Defendants do not dispute that plaintiff filed numerous informal grievances regarding what he viewed as harassment for his statements regarding waste and mismanagement at the FAA. Further, an OSC investigation of his complaints did ultimately take place. Therefore, with regard to the alleged harassment that preceded Pope's hospitalization, plaintiff has done everything that could reasonably be expected in exhausting potential avenues of administrative relief.
Nevertheless, considerations underlying both ripeness and exhaustion compel the court to dismiss plaintiff's claims for injunctive relief against the FAA insofar as those claims relate to reemployment with the FAA. Plaintiff concedes that a refusal by the agency to accord him reemployment rights within the agency would be appealable to the MSPB. Whether or not plaintiff has sufficiently indicated his readiness to return to work at the FAA for purposes of triggering whatever reemployment rights he is due as a recovered or partially recovered employee, plaintiff does not appear to contend that FAA has yet breached any reemployment obligation owed him. All the violations claimed in this regard appear to be either hypothetical in that they have not yet occurred, or beyond the jurisdiction of this court in that they would be subject to the exclusive jurisdiction of the MSPB and the Court of Appeals for the Federal Circuit. If plaintiff declares himself ready to return to work, either as a partially-recovered employee or as fully recovered, and is improperly refused a position, he may appeal to the MSPB. If plaintiff obtains a new position with the FAA and is subjected to retaliation for the exercise of rights protected by the Constitution, a Bivens-type remedy may be available to him, as well as possible administrative remedies. See discussion infra. Because neither of these events has yet transpired, and due to the impracticality of fashioning injunctive relief based on conduct of individuals who have either left the agency or who would no longer be in a position to supervise plaintiff's work, plaintiff has failed to state a claim for which relief can be granted with regard to his request for an injunction against alleged efforts to thwart his reemployment within the U.S. Department of Transportation ("DOT") or against predicted harassment upon his return to the agency.
Because plaintiff apparently enjoys no reemployment rights with other federal agencies outside the DOT comparable to his reemployment rights with the FAA, and because his civil service rights clearly do not extend beyond the federal government to private employers, plaintiff has no right to appeal denial of available positions outside the DOT to the MSPB. Because no administrative remedy exists for defendants' alleged interference with plaintiff's reemployment outside the DOT, there are no procedures for plaintiff to "exhaust." Therefore, unless the court is unwilling to recognize the existence of a Bivens-type remedy for the injuries allegedly suffered by plaintiff, plaintiff's request for an injunction against interference with his efforts to secure employment outside DOT states a claim for which relief can be granted.
B. Claims against individuals
Relying solely on the Supreme Court's decision in Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983), defendants contend that the "comprehensive" scheme of administrative and judicial remedies established by Congress to redress the job-related claims of federal civil servants constitutes a "special factor" which counsels hesitation against the recognition of a remedy of constitutional damages for retaliation for whistleblowing.
Bush involved a suit by a NASA engineer for defamation and violation of his constitutional rights after he was demoted for making public statements highly critical of the agency. 103 S. Ct. at 2406-07. Assuming that plaintiff's constitutional rights had been violated, and that the civil service remedies available to plaintiff were not as effective as an individual damages remedy, 103 S. Ct. at 2408, the Court nevertheless held that the elaborate remedial system constructed by Congress to protect civil servants from unfair disciplinary decisions such as the demotion suffered by Bush provided an alternate form of relief such that creation of a judicial remedy for the alleged constitutional violations would not be justified. 103 S. Ct. at 2416-17. Therefore, the extent to which Bush preempts plaintiff's constitutional claims in the case at bar depends on the meaningfulness of the administrative remedies and the opportunity for judicial review under the procedures established under the Civil Service Reform Act discussed supra. See Bartel v. Federal Aviation Administration, 223 U.S. App. D.C. 297, 725 F.2d 1403, 1415 (D.C. Cir. 1984). "In fact," the court of appeals held in Doe,
Bush held only that where civil servants enjoy meaningful and constitutionally adequate statutory remedies for first amendment violations, federal courts should not imply an additional Bivens-type damages remedy under the constitution. The Bush holding in no way affects the scope of constitutional rights, and nothing in Bush or any other Court opinion casts doubt on the presumed availability of federal equitable relief against federal officials for committing constitutional violations.
Doe, 753 F.2d at 1109 n.17 (citations omitted) (emphasis in original). To the extent that plaintiff seeks a Bivens remedy for injuries attributable to wrongful conduct for which the administrative scheme provides no relief, therefore, his claims may not be dismissed for failure to state a claim. See Bush, 103 S. Ct. at 2418 (Marshall, J., concurring); Bartel, 725 F.2d at 1415.
With two notable exceptions, an examination of plaintiff's claims indicates that he is seeking relief for injuries not remediable under the administrative scheme. Unlike the plaintiff in Bush, who could appeal his demotion to the MSPB's predecessor agency, the Federal Employee Appeals Authority, Pope had no such right to review because none of the actions complained of, other than the rescinded attempt to remove him, constituted an "adverse action." As explained above, only adverse actions can be appealed to the MSPB. Retaliation that constitutes a prohibited personnel practice but which does not reach the level of an adverse action under 5 U.S.C. § 7512 is not appealable. Because Pope's only statutory remedy for all but the removal was "an essentially discretionary and unreviewable petition to the Office of the Special Counsel," Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 712 n.6 (D.C. Cir. 1984), Bush does not dispose of plaintiff's constitutional claims. See Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1058 (D.C. Cir. 1984); Krodel, id.; Williams v. Internal Revenue Service, 240 U.S. App. D.C. 326, 745 F.2d 702, 705 (D.C. Cir. 1984); Bartel, 725 F.2d at 1414-15.
With regard to the attempted removal, plaintiff was precluded from airing his claims before the MSPB by the FAA's eleventh-hour unilateral recission. Although that decision left Pope with no administrative remedies to exhaust, it also provided him with the full measure of relief that would have been available to him had the MSPB ruled in his favor. Unlike the remedies provided by Congress for commission of a prohibited personnel practice, the administrative remedies available to a career civil servant in Pope's position against whom an adverse action is taken are "constitutionally adequate," and thus judicial recognition of a Bivens-type remedy is precluded by Bush. Because Pope obtained all the relief that would have been available to him had he gone forward with the MSPB appeal, and because the availability of such relief precludes recognition of a Bivens-type remedy, defendants' motion to dismiss plaintiff's claims will be granted insofar as he is seeking damages for the allegedly improper removal.
Plaintiff's claims with regard to his attempts to obtain reemployment with the FAA may also be precluded by Bush, since he will be able to appeal a denial of reemployment in a position to which he is entitled to the MSPB. As discussed supra, however, those claims do not yet appear to be ripe, and plaintiff has, in any case, failed to exhaust his administrative remedies. Therefore, the court need not reach the issue of whether recognition of a Bivens action once administrative remedies have been fully pursued would be precluded by Bush.
Regarding the remainder of the alleged retaliatory actions, plaintiff's sole administrative recourse is to the OSC. Since the OSC enjoys broad discretion in deciding whether and how to pursue employee complaints, and since judicial review of OSC decisions not to investigate or prosecute is limited, the court holds that the administrative remedies for commission of prohibited personnel practices alleged by plaintiff are not sufficiently meaningful or constitutionally adequate to preclude recognition of a Bivens-type remedy. See Borrell v. United States International Communications Agency, 682 F.2d 981 at 988 (D.C. Cir. 1982); Frazier, 672 F.2d at 162-63. Therefore, because the administrative scheme provided Pope with an opportunity for neither administrative nor judicial review of his other claims, Bush does not support defendants' motion to dismiss, and the motion will be denied.
To summarize, plaintiff's claims for injunctive relief against defendants' interference with his attempts to obtain reemployment within the Department of Transportation and harassment subsequent to his return to federal employment will be dismissed due to his failure to exhaust his administrative remedies, lack of ripeness, and the impracticality of fashioning injunctive relief on the basis of actions allegedly taken against plaintiff years ago by persons who would no longer be in a position to supervise plaintiff's work. Plaintiff's claims regarding the FAA's attempt to remove him in 1981 will be dismissed due to the constitutional adequacy of the administrative remedy provided by Congress. Defendants' motion for a protective order will be dismissed as moot.
An appropriate Order accompanies this Memorandum.
This matter comes before the court on defendants' motion to dismiss plaintiff's complaint for failure to state a claim on which relief can be granted. For reasons stated in the accompanying Memorandum, filed by the court this date, it is, by the court, this 20th day of June, 1985,
ORDERED that plaintiff's claims for injunctive relief prohibiting defendants from interfering with his attempts to obtain reemployment within the Department of Transportation or from harassing him upon his return to employment with the federal government are dismissed; and it is further
ORDERED that plaintiff's claim for damages for defendants' allegedly improper decision to remove him effective December 18, 1981, is dismissed; and it is further
ORDERED that in all other respects, defendants' motion to dismiss for failure to state a claim upon which relief can be granted is denied; and it is further
ORDERED that defendants' motion for a protective order is dismissed as moot; and it is further
ORDERED that defendants' motion for leave to file reply memorandum in support of defendants' motion to dismiss is granted and that said reply memorandum shall be deemed filed as of June 13, 1985.
© 1992-2004 VersusLaw Inc.