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Doe v. Goss

January 12, 2007

DOE (P), PLAINTIFF,
v.
HON. PORTER GOSS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff Doe, a former employee of the Central Intelligence Agency ("CIA"), brings this suit against Porter Goss, Director of the CIA;*fn1 the CIA; James Pavitt, CIA Deputy Director of Operations ("DDO"); the United States; and two Defendants Doe, whom Plaintiff identifies as current or former agents, officers and employees of the United States acting under color of Federal law. Plaintiff's true name and address are classified, and therefore he has been allowed to file as "Doe." Plaintiff brings this action under the Privacy Act, 5 U.S.C. § 552a(g)(1), the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706(1) & 2(A) - (D), the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq.

This matter is before the Court on Defendants' Motion to Dismiss the Second Amended Complaint ("Defs.' Mot."). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, the Defendants' Motion to Dismiss is granted in part and denied in part.

I. BACKGROUND

A. Factual History*fn2

The gravamen of Plaintiff's claims is that he "is being subjected to retaliation by Defendants for his refusal to falsify intelligence collected by him." Second Amended Complaint ("2AC") ¶ 15.

Plaintiff joined the CIA as a contract covert Operations Officer in 1982, at which time he conducted covert operations against a variety of intelligence targets for the CIA Directorate of Operations ("CIA/DO").*fn3 Id. at ¶ 16. He alleges his service in this role resulted in his eventual approval for promotion to the rank of GS-15 and for receipt of the CIA Special Intelligence Medal. Id. He further alleges that he was advised by the CIA that his employment had been converted from that of a contractor to a staff employee, and that thereafter he began to receive regular GS promotions and bi-weekly payment stubs. Id. at ¶ 17. In 1995, Plaintiff was assigned to the CIA/DO Counter Proliferation Division ("CPD"), where his mission was to collect intelligence on and interdict the proliferation of weapons of mass destruction ("WMD"). Id. at ¶ 18.

Plaintiff alleges that, starting in 2000, he began to receive requests to change his reports or to refrain from reporting certain intelligence. Id. at ¶ 21. After the first such instruction, he submitted a complaint via formal CIA "cable channels." CIA management subsequently advised him that his intelligence report did not support an earlier CIA assessment and told him that if he did not alter his report to support the earlier assessment it would not be received well by the intelligence community. Id. Plaintiff refused to alter his report, and the report was not disseminated. Id.

In 2001, Plaintiff met with a "highly respected human asset."*fn4 Immediately after the meeting Plaintiff reported certain classified information to his supervisor, who in turn met with CPD management. Plaintiff was later instructed to refrain from filing a written report. He was also told that the Deputy Director of Operations ("DDO") and CPD Chief would personally brief the President of the United States about the information conveyed by the "asset." Plaintiff claims no such briefing ever occurred. Id. at ¶ 22.

Plaintiff alleges that the CIA "sequestered intelligence" in this manner on other occasions, as well. Id. at ¶ 23.

At some point after the requests to alter his reporting began, a co-worker warned Plaintiff that CIA management planned to "get him" for his reporting of intelligence that was contrary to CIA "dogma." Id. at ¶ 23. The CPD removed Plaintiff from "handling" at least one asset, and Defendant John Doe No. 1 advised him his promotion to GS-15 and receipt of the Special Intelligence Medal were being withheld until he removed himself from further handling of assets. Id. at ¶¶ 22, 24.

In 2003, Plaintiff learned that the CIA had initiated a counter-intelligence ("CI") investigation into allegations that Plaintiff had had sex with a female asset. Five days after beginning a new position at the CIA, he learned that the position was cancelled due to pressure from Defendant Pavitt. Id. at ¶ 26. In September 2003, the Chief of the CIA Counter Intelligence Center ("CIC") placed Plaintiff on paid administrative leave without explanation, and Defendant Pavitt withheld from Plaintiff the previously approved promotion to GS-15 and the Medal of Intelligence. Id. at ¶ 27-28.

Around May 2004, the CIA Office of Inspector General ("OIG") informed Plaintiff that Defendants Pavitt and John Does Nos. 1 & 2 reported that Plaintiff had diverted to his own use money provided to him for payment to human assets. The OIG advised Plaintiff it was investigating these claims. Id. at ¶ 29.

During the week of July 26, 2004, Plaintiff met with OIG investigators who requested explanations for a list of financial items, including one check for $30.00 that predated the CI investigation. Plaintiff explained all of the deposits. Id. at ¶ 30. The OIG again interviewed Plaintiff on December 8, 2004 regarding the alleged diversion of funds. On April 19, 2005, Plaintiff received final notification that the OIG investigation was terminated.*fn5 Id. at ¶ 36. There was no finding of wrongdoing by Plaintiff. Id.

On August 6, 2004, while the OIG investigation was ongoing, the CIA notified Plaintiff that effective September 10, 2004 he would be terminated for unspecified reasons. The letter characterized Plaintiff's position as one of a contractor, and Plaintiff did not receive the administrative process afforded to CIA employees prior to termination. Id. at ¶ 31.

Plaintiff alleges the CI and OIG investigations were a sham undertaken to discredit him in retaliation for his refusal to falsify his reports. Id. at ¶¶ 32-33. He alleges the information collected about him is contained in a system of records retrievable by his name or other identifier, and that these records provided Defendants the necessary pretext to terminate him. Id. at ¶ 34. Plaintiff claims material inaccuracies exist in a number of these records, including his Official Personnel File, Counter-Intelligence Center file, Office of Medical Services file, and his Center for CIA Security file. Id. at ¶ 37.

B. Procedural History

Plaintiff filed the instant action on December 6, 2004. On April 27, 2005, he filed an amended complaint; on November 15, 2005, he filed a Second Amended Complaint with leave of the Court. The Second Amended Complaint alleges violation of the APA, 5 U.S.C. §§ 706(1) & (2)(A) - (D); violation of the Privacy Act, 5 U.S.C. §§ 552a(e)(2) & (5); breach of contract pursuant to the Little Tucker Act, 28 U.S.C. § 1346(a)(2); "failure to convert Plaintiff to staff employee"; "tortious violation of Plaintiffs' [sic] rights under the U.S. Constitution and amendments thereto"*fn6 ; and violation of the Federal Tort Claims Act ("FTCA"). Plaintiff seeks injunctive relief to reinstate his CIA employment at the GS-15 staff level and to order the CIA Director to undertake rule-making to promulgate regulations to ensure protection of Plaintiff's rights relating to his CIA employment; restitution of back pay; compensatory damages and attorneys' fees as a result of the foregoing.

Defendants filed the present Motion to Dismiss the Second Amended Complaint on December 19, 2005 [Dkt. No. 31], which Plaintiff opposed on March 9, 2006 [Dkt. No. 37] ("Pl.'s Opp'n"). Defendants filed a Reply on April 3, 2006 [Dkt. No. 41] ("Defs.' Reply").

II. STANDARD OF REVIEW

A motion to dismiss should only be granted "when it appears beyond doubt that, under any reasonable reading of the complaint, the plaintiff will be unable to prove any set of facts that would justify relief." Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). Because such motions "summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation, [they] should be treated with the greatest of care." Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). Accordingly, the factual allegations of the Complaint must be presumed true and liberally construed in favor of Plaintiff. Shear, 606 F.2d at 1253.

Likewise, in considering a motion to dismiss for lack of subject matter jurisdiction, the Court accepts as true all material factual allegations in the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984). The plaintiff bears the burden of establishing that the court has jurisdiction. District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987), citing KVOS, Inc. v. Associated Press, 299 U.S. 269 (1936).

III. ANALYSIS

A. The Civil Service Reform Act Precludes Plaintiff's APA (Count I), Contract (Count III), and FTCA (Count VI) Claims; It Does Not Preclude Plaintiff's Privacy Act Claim (Count II)

As a threshold matter, Defendants contest this Court's subject matter jurisdiction over Plaintiff's APA, Privacy Act, FTCA and contract claims. They argue that the Civil Service Reform Act ("CSRA") deprives the Court of jurisdiction over these claims because they constitute challenges to personnel decisions, which may only be reviewed pursuant to that statute's remedial scheme.

1. CSRA Background

The CSRA, enacted in 1978, established an elaborate new framework for evaluating adverse personnel actions against certain categories of federal employees. The Supreme Court described this framework as "an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration." United States v. Fausto, 484 U.S. 439, 445 (1988). It creates procedures for administrative and judicial review of personnel actions for covered employees. The CSRA provides procedural protections for three general types of personnel actions: "personnel actions," such as appointments, promotions, disciplinary actions, and decisions concerning pay, benefits or awards, 5 U.S.C. §2302; removals and reductions in grade and pay based on unacceptable performance, 5 U.S.C. § 4303; and "adverse personnel actions" taken to "promote the efficiency of the service" (i.e. involving employee misconduct), such as removals, suspensions, and reductions in grade or pay. 5 U.S.C. §§ 7503, 7513.

Chapter 23 of the CSRA, which establishes the principles of the merit system of employment, "forbids an agency to engage in certain 'prohibited personnel practices,' including unlawful discrimination, coercion of political activity, nepotism, and reprisal against so-called whistleblowers." Fausto, 484 U.S. at 446 (citing 5 U.S.C. § 2302). Chapter 23 applies to prohibited personnel practices by agency employees with "authority to take, direct others to take, recommend, or approve any personnel action." 5 U.S.C. § 2302(b). "Personnel action" is defined to include appointments, promotions, disciplinary actions, and decisions concerning pay, benefits or awards, among other actions. 5 U.S.C. § 2302(a)(2)(A). Employees covered by this chapter are given the right to file charges of prohibited personnel practices with the Office of Special Counsel of the Merit Systems Protection Board ("MSPB"), whose responsibility it is to investigate the charges and, where appropriate, to seek remedial action from the agency and the MSPB. 5 U.S.C. § 1204.

Chapter 75 of the CSRA governs adverse actions taken against employees for the "efficiency of the service." Subchapter II, the subchapter relevant to this case, governs major adverse actions taken against covered employees; they are defined as removals, suspensions for more than 14 days, reductions in grade or pay, or furloughs for 30 days or less. 5 U.S.C. ยงยง 7511-7514. In each subchapter, covered employees are given certain procedural protections. In Subchapter II, all employees covered by the statute are ...


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