The opinion of the court was delivered by: GREEN
This matter is before the Court on defendants' motion to dismiss or for summary judgment ("Motion to Dismiss"), plaintiff's opposition thereto, defendants' reply brief, and the entire record herein. For the reasons stated below, the Court grants defendants' motion to dismiss.
Plaintiff filed the instant case on March 3, 1986, alleging various intentional and constitutional torts committed by two federal government agencies and four federal law enforcement officers. Count I of the complaint contains allegations of malicious prosecution and misrepresentation by defendants United States Department of Treasury ("Treasury") and United States Secret Service ("Secret Service"). Count II contains a claim of deprivation of constitutional due process rights against defendants Stephen Hornyak, Treasury, and Secret Service. In Count III of the complaint, plaintiff alleges that defendants Lawrie C. Rich, Donna L. Truit, and Dale Sowards made defamatory statements about him which damaged both his personal and professional reputation. Plaintiff seeks $10 million in compensatory, punitive and exemplary damages.
In order to appreciate fully the claims presented by plaintiff, the Court must first outline the events underlying the present action. Plaintiff is a sergeant in the Uniformed Division of the Secret Service and has been employed by that agency since 1975. During his tenure at the Secret Service, plaintiff received numerous commendations and had an excellent work record.
For several years prior to June 1982, plaintiff worked without incident as a recruiting officer for the Secret Service. However, in June 1982, he was served with a "Notice of Removal" from the agency. This notice listed five reasons or counts for the agency's action. The reasons given were:
1. Encouraging an applicant to submit an inaccurate official form;
2. The appearance of conflict of interest by socializing with applicants;
3. The appearance of using the authority of his position for personal benefit;
4. Insubordinate refusal to comply with a directive from authorized Secret Service officials; and
5. Falsification of fact in response to questioning by authorized Secret Service officers.
Defendants' Statement of Material Facts Not in Dispute ("Defendants' Facts") para. 3; Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss or for Summary Judgment ("Plaintiff's Opposition") at 2.
Subsequently, plaintiff appealed his removal to the Merit Systems Protection Board ("MSPB"). Sometime during the MSPB discovery process and before the commencement of hearings before that Board, the Secret Service dropped four of the removal counts, Counts 2 through 5. The Secret Service continued to seek his removal on the remaining count, Count 1. Plaintiff claims that the four dropped counts were "filed solely to harass, embarrass, and burden him," and "the true reason for dropping the charges [was that the Secret Service] wished to protect its officials from having to testify under oath about numerous irregularities and improprieties brought to light by plaintiff in defense of the scurrilous accusations brought against him." Plaintiff's Opposition at 2.
An evidentiary hearing on plaintiff's removal was held before an MSPB presiding officer on February 1-2, 23-24, and March 1-2, 1983. During the hearing, three witnesses called on plaintiff's behalf testified that officials at the Secret Service had intimidated and ordered them not to testify. Plaintiff's Opposition at 3; see also Exhibit 1, attached to Plaintiff's Opposition, at 1-9. At the direction of the presiding MSPB official, counsel for the Secret Service assured the witnesses that there would be no acts of retaliation against them. Furthermore, Mr. Edward Pollard, an agency official, wrote a letter to these witnesses and personally assured them that no acts of reprisal would be taken against them for their participation in plaintiff's hearing. Exhibit 5, attached to Defendants' Reply to Plaintiff's Opposition to the Motion to Dismiss or for Summary Judgment ("Defendants' Reply"). Plaintiff also alleged at the hearing that other prospective witnesses were intimidated and received orders not to testify on his behalf.
The hearing concluded on March 2, 1983. The presiding official found, inter alia, that plaintiff's removal was warranted and affirmed the Secret Service's action. The presiding official commented that the penalty of removal seemed severe for what she described as Hagmeyer's immature act, but she determined that the agency had not exceeded the bounds of reasonableness, given plaintiff's position as a law enforcement officer. The full MSPB affirmed that decision on May 11, 1984. See 20 M.S.P.R. 612 (1984).
Plaintiff appealed the full Board's decision to the United States Court of Appeals for the Federal Circuit. See generally Hagmeyer v. Dept. of Treasury, 757 F.2d 1281 (Fed. Cir. 1985). The court held in Hagmeyer that it was inappropriate to uphold plaintiff's removal given the nature of the single remaining charge. Id. at 1285. It found that the remaining charge, constituting the sole basis for the removal action, appeared to be one of the least egregious," id., and remanded the case for a determination of a lesser penalty. Upon remand, the MSPB, on October 1, 1985, returned plaintiff to his job but imposed a 60-day suspension.
Several months after his return, plaintiff filed the instant lawsuit, alleging unconstitutional and tortious actions by the named defendants. In Count I, plaintiff claims that defendants Treasury and Secret Service brought the removal action based on false charges with the intention of harming his personal and professional reputation. As a result of the removal action, plaintiff claims that he was forced to challenge his removal through proceedings with the MSPB and eventually the United States Court of Appeals for the Federal Circuit. He further states that even though four of the charges had been dropped by the Secret Service, "their representatives appeared at an unemployment compensation hearing on or about March 17, 1983 and maliciously and falsely represented to the authorities there that plaintiff [had been] terminated from employment" based on those charges. Complaint para. 13. This count contains claims for malicious prosecution and misrepresentation against defendants Treasury and Secret Service.
Count II contains a claim of deprivation of plaintiff's due process rights by defendants Hornyak, Treasury, and Secret Service. Plaintiff alleges that "on or about March 3, 1983, defendant Hornyak, at the behest of defendants Treasury and Secret Service, intentionally and maliciously interfered with plaintiff's litigation at [the] MSPB by intimidating witnesses to be called by plaintiff in support of his case." Complaint para. 16. In addition, plaintiff alleges that defendant Hornyak threatened these witnesses ...