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POPE v. BOND

June 20, 1985

JAMES C. POPE, Plaintiff,
v.
LANGHORNE BOND, J. LYNN HELMS, ROLAND A. ECKERT, CHRISTIAN B. WALK, JR., JONATHAN HOWE, MICHAEL J. FORRESTER , Defendants



The opinion of the court was delivered by: FLANNERY

 I. Background

 Plaintiff, a former official in the Office of General Aviation of the Federal Aviation Administration ("FAA"), brings this suit against various present and former FAA officials in their official and individual capacities for injunctive relief and compensatory and punitive damages for allegedly conspiring to silence him and ultimately force his withdrawal from federal service in violation of his rights under the first and fifth amendments to the United States Constitution. Plaintiff alleges that the named defendants and other "unidentified co-conspirators" retaliated against him for his public advocacy of an airborne collision avoidance system ("ACAS") manufactured by the Honeywell Corp. known as the AVOIDS system, which, plaintiff contended, would provide mid-air collision protection for airplanes superior to and at a lower cost than a ground-based collision avoidance system being developed in-house by the FAA. Plaintiff contends that he was forced to accept a transfer and ultimately forced to withdraw from federal service after he began disclosing evidence of alleged FAA mismanagement and the danger to public safety created by FAA's refusal to support or approve the AVOIDS system.

 In their motion to dismiss plaintiff's claims against the FAA and the named defendants who are sued in their official capacities, defendants contend that plaintiff has failed to exhaust his administrative remedies, alleging, among other things, that he has not yet declared himself ready, willing, and able to return to work, that Pope has failed to participate in the reemployment programs available to him, and that he has not appealed FAA's refusal to accord him reemployment rights to the Merit Systems Protection Board (MSPB). Regarding plaintiff's claims against defendants in their individual capacities, defendants contend that the Supreme Court's decision in Bush v. Lucas bars recognition of a constitutional damages remedy in light of the "comprehensive scheme of administrative and judicial remedies" that Congress has established to redress the grievances of federal civil servants.

 II. Discussion

 A. Exhaustion of administrative remedies

 Defendants' contention that plaintiff has ignored, allowed to lapse, or refused to pursue various potential avenues of administrative relief for his claims rests largely on their characterization of the facts and the relief sought by plaintiff, both of which plaintiff disputes. Regarding the facts underlying plaintiff's transfer and ultimate withdrawal from federal service, defendants' "statement of the case" differs in significant respects from both the factual allegations of plaintiff's complaint and the history recited in plaintiff's opposition to defendants' motion to dismiss. First, defendants contend that plaintiff's transfer from Washington, D.C., to Seattle, Washington, following his public dispute with FAA officials over the AVOIDS system, was only one of "hundreds" of transfers made as part of the decentralization and reorganization of the FAA. Plaintiff, on the other hand, contends that he was the only member of the 22-member Office of General Aviation to be involuntarily reassigned outside FAA headquarters, and submits that his reassignment to other available FAA positions in Washington, D.C., was sought by several FAA officials, whose requests were rejected. Defendants note that plaintiff filed an informal grievance regarding the transfer, but that he decided to forego the formal grievance procedure and take the transfer when his informal grievance was denied. Plaintiff, on the other hand, contends that he was unaware that the Seattle position had been created specially for him and that the job had no duties, and that by the time he had figured out that the new job was a "hoax," the time to file a formal grievance had expired. Plaintiff's Opposition to Defendants' Motion to Dismiss at 21-22 n. 28.

 Defendants contend that plaintiff was finally removed for cause based on his prehospitalization performance, conduct and attendance problems, but that the FAA ultimately agreed to cancel the firing, expunge plaintiff's record, and cancel the MSPB hearing which had been scheduled to hear plaintiff's appeal. Plaintiff, on the other hand, contends that no evidence of any such pre-hospitalization problems existed, and that the FAA unilaterally canceled the removal action and purged plaintiff's records of all charges, which mooted plaintiff's appeal of the removal to the MSPB, so that he had no choice but to concede that no issue remained to be tried by the MSPB. The FAA's actions, Pope contends, were designed to prevent him from obtaining administrative review of his case.

 Finally, regarding plaintiff's efforts to obtain reemployment, defendants contend that because plaintiff has not declared himself ready, willing, and able to return to work, a challenge to the FAA's refusal to reinstate him is premature. Plaintiff responds, however, that he does not seek court-ordered reinstatement in this action, but rather, that he wants an injunction preventing further interference by defendants with his attempts to obtain reemployment with the FAA, other federal agencies, or private companies; a name-clearing hearing; correction of his employment records; and back pay for positions that he would have obtained by now but for the conspiracy to prevent his reemployment.

 As a preliminary matter, it should be noted that

 
[a] motion to dismiss for failure to state a claim is generally viewed with disfavor and rarely granted. For the purposes of such a motion, the factual allegations of the complaint must be taken as true, and any ambiguities or doubts concerning the sufficiency of the claim must be resolved in favor of the pleader. In particular, "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief."

 Doe v. United States Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985) (citations omitted) (emphasis in original); see also Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 712 (D.C. Cir. 1984). With the exception of the alleged interference with plaintiff's reemployment with the FAA, it appears that, taking all of plaintiff's allegations as true, plaintiff has either exhausted the administrative remedies available to him or was foreclosed from pursuing certain remedies by the agency's own acts.

 Under the rules governing administrative relief for civil servants, it is clear that only "adverse actions" are appealable by an individual employee to the MSPB. See 5 U.S.C. §§ 7512-13; Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1426-27 (Fed. Cir. 1984). "Adverse actions" are defined as removals, suspensions, reductions in grade or pay, or furloughs. 5 U.S.C. § 7512. Retaliation for whistleblowing that does not amount to such an adverse action, on the other hand, may constitute a "prohibited personnel practice" under the Civil Service Reform Act, 5 U.S.C. §§ 2301-02, over which the MSPB has jurisdiction "only in the context of a 'corrective action proceeding' brought by the [Office of] Special Counsel" (OSC) under 5 U.S.C. § 1206. See Perez v. Army and Air Force Exchange Service, 220 U.S. App. D.C. 230, 680 F.2d 779, 787-88 (D.C. Cir. 1982); see also Wren v. Merit Systems Protection Board, 220 U.S. App. D.C. 352, 681 F.2d 867, 873 (D.C. Cir. 1982). In the context of this case, the only "adverse action" taken against plaintiff was the attempt to remove him effective December 18, 1981. Accepting plaintiff's allegations as true, plaintiff properly appealed FAA's removal decision to the MSPB, and attempted to obtain a hearing on his retaliation claims, but was precluded from doing so when the FAA unilaterally rescinded its removal action and agreed to expunge plaintiff's record, thus mooting plaintiff's challenge and depriving the MSPB of jurisdiction over his case. Because the FAA's unilateral acts foreclosed further MSPB review, the FAA can not now be heard to complain that Pope should have ...


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