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MCGREGOR v. GREER

September 27, 1990

JACQUELINE McGREGOR, Plaintiff,
v.
DR. PETER GREER, LAURO CAVAZOS, UNITED STATES DEPARTMENT OF EDUCATION, MICHELLE EASTON, and ARTHUR KELLY, Defendants



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendants' motion to dismiss or, in the alternative, for partial summary judgment. Upon consideration of defendants' motion, plaintiff's opposition thereto, defendants' reply, and the entire record herein, defendants' motion is granted in part.

 BACKGROUND

 Plaintiff Jacqueline McGregor is the former Executive Director of the Intergovernmental Advisory Council on Education (IACE). She brings this action to challenge her removal from that position and to seek redress for alleged wrongful acts by various individuals in the events surrounding her termination. Plaintiff alleges the following facts.

 In February 1987, the Secretary of Education appointed plaintiff to the Schedule C position of Executive Director of the IACE. On November 6, 1987, during off-duty hours, defendants Michelle Easton and Arthur Kelly hand-delivered to plaintiff's home notice of her termination. This delivery was at the instruction of Peter Greer, Intergovernmental and Interagency Affairs Deputy Undersecretary. In order to deliver the notice, defendants Easton and Kelly entered the non-public lobby of plaintiff's apartment building and attempted to ascend to her apartment. The front desk attendant refused to admit defendants, and then called plaintiff to inform her that they would not leave and were impermissibly using the lobby phone. Plaintiff then agreed to meet defendants Easton and Kelly in the lobby. There, Easton delivered the letter of termination, but provided no reason for plaintiff's removal.

 On November 6, 1987, prior to the delivery of the termination notice to plaintiff's home, defendant Michelle Easton ordered that the materials in plaintiff's office be seized and impounded for the stated purpose of securing government property. Defendant Peter Greer's staff later inventoried plaintiff's personal items and impounded them. In the search process, plaintiff alleges, defendant Kelly and others "insisted on reading every word" of her private letters and records. Plaintiff was temporarily denied access to personal items locked in her desk drawer. On November 25, 1987, defendant Easton delivered plaintiff's personal property recovered in the search to the Inspector General of the Department of Education.

 On two occasions, November 19 and November 29, 1987, plaintiff attempted to enter the Department of Education building to recover her personal materials and perform outprocessing. She was denied access to the building unless accompanied by a uniformed guard.

 On December 17, 1987, Peter Greer delivered a letter to an IACE member referencing an ongoing investigation by the Inspector General of plaintiff's activities at the IACE. On December 29, 1987, the letter was entered into the public record of a meeting of the IACE Executive Committee. On January 6, 1988, the letter was released to the public.

 On June 17, 1988, defendant Greer delivered a letter to IACE Chairman David Harris stating the reasons for plaintiff's dismissal. He again referenced the Inspector General's investigation of plaintiff, and acknowledged that the Inspector General reported insufficient evidence to justify criminal charges. Plaintiff is now allegedly unable to secure government employment as a result of the damage which the December 17 and June 17 letters caused to her reputation.

 Plaintiff filed an eight-count complaint against defendants, alleging (1) that Greer had insufficient authority to terminate her, and that she should therefore be reinstated under the Administrative Procedure Act (APA), 5 U.S.C. § 701(a)(2); (2) that she is the victim of sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; (3) that defendants violated her liberty interest in her reputation without due process by releasing the December 17 letter to the public; (4) that defendants violated the Privacy Act of 1974, 5 U.S.C. § 552a, by releasing the December 17 and June 17 letters; (5) 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.

 COUNT 1

 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.

 COUNT 3

 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 ...


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