DocketNumber: Civil Action No. 14–1247 (JEB)
Citation Numbers: 285 F. Supp. 3d 173
Judges: Boasberg
Filed Date: 1/4/2018
Status: Precedential
Modified Date: 10/18/2024
Nearly one year after this Court dismissed the majority of the counts in his First Amended Complaint, Plaintiff Raymond Jefferson is back for another round. In his Motion for Leave to File a Second Amended Complaint, Jefferson renews his effort to clear his name of the accusations leveled against him in a 2011 investigation and report by the Department of Labor's Office of Inspector General. Defendants-the U.S. Department of Labor, the Department's Office of Inspector General, the Council of the Inspector General on Integrity and Efficiency, and five individuals-oppose this third bite at the apple. After toiling through Jefferson's prolix pleading, the Court ultimately concludes that one additional claim may proceed.
Counts II and III, Plaintiff's Administrative Procedure Act and Bivens claims, were already dismissed in this Court's prior Opinion and are re-pled here largely to preserve them for appeal. Count IV, Jefferson's new cause of action under the Appointments Clause, cannot survive, both because he lacks standing and because it is facially deficient. It is only Count I, which alleges procedural and substantive due-process violations, that the Court concludes states a plausible basis for relief. The lack of prejudice to Defendants and the liberal standard for amending complaints counsel in favor of allowing Jefferson to move forward with this augmented count. The Court will therefore grant leave to amend in this limited respect.
I. Background
The lengthy factual history of this case is set forth in full in this Court's prior Opinion and need not be repeated here. See Jefferson v. Harris,
In his First Amended Complaint, Plaintiff alleged that these criticisms were false, and that the investigation and Report were motivated by personal animus and riddled with factual and legal errors. See ECF No. 16 (First Amended Complaint), ¶¶ 29-50. According to Jefferson, the day after the Report was issued to his boss, Deputy Secretary Seth Harris, he was placed on administrative leave. Four days later, Harris informed him that he had "four hours in which to resign or be fired," id., ¶ 58, and Jefferson submitted his resignation to the Secretary of Labor that afternoon. Id., ¶ 61. Yet Plaintiff's alleged mistreatment did not end with his departure. Instead, the next day DOL and DOL-OIG held a joint press conference at which they publicly discussed the Report and Memorandum and thereby repeated the "false charges, errors of fact, and mistakes of law." Id., ¶ 62. The accusations against Jefferson were subsequently reported in The Washington Post and other publications, and were the subject of a press conference held by Senator Claire McCaskill, then-Chair of the Homeland Security Subcommittee on Contracting Oversight. Id., ¶¶ 63-65.
Following his resignation, Jefferson embarked upon what is now a six-year journey to find redemption. In 2014, he filed a complaint with the Council of the Inspectors General on Integrity and Efficiency (CIGIE) against DOL-OIG and the relevant investigators, alleging violations of "OIG regulations, the [Inspector General Act], the APA, and [his] due process rights." Id., ¶ 78. Three months later, CIGIE's Integrity Committee informed Plaintiff that it would not be taking action on the matter. Id., ¶ 80.
The same month that Jefferson filed his CIGIE complaint, he also filed suit in this Court. See ECF No. 1 (Complaint). After amending his Complaint in March 2015, Plaintiff set forth four discrete counts against Defendants. See Jefferson,
After receiving a series of extensions, Jefferson now moves for leave to file a 94-page Second Amended Complaint alleging four counts (ordered in a different fashion *180from the First Amended Complaint). The first count has two subparts, offering both procedural and substantive due-process claims. The second reiterates the earlier Bivens claims, and the third again invokes the APA. The last sets out a new claim under the Appointments Clause. See ECF No. 44-1 (Second Amended Complaint). As Defendants have opposed Plaintiff's Motion, see ECF No. 52, the Court must now determine whether to grant him the requested leave to amend and, if so, on which counts.
II. Legal Standard
A plaintiff may amend his complaint once as a matter of course within 21 days of serving it or within 21 days of the filing of a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Otherwise, he must seek consent from the defendant or leave from the court. The latter "should [be] freely give[n] ... when justice so requires." Fed. R. Civ. P. 15(a)(2). In deciding whether to grant leave to file an amended complaint, courts may consider "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis,
It is clear, however, that amendment should not be permitted if it would be futile. In other words, if the new causes of action would still be deficient notwithstanding the proposed amendment, courts need not grant leave. See In re Interbank Funding Corp. Securities Litigation,
III. Analysis
In conducting its analysis, the Court first briefly considers the reasserted APA and Bivens counts, which are re-pled essentially for appellate purposes. It next looks at both the procedural and substantive due-process claims, before concluding with the new Appointments Clause count.
A. APA and Bivens (Counts II & III)
The Court begins by clearing away Jefferson's APA and Bivens claims, both of which were dismissed in the prior Opinion. Plaintiff maintains that he "re-pleads claims that this Court has already dismissed in order to preserve them for appeal." ECF No. 41 (Motion for Leave to File) at 2-3. Yet, as Defendants point out, see Opp. at 8-9 and Jefferson acknowledges in his Reply, "he need not have re-alleged ... his dismissed claims in order to preserve them for appeal under D.C. Circuit precedent." Reply at 9 n.6. The Court agrees and therefore will not grant leave to amend with respect to the previously dismissed counts. See BEG Investments, LLC v. Alberti,
To the extent that Jefferson reiterates his Bivens and APA claims in order to add "more detailed factual allegations" and "greater context," Mot. at 3, the Court notes that these claims were dismissed on legal, not factual, bases. Such efforts therefore do not provide grounds for leave to amend. Robinson v. Detroit News, Inc.,
The Court similarly rejects Plaintiff's argument that by "identifying specific regulations at issue and final agency action," the Second Amended Complaint "sets forth Administrative Procedure Act claims that are consistent with" the prior Opinion. See Mot. at 2. As with the other APA allegations in the previous Complaint, the Court denied Plaintiff's notice-and-comment claim not solely because it was supported by insufficient facts, but also because the Act's notice-and-comment requirements "do[ ] not apply to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice." Jefferson,
Plaintiff's attempt to distinguish his previously asserted Bivens count from those alleged in the Second Amended Complaint meets a similar fate. Although he acknowledges that the Court dismissed his Bivens claims regarding actions taken while he was employed at DOL, Jefferson contends that the Second Amended Complaint includes a new Bivens theory-namely, an action against Harris for a memorandum he issued after Jefferson left DOL, which Plaintiff contends "repeated and ratified a number of the" agency's "false legal and factual conclusions." Mot. at 2; see SAC, ¶¶ 149, 196-206. Yet this distinction makes no difference when it comes to the scope of the Court's prior legal conclusions. As it already determined, the existence of a comprehensive remedial scheme under the CSRA counsels against the creation of a Bivens remedy for those claims arising out of Plaintiff's employment at VETS. See Jefferson,
B. Due Process (Count I)
Although inexplicably grouped in a single count, Jefferson articulates both a substantive and a procedural due-process challenge. The Court thus examines them separately.
1. Procedural
The sole count left intact in the Court's prior Opinion was Jefferson's procedural due-process claim. He now seeks to expand its scope. As discussed in the prior Opinion, a plaintiff may avail himself of two legal theories to establish a reputation-based due-process violation-"reputation plus" and "stigma plus." Jefferson,
The Court concluded, conversely, that Plaintiff could not proceed with his stigma-plus theory.
Now, in his proposed Second Amended Complaint, Jefferson offers a series of new allegations intended to show that he has, in fact, been broadly precluded from working in his chosen field. See SAC, ¶¶ 156-165. Unlike the First Amended Complaint, in which Plaintiff alleged merely that he has "found it very difficult to obtain a job," FAC, ¶ 72, the Second Amended Complaint adds a significant amount of detail with respect to his alleged inability to obtain a position in his "chosen profession." He claims that "public service was [his] vocation and his profession of choice," SAC, ¶ 158, and that the "legally *183and factually false allegations contained in the Report and Memorandum have precluded [him] from pursuing his vocation." Id., ¶ 160. In support of his assertion that Defendants' acts "cemented the end of [his] public service career," Jefferson alleges that a "very high level official at the White House" informed his representative that "no future Administration would hire Jefferson" and that he was "radioactive in the Democratic Party." Id., ¶¶ 160-61. In sum, Jefferson contends that Defendants' acts "precluded him from pursuing his vocation in the public sector in any position." Id., ¶ 188.
Defendants rejoin that Jefferson's amended stigma-plus claim is futile because he "does not plausibly show that he can no longer practice" his profession. See Opp. at 14. They contend that it is improper for Plaintiff "to define his 'profession' so narrowly, for a person with plaintiff's pedigree can surely do many jobs, and in fact he is doing so." Id. This assertion, however, ignores the fact that a plaintiff must show only that the government's imposition of a stigma has "seriously affected" his "right to ... follow a chosen profession," Greene v. McElroy,
Here, Jefferson's proposed amendment sets forth sufficient facts to state a plausible stigma-plus claim. Although "[d]ischarge from a particular job is not the same as exclusion from one's chosen profession," government action resulting in "broad preclusion from [a plaintiff's] chosen field" is sufficient to implicate a Fifth Amendment liberty interest.
The Court notes, moreover, that Defendants do not assert that they would suffer any prejudice if Plaintiff were permitted, at this pre-discovery stage of litigation, to amend his due-process claim. And given that Jefferson's reputation-plus claim has already been allowed to proceed, the Court concludes that no undue burden would result from allowing him to additionally allege a stigma-plus theory. In light of the liberal standard under Rule 15, the Court will grant leave to amend with respect to Jefferson's stigma-plus due-process claim.
*1842. Substantive
In addition to supplementing his procedural due-process count, Jefferson's Second Amended Complaint also sets forth a substantive due-process allegation. The prior Opinion concluded, "[A]lthough Plaintiff in his Opposition insists that Count II alleges both substantive and procedural due-process violations, the [First] Amended Complaint contains not a single suggestion that Jefferson intended to advance the former." Jefferson,
Jefferson now brings an explicit substantive due-process allegation. See SAC, ¶¶ 189-195. He asserts that Defendants "acted arbitrarily and oppressively by knowingly violating at least a dozen regulations governing OIG and conducting a biased and incomplete investigation." Id., ¶ 191. Such acts, he alleges, were a reflection of Defendants' "callous indifference to the suffering they inflicted" and were taken "knowing that [they] would destroy Jefferson's professional and personal reputation." Id., ¶ 192. He contends that such acts were "unjustifiable by any government interest" and therefore violated his rights under the Due Process Clause. See Reply at 10.
As Defendants convincingly retort, such allegations do not plausibly state a traditional due-process violation. See Opp. at 22-24. Substantive due process protects against "government power arbitrarily and oppressively exercised," but "only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.' " County of Sacramento v. Lewis,
Yet Jefferson is not entirely out of luck. In addition to asserting that Defendants' conduct was arbitrary and oppressive, Plaintiff contends that they violated his due-process rights by failing to follow the relevant agency regulations governing internal investigations. See Reply at 11-12. The legal basis for this argument is the Accardi doctrine, which holds that "government agencies are bound to follow their own rules, even self-imposed procedural rules that limit otherwise discretionary decisions." Wilkinson v. Legal Servs. Corp.,
Taken as true, and assuming without deciding at this point in the proceedings that the relevant regulations and guidelines could be the basis for an Accardi claim, these allegations appear to state a plausible basis for relief. As required under the doctrine, Jefferson is additionally able to demonstrate prejudice as a result of Defendants' alleged deviations from internal policies. See Vanover v. Hantman,
The Court notes, however, that the caselaw is far from clear as to whether an Accardi claim is properly raised as a substantive due-process allegation. Although certain cases suggest that the doctrine has roots in the Due Process Clause, others have held that Accardi claims are better understood as arising under the APA or as stand-alone causes of action. Compare Wilkinson,
The Court fortunately need not delve into the murky waters of the doctrine and its origins. See Wilkinson,
C. Appointments Clause (Count IV)
The Court last turns to Count IV of the Second Amended Complaint-Jefferson's new Appointments Clause allegation. See SAC, ¶¶ 229-233. This claim is based on the alleged injury Plaintiff suffered when the Integrity Commission-an entity within CIGIE composed of four IGs, the FBI official serving on the Council, the Special Counsel of the Office of Special Counsel, and the Director of the Office of Government Ethics, see 5 U.S.C. App. 3 § 11(d)(2)(A) -declined to pursue further review of his 2014 Complaint against DOL employees Petrole, Cunningham, Russ, and Powell. This Complaint asserted that the four individuals had "willfully and wantonly violat[ed] OIG regulations, the IGA, the APA, and Jefferson's due process rights by failing to conduct a full and fair investigation, by knowingly issuing a legally and factually false Memorandum and Report, and by failing to notify Jefferson ... of the allegations against [him] and depriving [him] of a meaningful opportunity to be heard." SAC, ¶ 166. Three months after filing the CIGIE Complaint, the Integrity Commission (IC) of CIGIE sent Plaintiff a letter stating that "the IC determined the allegation does not meet the threshold standard necessary for further review since the allegation did not concern the actions of a currently covered OIG official who is subject to the IC's jurisdiction." Id., ¶ 168. The letter went on to inform Jefferson that the IC had therefore "closed the complaint and will take no further action on the matter." Id.
According to Jefferson, this determination was fundamentally flawed. He alleges that the decision to close his Complaint was in fact unconstitutional, as he asserts that the IGA provisions governing the composition of the IC violate the Appointments Clause. Id., ¶¶ 231-232; see U.S. Const., art. II, § 2, cl. 2. Arguing that the members of the IC are "officers" within the meaning of the Clause, Plaintiff contends that their method of appointment does not fulfill the constitutional requirements for such positions. Id. Although this claim is certainly creative, the Court concludes that it is also futile. As discussed below, Plaintiff does not have standing to bring his Appointments Clause count, and, even if he did, he would not prevail on the merits.
1. Standing
The Court considers first the threshold issue of whether Jefferson even has standing to advance such a count. He alleges that he was "injured by [the] constitutionally invalid IC holding ... that it lacked jurisdiction to consider his meritorious CIGIE Complaint," and "by jurisdictional rules issued in whole or in part by the IC that purportedly deprived it of jurisdiction in contravention of the IGA." SAC, ¶ 233. Plaintiff further alleges that the IC ruling forced him to "pursue an expensive federal lawsuit in order to seek review of [Petrole, Cunningham, Russ, and Powell's] abuses ... instead of CIGIE and the IC." Id., ¶ 172. Are these alleged injuries sufficient for standing?
Defendants argue in the negative, citing the same reasons that the Court relied on in finding he lacked standing to bring other allegations regarding the IC determination.
*187See Opp. at 29. The Court did previously dismiss Jefferson's APA and due-process claims against CIGIE because, as a private citizen, he lacked "a judicially cognizable interest in the prosecution or nonprosecution of another" and could not seek to "compel [a] government investigation of another." Jefferson,
The Court agrees. Although this Circuit has held that Appointments Clause claims "will proceed even where any possible injury is radically attenuated," Jefferson's alleged injury is nonetheless insufficient to confer standing in this case. See Landry v. FDIC,
Here, by contrast, the Court has already concluded that Jefferson's alleged harm-a governmental decision not to investigate others-involves no "judicially cognizable interest."
2. Merits
Although the Court finds that Jefferson lacks standing, it will, out of an abundance of caution, briefly address the merits of this count. The Appointments Clause states:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2. The Constitution thus "limits congressional discretion to vest power to appoint 'inferior Officers' to three sources"-the President, the heads *188of governmental departments, and the courts. See Freytag,
Specifically, Jefferson asserts that the four members of the IC who are appointed by the CIGIE Chairperson, see 5 U.S.C. App. 3 § 11(d)(2)(A)(ii), are inferior officers within the meaning of the Appointments Clause; the Chairperson thus has no authority to appoint them. See Reply at 23-25. In response, Defendants assert that the IC members are not inferior officers, but are instead "lesser functionaries" (also called "employees") within the government, who "need not be selected in compliance" with the Appointments Clause. See Opp. at 31 (citing Freytag,
Unfortunately, as the Court of Appeals has conceded, "[t]he line between 'mere' employees and inferior officers is anything but bright.' " Landry,
This Circuit has in turn attempted to provide guidance when it comes to distinguishing "lesser functionaries" from such officers. "The main criteria for drawing the line between inferior Officers and employees not covered by the clause are (1) the significance of the matters resolved by the officials, (2) the discretion they exercise in reaching their decisions, and (3) the finality of those decisions." Tucker,
Here, the ICs, like the ALJs in Landry, are charged solely with "review[ing] and refer[ring]" allegations of wrongdoing, and the Committee's investigative power includes no binding or final authority. See 5 U.S.C. App. 3 § 11(d)(1),(7). As a result, the Court need not look beyond the lack of finality afforded to the IC's decisionmaking to determine that the Commission members are not inferior officers. Under the IGA, the IC is authorized only to refer allegations to executive-branch agencies or to make recommendations to the Executive Chairperson of CIGIE, the President or head of a designated Federal entity, or the congressional committee of jurisdiction.
*189See 5 U.S.C. App. 3 § 11(d)(5), (d)(8)(A-B) (2014). These referrals and recommendations have no binding or legal effect, and, as Plaintiff concedes, the final disposition of any given matter falls outside the IC's jurisdiction. See SAC, ¶ 231 (stating that "neither the President nor agency head are bound to execute the IC's disciplinary recommendations"). Defendants represent, moreover, that the "the IC's declination to conduct an investigation has [no] bearing on a final determination." Opp. at 33. Just as this Circuit held in Landry that the ALJs in that case were "employees" rather than officers because they lacked any "power of final decision," so too are the members of the IC imbued with no such powers. Landry,
The Court notes, moreover, that even if the IC members did have sufficient powers to be considered inferior officers, Plaintiff's Appointments Clause claim would nonetheless be futile. This is because each of the members of the IC appointed by the Chairperson has already been properly appointed as a government officer. Under the 2014 version of the IGA, the IC is made up of three statutorily specified appointees and four Inspectors General appointed by the Chairperson of the Council. See 5 U.S.C. App. 3 § 11(d)(2). These eligible IGs are defined under subsection (b)(1), which governs CIGIE membership and states that the Council consists, in relevant part, of "all [IGs] whose offices are established under" Section 2 or 8G of the Act.
It follows, therefore, that the IGs selected by the CIGIE chairperson to serve on the Commission have already been constitutionally appointed as government officers. That is, they have either been appointed by the President or have been selected as IGs by their respective "Heads of Departments." U.S. Const. art. II, § 2, cl. 2. Indeed, Plaintiff admits as much. See Reply at 23 (stating that "a person cannot be appointed to a majority of the IC member positions without being an Officer of the United States").
Jefferson nonetheless asserts that the fact that the selected IGs are members of the Commission in addition to functioning as agency IGs requires them to be appointed anew. The caselaw is clear, however, that officers need not be re-appointed simply because they take on additional governmental duties. In Weiss v. United States,
Here, too, the role of a member of the IC is "germane" to that of an Inspector General. As Plaintiff himself asserts, the IG members of the IC "carry out functions that at least mirror ... those that they carry out as Inspectors General of their own 'Federal entities.' " Reply at 24. Contrary to Jefferson's claim that the IGs on the IC "were not properly appointed and confirmed to serve in their roles as members of the [Committee]," id. at 23, therefore, the selection of IGs for this related, secondary role does not require an additional appointment under the Appointments Clause.
The Court, accordingly, concludes that on both standing and the merits of his claim, Plaintiff's Appointments Clause count is futile, and amendment is thus unwarranted.
IV. Conclusion
As discussed above, much of Jefferson's proposed Second Amended Complaint may not proceed; indeed, Counts II and III are pled for appeal-preservation purposes only. For the sake of clarity and brevity-and so that Defendants require no perspicacity to discern what remains alive-the Court will require that Plaintiff file a new version of his Second Amended Complaint alleging only his due-process claims, and setting forth only the facts that relate to these claims. This version of the Complaint shall be limited to 35 pages and shall be filed by January 18, 2018. A contemporaneous Order so stating shall issue this day.