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NICHOLS v. AGENCY FOR INT'L DEV.

May 7, 1998

STUART NICHOLS, Plaintiff,
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT, Defendant.



The opinion of the court was delivered by: KOLLAR-KOTELLY

MEMORANDUM OPINION

 Until he had been terminated on April 11, 1998, Plaintiff Stuart Nichols served as Chief, Information Management Systems (GS-14) within the Agency for International Development (AID), the Defendant in the above-captioned action. On the day immediately preceding his termination, Mr. Nichols, through counsel, applied for a temporary restraining order (TRO) to enjoin AID from removing him. That afternoon, Judge Thomas Penfield Jackson denied the TRO. Pending currently before the Court are Plaintiff's Motion for a Preliminary Injunction, Defendant's Opposition, Plaintiff's Reply, and Plaintiff's Addendum to his Reply. After considering carefully the pleadings and exhibits, the Court determines that oral argument on this matter is unnecessary. First, the Court lacks subject-matter jurisdiction over Mr. Nichols' action as he has pled it; second, even assuming jurisdiction exists, Mr. Nichols has failed to establish that he will suffer irreparable injury in the absence of injunctive relief.

 I. BACKGROUND

 For approximately eighteen years, Mr. Nichols worked for AID. See Compl. P 4. Since 1991, the fifty-two-year-old plaintiff had served as a GS-14 Chief, Information Management Systems in the Office of the Inspector General. See id. P 1. Despite his lengthy tenure with AID, in 1996, twice in 1997, and most recently in February of this year, Mr. Nichols filed Equal Employment Opportunity (EEO) complaints alleging a myriad of discriminatory practices and retaliatory behavior orchestrated by his supervisors at AID. See id. PP 6, 15, 9, 15. *fn1" Due to what he characterizes as "constant harassment, discrimination and retaliation," Mr. Nichols avers that on July 24, 1997, he suffered "a near nervous breakdown (severe anxiety, depression and exacerbation of Spasmodic Torticollis and essential tremor, causing him to leave work[)]." Id. P 10. Since then, Mr. Nichols has not returned to work. On January 23, 1998 Plaintiff received a memorandum that directed him to return to work or to provide within thirty days certification from a doctor stating the symptoms, medical bases, and reasons that Mr. Nichols could not return to work or perform his duties. See id. P 14; id (attached unnumbered exhibit). Although Plaintiff's doctor submitted a timely response, AID believed that the certification failed to address crucial information that the January 23, 1998 memorandum specifically requested. See Def.'s Opp'n at 2. AID forwarded a notice of proposed removal to Mr. Nichols on March 9, 1998. See Compl. P 17. Despite the attempt that Plaintiff's doctor made to supplement his previous certification, AID found that there was no reason to stay the proposed termination. See id. PP 20-21. By letter dated April 3, 1998, Plaintiff received AID's final agency decision, which indicated that he would be terminated effective April 11, 1998. Mr. Nichols sought a TRO the day before his effective termination; Judge Jackson denied it. What remains is Plaintiff's application for a preliminary injunction to vacate AID's decision to terminate him.

 II. THIS COURT LACKS SUBJECT-MATTER JURISDICTION

 Federal courts are courts of limited subject-matter jurisdiction whose powers emanate directly from the contours of Article III. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 72 L. Ed. 2d 492, 102 S. Ct. 2099 (1982); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L. Ed. 60 (1803). From this bedrock principle stems a corollary rule: that a federal court, whether trial or appellate, has a duty to notice a failure of subject-matter jurisdiction on its own motion at any time during the proceedings. See Potomac Passengers Ass'n v. Chesapeake & O. Ry., 171 U.S. App. D.C. 359, 520 F.2d 91 (D.C. Cir. 1975). This "rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception." Mansfield, C & L. M. R. Co. v. Swan, 111 U.S. 379, 382, 28 L. Ed. 462, 4 S. Ct. 510 (1884).

 The doctrine of sovereign immunity insulates the United States from suit except on such exact terms as Congress authorizes. See Honda v. Clark, 386 U.S. 484, 501, 18 L. Ed. 2d 244, 87 S. Ct. 1188 (1967). Without identifying precisely any provision or section, Mr. Nichols simply asserts that he brings this action pursuant to Title VII's prohibition on reprisal. See Compl. at 2. Because he is suing an agency of the federal government, it is clear that Mr. Nichols must proceed under 42 U.S.C. § 2000e-16, which extends the protection of Title VII to federal employees. Congress, however, has conditioned the United States' waiver of sovereign immunity. To initiate an action under § 2000e-16, the "head of the department, agency, or unit, as appropriate, shall be the defendant." § 2000e-16(c). This language means what it says. As this Circuit has noted, "the only proper defendant in a Title VII suit . . . is the 'head of the department, agency, or unit' in which the allegedly discriminatory acts transpired." Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108, 115 n.17 (D.C. Cir. 1975). In the case at bar, Plaintiff has not sued an agency head but instead has sued the Agency for International Development. Because Congress has not waived AID's sovereign immunity under Title VII, the Court must sua sponte dismiss for lack of subject-matter jurisdiction "even though the parties are prepared to concede it." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986).

 The Court recognizes that the Administrative Procedures Act (APA), 5 U.S.C. § 702, operates as a general waiver of the United States sovereign immunity from suits seeking exclusively injunctive relief. Nonetheless, even had Mr. Nichols invoked the APA, the Court would still lack a basis for subject-matter jurisdiction. Despite its general reach, the APA "excludes from its waiver of sovereign immunity . . . claims seeking relief expressly or impliedly forbidden by another statute." Transohio Savings Bank v. Director, Office of Thrift Supervision, 296 U.S. App. D.C. 231, 967 F.2d 598, 607 (D.C. Cir. 1993); see also 5 U.S.C. § 704. Among those statutes that have been deemed to provide exclusive remedies is Title VII. As the Supreme Court has held, "§ 717 of the Civil Rights Act of 1964, as amended [ 42 U.S.C. § 2000e-16], provides the exclusive judicial remedy for claims of discrimination in federal employment." Brown v. General Servs. Admin, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). Clarifying this holding, the Court of Appeals for the District of Columbia Circuit has observed that "thus an aggrieved federal employee is precluded from bringing suit under other federal anti-discrimination statutes that apply more generally." McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 791 (D.C. Cir. 1984). *fn2" Therefore, because § 2000e-16 provides the only basis for Mr. Nichols' claim for injunctive relief, he must comply strictly with that section's filing requirements. His failure to sue the proper defendant as required under § 2000e-16(c) mandates dismissal.

 The Court recognizes that Plaintiff could cure this technical jurisdictional defect by simply re-filing this action with the proper named defendant. Accordingly, in Part III, infra, of this Memorandum Opinion, the Court proceeds to identify significant deficiencies in Mr. Nichols' claim for injunctive relief.

 III. EVEN IF THE COURT POSSESSED JURISDICTION, MR. NICHOLS HAS FAILED TO DEMONSTRATE IRREPARABLE INJURY

 Although Title VII typically conditions suit in federal court on exhaustion of administrative remedies, see 42 U.S.C. § 2000e-16(c), it is settled law in this Circuit that federal employees enjoy the right to seek interim injunctive relief to maintain the status quo. See Wagner v. Taylor, 266 U.S. App. D.C. 402, 836 F.2d 566, 574--75 (D.C. Cir. 1987); Bonds v. Heyman, 950 F. Supp. 1202, 1207 (D.D.C. 1997). Under the traditional calculus, for Mr. Nichols to obtain the temporary injunctive relief that he seeks, he must establish (1) a substantial likelihood of success on the merits, (2) that he would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. See CityFed Fin. v. Office of Thrift Supervision, 313 U.S. App. D.C. 178, 58 F.3d 738, 746 (D.C. Cir. 1995); Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 923 (D.C. Cir. 1958). In Sampson v. Murray, 415 U.S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974), however, the Supreme Court held that probationary federal employees must demonstrate an even greater showing of irreparable injury when seeking to enjoin the government: "Respondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override" the many factors that militate against enjoining the government. See id. at 84. While the District of Columbia Circuit Court has yet to address whether Sampson's higher standard extends to claims founded upon Title VII, see Wagner, 836 F.2d at 575 n.66 ("We need not address the question whether a higher standard is required in such instances."), a district court within this Circuit has concluded that Sampson does transcend Title VII cases. See Bonds, 950 F. Supp. at 1212 ("This court finds that a more stringent showing of irreparable injury is required when a plaintiff, even in a Title VII case, seeks a preliminary injunction against the federal government in the personnel arena."). Despite the uncertain status that Sampson boasts in Title VII litigation, the Court need not resolve the issue today because, apart from the jurisdictional problems that plague this action, Mr. Nichols has failed to satisfy the traditional standard for irreparable injury.

 Mr. Nichols never articulates how exactly his termination will irreparably injure him. Rather, he enumerates a number of factors for the Court to consider: he is fifty-two years old, he will forgo his $ 75,000 annual salary, his health benefits have already been terminated, and his attempts at future employment will suffer because he has occupied a position in a highly specialized filed. See Pl.'s Reply (Aff. of Stuart Nichols at 1--2). Merely reciting these considerations, albeit important ones, is insufficient to justify an order from this Court that would compel the federal government to reinstate Mr. Nichols. As the Supreme Court observed in Sampson, "even under the traditional standards of Virginia Petroleum Jobbers, supra, it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury." Sampson, 415 U.S. at 90. Indeed, this Circuit has held:

 
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.

 Virginia Petroleum Jobbers, 259 F.2d at 925 (emphasis in original). In the commercial context, "recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant's business." Wisconsin Gas Co. v. FERC, 244 U.S. App. D.C. 349, 758 F.2d 669, 674 (D.C. Cir. 1985). In the case at bar, Mr. Nichols, has never suggested, nor supported with evidence, that he will incur harm of this degree without injunctive relief. Moreover, if he ultimately prevails, Mr. Nichols will be able to recover fully his backpay and full complement of compensatory relief (up to $ 300,000 pursuant to 42 U.S.C. § ...


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