the embezzlement of trust funds by his bookkeeper after the successor trustee, in a prior action, brought suit against a bank for wrongfully depositing items made out to the trust in the bookkeeper's personal account. The court held that the first suit did not operate to bar the second suit on estoppel grounds. Since the two cases involved not only wholly different relationships, one between the beneficiaries and the trustee, and one between the trustee and the depository bank, but also implicated entirely different facts and legal issues, the court concluded that the failure of the trustee to monitor the bookkeepers activities with sufficient care "could not have been presented in the (first) case," Id. at 253 and therefore the action could not be barred on estoppel grounds. Such a concern is inapplicable here. Although the plaintiff introduces new allegations in his second complaint, the facts on which he bases them are essentially the same as those in the first suit and plaintiff was perfectly free to raise these issues in his original complaint.
Finally, the loosening of the traditional limitation on the application of the doctrine of res judicata
and the increasing overcrowding of dockets give the courts a duty to restrict unnecessary litigation. It is fitting in the circumstances presented by these two cases to bar the present claims to discourage litigants from seeking redress for an injury in piecemeal fashion, "thus wasting valuable judicial resources and imposing needless burdens on the parties-defendant." Tutt v. Doby, 148 U.S. App. D.C. 171, 459 F.2d 1195, 1199 (D.C.Cir.1972).
Even if plaintiff's suit were not barred by res judicata, the court would in any case dismiss all but one of plaintiff's claims for failure to state a claim. One issue involving facts developed outside the pleadings, not susceptible to disposition on a motion to dismiss, must be treated as framed by a de facto motion for summary judgment, and, as such it must also be resolved against the plaintiff.
A. Plaintiff's Constitutional Claims
Plaintiff fails to state a claim under the fifth amendment to the United States Constitution because plaintiff has no private right of action under that amendment. A private cause of action under the fifth amendment may, as plaintiffs contend, be implied in certain circumstances. But the Supreme Court has emphasized that a private right of action under the constitution arises only if a plaintiff has no alternative form of judicial relief. Thus, in Davis v. Passman, 442 U.S. 228, 245, 99 S. Ct. 2264, 2277, 60 L. Ed. 2d 846 (1979), the Court held that the plaintiff had a right to maintain a constitutional damage action only because she lacked any "other alternative forms of judicial relief." In that case, the Court specifically noted that no administrative remedies were available to Ms. Davis and remarked that "were Congress to create equally effective alternative remedies, the need for damages relief might be obviated." Id. 442 U.S. at 247, 99 S. Ct. at 2278. In this case, by contrast, plaintiff had just such alternative avenues of administrative relief, which he not only pursued but in which he also prevailed. Therefore implying a private damage action would be unnecessary and inappropriate.
Moreover, there are other factors. First, plaintiff fails in his complaint to delineate the specific violations of his rights under the fifth amendment. His conclusory allegations fail to specify whether his liberty or his property right has been infringed or to indicate by what particular acts either of these rights has been violated. As Judge Gesell has pointed out, a private cause of action under such circumstances runs the danger both of encouraging private suits against government officials whenever a citizen feels "aggrieved by governmental actions," and of exposing government officials to damage suits whenever their actions are questioned and thus "would constitute a substantial deterrent to government service." Citizens Savings v. Califano, 480 F. Supp. 843 (D.D.C.1979).
Even if plaintiff had a private right of action, he would have to demonstrate the violation of a "liberty" or a "property" interest in order to invoke the protection of the fifth amendment. He has done neither.
First, he claims a property right in his job that derives both from his civil service status and from the relevant statute. He argues that his years of service as a classified civil service employee, prior to voluntarily assuming the Schedule A position of General Counsel, entitle him to future employment. Yet, plaintiff cannot claim the entitlements of a position that, by his own choice, he no longer held at the time he was terminated.
Plaintiff also argues that § 1331(a)(2) establishes a property interest in continued employment. Yet this claim is contradicted by the plain language of the provision, which states:
(subject) to approval by a majority vote of all the commissioners in office, the chairman may (A) terminate the employment of any supervisory employee of the Commission whose duties involve substantial personal responsibility for Commission matters and who is compensated at a rate equal to, or in excess of, the rate for grade GS-15 ....
This language only establishes the procedures necessary for a legitimate termination; if the procedures are complied with, there is nothing in the statute which bars termination at any time. Cf. Boland v. Blakey, Civil Action No. 78-1921 (D.D.C. Dec. 19, 1979).
Second, plaintiff claims that his termination violated his liberty interest under the fifth amendment. But the Supreme Court has held that this interest is implicated only if a stigma has been imposed sufficient to foreclose other employment opportunities. See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). Since plaintiff has been reinstated to the same position he held before the termination, he cannot argue that future employment was severely hampered. Mere criticism of his professional conduct, without other injury, is insufficient to establish a violation of the fifth amendment liberty interest. See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548 (1972); Mazaleski v. Treusdell, 183 U.S. App. D.C. 182, 562 F.2d 701, 709-15 (D.C.Cir.1977).
Nor, finally, does plaintiff allege a prima facie violation of the constitutional right to privacy. The Supreme Court has defined that right extremely narrowly, applying it only in those circumstances where government has invaded the intimate spheres of life such as marriage, procreation, and education. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Roe v. Wade, 410 U.S. 113, 152-54, 93 S. Ct. 705, 726-727, 35 L. Ed. 2d 147 (1973); Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1823, 18 L. Ed. 2d 1010 (1967). Thus, the allegation of a violation of this right is wholly inappropriate in a dispute over the dismissal of a federal employee from an agency position.
B. Plaintiff's Statutory Claim
Plaintiff argues that he has the right to bring a private damage action for violation of § 1331(a)(2). He contends that, although this provision does not specifically provide for a private right of action for damages, such a right should be implied under the principles established by the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2087, 45 L. Ed. 2d 26 (1965). The Supreme Court has indicated, however, that a private right of action should only be implied when necessary to enforce the intention of a statutory provision. J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S. Ct. 1555, 1560, 12 L. Ed. 2d 423 (1964), cited in Cort v. Ash, 422 U.S. 66, 84, 95 S. Ct. 2080, 2090, 45 L. Ed. 2d 26 (1975). As the plain language of § 1331(a)(2) indicates, its intention is simply to ensure that supervisory employees of the Commission not be terminated without the protection of certain procedural safeguards. This interest was fully vindicated by the review of the administrative procedures which plaintiff procured in his prior action and which resulted in his reinstatement. Plaintiff has moreover pointed to nothing in the legislative history which might indicate an otherwise unstated intention to provide an additional damage remedy beyond that of reinstatement pursuant to review of agency procedures.
Therefore, his claim under § 1331(a)(2) must fail.
C. Plaintiff's Common Law Tort Claims
Plaintiff alleges, finally, that defendant, acting outside the scope of his authority, committed the common law torts of invasion of privacy, interference with his professional career, intentional infliction of emotional harm, and defamation. All but the last of these four claims must be dismissed for failure to state a claim upon which relief may be granted.
First, plaintiff has not stated a prima facie case of interference with his professional career. As plaintiff himself points out, one element of this cause of action is a showing of economic damage to plaintiff's career. Yet the only specific damage plaintiff alleges is that, during the period of his reassignment to the position of Senior Advisor, he "could not utilize his legal background and experience" and was hampered in his professional development because he "was precluded from availing himself of current legal decisions and policy." Plaintiff's Memorandum at 37. Such an allegation does not state a claim of damages to plaintiff's economic interests and commercial dealings. See W. Prosser, Law of Torts, § 130 (4th ed. 1971).
Second, plaintiff fails to state a prima facie case of intentional infliction of emotional harm. Although, as plaintiff points out, this jurisdiction allows recovery for this tort in the absence of physical impact, a prima facie case is made only when the tortfeasor's conduct is wanton, outrageous in the extreme, or especially calculated to cause serious mental distress. See Restatement of Torts 2d § 46. The conduct to which plaintiff refers is not of such a character. Indeed, it has been specifically held, in a case factually similar to this one, that harassment in a professional context, including exclusion from business meetings and the spreading of unfavorable rumors, is not the type of conduct that gives rise to such a cause of action. See Beidler v. W. R. Grace, Inc., 461 F. Supp. 1013 (E.D.Pa.1978), aff'd, 609 F.2d 500 (3rd Cir. 1979).
Finally, plaintiff fails to allege a prima facie case of invasion of privacy. A party is liable for this tort only when he intrudes upon private, intimate affairs "from which an ordinary man could reasonably expect that the particular defendant should be excluded." Pearson v. Dodd, 133 U.S. App. D.C. 279, 410 F.2d 701 (D.C.Cir.), cert. denied, 395 U.S. 947, 89 S. Ct. 2021, 23 L. Ed. 2d 465 (1969). Yet the statements of which plaintiff complains do not in any way concern facts of such a private nature. Plaintiff cannot claim a reasonable expectation that his professional conduct is protected from outside scrutiny. To the contrary, such conduct, while in the employ of the government, is open to and even appropriate for public scrutiny.
As a result, the only tort claim which survives dismissal is plaintiff's defamation claim. Evaluation of this claim necessarily involves a question of fact, since defendant can be held liable only if he is found to have acted outside the scope of his authority. Although this factual determination necessarily precludes dismissal, the court may appropriately treat the parties' papers as motions for and oppositions to summary judgment. See Carter v. Stanton, 405 U.S. 669, 92 S. Ct. 1232, 31 L. Ed. 2d 569 (1972); Fagan v. National Cash Register Co., 157 U.S. App. D.C. 15, 481 F.2d 1115, 1126 (D.D.C.1973); Cockrum v. Califano, 475 F. Supp. 1222, 1226 (D.D.C.1979) remanded on other grounds, sub nom. Cockrum v. Harris, No. 79-1751, 204 U.S. App. D.C. 3, 634 F.2d 1358 (D.C.Cir.1980) (per curiam). Our Court of Appeals has specifically held that the determination whether a party acted within the scope of his authority is appropriate for summary judgment, since this determination involves a limited factual inquiry and is for the court to make. See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Instit., 184 U.S. App. D.C. 397, 566 F.2d 289, 292 n.5 (D.C.Cir.1977), cert. denied 438 U.S. 915, 98 S. Ct. 3144, 57 L. Ed. 2d 1160 (1978).
Even assuming as true all the facts as plaintiff presents them in his opposition to defendant's motion to dismiss and his accompanying affidavit, it is clear that the defendant acted well within the scope of his authority. As plaintiff himself observes, defendant committed all the acts complained of while he was a Commissioner and/or Vice Chairman or Chairman of the Commission. Moreover, all these acts were connected with defendant's official activities and duties. They occurred during Commission meetings, during professional conversations with other Commission employees, or were contained in interoffice memoranda or statements made to the press concerning the operation of the Commission and related solely to plaintiff's work performance. Defendant, in his position as a top level official of a federal agency, must have very broad discretion in making personnel and policy decisions if he is to perform his job effectively and conscientiously. The "outer perimeter" of his official authority easily embraces all personnel and policy decisions relegated to his control. As the Supreme Court noted in Barr v. Matteo, 360 U.S. 564, 573, 79 S. Ct. 1335, 1340, 3 L. Ed. 2d 1434 (1959):
the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails.
Barr v. Matteo is particularly instructive here because the facts in that case are strikingly similar to those here. In Barr v. Matteo, former employees of a federal agency sued an official of that agency, alleging that a press release and news reports he had issued gave rise to liability for libel. Even accepting as true the plaintiffs' allegation of malice, the Supreme Court nevertheless, found that such acts were within the scope of the official's employment because
a publicly expressed statement of the position of the agency head announcing personnel action ... was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. It would be an unduly restrictive view of the scope of the duties of a policy-making executive official to hold that a public statement of agency policy in respect to matters of wide public interest and concern is not action in the line of duty.