
employed within the agency outside of its Office and . . . no authority under the Inspector
General Act to punish agency employees, to take corrective action with respect to agency
programs, or to implement any reforms in agency programs that they might recommend on their
own.”).
The text of the two documents issued by DOL-OIG attests to the fact that their issuance
did not mark the “consummation of the agency’s decisionmaking process,” nor served as an
action “by which rights or obligations [were] determined, or from which legal consequences
37
w[ould] flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (citation and quotation marks
omitted). The motivating purpose of the DOL-OIG Report was to determine whether the five
allegations of misconduct made by various complainants had any merit. See DOL-OIG Rep. at
1-2. The Report, then, set out to determine whether the allegation could be substantiated or not.
Each section describes the conversations that the team of investigators had with various
witnesses, Jefferson’s “response” to the allegations, and OIG’s independent conclusions –
nothing more.
The succinct, two-page Cover Memorandum – which Jefferson himself describes “as a
kind of executive summary of the Report,” Am. Compl. ¶ 24 – drives home the conclusion that
DOL-OIG’s work was preliminary in nature. Its language makes clear that the Report serves to
inform DOL of DOL-OIG’s investigative findings, leaving to agency management the question
of what to do about it. See Mot., Exh. B (DOL-OIG Memo) at 3 (“[P]lease inform the OIG,
within 30 days, as to any actions which the Department plans to take with respect to the
investigative findings contained in our report.”). Quite tellingly, neither the Report nor the
Cover Memorandum provides any concrete suggestions of what corrective actions, if any, it
believes the agency should take, apart from
recommending that the Department review the three specific
procurement actions described in the investigative report to
determine what, if any, further actions should be taken. We are also
recommending that the Department’s Designated Agency Ethics
Official review the actions of Assistant Secretary Jefferson and
other senior VETS officials to determine what actions, if any, should
be taken.
Id. At bottom, DOL-OIG’s actions were “more like a tentative recommendation than a final and
binding determination,” rendering them non-final under the APA. Franklin v. Massachusetts,
505 U.S. 788, 798-99 (1992) (publication of census report by Department of Commerce is not
38
final agency action, since decisionmaking process of congressional reapportionment does not
conclude until “President takes affirmative steps to calculate and transmit the apportionment to
Congress”).
Reinforcing the conclusion that these two documents were interlocutory
recommendations – and not final agency action – is that, as Plaintiff concedes, “OIG is part of
DOL under the IGA.” Opp. at 11 (citing NASA, 527 U.S. at 240, 242). Jefferson thus cannot
argue that because the Report was OIG’s last word on the matter, even if not DOL’s, the Report
must be final for purposes of the APA.
DOL itself, moreover, appeared to understand that it had more work to do in determining
how to proceed with Jefferson. In July 2011, shortly after Plaintiff’s superior, Harris, received
the Report, he placed Jefferson on administrative leave, “effective immediately and until further
notice.” Am. Compl., ¶ 53. About a week later, he then presented Jefferson with the choice of
resigning or being fired. See id., ¶ 58. While it is plausible that a constructive discharge could
serve as a final agency action, see Opp. at 11, Jefferson has not challenged that action under the
APA. See Am. Compl., ¶¶ 81-84. And, even if he had, the APA would not be the proper vehicle
for pursuing that claim. See Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495,
497 (D.C. Cir. 2009) (“Federal employees may not circumvent the [CSRA’s] requirements and
limitations by resorting to the catchall APA to challenge agency employment actions.”).
b. Agency Action
Although the lack of finality is dispositive of the outcome here, the Court also notes that
under prevailing D.C. Circuit precedent, the Complaint fails to plausibly allege that DOL-OIG’s
publication of documents constitutes “agency action” under the APA. In Hearst Radio, Inc. v.
FCC, 167 F.2d 225 (D.C. Cir. 1948), the court considered whether a defamatory agency
39
publication itself could constitute reviewable “agency action” under the APA. Noting that the
statute defined “agency action” as “the whole or [a] part of every agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act,” id. at 227 (quoting Act of
June 11, 1946, Pub. L. 79-404, 60 Stat. 243, § 2(g), now codified as 5 U.S.C. § 551(13)), the
court concluded that “[a]mong these words, the only one approaching applicability to the
publication . . . is the word ‘sanction.’” Id. But the court concluded that the APA’s definition of
that “sanction” “d[id] not cover an act such as” a defamatory publication. Id. (citing 60 Stat.
243, § 2(f) (defining the word “sanction”), now codified as 5 U.S.C. § 551(10)). As a result,
Plaintiff could not bring suit under the APA. Id.In the ensuing decades, the D.C. Circuit has at least “twice questioned ‘the continued
validity of the Hearst Radio decision.’” Trudeau, 456 F.3d at 189 (quoting Impro Products, Inc.
v. Block, 722 F.2d 845, 849 (D.C. Cir. 1983)); see also Indus. Safety Equip. Ass’n, Inc. v. EPA,
837 F.2d 1115, 1118 (D.C. Cir. 1988). Despite the court’s concern that Hearst Radio’s “absolute
immunity rule for agency publications” is misguided, see Indus. Safety Equip. Ass’n, 837 F.2d at
1118, it has “never had the need” to reconsider that holding. See Trudeau, 456 F.3d at 189. In
addition, Plaintiff has offered no argument as to why his facts do not fall within the ambit of
Hearst Radio’s reasoning. Even were the Court to conclude that DOL-OIG’s actions were
sufficiently final for purposes of the APA, consequently, the allegedly defamatory publications
cannot be considered to be “agency action” under the binding precedent of this circuit.
Notice and Comment
Plaintiff also seeks judicial review of DOL-OIG’s reliance on an unidentified set of
“regulations” that Jefferson believes were issued without following the APA’s notice-and-
comment procedures. Jefferson, however, offers no more specificity than that. He does not
40
identify any part of a rule, regulation, policy, procedure, or guidance document that he believes
was unlawfully put in place. Because of this complete lack of specificity, the Court is unable to
determine whether the APA’s notice-and-comment requirements are even applicable, since the
statute makes clear that those procedures apply only in specific circumstances. See Perez v.
Mortgage Bankers Assn, 135 S. Ct. 1199, 1204 (2015) (“The notice-and-comment requirement
‘does not apply’ to ‘interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice.’”) (quoting 5 U.S.C. § 553(b)(A)). In short, Plaintiff fails to
give the government anything even resembling “‘fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court will thus grant
Defendants’ Motion to Dismiss Count I for failure to state a claim.
D. Claims Against CIGIE (Count IV)
Plaintiff’s last count alleges that the Council of the Inspectors General on Integrity and
Efficiency violated his statutory and Fifth Amendment due-process rights by failing to take
action on a complaint that Jefferson submitted to it in July 2014. See Am. Compl., ¶¶ 78-80,
110-124. To the uninitiated, CIGIE is an “independent entity within the executive branch” that
was created by Congress in 2008 to “address integrity, economy, and effectiveness issues that
transcend individual Government agencies” and “increase the professionalism and effectiveness”
within the “offices of the Inspectors General.” 5 U.S.C. App. 3 § 11(a)(2). To further this
mandate, Congress also provided for the establishment of an Integrity Committee within CIGIE
to “receive, review, and refer for investigation allegations of wrongdoing that are made against
Inspectors General and staff members of the various Offices of Inspector General.” Id. § 11(d).
Although Plaintiff’s Complaint levies a barrage of accusations against CIGIE and its
Integrity Committee – including that the enacting legislation is constitutionally suspect and that
41
both CIGIE’s and the Integrity Committee’s policies and procedures were promulgated in
violation of the APA – his Opposition succinctly makes clear that he has one main objection: it
declined to take action in response to his 127-page complaint against DOL-OIG. See Opp. at 41-
42 (citing Integrity Committee’s October 2014 letter decision dismissing his complaint). He thus
sues CIGIE for violation of his rights under the Inspector General Act, the APA, and the Fifth
Amendment’s Due Process Clause.
In addressing this count, the Court must first consider whether Plaintiff has standing to
pursue his claims. Because he has not identified an injury that he specifically suffered on
account of the Integrity Committee’s no-investigation decision, he does not. Even if Jefferson
could satisfy the prerequisites for Article III standing, Count IV would fail for the simple reason
that the IGA, the APA, and the Due Process Clause do not present viable causes of action.
Standing
Although the question of Plaintiff’s standing under Count IV was not briefed by either
party, “[i]t is well established that a federal court cannot act in the absence of jurisdiction, . . .
and that jurisdictional issues” including Article III standing “may be raised by the court sua
sponte.” Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). A party’s standing “is
an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a party must, at a
constitutional minimum, meet the following criteria. First, the plaintiff “must have suffered an
‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and
particularized . . . and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’” Id.(citations omitted). Second, “there must be a causal connection between the injury and the
conduct complained of – the injury has to be ‘fairly . . . trace[able] to the challenged action of the
42
defendant, and not . . . th[e] result [of] the independent action of some third party not before the
court.’” Id. (alterations in original) (citation omitted). Third, “it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision. ’” Id. at 561(citation omitted). A “deficiency on any one of the three prongs suffices to defeat standing.”
U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Here, Plaintiff
cannot establish an injury traceable to the challenged action – i.e., the decision not to investigate
– and he thus lacks standing to pursue this claim.
The Supreme Court has clearly indicated that “[a] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D.,
410 U.S. 614, 619 (1973). The D.C. Circuit, in turn, has extended this principle to encompass a
private citizen’s interest in the investigation of another – here, DOL-OIG. See, e.g., In re
Kaminski, 960 F.2d 1062, 1065 (D.C. Cir. 1992) (no standing to compel government
investigation of judicial misconduct under Ethics in Government Act). The only conceivable
exception might be the existence of a statutorily enacted private right of action, but because
Congress explicitly stated that no such action would lie, Plaintiff cannot establish standing on
that basis. Cf. Petition for Writ of Certiorari, Spokeo, Inc. v. Robins, 2014 WL 1802228, No.
No. 13-1339 (presenting question: “Whether Congress may confer Article III standing upon a
plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the
jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of
a federal statute.”); 135 S.Ct. 1892 (2015) (granting writ of certiorari).
Failure to State a Claim
In the same subsection of the Inspector General Act that established the Integrity
Committee, Congress included an express provision that the statute confers neither substantive
43
nor procedural rights on any individual. See 5 U.S.C. App. 3 § 11(d)(11) (“No right or benefit.
This subsection is not intended to create any right or benefit, substantive or procedural,
enforceable at law by a person against the United States, its agencies, its officers, or any
person.”). Plaintiff has not addressed why the broad and all-encompassing language of this
provision does not operate to bar his claim here.
In addition, the statutory standards governing when and how the Integrity Committee
should investigate a particular matter do not lend themselves to judicial resolution, particularly
with regard to the Committee’s decision not to investigate a particular matter. See 5 U.S.C. App.
3 §§ 11(d)(4)-(8); cf. Reply, Attach. 1 (Heide v. Scovel, No. 08-727, slip op. at 13 (D. Minn.
Oct. 1, 2008) (“[IGA’s] standards for conducting investigations . . . are not meaningful standards
that the courts can review and do not provide even minimal guidance to limit agency
discretion.”)). As a result, Jefferson cannot circumvent the IGA’s clear language by bringing a
parallel claim under the APA. See 5 U.S.C. § 701(a)(2) (exempting from judicial review agency
action that is “committed to agency discretion by law”); see also Heide, slip op. at 12-14
(holding that plaintiff cannot compel investigation by OIG of Department of Transportation
given lack of clear standards guiding OIG’s discretion whether to investigate).
The Due Process Clause similarly offers no basis to sue CIGIE, as Plaintiff has not
alleged a protectable interest in liberty or property that was deprived by CIGIE’s failure to take
further action on his complaint. Cf. Futch v. Fine, No. 09-420, 2009 WL 565616, at *1 (D.D.C.
Mar. 5, 2009) (“There is . . . no such thing as a due process right to an investigation by the . . .
Inspector General . . . .”). That decision has no bearing on whether he was deprived of a liberty
interest in his reputation by DOL and DOL-OIG. Apart from that interest, Jefferson has not
presented any other constitutionally protected interest that was affected by the Integrity
44
Committee’s decision to dismiss his complaint. Count IV will thus be dismissed in its entirety.
IV. Conclusion
Although Plaintiff tries mightily to extract a pound of flesh for this salvo of slights, his
remedies will be far more limited. The Due Process Clause may ultimately help him to mend
some of his wounds, but it is not a cure-all for any and all harm inflicted at the hands of the
government. The Court will, consequently, grant in part and deny in part Defendants’ Motion to
Dismiss. A separate Order consistent with this Opinion will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: March 21, 2016
45