The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiffs, Robert J. Martin and the Government Accountability Project ("GAP"), allege that the U.S. Environmental Protection Agency ("EPA") and the EPA Administrator, Christine Todd Whitman, plan to violate their First Amendment rights by moving Martin, who is the EPA National Ombudsman ("Ombudsman"), *fn1 from the Office of Solid Waste and Emergency Response ("OSWER") to the Office of the Inspector General ("OIG"). Defendants have moved to dismiss plaintiffs' claims. Because Martin has failed to exhaust administrative remedies, his First Amendment claim will be dismissed pursuant to Fed. R. Civ. P. 12(b)(1), and because GAP has failed to state a claim upon which relief can be granted, its First Amendment claim will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
The EPA's Ombudsman position was created by the 1984 Amendments to the Resource Conservation and Recovery Act. (Pl.'s Mem. in Supp. of Mot. for Prelim. Inj. ("Mot. for P.I.") at 4.) The statutory authority for the position lapsed in 1988, but the EPA has continued to maintain an Ombudsman position as a matter of policy. (Pl.'s Mem. in Supp. of Mot. for T.R.O. and Prelim. Inj. ("Mot. for T.R.O."), Decl. of Martin at 2.) The Ombudsman is supposed to respond to citizen concerns, assist businesses in complying with regulations, provide information, and investigate complaints about relevant EPA programs. (Mot. for P.I. at 4.) GAP is a public interest organization that supports "employees who exercise their right of conscience to expose fraud, waste, mismanagement, abuse of authority and illegality in the workplace. In addition to providing legal representation to whistleblowers, GAP uses information provided by them to mount national and Congressional campaigns to reform targeted agencies." (Compl. ¶ 3.2.
Martin has filled the Ombudsman position since 1992. (Mot. for P.I. at 4.) He has been a strong critic of both the EPA and, more recently, Administrator Whitman. Plaintiffs allege that Martin's criticisms finally drew the ire of the defendants when an EPA investigator working with Martin, Hugh Kaufman, released evidence that he and Martin had gathered allegedly establishing that the Administrator had a conflict of interest in the cleanup efforts of the Shattuck Chemical Superfund Site in Colorado. (Id. at 5-6.) This evidence allegedly showed that the Administrator's husband had financial ties to Citigroup, which has become a part of the Shattuck investigation, and that both the Administrator and her husband would financially benefit from a favorable settlement of the Shattuck investigation. On March 11, 2001, the Denver Post published an article that called into question EPA's decision-making and that featured Martin's investigation and quotations from Kaufman. (Id. at 6.
Plaintiffs argue that shortly after learning of the article, defendants began taking adverse personnel actions that greatly curtailed Martin's authority and investigatory capabilities. (Id. at 7.) The plaintiffs allege two specific adverse personnel actions in their complaint. The first occurred in March of 2001, when Martin's supervisor informed him that Kaufman would no longer be able to assist him in investigating a Superfund site in Pennsylvania. (Compl. ¶ 4.15.) The second adverse personnel action, and the action that forms the basis of this suit, occurred on November 27, 2001, when the Administrator issued a memorandum directing that the Ombudsman position be moved from OSWER to OIG. (Id. ¶ 4.25.) Plaintiffs allege that the move will result in Martin having significantly less office space, and the complaint seems to imply, without specifically alleging, that the move will stop ongoing investigations and result in Martin's active files being seized. (Id. ¶¶ 4.37, 6.1.) The complaint does not allege that this move will prevent Martin from continuing to speak to the public.
Defendants' motivation for the proposed move to OIG is hotly contested. Plaintiffs argue that this move is the culmination of defendants' campaign against him which started in March of 2001 and was exacerbated by reports of the Administrator's potential conflicts in the cleanup of a Pennsylvania Superfund cite and Martin's October 10, 2001 report criticizing the EPA's handling of cleanup plans for the same Pennsylvania Superfund cite. (Mot. for P.I. at 7-9.) Defendants claim that the decision to move the Ombudsman position was prompted by a General Accounting Office ("GAO" report, which concluded that the Ombudsman did not have sufficient independence in OSWER. (Mot. to Dismiss at 5-8.) Defendants argue that OIG has the type of organizational independence called for by GAO. (Id.
On Thursday, January 10, 2002, four days before the Ombudsman position was scheduled to be moved, plaintiffs successfully sought a temporary restraining order that would prevent the move pending full briefing on the merits of preliminary injunctive relief. Those issues and jurisdictional issues now have been fully briefed by the parties.
Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss Martin's First Amendment claim that the defendants retaliated against him for his exercise of his First Amendment rights. They argue that this Court lacks subject matter jurisdiction to hear it. Additionally, defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss GAP's claim that the defendants have violated GAP's First Amendment right to receive information. *fn2 They argue that GAP has failed to state a claim upon which relief can be granted.
A dismissal pursuant to Fed. R. Civ. P. 12(b)(1) is proper where a plaintiff fails to establish by a preponderance of the evidence that subject matter jurisdiction exists. See Tavoulareas v. Comnas, 720 F.2d 192, 195 (D.C. Cir. 1983); Fitts v. Fed. Nat'l Mortgage Ass'n, 44 F. Supp. 2d 317, 320 (D.D.C. 1999). Defendants argue that this Court does not have subject matter jurisdiction over Martin's claims because Martin has failed to exhaust administrative remedies available to him under the Civil Service Reform Act of 1978 ("CSRA"), Pub. L. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.). If so, Martin was required to challenge defendants' actions with the Office of the Special Counsel ("OSC"), see 5 U.S.C. § 1214(a)(1)(A) (West 2000); Weaver v. United States Info. Agency, 87 F.3d 1429, 1433 (D.C. Cir. 1996), and nothing in the record suggests that he has done so.
The CSRA was enacted to replace the haphazard system of administrative and judicial remedies available to civil service employees who suffered an adverse personnel action with a comprehensive remedial scheme. See United States v. Fausto, 484 U.S. 439, 444 (1988). "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." McGregor v. Greer, 748 F. Supp. 881, 884 (D.D.C. 1990).
Congress intended for civil service employees to take advantage of this comprehensive, remedial scheme. Accordingly, "[u]nder the CSRA, exhaustion of administrative remedies is a jurisdictional prerequisite to suit." Weaver, 87 F.3d at 1433.
Plaintiffs do not dispute the jurisdictional nature of the CSRA exhaustion requirement. Instead, they make two arguments: 1) "[w]here harm is imminent and irreparable, the claim is purely constitutional, and the only effective remedy is emergency equitable relief preserving the status quo, then exhaustion is inappropriate, there being no 'equally effective' remedy available," and 2) Martin has no administrative remedy because the United States Court of Appeals for the Federal Circuit has exempted the types of disclosures Martin made from the protections of the Whistleblower Protection Act ("WPA") of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended in scattered sections of 5 ...