that defendants violated her Fourth Amendment rights by delivering her termination to her home after working hours, by searching her office and desk, and by restricting her access to the Department of Education building; (6) that she suffers from defendant Greer's intentional infliction of emotional distress; and (7) that Greer tortiously interfered with her business relationships.
Defendants submitted their motion to dismiss, or in the alternative for partial summary judgment, challenging all counts except Count 2, which alleges sex-based discrimination.
In Count 1, plaintiff claims that defendant Greer lacked authority to terminate her. She seeks judicial review and declaratory judgment under the APA. Defendants, in their motion to dismiss Count 1, argue that the Civil Service Reform Act of 1978 (CSRA) defines the exclusive remedies available to plaintiff for adverse personnel actions, and that therefore this claim must be dismissed. The Court agrees, and Count 1 is accordingly dismissed.
The CSRA creates an intricate scheme of remedies for federal employees who suffer adverse personnel actions. The available remedies vary according to the employee's position and the action being challenged. This variance reflects an attempt to strike a balance between protecting the rights of federal employees and allowing for an efficient government. Congress designed the CSRA to replace a haphazard patchwork of rules for civil servants with one integrated system for administrative and judicial review of adverse personnel action. U.S. v. Fausto, 484 U.S. 439, 444, 98 L. Ed. 2d 830, 108 S. Ct. 668 (1988).
The CSRA specifically exempts plaintiff, as a Schedule C excepted service employee, from any remedies for adverse personnel actions, because of her confidential and policy-making position. 5 U.S.C. §§ 7511(b), 2302(a)(2)(B)(i). Plaintiff argues that because she is exempt from its remedial provisions, she does not fall within the purview of the CSRA, and that she therefore may bring suit under the APA pursuant to her pre-CSRA rights.
On the contrary, however, this Court finds that Congress's explicit denial of a remedy to Schedule C employees shows an intention to deny them court access to challenge dismissals. Congress did not overlook plaintiff's position in drafting the CSRA; it specifically addressed it, providing no recourse for adverse personnel actions. To disturb this specific provision would impermissibly upset the balance Congress strove to achieve between federal employees' rights and an efficient government. See Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) (citing Bush v. Lucas, 462 U.S. 367, 389, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983)). Allowing plaintiff access to prior avenues of relief would bypass the scheme Congress developed and return to the largely incoherent patchwork they sought to remedy.
Our courts have consistently held that the CSRA must be read as a comprehensive system to ensure that the judiciary defers to Congressional determination of a complex program such as civil service employee protection. See, e.g., Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171 (D.C. Cir. 1983); Spagnola, 859 F.2d at 223; Bush, 462 U.S. at 367; Fausto, 484 U.S. at 439. Further, the comprehensive nature of this scheme is more important than the adequacy of specific remedies. Spagnola, 859 F.2d at 227. In light of these principles, the CSRA defines plaintiff's exclusive rights as a public employee, regardless of her lack of remedies. Count 1 is accordingly dismissed.
In Count 3, plaintiff claims that defendant Cavazos, Secretary of the Department of Education, violated her liberty interest in her reputation by releasing information contained in the December 17 letter. Defendants contend that any damage to her reputation falls short of a constitutionally cognizable harm. Because the Court agrees that plaintiff's harm does not rise to the level of a constitutional injury, summary judgment is granted as to Count 3.
Our courts have recognized that a public employee has a liberty interest in her professional reputation, particularly when forced to find other employment. Pope v. Bond, 641 F. Supp. 489, 501 (D.D.C. 1986) (citing Paul v. Davis, 424 U.S. 693, 701-10, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Board of Regents v. Roth, 408 U.S. 564, 572-75, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). In order to set forth a constitutionally cognizable liberty interest claim, plaintiff must allege two distinct harms: (1) a change in status beyond reputation, and (2) a disabling stigma resulting from the government's actions. See Doe v. United States Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1111 (D.C. Cir. 1985).
Plaintiff first must allege damage to some interest beyond her reputation, such as loss of present or future employment. Id. at 1111. The effect on future employment must extend beyond disadvantage or impediment and reach the level of foreclosing plaintiff's freedom to take advantage of other employment opportunities. Mazaleski v. Treusdell, 183 U.S. App. D.C. 182, 562 F.2d 701, 713 (D.C. Cir. 1977) (citing Roth, 408 U.S. at 573-74). In the present case, plaintiff meets this criterion. She alleges that she is unable to secure government employment as a result of the allegedly damaging information that reached the public record. Defendants have offered no evidence to refute this averment. (Complaint at 8, McGregor Declaration at 12.)
Plaintiff also must allege that the government has created a stigma against her good name and integrity, and that the stigma has hampered future employment opportunities. Doe, 753 F.2d at 1111. A stigma may result from a termination
"for dishonesty, for having committed a serious felony, for manifest racism, for serious mental illness, or for lack of intellectual ability, as distinguished from  performance. . . ." The former characteristics imply an inherent or at least a persistent personal condition, which both the general public and a potential future employer are likely to want to avoid.
Harrison v. Bowen, 259 U.S. App. D.C. 304, 815 F.2d 1505, 1518 (D.C. Cir. 1987) (citing Mazaleski, 562 F.2d at 714 (citations omitted)). Plaintiff fails to allege such a constitutionally recognized stigma. Charges against her which might imply dishonesty or lack of integrity never came to fruition. The Inspector General found insufficient evidence to prosecute plaintiff, and defendant Greer made that fact apparent in the December 17 letter. Moreover, the investigative report itself is available to the public, and thus to any potential employer who is interested. For this Court to adopt a policy which labelled every government investigation a stigmatic harm would undercut the investigative process itself. A mere investigation does not indicate wrongdoing. Therefore, we find that any harm to plaintiff's reputation did not rise to the level of a constitutional injury. Summary judgment is therefore granted as to Count 3.
In Count 4, plaintiff claims that publication of the December 17 and June 17 letters violates the Privacy Act of 1974, as does defendant's failure to maintain the December 17 letter on file. 5 U.S.C. § 552a. Defendants deny any violation of the Privacy Act. The Court finds that release of the December 17 letter does not violate the Privacy Act and therefore grants summary judgment as to this portion of Count 4. We further find that the record insufficiently addresses the June 17 letter, making summary judgment improper as to that portion of Count 4.
The December 17 letter
The Privacy Act contains a general prohibition on disclosure of records pertaining to individuals. However, in order for a record to be protected under the Act, it must be contained within a "system of records." Id. at § 552a(b). The term "system of records" is defined as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." Id. at § 552a(a)(5). This definition applies to both disclosure of personal documents under § 552a(b) and access by the subject of a file to personal documents under § 552a(d).
Our courts have held, in keeping with the language of the statute, that
even if information pertaining to the requestor appears in a system of records, it need not be disclosed [under the access provision] unless the information is retrievable by means of the requestor's name or other personal identifier. That it can be easily retrieved in some other way by some other identifier is wholly beside the point.
Smiertka v. United States Dep't of Treasury, 447 F. Supp. 221, 228 (D.D.C. 1978), remanded on other grounds, 196 U.S. App. D.C. 34, 604 F.2d 698 (D.C. Cir. 1979); see also Grachow v. United States Customs Serv., 504 F. Supp. 632, 635 (D.D.C. 1980). Because a single definition of a system of records governs both disclosure and access, the above principle applies in the present case. The December 17 letter is not retrievable by plaintiff's name. (Easton Declaration at 2, 3.) That it may be recoverable under its recipient's name is irrelevant. One other court has similarly found that records are not protected under the Privacy Act if not retrievable by the individual's name or personal identifier. See Savarese v. United States Dep't of Health, Educ., and Welfare, 479 F. Supp. 304 (N.D. Ga. 1979), aff'd, 620 F.2d 298 (5th Cir. 1980). Therefore, we find the Privacy Act does not protect the December 17 letter.
Plaintiff argues that although defendants show the record was not retrievable by plaintiff's name, they do not specifically address whether it is retrievable by some other personal identifier. However, plaintiff has not alleged any other identifier by which the letter might be retrieved. Defendants need not challenge allegations that have not been made. Based on the parties' affidavits and the entire record, the December 17 letter is not within a system of records, and its publication did not violate the Privacy Act.
Plaintiff additionally claims that 5 U.S.C. § 552a(g)(1)(C) entitles her to a remedy against defendants for failing to maintain the December 17 letter in a system of records. This section provides a civil remedy when an agency:
fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual . . . .