concludes that the SRB gave Mr. Thomas a full opportunity to re-argue the merits of the decision to terminate, and that the SRB gave a sound and reasonable explanation of its reasons why Mr. Thomas should have been terminated. Even if the SRB had found irregularities in the Selection Board's decision and had found that the PSB improperly considered the fact that Mr. Thomas was low-ranked in 1979, it is also clear to the Court that the SRB's own evaluation of the facts of the plaintiff's case and its evaluation of his performance would have and should have remained unchanged.
Crucially, the SRB did not rely on the findings of the PSB, but found its own facts. SRB's Decision at 1. This fact alone makes any errors that may have occurred at the Selection Board or the PSB less significant than they otherwise would have been. Moreover, the SRB's decision focused on the fact that the plaintiff's performance unmistakably had deteriorated during his years in the Foreign Service. His ratings moved from "very good," id. at 2, to merely "satisfactory," id. at 3-4, to "marginally satisfactory" in his last rating period, in late 1982. Id. at 5. During 1982, his rating officer stated that his performance was "not up to the standards expected from a Supervisory General Services Officer," that the plaintiff's "lack of knowledge" of certain procedures "has delayed shipments, prevented schedules from being implemented, delayed ordering supplies" and other problems, and that his "supervision of his subordinates is not adequate." Id. at 4. In his last rating period, his rating officer criticized the plaintiff for not paying adequate enough attention to routine and "everyday problems," mentioned that they had met daily to discuss his work, and suggested that his talents "would be better utilized in another area." Id. at 6. His reviewing officer agreed that the plaintiff was not performing satisfactorily in his position. Id. at 7. These last evaluations were considered the "most devastating" to his performance record. Id. at 9. All in all, it is clear to the Court that the SRB made its determination to deny Mr. Thomas' appeal based on his record and evaluations, making substantially irrelevant for this Court's purposes the alleged irregularities in the lower panels.
A number of courts have held that due process violations in public employee discharge cases need not result in reinstatement or back pay if the defendant can show that the error was not substantive to its decision and that actual injury was not caused to the employee. See, e.g., Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1265-66 (7th Cir. 1985); Hogue v. Clinton, 791 F.2d 1318, 1325 (8th Cir. 1986); Okeson v. Tolley School District No. 25, 760 F.2d 864, 869 (8th Cir.), rev'd on other grounds, 766 F.2d 378 (8th Cir. 1985); see also Carey v. Piphus, 435 U.S. 247, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) (no monetary damage award for due process violation arising from school suspension). Courts may evaluate whether the termination was justified and whether the due process violation was substantive to the decision. Patkus, 769 F.2d at 1265-66. Rather, the compensation for minor due process violations by state officials is only nominal damages. Id.; Hogue, 791 F.2d at 1325; Okeson, 760 F.2d at 869 (damages of $ 1 awarded). In the instant case against a federal defendant, however, damages are not sought.
In the instant case, the Court concludes that the errors of the State Department -- failure to allow testimony from Dr. Holmes about the Selection Board and failure to acknowledge that the PSB improperly considered the plaintiff's 1979 low-ranking -- did not cause the plaintiff actual injury. In both cases, the mistakes alleged were at panels lower than the SRB: Dr. Holmes' testimony raised questions only about the validity of the Selection Board's actions and the 1979 low-ranking issue raised questions only about the validity of the PSB's actions. Neither error, however, prevented the SRB from making an unbiased and untainted determination of the merits of the decision to "select out" the plaintiff. Accordingly, the Court concludes that the due process violations did not cause actual injury and do not justify reinstatement, back pay, or other relief.
Accordingly, the Court GRANTS the defendant's motion for summary judgment and enters judgment in favor of the defendant.
Date July 13, 1989
JUDGMENT ORDER - July 13, 1989
In accordance with the Opinion and Order filed in this case, judgment is entered in favor of the defendant.
ORDER - July 13, 1989
The defendant has moved the Court to reconsider its award of $ 500 in nominal damages to the plaintiff as a result of due process violations, in the Court's Opinion and Order of June 28, 1989. The Court awarded nominal damages, despite the doctrine of sovereign immunity, pursuant to the doctrine established in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), under which damages may be imposed on federal defendants through a cause of action arising directly under the Constitution. Upon reconsideration, however, the Court concludes that damages under the Bivens doctrine are not proper in an employment case in which the alleged due process violation caused no actual injury. See Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983) (no damage award for First Amendment violation in employment context). Accordingly, the Court ORDERS that the defendant's motion to reconsider is GRANTED, and that the Opinion and Order and Judgment Order of June 28, 1989 are hereby vacated and replaced by the Opinion and Order and Judgment Order attached to this current order.